May 22, 2009

NS Civ Pro: Production of Documents, Issue Estoppel and A Note of Caution

Filed under: 1 — ruleswatch @ 12:07 pm

CIBC Wood Gundy Financial Services v. Blackman 2007 NSCA 98

A now well-aged decision of the Nova Scotia Court of Appeal dealing with the production of documents, addresses interesting questions not only of the application of res judicata and issue estoppel but broader questions concerning the mechanics of making production available. Blackman was a stockbroker whose employment was terminated by the Defendant was su9ing for wrongful dismissal. Blackman had been employed by one broker and then shifted to another, Merrill Lynch, which was then acquired by a CIBC company under CIBC Wood Gundy.

Blackman maintained that terms of the inter-company agreement of purchase and sale could contain evidence relevant to implied terms in his own contract of employment with CIBC Wood Gundy and, thence, relevant to his own law suit. He sought access to the contract documents for the purchase. Blackman had originally been turned down once for production before MacAdam J in the Supreme Court.

Armed with some new documents, Blackman apparently applied again. On this occasion, before Coady J. He was successful in obtaining an order for production. The terms were somewhat unusual. (But more of this in a moment).

Res Judicata and Issue Estoppel on Documentary Production

CIBC Wood Gundy appealed, arguing that the Order was res judicata or estopped and arguing, anyway, that Blackman had not established the relevance of the documents under the applicable “semblance of relevancy” test. Res Judicata and Issue Estoppel on Documentary Production The court made it clear that pre-trial production obligations are not static. Cromwell J, writing for the Court held, “12. CIBC’s submissions on res judicata and issue estoppel are not compatible with the provisions of Rule 20.10. That rule gives the Court a discretion to revoke or vary any previous order made under Rule 20. This power recognizes that the scope of relevant material may change in light of how the litigation evolves and as new material comes to the attention of the parties. Coady, J. had a discretion under the Rule to vary the earlier order if persuaded it was appropriate and just to do so in all of the circumstances.”

Semblance of Relevancy

The Appeal Court illustrated how building the evidentiary foundation for the application could alter its outcome The Court concluded that additional evidence tendered before Coady J founded a semblance of relevancy test.“. …this new document strengthens the argument that there is a semblance of relevance to the terms of the “deal” as compared to how that argument appeared on the material that was before MacAdam, J.”

Mechanisms for disclosure of disputed documents

Content of the purchase and sale contracts clearly included sensitive material. The Court took special efforts to consider how documentary production should occur and to sound a note of caution in this case:

“1. The procedure adopted by the judge for production: 21 The judge ordered that the agreement of purchase and sale be produced to the plaintiff’s counsel, Mr. Slone, for his review alone and further, that he not release information which in his view is relevant to the plaintiff’s claim to the plaintiff without first seeking directions from the court. Mr. Slone is content with this unusual arrangement which was first suggested by the judge.

22 During oral argument of the appeal, CIBC for the first time expressed opposition to this arrangement, submitting that any review of the agreement should be done by the Court, not by Mr. Slone.”

23 This aspect of the judge’s order gives me some concern. However, I would not interfere with it, mainly because this issue was not raised as a ground of appeal or addressed in the factums filed. I would make it clear, however, that nothing in my reasons should be understood as addressing the merits or otherwise of this method of production.”


May 12, 2009

NS Process– Declaratory Judgements

Filed under: 1 — ruleswatch @ 9:18 pm


A 2007 decision of Justice Gregory Warner in Wickwire Holm v. Nova Scotia (Attorney General) 2007 NSSC 287 is a thorough and careful review of the jurisdiction of the province’s Small Claims Court, contempt power and the thorny problems of bridging gaps in the statute creating the court.*

The decision is handy for another reason. In one or two areas it presents helpful summaries of law, in particular in the area of declaratory relief. The segment is useful and handy to set aside:

Entitlement to Declaratory Relief

The Applicant seeks a declaration that, in directing the Sheriff not to enforce orders of Adjudicators of the Small Claims Court of Nova Scotia, the Department of Justice acted without statutory authority which amounts to an abuse of discretion.




