Class Action Suit Filed Against RCMP for Infringement of Constitutional Rights at Fairy Creek

A class action lawsuit was filed yesterday, March 8th, against the RCMP by two media professionals. They’re seeking to hold the RCMP accountable for breaching their Charter rights, and the constitutional rights of hundreds of other individuals at Fairy Creek. The suit names the federal government and notes the Crown’s liability for wrongful conduct by Members or Officers of the RCMP.

“Our case aims to demonstrate that in its enforcement of an injunction order, the RCMP infringed on the constitutional rights of members of the public at Fairy Creek—rights that are protected under Canada’s Charter of Rights and Freedoms,” says Halla Ahmed, an attorney at Branch MacMaster LLP.

The Notice of Civil Claim asserts that the RCMP exceeded its legal authority infringing on Sections 2, 7, 8 and 9 of the Charter. The plaintiffs are represented by Branch MacMaster LLP and Arvay Finlay LLP, law firms known for their work in class actions, constitutional, and public law.

Representative plaintiffs, Arvin Singh Dang, a professional photographer and teacher, and Kristy Morgan, a film producer, were asked to document at Fairy Creek when they and hundreds of others were subjected to unlawful tactics by the RCMP’s Community-Industry Response Group (C-IRG).

The claim alleges that fundamental rights were breached, including freedom of the press, freedom of peaceful assembly, and the right to life, liberty and security of the person.

Mr. Dang, Ms. Morgan and others were targeted under the C-IRG unit’s punitive exclusion zone policy where Mounties arbitrarily arrested, and detained peaceful members of the public and the media without just cause or reasonable grounds. In some cases, the excessive force resulted in serious injury.

The 26-page claim describes RCMP officers' use of a “catch-and-release” policy where hundreds of individuals who had not breached the injunction order were detained or arrested. Often, law-abiding citizens were held for extended and unreasonable lengths of time without charges being laid. Mounties did so in unsafe situations, or in areas far removed from Fairy Creek. It’s believed that of the almost 1,200 arrests at Fairy Creek, most were released without charge.

The injunction order still in place prohibits certain actions within a designated area in Fairy Creek, but does not prohibit access to the entire area. Exclusion zones described as “large, militarized areas” were set up that denied the public access to areas within Fairy Creek The RCMP is said to have arbitrarily and spontaneously expanded and moved exclusion zones resulting in people being forced, sometimes permanently, to abandon personal belongings, equipment and vehicles. On July 20, 2021, in response to RCMP’s restriction of media access, Supreme Court Justice Thompson said, “In short, these RCMP blockades are unlawful.”

“We believe the BC Supreme Court Injunction intends to balance the interests of logging company, Teal Cedar, with the public’s right to freely access roads and trails in Fairy Creek as they can in other areas of British Columbia. The public still maintains the right to assemble and engage in lawful protest, and the media has the right in Canada to document such events.” says David Wu, an attorney at Arvay Finlay LLP.

The lawsuit will introduce evidence to support allegations that there were extensive infringements by the RCMP upon the rights of media and members of the public. Evidence will be introduced that attests to the police directing and authorizing the use of excessive force or violence, herding individuals into exclusion zones in the practice of “kettling,” blocking access to forest services roads, preventing medical treatment, and indiscriminately using pepper spray on bystanders including removing COVID face masks to do so.

It is expected that many individuals who were impacted by RCMP conduct will be part of the proposed class action lawsuit. More information about the lawsuit is available here.

“The RCMP has an opportunity to correct its course to ensure that its conduct aligns with the Canadian Charter and that unconstitutional policies are not used in the future,” says Wu.

Breach of fiduciary duty established for payments to Band Councillors

On October 28, 2022, the BC Supreme Court found that the long-time councillors of Peters First Nation were in breach of their fiduciary duty for, among other things, employing themselves as band employees and setting their own remuneration, paying themselves to attend meetings, paying themselves lump sum amounts for travel and telephone expenses, and determining their own entitlement to certain funding.

This decision is different in scope and focus from previous fiduciary duty cases in the Band governance context, which usually focuses on one or two specific transactions. In this case, the plaintiffs took issue with broad systemic failures in how the councillors remunerated or paid themselves over many years, including failures to adhere to the Band’s own bylaws in regards to conflicts of interest.

The Court not only made declarations that the defendants breached their fiduciary duties to the Band, it also ordered the disgorgement of funds that the defendants paid themselves for meetings, honouraria and expenses from funding provided by Kinder Morgan for having the Trans Mountain pipeline run through the reserve. Lastly the Court ordered punitive damages against the defendants.

