SCC Strengthens Protection from Workplace Discrimination

In a decision that underscores the complexities of modern workplaces and the vulnerability of workers to many forms of discrimination, the Supreme Court of Canada has confirmed a broad jurisdiction of the BC Human Rights Tribunal to meaningfully address workplace harassment and discrimination. 

The majority of the Court overturned a decision of the BC Court of Appeal, which had restricted the jurisdiction of the Tribunal to circumstances in which the perpetrator was in a position of economic power over the complainant.  In his decision Rowe J, writing for the majority, held that this approach "fails to capture the reality of how power is exercised in the workplace".  The majority also recognized that "economics is only one axis along which power is exercised", noting that gendered and racialized power, for example, can be the basis for equally harmful exploitation of marginalized groups.  

Finally, the majority noted that workers are particularly vulnerable to discrimination in the employment context, as they are "a captive audience for those who seek to discriminate against them ... Whether a server is harassed by the restaurant owner or the bar manager, by a co-worker, or by a regular and valued patron, the server is nonetheless being harassed in a situation from which there is no escape by simply walking further along the street."

For all of these reasons, the Majority adopted a contextual approach to determining the scope of protection for workplace harassment.

Robin Gage and Catherine Boies Parker, together with our colleagues at BC PIAC, represented the intervenors, the Retail Action Network (RAN) in the Supreme Court of Canada.  RAN is a Victoria-based grass-roots organization that represents and advocates for the rights of vulnerable workers in the Retail, Food Service, and Hospitality Industries. 

The decision can be found here:  BC Human Rights Tribunal v. Schrenk

Joseph Arvay Receives Order of BC

In a ceremony at Government House later today, Arvay Finlay LLP partner, Joseph Arvay, QC will receive B.C.'s highest honour - an appointment to the Order of British Columbia.  

The Order of British Columbia recognizes "exceptional individuals whose hard work, generosity of spirit and outstanding achievements have contributed immeasurably to the well-being of our communities."

Joe himself is being recognized for "advancing civil liberties and defending before the Supreme Court of Canada many cases that saved lives, improved the lives of marginalized people, and secured the important rights of others."  

The ceremony can be watched here:


B.C. Supreme Court upholds Environmental Appeal Board in Municipal Contaminated Sites Dispute

In another strong judgment recognizing the specialized expertise of the Environmental Appeal Board, the Supreme Court of British Columbia upheld the Board’s decision denying the City of Burnaby standing to challenge a certificate of compliance issued by the Director of the Environmental Management Act on the basis that it was not prejudiced by the issuance of the certificate.

Between 1963 and 1996, Suncor operated a Petro-Canada service station and garage in Burnaby which contaminated that site and an adjacent property owned by the City of Burnaby.  Suncor carried out an investigation, partial remediation and risk assessments of those lands, and in December of 2015, the Director certified that Suncor had satisfactorily remediated both properties.  The City, however, believed that Suncor had failed to properly remediate the City Lands and appealed to the Board. 

The Board determined the City did not have a right to appeal the Director’s certificate in respect of the former service station site because the certificate did not prejudice the City’s interests.  The Board found that the City could mount its arguments on its appeal of the certificate concerning its own  property.

Applying a deferential standard of review, the BC Supreme Court found the Board’s  decision to be reasonable, taking into account the Board’s expertise in contaminated sites and the interpretation of the Environmental Management act.

Mark Underhill acted as counsel for  the Environmental Appeal Board.

 The full judgment can be found here.  

B.C. Supreme Court Stays Proceedings in International Grain Dispute

In one of the first decisions to enforce the arbitration rules of the Grain and Feed Trade Association (GAFTA), the B.C. Supreme Court has stayed a civil claim seeking damages in a contractual dispute regarding the quality of green lentils which were shipped from Canada to Iran.  The defendant argued that any dispute as to the quality of the goods ought to be first brought to arbitration under GAFTA rules, which the defendant said were incorporated into the sales contracts.  The plaintiff took the position that the rules were not clearly incorporated, and the Supreme Court should first  determine whether a binding arbitration agreement existed.

