BC Supreme Court Strikes Judicial Review Petition as Abuse of Process

On January 22, 2021, the BC Supreme Court released reasons for judgment striking a judicial review petition which sought to challenge the jurisdiction of the BC Vegetable Commission to regulate the interprovincial sale of potatoes, and the jurisdiction of the Farm Industry Review Board to supervise and hear appeals from the Vegetable Commission. 

The case involved a grower and marketer of regulated potatoes attempting to have the Court overturn multiple decisions of the Vegetable Commission, while those orders were under appeal to the Farm Industry Review Board and the Board was in the midst of regulatory reforms.  The Review Board and the Commission applied to strike the petition on a number of grounds, including that it was an abuse of process. 

The Court agreed that allowing the judicial review to proceed while the Review Board’s processes were ongoing was an abuse of process, and that the petitioners had an adequate remedy through their outstanding appeals to the Review Board. The Court also rejected the petitioners’ argument that the Review Board did not have standing to bring the application to strike, citing the Board’s helpful submissions in determining the issues in the application.  

This important decision affirms the deference the courts must show to a legislature’s decision to have certain disputes resolved before administrative tribunals, and that tribunals are entitled to appear in Court to defend the jurisdiction the legislature has granted them.

Mark Underhill and Kate Phipps of Arvay Finlay acted as  counsel for the Farm Industry Review Board.  The reasons may be found here: https://www.bccourts.ca/jdb-txt/sc/20/21/2020BCSC2138.htm

Boilermakers' Pension Plan - Class Action (Update)

A settlement was reached in February 2020 on behalf of certain former members of Boilermakers’ Lodge 359. The settlement is subject to court approval. The notice to class members regarding certification and settlement is available below. Class members will receive a copy of the notice by email and/or regular mail. If you are a class member and you have not received the notice, please contact Class Counsel by emailing Robin Gage at rgage@arvayfinlay.ca or Aisling Slevin at aslevin@cfmlawyers.ca, to provide your current contact information.

A telephone hearing has been scheduled for 9:00am on February 04, 2021, to ask the Court to approve the settlement agreement and distribution plan. For more information, please refer to the notice or contact Class Counsel.

More information regarding this class action, including access to important documents can be found here: Boilermakers’ Pension Plan

Public Healthcare Protections Upheld After Decade-long Battle

On September 10, 2020, the BC Supreme Court handed down its long-awaited decision in Cambie Surgeries Corporation v British Columbia (AG), 2020 BCSC 1310. In a nearly 3,000 paragraph judgement, the court ruled against the plaintiffs, led by private health care advocate, Dr. Brian Day, to find that the impugned provisions of the Medicare Protection Act (the “MPA”) do not violate the section 7 or 15 Charter rights of the plaintiffs or similarly situated individuals. Cambie Surgeries is a landmark case in affirming the constitutional significance of protecting universal public health care.

The plaintiffs argued that provisions of the MPA violate their section 7 right to life, liberty, and security of the person by laws that discouraged their access to private clinics where, by paying more than what was covered by the MPA, they could jump the queue that applied in the public system. While the court found that the impugned laws deprived some patients of their right to security of the person the laws were held to be in accordance with the principles of fundamental justice and in any event justified by s.1of the Charter.

Joseph Arvay QC  of Arvay Finlay represented a coalition of individuals and organizations  committed to the public medicare system including the BC Health Coalition and Canadian Doctors for Medicare (compendiously described in the decision as the “ Coalition Intervenors”). They argued that “in order to succeed in their s. 7 claim, the plaintiffs must identify the wait time threshold beyond which there is a deprivation of life, liberty or security of the person. The plaintiffs have not defined that threshold and their claim is really for a positive entitlement to private healthcare on demand” (para 1569). Justice Steeves agreed that the plaintiffs’ claim indeed amounted to an argument for a constitutional right to private healthcare on demand, which was rejected.

Although the focus of the plaintiffs’ case was based on what they claimed were unreasonably long wait times in the public system Justice Steeves held:

[16] ….., the expert evidence (including from the plaintiffs’ experts) is that duplicative private healthcare would not decrease wait times in the public system and there is expert evidence that wait times would actually increase). This would cause further inequitable access to timely care.

