Sunday, July 26, 2015

Good Sunday Morning

Of the Law Societies of Upper Canada and Nunavut

What is Sexual Harrassment?

Sexual harrassment is a type of discrimination based on sex.  It involves unwelcome comments or actions based on sex usually taking place more than once over a period of time.

An obvious example of sexual harrassment would be an employer demanding sexual favours in return for continuing employment.  A less obvious example would be sexually related comments or jokes at work or school that make someone uncomfortable.  An even less obvious example would be where someone is subjected to extra scrutiny at work or school, without any sexual overtones, merely because of their gender. 

That last point is worth emphasizing.  Sexual harrassment is not necessarily related to sexual activity.  If a woman is doing what is seen as traditionally a job for a man and she is treated differently because she is a woman, that amounts to sexual harrassment.  A male student doing what is traditionally seen as woman's course who is treated differently may be sexually harrassed.

It is also important to remember sexual harrassment is not limited to employment or school -- it can occur in the provision of services or otherwise.  Also in the employment context, sexual harrassment is not always an employer;  coworkers can sexually harrass each other although the employer has a duty to make sure that does not happen.

Wednesday, July 22, 2015

Five Fold Test to Set Aside Default Judgment

Since at least the 1940s the test to set aside default judgment has involved three criteria. So the Court of Appeal in Roth v. Bourollias, 2011 ONCA 760 held:  
In general on a motion to set aside a default, the court will consider: (a) whether the motion to set aside the judgment was brought promptly; (b) where there is a plausible excuse or explanation for the defendant's default in complying with the Rules of Civil Procedure; and (c) whether the facts establish at least an arguable case: Nelligan v. Lindsay, [1945] O.W.N. 295 (H.C.J.); Laredo v. Sinnadurai(2005), 78 O.R. (3d) 321 (C.A.); Morgan v. Toronto (Municipality) Police Services Board, [2003] OJ. No. 1106 at para. 19 (C.A.); MacNaughton v. The Royalton, 2011 ONSC 17. 
More recently the three fold test has been restated as five fold - as a practical matter the results are likely the same. So in Ravazzolo v. Romaniuk, 2015 ONCA 542 the Court holds:
[17]       In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 48-49, this court set out five factors that a court should consider in determining whether to set aside a default judgment:
1.            Whether the motion was brought promptly after the defendant learned of the default judgment;
2.            Whether there is a plausible excuse or explanation for the defendant's default in complying with the Rules of Civil Procedure;
3.            Whether the facts establish that the defendant has an arguable defence on the merits;
4.            The potential prejudice to the moving party should the motion be dismissed and the potential prejudice to the respondent should the motion be allowed; and
5.            The effect of any order the court might make on the overall integrity of the administration of justice.
[18]       As stated in Mountain View, at paras. 50 and 51: 
These factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.
For instance, the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part.

Tuesday, July 21, 2015

Cost review on appeal

Green v. Green, 2015 ONCA 541:

[77]       An order of costs is discretionary and entitled to deference. The Courts of Justice Act, R.S.O 1990, c. C.43 affords broad discretion to trial judges with respect to costs. This discretion must fit within the framework created by the Family Law Rules, O. Reg. 114/99; M. (C.A.) v. M.(D.) (2003), 67 O.R. (3d) 181 (C.A.).

[78]       An appellate court should set aside a costs award only if the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303. Thus, the threshold for appellate interference with a trial judge's award of costs is high. 

Saturday, July 18, 2015

Jury charges too long

The Supreme Court in R. v. Rodgerson, 2015 SCC 38 says jury charges are too long - see below. Some might suggest the Court is responsible for the great increase in length of jury charges because of the complexity the Court often adds to previously simple matters (say the principled approach):

3)           The Role of the Trial Judge

[50]                          While the Crown and defence counsel both have roles to play, the role of the trial judge is the most vital, and the most difficult, in formulating jury instructions. A trial judge must strike a crucial balance by crafting a jury charge that is both comprehensive and comprehensible. Recognizing the difficulty inherent in this task, this Court has "repeatedly endorsed" the functional approach to reviewing jury charges (R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 49). This functional approach is designed to "ensure that the yardstick by which we measure the fitness of a [jury charge] does not become overly onerous", in order to reduce "the proliferation of very lengthy charges in which judges often quote large extracts from appellate decisions simply to safeguard verdicts from appeal" (Jacquard, at para. 1). Under the functional approach, the trial judge's duty is to "decant and simplify" (ibid., at para. 13). Over-charging is just as incompatible with this duty as is under-charging.

