Is this too Machiavellian? Maybe the Conservatives want the justice system to collapse?

Almost all justice system players say the Crime Bills won't work -- maybe that certain failure is intentional? Maybe the Conservatives want the legislation to fail?

Yesterday I had a long talk with a senior Crown Attorney.

The Crown took no position on whether or not it made sense to increase sentences and send more people to jail -- the Crown said 'that's for Parliament to decide'.

But the Crown did say the Crime Bills can't work because they will eliminate guilty pleas, make people run bail hearing and generally delay matters. The Crown noted that if the 'Conservatives wanted the changes to work they'd have matched them with money for more judges, lawyers, Crowns and prisons'. Accordingly, what will happen is cases will be tossed for delay and the system will shuffle along.

Now the Crown thought people being released for delay was a failure and showed the Conservatives did not think things through. Maybe not.

This Government is not run by fools. They can see the system won't work as set up and judges will start staying charges for delay.

But then the Conservatives can blame the bleeding heart liberal judges for letting out dangerous criminals -- which will allow another round of 'let's get tough on crime' legislation.

And that new 'tough on crime' politicking will come just around the time of the next Federal election ... .

Women’s rights advocates receive Nobel Peace Prize

Three women who fought sexual violence in Liberia and Yemen received the 2011 Nobel Peace Prize today. This is not really news -- the prizes were announced some time ago -- but the awards were still gratifying.

Liberian President Ellen Johnson Sirleaf, her compatriot Leymah Gbowee and Tawakkul Karman of Yemen collected their Nobel diplomas and medals at Oslo's City Hall.

At a time where women's rights are under siege -- where increasing numbers of nations forbid women from taking full roles in society -- where even here in Canada warped concepts of 'honour' are used to justify violence and murder -- these awards are particularly appropriate.

Conservatives appeal Wheat Board ruling

While I think the Conservative's position on the Wheat Board is bad for Canada, and especially Canadian farmers, I am very unsure the legislative changes are unlawful. That said, pending the appeal (which can be fast tracked), the Conservatives should hold off on the legislation. Yes it will delay matters a bit but what if the Court rules the changes are illegal; do we have another contempt case in the offing?

http://bit.ly/vmyK8s

OTTAWA — Ottawa is appealing a Federal Court ruling that said the government's plan to reform the Canadian Wheat Board has broken the law.

The government also promised Friday that it will push ahead with the changes.

"Western farmers should continue to plan on having the same freedom as other farmers in Canada so that they too can market their grains in the best interests of their individual farms," Agriculture Minister Gerry Ritz said in a written statement.

Ritz has introduced a bill in Parliament to amend the Canadian Wheat Board Act. It would end the board's monopoly on western wheat and barley sales by next August.

On Wednesday, Justice Douglas Campbell ruled that the bill violates the act, which requires any changes to be subject to a plebiscite among producers.

But Campbell did not overturn the amendment. He made it clear he was simply issuing a statement on the government's actions and it would be up to the government to decide how to proceed.

Bears in the Woods

The Irwin Cotler incident

The Irwin Cotler incident, where Conservative Party operatives spread false news that Irwin Cotler had resigned and a by-election was in the offing, is more than mere political dirty tricks.

It is far from uncommon for political activists to lose sight of the bigger picture and go too far. Sometimes, truth be told, political masters encourage such behaviour with a wink and a nod. That doesn't make dirty tricks right -- but it is a reality that must be accepted.

What makes the Cotler incident different is, on being caught, the Conservatives did not accept the behaviour was wrong -- indeed, they suggested it was entirely appropriate.

And that last, the Conservatives suggesting dirty tricks were neither dirty not tricky, is what makes the difference. We are looking at a Conservative Party that does not even bother to deny lying -- rather they revel in it.

This is a new attitude. It suggests that the Conservatives are not restrained by the conventional morals of the democratic process. It bodes ill for the future.

Humph!

Arbitrators not strictly bound by Law or Equity

Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 holds that labour arbitrators are not legally bound to apply equitable and common law principles ― including estoppel ― in the same manner as courts of law.  Labour arbitrators  may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized.  The broad mandate of arbitrators flows from the broad grant of authority vested in arbitrators by collective agreements, statutes such as The Labour Relations Act (LRA), and from their distinctive role in fostering peace in industrial relations. This analysis may well apply in other administrative contexts as well as, perhaps, provate arbitrations.  The Court holds:

[44]                          Common law and equitable doctrines emanate from the courts. But it hardly follows that arbitrators lack either the legal authority or the expertise required to adapt and apply them in a manner more appropriate to the arbitration of disputes and grievances in a labour relations context.

