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.”

On May 14, 2009, the Court of Appeal for Ontario released a decision in a case that I was involved in on behalf of the plaintiffs. The decision, Silvestri v. Hardy, 2009 ONCA 400, concerned an action brought in Ontario as result of a car accident in Michigan. The plaintiff resides in Hamilton and has sought medical attention in Ontario due to the injuries she sustained in the accident. The defendant claims that the accident was caused by an unidentified driver who he was seeking to avoid when he collided with the plaintiff. Given this position, the plaintiff was required to take action against her own insurer pursuant to the unidentified motorist provisions in the insurance policy. This part of the claim must proceed in Ontario.

The question at issue on the appeal was whether the action should be heard in the Ontario courts or whether Michigan was the more appropriate forum for the resolution of the dispute. A Superior Court judge had ruled that the action should be heard in Michigan, as there were a number of witnesses to the accident who are resident there, and Michigan law would govern the action. The Court of Appeal reversed the decision and held that the action should proceed in Ontario.

The Court noted that the number of witnesses for each side were evenly divided, but that if the action were tried in Michigan there would be the possibility of inconsistent verdicts given that the claim by the plaintiff against her own insurer would have to proceed in Ontario. As a result, the overriding goals of efficiency and justice which underlie the system of conflicts of law mandated that the action proceed in Ontario rather than Michigan.

While the Court did not have to consider the issue, it can be said that statutory provisions in Ontario make the forum of the dispute of lesser importance in car accident cases that occur in North America. Section 243(1) of the Insurance Act provides that automobile insurance provided for under the Act applies to the use or operation of a vehicle in Canada or the United States. Section 252(1) of the Act provides that in the case of liability arising out of the use or operation of a vehicle in Canada or the United States, the insurer is liable up to the minimum limits prescribed for in that province, territory or jurisdiction if those limits are higher than the limits in the policy, and the insured appoints the insurer to appear and defend an action in any province or territory of Canada or any jurisdiction in the United States. Section 57(1) of the Statutory Accident Benefits Schedule provides that the insurer is required to pay accident benefits properly payable if the accident occurred in another province or territory of Canada or a jurisdiction in the United States.

In light of these provisions, it can readily be seen that, insofar as the rights and obligations of the insured person and the insurer are concerned, there is little difference if a car accident occurs in Ontario, Canada or Ontario, California.

There is an interesting decision out today from the Court of Appeal for Ontario on the technical but important issue of the jurisdiction of the court. The decision, Mignacca v. Merck Frost Canada Ltd., 2009 ONCA 393, involves a class action lawsuit over the drug Vioxx. An Ontario Superior Court judge had certified the case as a class action. Under the Ontario Class Proceedings Act, section 30(2), appeal of an order certifying a proceeding as a class proceeding can be brought to the Divisional Court with leave of a Superior Court judge. Merck Frost brought such a motion but was refused leave to appeal in November 2008. In the meantime, on March 30, 2009, an earlier certification decision in Saskatchewan was set aside by the Saskatchewan Court of Appeal. Relying on that decision, Merck Frost sought an extension of time to seek leave to appeal to the Court of Appeal from the decision of the Superior Court judge denying leave to appeal. The motion was heard by a single judge in Chambers, Mr. Justice Paul Rouleau.

Mr. Justice Rouleau decided that an extension of time for leave to appeal was not required, since the decision of the Superior Court judge refusing leave to appeal could be construed as a final order. Under section 6(1)(b) of the Courts of Justice Act, final orders of a Superior Court judge can be appealed to the Court of Appeal without leave. While not finally deciding the issue, Justice Rouleau stated that, in the event Merck Frost considered the order to be a final one, they were given a ten day extension of time to appeal. The Plaintiffs could then seek to quash the appeal by a motion brought before a panel of the Court of Appeal.

In my view, there is considerable doubt the legislature intended that a refusal of leave to appeal the granting of a certification order could be appealed directly to the Court of Appeal. This would only serve to encourage further review of certification orders, which the legislature intended would be screened out by way of the leave to appeal procedure to the Divisional Court. Given that Justice Rouleau has suggested the Plaintiffs can seek to quash the appeal which will undoubtedly be brought by Merck Frost, we have clearly not heard the last of this issue.

It is a fundamental aspect of our civil justice system that parties to a lawsuit are required to make available to their opponent any relevant document relating to the matters in issue in the action. It does not matter if the document helps or hurts the cause, it must be produced. Lawyers, and particularly insurance lawyers defending personal injury claims, are waking up to the relevance of social media sites such as Facebook. The argument goes like this: “You Mr. or Ms. Plaintiff are claiming that injuries suffered in the accident have interfered with your quality of life. We would like to see how you portray yourself in your communication with friends on Facebook.”

In a thoughtful decision, Justice David Brown of the Ontario Superior Court of Justice had occasion to consider this argument in a recent case called Leduc v. Roman, 2009 CanLII 6838. Mr. Leduc had been involved in a car accident in February 2004. He brought an action claiming that his enjoyment of life and ability to engage in sports had been adversely affected. The defence lawyer conducted a search and learned that Mr. Leduc maintained a Facebook account. The profile available to the public showed only his name and picture. Access to the site was restricted to “friends” of Mr. Leduc. The defence brought a motion for production of information on the site. A Master of the Superior Court dismissed the motion, characterizing it as a “fishing expedition.”

Justice Brown heard the resulting appeal. He started by outlining some basic facts. Facebook is a social media website with 70 million users as of June 2008. More than 14 million photos are uploaded daily. Users can create a wall on which friends share messages with each other. Justice Brown quoted from an earlier decision on the important issue of privacy: “I have concluded that any invasion of privacy is minimal and is outweighed by the defendant’s need to have the photographs in order to assess the claim. The plaintiff cannot have a serious expectation of privacy given that 366 people have been granted access to the private site.” Justice Brown went on to articulate a rule for future cases: “Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.”

Mr. Leduc was ordered to deliver a further affidavit of documents and the defence lawyer was permitted to cross-examine on the affidavit so as to discover precisely which of the contents on the private site were relevant to the issues in the action. Justice Brown concluded by making the following observation: “To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

With these observations in hand, it seems to me that parties to a lawsuit should indeed now beware of Facebook.