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Aboriginal Law Moving Forward, Sideways and Backward: Reflections on Aboriginal Law in 2007 Jane Mulkewich and Karen Drake*
This article originally appeared in the OBA Aboriginal Law Section Newsletter, Volume 13, No. 3 - April/Avril 2008. The Aboriginal Law Section’s Institute program was once again co-chaired by John Rowinski, of Olthius Kleer Townshend, and Annie M. Thuan, now of Lang Michener LLP. Held on February 5, 2008, it was an action-packed afternoon which was extended beyond the 4:30 cutoff to 5:00 pm, so that when the program was ending, we were the last Section to leave and the display areas in the main hall were already almost all packed away. Michael Bryant, provincial Minister for Aboriginal Affairs, had been confirmed but was called away to be in Thunder Bay and was unable to attend. Instead, Deputy Minister Lori Sterling came to speak in his place. A traditional sweetgrass ceremony and blessing was offered by elder Joanne Kakekayash with the assistance of her son. She welcomed us to Mississauga territory, and gave thanks for the white blanket of snow which allowed the earth to rest. She talked about prophecies she had first heard in 1969 or 1970, about when our water and our air would be too polluted in the natural environment for human consumption, and although she had scarcely believed those prophecies at the time, we are now buying water at the corner store and there are now oxygen bars for students and at casinos for staying awake.
Summary by Karen Drake
Speakers: Sam George, W. A. Derry Millar, and Nye Thomas Sam George, Ipperwash Inquiry
Sam George led off the discussion by noting that September 6, 1995 was the beginning of two journeys. The first was the spirit journey of his brother, Anthony O’Brien George, known as Dudley George, who was shot and killed that evening by an Ontario Provincial Police officer while occupying Ipperwash Provincial Park. Dudley was unarmed. The second was his family’s journey to learn the truth about Dudley’s death. The George family initially encountered resistance when trying to obtain legal counsel; they were turned down by numerous local lawyers. Finally, Delia Opekokew, a Cree lawyer from Saskatchewan, agreed to help. Subsequently, Murray Klippenstein and Andy Orkin were brought on board for the civil action. Sam attended throughout the trial of Ken Deane, and was granted standing to give a victim impact statement at the sentencing. After Ken Deane was found criminally negligent for the shooting of Dudley, Sam was asked by the press whether he was satisfied. His answer was “no”; although he had learned who shot his brother, he wanted to know who had put Ken Deane in a position to do so. The George family had wanted a public inquiry from the beginning, because it would provide a broader forum in which to obtain the truth about Dudley’s death. They initiated a civil action, but always maintained that they would drop it if a public inquiry were called. Finally, the McGuinty government established the Ipperwash Inquiry on November 12, 2003. Sam confided that it was not easy to go through the inquiry, but considered it a success, given a number of the recommendations that resulted from it. W.A. Derry Millar, WeirFoulds LLP; Lead Counsel, Ipperwash Inquiry
Derry Millar gave a sense of the magnitude of the public inquiry, noting that it lasted for 229 days, involved 140 witnesses, and that the public hearings spanned just over two years. Derry also provided a summary of Volume One of the report, which dealt with the fact-finding aspect of the inquiry. (a) Was the Provincial Government Prepared for the Occupation? The Inquiry answered this question in the negative. The provincial government should have known of the potential for an occupation of the park. When the Department of National Defence (DND) appropriated the Stony Point reserve in 1942, it promised to return it once it was no longer needed. Frustrated by the DND’s failure to fulfill its promise, members of the Kettle and Stony Point First Nation moved into the army camp adjacent to the park in July 1995. The provincial government took the position that it was a new government, and that the federal government should deal with the issue. Commissioner Linden found that although they were aware of the potential for an occupation, provincial government officials did not make sufficient efforts to identify the Aboriginal peoples’ historical grievances or to take steps to head off the occupation, such as appoint a mediator with relevant expertise. (b) Did the Provincial Government Respond Appropriately? The answer to this question was more nuanced. On the one hand, Commissioner Linden found that there was no evidence to suggest that any government official was responsible for Dudley George’s death. On the other hand, the provincial government pushed for a speedy end to the occupation, in contrast to the OPP’s wish to pursue a go-slow approach. The provincial government’s insistence on a quick end to the occupation is difficult to justify, given that there was no proven, substantial risk to public safety that would justify the urgency. According to Commissioner Linden, the imperative for speed foreclosed the possibility of initiating a constructive dialogue with the occupiers on ways to resolve the occupation peacefully. (c) Was there Political Interference in Police Decision-Making? The Commissioner found that there was no political interference in OPP operations and decision-making. However, the Commissioner did find that officials from the Ministry of Natural Resources (MNR) circulated unverified, inaccurate and extremely provocative reports about automatic gunfire in the park at government meetings. The MNR officials did not have the expertise to assess the reliability or accuracy of these reports, and they were not aware of the potential implications of passing this unverified information directly to the Interministerial Committee composed of political staff, civil servants, and seconded OPP officers, one of whom was in contact with the Incident Commander. This interaction created the appearance of inappropriate interference in police operations. (d) Did the OPP Respond Appropriately? In theory, the OPP’s plan to effect a peaceful resolution to the occupation, called Project Maple, was a good one. In practice, though, Project Maple suffered from at least two shortcomings. The first was the issue of communication between the OPP and occupiers. For instance, when the command unit marched toward the park on the evening of September 6, 1995, their purpose was merely to get the occupiers back into the park; they had no intention of entering the park themselves. However, they did not have a strategy in place to communicate this important message. They did not have a bullhorn, and there was no plan to use written messages. The second shortcoming was intelligence. Project Maple did not utilize the “classic” intelligence system, under which raw data is analyzed and verified before it flows to the Incident Commander. For example, the OPP concluded that the occupiers planned to leave the park and begin occupying neighbouring cottages, based on the fact that the women and children had begun leaving the park. In fact, their reason for leaving was that the next day was the first day of school. (e) Who is to Blame? The federal government, the provincial government, and the OPP must all assume some responsibility for failures that increased the risk of violence. The federal government was primarily to blame, given that it neglected the Kettle and Stony Point First Nation’s land grievances, which led to the occupation in the first place. The provincial government effectively foreclosed the possibility of initiating a constructive dialogue with the occupiers by failing to appoint a mediator or a negotiator, and by advocating for speed, rather than patience. The OPP should have developed an effective communication strategy, and implemented standard intelligence procedures. Nye Thomas, Director, Strategic Research, Legal Aid Ontario; Director of Policy and Research, Ipperwash Inquiry Nye Thomas provided a brief synopsis of the second volume of the report, which deals with policy recommendations. He noted that slow progress