Court Allows Claim by Former Representative for Children and Youth to Proceed

Chief Justice Hinkson of the Supreme Court of British Columbia dismissed two applications brought by the Legislation Assembly of British Columbia and the provincial government seeking to strike a claim made by the province’s former Representative for Children and Youth, Mary Ellen Turpel-Lafond. Ms. Turpel-Lafond alleges that the Assembly and the government breached an agreement to provide her with certain entitlements, including an enhanced pension, in consideration for her work as the Representative for Children and Youth. The Assembly and the government applied to have Ms. Turpel-Lafond’s case dismissed, primarily on the basis that the allegations are covered by parliamentary privilege and so the court has no jurisdiction to consider them.

In dismissing the two applications, the Chief Justice found that the scope of parliamentary privilege “does not preclude the enforcement of the plaintiff’s contractual rights to the compensation she was entitled to receive for her role once appointed [as Representative for Children and Youth]”, and that “inquiring into and ensuring that the contracts the Legislative Assembly chooses to enter into are not within parliamentary privilege”.

Joseph J. Arvay, Q.C., and Arden Beddoes represented the plaintiff, Ms. Turpel-Lafond.

The decision can be found here.

Court confirms importance of indigenous perspectives in teacher complaint process

The Commissioner for Teacher Regulation regulates and oversees the disciplinary process for teachers in British Columbia. Under the Teachers Act, following a full investigation from a complaint against a teacher, the Commissioner can decide to either take no further action, enter into a consent resolution agreement with the teacher, or issue a citation. Rarely is a citation issued and most complaints are either dismissed or a consent resolution agreement is entered into.

In a case decided earlier this month, the BC Supreme Court found that complainants have a legal right to an investigation, and therefore, decisions by the Commissioner to either dismiss a complaint or enter into a consent resolution agreement with a teacher can be judicially reviewed by the courts, and complainants have standing to challenge such decisions.

In the specific facts of this case, the Court also found that the investigation proceeded in a procedurally unfair manner given the failure to interview the complainant or any other members of the family of a child who was punished at a First Nations school. Given the form of punishment used and the cultural context of the school, the Court found that it was especially important to show consideration of the perspective of Indigenous communities.

This case is important in not only ensuring accountability and transparency in the disciplinary process for teachers, but also in ensuring that Indigenous voices are heard in the disciplinary process.

David Wu, along with Robin Dean, acted as counsel for the complainant.

Arvay Finlay Lawyers Recognized in Best Lawyers in Canada

Three Arvay Finlay lawyers were recently recognized in the 2019 edition of Best Lawyers in Canada, the oldest peer-review publication in the legal profession.

Alison M. Latimer and Cathie Boies Parker, Q.C. were both recognized in the area of corporate and commercial litigation. Mark Underhill was recognized in the areas of Aboriginal law, Administrative and Public law, and Environmental law.   Mark was also recognized as “Lawyer of the Year” in Environmental law in British Columbia, having received the most votes of his peers in the category.

Government Must Take Steps to Address Charter Concerns of Inmates in Solitary

In 2018, Justice Leask issued a declaration that the sections of the Corrections and Conditional Release Act that authorize the placement and maintenance of inmates in solitary confinement are unconstitutional. He suspended the declaration for one year to allow Parliament to enact replacement legislation.  The Attorney General appealed and applied for an extension of the suspension to July 31, 2019, to allow Parliament more time to enact new legislation. 

Today the BC Court of Appeal ruled that “government must take steps to deal with constitutional concerns” raised in the lawsuit. Inordinate delays justified the Court’s intervention given the Attorney General does not seriously dispute that current practices of solitary confinement do not conform to constitutional requirements.

Therefore, while the Court granted a shorter extension than that sought by the Attorney General, it did so only on specific conditions. Those conditions aim to reduce or eliminate violations of inmates’ constitutional rights pending the enactment of new legislation.