[45]                          On the contrary, labour arbitrators are authorized by their broad statutory and contractual mandates ― and well equipped by their expertise ― to adapt the legal and equitable doctrines they find relevant within the contained sphere of arbitral creativity. To this end, they may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized.

[46]                          This flows from the broad grant of authority vested in labour arbitrators by collective agreements and by statutes such as the LRA, which governs here.  Pursuant to s. 121 of the LRA, for example, arbitrators and arbitration boards must consider not only the collective agreement but also “the real substance of the matter in dispute between the parties”. They are “not bound by a strict legal interpretation of the matter in dispute”. And their awards “provide a final and conclusive settlement of the matter submitted to arbitration”.

[47]                          The broad mandate of arbitrators flows as well from their distinctive role in fostering peace in industrial relations (Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 36; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, at para. 17).

[48]                          Collective agreements govern the ongoing relationship between employers and their employees, as represented by their unions. When disputes arise — and they inevitably will — the collective agreement is expected to survive, at least until the next round of negotiations. The peaceful continuity of the relationship depends on a system of grievance arbitration that is sensitive to the immediate and long-term interests of both the employees and the employer.

[49]                          Labour arbitrators are uniquely placed to respond to the exigencies of the employer-employee relationship. But they require the flexibility to craft appropriate remedial doctrines when the need arises: Rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord.

 

Opera singers?

A talk with Murray Calder

I had a good talk today with Murray Calder, a former Member of Parliament, about the future of the Liberal Party.

Murray allowed me to speak directly on the blog about our discussion.

We spoke of many things but a central point Murray made was that the median age in Canada is now early 40s. In 1960 the median age was under 20.

There are significant political implications of this aging. Canadians today are concerned about stability and certainty. Change is not seen as inherently a good thing.

This means our policies must recognize that Canadians need to be convinced change is good and incremental change is likely more palatable than massive shifts. More generally, having a Leader, for example, over a longer period is good because people will come to accept that Leader as a steady constant presence.

We spoke of much more (rural engagement for example) and I probably have not done full justice to Murray's thoughts -- that said, we have to understand and appreciate the changes brought by an aging nation.

Doctrine of Federal Paramountcy

Quebec (Attorney General) v. Canada (Human Resources and Social Development), 2011 SCC 60, released this morning, has a useful discussion of the Doctrine of Federal Paramountcy:

[17]                          In Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at para. 64, the Chief Justice stated that the doctrine of federal paramountcy is applicable to two forms of conflict:

                    The first is operational conflict between federal and provincial laws, where one enactment says "yes" and the other says "no", such that "compliance with one is defiance of the other": Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, at p. 191, per Dickson J.  In Bank of Montreal v. Hall, [1990] 1 S.C.R. 121, at p. 155, La Forest J. identified a second branch of paramountcy, in which dual compliance is possible, but the provincial law is incompatible with the purpose of federal legislation: see also Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at para. 72; Lafarge Canada, at para. 84.  Federal paramountcy may thus arise from either the impossibility of dual compliance or the frustration of a federal purpose:  [Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188], at para. 14.

MacKay threatens to sue MPs who questioned veracity of chopper tale

At the height of his fame Oscar Wilde sued the Marquess of Queensberry for libel. The libel trial unearthed evidence that caused Wilde to drop his charges and led to his own arrest and trial for gross indecency. After two more trials he was convicted and imprisoned for two years' hard labour. I often remind people who want to sue for libel of Oscar Wilde. Sometimes it's not prudent to sue:

http://bit.ly/rMHSgp

Defence Minister Peter MacKay is considering legal action against MPs who accused him of lying about a ride he took aboard a search-and-rescue helicopter.

Opposition members have called for Mr. MacKay to apologize and even to resign over his use of military resources to shuttle him to the airport in Gander from a personal vacation at a remote Newfoundland fishing lodge.

Documents released last week showed some National Defence staff predicted the trip could be perceived badly, with one suggesting the pick-up was only to be under the "guise" of a search-and-rescue exercise. The cost of the flight has been estimated at $16,000.

Wow - Government held to have breached Wheat Board Act! I didn't see that coming!

"In a ruling today, Federal Court Judge Douglas Campbell said the government violated the Canadian Wheat Board Act by not holding a vote among farmers before introducing legislation eliminating the Wheat Board's monopoly position."

Politics - The Globe and Mail http://bit.ly/uROWSf

"Judge Campbell admonished the government for not consulting with farmers and "simply pushing ahead" with plans to essentially abolish the board. "Had a meaningful consultative process been engaged to find a solution which meets the concerns of the majority, the present legal action might not have been necessary," the judge ruled. He added that the government had to be "held accountable for [its] disregard for the rule of law.""

