The Weaving of Two Tales

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Tale as old as time
Tune as old as song
Bittersweet and strange
Finding you can change
Learning you were wrong… – (Lyrics from Beauty and the Beast)

Many cases have both criminal and civil proceedings. It’s a tale as old as time.  But, in SC v NS, 2017 ONSC 353, a twist arose from the two parallel proceedings. In SC v NS, the plaintiff sued the defendant for sexual assault. And while this lawsuit was underway, there was a parallel criminal proceeding in progress.

As part of the documentary discovery process, the plaintiff provided highly confidential documents to civil defence counsel.  Civil defence counsel then gave these documents to the criminal counsel. While at trial, criminal defence counsel used these documents to cross-examine the plaintiff (complainant).

This caused a storm to erupt in the courtroom. Civil counsel had violated the deemed undertaking rule by giving the documents to criminal counsel. And a motion was brought to address the breach of the deemed undertaking rule.

The deemed undertaking rule is the rule that you cannot use information obtained from one proceeding in another proceeding. There are exceptions to this rule, including the exception of using it to impeach the testimony of a witness. In SC v NS, Justice Matheson wrote:

[4] …Unlike the other exceptions to the deemed undertaking, the impeachment exception raises numerous issues and interests, which vary depending on the specific circumstances. The “automatic” approach advanced by the moving party would allow for the undertaking to be entirely or substantially defeated. It is therefore necessary that parties wishing to proceed under the impeachment exception seek directions of this Court regarding how to proceed in the particular circumstances. Ordinarily, that motion would be on notice to the party whose compelled discovery is proposed to be used…

[5] In this case, the moving party ought to have sought directions from this Court, on notice to the plaintiffs, before using the plaintiffs’ documentary productions in the criminal proceeding. The moving party did not do so and therefore failed to deploy the exception properly, breaching the undertaking.

[6] This is not a determination of whether the documents can be used in the criminal trial. This decision relates only to responsibilities under Rule 30.1.01 of the Rules of Civil Procedure. I am not deciding any issue regarding the admissibility of evidence, scope of cross-examination or any other matter regarding the conduct of the criminal proceedings. Those matters are properly decided by the criminal trial judge…

 

 [75] I have significant difficulty with the submission that nothing else was required prior to permitting the use of the entirety of a party’s compelled documentary discovery in another proceeding.  On this approach, a party could hand over the entirety of an opposite party’s compelled discovery to a third party on the mere possibility that there may be a chance to impeach sometime in the future.  I say “mere possibility” not as a comment on the facts before me, but because in the absence of judicial oversight that is what could transpire.  This approach would allow for wide sharing of intensely personal information outside the civil proceeding for which it was produced, secretly, without any notice to the person and people whose private information is being passed around.

[89]           In my view, these issues can be addressed on a motion for directions within the context of a specific situation more easily than they can be addressed in the abstract.  And the directions given may differ greatly depending on the circumstances.  This underscores the need to move for directions in individual cases.

Civil counsel was wrong to provide the plaintiff’s confidential records to criminal defence counsel without a court order. I predict that this case will be heard by the Ontario Court of Appeal. The Ontario Court of Appeal will affirm Justice Matheson’s decision. To rule otherwise would be to gut the deemed undertaking rule and to render it meaningless.

Is Justice Blind?

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Justice is blind or so they say. It is supposed to pay “no heed to the social status or personal characteristics of the litigants”.

But this simply is not true.

Race, gender, religion, socio-economic background, sexuality, ethnicity, ability, education, family upbringing, all play a role in the way judges assess the cases before them. But to what extent should a judge’s personal identity and experience be brought to bear in administering justice?

In the decision R. v. Pelletier, 2016 ONCJ 628, judge Justice Nakatsuru explicitly acknowledges his own identity and the identity of the offender in assessing the case before him. In R. v. Pelletier, Ms. Pelletier was sentenced to jail for 3 years for two robberies, arson, and an assault. In addition to jail time, she was ordered to undergo supervision. While undergoing this supervision, she tested positively for cocaine. And in doing so, was in breach of a court order.

In determining her court sentence, Justice Nakatsuru wrote:

[7] You are an indigenous person… As you know, I myself was raised on the prairies. I know firsthand the discrimination suffered by indigenous peoples in that part of our country. It is something all right thinking people are ashamed of…

[20] In addition, the risk of re-offending in your case is not just connected to an untreated addiction. It is connected to the historical injustice done to indigenous people. It is connected to your own personal indigenous history. Connected to the abuse you suffered…

[25] I find that rehabilitation is an important principle in my sentence. I find that restraint in imposing jail is important. Obviously it is important for you Ms. Pelletier. But is also important to deal with the problem we have in this country of sending too many indigenous offenders to jail. The courts recognize that problem. I have to address it in my sentencing of you.

