Western Canada Business Litigation Blog - Vancouver | Calgary | Yellowknife

In the realm of Canadian human rights law, few topics have generated as much discussion and controversy in recent years as the “hate law” provisions found in many human rights statutes.  These provisions typically prohibit the publication of statements that have or are likely to have the effect of exposing a person or class of persons to ridicule and hatred.

Defenders of these provisions argue that they are necessary in order to protect vulnerable persons and groups in our society whereas critics decry them as an unwarranted attack on freedom of expression.  The debate illustrates the challenge that often arises in constitutional litigation where the court is called upon to strike a balance between competing rights and values.

In its recent decision in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, the Supreme Court provides some guidance as to how this delicate balance will be struck.

The case involves complaints filed with the Saskatchewan Human Rights Commission concerning four flyers published and distributed by William Whalcott, an avowed anti-homosexual activist.  Two of the flyers were entitled “Keep Homosexuality out of Saskatoon’s Public Schools” and “Sodomites in our Public Schools.”  The other two flyers in issue were copies of personal ads published in local newspapers with anti-homosexual handwritten notes added.  Four individuals who received the flyers at their homes filed complaints with the Commission alleging that the flyers promoted hatred against them because of their sexual orientation, in violation of the Saskatchewan Human Rights Code.

The relevant provision of the Code, section 14(1)(b), which is similar to provisions found in other provincial human rights statutes, prohibits the publication of any statement or representation that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.”

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Societies are generally groups of like-minded people who form a voluntary association for a particular purpose.  Societies can be are created for many reasons: a charitable purpose, fostering a sporting or cultural endeavour, or provide a framework for religious groups.  The Society Act creates the legal framework for the incorporation and organization of such groups.  Each society has a constitution that defines its purpose and bylaws or rules that govern the conduct of its affairs.  Despite this, these voluntary associations are, more often than not, fairly casual in handling their affairs.  The procedural aspects of their bylaws are often vague or incomplete.  Things get done a particular way because “that is the way it has always been done” or because no one has the time to do it properly.

Resort to the proper procedural technicalities usually only comes into play when a divisive issue arises amongst the members.  Everyone drags out and tries to enforce their understanding of the rules to advance the position they seek to establish.  Not infrequently, the dispute ends up in court.  What role will the court play in figuring out the correct procedural requirements for the society?

One recent case illustrates that the courts will look to the unwritten but long standing traditions of a society to help sort out the proper outcome.  In this instance, there was a fight over the disqualification of a set of nomination forms shortly after the nomination deadline passed.  The incumbent executive had submitted their slate of nominations in a timely way, though some portions of the forms were incomplete.  The challenging slate of candidates submitted their nominations 90 minutes before the deadline to do so.  Shortly after that, the secretary told the challenger slate that their nomination forms were invalid.  They had each nominated themselves rather than have two other society members nominate and second their candidacy.  As a result, the incumbent slate was elected by acclamation. 

The disappointed challengers sought to overturn the election and the disqualification of their nomination forms.  They pointed out that neither the society bylaws, nor the Society Act made provision for the content of nomination forms.  Similarly, they contained no prohibition on self-nomination.   The challengers asserted that the defect in their nomination was a technicality that ought to be remedied by the court.

The Society Act gives the court authority to oversee and rectify the affairs of a society.  In order to do so, the court must first find that there has been an “omission, defect, error or irregularity in the conduct or affairs of the society”.   This can be a breach of the Society Act, a failure to comply with the constitution or bylaws, or misbehaviour in connection with the directors or members meetings.  The question, therefore, became whether or not the requirement to have two other members nominate candidates was an irregularity that gave the court jurisdiction to intervene.

The court decided it was not.  It did so in reliance on the unwritten but long standing traditions of the society.  The nomination forms, and the requirement to have two nominees, had been in use by the society for nearly 40 years.  This was a long-standing custom that the court considered to have become a rule of the society.  In doing so, the court noted that voluntary associations are meant largely to govern themselves and to do so flexibly.  A tradition or custom that is sufficiently well established may be considered to have the status of a rule on the basis that it has become an unexpressed term of the society’s constitution.

The fact that the incumbents’ nomination forms were incomplete was dismissed as a reason they too should have been rejected.  Again, the court turned to the past conduct of the society for support.  It had never been the practice or custom of the society to mandate completion of those parts of the nomination forms.