This case will be of interest to other Bands beyond Peters First Nation. The case highlights the importance of creating express guidelines in regards to how councillors are remunerated or reimbursed, and strictly adhering to such guidelines.

David Wu and Caroline North of Arvay Finlay represented the plaintiffs in this action. The decision can be found here: Genaille v Peters First Nation, 2022 BCSC 1890

Impacts on Indigenous communities critical in sentencing

On August 16, 2022, the Court of Appeal released R. v. Ellis, 2022 BCCA 278, a highly anticipated decision relating to the sentencing of low-level fentanyl traffickers who traffic to support their own addiction.

Informed by expert evidence, the Provincial Court in this case departed from the established range for fentanyl trafficking offences established by the Court of Appeal finding that there had been a “fundamental shift in societal understanding” to render the sentencing range inapplicable for the accused and for people like her. The Provincial Court sentenced the accused to 12 months probation with minimal conditions.

The Court of Appeal found several errors in principle – including the fact that the Provincial Court established a sentencing range based on a class of offender rather than the gravity of the offence, losing sight of the individualization of sentences.

This case is also of substantial interest to First Nation communities. The offender in this case trafficked on or near We Wai Kai Nation’s reserve, and lived on reserve. We Wai Kai Nation intervened in the appeal, arguing that “any development in the law of sentencing for opioid trafficking offences should be informed by the perspective of Indigenous communities, which bear a disproportionate share of the harm caused by illicit drugs”.

The Court endorsed We Wai Kai Nation’s submissions that where there is evidence of proximity between the offender and an Aboriginal community, the risks and impacts of that community ought to be taken into account in sentencing. The Court held that such consideration “supports the principle of reconciliation by recognizing and giving meaningful effect to the importance of maintaining a mutually respectful relationship between the criminal justice system, Indigenous peoples and their communities”.

We Wai Kai argued, and the Court agreed, that such considerations are even more important where the primary focus of the sentence is restorative in nature, so that the Court has the context necessary to determine whether the needs of the offender or community will be met by the sentence, and to prevent inadvertently exacerbating the disproportionate impact of the opioid crisis on Indigenous communities.

In sentencing the accused to three-years probation with stricter conditions, the Court crafted a unique condition which prohibited the accused from attending the reserve without prior written approval from her probation officer, who must consult with the We Wai Kai Nation Council in making that decision.

This decision serves as a reminder to Crown and trial courts as to the importance of getting evidence of indigenous perspectives where an offence impacts those communities. It also provides precedent for First Nations to request similar conditions to give them more control and supervision over offenders doing harm in the community, and may be a much needed tool to help First Nations combat the continued opioid crisis devastating their communities.

We Wai Kai Nation was represented by David Wu of Arvay Finlay LLP and Parevj Sidhu of BR Law.

The full decision can be found here: R v. Ellis, 2022 BCCA 278

Win for Homeless Residents of CRAB Park and the Right to Safe Shelter

In a resounding victory for the rights of persons experiencing homelessness, the decision in Bamberger v. Vancouver (Board of Parks and Recreation), 2022 BCSC 49 marks a promising development in the law, which vindicates the fundamental rights and interests of those forced to shelter in public spaces.

In May 2021, a community of individuals experiencing homelessness began sheltering together in the northwest corner of CRAB Park, a city park in the middle of the Downtown Eastside in Vancouver. This case concerned two competing petitions: one, filed by Kerry Bamberger and Jason Hebert, residents of the Park, challenging a pair of eviction orders issued by the General Manager of the Vancouver Park Board; and another, brought by the Park Board, seeking an injunction to enforce the eviction.

The Court dealt first with the petition for judicial review of the eviction orders. These orders, issued on July 8 and September 7, respectively, purported to close the Park to overnight sheltering, in addition to the existing prohibition on daytime sheltering.

The petitioners argued that the General Manager owed a duty of procedural fairness in making decisions with such a profound impact on the well-being and safety of those sheltering in the Park. At minimum, they argued they should have the right to receive notice and the right to be heard. Justice Kirchner agreed:

 [62] … I am satisfied the Orders have a significant and important impact on those persons as individuals such that they are entitled to notice and right to be heard: Knight at p. 677.

[63] At stake for them is nothing less than their s. 7 Charter right to life, liberty, and security of the person. This elevates their right to be heard above ordinary users of the Park, or even particular users of the Park, such as (to take counsel’s example) a soccer team whose game is cancelled when a field is closed for maintenance.