The Attorney General is required to report to the Court on its progress in respect of certain conditions prior to February 28, 2019. The Court reserved the power to impose additional conditions on the continuation of the suspension of the declaration. Those conditions concern, among other things, the health of inmates in solitary confinement, the treatment of indigenous inmates in solitary confinement, time out of cell of those held in solitary confinement, access to counsel, and procedural safeguards for those in solitary confinement.

The decision is available here.

Joseph J. Arvay, Q.C., O.C. and Alison M. Latimer act for the British Columbia Civil Liberties Association and the John Howard Society.

Court recognizes new principle of fundamental justice

The Ontario Superior Court has ruled that the enforcement provisions of the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCA) , which grant police powers to OSPCA agents and investigators, are unconstitutional because they result in a deprivation of liberty not in accordance with the principles of fundamental justice. Importantly, the Court recognized a novel principle of fundamental justice that “law enforcement bodies must be subject to reasonable standards of transparency and accountability”, and it ruled that the OSPCA, as a law enforcement body, fails to meet this standard.

Arden Beddoes acted as counsel for the Intervener, Animal Justice, with Benjamin Oliphant. Animal Justice focused its submissions on the novel principle of fundamental justice. The Court also concurred with Animal Justice’s submission that the enforcement of animal cruelty legislation requires broad search powers because “animals are uniquely vulnerable; they are frequently kept on private property out of public view; and they cannot report neglect or abuse”.

The Court’s decision can be found here: Boegarts v. Attorney General of Ontario, 2019 ONSC 41

Landmark Treaty Case: Court finds Treaty provides right to revenue sharing

The Ontario Superior court  has ruled that the Robinson Huron Treaty of 1850 provides treaty beneficiaries with a constitutionally protected right to share in the Crown revenues from the Treaty territory. This is an unprecedented ruling on an historic treaty.

 Justice Patricia Hennessy heard evidence from elders, experts and Chiefs. She held that the Treaty was not meant to be a one time transaction, but rather established a mutually beneficial and respectful ongoing relationship for the sharing of land and resources in the Territory. The Court held that the parties intended the sharing of net revenues to take place in a manner consistent with the Anishinabek principles of respect, responsibility, reciprocity and renewal. 

 The Court held that the Crown is obliged to increase the annuities payable under the Treaty when it can do so without incurring loss. The $4 annuity has not been increased for over a hundred years. Damages quantification will take place in a future phase of the trial.

 Joseph J Arvay QC and Catherine Boies Parker QC represent the plaintiffs. 

The decision can be read here: Restoule v. Canada

Stay Upheld in Police Manufactured Crime

Today the Court of Appeal upheld the order of Justice Bruce staying proceedings in respect of terrorism related charges against Mr. Nuttall and Ms. Korody.

Mr. Nuttall and Ms. Korody were charged with four terrorism offences arising from a plot to place pressure cooker bombs outside the Parliament Buildings in Victoria on Canada Day in 2013. The trial judge found they had been entrapped.

The Court of Appeal agreed and held that “the police went far beyond investigating a crime. They pushed and pushed and pushed the two defendants to come up with a workable plan. The police did everything necessary to facilitate the plan. I can find no fault with the trial judge’s conclusion that the police manufactured the crime that was committed and were the primary actors in its commission.” As a result, the Court found the “overall conduct of this investigation was a travesty of justice.”

The full decision of the Court of Appeal is available here.

Alison Latimer acted as counsel for Mr. Nuttall with Marilyn Sandford, Q.C. and Alix Tolliday. Scott Wright acted as counsel for Ms. Korody.

Professional misconduct found in College of Applied Biology’s first disciplinary hearing

Following a week-long hearing in June of 2018, a disciplinary panel has found that Ted Lea, a registered professional biologist (RPBio), committed professional misconduct. Ted Lea was a vocal and staunch critic of the District of Saanich’s Environmental Development Permit Area (EDPA), which has since been repealed.

The College of Applied Biology is the self-governing body charged with regulating the conduct of RPBios. It issued a citation alleging Ted Lea was in a conflict of interest, made negative personal comments about a fellow RPBio and staff person at Saanich, and did not undertake proper due diligence in his work and reports regarding exempting properties from the EDPA.