The Supreme Court sided with the defendant, holding that the plaintiff’s position was contrary to the “competence-competence” principle which confirms the authority of arbitrators to determine their own jurisdiction.  Justice Milman held that any determination as to whether the GAFTA arbitration provisions were successfully incorporated into the sales contracts ought to be made by arbitrators who have specialized expertise in the industry, and accordingly stayed the proceedings under the International Commercial Arbitration Act.  

Mark Underhill and David Wu acted for the defendant.  Arvay Finlay LLP has experience in commercial arbitration matters, including stay and appeal proceedings under the Arbitration Act and the International Commercial Arbitration Act.

The full judgment can be found here.

Private Law Claims Based on Violations of Customary International Law Not Bound to Fail

Today the Court of Appeal dismissed an appeal in which a BC Corporation applied to have an action stayed in B.C. on the basis that Eritrea was the forum conveniens. The Court accepted that there was a “real risk” of corruption and unfairness in the Eritrean legal system. 

The Court also dismissed an appeal from an order refusing to strike the claim that was sought by the BC Corporation based on the doctrine of act of state, which precludes a domestic court from adjudicating on the legality or validity of legislation of a foreign state or acts done by officials of a foreign state. The Court held that the doctrine was not applicable, and in any event the public policy limitation to the doctrine applied in light of the grave nature of the wrongs asserted by the plaintiffs which included forced labour, slavery and torture.

Finally, the Court dismissed the he BC Corporation's application to have causes of action based on customary international law struck out. The BC Corporation argued that even though Canada is a party to the Convention Against Torture, there is no right in Canada to a civil remedy for acts of torture committed outside Canada. Although prior Canadian decisions against foreign states have declined to recognize private causes of action for breaches of peremptory international norms, this case involves a claim against a private party and was not bound to fail. Developments in transnational law leave open the possibility that an incremental development in the law reflecting customary international law norms in private law remedies might be appropriate.

Alison M. Latimer and Tamara Morgenthau acted for the Intervenor, EarthRights International.

To read the full decision, click here.


Privacy of Residential School Survivors Protected

The Supreme Court of Canada, in a unanimous decision, has protected the confidentiality of the sensitive records of survivors of residential schools.  The ruling permits survivors to consent to the preservation of their records, but places the power to make that decision squarely with the survivors themselves.  If no consent is obtained, the records will ultimately be destroyed, and the privacy of the survivor preserved.

The Government of Canada had argued that they were entitled to hold these records and ultimately to make them available in the Archives of Canada whether or not the survivor consented to this disclosure.  However, as the Chief Adjudicator has stated, making this information public would be an "appropriation of their experience", is contrary to the promises made to the survivors, and ultimately is not consistent with the paramount principle of reconciliation.

The Court's decision is a great outcome for those survivors of the residential school tragedy who were promised that their horrific stories of physical and sexual abuse would remain  private and confidential.  

Arvay Finlay partners, Joseph J. Arvay, QC and Catherine Boies Parker, were counsel for the Chief Adjudicator in this matter. 

A copy of the decision can be found here: 

We're putting the band back together...

We are very pleased to welcome Joseph J. Arvay, OC, QC to the partnership, effective October 1, 2017. Joe is one of the preeminent litigators in Canada, particularly in the areas of constitutional, human rights, and aboriginal law.  You can access his full bio on our website here .

Effective the same date, Underhill, Boies Parker, Gage and Latimer LLP, will change its name to Arvay Finlay LLP, reconstituting the leading litigation boutique co-founded by Joe, the late John Finlay, QC, and Murray Rankin, QC, MP in 1990.   Each of our partners got their start at that exceptional firm, and we look forward to carrying on its legacy of excellence, specializing in complex litigation, appeals, and public law.

Court Defers to Environmental Appeal Board

"In rural British Columbia, water is a precious commodity." That statement set the stage for a BC Supreme Court decision addressing the management of water in the province's interior.  The matter proceeded by judicial review from a decision of the province's Environmental Appeal Board (EAB) upholding an approval of a change to a stream.  At the hearing before the EAB, the appellants raised environmental and practical concerns, as well as constitutional questions about the province's authority to regulate riparian and other water rights.   After a lengthy hearing, the EAB ultimately upheld the approval, while imposing some additional monitoring requirements. Upon judicial review, the BC Supreme Court upheld both the fairness of the EAB process and the reasonableness of the EAB's decision, all while confirming the high level of deference owed to this specialized tribunal.  