Justice Steeves  also held that there were many rational reasons for discouraging the growth of a duplicative private  health care system beyond the most fundamental reason that necessary medical care should be based on need and not on wealth: He said:

[15] …. These include rational bases for concluding that the introduction of duplicative private healthcare would increase demand for public care, reduce the capacity of the public system to offer medical care, increase the public system’s costs, create perverse incentives for physicians, increase the risk of ethical lapses related to conflicts between the private and public practices of physicians, undermine political support for the public system, and exacerbate inequity in access to medically necessary care…. Indeed, it would create a second tier of preferential healthcare where access is contingent on a person’s ability to pay.

Read the full judgement here.

Victory in the SCC for Genetic Fairness

On July 10, 2020, the Supreme Court of Canada issued its decision in Reference re Genetic Non-Discrimination, 2020 SCC 17, finding that it is within Parliament’s power to protect the public’s control over the use of their genetic information. This decision is an important victory for privacy rights and health justice, and affirms the validity of federal legislation aiming to protect these interests.

The appellant, the Coalition for Genetic Fairness, successfully defended the Genetic Non-Discrimination Act against the opposition of the Attorneys General of Canada and Quebec as respondents, and the Attorneys General of British Columbia and Saskatchewan as interveners. The Coalition’s position was supported by the Canadian Human Rights Commission, the College of Medical Geneticists, and the Privacy Commissioner of Canada as interveners.

The appeal arose from the Quebec Court of Appeal’s unanimous 2018 decision that the Act exceeded Parliament’s criminal law power. The Court found that the legislation did not aim to suppress a “real public health evil,” such as the use of tobacco or illegal drugs, and therefore did not serve a valid criminal law purpose. The Coalition, who acted as an intervener in the Quebec decision, appealed this ruling to the Supreme Court of Canada.

The Supreme Court of Canada rejected the Quebec Court of Appeal’s conclusion, finding instead that “the prohibitions have the purpose of combatting genetic discrimination based on test results, and that the more precise mischief they are intended to address is the lack of legal protection for the results of genetic testing. The Act does what its title says it does: it prevents genetic discrimination by directly targeting that mischief.” Justice Karakatsanis went on to highlight the Act’s most important effect: upholding individual control over who has access to your genetic information.

Choices about genetic testing are deeply personal in nature and the reasons for making them vary widely from one individual to another. Just as one individual may wish to be aware of every possible predisposition or risk that a genetic test might reveal, another may prefer not to know. And the individual who wants to know may not want others to know. The Act protects those choices.

This decision has significant implications in affirming an expansive view of Parliament’s criminal law power that accommodates forward-looking legislation designed to protect the public from novel sources of harm..

Read the full judgement here.

Joseph J. Arvay, OC, OBC, QC successfully represented the appellant together with Bruce B. Ryder, Michael Sobkin, and William Colish.

Provincial Court Judges’ Compensation Case Affirms Importance of Judicial Independence

The BC Supreme Court has quashed the government’s decision to reject the Judicial Compensation Commission’s recommended salary adjustment for Provincial Court judges.

Chief Justice Hinkson’s decision published yesterday notes the long-recognized “constitutional imperative” in Canada of “depoliticizing the means by which the executive and legislative branches of government address the matter of compensation of the judicial branch” (para. 7).

In British Columbia, the Judicial Compensation Act sets the process for determining the salaries of Provincial Court judges. That process requires an independent body, the Judicial Compensation Commission, to prepare recommendations for consideration by the Legislative Assembly.

The Commission’s 2016 report observed that BC Provincial Court judges’ salaries rank 11th among Canada’s provinces and territories. The Commission recommended an adjustment over three years that would “put British Columbia Provincial Court judges in 4th place compared to other Provincial Court judges, which is appropriate given British Columbia’s financial position, economic conditions, population size and budget”.

The Legislative Assembly rejected this recommendation and substituted its own salary figures. Chief Justice Hinkson quashed that decision, concluding that it failed to conform to the standard set out in the Judicial Compensation Act.   

The Court  found the Legislative Assembly’s decision was based in part on “erroneous representations” by the Opposition Justice Critic which were not corrected by the Attorney General, stating:

[64] … I am unable to conclude that the comments, uncorrected, did not introduce a failure to recognize the importance of the judicial office and judicial independence into the vote of the Legislative Assembly.

This is now the fourth successful judicial review that the Provincial Court Judges Association of BC has brought against the government for its now “almost routine” rejection of JCC recommendations. .

Joseph J. Arvay QC acted for the Provincial Court Judges’ Association of British Columbia in this case Reasons for the decision are indexed at 2020 BCSC 1264. 

Alberta Court of Appeal Issues Game Changing Treaty Rights Decision

Alberta’s highest court today released a seminal decision in Fort McKay First Nation v. Prosper Petroleum and Alberta Energy Regulator, which will redefine the relationship between the Crown and First Nations in Alberta’s energy sector, and has broad implications for Treaty First Nations across the country.

