RULESWATCH

November 26, 2013

Cape Breton Explorations Ltd. v. Nova Scotia (Attorney General), 2013 NSCA 134

Filed under: Uncategorized — ruleswatch @ 10:11 pm

A judge of the Nova Scotia Court of Appeal has nicely threaded a path through a miniature administrative law, curial deference and procedural fairness law minefield in Cape Breton Explorations Ltd. v. Nova Scotia (Attorney General), 2013 NSCA 134.

Justice Linda Lee Oland has remitted a confidentiality order to the Utility and Review Board to allow it to develop reasons and bring the matter back for further review (on statutory appeal) by the Court.

The Board, reserving the right to review its order should a subsequent party raise the matter, had granted confidentiality to material supporting NS Power’s application for approval of a $93 million windfarm expenditure opposed by Cape Breton Explorations.

The Board’s Regulatory Rule set out its own criteria for such an order.

The Court held that the reasons as given by the Board for the appealed order did not show the Board’s “analytical path” to the confidentiality order or whether it had complied with the requirements of its own rule. The Court described the Board’s reasons as “slim.”

In its reasoning, Oland J.A. reached into the Civil Procedure Rules to apply the confidentiality provisions of Rule 85.04, (demonstrating an application of the general rules to its own process under Rule 90.02(1)). Looking at the decision under appeal it then reviewed the Board’s ruling, reached into obiter in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61to find guidance to show appropriate curial deference to the Board, in remittance.

Then over the vigourus attempts of the appellant Cape Breton Explorations Ltd. hoping to scuttle the confidentiality order high and dry in the Court of Appeal considered and dismissed its proposition that the Board was functus and could not have the matter remitted to it to send the matter back to the Board—again, nicely warning that the Board on considering the matter should take care that parties not be permitted to make arguments that they had not made earlier in argument before the Board.

November 20, 2013

Federal Hansard from the Dawn of Time (Almost, 1867) Now on Line

Filed under: Uncategorized — ruleswatch @ 9:27 pm

Life is now complete: http://parl.canadiana.ca/

Disabilities, Incarceration and Relative Harshness

Filed under: Uncategorized — ruleswatch @ 4:53 pm

R v Myette, 2013 ABCA 371

A blind male was convicted of sexual assault on a female roommate. Evidence given at the sentencing included that the facility where the offender was to be incarcerated could not accommodate his guide dog and that while he might keep his cane, the institution did not otherwise specifically accomodate inmates with blindness.

The trial judge (who a split court of appeal unanimously found had committed a number of errors on sentencing) had imposed an 18 month suspended sentence.

The sentencing judge said,“there is nothing even approaching reasonable accommodation in Alberta for Mr. Myette as a blind, accused convicted of sexual assault. If Mr. Myette were to be incarcerated he would be suffering a significant punishment beyond that suffered by other individuals incarcerated in the Corrections system in Alberta”

The majority of the Court of Appeal citing the errors found in the Judge’s sentencing approach changed the sentence to a 90 day intermittent one. The dissenting judge in the court of appeal, while accepting the errors made in the sentencing, concurred with the trial judge in the result being a 90 day intermittent sentence with probation.

The dissenting judge held, “…I do not think that the trial judge erred including that this was truly an exceptional case such that imprisonment would be disproportionately harsh to the seriousness of the offence and that a term of house arrest would be adequate to meet the ends of justice in this case.”

November 17, 2013

Pro bono costs

Filed under: Uncategorized — ruleswatch @ 10:35 am

The Federal Court of Appeal has moved aside chaff interfering with an award of costs to pro bono council (Thanks Slaw and Martime Law Book)

June 22, 2013

Records, Inferences, “Pivotal Facts”

Filed under: Uncategorized — ruleswatch @ 12:16 pm

In Ross v. Bank of Montreal, 2013 NSCA 70, the pre-hearing efforts of the parties and the chambers judge to deal practically with a fistful of procedural issues and no doubt a well-placed desire to get on with the practical business of hearing and determining motions for summary judgement has produced a Court of Appeal decision that serves as a stark and useful reminder of the importance of fundamentals.

Evidence on summary judgement or abuse of process dismissal motions: Bryson J.A., for the Court, has reminded us that a Court is not in a position to make findings of fact on summary judgement motions or on motions to dismiss for abuse of process, excepting from limited and explicit sources:

Observing that, on review of a series of facts recited in the decision under appeal, the Court observed early in the decision that “…it is important to point out that there is nothing to support some …stated facts.” [para 6].

From this, the Court of Appeal goes on to observe, “While the court may infer facts from a pleading to characterize the pleading for the purposes of a Rule 88 motion for abuse of process, none of the Rules [13.03, 13.04 or 88] authorize a judge to make findings of fact outside of supporting evidence or from counsel’s express and jointly agreed stipulations on behalf of their clients.”

Under none of these Rules may the judge make findings of fact drawn simply from one counsel’s suggestions, unstipulated by the opposing party, and without any supporting evidence.” [para7]. A motion for summary judgement “depends on the evidence presented.” [Rule 13.04(3)].