Punitive damages

Gill v. Singh, 2011 ONCA 770, released today, has some useful language about when punitive damages are available:

(b) Punitive damages

[8]              This was not a case for punitive damages which in law are reserved for exceptional cases.  Malice was neither pleaded nor proven as found by the trial judge.  The lack of an apology standing by itself did not, in our view, provide an adequate basis for punitive damages. The other factors identified by the respondent as justifying punitive damages namely, late admissions at trial, were matters of trial tactics that would more appropriately be taken into account with respect to the costs of the trial.

‘Desperate’ Tories fire back at MacKay’s critics

What troubles me most about this story is how it seems the Forces are being co opted into a political matter:

Ottawa Notebook - The Globe and Mail http://bit.ly/tkcOFX


Department of National Defence resources are now being poured into finding ways of extricating Peter MacKay from the controversy he's created over his 2010 helicopter adventure.
Mr. MacKay's officials have been aggressively searching for ammunition against the opposition and also shopping around stories that put the Defence Minister in a better light. This, after several days of pummeling by the opposition in the House of Commons.

Causation in fact and law

 R. v. Kippax, 2011 ONCA 766 is a helpful case clarifying causation in criminal matters:

[21]         To determine whether a person can be held responsible for causing a particular result, in this case death or bodily harm, we must determine whether the person caused that result not only in fact but also in law: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44.

[22]         Factual causation involves an inquiry about how the victim died or suffered bodily harm, in a medical, mechanical or physical sense, and an accused's contribution to that result: Nette, at para. 44.

[23]         Factual causation involves a determination of whether A caused B. The answer to the question of whether A caused B is resolved in a criminal case by the evidence of witnesses, those who testify about facts and others who offer relevant opinions: R. v. Smithers, [1978] 1 S.C.R. 506, at 518. The factual determination of whether A caused B has nothing to do with intention, foresight or risk: Smithers, at p. 518.

[24]         To prove factual causation, the Crown does not have prove that an accused's conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the death or injuries. The Crown need only prove that an accused's conduct was a significant contributing cause of the death or injuries or, said another way, that the accused's conduct was "at least a contributing cause…outside the de minimis range": Smithers, at p. 519; Nette, at paras. 70-71; and R. v. Hughes, 2011 BCCA 220, 305 B.C.A.C. 112, at paras. 56 and 64.

[25]         Factual causation, as the term itself would indicate, is a question of fact, reviewable only in accordance with a standard of palpable and overriding error: Hughes, at para. 65; and R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18.

[26]         Legal causation, on the other hand, has to do with whether an accused should be held responsible in law for a prohibited consequence of his or her conduct, for example, death or bodily harm: Nette, at para. 45. In legal causation, the inquiry is directed at the question of whether an accused should be held criminally responsible for the consequences that occurred: Nette, at para. 45; R. v. Shilon (2006), 240 C.C.C. (3d) 401 (Ont. C.A.), at para. 32. In the analysis of legal causation in negligence-based offences, like dangerous driving, reasonable foreseeability of harm is a relevant consideration: Shilon, at para. 33.

[27]         Conduct that is inherently dangerous and carries with it a reasonably foreseeable risk of immediate and substantial harm satisfies the standard required for legal causation: Shilon, at para. 38. Where the conduct of another is a reasonably foreseeable consequence of the conduct of an accused, the accused may be liable as a principal for the conduct of that other person: Shilon, at para. 54. A person may be liable as a principal if she or he actually does or contributes to the actus reus with the required mens rea: Hughes, at para. 77.

[28]         It is well-established that independent, voluntary human intervention in events started by an accused may break the chain of causation: Shilon, at para. 43. A new event may result in an accused's conduct not being a significant contributing cause of a prohibited consequence. But legal responsibility for an event will remain and the chain of causation will not be broken where an accused intentionally produced the outcome, recklessly brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: R. v. Maybin, 2010 BCCA 527, 263 C.C.C. (3d) 485, at para. 35

The test for bias varies depending upon the functions of the decision maker and the question being decided

Davis v. Guelph (City), 2011 ONCA 761 is a useful case dealing with several issues including bias. The Court writes:

[71]         It is well settled, however, that the test for bias varies depending upon the functions of the decision maker and the question being decided.  For example, in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at pp. 636, 638-39, Cory J. observed that there is a spectrum of decision-making tasks to be considered when determining the question of bias in the administrative law context, and the test to be applied is a flexible one, varying with the nature of the decision making body.  At the adjudicative end of the spectrum, the traditional "reasonable apprehension of bias" test will apply in full force.  At the other end of the spectrum, however – where the nature of the decision is more of an administrative, policy or legislative nature – the courts have held that a more lenient test, known as the "closed mind" test is applicable: see also TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403 (Ont. C.A.), at paras. 147-150; Pelletier v. Canada (A.G.), 2008 FCA 1, [2008] F.C.R. 40, at para. 55; Chrétien v. Canada, 2008 FC 802, [2009] 2 F.C.R. 417, aff'd 2010 FCA 283, 409 N.R. 193, at para. 67. 