This decision is the latest round in the ongoing fight by the Fort McKay First Nation (FMFN), a Treaty 8 Nation whose traditional territory is in the heart of oil sands country, to save Moose Lake, one of the last refuges for FMFN to exercise its treaty rights to hunt, fish and trap.     FMFN has been for years attempting to negotiate a management plan for the Moose Lake area that would take into account cumulative impacts and see its treaty rights preserved, a plan which former Premier Jim Prentice promised would be completed years ago before any further development approvals were issued.   Despite ongoing negotiations, the  Alberta Energy Regulator (AER) approved Prosper’s Petroleum application for a $400 million oil sands project in the heart of Moose Lake, saying it had no jurisdiction to take into account those negotiations.

The Alberta Court of Appeal overturned the approval, saying that the AER was constitutionally obligated to take into account the “Honour of the Crown” and how it might be implicated in the negotiations around the management plan and the specific promise made by Premier Prentice.  The Court held that  the Honour of the Crown can impose significant substantive obligations on the Crown to ensure a mutually respectful treaty relationship.  Those obligations are not limited to consultation, and require decisions about land use to consider whether the proposed use is consistent with honourable dealings between treaty partners, taking into account all of the factors which may render First Nations treaty rights less meaningful.   In a concurring judgment, Justice Greckol put it in these blunt terms: “[The honour of the Crown] certainly demands more than allowing the Crown to placate FMFN while its treaty rights careen into obliteration. That is not honourable. And it is not reconciliation.”

Arvay Finlay LLP was co-counsel for FMFN in this appeal.   The reasons are indexed as 2020 ABCA 163

Arvay Finlay earns top honours in Doyles Aboriginal Law Poll

Arvay Finlay is honoured to have 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, three Arvay Finlay partners were recognized as leaders in this field. Joseph J. Arvay, OC, QC was named as a “preeminent” lawyer, while Mark Underhill was named as a “leading” lawyer, and Catherine Boies Parker, QC, was “recommended”. Congratulations to all of firms and lawyers to earn these honours for their hard work and dedication to this important area of law.

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

SCC Grants Leave to Appeal in Constitutional Challenge to Solitary Confinement

Today, the Supreme Court of Canada announced that it will hear Attorney General of Canada v. British Columbia Civil Liberties Association, et al., a case challenging the constitutional validity of prolonged, indefinite solitary confinement.

On June 24, 2019, the BC Court of Appeal ruled that Canada's laws governing administrative segregation violate the Charter because they permit prolonged, indefinite solitary confinement and fail to provide independent and external review of segregation placements. The Court also found there had been discrimination against mentally ill and indigenous inmates. The Court declared that CSC failed to meaningfully consider the health care needs of mentally ill and/or disabled inmates and failed to ensure inmates in solitary confinement are given a reasonable opportunity to retain and instruct counsel without delay and in private.

Last fall, the federal government attempted to overturn this historic judgment by seeking leave to appeal the decision to the Supreme Court of Canada. The British Columbia Civil Liberties Association (BCCLA) and the John Howard Society of Canada (JHSC) sought leave to cross-appeal, arguing the BC Court of Appeal did not go far enough to protect the rights of prisoners. In particular, they argued that Court of Appeal should have imposed a hard cap on the number of days an inmate can spend in solitary confinement and should have granted different remedies for the breach of equality rights.

The Supreme Court of Canada has chosen to hear both the appeal and cross-appeal.

The Supreme Court of Canada also granted leave in Attorney General of Canada v. Corporation of the Canadian Civil Liberties Association today, an Ontario case also challenging the constitutionality of the federal administrative segregation law. The appeals will be heard together.

The BCCLA and JHSC are represented by Joseph J. Arvay, OC, OBC, QC and Alison M. Latimer.

