On June 25, 2009, I reported on the decision in Fresco v. Canadian Imperial Bank of Commerce, in which a Superior Court judge refused to certify a class action for employees of CIBC claiming overtime pay. The issue has now been revisited in a proposed class action brought by employees of Scotiabank. In his decision in Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148, Mr. Justice George Strathy of the Superior Court of Justice came to the opposite conclusion from that of his counterpart in the CIBC case, holding that systemic issues relating to the bank’s conduct made the class action a preferable procedure to that of individual claims by affected employees. The crux of Justice Strathy’s decision on the point is set out below:

“The obligation of the employer to take active measures to prevent uncompensated overtime being worked has been recognized in labour arbitrations applying the Code: see Referee Emrich in T-Line Services Ltd. v. Morin, [1977] C.L.A.D. No. 422 at para. 33-34:

It is within the control and discretion of management to establish the hours of work and to supervise the work force effectively to avoid the triggering of overtime liability. Thus it is reasonable to cast the onus upon management to take active measures to regulate the hours that employees may work. In the absence of such measures, the employer runs the risk that through oversight or omission, workers are permitted to work overtime and thereby liability to pay overtime is triggered …

Viewed from this perspective, it is arguable that Scotiabank’s policy put too much emphasis on the employer’s interests and insufficient emphasis on the interests of Class Members. It is also arguable that it failed to protect Class Members against the risk that they would be required to work uncompensated overtime because of the demands of the jobs or their superiors. There is a basis in fact in this case for common issues based on the duty of Scotiabank to establish and implement a fair process to fulfill the duties it owed to the Class in relation to their overtime work.

The resolution of the issue of whether Scotiabank had a duty to put a fair and reasonable overtime system in place, and whether its system (including the pre-approval requirement) fulfilled this duty, is one that will advance the claim of every Class Member. If a common issues judge were to find that there was such a duty and that Scotiabank’s system was unfair and unreasonable, the absence of pre-approval would not be a defence to an individual overtime claim. While Scotiabank now acknowledges, and its new policy appears to reflect, that it has an obligation to pay overtime that has been “permitted,” its pre-2008 policies and practices did not reflect this acknowledgement.

There is also a factual basis for a common issue concerning Scotiabank’s record-keeping system. Scotiabank’s position is that the Plaintiff has failed to advance any evidence of a systemic flaw in its recordkeeping practices, and because the implementation of those practices was at the branch level, any inquiry into how records were kept must be conducted branch-by-branch and cannot be resolved on a Class-wide basis. I do not accept this. It amounts to Scotiabank saying that its record keeping system was so decentralized, varied and idiosyncratic that every claim for overtime must be examined on a case-by-case basis. Scotiabank cannot point to its own record keeping failures to defeat certification. This would not be an acceptable way for a bank to manage its customers’ money and it is not an acceptable way to manage the compensation to which its employees are entitled. There is evidence that, for most of the Class Period, Scotiabank did not have an adequate system in place for the recording of regular time and overtime worked by Class Members. The staff plan was nothing more than a record, prepared in advance, of the hours that employees were scheduled to work. It was not a record of hours actually worked. While employees were supposed to check and correct their hours after the fact, Scotiabank’s policy prevented them from recording and claiming for hours that had not been pre-approved. The “Catch 22” gave them no reason to record the hours they actually worked because they would not be paid unless the overtime had been pre-approved. The bank had no consistent corporate policy or system applicable to all branches, for the tracking of overtime. It had no system of tracking time in lieu” or of ensuring it was “cashed out”. It is appropriate to ask whether this was a breach of a duty owed to the Class.

