1. Paton Estate v. Ontario
Lottery and Gaming Corporation (Fallsview Casino Resort and OLG
Casino Brantford), 2016 ONCA 458 (Hoy A.C.J.O.,
Pardu and Roberts JJ.A.), June 10, 2016
2. Brown v. University of
Windsor, 2016 ONCA 431 (Sharpe, Juriansz and
Roberts JJ.A.), June 13, 2016
3. Groia v. The Law Society of
Upper Canada, 2016 ONCA 471 (MacPherson, Cronk
and Brown JJ.A.), June 14, 2016
4. Best v.
Ranking, 2016 ONCA 492 (Blair, Pardu and Brown
JJ.A.), June 21, 2016
5. Trinity Western University
v. The Law Society of Upper Canada, 2016 ONCA 518
(MacPherson, Cronk and Pardu JJ.A.), June 29, 2016
1. Paton Estate v. Ontario Lottery and Gaming
Corporation (Fallsview Casino Resort and OLG Casino
Brantford), 2016 ONCA 458 (Hoy A.C.J.O., Pardu and
Roberts JJ.A.), June 10, 2016
The appellants are two estates that were defrauded by a
gambling addict. Shellee Spinks, a law clerk, stole over four
million dollars from the appellants and others by forging
documents, selling estate assets and taking the proceeds for
herself. She spent the majority of the funds at an Ontario
casino.
Hoping to recover some of their losses, the appellants sued
the Ontario Lottery and Gaming Corporation ("OLGC"),
alleging knowing receipt of trust funds, unjust enrichment and
negligence. Their statement of claim was struck by the motion
judge, who held that it was plain and obvious that the action could
not succeed. The appellants appealed from that dismissal, arguing
that the motion judge erred in striking the claim at the pleadings
stage. A majority of the Court of Appeal agreed, holding that while
the action was by no means certain to succeed, it was also not
certain to fail.
As the Supreme Court explained in R. v. Imperial Tobacco
Canada Ltd., 2011 SCC 42, the purpose of a motion to strike is
to eliminate hopeless claims. The court must ask whether it is
plain and obvious that the claim has no reasonable prospect of
success. It must take the facts pleaded in the statement as claim
as true, unless they are "patently ridiculous or manifestly
incapable of being proven," and the approach to this inquiry
must be generous.
In Citadel General Assurance Co. v. Lloyds Bank
Canada, [1997] 3 S.C.R. 805, the Supreme Court outlined the
principle underlying the cause of action of the knowing receipt of
trust funds: a stranger to a trust may be liable where it receives
trust property for its own benefit, and has knowledge of facts
which would put a reasonable person on inquiry, but fails to
inquire as to the possible misapplication of the property. Pardu
J.A. held that she was not convinced that the appellants' claim
for knowing receipt could not possibly succeed. If a trier of fact
were to conclude that OLGC had good reason to suspect that the
money gambled by Spinks might have been stolen, the appellants may
fall within the protection afforded by Citadel. On a
generous reading of the statement of claim, and given the
appellants' allegations that the OLGC had knowledge sufficient
to put a reasonable person on inquiry but failed to do so, the
appellants' claim for knowing receipt of trust funds should be
allowed to proceed to trial.
A claim for unjust enrichment requires enrichment of the
defendant, a corresponding deprivation of the plaintiff and the
absence of a juristic reason for the enrichment. The motion judge
held that while the OLGC was enriched, and Spinks deprived, there
were juristic reasons for the enrichment, namely a gambling
contract and the fact that the OLGC was a bona fide
purchaser for value without notice that it was receiving
fraudulently obtained funds. In Justice Pardu's view, this
conclusion failed to consider that the juristic reasons for the
enrichment could have been vitiated on the ground of
unconscionability. The appellants' statement of claim pleaded
that the OLGC received an "unconscionable benefit", a
claim that would not necessarily fail if a trier of fact were to
determine that the OLGC knew that Spinks was a gambling addict but
allowed her to continue gambling at its casinos nonetheless. While
a novel argument, the categories of unconscionability can never be
closed.
Justice Pardu also pointed out that the remedy of a
constructive trust may be imposed where required by good conscience
in situations where unconscionable unjust enrichment occurs. She
suggested that appellants could also rely on the Consumer
Protection Act, 2002, S.O. 2002, c. 30, Sched. A, which may be
relevant in the case of consumers who are not reasonably able to
protect their own interests.
The motion judge rejected the appellants' claim that the
OLGC owed them a duty of care and that it acted negligently by
permitting Spinks to continue gambling. He held that the OLGC could
not owe a duty of care to the appellants unless it owed one to
Spinks. He further held that the pleadings did not disclose facts
sufficient to establish the required reasonable foreseeability and
proximity between casinos and problem gamblers, and cautioned that
imposing liability on the OLGC could create a policy problem of
indeterminate liability.