[30] After careful reflection, Ms. Pelletier, I am sending you home. I wish you all the best in your life.

[31] After taking into account time served, the sentence will be 1 day.

It is a well written decision. It acknowledges the background of Ms. Pelletier, and it acknowledges the background of the judge. But if theoretically justice is to be blind, then it begs the following questions. To what extent should a judge’s personal background play in deciding a case? To what extent should the personal background of the litigant play in deciding the case? To what extent should justice really be blind?

Canada’s Most Important Challenge to Healthcare

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“There was no difference between men, in intelligence or race, so profound as the difference between the sick and the well.” – The Great Gatsby 

What is the best way to run our health care system? Is it privatized? Hybrid? Or, Public?

Right now, in British Columbia Dr. Brian Day is challenging the very way we fund essential health care services. He argues that the province’s ban on the purchase of private insurance for essential medical procedures is unconstitutional. As the ban requires many patients to endure gruelling wait times, thereby exacerbating their medical conditions. The trial is predicted to go for 6 months.

Eventually, the case will be appealed to the Court of Appeal and then to the Supreme Court of Canada (its true destination). The Supreme Court of Canada’s decision will have national ramifications, and may change the way we fund health care across the country.

“Dr. Day argues that Canada’s inefficient system is the product of a wasteful bureaucracy, a lack of competition and a misguided attachment to universal coverage.”

Although it could be said that a lack of competition has fostered a lower level of customer service from doctors, this lack of competition has allowed the government to keep health care costs down. Doctors are prevented from charging too much, and the costs of administration are controlled.

Regardless of how this case resolves, I predict that a hybrid system for essential medical services will continue to creep in. Technology is eroding the boundaries of provincial control, the baby boomer generation is aging, and the economy feels as unstable as ever. All of these conditions are creating a time of uncertainty and are paving the way for change.

I personally have huge concerns about the erosion of the public health care system. The ramifications of which will be felt by the most marginalized.

Poor. Rich. White. Black. Jewish. Christian. Criminal. Saint. Heterosexual. Homosexual. No matter how we identify or are identified, we are all entitled to health care. And not just any health care, but good health care.

No Damages For A Commitment Phob’s Worst Nightmare

It’s a tale as old as time. Man meets woman. Woman gets pregnant. Man feels trapped. Except this time, the man asks for money. “Money for what?” – you ask. Money to compensate him for the emotional trauma of the “unplanned pregnancy”.

In PP v DD, 2016 ONSC 258, Justice Perell described their courtship. They dated for about two months. The man (an ER doctor in his late thirties) felt that she was not right for him. So after about two months of dating, he breaks off the relationship. She then texts him a couple weeks later advising him that she is ten weeks pregnant. The man then sues her.

He states in his statement of claim that he was deceived. She told him that she was on the birth control and basically he did not sign up for this. He was waiting to meet the woman of his dreams and have babies with her, not this pretender. At paragraphs 25, Justice Perell excerpts the man’s claim.

  1. The representations by DD that: (i) she was taking birth control as prescribed and directed; (ii) she did not want to get pregnant; and, (iii) she did not want to have a baby were deliberate, willful, and conscious distortions of the truth. DD made those false statements with the knowledge that they are untrue. DD intended to deceive PP. DD intended that PP would rely and act upon the false statements. PP did so and, solely based upon the false statements, proceeded with sexual intercourse and intravaginal ejaculation. Consequently, DD became pregnantand has claimed that PP is the father of the child. DD brought about her pregnancy by deception. As a result, PP has suffered damages.
  2. PP consented to having sexual intercourse with DD. That consent, however, was expressly based on his understanding and belief that DD was taking the birth control pill as prescribed and directed and did not intend on getting pregnantor having a baby. PP would not have consented to sexual intercourse and intravaginal ejaculation had he known the true state of affairs. PP’s consent to sexual intercourse was procured by DD through her deception and dishonesty. Accordingly, that consent was vitiated.
  3. PP expressly enquired of DD as to whether she was “on the pill” because he had already made the clear and conscious choice not to father a child at that time. PP was just beginning his career as a physician; he was not at a stage of his life at which he thought he was “ready” to assume the responsibilities of being a father; he wanted to meet a woman, fall in love, get married, enjoy his life as husband with his wife and then, when he and his wife thought the time was “right,” to have a baby. The deceptions by DD deprived PP of the benefit of that choice.
  4. The actions of PP based on the deceit and fraudulent representations by DD resulted in damage to PP, the particulars of which shall be provided in the course of this proceeding in accordance with the Rules of Civil Procedure.
  5. DD committed an independently actionable wrong through misconduct that represents a marked departure from ordinary standards of decent behaviour. Her conduct was sufficiently malicious, high-handed and highly reprehensible such that it offends the court’s sense of decency. Accordingly, PP seeks and is entitled to an award of punitive damages to achieve the objectives of punishment, deterrence, and denunciation.