Atleo vows to fight for First Nations rights

'"To the Crown we say: Do not ever believe that this national chief, or any future national chief, will ever quit or will ever compromise treaty or inherent rights. No First Nations leader will ever take one step away from insisting on the rights as the foundation of our relationship," he said, garnering applause from the chiefs.'

http://www.cbc.ca/news/politics/story/2011/12/06/pol-afn-special-chiefs-meeting.html

A sentencing judge must give considerable weight to a joint submission

While in Canada the judge is not bound by sentencing submissions, the caselaw is clear those submissions ought to be given considerable weight: R. v. Hagen, 2011 ONCA 749. This week’s decision in R. v. Gruden, 2011 ONCA 762 is a good example of how ignoring a joint submission can lead to a reversal on appeal:

[1] The 12 month sentence imposed by the trial judge increased the joint submission at trial twelve fold. In doing so the trial judge in our view overemphasized the fact of the dangerousness of the drug involved.

[2] He also gave too short shrift to the lack of severity of the crime itself, particularly its very low level of sophistication, and the very unfortunate circumstances and background of the offender.

Snowy roads

Just resting

My Commitments as the Next Vice President (English) of the Liberal Party

Within our Liberal family, there is universal agreement that we have a once in a generation opportunity to rebuild our Liberal Party and re-engage Canadians. At the Biennial Convention in Ottawa, dedicated, passionate Liberals will debate the new policies and processes which will define our Party to its members and to Canadians at large. By the end of the convention, we will be committed to a path of major change. I can envision thousands of delegates returning to their ridings, excited and empowered, ready to do whatever is needed.

Then what? Will the Party fall back into old habits, fighting for power and turf, wasting the passion of almost 4000 delegates and thousands of members. As Vice-President (English) I am committed to preventing such a waste.

Electing me as VP of the Liberal Party, you provide me a great opportunity to define the role. My experiences rebuilding and improving organizations, including the Ontario Bar Association, will serve well in working with the National Board and all Liberal members to improve our Party.

The VP must be a core part of Party success, driving and overseeing the progress of new initiatives and communicating this progress to all members. I am stating here my primary goals and would dearly appreciate your thoughts via my website, Facebook or by calling me directly. As Vice-President, I commit myself to the following goals:

 

IMPLEMENT PREDICTIVE VOTER MODELING IN LIBERALIST

Our party has fallen far behind in communicating with Canadians. Our competitors are able to communicate both on broad topics and on micro-targeted concerns by collecting and purchasing immense amounts of data about Canadians. Our competitors currently have more than 10 points of data for every Canadian voter.  We have less than 1.

Predictive Voter Modeling (PVM) is a highly accurate science of using demographic data, including our  polling, survey and election information, to predict how each individual voter might vote, the issues they care about and how likely they are to donate to or join the party.

Our voter management tool, Liberalist, is designed from the ground up to support PVM but we are not making full use of its capabilities. I am committed to purchasing a comprehensive set of predictive scores and making this data available to all ridings using Liberalist.  Using this data, I commit to working with the Ridings and the PTAs to achieve these goals:

To have an improved understanding of what matters to Canadians.

To tailor our messaging to resonate with individuals' concerns and passions

To grow our fundraising and membership. Using PVM, we will respond rapidly to the issues of the day, quickly creating targeted fundraising campaigns to those most likely to care about those current issues.

To make more efficient use of our paid and volunteer communications resources

To improve the effectiveness and return of our communications efforts – phone, mail, online or at the door. Our tools will allow us to better communicate our message and to record and understand their responses.

Simply put, let's talk with the right people about the right things, in the right way, at the right time.

 
CREATE A NATIONAL LIBERAL TALENT BANK

Every time I meet with a group of Liberals, I am overwhelmed by the broad range of talent and expertise. From business leaders to artists, programmers to event planners there are so many talented people willing and able to help the party. Yet there is no easy way for fellow Liberals to access this treasure trove. I am committing to addressing this obvious issue in the following ways:

I commit to drive the creation of a Liberal Talent Bank, providing an effective way to find the expertise within the Party to help them move forward. For example, when an EDA director wants to find a great designer to help update the web site, the Talent Bank will give them a list of Liberals with that capability and talent.

