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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