In reasons released on December 5, 2018, the disciplinary panel, which was composed of two RPBios and a member of the public, found all three charges to be substantiated, and that Ted Lea had breached multiple provisions of the College’s Code of Ethics.

The sanction phase of the disciplinary process has yet to commence.

Mark Underhill was counsel for the College of Applied Biology.

A copy of the decision can be found here. College of Applied Biology v Ted Lea

SCC Grants Leave to Intervene in R. v. Rafilovich

The Supreme Court of Canada has today granted leave to intervene to the British Columbia Civil Liberties Association (BCCLA) in an appeal from this decision: R. v. Ravilovich, 2017 ONCA 634.

The issues in this appeal are important matters of public law that concern whether the Criminal Code, properly interpreted, leaves sentencing judges with discretion to refuse to order a fine in lieu of forfeiture of seized funds previously paid to counsel by virtue of a court order. The BCCLA will argue that an accused person who requires counsel, and who is otherwise unable to afford counsel, should not be required to choose between being self-represented on the one hand, and potentially being subject to a sentence, in addition to what is fit and appropriate having regard to the charges and the circumstances of the person, for having applied for and received a court order permitting fees to be released under judicial supervision.

The BCCLA is represented by Alison M. Latimer and Gregory DelBigio, Q.C.

SCC Grants Leave to Intervene in Nevsun v Araya

The Supreme Court of Canada has today granted leave to intervene to EarthRights International (ERI) and the Global Justice Clinic at New York University School of Law (GJC) (jointly), in an appeal from this decision Araya v. Nevsun Resources Ltd., 2017 BCCA 401 .

This appeal raises important matters of public law. The ability of individuals to obtain an effective remedy in Canada when harmed by the participation of a Canadian corporation in gross violations of universally recognized human rights implicates Canada’s international obligations.

Also intervening in the appeal are the International Human Rights Program, University of Toronto Faculty of Law; Amnesty International Canada and the International Commission of Jurists (jointly); MiningWatch Canada; and the Mining Association of Canada.

ERI and GJC are represented by Alison Latimer and Tamara Morgenthau.

Joseph Arvay Receives Honorary Doctor of Laws from UVic

Arvay Finlay LLP proudly announces that Joseph J. Arvay was honoured yesterday by the University of Victoria with an Honorary Doctor of Laws.   The University said the following of our friend and partner:

Joseph Arvay’s advocacy—often on behalf of deeply disadvantaged members of society—has shaped the meaning and impact of the Canadian Charter of Rights and Freedoms. Arvay was lead counsel representing, pro bono, Gloria Taylor in the case of Carter v. Canada, which led to the landmark 2015 Supreme Court ruling that allows physician-assisted suicide in Canada. He led the legal team that represented Insite, the medically supervised injecting facility in Vancouver’s Downtown Eastside, when it won a unanimous Supreme Court of Canada decision allowing it to remain open after years of federal government opposition. Arvay’s other notable cases include his work as counsel in the case that struck down laws preventing same-sex marriage, and he represented an organization of sex trade workers in their successful attempt to overturn some of the criminal laws relating to prostitution.His most recent accomplishment was in having the BC Supreme Court strike down Canada’s laws allowing solitary confinement in federal prisons where he again acted pro bono.In a career that has been defined by his personal integrity, skill and humanity, Arvay has been consistently cited by Canadian Lawyer Magazineas one of the most influential members of the profession for his commitment to civil rights and social justice. He has been an architect of change in Canadian society.

Court of Appeal Confirms Jurisdiction of Environmental Appeal Board

In a unanimous decision, the BC Court of Appeal has confirmed the jurisdiction of the Province and the Environmental Appeal Board in matters relating to the regulation of water rights in BC.  In addition, the Court, after noting that the Board's expertise entitled it to substantial deference from the courts,  upheld the Board's underlying decision related to the return of a stream's course to its original state, and found the Board's process to be fair and reasonable.  