Justice Perell struck out the statement of claim. He framed his analysis in the tort of sexual battery and the tort of fraudulent misrepresentation, stating that fraudulent misrepresentation was not designed to compensate for this kind of emotional trauma. At paragraphs 39 and 45, he explains:

[39] The argument of DD’s challenge to PP’s Statement of Claim brought the clarity of what PP’s action is really about. In the guise of a fraudulent misrepresentation cause of action, PP seeks compensation for the non-pathological emotional harm of unplanned fatherhood. PP is not against being a father, but his passionate argument is that by DD’s fraudulent misrepresentation, he has been denied the opportunity to be a father at the time of his and future beloved’s choosing and he suffered non-pathological emotional harm as a consequence.

[45]           Fraudulent misrepresentation is typically classified as an economic or pecuniary loss tort, for which compensatory damages are designed to restore the person to the financial position he or she was in before the fraudulent misrepresentation. Apart from having to pay child support, which subject to proof of paternity, he is no longer seeking to avoid, PP does not have any financial losses and none are particularized in his Statement of Claim. PP is not married to DD. He is not obliged to marry her. He is not a spouse under the Family Law Act, R.S.O. 1990, c. F.3, because he never cohabited with DD and he never established a relationship of any permanence with her. PP will not incur any financial losses from DD’s pregnancy and the birth of a healthy child, and he will experience no disruption of his career as a doctor. PP was not infected by any venereal disease and he does not plead that his emotional harm was pathological in nature.

Justice Perell’s analysis of the tort of sexual battery and the tort of fraudulent misrepresentation is excellent, as always. And he rightfully strikes out the statement of claim, stopping the ridiculous litigation in its tracks.

At the heart of his decision is the protection of a child from his/her idiotic parents. “The facts are salacious and ignobly pleaded, and I made the confidentiality order because I was concerned that the child that is at the heart of the history might someday read the decision, self-identify, and be traumatized.”

At the heart of this decision is the protection of future children from future bad parents. If every father could sue the mother of a child that got pregnant without his knowledge, then I suspect that there would be a lot of lawsuits of this nature. And sometimes there’s no place for the “courts in the bedrooms of the nation”.

Sleepy Hollow: Inexcusable Delay is Abusive

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In Jadid v Toronto Transit Commission, 2016 ONSC 1176, Justice Dunphy of the Ontario Superior Court of Justice stayed an action for delay. In 2012, the plaintiff was granted her request to have the registrar’s order dismissing her action for delay set aside. It was set-aside on the condition that she set her action down for trial within 60 days. The plaintiff failed to do so. In the words of Justice Dunphy, she filed the paperwork in the “postal code of Sleepy Hollow”. A place, I would venture that many cases go to die. Especially considering that the court system often financially rewards lawyers that prepare later rather than earlier in the litigation life cycle.

Justice Dunphy speculates that either the plaintiff had no interest in having the claim heard on its merits or her counsel made a financial decision not to invest the time or money needed to prepare for trial. In any event, the prosecution of her case was lax. And crossed the line from negligence to contempt of court.

Justice Dunphy wrote:

[7] At what point does the desultory prosecution of an action become so egregious and abusively glacial as to cross the line from merely inexcusable negligence to contempt of an order of the court? In my view, this case has crossed the line to the latter or come so close to it as not to matter. It would be an abuse of process to sanction this blatant disregard of an express order of the court. If the line is not to be drawn here, I can think of no credible place to draw the line and retain any credibility as a court seeking to control the integrity of its own process.

[8] This court is not to be mistaken for a rubber stamp and its orders are not to be treated as mere suggestions to be followed or ignored as the mood or whim may suggest. If a party cares so little for a claim as to fail to advance it diligently or even to make a show of abiding by the orders of the court she has sought, there can be no prejudice in putting an end to the sorry spectacle before it consumes further resources of the court and of the innocent defendant…

Perhaps if Justice Brown’s “5-Point Action Plan” was implemented, counsel would be incentivized to move their cases along. For example, in his “5-Point Action Plan”, Justice Brown calls for the assignment of trial dates upon the close or deemed close of pleadings.