Court Dismisses Conflict of Interest Allegations in Gitanyow Title Case

On November 29, 2019, the BC Supreme Court dismissed a conflict of interest application to remove the Gitanyow Nation’s longstanding lawyer in its aboriginal title case (the Malii proceeding). The conflict of interest allegations arose out complex circumstances dating back to the landmark Delgamuukw aboriginal title litigation. In brief, counsel of record for the Gitanyow Nation was one of the lead counsel  in Delgamuukw, which was brought by Gitxsan and Wet’suwet’en Hereditary Chiefs on behalf of their Houses. One of the plaintiffs in Delgamuukw was Johnny Wilson, who held the title of Skii km Lax Ha and represented the Gitxsan House of Skii km Lax Ha.  The present application was brought by Darlene Simpson, who asserted that she currently holds the name of Skii km Lax Ha, but no longer identifies as Gitxsan, instead representing a different collective of aboriginal people –  the Tsetsaut / Skii km Lax Ha Nation (“TSKLH Nation”). The TSKLH Nation asserts a much larger traditional territory than was advanced by the Gitxsan House of Skii km Lax Ha in Delgamuukw, which overlaps significantly with the claims of neighbouring Gitxsan and Gitanyow Houses.

Chief Simpson asserted that counsel for the Gitanyow Nation was in a conflict of interest and applied to remove him in light of his prior representation of the former Gitxsan House of Skii km Lax Ha in Delgamuukw.  Justice Matthews disagreed, concluding that the “genesis of the conflict” arose out of the fact that Chief Simpson “changed the ambit of the claims made geographically” and that the nexus 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.  Justice Matthews dismissed the application with costs payable forthwith.

The reasons for judgment can be found here (indexed as  Malii v. British Columbia (Attorney General), 2019 BCSC 2060).

Mark Underhill and David Wu of Arvay Finlay LLP represented the Gitanyow Nation in successfully defending the application.

R. v. Rafilovich Protects Access to Justice and Fair Trials

Today a majority of the Court has clarified that Parliament had several objectives in mind when it enacted the proceeds of crime regime. While its primary goal was to ensure that crime does not pay and that it does not benefit the offender, the legal expenses return provision explicitly allows individuals to spend returned seized funds to mount a defence. It does so to provide access to counsel and to give meaningful weight to the presumption of innocence. These objectives ensure fairness to the accused in criminal prosecutions.

Prior to this decision, some courts clawed back reasonable legal expenses as a fine instead of forfeiture. Failure to pay that fine in some cases resulted in an additional term of imprisonment. Today’s majority decision clarifies that this practice of clawing back reasonable legal expenses as a fine will, in most cases, undermine fairness to the accused.

This is an important clarification of the law - even in the proceeds of crime regime of the Criminal Code, a fundamental purpose of the criminal justice system is to provide a fair process to achieve just results, not to extract maximum retribution at any cost.

Read the full judgment here.

Alison M. Latimer and Gregory DelBigio, Q.C. acted as counsel for the British Columbia Civil Liberties Association.

Minister Must Consider Indigenous Heritage And Historical Mistreatment of Indigenous Families by Canada in Extradition

The Court of Appeal today allowed an application for judicial review of the decision of the Minister of Justice to order the surrender of an Indigenous person to face charges of money laundering in the US.

In considering the personal circumstances of the applicant and his children, the Minister failed to consider their Indigenous heritage and the context of the historical mistreatment by Canada of Indigenous families which forcibly separated children from their parents and culture. These were relevant factors in light of the much more severe sentence Mr. Sheck faced in the US if convicted, but the Minister also failed to appreciate and consider the disparity in the likely sentence.

The full decision is available here.

The applicant was represented by Alison Latimer and Greg DelBigio, Q.C..

Historic Desautel Hunting Rights Case to be heard by Supreme Court of Canada

The Supreme Court of Canada today announced that it has granted leave to appeal in the landmark case of R v. Desautel.   Three levels of courts in British Columbia (most recently the BC Court of Appeal in May of this year)  have  confirmed that Mr. Desautel, as a Sinixt descendant, has a constitutionally protected right to hunt in Canada in the Arrow Lakes area, the traditional territory of his ancestors, despite the fact that he is an American citizen living in Washington State, and that the Sinixt were declared extinct by the Canadian  government in 1956.   Mark Underhill and Kate Phipps of Arvay Finlay are counsel for Mr. Desautel. 

 A link to the press release announcing the Supreme Court’s decision to grant leave can be found here.

Sebastian Ennis appointed to Indigenous Justice Advocacy Committee

We are pleased to announce that Sebastian Ennis has been appointed as an inaugural member of the Canadian Bar Association’s Indigenous Justice Advocacy Committee.

 This new committee will focus on making recommendations with respect to Indigenous justice issues, including:

·       restorative justice initiatives;

·       Indigenous courts;

·       expansion of legal aid services;

·       child protection reform;

·       enhanced cultural competence among all justice system participants; and

·       Indigenous-specific victim services.

 It will also liaise with the BC First Nations Justice Council and Métis Justice Council and those responsible for the BC Indigenous Justice Strategy.

