April 7, 2009

Filed under: 1 — ruleswatch @ 12:16 pm

Law, Rules, Guidelines, Practice 

M I T C H E L L & F E R G U S O N, A s s o c i a t e s
Barristers, Solicitors and Notaries Public

2704 Oxford Street
P.O. Box 9134
Halifax, Nova Scotia B3K 5M7

Telephone: (902) 425-7767
Facsimile: (902) 425-3224


March 18, 2015

Judges, Failings

Filed under: Uncategorized — ruleswatch @ 1:49 pm

So, three English judges have been dismissed because they were caught having connected to pornography and apparently consumed it through judicial computers while working. [see: Another resigned to avoid dismissal. As described in the grey suited language of the UK Judicial Conduct Investigations Office statement, [see: the dismissals were delivered in a clean, anodyne, categoric coup de grace that best announces these kinds of things.

The release did not mince words on who was dismissed, the courts in which they had sat, where the courts were located, their names, nor as anyone who might care now knows full while, why.

How these dismissals were effected, what standards of procedural justice were applied, what the extent, if any, of the defences offered, what kind of investigation had occurred and what kind of process had been delivered all remain to be seen. But dismissals in the clipped and final, summary sense the word carries, they were.

And in that they differed sharply from other incidents on other sides of the Atlantic that immediately come to mind.

Judge Alex Kozinski, a 64 year old wunderkind, until just before this past Christmas the Chief Judge of the United States Court of Appeals for the 9th circuit, had called for an investigation of himself when the press reported that he had maintained a website of sexually explicit videos, photographs and other material.

The site was a private one. The judge described it as a “family website” on which family members saved photos and other keepsakes but into which his images crept and apparently could be accessed by the public.

The immediate cost of this affair was that, as soon as the matter became public, the judge had had to recuse himself from an ongoing obscenity trial . The affair also imposed all of the costs of and investigation and hearing of the matters on the public purse. But the fact reminded that the website had been a private one, and regardless of the cost to the judiciary’s prestige and perhaps its, core legitimacy, in the libertarian traditions of the American system, Kozinski suffered only admonishment. He otherwise survived to continue delivering judgments which, it must be said, seem to continue to meet broadly based public approval.

The fact that it was non-public website platform that the judge used, or failed to prevent being used, for the offensive material, perhaps the much higher relative judicial position that he occupied, and perhaps a flavour of libertarianism lurking in US political and judicial culture ultimately protected him.

The other that comes to mind is the Canadian experience of Justice Lori Douglas of the Manitoba Court of Queen’s Bench. Justice Douglas’ experience — however you cut it, sad and distasteful– involved the posting to the Internet of bondage inspired, sexually explicit photos of the future judge taken and posted before her appointment to the bench by a depressed and perhaps episodically vengeful former husband.

Justice Douglas’ experience was, in many ways, typically Canadian . Beyond the seamy and byzantine facts of how the matter developed to become judicial complaint, and then further morphed into an administrative law and ultimately into a threatened a division of powers and procedural constitutional nightmare, for most it was a high level but cheap and tawdry soap opera passing as a modern day morality play.

The Douglas affair rolled on over years leaving all kinds of debris in its wake. It walked through the resignation mid-stream of one commission counsel, thought to be too light on the Justice Douglas side of the controversy by the very panel hearing the case; through the attempted judicial review of the self-same panel’s conduct of the inquiry by Justice Douglas’ side; through a position by the panel that it was constitutionally immune to judicial review; and, finally, through the en masse resignation of the panel and the appointment of a new panel, seemingly doomed to start over. Its longer term implication was unavoidably to leave the Canadian Judicial Council which adjudicates complaints against judges with egg, justifiable or not, on its face.

Mercifully, the affair ended just before the photos were to be disclosed to the newly constituted panel, with a deal that saw the judge resign, saving her pension, taking her off the bench and saving the rest of the country more wonder struck angst — and significant cash– through further conduct of the inquiry.