To create a national program of incentives for EDA's and PTA's to collect talent information.  

To create the position of National Volunteer Director, who will work with EDA's and PTA's. Our greatest assets are dedicated volunteers. We need a resource focused on supporting and expanding that volunteer base.

To include under the purview of the Volunteer Director the responsibility for expanding and maintaining Liberal University and making it a vital and well-used source of training for Liberal volunteers.

To expand existing programs celebrating the hard work of our volunteers.

 
ONGOING AND RELEVANT COMMUNICATIONS

In talking with Liberals across Canada, I have heard a recurring complaint, "I have no idea what is happening. The only time I hear from the party is when they are asking for money."

The Party has started down the path of better communications with Liberal.ca and its social media initiatives. But more is needed. As VP (English) I commit to a focus on communication, including these specific initiatives:

Within thirty days of the end of the Biennial, I will issue in both official languages, a report listing all of the initiatives, projects and decisions taken and authorized. This report will provide information about each item, including specific goals, ownership and timeline. Our members, our stakeholders, must be able to track our success and commitment.

Every three months, I commit to reporting our progress to members, as well as the issues and obstacles which stand in the way of success.

I will use all the communications tools at Party disposal to bring this and more information to the membership.

I will expand and extend the ability of the membership to provide their concerns and feedback.

To visit PTA's, Commissions and EDA's across the country, evangelizing new initiatives, processes and policies to all levels of Liberal membership

I commit to working with all members to return our Liberal Party to a respected place in Canadian politics.

Je suis de tout coeur avec vous

Tomorrow is the anniversary of the École Polytechnique Massacre.

I remember it vividly.

On December 6, 1989 Marc Lépine entered the École Polytechnique in Montreal, Quebec, Canada, armed with a legally obtained Mini-14 rifle and a hunting knife, and shot twenty-seven people before killing himself.

He began his attack by entering a classroom at the university, where he separated the male and female students. After claiming that he was "fighting feminism", he shot all nine women in the room, killing six. He then moved through corridors, the cafeteria, and another classroom, specifically targeting women to shoot. Overall, he killed fourteen women and injured ten other women and four men in just under twenty minutes before turning the gun on himself.

The victims killed are listed below:

Geneviève Bergeron (born 1968), civil engineering student

Hélène Colgan (born 1966), mechanical engineering student

Nathalie Croteau (born 1966), mechanical engineering student

Barbara Daigneault (born 1967), mechanical engineering student

Anne-Marie Edward (born 1968), chemical engineering student

Maud Haviernick (born 1960), materials engineering student

Maryse Laganière (born 1964), budget clerk in the École Polytechnique's finance department

Maryse Leclair (born 1966), materials engineering student

Anne-Marie Lemay (born 1967), mechanical engineering student

Sonia Pelletier (born 1961), mechanical engineering student

Michèle Richard (born 1968), materials engineering student

Annie St-Arneault (born 1966), mechanical engineering student

Annie Turcotte (born 1969), materials engineering student

Barbara Klucznik-Widajewicz (born 1958), nursing student

"The essence of the Liberal outlook lies not in what opinions are held, but in how they are held: instead of being held dogmatically, they are held tentatively, and with a consciousness that new evidence may at any moment lead to their abandonment."

- Bertrand Russell

Thanks to Fabrice Rivault for this quotation

Aboriginal Rights in the Constitution are not subject to the "notwithstanding clause"

I received a message today from a reader who suggested aboriginal treaty rights should be abolished and if they were protected under the Constitution the 'notwithstanding clause' should be used to overrule the protection.

Ignoring anything else, such a proposal does not work as a matter of Constitutional law.

Specifically, the notwithstanding clause (section 33) authorizes governments temporarily to override the Charter rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The clauses of the Constitution protecting Aboriginal Rights are not among those subject to override.

Section 35 of the Constitution Act, 1982 "recognizes and affirms" the "existing" aboriginal and treaty rights in Canada. Section 35 also provides protection of aboriginal title which protects the use of land for traditional practices. These rights extend to people whom make up the Indian, Inuit, and Métis peoples. The other relevant section is also not subject to the 'notwithstanding' clause. Section 25 states that the Charter does not derogate existing Aboriginal rights and freedoms, including treaty rights.

Of course, there are moral and pragmatic reasons to honour the solemn obligations of the Crown. But that is another post.