Robin J. Gage, represented the Environmental Appeal Board in both the Court of Appeal and the BC Supreme Court.

The decisions can be found here:

Lindelauf v. BC, 2018 BCCA 183  

Lindelauf v. BC, 2017 BCSC 1479

 

 

 

 

Lindelauf v. BC, 2017 BCSC 626

Arvay Finlay to represent BC in Pipeline Dispute

The Province of BC has announced that it has retained Joseph J. Arvay, QC to represent the Province in a reference case to the BC Court of Appeal on the question of the extent of the Province's jurisdiction over the Trans-Mountain Pipeline expansion project.   

http://www.cbc.ca/news/canada/british-columbia/trans-mountain-kinder-morgan-court-joseph-arvay-1.4573634

 

First Civil Resolution Tribunal Appeal Dismissed

Reasons for judgment were recently released for the first appeal of British Columbia’s newly created Civil Resolution Tribunal ("CRT").

The underlying dispute involved move-in/move-out fees that a strata corporation in Vancouver charged its occupants. A tenant living in the strata challenged the fees levied against his roommates on the basis that they were unreasonable in circumstances where no furniture was required to be moved, and that in any event, it was significantly unfair for the strata to wait two and a half years to levy the fees, and then cancel his roommate’s fob access without notice in order to obtain payment.

The tenant was successful at the CRT. The tribunal member found that the bylaw was unreasonable given that the actual expense to the strata from moves without furniture was closer to $25 but the strata charged a flat fee of $100. The tribunal member further found that the conduct of the strata was significantly unfair given that the strata induced the payment of the fees out of duress.

The strata appealed the CRT decision on three grounds. First, the strata argued that the CRT erred in law in failing to address the tenant’s standing. Second, the strata argued that the CRT erred in law in applying a subjective rather than objective test to determine the reasonableness of the bylaw. And third, the strata erred in law in applying a subjective rather than an objective test to determine whether the strata’s conduct was significantly unfair, and in any event, made an ultra vires order due to a drafting error in the legislation.

Mr. Justice Pearlman dismissed the CRT’s appeal on all three grounds, and exercised his discretion to remedy the drafting error in the legislation (which has, since the appeal hearing, been amended by statute). He also further discussed at length the standard of review to apply to CRT decisions, which will be of precedential value to future CRT appeals.

The reasons for judgment are available here.

David W. Wu acted for the successful tenant in defending the appeal. Arvay Finlay LLP has considerable experience litigating statutory appeals and judicial reviews from tribunal decisions.

Court Rules Solitary Confinement Laws are Unconstitutional

This week the BC Supreme Court struck down the federal laws that govern solitary confinement. The declaration of constitutional invalidity will be suspended for 12 months.

The laws are unconstitutional because solitary confinement can be imposed without strict time limits, inmates in solitary confinement are not entitled to a review conducted by an independent external decision-maker, and the laws fail to provide that inmates may be represented by counsel at segregation review board hearings. The laws further unjustifiably infringe the Charter because they discriminate against mentally ill and/or disabled inmates and Aboriginal inmates.

Joseph Arvay, O.C., Q.C., Alison M. Latimer and Caily DiPuma act for the plaintiffs in this landmark case.

To read the full judgment, click here

Broadcasting of Trial Furthers Principle of Reconciliation

Reasons were released on Friday on the decision to livestream the summary trial proceedings in Restoule et al v. Canada et al, a case being argued by Joseph J Arvay, QC and Catherine Boies Parker, QC in the Ontario Superior Court of Justice on behalf of 22 First Nations that are signatory to the Robinson Huron Treaty.  In her decision, Justice Hennessey noted that there is “deep and broad public interest in reconciliation with our Indigenous people” and “Canadians and those who live in Canada are studying our history through a new lens.” 