The Applicant has not provided a full record of the various proceedings before the Small Claims Court involving the applicant and debtor. The Applicant says that the proceedings before the Small Claims Court, and the jurisdiction of the Small Claims Court to make the March 21, 2006 order or any other order, is irrelevant to the application.




This application is, in my view, a request for judicial review of the decision of the Department of Justice not to enforce the Small Claims Court Order. The applicant’s express limitation on the remedies it seeks does not change the essential character of the application. The approach to applications for declaratory relief and their characterization, as part of an analysis of the “essential” nature of claims against government actions in the Federal, Ontario, and British Columbia courts, is canvassed by Michael Morris and Roy Lee in “Civil Action Challenges to Government Decisions”, an article in 20 C.J.A.L.P. 117-216 (July 2007). The writers suggest that the caselaw is evolving towards the view that if the essential character of the dispute, regardless of the pleadings, is fundamentally one of public law, then the appropriate procedure is judicial review, an important component of which is declaratory relief.




The Judicature Act of the Province of Nova Scotia gives the Supreme Court jurisdiction to deal with prerogative writs including applications for declarations, and Civil Procedure Rule 5.14 provides:

No proceeding shall be open to objection on the ground that only a declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.




The granting of a declaratory judgment is discretionary. In many circumstances, for reasons other than the merits of the application, courts have declined to grant declaratory judgments as stand-alone remedies.




Clear and helpful statements of the law are contained in the following:


Canada v. Solosky,


Kourtessis v. MNR,


The Law of Declaratory Judgments, Second Edition, by Lazar Sarna (Carswell: 1988), and in particular chapters 2, 3 and 7; and


Judicial Review of Administrative Action in Canada by Donald Brown and the Honourable John Evans (Canvasback Publishing: Toronto: Looseleaf July 2007), chapters 1:6000-1:7330 and chapter 3.



64 [1980] 1 S.C.R. 821; [1993] 2 S.C.R. 53;

Because the Departmental directive was based in part upon concern about the jurisdiction of the court, and the effect of the order on the “liberty of the person”, Charter values and issues are engaged. Courts have declared declarations to be an appropriate remedy in dealing with unconstitutional conduct of government. See for example, Mahe v. Alberta 65 [1990] 1 S.C.R. 342, Eldridge v. B.C. [1997] 3 S.C.R. 624, and Little Sisters v. Canada 2000 S.C.C. 69.
Examples of circumstances where courts decide not to grant declarations include: where the applicant has no special interest (standing) in respect of the subject matter, where other remedies are available or more appropriate, where there are no live issues between the parties, where the application is not timely, and where the application is interlocutory or a preliminary step to a further remedy. There is no limit to the reasons. On the other hand, the usefulness of the remedy is exemplified by the quotation from Wade and Forsythe’s text set out at para. 18 in Krause v. Canada 66 (1999), 236 N.R. 317 (F.C.A.).
In Canada v. Solosky, at para. 11, the Supreme Court wrote:

Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a real issue’ concerning the relative interests of each has been raised and falls to be determined.



67 Lazar Sarna writes at page 18:

… the discretion of the court is almost unlimited and should not be continually used to deny declaratory relief. … It is as well a question of law and not discretion that no declaration issue where the fundamental elements of a proceeding are absent or irregular, … The power to issue declarations without consequential relief does not enable the court to create its own powers: but within the apparent scope of the declaratory jurisdiction judicial discretion is the sole determinant of the life of the recourse.

Sarna cites Russian Commercial & Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438 at 447-48 (H.L.) as follows:

The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor …



68 At page 21 he cites Madam Justice Wilson of the Supreme Court in Operation Dismantle Inc. v. R. [1985] 1 S.C.R. 441 at page 446 as follows:

The real issue … is not the ability of judicial tribunals to make a decision on the questions presented, but the appropriateness of the use of judicial techniques for such purposes.



69 Sarna goes on at page 22:

While the court has an extremely wide jurisdiction, it will not entertain an action or a motion seeking relief where there is no dispute between the parties, ….