Hopkins v Kay: Supreme Court of Canada Denies Leave to Appeal

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I previously wrote about the case Hopkins v Kay, a class action lawsuit against a hospital and its employees. It is alleged that hospital employees wrongfully accessed about 280 patient records.

The defendants argued that they could not be sued because breaches to health records fell under the jurisdiction of the Information and Privacy Commissioner.

The Court of Appeal disagreed with the defendants and ruled that the class action could proceed. The Court’s decision ensured that the law kept pace with the change in technology.

In order for our legal system to maintain its legitimacy, the law must keep up with the times. We live in an era where privacy violations impact business. For example, when Target and Home Depot’s data was compromised, their stock prices plummeted. So it would be absurd if our law did not redress such violations.

After the Court of Appeal released its decision, the defendants appealed to the Supreme Court of Canada. On October 30, 2015, the Supreme Court of Canada released its decision, denying leave to appeal:

The applications for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C58403, 2015 ONCA 112 (CanLII), dated February 18, 2015, are dismissed without costs.

It is unfortunate that the Supreme Court of Canada denied leave to appeal. The Supreme Court could have developed the tort of breach of privacy.

The law on privacy is a pressing concern and requires further clarification. It’s been said that more data has been created in the last two years than ever before. And more data means more privacy breaches. “More data, more problems.”

Sexual Assault, the University of Ottawa, and a Lawsuit

“There’s no place for the state in the bedrooms of the nation.” – Pierre Elliott Trudeau

But, what about universities in the bedrooms of their students?

In February 2014 allegations of sexual assault were made against the University of Ottawa’s men’s varsity hockey team in Thunderbay. The night of the alleged sexual assault, the team’s coach became aware of the allegations against two team members. On March 3, 2014, the President of the University of Ottawa, Allan Rock, announced the suspension of the entire hockey team for the rest of the year. In June 2014, Mr. Rock cancelled the 2014-2015 men’s hockey season and fired the coach.

Subsequently, the hockey players launched a class action against the University of Ottawa, Creppin v University of Ottawa, 2015 ONSC 4449. They claimed amongst other things that Mr. Rock acted negligently in his treatment of the hockey players and that he acted beyond his capacity as Dean.

Can a university punish their own hockey team for the actions of a couple team players?

In my opinion, when it happens during school time, YES.

A university should be allowed to manage its own affairs and condemn sexual assault. The actions occurred against a backdrop of a larger culture, specifically “rape culture”. The alleged sexual assault occurred during a team trip. A trip associated with the University of Ottawa. Placing the students precisely in the purview of the university.

As the tides have recently shifted in favour of punishing sexual assault, the law remains unsettled on how universities can punish their students for sexual assault.

Universities should not be silenced by the threat of litigation. Instead, they should act bravely in the face of injustice.

What is Legal Work?

In Bergen & Associates Incorporated v. Sherman, 2014 ONSC 7213, Justice Myers defines legal work in the context of a disputed bill.

Bergen & Associates contested their bill from David Sherman under the Solicitors Act. David Sherman claimed that his bill could not be reviewed because the invoices related to his work as a tax consultant and not as a tax lawyer.

In analyzing whether Sherman’s work constituted legal work, Justice Myers referred to Re Aitkin (1820), 4 B & Ald. 47, in which Abbott C.J. held that when a client employs a lawyer based on his professional character there is a presumption “that his character formed the ground of his employment by the client”. Therefore, the test is: whether the person would have been employed if he was not a lawyer.

Justice Myers also looked at the Solicitors Act in analyzing Sherman’s work. According to the Solicitors Act, “a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.”

[20]           The provision of legal services includes the application of legal principles and legal judgment with regard to the circumstances or objectives of a client, negotiating the legal interests, rights or responsibilities of a client, giving advice concerning such legal interests, rights or responsibilities, and drafting documents affecting such legal interests, rights, or responsibilities.

The definition of legal work is significant as we move into an Internet-based information society. At the core, law is information-based, and lawyers are in the middle of an information revolution. Consequently, the work performed by lawyers is changing while new players enter the legal world, like LegalZoom.

In order to assess the character of work in this new era, we must adopt Justice Myers’ principled approach and move beyond labels.

Show me the Evidence: Judicial Speculation Gone Wrong

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The Ontario Court of Appeal recently released R v MacIsaac, 2015 ONCA 587. Justice Hourigan writing for the Court of Appeal ordered a new criminal trial, stating that hockey strategy was not a proper subject for judicial notice (a rule of evidence that allows a fact to be introduced into evidence based on being so notorious or so authoritatively clear).

