Friday, November 27, 2015

Overbroad Legislation

R. v. Appulonappa, 2015 SCC 59:

[26]                          A law is said to violate our basic values by being overbroad when "the law goes too far and interferes with some conduct that bears no connection to its objective":  Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101.  As stated in Bedford, "[o]verbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others":  at para. 113; see also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 85.

[27]                          The first step in the overbreadth inquiry is to determine the object of the impugned law.  The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that object.  To the extent the law does this, it deprives people of s. 7 rights in a manner that infringes the principles of fundamental justice.

Of the Law Societies of Upper Canada and Nunavut 

Damages for injury to property to be based on restoration cost

Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819:

[61]       At common law, the traditional view was that damages for any type of injury to property should be measured by the diminution in value caused by the injury: see Hosking v. Phillips (1848), 154 E.R. 801, 3 Exch. Rep. 168 (Eng. Ex. Ct.). More recently, courts have awarded damages based on restoration costs, even if those costs exceed the amount of the decrease in property value: see Katherine M. van Rensburg, "Deconstructing Tridan: A Litigator's Perspective" (2004) 15 J. Envtl. L. & Prac. 85, at p. 89; see e.g. Jens v. Mannix Co. (1978), 89 D.L.R. (3d) 351 (B.C.S.C.); Horne v. New Glasgow, [1954] 1 D.L.R. 832 (N.S.S.C.). 

[62]       The restoration approach is superior, from an environmental perspective, to the diminution in value approach. Since the cost of restoration may exceed the value of the property, an award based on diminution of value may not adequately fund clean-up: Bruce Pardy, Environmental Law: A Guide to Concepts (Markham, ON: Butterworths, 1996), at p. 223.

[63]       In its Report on Damages for Environmental Harm, the Ontario Law Reform Commission canvassed a number of methods for calculating damages. Ultimately, it recommended the adoption of methodologies, like the restoration approach, that "best ensure that the environment is returned to its pre-contaminated condition": Ontario Law Reform Commission, Report on Damages for Environmental Harm (Toronto: Ontario Law Reform Commission, 1990), at p. 56. The Commission concluded, at p. 55, that "the ultimate goal of the courts should be to ensure that the environment is put in the same position after the mishap as it was before the injury."

[64]       Two relatively recent cases reflect the trend toward awarding remediation damages. In Tridan Developments Ltd. v. Shell Canada Products Ltd. (2000), 35 R.P.R. (3d) 141 (S.C.), aff'd (2002), 57 O.R. (3d) 503 (C.A.), leave to appeal refused, 177 O.A.C. 399 (note), a property neighbouring a gas station was contaminated with gasoline after a leak in a fuel line. Since the defendant polluter admitted liability, the only issue at trial was the assessment of damages. The plaintiff sought to recover the cost of returning its property to "pristine" condition. It also claimed "stigma" damages measured as the diminution in the value of its property. The defendant argued that the plaintiff had suffered no damages due to the spill, or that alternatively, its damages should be limited to the cost of remediating the property to the MOE's minimum standards. The trial judge awarded damages as requested by the plaintiff. On appeal, this court overturned the stigma damage award but upheld the trial judge's decision to order damages for the cost of future remediation.

[65]       The respondents argue Tridan does not apply because the defendant in that case admitted it was liable. There is no merit in this argument. The damages analysis in Tridan is relevant regardless of whether liability was admitted or found by the court.

[66]       The second case is Canadian Tire Real Estate Ltd. v. Huron Concrete Supply Ltd., 2014 ONSC 288, 88 C.E.L.R. (3d) 93. It also involved PHC contamination by a neighbour. Justice Leitch ordered the defendant to pay $3.6 million, which was the estimated cost for future remediation, as damages for nuisance, negligence, trespass and strict liability. She found that this award would place the plaintiff in the position it was in prior to the tortious conduct.

[67]       Neither Tridan nor Canadian Tire involved a claim under s. 99(2) of the EPA. There is no reported case where a court has awarded damages for the cost of future remediation under this section. Nonetheless, in my view, awarding damages under s. 99(2) based on restoration cost rather than diminution in property value is more consistent with the objectives of environmental protection and remediation that underlie this provision.

[68]       This approach to damages reflects the "polluter pays" principle, which provides that whenever possible, the party that causes pollution should pay for remediation, compensation, and prevention: see Pardy, at p. 187. As the Supreme Court has noted, the polluter pays principle "has become firmly entrenched in environmental law in Canada": Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58, [2003] 2 S.C.R. 624, at para. 23. In imposing strict liability on polluters by focusing on only the issues of who owns and controls the pollutant, Part X of the EPA, which includes s. 99(2), is effectively a statutory codification of this principle.