on land claims and treaty issues is the immediate catalyst for most major occupations and protests. Thus, Commissioner Linden recommends that the best way to avoid further confrontation is to develop fair and expeditious resolutions to land claims and treaty disputes. According to the report, Aboriginal occupations and protests are much more common than most non-Aboriginal Ontarians likely realize. Justice Linden’s key recommendation for improving the land claims process in Ontario is the establishment of a Treaty Commission of Ontario (TCO), which would not negotiate land claims or decide the meaning of treaties, but rather would have a mandate to assist the governments of Ontario, Canada and First Nations to negotiate settlements of land claims independently and impartially. The TCO would also have a mandate to work with First Nations organizations and educators to develop a comprehensive plan to promote general public education about treaties in Ontario. Commissioner Linden found that the experience of the Chippewas of the Kettle and Stony Point First Nation illustrates how the failure to educate Ontario citizens on the significance of treaty relationships can contribute to misunderstanding and conflict. For instance, the term “land claims” is the source of considerable misunderstanding among members of the public. It seems to suggest to many people that First Nations are asking governments to give them more land, but that is not the case. These claims ask governments to fulfill the treaty promises they have made to First Nations, and to compensate them for their failure to do so. Moreover, treaties are not, as some people believe, relics of the distant past; rather, they continue to have the full force of law in Canada today. As Commissioner Linden puts it, “all of us in Ontario, Aboriginal and non-Aboriginal, are treaty people.” In response to a question from the audience, Nye explained that the concept that we are all treaty people was initially articulated by Professor John Borrows. The report also recommends that the provincial government create a Ministry of Aboriginal Affairs, with its own minister and deputy minister, and its own budget. This recommendation has already been implemented; the Honourable Michael Bryant has been appointed to the position of Minister of Aboriginal Affairs. Nye touched upon a number of other recommendations, including the following:
The Recognition of Aboriginal Harvesting Customs
H.W. Roger Townshend, Olthuis, Kleer, Townshend In May 2007, the Ontario Court of Appeal decided two Aboriginal harvesting rights cases, Shipman1 and Meshake.2 Roger Townshend was counsel for the defendants in the Shipman case. Both of these cases involved the question of when can an Aboriginal harvester take resources outside the treaty or traditional territory of his/her First Nation? These are the first Canadian cases to consider this question, to the best of Roger Townshend’s knowledge. In Meshake, there was a kinship link to the local host First Nation. In Shipman, there was permission given by the local host First Nation. Roger stressed the central importance of hunting to the identity of Anishinabe men, and highlighted the following quote from Dr. Paul Driben:
In Meshake, the treaty was held to include shelter to those persons who had married into and had been accepted by a community. In Shipman, the Michipicoten had an ancient custom of sharing resources, and the treaty was held to include the custom of sharing, but the court was not satisfied that permission had been properly given in this case. In light of these cases, Roger urged the province of Ontario to negotiate the details of recognition of sheltering. Factors in coming within sheltering under the treaty rights of a local First Nation:
Questions for Ontario:
If the opportunity to negotiate these matters is not taken, they will continue to be litigated on a case by case basis, at great hardship to Aboriginal harvesters and First Nations, at great cost to the Court system, and to the detriment of relations between Ontario and First Nations. Case Comment on Whitefish v. Attorney General of Canada
Valerie A. Edwards, Torkin Manes Cohen Arbus LLP Valerie Edwards became involved in the Whitefish case due to her expertise in assessing damages. In a nutshell, the Whitefish Lake Band of Indians surrendered its timber rights to the Crown in 1886, on the basis that the Crown would sell them at a fair price and to Whitefish’s best advantage. Instead, the Crown licensed the rights for $316 or 1% of their actual value. The Band argues that the compound interest would now equal $23 million. The Crown has admitted its breach of fiduciary duty. The issue at trial was the an assessment of the nature and character of the Crown’s breach – was it a “Guerin” type breach entitling the Whitefish Band to damages quantified based on trust principles, and if so, whether Whitefish could claim compound interest as equitable damages on the sale proceeds it should have received. At trial, Wright J. determined that Whitefish was not entitled to equitable compensation; held that the proceeds which the Crown should have realized - $31,600 – would likely have been dissipated almost immediately; found that in law Whitefish was not entitled to compound interest as a component of equitable damages; and finally, that even if compound interest was generally recoverable, it could not be claimed against the Crown. The trial Judge adjusted $31,600 for inflation for the period 1886 to 1992, and then awarded simple interest on that amount from 1992 through to the date of trial. The Court of Appeal overturned the decision of the trial Judge. The Court of Appeal agreed that this was a Guerin-type breach, and found that the principles of Guerin4 and Canson5 apply. The Court went on to conclude that a Guerin-type breach attracts the trust principles, and that Whitefish was entitled to damages based on trust principles, and in particular, equitable compensation designed to restore Whitefish to the position the Band would have been in had the Crown not breached its duty as assessed at the date of trial. The Court of Appeal also held that compound interest was justified. Valerie described the longstanding judicial bias against awarding of compound interest, but said that in this case, interest is being awarded as damages, not as pre-judgment interest. The Court of Appeal rejected the speculative notion that the monies would have simply dissipated, but nonetheless refused to substitute a verdict, instead sending the matter back for a new hearing. The court will have to deal with the intractable problem of trying to determine “what would have or could have” happened 120 years ago. Other First Nations will encounter similar difficulties when they advance land claims of this antiquity. Is Whitefish a useful precedent? Yes, because the Ontario Court of Appeal in Whitefish held that in the absence of evidence to the contrary, “equity presumes that the defaulting fiduciary must account to the beneficiary on a basis most favourable to the beneficiary” [paragraph 102]. Counsel acting for First Nations in claims such as this one will therefore be able to argue that to the extent it is simply not possible to reasonably determine how trust monies may have been spent, due to a lack of evidence, equity requires that evidentiary ambiguity or speculation to be resolved in favour of the beneficiary, i.e., the First Nations. First, it is necessary to determine if you fall within Guerin (did the Crown have discretionary control over the beneficiary’s property) and attract trust principles; otherwise you are into a mixed/hybrid between trust principles and negligence. In summary, Whitefish is not a radical departure from existing aboriginal law principles as developed by the Supreme Court of Canada over the past 40 years. It essentially reaffirms the Guerin decision, clarifies the law concerning availability of compound interest as a component of equitable damages, and puts an end to any argument the Crown may have had to rely on common law or statutory bars against an award of interest as damages. It remains to be seen if this will be expanded into non-Guerin type cases or even non-Aboriginal cases, putting a foot in the door for compound interest.