Justice Douglas’ case was arguably different from these recent English judges’ case. She sat at a higher level than they, the photos were of her, consensually taken in a private setting, arguably posted without consent by her former husband. So to that extent she fell, perhaps, in the Kozinski category. But there was another dimension, directly material to her work: she had not disclosed the internet existence of the photos by her in the judicial appointment process. [US Federal Judge Richard Kopf has written wisely about “The Question” here: There were other arguments about this, but this aspect of the complaint was never explored before the council. And, it arguably in a Canadian context without overly libertarian have been strongly taken to support the gravity of the circumstances.

It was also different from the American, Kozinski’s situation in that Douglas appeared to have been a good lawyer, but she was none of the high flying intellect or the public personality that he is. Too, her court was closer to the everyday business of the people, as compared to the rarefied and remoteness an American federal appellate court.

The Douglas affair, even though it involved far more than its own fair share of mash-ups, was typically Canadian. It unrolled not in the plain grey dispassionate language of the civil service, nor in the celebrity atmosphere of the Americans. It lacked the dispassion of both the Americans and the Brits, and it managed to march directly into the minefields of federalism, without which no true Canadian morality play could be complete.

Underneath it all, it did engage real and duelling senses of morality. And the main actor kept her pension.

Each of these cases were quintessentially human, only differed in degree in their individual instances, and came with both undeniable human and institutional loss.

March 16, 2015

Roach and Forcese on Anti Terror legislation: A New Standard of Public Debate

Filed under: Uncategorized — ruleswatch @ 6:42 am

You can`t be Canadian and breathing without being well aware of the debate surrounding the proposed new law, Bill C-51, intended to expand national security powers. The draft Anti-Terrorism Act occupies plenty of media space and is being widely discussed, seemingly everywhere. And, importantly, the discussion shows high standards of clarity, substance, breadth, and tone, hard to remember in the history of the country`s political discourse.

That quality is largely attributable to the relentless efforts of two professors, Kent Roach of the University of Toronto and Craig Forcese of the University of Ottawa law schools. Their internet site, devoted to the legislation, clearly sets out the bill, its potential weaknesses and a continuing exploration of their potential consequences. It provides a table of proposed amendments and commentary unparalleled by any such private effort you can conjure up.

Forcese and Roach have provided a comprehensive, widely accessible platform, including the product of their own ample readiness to be available to the media, decision-makers and parliament itself, to support informed, dispassionate legal analysis of the bill even as the debate itself continues to develop.

Calling for, and attracting, what they call a “crowd-sourced response” to the bill, the two academics have sought to engage others in analysis in a way that makes clear that how this legislation is analyzed is sombre and important business. They welcome commentary but educate us all that it is to be of sober and constructive sort. (Their website tells readers …please no rhetoric and conspiracy theories or political commentary. That is not what the project is about.)

Sensitive to their effort as being “legal scholarship in a highly politicized environment, their work including their interviews is keenly sensitive to the seriousness of the issue, the risks and temptations in hot button political debate, and the obligations they undeniably take on in leading the opportunity for debate.

Their press interviews meet those same high standards (; )

The clear result of their work has to build an astonishingly well informed media and more broadly, educated public conversation about the issue. .

That scholarship, as well as how it is consistently being delivered, is in the best traditions of academia.

Kent Roach and Craig Forcese deserve sincere thanks for both their substantive contribution to the debate as well as for reminding the rest of us of the standards that should be met in doing it.

April 12, 2014

Supreme Court Appointments Transparency and Accountability April 12, 2014

Filed under: Uncategorized — ruleswatch @ 10:30 pm

The buzz surrounding the Supreme Court of Canada appointments continues with the CBC’s Leslie MacKinnon’s “Questions linger about secret panel”!/content/1.2607482.