The Environmental Appeal Board is a specialized appeal tribunal that hears appeals from certain decisions made by government officials related to environmental issues.

Robin Gage was counsel for the Environmental Appeal Tribunal.  We have broad experience in administrative law matters, and significant expertise in the area of environmental law. 

The full decision can be found here:  Lindelauf v. British Columbia (Assistant Regional Water Manager)

Privacy Commissioner’s Interpretation of “Artistic” and “Journalistic” Work Upheld

British Columbia’s Personal Information and Privacy Act (“PIPA”) is one of several pieces of provincial legislation that protects the privacy rights of BC citizens. PIPA regulates how private sector organizations can collect, use and disclose information, and how citizens can access their personal information from such organizations. Notably however, PIPA does not apply in certain circumstances, including when the collection, use or disclosure of personal information is “for journalistic, artistic or literary purposes and for no other purpose”.

Recently, Madam Justice Adair of the BC Supreme Court upheld the decision of a Privacy Commissioner investigator who found that a complaint regarding the filming of a documentary series at the Canadian-US border constituted “artistic” or “journalistic” work and therefore PIPA did not apply. This case is one of the very few cases that have involved the interpretation and application of the “artistic” or “journalistic” exception under privacy legislation.

Catherine Boies Parker and David Wu were counsel of the Information and Privacy Commissioner of BC.  We have broad experience in administrative law matters, and has significant expertise in the area of privacy law.

The full decision can be found here: Taylor v. BC (Information and Privacy Commissioner).

Alberta Court Gives Green Light to Summary Trial

Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  As trials become increasingly expensive and protracted, summary trials offer an effective and affordable means of enforcing rights. This week, the Alberta Court of Queen's Bench dismissed a preliminary objection to proceeding by summary trial in a breach of contract claim by a First Nations leader who spent decades negotiating and advocating for the creation of the Peerless Trout First Nation.  Mark Underhill and co-counsel Bram Rogachevsky represented the plaintiff, whose claim will proceed to a summary trial in September of 2017.  

We understand the need to find the right strategy to resolve our clients' disputes in an efficient and cost-effective manner, including the use of summary trial procedures where appropriate.

To read the decision, click here.

B.C. Supreme Court Rejects Easement Claim

Mark Underhill successfully obtained summary dismissal of a claim for an easement over and/or expropriation of his client’s land.

The plaintiff held a water licence for the purpose of accessing water from a nearby creek by way of a ditch across his neighbour’s property.  However, the BC Supreme Court concluded that the plaintiff did not have an implied easement to operate any irrigation ditches both because the ditches were not the subject of continuous use and because any implied easement would have been granted by a different person than the current property owners. 

The plaintiff’s request to expropriate a ditch that was not envisioned on his water licence was also denied because it would unreasonably interfere with the defendant’s use and enjoyment of his property, and was not necessary to the exercise of the plaintiff’s water rights.

We have a broad civil litigation practice with experience resolving disputes arising under complex legislative regimes like this one which arose under the Land Title Act and Water Sustainability Act.

To read the full judgment, click here.

Federal Court Refuses to Interfere in Administrative Process

Today the Federal Court issued its decision in Northern Cross (Yukon) Limited v Canada (Attorney General, 2017 FC 622. The case concerns an application for judicial review pursued by a company involved in the exploration for and potential development of crude oil and natural gas in Yukon. A designated office of the Yukon Environmental and Socio-economic Assessment Board determined to refer the project to the Executive Committee of the Board for a screening because, after taking into account any mitigative measures included in the project proposal, it could not determine whether the project would likely have significant adverse socio-economic effects. The company applied for judicial review of that decision.

The Court accepted the argument of the Respondent and the Board and held that the applicant's application for judicial review was premature. Absent exceptional circumstances, the Court will not interfere with an ongoing administrative process until after that process has been completed or until the available, effective remedies have been exhausted. A designated office's decision may be subject to judicial review when the designated office makes a recommendation to the decision body or bodies for the project to be allowed, not allowed, or allowed with terms and conditions. A decision to refer assessment of a project to the Executive Committee for a screening does not complete or end the administrative assessment of a project before the Board. A referral decision is merely one to continue the assessment of a project at a higher level in the review process established under the Act.