What’s Next (and What’s Missing)? Proposals for Reform of the Land and Treaty Claims Process
Alan Pratt, Alan Pratt Law Firm - Dunrobin In his introductory comments, Alan Pratt mentioned that he chaired the first ever session on Aboriginal Law at this Institute, in January 1986. Alan said that decades of complaints from First Nations and practitioners regarding the specific claims process came to head within the past year or so, with the publication of two remarkable government reports: the first being the Senate Committee Report entitled “Negotiation or Confrontation: It’s Canada’s Choice” released in December 2006, and the second being the final report of the Ipperwash Inquiry, released in May 2007. Aboriginal people are not saying “we are not getting enough money for our land”; they are saying “we want our land”. The issue of potential violence has cast a huge shadow over land claim disputes. However, poverty is a much bigger social problem than potential violence. Alan mentioned, for example, the recent death of the little girls at Yellow Quill First Nation. The economic situation of Aboriginal peoples is a product of dislocation. It is a serious part of our national debt and it is measured in the billions. What are Specific Claims? They are breaches of fiduciary duty. They are the legacy of gross negligence by DIAND (the Department of Indian Affairs and Northern Development). Who supervises the Specific Claims process? DIAND. Who negotiates with First Nations? DIAND. Alan outlined all of the reasons why it is important for this process to be answerable to a different Minister. Alan believes that this the single most important element of specific claims reform, that there needs to be a Claims Commission or other independent body that will be involved in the specific claims process from the very beginning to the very end, assisting the parties at every step of the way to come to a just and expeditious settlement. This, and not the Specific Claims Tribunal, will be the ‘independent claims body’ that most First Nations have been demanding. Alan sincerely applauds the current federal government for undertaking to rectify the specific claims process. Although he is “under-whelmed” by Bill C-30, he recognizes that it is only the first of a four-point Action Plan, and hopes that bottlenecks, obstacles and conflicts of interest will be dealt with. The Specific Claims Tribunal: The Next Step in Specific Claims Resolution
John B. Edmond, Commission Counsel, Indian Claims Commission - Ottawa John Edmond started out with a disclaimer that he is only an observer, and that all he knows about Bill C-30, the Specific Claims Tribunal Act, is what was on its face when it was tabled in the House of Commons on November 27, 2007. John went over the history of this Bill, mentioning the “Specific Claims Action Plan” announced on June 12, 2007 by Prime Minister Harper, comprising the following four “pillars”:
A Canada – AFN (Assembly of First Nations) Task Force met over the summer and fall to develop the legislation to fulfill the promise of the first pillar, and the AFN - Canada collaboration is recognized in the preamble to the Act. If the tribunal to be created by this bill does come into being (an election before the bill’s passage being the only real impediment), it will do so over 60 years after such a body was first recommended. If the Specific Claims Tribunal Act is passed into law, it will be the first adjudicative body ever created in Canada to deal with these claims. John described in some detail what the legislation provides for in terms of how the Tribunal is to be organized, access to the Tribunal, the Tribunal process, and the transitional process. But in reference to the fourth pillar, on mediation, John observed that the legislation takes the emergency room approach rather than the preventative medicine approach. ADR (alternative dispute resolution) is to be brought in only when negotiations are broken down. There is barely any mention of mediation in the legislation, but there is a “decision tree” in the promotional materials. In this “decision tree”, when one reaches “Decision to negotiate?” there is no mention of ADR, even if one answers in the affirmative to the decision to negotiate. When one reaches “Agreement reached? No” – at this point the decision tree suggests bringing in ADR. John noted that mediation has been an important and productive function of the Indian Claims Commission for almost 17 years, facilitating many claim settlements between First Nations and Canada. The same Order in Council that directs the conclusion of the Commission’s Inquiry work, directs the Commissioners “to cease, by March 31, 2009, all their activities and all activities of the Commission, including those related to mediation.” However, a successor mediation body is apparently in development, and will likely identify a roster of non-staff mediators upon whom it can call as required, as it has very few core staff. The new body will take over the Commission’s mediation function by April 1, 2009. The Role and Goals of Ontario’s Ministry of Aboriginal Affairs Lori Sterling, Deputy Minister, Ministry of Aboriginal Affairs Lori explained that she had originally registered for this session on Aboriginal law as a participant, long before she knew that she would be taking the Minister’s place in delivering remarks and in fact before she knew she would be Deputy Minister. She has been in the Ministry since January 7th, and the Minister has been there since October 30th. The Minister’s topic was to have been “how do we get rid of lawyers in the Aboriginal area”, and Lori decided on a more nuanced topic: “how do we develop a more consensual approach”. She delivered a cook’s tour of Aboriginal rights issues, touching on Delgamuukw, Morris (the night hunting case), Sappier and Gray, Powley (a Metis case; instead of using the point of contact when Metis did not exist, the Court used the point of effective control), Lovelace, Okanagan (interim orders for advance costs), Little Sisters (not every Charter case can get costs; maybe it is the Aboriginal cases which are special), the duty to consult cases of Taku, Haida, Mikisew (even where treaty permitted taking up of land). Lori’s observation was that it has been the courts – not the Legislature or Parliament – that have been the