A very important decision regarding summary judgment

 Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 was just released – it is a very important decision regarding summary judgment:

 Analysis of the Amended Rule 20

1.         Overview

[35]         By the time these appeals were argued, a well-developed body of jurisprudence from the Superior Court of Justice under the new Rule 20 was already in place: see e.g., Healey v. Lakeridge Health Corp., 2010 ONSC 725, 72 C.C.L.T. (3d) 261; Cuthbert v. TD Canada Trust, 2010 ONSC 830, 88 C.P.C. (6^th) 359; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC 1037; Hino Motors Canada Ltd. v. Kell, 2010 ONSC 1329; Lawless v. Anderson, 2010 ONSC 2723; Canadian Premier Life Insurance Co. v. Sears Canada Inc., 2010 ONSC 3834; Enbridge Gas Distribution Inc. v. Marinaccio, 2011 ONSC 2313; and Optech Inc. v. Sharma, 2011 ONSC 680, with supplementary reasons at 2011 ONSC 1081. We have carefully reviewed and considered the conflicting jurisprudence from the Superior Court. However, we have chosen not to comment on the relative merits of the various interpretative approaches found in this body of case law because our decision marks a new departure and a fresh approach to the interpretation and application of the amended Rule 20.

[36]         The amendments to Rule 20 are meant to introduce significant changes in the manner in which summary judgment motions are to be decided. A plain reading of the amended rule makes it clear that the Aguonie and Dawson restrictions on the analytical tools available to the motion judge are no longer applicable. The motion judge may now weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence in determining whether there is a genuine issue requiring a trial with respect to a claim or defence: see rule 20.04(2.1). Moreover, the new rule also enables the motion judge to direct the introduction of oral evidence to further assist the judge in exercising these powers: see rule 20.04(2.2).

[37]         As we shall go on to explain, the amended rule permits the motion judge to decide the action^[4] where he or she is satisfied that by exercising the powers that are now available on a motion for summary judgment, there is no factual or legal issue raised by the parties that requires a trial for its fair and just resolution.

[38]         However, we emphasize that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.

[39]         Although both the summary judgment motion and a full trial are processes by which actions may be adjudicated in the “interest of justice”, the procedural fairness of each of these two processes depends on the nature of the issues posed and the evidence led by the parties. In some cases, it is safe to determine the matter on a motion for summary judgment because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial. In other cases, the record will not be adequate for this purpose, nor can it be made so regardless of the specific tools that are now available to the motion judge. In such cases, a just result can only be achieved through the trial process.  This pivotal determination must be made on a case-by-case basis.

2.         The Types of Cases that are Amenable to Summary Judgment

[40]         Speaking generally, and without attempting to be exhaustive, there are three types of cases that are amenable to summary judgment. The first two types of cases also existed under the former Rule 20, while the third class of case was added by the amended rule.

[41]         The first type of case is where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment. Rule 20.04(2)(b) permits the parties to jointly move for summary judgment where they agree “to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.” We note, however, that the latter wording – “the court is satisfied” – affirms that the court maintains its discretion to refuse summary judgment where the test for summary judgment is not met, notwithstanding the agreement of the parties.

[42]         The second type of case encompasses those claims or defences that are shown to be without merit. The elimination of these cases from the civil justice system is a long-standing purpose well served by the summary judgment rule. As stated by the Supreme Court of Canada in Canada (A.G.) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 10:

The summary judgment rule serves an important purpose in the civil litigation system.  It prevents claims or defences that have no chance of success from proceeding to trial.  Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system.  It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage.  Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

[43]         As we shall discuss further below,^[5] the amended Rule 20 has given the motion judge additional tools to assess whether a claim or defence has no chance of success at trial. 

[44]         Moreover, the amended Rule 20 now permits a third type of case to be decided summarily. The rule provides for the summary disposition of cases other than by way of agreement or where there is “no chance of success”. The prior wording of Rule 20, whether there was a “genuine issue for trial”, was replaced by “genuine issue requiring a trial”. This change in language is more than mere semantics. The prior wording served mainly to winnow out plainly unmeritorious litigation. The amended wording, coupled with the enhanced powers under rules 20.04(2.1) and (2.2), now permit the motion judge to dispose of cases on the merits where the trial process is not required in the “interest of justice”.

[45]         The threshold issue in understanding the application of the powers granted to the motion judge by rule 20.04(2.1) is the meaning to be attributed to the phrase “interest of justice”. This phrase operates as the limiting language that guides the determination whether a motion judge should exercise the powers to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence on a motion for summary judgment, or if these powers should be exercised only at a trial. The phrase reflects that the aim of the civil justice system is to provide a just result in disputed matters through a fair process. The amended rule recognizes that while there is a role for an expanded summary judgment procedure, a trial is essential in certain circumstances if the “interest of justice” is to be served. 