Hockey strategy does not satisfy either test. “Canadians often disagree about what constitutes a rational hockey strategy.” A rational hockey strategy may or may not include checking someone into a board. Furthermore, there is no “source of indisputable accuracy by which to settle …disagreements [about checking].”

[46]  It was open to the trial judge to draw inferences that reasonably and logically flowed from the facts established by the evidence…

[49]…A trial judge ought not to supplement and supplant the evidentiary record, except in very limited situations where taking judicial notice is permitted.

Judges have more latitude in drawing inferences from established evidence in the civil sphere, where the burden of proof is less. However, they do not have carte blanche to draw whatever inference they so please.

In assessing damages for future developments, trial judges can be tempted to enter the realm of speculation.

In Beljanski (Guardian ad litem of) v. Smithwick, 2006 BCCA 399, the assessment of damages for the children’s loss of care, guidance, and companionship from the death of their father seems to be based almost entirely on inferences bordering on speculation. The inference that borders on speculation is that the loss of the parent is less because of the parent’s criminality.

Exhibit 1 – Criminal record = Bad Father:

2]               It is safe to say that Mr. Dorey was not a model father.  The summary trial judge described his criminal record…

Exhibit 2 – Criminality = No Guidance:

The defendants pleaded that his children had no reasonable expectation of deriving care, guidance, or companionship from their father

[27]...  They argued that because Mr. Dorey had been incarcerated as a result of criminal convictions for approximately 60% of the life time of the [children]… the amount of guidance that he would be able to provide would have been minimal.

28]           The trial judge found that because of his irregular manner of life, it was unlikely that Mr. Dorey would have been able to give any real guidance to his children and thus he declined to make any award under this head, even an award of a conventional nature…

[35]           With respect to the claim for damages on account of loss of parental guidance, while this parent was very much not in the upper quartile of diligent parents, nonetheless he did have some contact with his children.  …  His death deprived them of any future benefit they might have garnered from their contact with their father… I believe that some modest award of damages is justifiable under this head…

I would love to know what puts someone in the upper quartile of diligent parents. Who is the authority on parenting – Gwenyth Paltrow? How do we measure the impact of a parent’s criminality on their children? Would this require expert evidence before a judge could draw a reasonable inference?

Regardless, judges should not be allowed to draw inferences tainted by classist thinking and a bourgeois conception of proper parenting. Inferences coloured by class do not necessarily flow reasonably from the evidence.

Guindon: The Great Disappointment

Can the government dole out huge monetary penalties without providing its citizens with the rights protected under the Charter?

Apparently so. By merely portraying something as administrative, the government gets away with enforcing disproportionate monetary penalties. How many lawyers have an extra $600,000.00 just lying around to pay a fine?

In Guindon v Canada, 2015 SCC 41, Ms. Guindon was ordered to pay hundreds of thousands of dollars by the Canada Revenue Agency as punishment for her negligent legal advice. She prepared a legal opinion in regards to a fabricated donation scheme in her capacity as a lawyer. Her opinion was circulated to entice people to buy into the scheme. For every person that relied on it, she was fined. In total, she was fined $564,747. In addition, this fine earned a huge amount of interest.

The Supreme Court of Canada was asked to determine if the huge penalty levied against her was penal or merely an administrative monetary penalty.

The Supreme Court had a real opportunity to explain what makes something criminal versus administrative.

In the Majority’s decision, the Supreme Court reinforced circular reasoning. Although the court lists a variety of factors, to me it all seemed to boil down to one test. Something is criminal if it contains the indicia of a criminal proceeding.

“With respect to the process, the heart of the analysis is concerned with the extent to which it bears the traditional hallmarks of a criminal proceeding.”

How circular!

Obviously if the government wants something to be administrative it is not going to cloak the proceeding in criminal garb. So why should that be the test?

The Supreme Court justifies its decision by remarking that “The amount [of the fine] is fixed without regard to other general criminal sentencing principles and no stigma comparable to that attached to a criminal conviction flows from the imposition of the penalty.”

I highly disagree. Section 163.2 of the Income Tax Act directly targets tax professionals like accountants and lawyers. Having a proceeding instituted against you for counselling others in making false statements is deeply shameful. The stigma could be equal to the stigma of being charged with a criminal offence. When your livelihood and identity are on the line, the government should not be allowed to hide behind labels. The substance of the “crime” and punishment should be determinative rather than the proceedings.

Section 163.2 along with the Supreme Court’s decision in Guindon may have a chilling effect on the tax planning community.