In summary, in the view of the Court of Appeal, the decision appealed from “…committed a papable and overriding error by inferring pivotal facts without any pleadings, evidence or factual agreements of the parties. These decisions resulted in an erroneous conclusion that the defence and counterclaim constituted an abuse of process.” [para 46]

Notice essential: In a complicated overall procedural backdrop to the motions and in the preliminaries particular to them in this case, the Court stood on the proposition that in the record before the court, there was, inter alia, “nothing to indicate that the Rosses had notice of, instructed counsel, participated in or knew the outcome of the various receiverships proceedings…” Hence, an order striking various defences in a proceeding which was to be, but had not yet been ordered consolidated with a companion action to the one in which the motions for summary judgment had been brought, was overturned.

Record essential: Notwithstanding the apparently shared sense of the factual and procedural framework that sometimes results from the collective efforts of counsel to hammer out a consensual framework to allow a motion to go, the decision underlines the ultimate eminent importance of the record of the appeal.

The usual angst for counsel of attempting to identify and select the contents of an accurate, effective, comprehensive but also, efficient, record in a chambers appeal with a complicated background continues.

Inference on Abuse of Process Motions: The Court’s decision usefully reminds us almost as a by product of the decision that a characterization that a court may reach of the integrity of a claim attacked on a motion for abuse of process under Rule 88 is an inference that may be drawn from the pleadings, presumably in whole or in part.

August 7, 2010

Dry Eyed Justice

Filed under: Uncategorized — ruleswatch @ 9:27 am

The National Post is reporting the New Brunswick Court of Appeal weighing in to discard a Queen’s Bench sentence unduly influenced by the tragedy the offender had caused.

It reports:

A ruling by New Brunswick’s top court that declares victims “cannot be allowed to hijack” a trial and chastens a judge so moved by tearful accounts of loss that he doubled an expected sentence is prompting debate over whether it is time to rethink the judicial system’s focus on victims’ rights.

The judgment has victims’ rights advocates warning their voices are being silenced, but has others applauding the court’s appeal for what the judge described as “dry-eyed justice.” Over the past two decades, victim impact statements have become dramatic and compelling features at most criminal trials.

….
The newpaper reports the court of appeal decision observing:

“While retribution is an accepted sentencing principle, vengeance is not.

“The ultimate objective is dry-eyed justice according to law.”

Read more: http://www.nationalpost.com/news/eyed+justice+Judge+questions+impact+victims+rulings/3369881/story.html#ixzz0vvTUQwGX

August 2, 2010

Writing Questions

Filed under: Uncategorized — ruleswatch @ 3:45 pm

In a paraphrased snapshot, internet advice to internet posters on privacy and defamation issues, in the current issue of the Writer’s Digest (July /August 2010 at page 45) by a Chicago writer and attorney, Amy Cook, is to ask:

— Am I writing about real people?
— Are they recognizable to readers?
— Am I writing disputable statements of fact?
— Am I disclosing private, possibly embarassing information?
— Are the matters discussed of concern to the community at large (not just your family)?
— Am I disclosing a crime? How recent?

And directed more to an American audience than otherwise:

— Is the individual in question a private person (as opposed to a public figure)?

August 1, 2010

Judicial Review, Parliamentary action and the English Civil War

Filed under: Uncategorized — ruleswatch @ 10:17 pm

Conservative M.E.P. Daniel Hannan hits a rough and ready constitutional note in the Daily Telegram’s blog

“It is worth remembering that we came through a civil war to establish the principle that revenues should be levied and disbursed by the House of Commons. If the Fawcett Society wants a different budget, its members should put themselves up for election and argue their case. Then again, why go to all the trouble of persuading the voters when you can simply subvert the democratic process through the courts?”

See: http://blogs.telegraph.co.uk/news/danielhannan/100049318/quangos-now-presume-to-set-our-budget/

Judicial Review of Parliamentary Action?

Filed under: Uncategorized — ruleswatch @ 6:46 am

A longstanding English Women’s equality organization is challenging the United Kingdom’s new budget in court.

The UK’s new government’s budget is said to impact government programs affecting women disproportionately.

The group, the Fawcett Society, is maintaining that government failed to conduct what would seem to be a sexual inequality assessment in adopting the measures.

The Guardian describes the judicial review application as “the first ever legal challenge to a British government’s budget…” “Papers filed on Friday [July 29] claim that Treasury officials broke the law by failing to carry out an assessment of whether the plans for heavy spending cuts would hit women hardest.”

A solciitor for the group has the law being very clear.

“Although public authorities have been subject to the gender equality duty for three years now, there is widespread ignorance not only about how strong these laws actually are,… However, the case law is crystal clear. Firstly, an equality impact assessment must be conducted before policy decisions are taken.”

The UK legislation, directed primarily to listed government and public authorities, calls for similar assessments in the case of race and disability.

July 27, 2010

A man for all [too many?]seasons?

Filed under: Uncategorized — ruleswatch @ 1:52 pm

The Montreal Gazette reports on Kovalchuk’s 17-year, $102-million contract offer from the New Jersey Devils being taken to arbitration by the NHL – . “…The NHL’s argument is that neither the Devils nor Kovalchuk expect him to play for $550,000 when he’s 44 years old and the additional years are there simply to ease the salary-cap burden on the Devils.”

The piece goes on “The question for the arbitrator to ponder is how long of a contract is too long, and the answer is that the matter is not addressed in the current [collective agreement].

Read more: http://www.montrealgazette.com/sports/Kovalchuk+case+test+rules/3326338/story.html#ixzz0uuF2XptF

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