If you are a society member, remember to be mindful of its traditions and customs when dealing with its governance.  A consistent course of conduct over a long period of time may result in the society, knowingly or otherwise, adopting an enforceable obligation that may or may not be in the best interests of its members.  In addition, try to get your nomination forms in earlier in case there is a problem with them.  You may need some time to remedy them.

On September 21, 2012, the Supreme Court of Canada rendered its decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 in which it found that the Respondent society (the “Society”) and one individual have standing to pursue a constitutional challenge to the Criminal Code provisions dealing with prostitution.

While media coverage of the case has tended to focus on the substance of the proposed challenge, from a legal perspective, the decision is of interest because the Supreme Court has clarified the law of standing which determines who is entitled to bring to court constitutional challenges to legislation.

The case was originally commenced by the Society, whose objects include improving working conditions for female sex workers, and by Ms. K., a former sex worker.  The basis for the challenge is that the Criminal Code provisions dealing with prostitution violate various sections of the Canadian Charter of Rights and Freedoms to the extent that they prevent prostitutes from joining together and from taking essential steps to improve their working conditions thereby putting the safety of prostitutes at risk.

The Attorney General of Canada applied to the B.C. Supreme Court to dismiss the action on the ground that the claimants lacked standing to bring it.  Generally speaking, there are two types of standing.  Private interest standing exists where a person is directly affected by the matter in issue.  Perhaps the most obvious example of private interest standing is where someone is charged with an offence under the Criminal Code.  In those circumstances, the person has standing to challenge the constitutionality of the provisions in issue.  Where a person is not directly affected by a case, they nonetheless may be granted public interest standing if a three part test established by the courts is met:

• There is a serious justiciable issue raised;

• The party seeking to bring the challenge has a real stake in the proceeding or is engaged in the issues it raises; and

• The proposed action is a reasonable and effective means to bring the case to court.

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On July 18, 2012 the B.C. Medical Services Commission (the “Commission”) released the results of an audit of two private health care facilities in Vancouver, the Cambie Surgery Centre and the Specialist Referral Clinic, which revealed that the two facilities have been billing patients directly for surgical and other medical services that are otherwise covered under B.C.’s public Medical Services Plan (“MSP”).  The results of the audit are hardly a surprise.  Both facilities are operated by Dr. Brian Day, a well-known advocate for increasing the availability of private health services as part of the overall health care system.  Dr. Day has operated his facilities openly for many years and has made no secret of the fact that those facilities bill patients directly.  Up until recently however, the facilities (along with a number of other private facilities in B.C. that operate in a similar manner) have been allowed to carry out their work with little or no interference from the Commission, which is the statutory body charged with overseeing the operation of the MSP pursuant to the governing statute, the Medicare Protection Act, RSBC 1996, c. 286 (the “Act”).

Under that Act, subject to certain limited exceptions, a physician or health care facility is not permitted to charge a patient directly for any medical service that qualifies as an insured benefit under MSP.  This prohibition is in large measure intended to ensure that the B.C. medical system complies with the requirements of the federal Canada Health Act, which similarly bans the direct billing of patients.  A province that fails to comply with the federal statute runs the risk of losing federal transfer payments that are used to help fund the provincial systems.

As noted, the activities of the private facilities have largely gone un-checked for a number of years.  This is arguably due to the fact that the provincial government and the Ministry of Health, although they would never say so publicly, recognize the value that the private facilities bring by relieving pressure that would otherwise strain the public system.  However, the government has recently come under pressure to pursue the facilities and to put an end to the practice of direct billing.

In particular, in 2009, a number of individuals backed by the B.C. Nurses Union commenced a legal proceeding against the Commission alleging that it and the Ministry of Health were failing to enforce the provisions of the Act by permitting the private facilities to continue to direct bill patients. In response, the Cambie Surgery Centre and a number of other private facilities launched their own action against the Commission and the government alleging that the prohibition against direct billing is unconstitutional in that it unduly restricts a patient’s ability to make fundamental health care choices in a manner that violates the liberty rights protected under s. 7 of the Canadian Charter of Rights and Freedoms.