… the applicant and respondent (must) demonstrate some necessity for judgment … The proceeding must allege facts underpinning the claim; to allege a conflict of laws, bereft of facts, is insufficient.

A proper case for a declaratory judgment generally requires some privity in law between parties concerned, an existent right and an interference or dispute concerning the right.




In Administrative Law in Canada, Third Edition (Butterworths: 2001), Sara Blake writes at page 205:

Declarations are not made on matters of morality, wisdom or policy. Court will make declarations only on questions of law. As courts prefer not to involve themselves in academic exercises, declaratory relief must be necessary to resolve a party’s rights with respect to an actual exercise of statutory powers.


* This decision was commented on in broader context elsewhere:

The Lawyers Weekly
Vol. 27, No. 30
(December 7, 2007)




Declaratory relief is alive and well in Nova Scotia to supplement more traditional judicial review in the use, and misuse, of statutory powers.

In Wickwire Holm v. Attorney General of Nova Scotia, [2007] N.S.J. No. 405, Supreme Court Justice Gregory Warner, has pointedly emphasized to the province’s sheriffs and attorney general, that even in small claims proceedings, under court orders, deputies are to take direction from the courts, not the government.

The “rule of law and constitutional principle of separation of power is in jeopardy when the executive branch of government interferes with the execution, by court officers, of core functions of the court,” the judge said as he declared a unilateral government directive to sheriffs not to execute certain small claims court orders unlawful. “The Small Claims Court is entitled to have its orders respected in the same manner as other courts and tribunals until and unless its orders are stayed, reversed by appeal …”

Significantly, the message was delivered in form of a declaratory judgement. The remedy yet again proved its worth, this time where a confused, some might even say obstructed, procedural history had blocked the opportunity for certiorari or mandamas, classical instruments of judicial review. The case cried out for them.

Wickwire’s history lay in rickety, poorly constructed amendments to small claims legislation in Nova Scotia that had been allowed to languish for years, casting doubt over how orders of the small claims court should be enforced. Throughout, small claims litigants, lawyers and adjudicators, now exercising up to $25,000 damages jurisdiction, had all been left scratching their heads on the extent of the small claims court’s power to enforce its own orders.

In Wickwire Holm, the law firm which had taxed its account (small claims court adjudicators are taxing officers in Nova Scotia) found that its one-time client, Wilkes, had not only failed to pay his bill, failed to show for taxation, and failed to respond to judgement but had also, less than surprisingly, failed to show up for a small claims court-ordered examination in aid of execution.

The adjudicator took the small claims legislation at its apparent word and ordered Wilkes brought before the court to show cause why he should not be found in contempt.

On the state of the legislation, no one would have given odds on the ultimate success of the order, although no one would have dismissed it out of hand either. But at the same time, the law firm and its determined counsel, Janet Stevenson, had no intention of letting Wilkes or his unpaid account lie.

Matters proceeded as of course, until the time came for the adjudicator’s order to be enforced. Then, nothing happened.

Unknown to counsel, the parties or the adjudicator, the department of justice had its own doubts about the statutory propriety of the small claims court’s apparent jurisdiction to entertain contempt proceedings. But for reasons not disclosed in the decision, rather than confronting the issue directly by intervening or by openly inviting mandamus or some other enforcement remedy, justice administrators decided to keep their doubts to themselves.

Instead, in the words of the decision, “…the Department of Justice dragged its feet.” When the department got word of the intended order, its officials simply issued instructions to sheriffs not to execute certain small claims court enforcement orders such as this until further notice, not being confident of the adjudicator’s authority to do so.

Strikingly, both the justice department and the sheriffs failed to notify anyone else, including the litigant law firm, of much of the directive. Wickwire Holm learned of it only by freedom of information application almost a year later.

By then, outside Nova Scotia’s ironclad six-month limitation period for certiorari, with a facially valid order in hand, and information that its order had been scotched by administrators apparently through the back door, the firm applied in the Supreme Court for declaratory relief that any order of the small claims court be enforced according to its terms.