 In circumstances where those sheltering in the Park had been afforded neither notice of the decisions, nor the opportunity to be heard, the Court found a clear breach of the duty of procedural fairness.

In addition, the petitioners argued that the orders were unreasonable, on the basis that the General Manager placed an unjustifiable reliance on inadequate information provided by B.C. Housing to conclude that there were enough indoor spaces available for everyone sheltering at CRAB Park. The Court agreed, finding (at para. 97) that, “reasonableness requires more than unquestioned reliance on conclusory statements provided by another government office.” Where fundamental Charter rights are at stake, “[s]imply assuming that those sheltering in CRAB Park can find ‘another place to go’ fails to accord the necessary priority to their (charter) rights and ensure minimal impairment of those rights” (para. 98).

Significantly, the Court accepted the petitioners’ argument that the General Manager was required to consider not just whether there were enough indoor spaces, but whether such spaces were accessible to those sheltering in the Park, and suitable for their needs. The Court’s unequivocal adoption of this principle marks a significant advance in the law in this area.

In these circumstances, the Court quashed the eviction orders, and remitted them to the General Manager to reconsider in light of its reasons.

Next, the Court addressed the Park Board’s injunction application. Having quashed the eviction orders, the Court found there was no basis for an injunction enforcing those orders. In addition, Justice Kirchner declined to grant an injunction to enforce the existing prohibition on daytime shelter, citing the “exceptional circumstances” of the situation at CRAB Park. Drawing on the petitioners’ evidence, Justice Kirchner specifically noted “the recent history of encampments in and around the Downtown Eastside; the specific location of CRAB Park encampment; the closure of other parks in and around the Downtown Eastside to sheltering; and the absence (at this point) of any significant threat to life or safety of persons posed by the encampment” (para. 176).

In assessing these factors, the Court found it would not be in the public interest to displace those sheltering in the Park, without exhausting other, less punitive, measures. In reaching this conclusion, the Court sent a clear signal to the Park Board that it should not resort to the “blunt instrument” of an injunction, before using all available tools to deal with those sheltering in the Park “in a positive and compassionate way”.

This case builds off the foundational right-to-shelter case, Adams, and its successors, such as Adamson, both of which were argued by Arvay Finlay partner Catherine Boies Parker, QC.

Arvay Finlay is grateful to continue its work advocating for the rights of unhoused individuals.

On the legal team representing the petitioners were Arvay Finlay’s Alex Kirby and Claire Kanigan, together with Julia Riddle of Nathanson, Schachter & Thompson LLP.

Justice Kirchner’s complete reasons for decision can be found here: Bamberger v Vancouver (Board of Parks and Recreation), 2022 BCSC 49

Kate Phipps joins the Arvay Finlay LLP Partnership

Arvay Finlay LLP is pleased to announce that Kate Phipps will be joining our partnership. Kate joined the firm in 2016 after acting as legal counsel to the Supreme Court, and practicing at a national firm. She has a wealth of experience in public law litigation, with particular expertise in administrative law. We look forward to her continued contribution to our firm in this new role.

Kate’s full firm profile can be found here.

Honouring the Legacy of Joseph Arvay, OC, QC

December 7, 2021 marks the one-year anniversary of the sudden death of Joseph Arvay, OC, QC.  Joe was one of Canada’s leading constitutional lawyers.

“Joe was widely recognized as one of the most brilliant and successful constitutional and civil liberties lawyers of his time, and his passion and commitment to social justice through the practice of public law is unparalleled. We still feel his loss deeply, and are now trying to honour him and his legacy the best way we know how - by continuing his important work and by looking for ways to support others in doing the same.” Robin Gage, Managing Partner of Arvay Finlay LLP.

The University of Victoria Faculty of Law has established the Joseph Arvay Legacy Fund, through which it has now established the Joseph Arvay Public Interest Internship.  Through this program, law students will have the opportunity to work with not-for-profit and public interest organizations. Sponsoring organizations will be selected on an annual basis, based on their ability to provide meaningful work experience to students, with a preference given to organizations that align with Joe’s passions.

We are pleased to announce that the inaugural internship will take place in summer 2022 with the BC Civil Liberties Association. The BCCLA is one one of Canada’s oldest and most active civil liberties and human rights groups. For sixty years, the BCCLA has been working in the courts, legislatures, and communities to advance human rights and civil liberties. The BCCLA’s work spans a range of civil liberties issues, including police accountability, prisons and criminalization, Indigenous rights, national security and surveillance, privacy rights, patients’ rights, freedom of expression, and equality rights.