Mixed between the individual views on confidentiality of the parliamentary process of such appointments, of former judicial appointment committee member, Francoise Boivin, are deeper views about the process including from constitutional authority, Adam Dodek,

The deeper views include the importance to the process, and need to reform in the area of “accountability” and “transparency.”

But a caution needs to be expressed here. “Accountability” and “transparency” are words that do express important public, government, law, and institutional values, whose significance should never be minimized. But it may be well to remember they are also words that, in government, and public and constitutional contexts can be a bit, well, to be frank, squishy.

So, plugged in alone, unmodified, in front of calls for reform of the complicated, numerous-governments-long struggling Canadian effort to come to a rational Supreme Court of Canada appointments process, the plain fact is “accountability” and “transparency” fall a good distance short of being prescriptive.

There is danger that in using these ideas in this context and presenting them as concepts which, if only adopted in some undefined measure, will immediately rescue a defective process, may create expectations that cannot be achieved.

It is nothing new to say that among the things that turns “accountability” soft and imprecise in this context have to include important completing principles and realities:

1. The legitimacy of the Supreme Court depends on public acceptance that its members are accomplished, dedicated, effective leaders in judicial decision-making. So part of the process of their appointment has to give the chance to expose that merit.

2. At the same time, the reality seems to be that appointments that are and have been made since anyone can remember fall almost uniformly into that category. In othe words, even without what everyone can agree has been an “open” and “transparent” process, the working result of government appointments has operated effectively to provide a supreme decision making authority that works well, through some pretty tough questions including hard ones like the Secession Reference, the now thirty years old process of the implementation of the Charter and thorny re-workings of important administrative and commercial law ideas.

The risk is that under the banners of accountability and transparency, undisciplined politicians in any revised appointment vetting process can damage the legitmacy of the process, the court and individual members of the court.

3. Confidentiality of deliberation has to be a part of any ultimately reformed process. (Contrary, with respect, to the current complaint of MP Francoise Boivin that she was required to surrender working materials when her work was done, it is very hard, to justify working papers which could be read to compromise some future opinion or motivation of a judge remaining in the hands of practising policiticians once their role in the appointments process is over.)

4. The democratic imperative that ultimate control of the appointment remains in the hands.

These are not matters that are capable of quick and easy fixes.

So here’s what we need. We need to soften the generalized approach we need a working constituency of not academics, reinforced by hard headed battle hardened lawyers, journalists and media experts, process experts and former politicians to prescribe competing models for the process. And we need a solid, principled, debate among them with the concrete formulation of a process.

March 19, 2014

Yaiguaje continues; SCC considers leave to appeal application

Filed under: Uncategorized — ruleswatch @ 11:44 am

American lawyer, Steven Donzinger, the directing mind of international (American, Canadian, Chilean, Argentine) litigation looking to enforce a $9.5 billion Ecuadorian judgment against Chevron Oil, has now appealed against an American federal court judgment that enjoined enforcement of that judgment in the US and sought a stay against the first instance court order.

American observers are speculating how their federal court findings, including the conclusion that the Ecuadorian judgment was fraudulent, findings that Donzinger was responsible for the submission of false evidence, co-option of the Ecuadorian Court, judicial bribery and coercion, will affect further proceedings in Canada.

Chevron’s application for leave to appeal Yaiguaje v. Chevron Corporation, 2013 ONCA 758 to the Supreme Court of Canada has been before a panel of the court comprised of Justices LeBel, Wagner and Karakatsanis since February 24. The Ontario court decision has allowed the plaintiff’s attempt to collect $18.9 billion from Canadian affilitiates of Chevron here to continue.

Donzinger’s commentary on the merits as part of his stay brief is aggressive, direct, and clear and leans entirely on the technical aspects of the US court’s jurisdiction and RICCO statute which had given rise to the 497 page adverse decision.