primary change agent. She said she was struck by how much court decisions have influenced the field of Aboriginal affairs. But the pace is too slow, and the on-the-ground improvements are not there. Lori concluded that by and large Aboriginal rights have been upheld by the courts. There has been a bit of flip-flopping, for example in Marshall 1 and Marshall 2. Her question then was, how do you reconcile these court decisions with the socio-economic indicators and the Statistics Canada statistics that show the extreme poverty of Aboriginal people in Canada? On the other hand, Ontario has had a prosperous economy in the past 15 years. Is there any other way in approaching Aboriginal issues? Lori suggested adopting a more consensual approach, and de-legalizing the system. Courts should truly be a place of last resort. What can the Ministry do to make it a place of last resort? The preliminary thinking is that the Ministry will conceive of three temporary pillars, described as the relationship, the social and the economic development pillars. On the relationship side, the Minister has been visiting northern communities, including ice fishing at midnight. He went to Caledonia. At the moment he is talking to leaders at KI. On the economic side, following from the Linden (Ipperwash Inquiry) report, there will be the creation of a Relationship Fund. Consideration is being given to resource benefit sharing. The province is investing $6 million in the De Beer mining project. On the social side, Lori acknowledged being not knowledgeable enough yet to say what the Ministry should do. In her concluding comments, she said that the legal lens is a telescopic lens, maybe even a microscopic lens, and that we must start looking at Aboriginal issues with a much broader view. It is important to tackle the social problems, and to have less reliance on lengthy and costly judicial proceedings. In the short time for questions and answers, Roger Townshend said he was heartened by her “full and fair reading of the Aboriginal jurisprudence”. However, he said that after Morris, MNR Ontario continues to prosecute people for night hunting. “We shouldn’t have to litigate that again – let’s stop”. * Jane Mulkewich has just finished her law degree at the University of Western Ontario and will begin articling in September 2008 as part of the duty counsel program for Legal Aid Ontario at the courthouse in Milton. 1 R. v. Shipman, 2007 ONCA 338, May 3, 2007. |
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Civil Litigation Jeffrey Radnoff*
In theory, a motion for security for costs can protect your client from tenuous claims where it may be unlikely that your client, after expending substantial legal fees and expenses, will ever be reimbursed for its costs. However, over the past number of years, the courts in Ontario have made it increasingly difficult to obtain such an order. A recent decision of the Superior Court of Justice indicates that you may not get security for costs if there is reciprocal judgment enforcement legislation. In Liu v. Daniel Executive (Canada) Holdings Corp.,1 the defendant was sued by a plaintiff who was resident in British Columbia. The plaintiff owned shares in company that owned property in British Columbia. The plaintiff agreed that the B.C. property would be enforceable against possible costs awards and that the company, controlled by the plaintiff, would not transfer or allow any encumbrances to be imposed on the shares owned by the plaintiff. The Court found that, although the plaintiff did not directly own any assets in British Columbia, it controlled assets with sufficient value to satisfy an order for costs. Plaintiff’s counsel undertook that the plaintiff would not oppose enforcement proceedings on behalf of the company that owned the property. The court, citing the decision of Pharand v. Middlebrook,2 stated that the real issue was whether a creditor under an Ontario judgment for costs could easily enforce that judgment against the debtor who does not have any assets in Ontario, but has assets in another jurisdiction. If the potential debtor has sufficient assets in that jurisdiction to satisfy the debt contemplated, then there is no need for an order for security for costs. This decision is consistent with the line of authority indicating where there is reciprocal enforcement legislation, the court would not order security for costs. In Liu, the court also required that the plaintiff provide assurances that the assets would be available for execution and that it would not oppose execution in the future. The court thus expanded the exception to an order for security for costs for ownership of assets to a situation where the plaintiff only controls the asset. The nub of the issue is one’s interpretation of Rule 56. A defendant with a costs order can always sue to recover costs in a foreign jurisdiction. But is not one of the purposes of Rule 56 to avoid such additional aggravation and expense to collect costs, especially where a defendant has already been through the litigation process? Further, to the extent that the non-resident controls property in another jurisdiction, would it not be more appropriate (and no more burdensome for the plaintiff) to require that the plaintiff post some type of security in the jurisdiction it commenced the proceeding? In applying the principle that reciprocal enforcement legislation will defeat an order for security for costs, our courts are also failing to consider the following questions:
The line of authority holding that reciprocal enforcement legislation is relevant to Rule 56 is consistent with the reluctance of the judiciary to make an order for security for costs, presumably on the basis that such orders stifle meritorious litigation. However, there is always discretion not to order security based on the merits of the action and, as well, whether the impecuniosity of the plaintiff has been caused by the conduct of the defendant. Indeed, such safeguards seem to be more appropriate than accepting that the reciprocal enforcement legislation will efficiently assist a defendant to collect a costs award. * Jeffrey Radnoff, Radnoff Law Offices, (416) 203-3641.
1 [2006] CarswellOnt 8153 (S.C.J.). |
This article originally appeared in the OBA Civil Litigation Section Newsletter, Volume 16, No. 3 - May/Mai 2008.