Of the Law Societies of Upper Canada and Nunavut 

Tuesday, November 24, 2015

Sleepy or Grumpy?

Toronto police urged to stop immigration 'status checks'

There's a disconnect here.

Toronto pays for a police service but does not make the laws (or at least the major laws) that the police must follow.

So calling Toronto a Sanctuary City does nothing. It's as if Toronto said "no drug prosecutions of any sort"; good idea or bad it's not within the City's power to decide. Despite "Sanctuary City" status, Toronto Police made almost 3,300 calls to border officials in eight months — and 83.4 per cent were "status checks," says a new study.

Of the Law Societies of Upper Canada and Nunavut

Monday, November 23, 2015

An employer's finances do not affect the quantum of notice for dismissal

Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801:

[12] The nature and purpose of notice are well established. Although employees may be dismissed without cause,"employment contracts for an indefinite period require the employer, absent express contractual language to the contrary, to give reasonable notice of an intention to terminate the contract if the dismissal is without cause": Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986.Reasonable notice allows employees a reasonable period of time to find replacement work. Damages for dismissal without reasonable notice are designed to compensate employees for the losses incurred during the period of reasonable notice – the amount of wages and benefits that they would have earned had they been permitted to serve out the notice period: see Arnone v. Best Theratronics Ltd., 2015 ONCA 63, 329 O.A.C. 284, at para. 16, leave to appeal refused, [2015] S.C.C.A. No. 140; Taggart v. Canada Life Assurance Co. (2006), 50 C.C.P.B. 163 (Ont. C.A.), at para. 13; and Sylvester v. British Columbia, [1997] 2 S.C.R. 315, at para. 1.

[13] The calculation of the notice period is a fact-specific exercise. The relevant factors are set out in Bardal v. The Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), at p. 145, and focus on the circumstances of the employee: the character of their employment, their length of service, their age, and the availability of similar employment, having regard to their experience, training, and qualifications.

[14] The motion judge emphasized the "character of the employment" in determining that the twelve-month notice period sought by the appellants should be reduced to six. He reasoned as follows, at paras. 89 and 90:

It should be self-evident that, by its nature, the School could not provide the security of employment offered by larger, more established and better-funded institutions. The teachers must be taken to have understood the circumstances of their employer. Every year, they had to wait until June before the School could be sure of its requirements for the upcoming year…

The three teachers cannot be taken to have been unaware of the circumstances of the School. Whatever their rights to notice, it must be understood that they worked there understanding its circumstances. This cannot be ignored in assessing what is reasonable notice. It is an aspect of the "character of the employment" as referred to in Bardal v. Globe & Mail Ltd... These are facts that are particular to this case.

[15] In my view, the motion judge erred in considering an employer's financial circumstances as part of the "character of the employment".

[16] The character of the employment refers to the nature of the position that had been held by the employee – the level of responsibility, expertise, and so on. Historically, courts have drawn a distinction between management and non-management employees in determining notice, and have assumed that the former may require more time to find similar employment than the latter. This court has questioned the validity of this assumption and suggested that the character of the employment is "a factor of declining relative importance": Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, 337 D.L.R. (4th) 679, at paras. 27-28.

[17] It is not necessary to address this issue for the purposes of this case. It suffices to say that the character of the employment, like the other Bardal factors, is concerned with the circumstances of the wrongfully dismissed employee. It is not concerned with the circumstances of the employer. An employer's financial circumstances may well be the reason for terminating a contract of employment – the event that gives rise to the employee's right to reasonable notice. But an employer's financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good.

Of the Law Societies of Upper Canada and Nunavut

How Funny is Murdering Prostitutes?

At the American Music Awards last night (from the BBC Story):

Actress Anna Kendrick skewered the cliches of acceptance speeches as she collected the best soundtrack prize for her film Pitch Perfect 2.
She then thanked music producer Harvey Mason Jr "for not telling anyone about that hooker we buried", before giving her final shout-out to executive producers Julianne Jordan and Julia Michaels, exclaiming: "I don't like you at all!"

This astonishing speech came amidst endless references to how Paris matters, Syria matters and how peace is possible (one wonders if Nigeria and Mali matter?  perhaps not so much?).

Now I know that edgy humour should be edgy. 

And I know that being politically correct can be very boring – but seriously, how funny is murdering sex workers?

Imagine the reference had been to another group?  A big “Thank You” for “not telling anyone about the burka babe we buried”?  Perhaps the fact that the brutal murder of (often aboriginal) sex workers is common in Canada makes me over sensitive but I see this as an appalling comment and one that is worthy of criticism.