An American firm is suggesting, “In view of the opposite directions that courts in Canada and the United States seem to be heading on jurisdictional questions concerning corporations with complex structures, plaintiffs seeking to enforce on foreign judgments may well be seen heading north with increasing frequency in the future. – See more at:””

In the meantime, Chevron has commenced action in Gibraltar against an important financial backer of the Donzinger litigation In Bloomberg Businessweek, [] Chevron “… shows it intends to punish those who aided Steven Donziger’s Ecuadorian oil pollution case…”

March 11, 2014

Epic Ecuadorian Litigation to Play out in Canada

Filed under: Uncategorized — ruleswatch @ 1:20 pm

A spectacular recent, American Federal trial court ruling has at least temporarily put “paid” to super-epic, international litigation arising from 1970’s to 1990’s oil contamination of Ecuadorian rainforests.

The US claim (an attempt to enforce an 18 billion dollar Ecuadorian award in favour of thousands of Ecuadorians, against the alleged despoiler’s corporate successor, Chevron, in the States) has been ordered stayed by the New York district court based primarily of findings of misconduct attributed to the litigation’s legal master mind, American lawyer, Stephen Donzinger , [

The decision — for the moment, (Donzinger has announced that he has hired appellate counsel to challenge the decision) – has left a well known Canadian claim, Yaiguaje v. Chevron Corp.,2013 ONCA 758 [] with companion judgement enforcement litigation in Brazil and Argentina, to continue, pending the hearing of an appeal. 2014 ONCA 40

Website representatives of the Ecuadorian judgement holders state that following the American judgement, their “… focus now is on enforcing their judgment in countries where they can receive a fair hearing about Chevron’s pollution of the rainforest and refusal to abide by a legitimate ruling from the courts in Ecuador…”[

How that focus plays out remains to be seen. Chevron, who have said they would “fight this until hell freezes over” and then “fight it out on the ice,” have filed an application for leave to appeal on the Ontario appeal court decision, which was remitted to a leave-to-appeal panel of the Supreme Court of Canada on February 24, 2014.

Reuters has said, “Vaughan Black, a professor at the Schulich School of Law in Halifax, Nova Scotia, thinks Kaplan’s ruling will resonate if the Canadian case ends up being considered on its merits.”

“Basically an Ontario court would have to look at all the evidence again and start at the beginning,” Black said. “I suppose there is always the possibility that they could take a different view of which witnesses were credible, but the New York court didn’t even think it was a close call. So it doesn’t look very promising for the Ecuadorean plaintiffs.” []

On the other hand, Reuters has reported, the Canadian lawyer for the Ecuadorian interests, Alan Lenczner, has said the American ruling has “zero” impact on the ongoing proceedings in Canada.

Whether or how the American decision plays into Canadian litigation remains to be seen.

March 7, 2014

Quick witted cross examination

Filed under: Uncategorized — ruleswatch @ 5:22 pm

The British newspaper, the Guardian, has just given a very fine example of sharp, quick witted cross-examination. It’s worth reading from the March 6, 2014 edition of the publication.

UK newspaper doyenne, Rebekah Brooks, is on criminal trial for among other things phone hacking was cross-examined on March 6, 2014. The topic was whether or not Brooks knew of hacking or tired to cover it up. One source to her was her then paramour and deputy editior, Andy Coulson.

The Guardian reported:

“…. on Thursday acknowledged that she and Andy Coulson had been close enough to share secrets with each other during two periods when they are accused of conspiring to produce stories based on intercepted voicemails.

“In tense cross-examination, [the prosecutor]..Andrew Edis QC challenged Brooks over the meaning of a letter she wrote to Coulson in February 2004.

“Edis suggested the letter showed that they had been having an affair and sharing secrets for the preceding six years, during which time they published stories about Milly Dowler and David Blunkett which, the crown claims, were generated by hacking phone messages.

“Brooks repeatedly insisted that although she and Coulson had begun an affair in 1998, it had not continued for six years.

“The affair had stopped and both of them had got on with their lives before it had resumed briefly in 2003. “I hadn’t been sitting there like Miss Havisham for six years,” she said.