| Entertainment, Media and Communications
The CRTC Releases its Wholesale Regulatory Framework Decision
Benjamin D. Rovet*
This article originally appeared in the OBA Entertainment, Media and Communications Section Newsletter, Volume 17, No. 3 - March/Mars 2008. On March 3, 2008, the CRTC released its decision establishing a revised regulatory framework for wholesale services and a modified essential services test - Telecom Decision CRTC 2008-17, Revised regulatory framework for wholesale services and definition of an essential service. The proceeding leading to the decision was initiated by Telecom Public Notice CRTC 2006-14, Review of the regulatory framework for wholesale services and definition of essential service (November 9, 2006). The proceeding was conducted through most of 2007 and included an 11-day public hearing in October. In the proceeding, two broadly different regulatory regimes were proposed. The Incumbent local phone companies (the ILECs), such as Bell Canada, and the Competition Bureau argued that the scope of mandated access to ILEC wholesale services and facilities should be significantly curtailed in favour of a regime that supported end-to-end facilities based competition only. Most new entrant carriers, including MTS Allstream, Primus Canada, Cybersurf and Distributel, argued that the CRTC should continue and rationalize its current approach to wholesale services. Since the introduction of facilities-based long-distance competition in Telecom Decision CRTC 92-12, the CRTC has mandated that the ILECs provide competitors access to bottleneck services. In that decision, the ILECs were required to file access tariffs to support this requirement. In the local competition decision, Telecom Decision CRTC 97-8 (Decision 97-8), the CRTC developed a definition of essential facilities to help determine which ILEC facilities should be subject to mandated access. In Decision 97-8, the CRTC developed the following definition for an essential service or facility:
In Decision 97-8, the CRTC found that only a few ILEC services and facilities qualified as essential services. However, the CRTC recognized there were a number of services and facilities, that while not meeting the test of essential service, had only a very limited competitive supply and were important for CLECs to have access to in order to compete effectively in the short term. These services included local loops situated in large urban areas and transiting services. The CRTC classified these services as near-essential services and ruled that these services should be mandated and priced like essential services for a period of five years.1 On March 22, 2006, the Telecommunications Policy Review Panel published its report (the TPR Report). A key theme of the TRP Report is that greater reliance should be placed on market forces rather than regulation to promote the development of competing networks and new services. It recommended that the CRTC curtail the availability of mandated ILEC-supplied wholesale services, except for essential services and interconnection services. On December 14, 2006, the Governor In Council issued a policy direction to the CRTC. Among other directions, it called upon the CRTC to complete a review of its regulatory framework regarding mandated access to wholesale services to determine the extent to which mandated access to wholesale services that are not essential should be phased out. The review was to take into account the principles of technological and competitive neutrality, the potential for incumbents to exercise market power in the wholesale and retail markets in the absence of mandated access, and the impediments faced by new and existing carriers seeking to develop competing network facilities. Definition of Essential Service In Decision 2008-17, the CRTC replaced the definition set out in Decision 97-8 with the following:
In applying the definition of an essential service, the CRTC noted that it is concerned about whether a carrier can use its market power over a facility’s supply in the upstream market to substantially lessen or prevent downstream competition. However, the CRTC rejected the Competition Bureau’s approach that in order to be found essential the firm controlling the facility in question must be dominant in both the upstream (wholesale) and downstream (retail) market(s). The CRTC stated that it would use the standard of reasonably efficient competitor to determine duplicability. However, the CRTC stated that it would not utilize the standard of a cable company as the appropriate benchmark, given the monopoly conditions under which its network was constructed. Rather, the standard would be whether another competing firm, acting in a reasonably efficient manner, could enter under prevailing market conditions using self-supplied or third-party facilities. In analyzing whether the functionality of a service or facility can be duplicated, the CRTC stated that practicality of duplication relates to the economic ability of competitors to self-supply or use a third-party supply and feasibility of duplication relates to legal, technical or other non-economic impediments that would prevent the competitor from utilizing alternative sources of supply (including self-supply). Finally, in considering the effects of competition in a downstream market, the CRTC stated that there must be a ‘substantial’ lessening or prevention of competition. Without this modifier, there would be a risk that a facility could erroneously be deemed essential when the effects of mandated access on a downstream market are immaterial. The CRTC stated that the definition would be applied on a service-by-service basis and applied on a national basis. Regulatory Framework for Wholesale Services The CRTC classified existing wholesale services into six categories: essential; conditional essential; conditional mandated non-essential; public good; interconnection and non-essential subject to phase-out. The CRTC only found two services related to subscriber listings (basic listing interchange file and directory file services) met the definition of essential service. However, it also classified a number of important access services as conditional essential services. Conditional essential services are services that the CRTC determined conditionally meet the essential service definition, but in the future these services might no longer qualify due to technological advances or industry changes. Services categorized as conditional essential include unbundled local loops, low-speed digital access facilities and ADSL access service. The CRTC found that there are presently no wholesale alternatives to these services and that withdrawing mandated access would likely result in a substantial lessening of competition in the relevant downstream markets. These services would be classified as conditional essential until it is demonstrated that functionally equivalents alternatives are sufficiently present. The CRTC also classified a number of important services as conditional mandated non-essential. These are services that do not meet the criteria for essential services, but will be continued to be mandated for specific reasons. Changes in market conditions in the future could result in it no longer being necessary to mandate any or all of these services. These services include co-location and related services and aggregated ADSL and cable company third-party Internet access service. The CRTC ruled that co-location services are necessary for CLECs to provide retail local services via unbundled local loops. These services will continue to be mandated so long as the CRTC continues to mandate wholesale services that need to be supported by co-location. The public good category is comprised of services that the CRTC has determined provide an important social benefit and should be mandated. They include emergency services and support structure services. Interconnection services are services that the CRTC has determined are required to permit the interchange of traffic within the public switched telephone network and therefore should be mandated. These include services that enable local interconnection and long-distance interconnection. The CRTC ruled that most existing interconnection services, including transiting and billing and collection, will continue to be mandated. The CRTC did not accept the Competition Bureau’s proposal to only mandate interconnection services that support vertically integrated carriers, but not mandate those services used by stand-alone long distance providers. Finally, the CRTC classified a number of services, about one-third of the current mandated wholesale services, as non-essential services subject to phase-out. These services include fibre-based access services and low-speed and fibre-based transport services (i.e., services that provide digital transport paths, typically between ILEC central offices). The CRTC found there is a high-incidence of competitor self-supply or alternative supply by third parities. These services will be phased out in either three or five years. Conclusion Decision 2008-17 is the first significant decision, since the release of the Policy Direction, which alters the trend towards deregulation of ILEC services. It also represents a decisive rejection of the view of telecommunications competition and regulation put forward by the Competition Bureau and endorsed by other competition law advocates. This is the first major regulatory defeat by Bell Canada and other ILECs since the TPR Report. It is expected that aspects of this decision will be appealed. * Benjamin D. Rovet is Counsel at Cognition LLP, (416) 889-0314.