 Arvay Finlay provides advice and representation on a number of Indigenous issues, including Aboriginal rights and title claims, treaty entitlements, the duty to consult, and band governance. In particular, Sebastian brings an international human rights law perspective to complex Indigenous issues.

Special Costs in the Interests of Justice Upheld on Appeal

Today the British Columbia Court of Appeal upheld the trial judge’s award of special costs to the plaintiff in the interests of justice, after she succeeded in her disability insurance claim. In so doing, the Court emphasized the importance of facilitating access to justice as a policy objective of the law. The Court also recognized the role of pro bono or “low-bono” lawyers in not only public interest litigation but also private litigation.

 Justice Dickson, for the Court, held:

 In my view, the law of costs has evolved to the point that a judge may consider a litigant’s challenging personal and financial circumstances, including the availability and nature of counsel’s services, in a disability insurance claim of this sort where there is an evidentiary basis for doing so and, if the interests of justice warrant it, may depart from ordinary costs rules and award special costs in the absence of reprehensible conduct.  The factors in question are linked to the exceptional nature of such a claim and, therefore, the usual costs principle favouring partial indemnity in ordinary litigation may not be applicable.  On the other hand, consideration of these factors in such cases enhances the policy objective of ensuring access to justice for disadvantaged litigants by, for example, encouraging more lawyers to act on deserving but otherwise unremunerative disability insurance claims.

 Joseph J. Arvay, Q.C. and Kate Phipps represented the plaintiff on appeal.

 The decision can be found here.

Arvay Finlay LLP welcomes Murray Rankin, QC

We are very proud to announce that Murray Rankin, QC has rejoined Arvay Finlay LLP as Counsel to the Firm.  Murray is a nationally recognized leader in public law fields: administrative law, aboriginal law and environmental law.

Until recently Murray was Member of Parliament for Victoria and Vice-Chair of the House of Commons Standing Committee on Justice and Human Rights.  He has served as litigation counsel at all levels of court, a negotiator, a mediator and a trusted legal advisor to a wide array of clients in the private and public sectors.  He is consistently recognized by Lexpert for his expertise in his preferred areas of practice.

A graduate of Harvard, University of Toronto and Queen's University, Murray taught for over a decade in the law faculty of the University of Victoria before co-founding Arvay Finlay.

Arvay Finlay Lawyers Recognized in Best Lawyers in Canada

Three Arvay Finlay lawyers were recently recognized in the 2020 edition of Best Lawyers in Canada, the oldest peer-review publication in the legal profession.

Mark Underhill was recognized in the areas of Aboriginal law, Administrative and Public law, and Environmental law. Cathie Boies Parker, Q.C. and Alison M. Latimer were both recognized in the area of Corporate and Commercial Litigation. Alison M. Latimer was also recognized in the area of Appellate Practice.

Mistrial Ordered based on “Smoking Gun” Evidence

The British Columbia Supreme Court has granted a rare mistrial order in a case where the defendant appears to have concealed evidence that directly contradicts his own testimony at trial.

 In Manning v. Dhalla, the plaintiffs claim that the defendant referred them to a Ponzi scheme while concealing the fact that he was receiving massive commissions from the orchestrator of the scheme – Rashida Samji – for doing so. At trial, the defendant denied receiving any commissions, while Ms. Samji testified that she did pay him commissions, but could not recall precise details. There was no other evidence that the defendant received commissions, and the court preferred the defendant’s testimony. Based on the evidence at trial, the plaintiffs had alleged that the defendant received commissions totaling approximately $60,000.

 After reasons were issued, but before any order was entered, the plaintiffs discovered a document which on its face appeared to have been created by the defendant, and recorded him receiving commissions of more than half a million dollars for referring the plaintiffs to the scheme. The defendant had not produced this document, but rather had consistently denied receiving any commissions at all.

 On the basis that the absence of the new evidence completely undermined the fairness and integrity of the trial, the plaintiffs applied for a mistrial. In granting the mistrial, the court observed that “the plaintiffs appear to have found a ‘smoking gun’. The only way to avoid a miscarriage of justice is through a new trial with the evidentiary gun in evidence.”  The court also said that the evidence suggests “that the defendant perpetrated a fraud on the court” through testimony in which he consistently denied receiving any commission at all.

 Mark G. Underhill and Arden Beddoes were counsel for the plaintiffs at trial. Ken McEwan, Q.C., of McEwan Partners, and Arden Beddoes were counsel for the plaintiffs in the mistrial application.

 The court’s decision is available here.