The technique worked. Moreover, legal logrolling by the province on whether or not declaratory relief should be available to the applicant allowed Justice Warner to give a useful, tight review of the availability of declaratory judgements in challenges alleging unlawful government action.

Citing authority that declaratory relief is an “important component” of judicial review, the court noted the discretionary nature of the remedy where the question presented must be “real and not …theoretical,” there “must be real interest to raise it,” and “necessary to resolve a party’s rights with respect to an actual exercise of statutory powers.”

Administrative lawyers may well want to keep a copy of the decision at hand as a tidy check list of procedural considerations on declaratory relief, and as a handy reference related to ex facie contempt.

Wickwire Holm is not bad either as a refreshing reminder that fundamentals of the rule of law do govern the responsibilities of court officers, that court orders should be obeyed until overturned or stayed, and that the legal system can work to confine unlawful administrative action.

Meanwhile, the status of the past due account or the current whereabouts of Wilkes remains to be reported.

Blair Mitchell is a partner in the Halifax law firm of Mitchell & Ferguson, with a focus on administrative law and civil litigation.


May 10, 2009

Nova Scotia: Statutory Interpretation and “Constitutional Privity”

Filed under: 1 — ruleswatch @ 10:45 am

Nova Scotia’s Court of Appeal has just released its decision in Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44. The Court unanimously rejected the appeal. Cape Breton municipal government was challenging the province on what it said was Nova Scotia’s failure to administer equalization fairly across the province and, in particular, CBRM. The action seeks declaration that contrary to s.36 of the Constitution Act, 1982, the province is failing to address regional disparity within the province. The action had been struck by the Honourable Justice John Murphy in the Supreme Court last year as disclosing no cause of action under Rule 14.25 of the then governing rules. The decision bears discussion on a number of bases but for now, two quick and convenient components stand out. The first is the Court’s, writing in the person of the Chief Justice, discourse on the application of traditional rules of interpretation of the issue. MacDonald C.J.N.S. wrote:

Interpreting Section 36

[36] The Supreme Court of Canada had endorsed the “modern approach” to statutory interpretation as expounded by Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87: … the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at 41; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; and Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447.


[37] It is suggested by some that this approach is no more than an amalgam of the three classic rules of interpretation: the Mischief Rule dealing with the object of the enactment; the Literal Rule dealing with grammatical and ordinary meaning of the words used; and, the Golden Rule which superimposes context. See Stéphane Beaulac & Pierre-Andre Côté in Driedger’s “Modern Principle” at the Supreme Page: 14 Court of Canada: Interpretation, Justification, Legitimation (2006), 40 Thémis 131-72 at p. 142.

[38] In any event, as Professor Ruth Sullivan explains in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) beginning at p. 1, this modern approach involves an analysis of: (a) the statute’s textual meaning; (b) the legislative intent; and (c) the entire context including the consideration of established legal norms: The chief significance of the modern principle is its insistence on the complex, multi-dimensional character of statutory interpretation. The first dimension emphasized is textual meaning. … A second dimension endorsed by the modern principle is legislative intent. All texts, indeed all utterances, are made for a reason. Authors want to communicate their thoughts and they may further want their readers to adopt different views or adjust their conduct as a result of the communication. In the case of legislation, the law-maker wants to communicate the law that it intended to enact because that law, as set out in the provisions of a statute or regulation, is the means chosen by the law-maker to achieve a set of desired goals. Lawabiding readers (including those who administer or enforce the legislation and those who resolve disputes) try to identify the intended goals of the legislation and the means devised to achieve those goals, so that they can act accordingly. This aspect of interpretation is captured in Driedger’s reference to the scheme and object of the Act and the intention of Parliament. A third dimension of interpretation referred to in the modern principle is compliance with established legal norms. These norms are part of the “entire context” in which the words of an Act must be read. …