The evidence before me, therefore, provides a basis in fact to ask whether Scotiabank owed duties to the Class to put policies and procedures in place to prevent overtime from being worked without compensation and to properly record all hours of overtime worked, whether pre-approved or not. There is also a basis to ask whether those duties were breached. The answers to these common issues do not depend on individual findings that have to be made with respect to each individual claimant. The answers will significantly advance the action because if they are answered in the affirmative the absence of pre-approval in any particular case may be irrelevant and the inability of an employee to prove the quantum of overtime hours worked may not be fatal to the claim. A conclusion by the common issues judge that the bank had a duty to pay overtime that was permitted or required, and that it breached a duty to establish a system to properly record such overtime, could result in a conclusion that the failure to prove overtime hours worked is not a bar to recovery, or that the absence of records is not an impediment to proof of damages.”

In an interesting decision released March 16, 2010, Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, the Court of Appeal for Ontario had occasion to consider the importance of reasons for judgment given by an administrative tribunal. The case arose out of allegations that lawyer Gary Neinstein had sex with a client and made untoward remarks to an employee at his firm. Mr. Neinstein categorically denied the allegations, in what the Court referred to as “a classic she said he said” case. A Law Society Hearing Panel determined that the allegations had been made out and ordered that Mr. Neinstein be disbarred. An Appeal Panel allowed the appeal, but a further appeal to the Divisional Court resulted in reinstatement of the Hearing Panel’s decision and the imposition of a three month suspension. The Court of Appeal allowed the appeal and ordered a new hearing on the basis that the Hearing Panel had failed to properly explain why it accepted the evidence of the complainants over that of Mr. Neinstein given substantial conflicts on disputed points in the evidence. The decision is noteworthy for its imposition of the same requirement for adequate reasons in the administrative law context as has been set out in the criminal law context.

The other interesting aspect of the decision relates to an application to admit fresh evidence brought by Mr. Neinstein. The chairman of the Hearing Panel, George Hunter, resigned from his position as Treasurer of the Law Society several years after the hearing as a result of a complaint, which he admitted, that he had consensual sex with a client which was ongoing at the time of the hearing. Mr. Neinstein argued that this gave rise to a reasonable apprehension of bias. Mr. Justice David Doherty of the Court of Appeal described the argument made by Mr. Neinstein’s counsel and the Court’s disposition of it in the following terms:

“When asked how Mr. Hunter’s circumstances could give rise to a reasonable apprehension of bias in this matter, Mr. Greenspan offered the following scenario: a reasonable person, informed of Mr. Hunter’s misconduct, could conclude that Mr. Hunter could be disposed to deal harshly with Mr. Neinstein because he knew at the time he was presiding over Mr. Neinstein’s hearing that his own sexual misconduct might come to light and become the subject matter of a professional discipline inquiry at some future point. In treating Mr. Neinstein harshly, Mr. Hunter would hope to create an image of himself at the Law Society as someone who would not tolerate sexual misconduct in a professional context. That image, so goes the scenario painted by Mr. Greenspan, could potentially be seen by Mr. Hunter as helping him if his conduct ever became the subject matter of an investigation or a disciplinary proceeding.

The scenario painted by Mr. Greenspan cannot be dismissed as an outright impossibility. It is, however, based on speculation that goes well beyond the kinds of reasonable inferences that can be made in assessing a reasonable apprehension of bias claim. Individuals who sit in courts or tribunals and are required to make independent and impartial decisions have private lives. Some may do things in those private lives that may be improper or illegal. Those misdeeds may subsequently come to light and become the subject matter of some form of inquiry. To suggest that decision-makers could reasonably be viewed as being influenced by considerations of what might best serve their interests at some unknown future date if some past impropriety should come to light and become the subject of some form of inquiry is farfetched, and stretches the concept of a reasonable apprehension of bias beyond all practical limits. In so holding, I do not exclude the possibility that in a given case there may be evidence that elevates the speculation underlying Mr. Greenspan’s submissions to the level of legitimate inference. I do, however, reject the submission that the necessary link between Mr. Hunter’s personal misconduct and the appearance of partiality can be made on the abstract level presented on this appeal.

The proffered evidence is not capable of supporting a finding of a reasonable apprehension of bias as regards to Mr. Hunter. It is, therefore, irrelevant to these proceedings and should not be received on appeal.”