Joe fearlessly advanced the work of the BCCLA throughout his career. He  represented the BCCLA on a pro bono basis for three decades in many ground-breaking cases that literally made Canadian legal history. Joe fought to achieve full equality for the LGBTQ+ community, established the constitutional right to physician-assisted dying for the seriously ill, and represented the BCCLA in its successful constitutional challenge to prolonged, indefinite solitary confinement in federal prisons.

Grace Pastine, Litigation Director of the BCCLA states: “Joe is remembered as a hero to the BCCLA. The BCCLA is honored to be chosen to host the inaugural fellowship for the Joseph Arvay Legacy Fund. We are proud to continue Joe’s incredible legacy by helping to develop the lawyers who will follow in Joe’s footsteps.”

For more information please contact:

Robin Gage, Managing Partner, Arvay Finlay LLP: rgage@arvayfinlay.ca or 778-557-2405.  Grace Pastine, Litigation Director, BC Civil Liberties Association: grace@bccla.org or 778-918-0250. Liz Eby, University of Victoria Faculty of Law: lawdev@uvic.ca or 250-853-3518

 To donate to the Joseph Arvay Legacy Fund at the University of Victoria, click on this link (https://extrweb.uvic.ca/donate-online/joseph-arvay-legacy-fund) or contact 250-472-4924

Ontario Court of Appeal confirms Landmark Treaty Case

The Ontario Court of Appeal released its decision in Restoule v Canada (Attorney General) 2021 ONCA 779, upholding the trial judge’s decision that the Robinson Treaties are revenue sharing agreements.  The Court confirmed that the Crown must share the wealth of the Treaty territory with its First Nation treaty partners, in a manner consistent with the Anishinaabe principles of respect and reciprocity.  

The Court unanimously rejected  Ontario’s arguments that the Crown has an unfettered discretion to decide whether to increase the annuities paid under the Treaty, which have been set at $4 since 1875. 

Instead, the Crown is required to increase the annuities in a generous way consistent with the Honour of the Crown, that is responsive to the needs of Anishinaabe communities. 

The Court found that the Crown must be held to the promises it has neglected for over 150 years.  The Court unanimously found that there is no limitation period which would constrain the Anishinaabe’s claim for damages.

All members of the Court stressed that it would better for the parties to negotiate a resolution of the outstanding issues between them. However, both the majority and the minority reasons confirm that the Court can compel the government to  “address an injustice that brings dishonour to the Crown.”

In the next stage of the trial, the Ontario Superior Court will address the plaintiffs’ claim for damages.

Today’s decision confirms the importance of Anishinaabe principles of respect, responsibility, reciprocity and renewal in understanding the Treaty relationship.  It also recognizes that  the Covenant Chain Alliance between the Anishinaabe and the Crown was founded on both Anishinaabe and British diplomatic protocols and legal orders. It finds that the Royal Proclamation of 1763 assured the Great Lakes Anishinaabe that their lands and autonomy would be respected, and became part of the Covenant Chain relationship.

The claim was brought by 21 First Nation who are parties to the Robinson Huron Treaty and 2 First Nations who are parties to the Robinson Superior Treaty.   The plaintiffs had previously been successful before the Ontario Superior Court in two decisions.  Both of those decisions were appealed by the Ontario government, and both were addressed in the decision released today.

Two members of the five member panel Court adopted a different interpretation of the Treaties than the trial judge, but nevertheless rejected the majority of Ontario’s arguments.  The Court allowed Ontario’s appeal on a number of subsidiary issues that do not affect the substance of the First Nations’ claims.

Arvay Finlay, along with Nahwegahbow Corbiere, act for the Robinson Huron plaintiffs.

The decision can be found here: Restoule v. Canada (Attorney General), 2021 ONCA 779

A plain language summary by the Court can be found here: Court Overview

Honouring Orange Shirt Day and National Day for Truth and Reconciliation, September 30, 2021

Content Warning: residential schools, unmarked graves, abuse 

The offices of Arvay Finlay LLP will be closed on September 30th to honour survivors of the residential school system and to affirm our commitment to supporting justice for Indigenous communities against historic and ongoing colonial harms.

The legacy of residential schools is close in time and space to all of us. You can view a map of residential schools located near you here.

Kuper Island Residential School, located on Penelakut Island, was the closest location to our Victoria office. Survivors of Kuper Island have likened the school to Alcatraz and shared stories of children fleeing into the ocean to their death in an attempt to escape the abuse and return home. Over 160 unmarked graves were identified by the Penelakut Tribe this year. Kuper Island operated from 1889 to 1975.