[39] That said, applying these dimensions is often easier said than done. Professor Sullivan elaborates at p. 3: The modern principle says that the words of a legislative text must be read in their ordinary sense harmoniously with the scheme and objects of the Act and the intention of the legislature. In an easy case, textual meaning, legislative intent and relevant norms all support a single interpretation. In hard cases, however, these dimensions are vague, obscure or point in different directions. In the hardest cases, the textual meaning seems plain, but cogent evidence of legislative intent (actual or presumed) makes the plain meaning unacceptable. If the modern Page: 15 principle has a weakness, it is its failure to acknowledge and address the dilemma created by hard cases. [Emphasis by author]

[40] Thus in considering whether s. 36 applies to the facts of this case, Professor Sullivan would invite us to answer three questions: Under the modern principle, an interpreter who wants to determine whether a provision applies to particular facts must address the following questions: ! what is the meaning of the legislative text? ! what did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposes did it hope to achieve? What specific intentions (if any) did it have regarding facts such as these? ! what are the consequences of adopting a proposed interpretation? Are they consistent with the norms that the legislature is presumed to respect? [41] Finally, in developing our answers to these three questions, Professor Sullivan invites us to apply the various “rules” of statutory interpretation: In answering these questions, interpreters are guided by the so-called “rules” of statutory interpretation. They describe the evidence relied on and the techniques used by courts to arrive at a legally sound result. The rules associated with textual analysis, such as implied exclusion or the same-words-same-meaning rule, assist interpreters to determine the meaning of the legislative text. The rules governing the use of extrinsic aids indicate what interpreters may look at, apart from the text, to determine legislative intent. Strict and liberal construction and the presumptions of legislative intent help interpreters infer purpose and test the acceptability of outcomes against accepted legal norms.


The second, in this context is the Chief Justice’s use of the term “constitutional privity” in discussing the partners to putative a s. 36 compromise.

Stay tuned

May 4, 2009

Byzantines, Word Processing and the Supreme Court of the United States

Filed under: 1 — ruleswatch @ 12:16 pm

In a passage of a post of today reviewing the departure of US Supreme Court Justice David Souter and knocking around idea for appointment reforms to that court, American law professor and blogger Jack Balkin, principal writer of the blog, Balkinization, [] took the opportunity to comment on the impact of technology and the Court’s output: The United States Supreme Court currently has almost complete control of its docket. It is required to hear very few cases by law. As a result, it hears relatively few each year, now approximately 70. The opinions have gotten longer and more byzantine, accompanied by multiple concurrences and dissents. That is hardly surprising, because most of the Justices no longer write their own opinions– they are written by bright young clerks fresh out of law school. Word processing software and the Internet have made it far easier to assemble lengthy and impressive looking essays. …

May 2, 2009

HENRY VIII CLAUSES (Off with their heads)

Filed under: 1 — ruleswatch @ 1:53 pm

Greater Essex County District School Board v. International Brotherhood of Electrical Workers, Local 773, 2007 CanLII 741 (ON S.C.D.C.), has a handy review of case law on Henry VIII. (The report is worth checking, there’s more, it seems comphrensive and its mpre or less up to date:

[73] Section 39(1) of the P.S.L.R.T.A. and others like it where the Legislature delegates to the Executive the discretionary power to overrule by regulation the provisions of an enabling statute or another statute have been dubbed “Henry VIII clauses”, allegedly named “in disrespectful commemoration of that monarch’s tendency to absolution (sic)”.
[74] Henry VIII clauses have been the subject of controversy and comment, both in Canada and in England. The comments by A. Campbell J. in Ontario Public School Boards’ Assn. v. Ontario (Attorney General) [29] represent a forceful articulation of the constitutional concern they raise. In that case, Campbell J. dealt with a provision of the Fewer School Boards Act[30], passed at the same time as the P.S.L.R.T.A., whose wording mirrors that of s.39(1). In doing so, he first observed that:
This is the opposite of the usual rule, that if there is any conflict between the statute and the regulation which relies for its authority on the statute, the statute enacted by the Legislative Assembly prevails over the regulation made by the government. The usual rule is that legislative power is vested in the democratically elected Legislature to make laws after full public debate. This provision reverses that rule.[31]
Campbell J. then went on to articulate the following concern:
This power is constitutionally suspect because it confers upon the government the unprotected authority to pull itself up by its own legal bootstraps and override arbitrarily, with no further advice from the Legislative Assembly, and no right to be heard by those who may be adversely affected by the change, the very legislative instrument from which the government derives its legal authority.[32]
[75] According to Campbell J., this power was never used by the Ontario legislature until the early 1990’s. Until that time, it had been considered by the government “and successive generations of Crown law officers to be repugnant to our basic traditions of public accountability.”[33]
[76] In the words of Campbell J., “however offensive” this power may be “to our traditional sense of legality and public accountability”[34], the constitutional capacity of legislative bodies to confer the power has been upheld by the Supreme Court of Canada in Re Gray (Grey).[35] In Re Gray, the Supreme Court of Canada was dealing with the constitutional validity of a section of the “War Measures Act, 1914” that provided that Cabinet would have the power to do what was necessary or advisable by regulation or order, “for the security, defence, peace order and welfare of Canada” by reason of the “existence of real or apprehended war…”. With two judges dissenting on the basis that such a “wholesale surrender of the will of the people to any autocratic power is exactly what we are fighting against”[36], the majority of the Court upheld the constitutional validity of this broad delegation of authority by the Legislative branch of government to the executive.

Practice and Human Rights: Discrimination/Inference/Onus and Prima Facie Case

Filed under: 1 — ruleswatch @ 10:42 am

(Thank you Linda Panos-MacKay and University of Calgary Faculty of Law, “Ablawg”)

A case, and a post in the University of Calgary’s Faculty of Law Ablawg [Http://]highlight the ongoing issue of establishing a prima facie case in human rights litigation.

There, so often what is at issue is not the fact of the differential treatment, but rather, whether there is a discriminatory motivation– explicit evidence is rarely advertised and often difficult to find or unravel — underlying that treatment. Playing on that onus can be an attractive tactic for respondents in responding to a complaint. (In this case, a supervisor and the most immediate witness at least to events failed to appear with difficult consequences for any complainant, but particularly one who is not represented.)

Under the title “How does a complainant prove that he/she has experienced racial discrimination?,” Linda McKay-Panos, the Executive Director of the Alberta Civil Liberties Research Centre has highlighted the statutory appeal decision of the Alberta Court of Queen’s Bench in Workeneh v. 922591 Alberta Ltd., 2009 ABQB 191

There, Justice A.G. Park considered a decision in which the province’s Human Rights tribunal dismissed a human rights complaint finding a failure to make a prima facie case. The judge overturned the Human Rights Panel’s dismissal of the complaint based on a conclusion that the complainant had failed to make a prima facie case of discrimination. The decision was sent back to be considered for remedy.

Ms. Workeneh, an African-Canadian, and the only black staff member working as a personal care worker in a home for special care, learned that she was receiving lower pay, benefits on less favourable terms and other working conditions less favourable than all other employees.

Employees, indeed, had received written instruction not to talk to her about their own salary and benefits. A written request to discuss the difference was ignored by her employer. Workeneh complained of race and colour discrimination in employment to the Alberta tribunal.

At the hearing her supervisor did not appear, there was evidence of competing reasons why she might have been treated differently and her complaint dismissed by the Alberta tribunal on the grounds that she had failed to make out a prima facie case.

Park, J. found differently. Reviewing the evidence, he corrected erroneous findings of the panel on evidence, which had in turn been used to question the complainant’s own credibility.

Post author Mckay-Panos goes on to summarize, “Justice Park concluded that the Panel erred in law in its failure to infer from the facts that Workeneh experienced racial discrimination. Justice Park relied on a quotation from B. Vizkelety in Proving Discrimination in Canada (Toronto: Carswell, 1987) at 142: “an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses.”