Pardu J.A. disagreed with the motion judge's view that the
jurisprudence established that there is no duty of care owed by
casinos to problem gamblers. While she agreed that casinos cannot
be expected to assess their customers to determine whether each
individual ought to be gambling, she suggested that "more may
be expected" when one such individual is obviously out of
control. Pardu J.A. further held that it was too early in the
proceedings to determine that the issue of indeterminate liability
could arise from recognizing such a duty of care.
Justice Pardu acknowledged some "formidable
barriers" to a finding that casinos owe a duty of care to
third parties who are the victims of problem gamblers. The claim
was for pure economic loss and, while the loss may have been
reasonably foreseeable, the casinos had no relationship with the
third parties. She suggested, however, that this issue might be
analogous to that of a commercial host who serves alcohol to an
intoxicated patron who then injures a third party when driving
drunk. The Supreme Court has recognized a duty of care both to the
intoxicated person and to the third party.
Pardu J.A. concluded that a factual record was necessary to
allow a court to confidently make judgments about the legal and
policy issues raised, and to determine "whether it is fair and
just to expect casinos to pay some compensation for the high social
costs of gambling." She held that, ultimately, while the
appellants' action was not certain to succeed, it was also not
certain to fail.
In a thorough dissent, Associate Chief Justice Hoy held that
the motion judge did not err in striking the claim and that the
appeal should be dismissed.
Hoy A.C.J.O. held that there was no reasonable chance that a
trier of fact would find that the OLGC had knowledge of
circumstances that would put an honest and reasonable person on
inquiry as to a breach of trust, and was accordingly liable as
constructive trustee. On the issue of unjust enrichment, she held
that the appellants could not rely on the doctrine of
unconscionability to vitiate the OLGC's legal basis for
retaining the gambled funds, as they did not plead any facts
supporting the position that the OLGC's conduct was
unconscionable or outside the normal course of business. She also
disagreed with the majority's view that the Consumer
Protection Act could have assisted the appellants. With
respect to the claim of negligence, Hoy A.C.J.O. held that the
appellants' claim had no prospect of success in the face of the
relevant jurisprudence. The appellants were not proximate to the
OLGC and it was not reasonable to expect the OLGC to have
considered the appellants when managing its affairs. The Associate
Chief Justice disagreed that it was too early in the proceedings to
dismiss the claim due to policy concerns of indeterminate
liability. Recognizing a duty of care to anyone connected to
problem gamblers would result in indeterminate liability.
2. Brown v. University of Windsor,
2016 ONCA 431 (Sharpe, Juriansz and Roberts JJ.A.), June 13,
2016
The Employment Insurance Premium Reduction Program
("EIPRP") is managed by the Canadian Employment Insurance
Commission and governed by the Employment Insurance Act,
S.C. 1996, c. 23 and regulations. It allows an employer to reduce
its employment insurance premiums if the employer has a wage loss
plan equal to the protection provided by Employment Insurance. If
an employer is approved and receives a reduction, it must provide a
part of the reduction to its employees, proportional to the ratio
of EI they paid, in the form of a payment or through added
benefits.
The respondent, Brian Brown, is president of the University of
Windsor Faculty Association. He commenced an action against the
appellant, the University of Windsor, on his own behalf and on
behalf of present and former members of the faculty, claiming that
the university failed to satisfy the requirements of the EIPRP. He
alleged in his statement of claim that the appellant received
employment insurance premium reductions but did not provide a
rebate or upgraded benefits to affected employees and instead used
the savings for its own benefit.
The appellant moved under Rule 21.01(3)(a) of the Rules of
Civil Procedure, R.R.O. 1990, Reg. 194, for an order
dismissing the respondent's action on the basis that the court
lacked jurisdiction to entertain the matter. Relying on the
principle set out by the Supreme Court in Weber v. Ontario
Hydro, [1995] 2 S.C.R. 929 and Parry Sound (District)
Social Services Administration Board v. OPSEU Local 324, 2003
SCC 42, it argued that the "essential character" of the
dispute arose out of the administration of the collective agreement
and noted that section 48(1) of the Labour Relations Act,
1995, S.O. 1995, c.1, Sch. A ("LRA") and the collective
agreement itself compelled all differences between the parties to
proceed to arbitration. Accordingly, exclusive jurisdiction to hear
the claim lay with a labour arbitrator.
The motion judge rejected this submission, concluding that the
essential character of the claim, the appellant's failure to
comply with the provisions of the EIPRP, did not arise out of the
terms and conditions of the employment relationship or the
collective agreement.