The constitutional challenge is based in part upon the 2005 decision of the Supreme Court of Canada in Chaoulli v. Quebec (Attorney General) in which the Court struck down provisions of Quebec legislation that prohibited private insurance for medical services that are available under the public system.  The rationale of the majority of the Court was that where the public system fails to deliver essential medical services in a timely manner thus jeopardizing the health and well-being of patients, it is unconstitutional to deny those patients the option of seeking treatment privately.

To date, the competing law suits have proceeded at a glacial pace, perhaps because neither side is anxious to get a result.  From the government’s perspective, it may not want the court to tell it that it is obliged to put an end to the practice of direct billing as that may put the private facilities out of business thereby increasing pressures within the public system.  Alternatively, even if the court were to find in favour of the facilities, the government would be under pressure for not doing enough to save and protect the public system.  Similarly, the private facilities may not be in a hurry to be told by the court that their practices are illegal.

The landscape has now changed however with the release of the Commission audit.  Armed with clear information that the facilities are in fact direct-billing patients in violation of the Act, the Commission and the government are arguably obliged to act.  If the Commission takes steps to enforce the Act, for example by way of court injunction, the facilities will no doubt respond with their constitutional arguments as to why the prohibition against direct billing is invalid.

Debating Canada’s public health care system is a favorite sport in Canada and the role of private health services within that system is an issue that divides politicians, academics, lawyers, doctors and members of the public generally.  Depending upon the Commission’s next steps and the response of the private facilities in B.C., it is an issue that may come to a head in a courtroom in the near future.

More information about the Chaoulli decision of the Supreme Court of Canada can be found here.

On November 23, 2011, Chief Justice Robert Bauman of the British Columbia Supreme Court issued his much anticipated Reasons for Judgment in Reference re Section 293 of the Criminal Code of Canada, 2011 BCSC 1588, the constitutional reference concerning the validity of Canada’s anti-polygamy law.  Chief Justice Bauman found that the law is consistent with the Canadian Charter of Rights and Freedoms, except to the extent that it purports to subject children to criminal prosecution.

While the Reference was originally initiated in October 2009 following a failed attempt to lay charges under section 293 of the Criminal Code against two individuals in respect of allegedly polygamist activity in the town of Bountiful, B.C., the case was not restricted to the circumstances in Bountiful but rather involved a much broader consideration of the practice of polygamy more generally.  Throughout the hearing, which lasted 42 days, the Court heard extensive evidence concerning the history of polygamy, the manner in which it is practised in Canada and elsewhere, the harms associated with polygamy and the history and importance of monogamous marriage.

Central to Chief Justice Bauman’s conclusions concerning the constitutional validity of the law are his findings of fact based upon the evidence presented.  Most significantly, the Chief Justice found that there is demonstrated harm that results from polygamous marriage, including elevated risk of physical and psychological harm to women and children and economic harm including higher rates of poverty.  The Chief Justice also found that polygamy is harmful to the institution of monogamous marriage which he characterized as a historical and significant value in western societies.

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On July 23^rd, ex-Fifa presidential candidate, Mohammad Bin Hammam (“MBH”) was banned from football related activity for life.  He is the most senior official to be banned by Fifa in its 107 year history.  For the uninitiated, Fifa is the governing global body for the sport of soccer.  A brief factoid:  Fifa has more members (208) than the International Olympic Committee; is an association established under the laws of Switzerland and headquartered in Zurich; has a motto of “For the Game, For the World” and is responsible for the organization and governance of the World Cup, the World’s largest and most lucrative sporting event.

This blog is actually more of a “prequel”, in that MBH has vowed to appeal his life-time ban to, among others, the Court of Arbitration for Sport, which I am going to report on in a subsequent instalment faithful reader. 

Now, soccer is no stranger to allegations of corruption, (less than 5 years ago in Italy, several prominent “squadra” were docked points for match fixing which resulted in Juventus of Turin dropping down a league) but, this latest scandal goes all the way to the top. 

MBH was found guilty of trying to buy votes from Caribbean Football Union members in his recent bid to become Fifa president.  MBH, who hails from Qatar [more on this later], says he will appeal against the ruling, which said he gave or offered cash gifts of around $40,000 US each to the 25 Caribbean associations.  MBH went on to say (to Sky News), “This is actually the act of the dictators and you have witnessed through history the dictators when they think this or that person is a prominent one to replace him, the first thing they do is execute him.”