“At one point, Edis quoted part of the letter to Coulson in which she wrote: “I confide in you. I seek your advice.”

“He asked her: “That included work matters, didn’t it?”

“It could have done.”

Confide means trust – trust people with your confidences. No?”
“And that would include secrets relating to work?”
“And emotional issues as well.”

Edis then referred to another passage in the letter in which Brooks wrote: “For six years I have waited.”

“It suggests doesn’t it that the relationship had lasted six years?”

Brooks said that was not correct.

“You would be telling the truth when you were writing?”
“I was in a very emotional state when I wrote this letter.”
“That’s all the more reason why you would be telling the truth. It’s your heart-felt anguish.”

“Which is absolutely genuine.”

Edis turned to the state of their relationship in April 2002, when the crown claims that Brooks and Coulson plotted to use voicemail intercepted from the phone of the missing Surrey schoolgirl Milly Dowler.

Brooks was then editor of the News of the World but Coulson, her deputy, was editing the paper while she was on holiday in Dubai.

“At that time were you talking with him in that confidential way?”
“We were close friends.”
“So you would trust each other?”

“I trusted him as a friend and as a deputy editor.”

“If the deputy editor was committing a crime, he might not want the editor in normal circumstances to find out about it. But he might be able to tell the editor if he really trusted her.”

Edis paused. “Was the relationship in April 2002 such that Mr Coulson could trust you with any confidence at all?”

“Yes,” she whispered.

February 27, 2014

Fairness and Human Rights Investigations– New Template from the Supreme Court

Filed under: Uncategorized — ruleswatch @ 5:29 pm

Tessier v. Nova Scotia Human Rights Commission 2014 NSSC 65 is a just released decision of Justice Athur LeBlanc, that gives a thorough review of the content of the procedural fairness duty of Nova Scotia Human Rights investigators. Here’s something of a flavour:

[37] … human rights Investigators are masters of their own
procedure and are afforded broad discretion in choosing who they interview and how
they gather information…. That
broad discretion, however, must be exercised in accordance with the duty of
procedural fairness owed to the complainant.

…procedural fairness requires that human rights investigations satisfy two criteria:
neutrality and thoroughness: para. 49.

[44]….investigators are entitled to significant deference, and judicial intervention will be
warranted only where an investigator fails to investigate obviously crucial evidence.

The decision is well worth reading on the point, picks up a possible divergence in Federal Court jurisprudence and contains a good analysis of alleged failures that met the fairness obligation and one that does not. Paras 53 to 67 cover much of the meat.

February 18, 2014

Access to Justice: Hyrniak and Gamer

Filed under: Uncategorized — ruleswatch @ 12:38 pm


It hasn’t taken long. Just three weeks. And it probably signals important changes in how courts schedule trials and treat trial adjournments in the province.


Hryniak v. Mauldin, 2014 SCC 7,  just released, unanimous, Supreme Court of Canada authority emphasizing that access to justice supports strong and aggressive application of summary judgment is already extending its reach, at least in to Nova Scotia.  Interestingly, though, so far, it is not into summary judgment.


In Garner v. Bank of Nova Scotia, 2014 NSSC 63, Associate Chief Justice Smith has reached to Hryniak’s expression of concern for expeditious process (treated in the decision as a close companion), grasped it and promptly extended it to summary judgment’s polar opposite—post finish date process and adjournment requests.


Hryniak is dated January 23; its projection to the far end of the litigation timeline came in Garner only three weeks later, on February 14, 2014.


Garner signals a more aggressive, defter approach to scheduling trial dates, continuing, and strict controls over adjournment requests and indicates flexibility in the mind, at least of the Associate Chief Justice, which might suggest a willingness on the part of the NS courts to push more for trials or even parts of trials, to salvage court dates.