St. Paul’s Residential School was located next to the Sḵwx̱wú7mesh community of Eslhá7an in what is now known as North Vancouver, making it the nearest location to our Vancouver office. Students faced disease epidemics, underfeeding, and overcrowding, and the building was eventually condemned. This summer, the Sḵwx̱wú7mesh Úxwumixw (Squamish Nation), the xʷməθkʷəy̓əm (Musqueam Nation) and the səl̓ilw̓ətaʔɬ (Tsleil-Waututh Nation) announced a collaborative investigation into the former St. Paul’s site in an effort to bring any unidentified children who died there to rest. St. Paul’s operated from 1899 to 1959.

Residential schools were part of a larger colonial strategy designed to dismantle Indigenous communities, nations, families, and laws and to displace Indigenous peoples from their territories. The courts have played a significant role in facilitating and justifying these colonial objectives, and this legacy lives on today. As a law firm practicing in Canadian law, our efforts towards reconciliation must ultimately support the resurgence of Indigenous legal orders and nationhood. We are committed to supporting Indigenous leadership in this aim in the many forms it takes.

We have been privileged to work with Indigenous nations in advancing justice in Canadian courts. The value of these cases to the nations who have fought long and hard for them cannot be understated. However, the real victories come from the work of communities, not the courts. These communities, tied together by bonds of law, land, family, and language, are the very structures residential schools sought to destroy. We honour Indigenous nations and survivors for their tireless work to bring justice and healing to their communities, and mourn for the indescribable loss bourn by generations of Indigenous children and families at the hands of the residential school system.

In furtherance of our obligation to Truth and Reconciliation, Arvay Finlay is committed to creating, communicating and implementing a Reconciliation Action Plan, and will also be making a donation in support of survivors of Residential Schools and the communities and families impacted by them.

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Reports on the history and impact residential schools can be found here.

Should you need support, the Indian Residential School Survivors Society Crisis Line offers 24 hour support for survivors and family of survivors and can be reached toll-free at 1-866-925-4419.

Arvay Finlay remains atop Aboriginal Law rankings

Arvay Finlay is honoured to have once again been named as one of only three “Tier One” law firms in British Columbia in the area of aboriginal law and indigenous rights. In addition, Arvay Finlay’s Mark Underhill was named as a “leading” lawyer, and Catherine Boies Parker, QC, as a “recommended” lawyer in this area.

https://doylesguide.com/category/native-title/

Principles of Equitable Compensation for First Nations Clarified by SCC

In a major victory for Indigenous Peoples whose lands were taken away by the government, the Supreme Court of Canada has clarified how compensation should be assessed when the Crown breaches its fiduciary duty to a First Nation.

The Southwind decision involved the Lac Seul First Nation in northern Ontario, whose reserve land was flooded for a hydroelectricity project that began in the 1920s.  About 17% of the reserve land is now permanently flooded, including the Nation’s prime waterfront land.  Homes, wild rice fields, gardens, haylands and gravesites were destroyed, and fishing, hunting and trapping were all impacted.  Only a token amount of compensation was paid to the Lac Seul First Nation, over a decade after the flooding took place.

The trial judge held that the government would have expropriated the Lac Seul First Nation’s reserve land for the hydroelectric project, and that the Nation was only entitled to receive a modest per-acre amount, similar to what a private landowner would receive if their land was expropriated for a highway project.  The Supreme Court of Canada held that expropriation valuation was a minimum requirement, not a maximum, and that compensation should be based on the highest and best use of the land, which in this case was as water storage for hydroelectric development.  The Crown must always consider the nature of the First Nation’s interest in the affected land and the impact of any proposed transaction on the First Nation.

Catherine Boies Parker, Q.C., Mark Underhill, John Trueman and Caroline North intervened in the Southwind appeal on behalf of our client, the Chemawawin Cree Nation of Manitoba, whose own lands were completely flooded in the 1960s for hydroelectric development.

Property Assessment Appeal Board decision upheld on appeal to court

The Supreme Court of British Columbia recently upheld a decision of the Property Assessment Appeal Board concerning assessments of three properties fronting Horsefly Lake, in the Cariboo Region of British Columbia. In so doing, the Court rejected allegations that the Board’s reasons were inadequate or that its procedures were unfair.

The Board hears appeals about the assessment value of real estate in British Columbia, which determines values for property taxation purposes. Any person can complain about their property assessment to a property assessment review panel, and then appeal the panel’s decision to the Board. A further appeal is then available to the Court on “a question of law alone.”