In Justice Park’s opinion, the following facts constituted a prima facie case of discrimination based on circumstantial evidence: • Workeneh was black; • Workeneh was paid substantially less than her white co-workers; • Her supervisor wrote a letter to the other staff to advise them not to disclose their salary details; and • Workeneh was as well qualified, if not better qualified than many of her fellow employees for the same type and nature of employment. ”

The language of the decision place the disposition in its legal context: “[27] …Without any conflicting evidence or explanatory testimony from Starr or 922591, the inference that is more probable than not, is that Workeneh was taken advantage of due to her colour and/or race. The Panel failed to draw any inference from any of the evidence. This failure is an error of law reviewable on a correctness standard. The Panel was not correct when it failed to draw the only probable inference available to it on the evidence – the inference of discrimination…”

On February 20, 2009, a differently constituted panel under the Alberta Human Rights Act awarded the complainant, more than $52,000 in compensation.

May 1, 2009

Confidentiality Obligations in the Criminal Process: Allegedly Loose Reading of Allegedly Loose Transcripts

Filed under: 1 — ruleswatch @ 7:18 am

The pre-hearing process of two former British Columbia political aides for allegations of wrongdoing connected with the 2003 sale of BC Rail to CN — already well stocked with bitter public, political recriminations — is confronting interesting legal implications.

BC lobbyist and governing, Liberal Party activist, Patrick Kinsella, angry that he feels his reputation is being implicated in the case has sought to intervene in the criminal proceeding. Kinsella was a lobbyist for the purchaser, CN.

The Globe and Mail writer Gary Mason today says, “Mr. Kinsella had his lawyer, … in the court yesterday requesting standing in the criminal proceedings. That means Mr. Kinsella wants someone there who can interject any time his name is mentioned in less than flattering terms.”

The story is not clear on the status of the motion itself but the outcome will be fascinating and potentially fuel for interlocutory challenge.

More significantly it surfaced, apparently during the application, that Mr. Kinsella’s counsel, at least, has had access to what seems to be evidence taken in “pre-trial” proceedings. Bill Tieleman, for Vancouver daily, 24 Hours reports, “And …[counsel for one of the defendants] raised concerns about who has seen transcripts of the pre-trial hearings obtained by [Kinsell’s lawyer] through a transcript company, saying potential witnesses are not supposed to see them. ‘It’s a very serious issue. These transcripts were out when they ought not to have been…’”

There are obvious potential implications for this and for any actors who have played fast and free with restricted material.

Finally, as one might have gathered, the struggle seems to be no tea party in and around the courtroom either.

Kinsella’s counsel is said in the Globe to have “fire[d] off a letter to the judge… which… suggests Judge Elizabeth Bennett somehow directed the defence to seek Mr. Kinsella’s records related to the sale – and that he’s not happy about it.”

Meanwhile, 24 Hours says, defence allegations (seemingly struggling to keep up with a high octane Kinsella) of cabinet-level interference in the prosecution, failed. “There’s not a scintilla of evidence that [the Attorney General]… has acted improperly,” Bennett said in an oral ruling.

In the interim, in addition to the prospect of making interesting law the file shows every prospect of developing into a kind of jurisprudential “Days of Our Lives.”




Keith Fraser, Canwest News Service Friday, May 1,  reported that Kinsella had received standing because an application had been made for production of documents from him.

April 27, 2009

Nova Scotia Practice: “New matters” in re-examination

Filed under: 1 — ruleswatch @ 9:35 am


In the course of cross-examination, the divorce petitioner was asked about personal bank accounts she had maintained after the separation between the parties (perhaps even before) but which she had not disclosed on her statement of financial information. The evidence was that she had transferred money from the joint account of the parties into these personal accounts.

The Judge, Justice Beryl MacDonald, found there was no doubt the evidence was relevant: “What she did with the money after these transfers occurred is an issue before me.” When cross-examination ended, her counsel sought to obtain and introduce the records. Respondent’s counsel objected.

But there were no apparent alternative sources of evidence: “…she is the only witness who can speak about these records. She has already given her direct evidence. She has been cross-examined. All that remains of counsel’s right to question her is upon re-direct or, as this stage of a proceeding is also called, upon re-examination.”