1 In Local competition: Sunset clause for near-essential facilities, Order 2001-184, the CRTC extended the sunset period for near-essential services indefinitely due to lack of alternative supply. |
| Health Law
Case Comment – Potential Liability for Voluntary Status Joaquin Zuckerberg*
This article originally appeared in the OBA Health Law Section Newsletter, Health Matters, Volume 17, No. 2 - February/Février 2008. In the latter case, Dr. Stefaniu was the attending physician of an involuntary patient. She made the patient voluntary on December 5, 1996. The patient then left the psychiatric facility and on January 24, 1997 murdered his sister. The Ontario Superior Court of Justice found Dr. Stefaniu to have been negligent in that she failed to meet the standard of care of a psychiatrist practicing in a general in-patient psychiatric unit in a community hospital when she had made him a voluntary patient. The respondents were awarded damages in the amount of $160,000 and additional damages in the amount of $12,000, which had been agreed upon between the parties before trial. The Court of Appeal confirmed the judgment of the Superior Court and leave to appeal to the Supreme Court of Canada was denied. Stefaniu raised concerns among both the medical profession and patient advocates. The former pointed to the fact that the case appeared to lower the threshold for finding legal liability for psychiatrists and ignored the issue of causation (the link between the murder and the physician’s decision to make the patient involuntary), particularly given the length of time between these events. The patients’ bar was concerned that the decision may make physicians more reluctant to release or make patients voluntary for fear of legal liability. The hospital claimed that Dr. Malla, as the head or leader of the multidisciplinary team, failed to properly assess the risk that the patient would commit suicide; he failed to communicate that elevated risk to the members of his team; and he failed to ensure the patient’s safety during the 24 hours after admission (when the patient eloped) and before he would receive treatment.
The cross-claim against Dr. Malla was dismissed, even though, arguably, there was a stronger causation argument in this case than in Stefaniu. Nor is it easy to reconcile these two opposite decisions on the basis of the other facts of the two cases. Stefaniu and Malla fail to provide clear guidance as to the issue of when a physician will be found liable for the actions of a voluntary patient. * Joaquin Zuckerberg is Legal Counsel for the Ontario Consent and Capacity Board and can be reached at (416) 212-6826. Note: Any views or opinions expressed in the article are those of the author and do not represent the views of the Consent and Capacity Board. |
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Information Technology and E-Commerce Andrew S. Nunes*
Want to know whether the hundreds of music files downloaded from the Internet and stored on your home computer by your teenager are going to land you in jail? Or whether keeping your license to practice law will require you to erase the season finale of House that has been “time-shifted” into the bowels of your television? Well, it’s long overdue, but these issues are finally being addressed by Parliament. On June 12, 2008, the Minister of Industry released for first reading Bill C-61, An Act to Amend the Copyright Act - an attempt to bring Canada’s copyright regime into the 21st century. For the most part, this Bill is designed to deal with the problems that digital technologies (including the Internet and digital reproductive and storage technologies) create for copyright owners, users, and middlepersons. In particular, this Bill would: (1) develop a fair dealing regime within which copyrighted material could be digitally copied and stored for personal use, (2) implement Canada’s international obligations under the World International Property Organization Copyright Treaty (WCT) and the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT), (3) clarify what educational institutions, libraries, etc. can do with respect to digital content, (4) limit the liability of Internet service providers and website hosting companies for copyright infringements that occur through their services, and (5) amend the system of statutory damages for copyright infringements committed by individuals. Fair Dealing for Individuals The Bill proposes a system of fair dealing within which individuals could store and copy digital content for personal use. S. 17 of the Bill would allow individuals to reproduce a work or other subject matter (videos, musical works, etc.) onto another medium or device, provided the work is not an infringing copy and was legally obtained, the work was not rented or borrowed, the individual owns the device on which it is reproduced, no Technological Protection Measures (TPMs) were circumvented, only one copy is made for every device the individual owns, the copy is made for private purposes, and the original is not given away, rented-out or sold. As to that episode of House, individuals would be allowed to record or fix any broadcast signal for future enjoyment provided that the above conditions were met and the individual kept the recording no longer than was necessary to enjoy it at a convenient time. As always, these rights would be subject to any agreement with the copyright holder and/or the service provider who supplied the work or other subject matter (e.g., a video-on-demand service contract or an Internet download contract). WCT, WPPT, TPMs, RMI and P2P File Sharing The implementation of the WCT and WPPT led to some of the Bill’s most controversial proposed changes. First, pursuant to Articles 11 and 12 of the WCT and Articles 18 and 19 of the WPPT, the Bill would replace s. 41 of the Copyright Act with a provision prohibiting the circumvention of TPMs and the removal of Rights Management Information (RMI). The Bill provides that, regardless of whether the circumventing act infringes copyright, individuals can not circumvent, offer services towards circumventing, or manufacture, import or provide a product designed to circumvent a TPM. Furthermore, individuals can not remove RMI when they know or ought to know that this would facilitate or conceal an infringement of the owner’s copyright or adversely affect the owner’s right to remuneration in the case of sound recordings. The copyright owner would also have remedies against a person who subsequently sells, rents, distributes or imports a sound recording where the person knows or should have known that the RMI has been removed. The Bill makes exceptions for circumventing TPMs for the purpose of national security, interoperability of computer programs, encryption research, security testing, enforcement of other statutes, and persons with perceptual disabilities. Second, pursuant to Chapter II of WPPT, Bill C-61 clarifies that the rights of performers in their performances and any recording thereof, and the rights of the maker of a sound recording, includes the right to communicate the recording in a manner that allows a member of the public to access it from a place and at a time individually chosen by that member of the public. This amendment was designed specifically to ensure that making musical works available on the Internet would be an infringement of copyright and entitle the copyright holder to equitable remuneration. Fair Dealing for Educational Institutions, Libraries, etc. Sections 18, 19 and 20 of the Bill would create a digital fair dealing regime for educational institutions and libraries. Under s. 18, an educational institution could communicate a copyrighted “lesson” to students enrolled in courses at that institution over the Internet and create a fixed copy of the “lesson”. This is intended to help facilitate on-line distance learning. However, this right is subject to the qualifications that the educational institution must destroy any fixations within 30 days of the end of the course and take steps to ensure that the copyrighted works are not fixed, copied, or communicated outside of the course by the students. Also, an educational institution’s copying license would be deemed to include the right to make digital copies of paper documents and to communicate them over the Internet for educational and training purposes and for the