An advertisement by a group calling itself Keep America Safe has caused an uproar in the close knit ranks of the conservative legal community in the United States. Keep America Safe was started by Elizabeth Cheney, daughter of former Vice-President Dick Cheney, and commentator William Kristol. The ad takes aim at lawyers in the Obama administration Justice Department and calls their patriotism into question for legal work done on behalf of Guantanamo Bay detainees before their government service. The lawyers are referred to in the ad as “The Al Qaeda 7.”

To their great credit, a number of legal scholars and former government officials have come forward to protest these outrageous accusations. In a statement published on March 8, 2010, the authors write:

“The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honourable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honourable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.”

This important statement was signed by, among others, former senior officials in the Bush administration as well as Kenneth Starr, prosecutor in the Monica Lewinsky scandal involving Bill Clinton. Writing in the March 10, 2010 edition of the Wall Street Journal, former Bush Attorney General Michael Mukasey also joined the call:

“It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility – whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It’s also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.

But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client’s views or behavior.

If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all.”

In the most recent edition of the Criminal Lawyers Association Newsletter, there is a reprint of the speech given by Mr. Justice Marc Rosenberg of the Ontario Court of Appeal on his receipt of the prestigious Martin Criminal Justice Award. Justice Rosenberg was a distinguished member of the criminal defence bar before his appointment to the Court in 1995. The award, named after legendary criminal lawyer and appellate court judge G. Arthur Martin, is the highest expression of esteem the Association can give.

In his speech, Mr. Justice Rosenberg praised the criminal defence bar for their essential role in safeguarding constitutional rights and the right to a fair trial. Those in attendance however could not have missed Justice Rosenberg’s reference to comments made by his colleague on the Court, Mr. Justice Michael Moldaver, himself a distinguished criminal defence lawyer while in private practice. Speaking before the Association in 2005, Justice Moldaver had caused a firestorm when he voiced complaints about the ever increasing length of criminal trials and the number of motions brought by defence lawyers under the Charter of Rights. The suggestion that unmeritorious motions were being brought to increase legal fees or squander precious legal aid funds hit a raw nerve. While Justice Rosenberg did not refer directly to Justice Moldaver’s views, some of the comments he made were aimed in that direction:

“When complaints are voiced about Charter motions making trials longer and overly complex, we must all step back and think about the broader context in which those Charter applications are being brought. No doubt, there are some Charter motions that should have been left on the cutting room floor. But we cannot lose sight of the fact that there is no one else out there whose job, day in and day out, in every case, is to ensure that the state is held to account, and to abide by the fundamental rules and the supreme laws that we want our society to be guided by.”

There is no doubt that co-operation between the participants in the criminal justice system and the exercise of a firm hand by trial judges, will speed up the trial process and benefit the administration of justice. Justices Moldaver and Rosenberg would undoubtedly agree on the point. This extra-judicial debate between senior colleagues of a Canadian appellate court, however, is exceedingly rare.

On February 2, 2010, the Court of Appeal for Ontario released decisions involving the jurisdiction of Ontario Courts for accidents occurring outside the Province. The decisions in Van Breda v. Village Resorts Limited and Charron v. Bel Air Travel Group Ltd., 2010 ONCA 84, involved a serious accident and death while the Plaintiffs were vacationing in Cuba. The question at issue was whether Ontario Courts could assume jurisdiction over the resulting actions, or whether the claims would have to be brought in Cuba. The issue is an important one. With the ease and frequency of travel, it is to be expected that some travellers will meet with injury while outside of their home jurisdiction. When the injured person returns home and is required to seek medical attention, the venue of a legal action can take on real practical importance.