Since the Supreme Court of Canada’s 2019 decision in Vavilov, statutory appeals from administrative tribunals are treated like appeals from lower courts, and subject to the “correctness” standard for questions of law. However, as the Court confirmed in this case, while the correctness standard is less deferential than the reasonableness standard, appellants still bear the burden of demonstrating that the tribunal committed a legal error. 

The Court held that the Board committed no such error in this case, including with respect to its findings of fact, its interpretation of the law, the sufficiency of its reasons, or the fairness of its procedures.

Robin Gage and John Trueman of Arvay Finlay LLP acted for the Property Assessment Appeal Board in this matter. Arvay Finlay lawyers represent applicants, respondents, and tribunals in administrative law proceedings.

The reasons for judgment are available here: Allard v. British Columbia (Assessor of Area #24-Cariboo), 2021 BCSC 1088

Local Protections Against Renoviction Upheld

On April 30, 2021, the BC Court of Appeal upheld a New Westminster bylaw that provided stronger protections for tenants against “renovictions”. "Renoviction" is a term used to describe an eviction that is carried out to renovate or repair a residential rental unit.

The protections under the New Westminster bylaw were stronger than those found in the Residential Tenancy Act. The appellant landlord in the case argued that the Residential Tenancy Act was an exhaustive scheme in relation to renovictions, and the municipality had no jurisdiction to provide stronger protections. Those arguments were rejected by Chief Justice Hinkson, whose decision has now been upheld bythe Court of Appeal.

In upholding the bylaw, the Court of Appeal specifically identified the importance of the principle of subsidiarity –  the “proposition that law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity”.

Arvay Finlay LLP represented the Tenant Resource & Advocacy Centre (TRAC) in intervening in the Court of Appeal. TRAC made submissions that the principle of subsidiarity, among others reasons, support an interpretation of the Residential Tenancy Act that permits local governments to enact laws and policies to buttress its protections for tenants.

The decision of the Court of Appeal can be accessed here: 1193652 B.C. Ltd. v. New Westminster (City), 2021 BCCA 176

S.C.C. Affirms Transboundary Hunting Right for “Extinct” Sinixt First Nation

On April 23, 2021, the Supreme Court of Canada issued reasons for judgment in R. v. Desautel, confirming that Mr. Desautel, as a member of the Lakes Tribe of the Colville Confederated Tribes in Washington State, has a constitutionally protected right to hunt in Canada in the traditional territory of his Sinixt ancestors. 

In a landmark 7-2 ruling, the Court interpreted, for the first time, the meaning of “Aboriginal Peoples of Canada” for the purpose of determining who holds constitutionally-protected Aboriginal rights under section 35 of the Constitution Act, 1982.   The Court held that the Aboriginal peoples of Canada  are the modern successor groups of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are now resident outside Canada.  In reaching that conclusion, the Court observed that an interpretation that excludes Aboriginal peoples who were forced to move out of Canada would risk perpetuating the historical injustice suffered by Aboriginal peoples as a result of colonization.

The decision is of fundamental importance to the Sinixt people, who occupied territory as far north as Revelstoke  in what is now British Columbia since time immemorial.  After contact, many Sinixt involuntarily migrated from British Columbia to the southern part of their traditional territory in Washington State.  The SCC held that the migration did not cause the group to lose its identity or its constitutionally protected rights.   The decision also has important implications for other trans-boundary groups and First Nations forced from their territory after European contact and settlement.

Mark Underhill and Kate Phipps of Arvay Finlay acted as counsel for Mr. Desautel through four levels of Court, including the Supreme Court of Canada. The reasons may be found here:https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18836/index.do

Currency exchange company liable in conversion in connection with telephone scam

In a decision released March 31, 2021, the BC Supreme Court found a currency exchange company liable for the tort of conversion, which concerns the wrongful interference with another person’s chattels, including money or funds, arising out of a telephone scam.

In this case, the plaintiff was an elderly woman who was directed by fraudsters to transfer her entire life savings to an intermediary, who was also being scammed by the same fraudsters. The intermediary then wired the plaintiff’s funds to the fraudsters in China through the defendant currency exchange company.  The Court held that as between the two victims of the fraud, the plaintiff and the currency exchange company, it is the company that must bear the loss under the law of conversion.

This case serves as an important reminder for financial institutions like currency exchange companies that, as beneficiaries of the global financial system who are in an important position  to prevent fraud, they must exercise the utmost due diligence to prevent their institutions being used for fraud or money laundering.