recipients of the document to print a single copy. S. 19 would allow libraries, archives and museums to make copies of works in obsolete technological formats. Under s. 20, libraries, archives and museums could send digital copies of works to other libraries, but only if they take steps to ensure that the receiving library, archive or museum does not allow its patron to make a reproduction, communicate the digital copy, or use the digital copy for more than five business days. All of these rights would be subject to an agreement between the library and the copyright holder. ISPs and Website Hosts Bill C-61 also takes steps to clarify the liability of Internet service providers (ISPs). Under s. 21 of the Bill, ISPs would not be liable for copyright infringement for providing the means to reproduce or communicate a work over the Internet, even where content is cached. The Bill would create a “notice-and-notice” provision under which ISPs, when given notice of an infringement within their networks, would have to forward the notice to the network location named in the claim and keep records relating to the identity of the possessor of that network location. Also, under s. 21 of the Bill website hosts would not be liable for infringements that occur in the content of the websites they are hosting, unless the host knows of a court ruling to the contrary. Statutory Damages Lastly, where a copyright holder elects for statutory damages, s. 30 of the Bill would alter the amount of damages that could be claimed against an individual who infringes copyright. Whereas the Copyright Act currently allows for statutory damages between $500-$20,000, the Bill creates a different provision for the infringement of copyright by an individual for personal purposes: a fixed sum of $500. However, the fixed sum for statutory damages would not apply if the infringement was made possible by the circumvention of a TPM. Digital Millennium Copyright Act Comparisons There have been many comparisons highlighting the similarities between this Bill and the corresponding American legislation - the Digital Millennium Copyright Act (DMCA). The similarities between these pieces of legislation are not surprising as both the DMCA and Bill C-61 are designed to implement the same international treaties and are addressing the same basic technological developments. However, it is interesting to note that Bill C-61 differs from the DMCA in several important respects. In some respects, the Canadian version is stricter than its American counterpart, while in others, it is softer. For instance, the DMCA requires that ISPs take down sites for which they have received notice of a possible claim; Bill C-61 merely requires that ISPs pass on the notice of infringement. Here, Canada comes up softer than the US. Also, Bill C-61 is less detailed than its American counterpart and leaves many of the difficult choices to be made by regulation. Industry Response The response from industry to these proposed amendments has been generally positive yet cautious. Industry groups have stressed the need for balance between the reproductive abilities of modern technologies and the need to ensure that creators are adequately compensated for their work. In a press release on the day the Bill was introduced, the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) stressed that Canada is falling behind other WPPT signatories in its protection of performers rights and that this Bill was a good first step towards implementing Canada’s international obligations. The Business Software Alliance, an international organization created to fight software theft, issued a press release supporting the Bill that stressed the economic losses of failing to enforce copyright. Specifically, they argued that even a small reduction in software piracy would create thousands of jobs and millions in tax revenue. However, the Songwriters Association of Canada, while supporting the Bill, noted that it is not clear how these rights will be enforced. Conclusion Fundamentally, the debate around this Bill is about who needs protection from who. Industry claims it needs to be protected from modern technologies and the prodigal Internet media archivists that these technologies favour. Consumers claim they need to be protected from greedy big businesses that are trying to take away a “right” that has, up until now, been enjoyed relatively unfettered in Canada. This Bill appears to be an attempt to strike a balance. Unfortunately (or fortunately), it is doubtful that this Bill will get anywhere before another election. So, we will have to wait to see how closely the next round of proposed amendments resemble Bill C-61 in order to see whether the legislators feel that the right balance has been struck. In the meantime, while we continue to wait for the government to pass digital copyright amendments, Canada will continue to fall ever further behind the times. * Andrew S. Nunes is a Partner in the Business Law Department at Fasken Martineau DuMoulin LLP in Toronto where his practice focuses on information technology related matters. With assistance from Brendan Gray. |
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Insurance Law Leased Vehicles and New Commercial Auto Insurance Wordings
New Forms Address Vicarious Liability of Lessors and Lessees Randall J. Bundus*
The O.E.F. 98B endorsement is technically a reduction of coverage, but is, in reality the maintenance of the status quo, under which the coverage on the Non-Owned Auto Policy is excess of the primary O.A.P. No. 1 coverage available to the lessee or driver. The endorsement provides coverage to partners, officers or employees of the Insured for the new vicarious liability on renters under short-term (30 days or less) vehicle rentals, if such vehicles are rented in the business of the Insured stated in the application. This insurance is excess of the underlying coverage available to the Insured or the partner, officer or employee of the Insured. Underlying coverage includes any motor vehicle liability insurance that is required to respond to the liability of the driver or lessee of the rented automobile. The O.E.F. No. 98A requires the signature of both the named insured and excluded driver and the O.E.F. No. 98B requires the signature of the Named Insured. III. O.E.F. No. 110 Reduced Coverage for Lessee or Drivers of Leased Vehicle Endorsement The new O.E.F. No. 110 is for use only with the Standard Excess Automobile Policy S.P.F. No. 7 issued to automobile lessors. It maintains the S.P.F. No. 7 as an excess policy and limits the coverage of the S.P.F. No. 7 that is available to the lessee and driver. Without the O.E.F. No. 110 attached to the S.P.F. No. 7, the lessee or driver of a rented or leased vehicle would be entitled to the full limits under the leasing company’s S.P.F. No. 7. The O.E.F. No. 110 limits the coverage available to the lessee and driver under the S.P.F. No. 7 to $1 million (or a greater amount as set out in the endorsement) less any first loss motor vehicle liability insurance, any underlying excess insurance, insurance that is required to respond to the liability of the lessee, and insurance that is required to respond to the liability of the driver. In virtually all cases, no coverage will be available to the driver or lessee under an S.P.F. No. 7 policy to which the O.E.F. No. 110 is attached. This endorsement requires the signature of the Named Insured. IV. O.E.F. No. 120, Reduction of Coverage for Lessee or Driver of Leased Vehicle Endorsement The new O.E.F. No. 120 is for use with the Lessor’s Contingent Auto Policy, S.P.F. No. 8, and provides that the coverage under the S.P.F. No. 8 will be available to the Named Insured only. No other person, whether lessee, driver, or other, is entitled to any coverage under the policy to which this endorsement is attached. This endorsement requires the signature of the Named Insured. V. Conclusion As the new forms are for use on or after January 1, 2008, in many cases they will not come into effect for a policy until steps are taken to have them added to the policy. Generally, this will occur at the time of renewal. * Randall J. Bundus, Vice-President, General Counsel and Corporate Secretary of the Insurance Bureau of Canada. |
This article originally appeared in the OBA Insurance Law Section Newsletter, Volume 18, No. 2 - January/Janvier 2008.