This decision accords with the jurisprudence that holds that generally speaking courts are reluctant to review the merits of an administrative decision until it has been finalized. Applications for judicial review are properly brought at the conclusion of an administrative process after all issues have been determined and the reviewing court has the benefit of the complete record.

Alison M. Latimer and Joseph J. Arvay, Q.C., acted for the Board in this proceeding. To read the full decision, click here.

We have broad experience in administrative law matters, including environmental assessment procedures.

Alison M. Latimer and Joseph J. Arvay, Q.C. are called to the bar in the Yukon.


BC Supreme Court Grants Partial Mareva Injunction

Justice Steeves of the BC Supreme Court granted a partial Mareva injunction to a plaintiff seeking to enforce a multi million dollar judgment obtained in China.  Mark Underhill and David Wu of Underhill Boies Parker Gage & Latimer LLP  represented the plaintiff in obtaining this extraordinary remedy. The injunction prevents the disposition or dissipation of the defendants’ assets in British Columbia while the plaintiff pursues its claim, and ensures  that any judgment the plaintiff might ultimately obtain would not be a hollow one. To read the full judgment click here.

We have a broad civil litigation practice and is experienced in obtaining fast and effective remedies for clients involved in complex and time sensitive litigation.

Supreme Court of Canada Grants Federation of Law Societies Leave to Intervene

Today the Supreme Court of Canada granted the Federation of Law Societies leave to intervene in Joseph Peter Paul Groia v. Law Society of Upper CanadaThe appeal concerns the scope of the jurisdiction of the Law Society of Upper Canada with respect to in-court conduct of its members. It raises significant questions of national importance about the extent to which any law society in Canada may regulate uncivil in-court conduct in light of the duties of zealous advocacy and loyalty to the client’s cause, the independence of the judiciary, and the free expression of members of the law society.

Alison Latimer and Greg Delbigio Q.C. act for the Federation of Law Societies.

EarthRights International Granted Leave to Intervene

The British Columbia Court of Appeal has today granted leave to intervene to EarthRights International in an appeal from this decision Araya v. Nevsun Resources Ltd., 2016 BCSC 1856.

The proceeding raises issues of transnational law being the term used for the convergence of customary international law and private claims for human rights redresses and which include: (a)  whether claims for damages arising out of the alleged breach of jus cogens or peremptory norms of customary international law such as forced labour and torture may form the basis of a civil proceeding in British Columbia; (b) the potential corporate liability for alleged breaches of both private and customary international law. This in turn raises issues of corporate immunity and whether the act of state doctrine raises a complete defence to the plaintiffs’ claims.

EarthRights International has been granted leave to make submissions on the Act of State doctrine and norms of customary international law.

EarthRights International is a nongovernmental, nonprofit organization that combines the power of law and the power of people in defense of human rights and the environment. To read more about their essential work, click here

EarthRights International is represented by Alison Latimer and Tamara Morgenthau.

Welcoming David Wu to the Firm

We are pleased to announce that David Wu has joined our firm.

David Wu is a graduate of UBC’s Allard Law School and completed a clerkship at the British Columbia Court of Appeal prior to being called to the bar in 2016. David works on a range of civil litigation matters with a particular interest on areas of public law.

To find out more about David, please click here.

BC Supreme Court Protects Jurisdiction of Environmental Appeal Board

In a recent decision striking out various parts of a petition for judicial review, Justice Donegan of the BC Supreme Court confirmed the expert role of the Environmental Appeal Board to hear appeals on a variety of environmental matters, and held that the Courts only had a limited supervisory role in reviewing decisions of the Board.   Justice Donegan noted that the Provincial Legislature had specifically chosen to entrust the Board with that broad jurisdiction, and that choice, combined with the tribunal’s established expertise,  meant that the courts should generally defer to the Board’s decisions, and be careful not to substitute  the courts’  view of the evidence and issues for that of the Board.   Underhill, Boies Parker, Gage & Latimer LLP were counsel for the Environmental Appeal Board on this application.