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On December 19, 2010. I blogged about the decision in Bentley et al. v. Anglican Synod of the Diocese of New Westminster et al.  In this case, the British Columbia Court of Appeal found that parish assets are held by the Anglican parish corporations in trust for the purpose of “Anglican ministry”.  Specifically, the trust to is to further Anglican ministry in accordance with Anglican doctrine within the Anglican Church of Canada, including the decision of the General Synod to bless same-sex unions.

Today, the Supreme Court of Canada refused to hear an appeal from that decision.  This refussal ends this litigation and leaves the decision of the British Columbia Court of Appeal as the final word on this issue.

This month, I am going to write on something a bit off the beaten path for the commercial litigation blog.  But it is a topic I often give advice to students on:  resumes and interviewing. 

This is especially timely, given that the Articling Week for 2011 students has just completed and the Articling week for 2011 Summer Students is fast approaching.  What follows is not meant to be exhaustive.  It is a handy guide to help students out. 

Part I:  Resumes

1. Proof Read Your Resume!!!

This sounds obvious.  From reading hundreds of resumes though, I can tell you not everyone does it.  Really?  Yes, really.  Nothing causes raised eyebrows like a spelling mistake, grammatical error or blatant typo.  This is usually your first chance to make a positive impression on a firm - press spell check!  And, if you cut and paste, at least make sure you get the firm name correct!

2. Humour is Subjective

Much like beauty is in the eyes of the beholder, so too is humour.  The resume is not the right place for a written stand-up routine so take it easy, Chris Rock.  Can the jokes, witticisms and obviously edgy, “personality” injectors.  Save your sparkling personality for the interviews.

3. Hit the High Points!

The resume should include only significant events/achievements/milestones.  Volunteering for one hour at a bake sale, your grade 10 Passport to Education or elementary science fair trophy for the baking soda volcano should not find their way into your articling resume.  If it is not relatively current, omit it - that means no childhood 4-H awards.

4. This is a Resume for a Law Firm, not a Student Summer Job!

Hit the target audience.  The fact that you have a St. John’s Ambulance certification is not a law related employment skill - I am not hiring a life guard for the community pool. 

5. How Can You Not Have Extracurricular Interests?

Yes, we are hiring prospective lawyers, but, we are also hiring people.  People have interests outside of the law - music, reading sports, hobbies.  Put the important ones down; if you love cooking, let us know - we probably do too (or, at least eating) and then we have a common interest to discuss should you get an interview … perfect segue to Part II.

Part II:  Interviewing

1. You need to "Bring It"

Although this is not American Idol, I am still using a Randy Jackson tag-line.  You need to be “on”, you need to engage, you need to “make it your own.”  Well, maybe not the last one.  But, seriously, this is not the time to switch-off.  This is your 30 or 60 minutes to shine.  So, speak up and do not make your interviewers have to carry the conversation. 

2. It's a 2-Way Street

Have some questions for the interviewer.  And, do not make them pat - i.e. “What did you do today?”  Boring - cue the crickets.  There is nothing wrong with asking a challenging question that makes me think.

3. "Stay-Away" Topics

It is obvious that a politically incorrect joke is a complete no-no for an interview.  But, what about other potential debate-starters like politics or religion?  You do not know my views on these topics, and for the interview, I would rather not know yours.  Play it safe on this stuff.  Think of the pros and cons of raising any clearly controversial topic.

4. Know the Time!

If you tell me you are super interested in pursuing a career in criminal law, here is my response - “Why are you interviewing here?”  We do not practice in that area!  Do your homework. 

5. End on a High Note!

I think this was the subject of a Seinfeld episode, but, it is true.  When the interviewers say, “Well thanks for coming in” or “Would you like a tour?”, that is the signal that it is time to draw the interview to a close.  You do not want to be the one hanging on after it is clear it is time to go. 

Bonus Tips:

• If you put something down on a resume it is “fair-game” to ask questions about.
• Slow down when you are speaking.  I know you are nervous, but slow down!
• Stop name-dropping.  It is ok to mention that you may know someone at my firm, but, I do not need to know everyone on your Contacts List.
• There is nothing wrong with humility.  I know this sounds obvious, but, the 82% you got in Corps does not mean you know just as much about corporate transactions as the 25 year call sitting across from you.