| Privacy Law Recent Cases Illustrate Polarity of Privacy Rules for Litigants Dan Michaluk*
Juman v. Doucette is the Supreme Court of Canada’s most recent significant statement on the undertaking of confidentiality owed by a party to litigation. Issued in January 2008, it is a decision that favours a strict approach to shielding information contained in unfiled discovery transcripts and productions. Once that material is filed in court, however, the open courts principle demands a presumption at odds with individual privacy, which is currently not mitigated by our Ontario rules. This was recently affirmed in Moore v. Bertuzzi, a December 2007 decision of the Ontario Superior Court of Justice. What’s disclosed in the discovery room stays in the discovery room In Juman v. Doucette, the Supreme Court of Canada unanimously held that a litigant’s undertaking of confidentiality prohibits a party from making a bona fide report of criminal conduct to law enforcement without seeking court approval. The underlying action was a negligence claim against a day care and day care worker, which was filed after a child suffered a seizure while under care. The police investigation was ongoing, but the police had not yet laid charges by the time the day care worker’s examination for discovery was scheduled. The day care worker filed a motion to request an express restriction on disclosure of her transcript and the Attorney General brought a competing motion seeking to vary the implied undertaking to allow disclosure of the discovery transcript to the police. The chambers judge held that both motions were premature, but declared that the A-G and the police were under an obligation not to cause the parties to violate their undertakings without the day care worker’s consent or leave of the court. The Court of Appeal allowed an appeal of this order. It acknowledged the recognized exception to the undertaking when disclosure is necessary to prevent serious and imminent harm, and then went further to permit the disclosure of suspected crimes to law enforcement without court approval in non-exigent circumstances. Binnie J., writing for the majority of the Supreme Court of Canada, favoured the chambers judge’s approach. He held that giving litigants a discretion to make bona fide reports to law enforcement was a recipe for conflict:
More generally, Binnie J. made a number of statements that favour a high standard for relief from the implied undertaking rule -- a stance he said is justified because examinees are subject to compelled testimony. He said:
In Ontario, a litigant’s privacy interest in discovery transcripts and other unfiled productions is protected by Rule 30.1.01, but the analysis is the same. In fact, Binnie J. considered the limited Ontario jurisprudence in endorsing a rigorous undertaking over the protection of the public interest in the detection and prosecution of crimes. Privacy protection is relinquished once materials are used in a proceeding Once discovery transcripts are used as evidence in a proceeding, the presumption flips because of the open courts principle – a principle that demands all court proceedings be open to the public. This was recently affirmed in Moore v. Bertuzzi, where Master Dash rejected a request for an order directing the plaintiffs not to file the entire transcripts of an examination in support of its motion to compel answers to questions refused on discovery. The discovery dispute arose after hockey player Todd Bertuzzi and a representative of the Vancouver Canucks were examined in a highly publicized action brought by Steve Moore and his family for damages arising out of an alleged on-ice assault by Bertuzzi. Soon after the examinations, the plaintiffs brought a refusals motion and notified the defendants of their intention to file the discovery transcripts in their entirety. In response, the defendants moved for directions. They said that portions of the transcript could be read aloud in open court, but that filing the entire transcript would prejudice the defendant’s right to a fair trial. Master Dash first held that a party who intends to refer to a transcript of evidence at a hearing is entitled to file the entire transcript, even if filing the entire transcript is not essential to the motion. This is because Rule 30.1.01(05) expressly limits the deemed undertaking rule to evidence filed with the court and Rule 34.18 contemplates the filing of whole transcripts unless the opposing party consents. Since the plaintiffs wanted to file the entire transcripts, Master Dash held that the defendants were essentially requesting a sealing order, which he could only grant upon satisfaction of the Dagenais/Mentuck two-step test. He then rejected the defendants’ argument that their right to a fair trial justified the requested restriction, stating that their case for a restriction based on prejudice to fair trial rights was bald and speculative. Master Dash’s brief statement on the potential for harm to the discovery process itself is more significant given our comparison with Juman v. Doucette. Although he noted the potential for such harm, he discounted it based on the clear policy of openness favoured by the rules:
Ought there be a middle ground? While the importance of the open courts principle is beyond dispute, one may argue that the policy embedded in our rules and recognized in Moore v. Bertuzzi might be replaced with a necessity-based norm. Any move towards electronic filing and access to court materials would also weigh in favour of careful reconsideration of the existing framework. * Dan Michaluk from Hicks Morley acts as an advocate on behalf of management in a variety of employment and non-employment matters and has a special interest in information and privacy law, (416) 362-1011. |
This article originally appeared in the OBA Privacy Law Review, Eye on Privacy, Volume 8, No. 3 - May/Mai 2008.| Public Sector Lawyers Administrative Monetary Penalties and Criminal Offences
The Challenge of Maintaining Clear Boundaries
Arghavan Gerami*
This article originally appeared in the OBA Public Sector Lawyers' Section Newsletter, Volume 6, No. 2 - June/Juin 2008. Though AMPs are considered an attractive enforcement tool for regulators, clear parameters must be set out in legislation to ensure they are used appropriately to avoid an overlap between AMPs and criminal offences. The benefits gained by employing AMPs are only justifiable up to a certain point; if the balance tilts too far in the direction of criminal law, necessary procedural safeguards must be put in place and important constitutional and due process issues must be taken into consideration. The first section of this paper will take a look at AMPs and their purpose, setting out some of the common justifications offered by regulators for reliance on this regulatory tool. It will then discuss both the challenge and the importance of maintaining a proper boundary around AMPs, and preserving a clear distinction between civil and criminal regulation (between AMPs and criminal offences). 1. Administrative Monetary Penalties (AMPs): What is the Attraction? Administrative monetary penalties are a form of civil penalty imposed by an administrative body or a regulator against individuals or corporations for failure to comply with a specific legal requirement. AMPs are “negotiated or imposed in the shadow of the formal legal system”; they are often defined in legislation or regulations, but are imposed without intervention by a court or a tribunal.2 The person or corporation must pay the prescribed amount of penalty, but there is usually the possibility of appealing to the tribunal or an impartial adjudicator with expertise in the particular area. AMPs have been described as the “teeth of the regulatory regime” because they can be quickly imposed in a wide range of areas and covering a spectrum of interests, including environmental and consumer protection.3 The fines imposed can have a preventative, deterrent or prospective purpose, but are not supposed to be punitive,4 in order to avoid infringement in t |