David Wu of Arvay Finlay acted for the successful plaintiff. The reasons for decision are indexed as Pang v Zhang, 2021 BCSC 591

Highly Deferential Standard Applied to Safety Standards Appeal Board

On April 13, 2021, the BC Supreme Court dismissed a judicial review brought by BC Housing against a decision of the Safety Standards Review Board (the “Board”).

The Board’s decision centred on the question of whether and in what circumstances a residential builder can de-enroll a home from home warranty insurance, and involved interpretation and application of the Homeowners Protection Act .

 The Court upheld the Board’s decision, and reinforced that the standard of review to apply to the Board’s decision is the “highly deferential” patently unreasonableness standard. As the Court noted, it was not for it to “second-guess the conclusions of the Appeal Board or to reweigh the evidence.”

Arvay Finlay represented the Board at the judicial review hearing. The decision is indexed as B.C. Housing Management Commission v White Hart Homes Ltd., 2021 BCSC 674.

Court of Appeal Dismisses Conflict of Interest Appeal in Gitanyow Title Claim

On April 7, 2021, the BC Court of Appeal confirmed a BC Supreme Court decision that had dismissed an application to remove the Gitanyow Nation’s longstanding lawyer from its aboriginal title case on the basis of an alleged conflict of interest. This application and appeal was brought be Chief Darlene Simpson, representing the Tsetsaut / Skii km Lax Ha Nation (“TSLKH Nation”).

The conflict of interest allegations arose from the landmark Delgamuukw aboriginal title litigation. Counsel of record for the Gitanyow Nation was one of the lead counsel  in Delgamuukw, which was brought by the Gitxsan and Wet’suwet’en Hereditary Chiefs, including the Gitxsan Chief known as Skii km Lax Ha.  Chief Simpson asserts that she now holds the title of Skii km Lax Ha, but no longer identifies as Gitxsan and claims a much larger traditional territory than was advanced by the Gitxsan House of Skii km Lax Ha in Delgamuukw. Chief Simpson’s claim overlaps significantly with the claims of neighbouring Gitxsan and Gitanyow Houses.

Chief Simpson applied to remove counsel on the basis of his prior representation of the Gitxsan House of Skii km Lax Ha in Delgamuukw.  In the BC Supreme Court, Madam Justice Sharon Matthews disagreed, concluding that any connection between the claims made in Delgamuukw and in Malii was created as a result of the “shift in self-identity and claims” of the TSLKH Nation.

On appeal, TSLKH Nation argued that Justice Matthews had misdirected herself and applied the wrong legal test, adopting a “straw man” argument that required her to prove that counsel for the Gitanyow Nation had committed professional misconduct. The Court of Appeal rejected that argument, and found that Justice Matthews was responding to the TSLKH Nation’s own arguments, in which “[h]ints of impropriety were abundant”. The Court of Appeal found no error in Justice Matthews’ determination that TSLKH Nation had not met their onus to provide “clear and cogent evidence” of a sufficient connection between the Delgamuukw and Malii claims, and that counsel was in possession of confidential information regarding the new identity and larger territorial claim of the TSLKH Nation.

The reasons for judgment are indexed as Skii km Lax Ha v. Malii, 2021 BCCA 140.

Mark Underhill and David Wu of Arvay Finlay LLP represented the Gitanyow Nation at both levels of Court.

Big Win for the Environment as SCC Upholds Carbon Pricing

On March 25, the Supreme Court of Canada released its much anticipated decision on the constitutionality of federal legislation which implements minimum national standards for carbon pricing in Canada.

Provincial appellate courts had  been divided on the issue of whether the legislation was within the federal government’s constitutional  authority.  The Ontario and Saskatchewan Courts of Appeal had found it to be constitutional, while the Alberta Court of Appeal had ruled that it was not.

Writing for a majority of six judges, the Chief Justice of Canada acknowledged that climate change presents a “grave threat to humanity’s future”, and that the only way to fight it was to reduce GHG emissions, which experts agree can be achieved through a price on carbon. In its ruling, the Court also emphasized the disproportionate and irreversible impacts of climate change on the Arctic, the coastlines, and Indigenous peoples. 

In the result, the majority upheld the federal legislation under the national concern doctrine, finding that its focus was on addressing the “well-established risk of grave extra-provincial harm”, and that it had a limited impact on provincial jurisdiction.

David Wu of Arvay Finlay represented Oceans North Conservation Society in its intervention at the Supreme Court of Canada.

The reasons are indexed as Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11.