Rejecting other heads of admissibility, Justice MacDonald ultimately concluded the Court had the discretion to admit the records and testimony about them.

She found the evidence to be led would amount to “evidence which explains, qualifies, clarifies, minimizes or limits the effect of testimony given in cross-examination or which puts into perspective any facts revealed in cross examination which might discredit the witness”. (Campbell v. Jones, 2002 NSCA 128, para. 307).Citing from R v. Moore (1984), 15 C.C.C. (3d) 543 (Ont. C.A.), the Court said:

The right to re-examine exists only where there has been cross-examination, and must be confined to matters arising in cross-examination. New facts cannot be introduced in re-examination. The judge may, however, in his discretion grant leave to introduce new matters in re-examination and the opposite party may then cross-examine on the new facts. In re-examination leading questions may not be asked. See Phipson on Evidence (13th Ed.). at p. 823-24; Wigmore on Evidence (3rd Ed.), vol. 6, p. 567.

Interestingly, the judge set out the following scope to prepare for that re-examination. She permitted the petitioner’s counsel to discuss the matter with his client:

[7] ….In this case counsel will need to consult with Ms. MacLean to arrange to obtain the bank records and to review their content with her prior to testimony on re-direct. In addition the cases I have reviewed provide for a right to cross-examine the witness about the new evidence given upon re-direct. The cases are silent about further re-direct after that crossexamination but because there may be a need to explain, qualify, or clarify Ms. MacLean’s testimony after cross-examination, re-direct will be permitted but only in respect to testimony given about the records.    


                                                                                                                                                                                                                                                                                                                                                   MacLean v. MacLean 2009 NSSC 126


Consolidation Rejected

Filed under: 1 — ruleswatch @ 6:49 am

In Best v. Pontius et al., C.A. No. 304237 2009 NSCA 39, Roscoe, J.A. relied squarely on deference to reject an appeal of a refusal to consolidate the trial of two separate motor vehicle accident claims which had occurred four years apart. Consolidation was sought mainly on the grounds that medical evidence was common to the two actions. The appeal was rejected:


[12] With respect, the appellant’s arguments amount to a request for this court to



reassess and reweigh all of the relevant factors to determine if we might have

exercised the discretion differently. That is not our role. The chambers judge

applied the proper principles of law, considered all of the relevant factors and no

patent injustice results from the decision to deny the application for consolidation.

Given the circumstances, including the time that elapsed between the two separate

accidents, the two different applicable insurance schemes, and the differences in

readiness for trial of the two actions, the chambers judge reached a decision that

deserves deference from this court.

The decision applied the Civil Procedure Rules, 1972.


Adult Sex Guidelines not Law

Filed under: 1 — ruleswatch @ 6:35 am

Hardy new news, but the decision of the Ontario Superior Court in R. v. Glad Day Bookshops Inc.[2004] O.J. No. 1766 90, an appeal from a provincial court conviction in the censorship of home videos, gives a handy review of when “policy” is not “law” for the purposes of s. 1 of the charter (“…reasonable limit prescribed by law…”).  Juriansz, J., (as he then was) noted transparency, the authority of maker or guidelines, accessibility of guidelines, and the procedural casualness with which they could be changed to scotch any argument the government could use the guidelines to mount a s. 1 defence to a freedom of expression challenge:

[90] The government also seeks to rely on the “Adult Sex Guidelines” developed by the Board, which it submits provides additional guidance about the meaning of the criteria set out in s. 14 of Reg. 1031. These Guidelines set out the criteria to guide the Board’s discretion in greater detail than s. 14(2) of the Regulation provides. However, there is no statutory authority for the Guidelines in either the Act or the regulations and the Guidelines are not reviewed or approved by Cabinet. The Guidelines lack the status of law. The current Guidelines were prepared in 1998, disclosed to the “industry” in 2000, but remained unavailable to the general public. The copy of the Guidelines that were made an exhibit at trial were labeled “Confidential”. The Board may change the content of the Guidelines when and as it chooses. I find that government may not rely upon the Guidelines as limits prescribed by law.

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