The appeals in the two cases had been argued in April, 2009. While the decisions were under consideration, the Court decided that it would take the opportunity to revisit its earlier ruling in Muscutt v. Courcelles and four companion cases. The cases dating back to 2002, which had come to be known as the Muscutt quintet, set out an eight part test for deciding whether Ontario Courts should assume jurisdiction in cases involving accidents occurring outside the Province. As a result of academic criticism that the multi-factored test had created too much uncertainty and discretion, the Court of Appeal decided that a second look at the issue was required. The Court convened a five judge panel and the parties were invited to reargue the appeals, with particular attention to the continued viability of the Muscutt framework. I became involved in the matter at that point, as counsel for the intervenor the Ontario Trial Lawyers Association.

The resulting decisions were authored by Mr. Justice Robert Sharpe, who had also written the decisions in the Muscutt quintet. Justice Sharpe agreed that, after seven years in the litigation trenches and hundreds of similar cases, the Muscutt quintet was due for a “tune up.” He disagreed, however, with the overarching criticism that the decisions created too much uncertainty, stating “In my view, the submissions of the appellants exaggerate both the degree of uncertainty produced by Muscutt and the degree of certainty and predictability that would be achieved by adopting CJPTA.” (the Court Jurisdiction and Proceedings Transfer Act enacted in four Provinces) Justice Sharpe went on to propose “clarifications and modifications” to the Muscutt test which are designed to simplify the analysis, stating:

“The core of the real and substantial connection test is the connection that the plaintiff’s claim has to the forum and the connection of the defendant to the forum, respectively. The remaining considerations or principles serve as analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant.”

Regarding the criticism that considerations of fairness had created a test that was too discretionary, Justice Sharpe again clarified that:

“consideration of fairness should not be seen as a separate inquiry unrelated to the core of the test, the connection between the forum, the plaintiff’s claim and the defendant. Consideration of fairness should rather serve as an analytic tool to assess the relevance, quality and strength of those connections, whether they amount to a real and substantial connection, and whether assuming jurisdiction accords with the principles of order and fairness.”

The intent of these important decisions is to try and simplify this complex and difficult area of the law. It will be interesting to see how the decisions are applied in practice.

On December 22, 2009, the Supreme Court of Canada revolutionized the law of defamation by recognizing a new defence of responsible communication on matters of public interest. Henceforth, Defendants to a libel action will no longer have to prove the truth of the offending statements in order to avoid liability. Rather, the Court held that the constitutional guarantees of freedom of the press and freedom of expression enshrined in section 2(b) of the Charter of Rights and Freedoms mandate that breathing space be given to those who publish on matters of public importance. In other words, Defendants have the right to be wrong so long as their journalism is practiced responsibly.

The decision, Grant v. Torstar Corporation, 2009 SCC 61, arose out of a June 2001 article in the Toronto Star involving Peter Grant, a businessman and friend of then Ontario Premier Mike Harris. Grant was proposing to build a nine hole golf course on his lakefront estate and required approval of the Ministry of Natural Resources. Local cottagers were concerned about the development and believed that Grant’s political ties would lead to a perfunctory approval process. The headline told the story: “Cottagers teed off over golf course – Long-time Harris backer awaits Tory nod on plan.” One cottager was quoted as saying: “Everyone thinks it’s a done deal because of Grant’s influence, but most of all his Mike Harris ties.” The resulting lawsuit by Grant led to a jury verdict in his favour of $1,475,000, including a million dollar punitive damage award.

In allowing the appeal and ordering a new trial, the Court decided that the traditional defences to a libel action paid insufficient regard to the need to protect freedom of the press:

“Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards. But to insist on court-established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate. The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.”

This reasoning is undoubtedly right, but in coming to its decision the Court slid over an earlier ruling on the same subject. In Hill v. Church of Scientology of Toronto, decided in 1995, the Court had stated that “defamatory statements are very tenuously related to the core values which underlie s. 2(b).” In balancing the right to freedom of expression against the protection of reputation, the Court in Hill came out firmly on the side of protecting reputation. The Court has now recalibrated the analysis in a way that more clearly takes account of constitutional rights.