Arvay Finlay welcomes Andrew Petter, CM, QC as Associate Counsel

Arvay Finlay LLP is pleased to announce that Andrew Petter, CM, QC, has joined the firm as Associate Counsel. Andrew is a longtime friend of the firm, and his expertise in constitutional law and other areas of public law and policy is a great fit for Arvay Finlay’s long history as a leading public law boutique.

Andrew is former Attorney General for the Province of British Columbia and holds law degrees from the University of Victoria, where he received the Law Society Gold Medal, and from the University of Cambridge, where he achieved first class honours.

He is a national authority in constitutional law and other areas of public law and policy, having practiced with the Saskatchewan Department of Justice and taught at Osgoode Hall Law School and the University of Victoria Faculty of Law, where he served as dean from 2001 to 2008.        

From 2010 to 2020, Andrew served as president of Simon Fraser University where he remains a professor in its School of Public Policy.  From 1991 to 2001, he was a Member of the Legislative Assembly of the Province of British Columbia and held numerous cabinet portfolios, including Aboriginal Affairs, Advanced Education, Intergovernmental Relations and Attorney General.    

Andrew has been recipient of many awards and honours, including Public Policy Forum’s Peter Lougheed Award for exceptional contributions to public policy and Honorary Citizenship from the City of Victoria for his work in preserving heritage structures, expanding parks and developing the Galloping Goose and Lochside trail systems in the Capital Region.

In 2018, he was appointed to the Order of Canada in recognition of his record of public service and leadership in advancing university-community engagement and higher education throughout the country.

BC Court of Appeal upholds decision of Farm Industry Review Board, recognizing its unique role and expertise

In a recent decision, the British Columbia Court of Appeal restored a decision of the British Columbia Farm Industry Review Board.  The case involved a Vancouver Island chicken farmer who had asked for permission to sell his chickens to processors on the mainland, and was refused by the Chicken Marketing Board and, on appeal, by the Farm Industry Review Board.  The Supreme Court of British Columbia allowed his application for judicial review, holding that the Farm Industry Review Board had treated him unfairly.  The Chicken Marketing Board then appealed to the Court of Appeal.

In a unanimous decision, the Court of Appeal held that the Farm Industry Review Board’s decision was both fair and reasonable.  It recognized the unique role that the Farm Industry Review Board plays in supervising British Columbia’s supply management system for natural products.  The Board must ensure its decisions reflect “sound marketing policy” for all market participants, and individual appeals are decided within the context of the overall industry.  While the law requires that administrative decisions be procedurally fair, what fairness looks like will depend on the role of the tribunal and the decisions it is empowered to make.

Robin J. Gage and John Trueman of Arvay Finlay LLP represented the Farm Industry Review Board before the Court of Appeal.  Arvay Finlay LLP has extensive expertise in administrative law matters at all levels of court, and advises administrative tribunals as well as parties that appear before them.

Retired Judge Finds VPD Members Committed Misconduct in “Wellbeing Check” Which Turned Violent

Findings of abuse of authority have been made against two members of the Vancouver Police Department in relation to their actions at a “wellbeing check” at a private home on March 13, 2016. The incident resulted in a violent altercation that left the complainant with serious injuries. 

The Adjudicator, retired Judge Carol Baird Ellan, delivered her findings in the matter following a Public Hearing under the Police Act.   The Adjudicator held that Cst. Eric Ludeman unlawfully entered the complainant’s home and recklessly used unnecessary force against the complainant. Cst. Neil Logan was found to have also used unnecessary force against the complainant’s son and wife.

Importantly, the decision confirms that police officers must turn their mind to whether using physical force is justified over available non-violent alternatives, and cannot resort to force simply as a matter of expedience:

[177] … I agree with Commission Counsel that the actions of Constable Ludeman in failing to make further inquiry are indicative of a cavalier willingness to intervene physically as a shortcut for other reasonably available investigative options. That state of mind amounts to recklessness, given Constable Ludeman’s experience, training, direction, and perception of the events that faced him, in my view.

…

[191] It was not necessary for Constable Logan to strike Yuri or Natalia Chaikun with a palm heel. He had pushed them back prior to that, and he could have used verbal commands before using force as significant as the blows he himself describes. Again, I agree with the submission that using the force that he did, as described by him, when he used it, represented the use of force as an expedient substitute for other less violent tools that were available to him.

A further hearing will be scheduled to address the appropriate disciplinary or corrective measures to be taken in relation to the officers.

Mark Underhill and Emma Ronsley of Arvay Finlay LLP acted for the Office of the Police Complaint Commissioner.