Hryniak emphasized access to justice in coming to a conclusion supporting, and guiding forward an aggressive and creative summary judgment process mandated by the Ontario Rules and, then, implemented by a five judge summary judgment rationalization process in 2011 ONCA 764


Pointing to the possibilities of enhanced summary judgment for access to justice, Karatzakis J. wrote for the Supreme Court of Canada:


[1]                              Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  …  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.  Without public adjudication of civil cases, the development of the common law is stunted. [24]     …undue process and protracted trials…. can prevent the fair and just resolution of disputes.  The full trial has become largely illusory because… ordinary Canadians cannot afford to access the adjudication of civil disputes. [2] The … trial process denies ordinary people the opportunity to have adjudication.  And other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative.”


Hryniak  deserves a much closer look on summary judgment.


Garner v. Bank of Nova Scotia, 2014 NSSC 63

Hryniak v. Mauldin, 2014 SCC 7

February 14, 2014

Post Appeal Process in Nova Scotia; Examination in aid on a CA costs order

Filed under: Uncategorized — ruleswatch @ 5:22 pm

Farrar J.A. of the Court of Appeal has given us new insight into post-appeal processes in the province. see Armoyan v. Armoyan, 2014 NSCA 17 (Released 2/14/14). While the decision addresses post-appeal enforcement of a CA costs order, it sets the ground rules for broader questions of the Court’s jurisdiction.

A recent Armoyan decision had awarded the appellant wife in excess of $304,000 costs. She wanted to collect and has issued a discovery for discovery in aid of execution. She tried to serve it. She had no luck.

She moved for an order for substituted service in the Court of Appeal.

Her rationale was that Rule 90.02(1) which allows Supreme Court Rules not inconsistent with the Appeal Court Rule, to be exercised in the Court of Appeal. Hence she reasoned the order was to be issued in the Court of Appeal.

The motion was denied.

Justice Farrar ruled that the Rules contemplate that jurisdiction for the “ enforcement of this Court’s orders” “ lies with the Supreme Court through the applications of Rules 90.50(1) and 90.53(1)” The decision means, at least, discovery in aid in respect of a Court of Appeal order is to be heard in the Supreme Court under Rule 90.

Specifically, the judge reasoned from Rule 90.50(1)(b). That Rule directs the Court of Appeal Registrar to immediately, upon that Court’s order for judgment being issued, to deliver a copy to the court appealed from .

Once this delivery occurs, the reasoning continued, Rule 90.53(1) provides that “…all subsequent proceedings may be taken as if the certified order had been granted by the court appealed from.”

And hence, Justice Farrar concluded, the costs order is to be treated as though it were an order of the Supreme Court for subsequent enforcement proceedings unless… there is “for example” to be an effort to amend the order or appeal it.

The broader procedural take aways from the decision in respect of Court of Appeal jurisdiction may be these:

1. Look at the rules to make sure that there is nothing particularly governing the step that you want to take;
2. When looking at Rule 90.05 don’t just assume that if there is no explicit contradiction, the Supreme Court will apply;
3. Rather, look to read the rules in context and satisfy yourself that there is no necessary implication of another sub-rule of Rule 90 that precludes your proposed step;
4. Only then, count on Rule 90.05 as your pivot point.

And stay tuned. Justice Farrar specifically expects the Suprreme Court judge expected to t deal with a new motion for substituted service, toa ddress the question of whether substituted service of a subpoena for examination in aid can be ordered at all!

Retired Justice Claire L’Heureux-Dubé and the Quebec Values Charter

Filed under: Uncategorized — ruleswatch @ 10:03 am

Retired Justice Claire L’Heureux-Dubé has taken a public position supporting the proposed Quebec Charter and gone to the extent of testifying about it in the Quebec National Assembly.

The resulting debate’s interesting. It’s brought out complaints of inappropriateness and inconsistency directed against the judge. And highlighted ideas of “proportionality” of rights in competition with Dagenais’ idea of no hierarchy of rights.

See the Globe and Mail’s story:

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