June 30, 2010

The Law that Never Was

Filed under: Uncategorized — ruleswatch @ 8:12 am

The Globe and Mail’s columnist Adam Radwanski pursues the Government of Ontario on the G-20 five metre rule:

First, the government failed to announce its new law. A simple press release could have explained what the regulation,…did and didn’t cover. Instead, the province buried it on a government website, such that nobody heard about it until an arrest was made.

Worse, the Liberals made no effort over the weekend to set the record straight, even though virtually every media outlet was reporting that people merely passing by the fence could find themselves in deep trouble. Mr. McGuinty…offered only “a lot of confidence in Chief Blair” and “very strong support of this time-limited extraordinary measure,” which reinforced the impression that the latter included the zone’s surrounding area.

Now, the Liberals are ducking any responsibility for the fact that they effectively (if inadvertently) gave police powers they were never intended to have…


June 29, 2010

Proportionality, Pre-trial Disclosure

Filed under: Uncategorized — ruleswatch @ 8:19 pm

Toronto Information Law Blogger Dan Michaluk posts about proportionality in pre-trial discovery out of the Newfoundland and Labrador Court of Appeal. Thanks Dan! Thanks, Newfoundland Court of Appeal.

Chief Justice Green wrote:

[53]         For rules involving discretion, in this case the rules regarding pre-trial discovery and disclosure, this includes application of an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation.

[54]         Proportionality in this sense can be described as follows: The rules of court should be interpreted and used, by the lawyers and parties invoking them and the judges interpreting and applying them in situations involving the exercise of judicial discretion, in accordance with a principle of proportionality. That involves invoking a rule and conducting a procedure only in a manner that will promote, not frustrate, the underlying purposes and objectives of the rules as a whole. In other words, in the exercise of discretion relating to the application of the rules, a judge ought always to consider proportionality to ensure that a party invokes and applies the rules in a sensible and reasonable manner. This means dealing with a proceeding in ways such that the time and the types of processes involved as well as the expense and convenience of the parties are proportionate to factors such as: the nature of the issues engaged; the amount of money involved; the time reasonably necessary to resolve the issue; the complexity of the issues and the overall cost of the litigation that can be reasonably expected.

It is important to realize that such an obligation applies in all cases involving discretionary application of the rules, not only those cases that are considered complex or involve considerable cost.

The principle of proportionality apples to the parties as well as the court exercising a discretion under the rules. A party invoking a rule, taking a position or making an application that is ultimately determined to be not in accordance with the proportionality principle should anticipate that there may be adverse costs consequences.

Szeto v. Dwyer, 2010 NLCA 36 (CanLII).


Filed under: Uncategorized — ruleswatch @ 7:58 pm
The Globe and Mail reports that Toronto police chief now says there was no five metre rule. It had been broadly reported over and to the weekend that the Ontario Public Works Act authorized, and would be used to, justify searching and ID requests of persons within five metres of the G-20 security fence. Now the Globe reports that Chief Blair suggests that the five metre rule did not exist.”…there was no power to search people coming within five metres of the fence, said [Ontario Public Works] ministry spokeswoman Laura Blondeau. “The area designated by the regulation as a public work does not extend outside the boundary of the fence,” Ms. Blondeau said. “

” [But] Neither the province nor police set the record straight. In fact, both made comments about the necessity of such powers. ”

“The Canadian Civil Liberties Association demanded an apology from the Ontario government. ”

[Thanks to warsaw for the tip]


Another Court, Another Consitution: Another Nation

Filed under: Uncategorized — ruleswatch @ 7:23 pm

Spain’s High Court has struck down a number of articles in a constitution for Catalonia, but a 2006 amendment that describes it is a “nation” survives.


Create a free website or blog at