The University of Windsor argued on appeal that the motion
judge erred in concluding that the court had jurisdiction over the
respondent's claim by relying on the Court of Appeal's
decisions in Rathwell v. Hershey Canada Inc. (2001), 152
O.A.C. 1, leave to appeal to S.C.C. denied, (2002) 164 O.A.C. 279,
and the arbitration decision in Hershey Canada Inc. v. United
Steelworkers of Canada, Local 461 (1997), 50 C.L.A.S. 249,
1997, and by failing to apply the Supreme Court's more recent
decision in Parry Sound, which, it submitted, effectively
overruled the Hershey/Rathwell line of case law. Had he
done so, he would have found that an arbitrator has exclusive
jurisdiction over the dispute. The Court of Appeal agreed.
Writing for the Court, Juriansz J.A. noted that the
Hershey/Rathwell cases, like this one, involved claims by
unionized employees that their employer had failed to rebate to
them the statutorily required portion of the premium reduction
under the EIPRP, but observed that the previous courts did not
determine the Weber issue that was raised in this case.
The motion judge noted that the Hershey/Rathwell decisions
did not touch on the Weber question and opined that he was
not bound by them, but nonetheless gave them considerable
weight.
In Juriansz J.A.'s view, the motion judge erred. He should
not have been reticent to address the legal issues decided in
Hershey/Rathwell, and ought to have considered the matter
fresh, as a new legal issue, the Weber issue, was
raised.
In Weber, and more recently Parry Sound, the
Supreme Court confirmed the principle that an arbitrator will have
exclusive jurisdiction over a dispute whose "essential
character" arises either explicitly or implicitly from the
collective agreement. This principle gives effect to the LRA, which
provides that all differences between parties to a collective
agreement arising from the interpretation, application,
administration or alleged violation of that agreement must proceed
to arbitration. In conducting a Weber analysis, the court
must consider the nature of the dispute and the ambit of the
collective agreement.
Juriansz J.A. agreed with the appellant that the motion judge
erred in characterizing the dispute as a legal one. Instead, he
needed to decide whether the facts of the dispute fell within the
ambit of the collective agreement.
Justice Juriansz held that the motion judge further erred in
failing to properly consider section 48(12)(j) of the LRA. The
Supreme Court considered section 48(12)(j) in Parry Sound
and confirmed its broad scope, holding that it was the
legislature's intent that an arbitrator have the power not only
to enforce those rights and obligations that are expressly provided
for in the collective agreement, but those that are provided for in
human rights and employment-related statutes as well. Juriansz J.A.
observed the significant impact of the Supreme Court's decision
on the interpretation and application of s. 48(12)(j) of the LRA,
noting that arbitrators have since taken a broad view of their
jurisdiction under that provision.
Juriansz J.A. considered the reasons in British Columbia
Teacher's Federation v. British Columbia Public School
Employers' Association, 2005 BCCA 92, in which the British
Columbia Court of Appeal considered a provision in that
province's Labour Relations Code, which is similar to
section 48(12)(j) of the LRA. In that case, Lambert J.A. proposed a
single step in determining jurisdiction that requires a violation
of the collective agreement as informed by the substantive rights
and obligations provided by the employment-related statute. Justice
Juriansz held that the British Columbia court's reasons give
proper effect to section 48(12)(j) of the LRA, as interpreted by
the Supreme Court in Parry Sound. Adopting these reasons,
he concluded that the question to be determined was "whether
there is a real contextual connection between the statute and the
collective agreement such that a violation of the statute gives
rise, in the context, to a violation of the provisions of the
collective agreement". Juriansz J.A. cautioned that in
applying this test, the court must recall the principle in
Weber that the nature of the dispute is based upon the
factual context in which it arises, regardless how it may be
legally characterized.
Juriansz J.A. found that the impugned provisions in this case
could be characterized as "employment-related" under
section 48(12)(j) of the LRA. Under the statutory scheme, an
employer may achieve a reduction in employment insurance premiums.
The employer is in turn obligated to remit to employees a specified
share of the premium reduction in the form of cash or enhanced
employee benefits. The employees' entitlement to their share is
a substantive right, which informs the interpretation and
application of the collective agreement. While the collective
agreement does not address the EIPRP explicitly, it does deal with
pay and benefits; it is therefore a violation of the collective
agreement to fail to provide employees with the pay or benefits to
which they are entitled.
The "essential character" of this dispute was that
the employees alleged that they had not received the
full amount of pay or benefits to which they were entitled
under the collective agreement. The University of Windsor's
alleged violation of the statute gave rise to a violation of the
provisions of the collective agreement. Accordingly, an arbitrator
had exclusive jurisdiction over the dispute.