Referring to the TRC, Justice Hennessey noted that the relationship between Indigenous peoples and the justice system has been called dysfunctional, and held that “[t]he integrity of the justice system is at stake when parties who have developed a rational distrust for a system cannot access, for whatever reason, the forum in which key questions and debates are played out….”” The Court held that “[o]pening up the court process to everyone is a declaration that there is nothing to hide and an invitation to hear the debate unfold” and that open access will do more to strengthen the integrity of the court in the eyes of Indigenous people than any political speech or promise.”   The Court concluded that “ [c]ollectively, as Canadians, we suffer a deficit in understanding our history and our relationship with our Indigenous neighbours. Creating and preserving an audiovisual record of this evidence increases its usefulness and accessibility. It is a significant contribution to our national understanding.”

The proceedings in the trial can be accessed at: https://livestream.com/firsttel

Justice Hennessy's Reasons can be found here.

Injunction Granted to Protect Chanterelle Forest

The BC Supreme Court has today issued an interim injunction to prohibit logging activity in the Chanterelle Forest - part of the Sunshine Coast Community Forest - pending determination of a judicial review brought by the Elphinstone Logging Focus (ELF).

In her reasons, Madam Justice Warren noted that ELF had raised a serious issue to be determined, noting that the Community Forest had failed to provide concrete and specific evidence that there was public consultation in regards to the logging of the Chanterelle Forest. She noted that the purpose and intent of community forests require some form of ongoing public consultation.

In assessing irreparable harm and the balance of convenience, Madam Justice Warren found that while trees are renewable resources, these specific trees and the biodiversity contained within the forest are not. Given that the damages suffered by the Community Forest from the injunction would only be monetary, and thus compensable, the Court found that the balance of convenience favoured granting the injunction to prevent irreparable harm that logging would cause to the forest.

ELF is an organization with a mandate to educate the public about the forests and habitat on the Sunshine Coast, and to protect those forests and habitat in support of tourism and recreation. 

David W. Wu of Arvay Finlay LLP represented ELF in the injunction application. 

Welcoming Arden Beddoes to the Firm

We are pleased to welcome Arden Beddoes who joins our firm as an associate today. 

Arden is a graduate of the University of Toronto Law School and completed a clerkship at the Ontario Superior Court of Justice prior to being called to the bar in 2012. He has practiced at commercial law firms in both Toronto and Vancouver. Arden works on a range of civil litigation matters with a particular interest in commercial and public law.

To find out more about Arden, please click here.

Historic Sinixt Hunting Rights Case Upheld on Appeal

The BC Supreme Court today dismissed the Crown’s appeal of the landmark decision of the Provincial Court of British Columbia in March of 2017, which found that Richard Desautel, a Sinixt descendant and member of the Colville Confederated Tribes in Washington State, had an aboriginal right to hunt in his traditional territory in Canada. 

In 2010, Mr. Desautel was charged with hunting elk as a non-resident, and without a license, near Castlegar, B.C., which falls within Sinixt traditional territory that stretches north from the Colville Reservation to the area in and around the Arrow Lakes in British Columbia. Following a lengthy trial held in the fall of 2016, Justice Lisa Mrozinski of the BC Provincial Court held that Sinixt hunting rights endured to the present day, notwithstanding a variety of historical forces which contributed to many Sinixt moving south of what is now the international border, and the introduction of legislation to make it illegal for the Sinixt to hunt in Canada.   

The Crown’s appeal was heard by Justice Robert Sewell in September of 2017.  In upholding the decision below, Justice Sewell dismissed the Crown’s arguments that  recognizing the Sinixt as an Aboriginal Peoples of Canada would undermine the purposes of section 35 of the Constitution Act, 1982, and that recognizing Mr. Desautel’s right to hunt would be incompatible with Canadian sovereignty. 

Mark Underhill and Kate Phipps  of Arvay Finlay LLP represented Mr. Desautel in the B.C. Supreme Court.

Catherine Boies Parker Appointed Queen's Counsel

We are very pleased to announce that Catherine Boies Parker has been recognized with the honourary title of Queen's Counsel. Catherine has been recognized by her peers for her superb record of achievement and commitment to the legal system. Only 7% of practicing B.C. lawyers can be awarded the designation of QC.

To read the full list of 2017 QC appointees in BC, click here.