[46]         What is it about the trial process that certain types of cases require a trial for their fair and just resolution? In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the majority decision of Iacobucci and Major JJ., at para. 14, quotes a passage from R.D. Gibbens in “Appellate Review of Findings of Fact” (1991-92), 13 Advocates’ Q. 445, at p. 446, which refers to the trial judge’s “expertise in assessing and weighing the facts developed at trial”.  The quoted passage states:  “The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence.” The passage further notes that the trial judge gains insight by living with the case for days, weeks or even months. At para. 18, Iacobucci and Major JJ. go on to observe that it is the trial judge’s “extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge’s familiarity with the case as a whole” that enables him or her to gain the level of appreciation of the issues and the evidence that is required to make dispositive findings.

[47]         As these passages reflect, the trial judge is a trier of fact who participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses. As expressed by the majority in Housen, at para. 25, the trial judge is in a “privileged position”. The trial judge’s role as a participant in the unfolding of the evidence at trial provides a greater assurance of fairness in the process for resolving the dispute. The nature of the process is such that it is unlikely that the judge will overlook evidence as it is adduced into the record in his or her presence.   

[48]         The trial dynamic also affords the parties the opportunity to present their case in the manner of their choice. Advocates acknowledge that the order in which witnesses are called, the manner in which they are examined and cross-examined, and how the introduction of documents is interspersed with and explained by the oral evidence, is of significance. This “trial narrative” may have an impact on the outcome. Indeed, entire books have been written on this topic, including the classic by Frederic John Wrottesley, The Examination of Witnesses in Court (London: Sweet and Maxwell, 1915). As the author instructs counsel, at p. 63:

It is, perhaps, almost an impertinence to tell you that you are by no means bound to call the witnesses in the order in which they are placed in the brief.

It will be your task, when reading and noting up your case, to marshall your witnesses in the order in which they will best support your case, as you have determined to submit it to the [trier of fact].

[49]         In contrast, a summary judgment motion is decided primarily on a written record. The deponents swear to affidavits typically drafted by counsel and do not speak in their own words. Although they are cross-examined and transcripts of these examinations are before the court, the motion judge is not present to observe the witnesses during their testimony. Rather, the motion judge is working from transcripts. The record does not take the form of a trial narrative. The parties do not review the entire record with the motion judge. Any fulsome review of the record by the motion judge takes place in chambers.

[50]         We find that the passages set out above from Housen, at paras. 14 and 18, such as “total familiarity with the evidence”, “extensive exposure to the evidence”, and “familiarity with the case as a whole”, provide guidance as to when it is appropriate for the motion judge to exercise the powers in rule 20.04(2.1). In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question:  can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial? 

[51]         We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings.  Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.  

[52]         In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues.

[53]         We wish to emphasize the very important distinction between “full appreciation” in the sense we intend here, and achieving familiarity with the total body of evidence in the motion record. Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of the evidence that has been put before them.

[54]         The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.

[55]         Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment. 

[56]         By adopting the full appreciation test, we continue to recognize the established principles regarding the evidentiary obligations on a summary judgment motion. The Supreme Court of Canada addressed this point in Lameman, at para. 11, where the court cited Sharpe J.’s reasons in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.(1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, in support of the proposition that “[e]ach side must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried.” This obligation continues to apply under the amended Rule 20. On a motion for summary judgment, a party is not “entitled to sit back and rely on the possibility that more favourable facts may develop at trial”:  Transamerica, at p. 434.

[57]         However, we add an important caveat to the “best foot forward” principle in cases where a motion for summary judgment is brought early in the litigation process.  It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

[58]         Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.

3.         The Use of the Power to Order Oral Evidence

[59]         It is necessary at this point to discuss the limits on the discretion of the motion judge to order oral evidence under rule 20.04(2.2) of the amended Rule 20. First, while the terminology of the “mini-trial” provides a convenient short form, this term should not be taken as implying that the summary judgment motion is a form of summary or hybrid trial. A summary judgment motion under the new rule does not constitute a trial. Mr. Osborne’s recommendation of adopting a summary trial mechanism was not adopted, and his recommendation relating to mini-trials was not accepted in full. Indeed, the term “mini-trial” did not find its way into the body of the rule. 