The decision can be found here:  Lindelauf v. British Columbia, 2017 BCSC 626

Underhill Secures Landmark Victory on Aboriginal Hunting Rights

In a landmark decision, the Provincial Court of British Columbia ruled today that Richard Desautel, a Sinixt descendant resident in the United States, has 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 licence, near Castlegar, B.C. He is a member of the Lakes or Sinixt tribe of the Confederated Tribes of the Colville Reservation in Washington State, and asserted a constitutionally protected right to hunt in Sinixt traditional territory in Canada. Sinixt territory stretches north from the Colville Reservation to the area in and around the Arrow Lakes in British Columbia.

At a lengthy trial held over several weeks in the fall of 2016, considerable expert evidence was led concerning the history and movement of the Sinixt, who travelled, fished and hunted for centuries throughout their traditional territory on both sides of the border, following a seasonal round. In the latter part of the 19th century, owing to a number of forces, many Sinixt moved south of what is now the international border. Legislation was later introduced to specifically make it illegal for the Sinixt to hunt in Canada. And in 1956, despite having knowledge of Sinixt people living on both sides of the border, the Canadian government declared the Arrow Lakes Indian Band to be “extinct”, paving the way for hydroelectric development in the area.

Notwithstanding that difficult history, Justice Lisa Mrozinksi held that the rights of the Sinixt people endured:

Members of the Lakes Tribe of the CCT who testified stated that they have always hunted; that they have maintained and not forgotten many of their Sinixt ancestors’ hunting traditions; that they continue to try to foster those conditions even against the headwinds of the modern world; and that they want to hunt in Sinixt traditional territory in British Columbia.

Rick Desautel commented that the decision “is of tremendous spiritual importance to all Sinixt people, and is entirely consistent with our indigenous and natural laws. I look forward to further strengthening our ties to our Canadian traditional territory and with the people of British Columbia”.

Dr. Michael Marchand, Chairman of the Colville Confederated Tribes, and one of the Sinixt witnesses who testified at trial, stated that:

Today’s ruling closes a dark chapter in the history of the Sinixt. We are very pleased that our history and identity, which are tied up in the spiritual and cultural significance of hunting, have finally been recognized by the Canadian courts, and while we know that further court proceedings lie ahead, we intend to begin a new chapter by focusing on the process of reconciliation and finding our proper place within Canadian society.

Mark Underhill, lead counsel for Mr. Desautel, added, “This decision affirms a simple but fundamentally important principle – no law, government policy or even international border can erase Aboriginal identity. All Sinixt people, regardless of where they now live, can finally start to feel whole again.”

To read the full decision click here.

BC Supreme Court upholds expertise of Environmental Appeal Board

The BC Supreme Court has once again held that on the Court must give decisions of the Environmental Appeal Board substantial deference on judicial review.  In doing so, Justice MacKenzie rejected arguments aimed at narrowing the Court's understanding of the Board's expertise and applying the "general question" exception to the presumption of reasonableness. In upholding the Board's substantive decision Justice MacKenzie also confirmed the way in which the deferential standard of reasonableness ought to be applied by the reviewing court.  Robin Gage was counsel for the Environmental Appeal Board in this judicial review hearing.    

The Court's decision can be found here: Harrison Hydro Project Inc. v. Environmental Appeal Board, 2017 BCSC 320   

Retail Action Network to Intervene in SCC Appeal

The Retail Action Network (RAN), has been granted leave to intervene in the appeal of a human rights case in the Supreme Court of Canada.  RAN is a Victoria-based grass-roots organization that represents and advocates for the rights of vulnerable workers in the Retail, Food Service, and Hospitality Industries.  The appeal is from the BC Court of Appeal's decision in Schrenk v. British Columbia (Human Rights Tribunal), and raises issues about the jurisdiction of the BC Human Rights Tribunal to consider complaints of discrimination arising in a workplace setting.  RAN is concerned that the Court of Appeal's ruling may result in diminished protection from harassment and discrimination for the most vulnerable workers.   The Supreme Court of Canada is scheduled to hear the appeal on March 28, 2017.  Catherine Boies Parker and Robin Gage, together with the BC Public Interest Advocacy Centre (PIAC) represent RAN in this matter.