[51]                          More than 15 years later, the concern expressed in Jacquard remains. However, rather than quoting large extracts from appellate decisions, trial judges have taken to quoting large extracts from model charge manuals to safeguard their verdicts from appeal. This has resulted in an overreliance on the rote reproduction of excerpts from model jury instructions. But model charge manuals do not necessarily translate into model charges. They are a tool, not the final product. They are there to guide, not govern. In my view, the failure to isolate the critical issues in a case and tailor the charge to them inevitably makes the instructions less helpful to the jury and adds unnecessarily to their length and complexity.

[52]                          Courts have repeatedly emphasized that the jury charge must "be tailored to the facts of the specific case" (R. v. McNeil (2006), 84 O.R. (3d) 125 (C.A.), at para. 21). While "[t]he model instructions are intended to provide a starting point for trial judges", modification will frequently be required to provide the jury "with the applicable legal principles in a format that facilitates the application of those principles to the specific circumstances of the case" (ibid.). Trial judges must "separate the wheat from the chaff" when determining which defences may be applicable, and must engage in a "careful and considered culling . . . to avoid unnecessary, inappropriate and irrelevant legal instruction of a kind that might well divert the jury's attention" from the primary disputed issues in the case (Pintarat p. 494). 

[53]                          This principle was endorsed in Helping Jurors Understand (2007), at p. 82, by no less authority than Justice Watt of the Ontario Court of Appeal (then of the Superior Court of Justice), also the author of the Ontario Specimen Jury Instructions(Criminal) (2003):

A specimen is a sample.  A specimen instruction is a sample instruction about its subject-matter.  Specimen instructions do not and cannot be expected to provide legally accurate directions for every set of circumstances that fall within their reach.  There are no one-size-fits-all jury instructions.  At best, specimen instructions provide the basic building blocks for finals and other instructions.  The twists and turns of individual cases will dictate the nature and extent of modification required to ensure legal accuracy. [Emphasis in original.]

[54]                          In the present case, a few modest alterations would have saved this jury charge from legal error. At the same time, a great many of the instructions that were included could and should have been removed. In the event that Mr. Rodgerson's new trial adduces substantially similar evidence, and the positions of the parties on that evidence remain the same, it is my view that a substantially more streamlined jury charge would suffice. Mr. Rodgerson would benefit from a jury keenly focused on the evidence and arguments forming the basis of his defence, and not distracted by hours of confusing and repetitive generic instruction. The Crown would also benefit from a simplified charge, with fewer unnecessary contours in which grounds for an appeal of conviction may lay hidden. I do not wish to appear na├»ve, and I recognize that such an everybody-wins approach is easier said than done. Nevertheless, I remain firmly of the view that "common sense and the law need not be strangers", and that the fundamental purpose of the jury charge must be "to educate, not complicate" (R. v. Zebedee (2006), 81 O.R. (3d) 583 (C.A.), at para. 82).

Tuesday, July 14, 2015

Restitution in Criminal Law

Restitution in the criminal law comes in two forms.  Restitution is intended to rehabilitate the offender by making him immediately responsible for the loss of the victim. It also gives the victim a speedy means of getting money back.

Informal restitution is often part of a resolution arrangement in property offences where the prosecution is stayed or otherwise lessened if restitution is paid before the case gets to trial.

Formal restitution is set out in sections 738 to 741.2 of the Criminal Code.

Restitution can be ordered to require the offender to pay a sum of money to compensate a party for a proven loss. Restitution is ordered as either a term of a probation order or else as a standalone restitution order.  A stand alone restitution order has no time limit for repayment and may be registered as a civil judgment which in turn could be used to garnish wages and seize property.

In granting restitution the Court must consider "totality" of the sentence. The offender should have some ability to pay the amount, either at sentencing or in the future. The court must take into consideration the offender's ability to pay. However, where the offence is particularly egregious, such as a breach of trust, a restitution order may be made even where there does not appear to be likelihood of repayment.

A compensation order should not be used as a substitute for civil proceedings and should not be ordered when the amount is unclear.  Similarly, a compensation order is not the appropriate mechanism to unravel involved commercial transactions or where it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.