[60]         The discretion to order oral evidence pursuant to rule 20.04(2.2) is circumscribed and cannot be used to convert a summary judgment motion into a trial. Significantly, it is the motion judge, not counsel, who maintains control over the extent of the evidence to be led and the issues to which the evidence is to be directed. The distinction between the oral hearing under rule 20.04(2.2) and the narrative of an actual trial is apparent. The discretion to direct the calling of oral evidence on the motion amounts to no more than another tool to better enable the motion judge to determine whether it is safe to proceed with a summary disposition rather than requiring a trial.

[61]         In appropriate cases, the motion judge is empowered to receive oral evidence on discrete issues for purposes of exercising the powers in rule 20.04(2.1). In other words, the motion judge may receive oral evidence to assist in making the determination whether any of the issues raised in the action require a trial for their fair and just resolution. We discuss below, at paragraphs 101-103, the circumstances in which it will be appropriate to order the presentation of oral evidence. However, at this stage, we stress that the power to direct the calling of oral evidence under rule 20.04(2.2) is not intended to permit the parties to supplement the motion record. Nor can the parties anticipate the motion judge directing the calling of oral evidence on the motion.

[62]         The latter point requires that we address a practice issue in the Toronto Region. As a case management matter, parties to a summary judgment motion in Toronto are required to complete a summary judgment form, which includes questions about whether the parties intend to call viva voce evidence on an issue in dispute, and estimating the time required for such evidence. Although no doubt well-intentioned, these questions are misplaced in that they create the misconception that a summary judgment motion is in fact a summary trial.

[63]         A party who moves for summary judgment must be in a position to present a case capable of being decided on the paper record before the court. To suggest that further evidence is required amounts to an admission that the case is not appropriate, at first impression, for summary judgment. It is for the motion judge to determine whether he or she requires viva voce evidence under rule 20.04(2.2) “for the purpose of exercising any of the powers” conferred by the rule.  This is not an enabling provision entitling a party to enhance the record it has placed before the court. It may be that, for scheduling reasons, the oral evidentiary hearing will need to be held after the hearing of the main motion. Nonetheless, it is the purview of the motion judge, and the motion judge alone, to schedule this hearing, which is a continuation of the original motion and not a separate motion.

4.         Trial Management Under Rule 20.05

[64]         Rule 20.05 facilitates a greater managerial role for judges and masters in circumstances where a summary judgment motion is dismissed in whole or in part and where the court orders that the action proceed to trial expeditiously. The summary judgment court, having carefully reviewed the evidentiary record and heard the argument, is typically well-positioned to specify what issues of material fact are not in dispute and to define the issues to be tried. Rule 20.05(2) sets out a lengthy list of directions that a court may make with a view to streamlining the proceedings and empowers the court to make a variety of orders, including requiring the filing of a statement setting out what material facts are not in dispute, specifying the timing and scope of discovery, and imposing time limits on any oral examination of a witness at trial.^[6]

[65]         While the court may make use of the provisions in rule 20.05 to salvage the resources that went into the summary judgment motion, the court should keep in mind that the rule should not be applied so as to effectively order a trial that resembles the motion that was previously dismissed. For example, while rule 20.05(2)(f) provides that “the affidavits or any other evidence filed on the motion and any cross-examinations on them may be used at trial in the same manner as an examination for discovery”, these materials should not be treated as a substitute for the viva voce testimony of the witnesses in the trial judge’s presence.  Any trial management order flowing from a failed summary judgment motion must facilitate the conduct of a genuine trial that will permit the full appreciation of the evidence and issues required to make dispositive findings. In other words, the trial ought not to be simply a reconfiguration of the dismissed motion. 

[66]         Further, litigants must not look to rule 20.05 as a reason for bringing a motion for summary judgment or as a substitute for effective case management of the trial of an action. The newly-introduced Rule 50 permits parties to obtain orders and directions that will assist in ensuring that a trial proceeds efficiently.

 

Monday and off to work!!!

An Ontario Liberal

I had a good chat with a former MP and a well known Ontario Liberal today.

He emphasized just how important it is for the Liberal Party to show unity -- mindless internal squabbles will achieve nothing and rightly turn off the electorate.

The Board Elections have, to date, been marked by a solid unity of purpose. Division has been set aside and all candidates are genuinely concerned to improve and rebuild the Party. Perhaps (we can hope) that spirit will continue after the Biennial?

The real math behind Attawapiskat’s $90 million

http://fullcomment.nationalpost.com/2011/12/04/brett-hodnett-the-real-math-behind-attawapiskats-90-million/

Excellent article -- and good for the National Post to publish it!

Never be bullied into silence. Never allow yourself to be made a victim. Accept no one's definition of your life, but define yourself.

~ Harvey S. Firestone (thanks to ‪Carolyn Weatherson for showing this quotation)

Have a drink