3. Groia v. The Law Society of Upper
Canada, 2016 ONCA 471 (MacPherson, Cronk and Brown
JJ.A.), June 14, 2016
The Law Society of Upper Canada requires that lawyers conduct
themselves with courtesy and civility, while fearlessly advocating
on their clients' behalf. This appeal, which arose from a
lawyer's challenge to the Law Society's finding of
professional misconduct against him, involves the interplay between
these foundational duties.
The appellant, Joseph Peter Paul Groia, challenged the Law
Society Appeal Panel's findings of professional misconduct
against him in relation to his in-court conduct toward opposing
counsel, together with the associated penalty and cost award
imposed by the Appeal Panel. The Divisional Court upheld the Appeal
Panel's decision and cost award.
Groia, an experienced securities litigator, defended John Felderhof, a senior officer and director of Bre-X Minerals Ltd., on eight charges of violating the Securities Act, R.S.O. 1990, c. S.5. The charges arose out of the collapse of Bre-X as a result of fraudulent claims that it had discovered lucrative gold deposits in Borneo. Felderhof was acquitted of all charges.
The relationship between Groia and the OSC prosecutors was, in
the words of the Court of Appeal, "toxic". Disputes about
the prosecution's failure to meet disclosure obligations arose
immediately and Groia was successful in having those addressed.
Later there were allegations of prosecutorial misconduct that arose
around evidentiary issues.
The OSC prosecutors subsequently brought an application for
judicial review, arguing among other things, that Groia had
repeatedly engaged in uncivil conduct in violation of the
LSUC's Rules of Professional Conduct, and that, by
failing to control this behaviour, the trial judge had lost
jurisdiction and a new trial should be ordered. The application
judge and the Court of Appeal agreed with some of the criticisms
regarding Groia's conduct. They dismissed the application for
judicial review, however, holding that Groia's behaviour had
not impaired the fairness of the trial.
In November, 2009, the Law Society commenced disciplinary
proceedings against Groia under the Law Society Act,
R.S.O. 1990, c. L.8 ("LSA"), alleging that he had engaged
in professional misconduct in his defense of Felderhof. It did so
on its own initiative. At no time did anyone complain to the LSUC
about Groia's conduct.
The Hearing Panel found that Groia's attacks on the OSC
prosecutors were unjustified and constituted conduct falling below
the standards of civility, courtesy and good faith required under
the Rules of Professional Conduct. It suspended
Groia's license to practice law for two months and awarded
costs of the discipline hearing to the Law Society of $246,960.53.
The Appeal Panel found that the Hearing Panel had made improper use
of evidence and foreclosed Groia's defence due to its
acceptance of an abuse of process argument advanced by the Law
Society that effectively prevented him from contesting the
allegations. As a result, it could not defer to the Hearing Panel
but undertook its own analysis. On that analysis, it convicted
Groia but reduced the length of Groia's licence suspension to
one month and the cost award to $200,000.
Groia appealed the Appeal Panel's decision to the
Divisional Court, while the Law Society cross-appealed, asking that
the penalty and costs award imposed by the Hearing Panel be
restored. The Divisional Court dismissed both the appeal and the
cross-appeal. Like the Appeal Panel, it rejected Groia's
submission that only the courts can and should oversee an
advocate's conduct in court and that there are preconditions to
the Law Society's exercise of its disciplinary powers regarding
uncivil in-court conduct. The Divisional Court upheld the Appeal
Panel's conclusion that there was no reasonable basis for
Groia's "persistent pattern of personalized attacks on the
OSC prosecutors and their integrity." Importantly, however,
the Divisional Court overturned the Appeal Panel on the issue of
the correct test for incivility. It concluded Groia was uncivil,
but on different grounds. Groia appealed to the Court of
Appeal.
Writing for the majority of the Court, Cronk J.A. rejected
Groia's claim that the trial judge, and not the Law Society,
was in the best position to judge his alleged in-court incivility,
noting that his submission ignored the plain language of the LSA
and the LSUC's undisputed statutory obligation to govern the
legal profession in the public interest. Cronk J.A. held that the
role of trial judges is to decide the contested issues and to
safeguard the fairness of the trial, including the dignity and
decorum of the proceeding. This is distinct from and does not
conflict with or erode the role of the Law Society, which is to
ensure the professionalism of its licensees, measured against the
standards of practice that apply to the entire profession.
Justice Cronk also rejected Groia's submission that the
Appeal Panel erred both in fashioning its test for incivility and
in misapplying the test to the facts of the case. She found that
the Appeal Panel's formulation of the test for incivility in
this case was reasonable, appropriately balancing the importance of
zealous advocacy with the requirement of courtesy and civility,
while considering Charter-protected expressive freedoms.
The Court held that the findings of professional misconduct against
Groia were reasonable. Cronk J.A. cited examples of Groia's
incivility during trial, concluding that his remarks were
"uncivil and discourteous and exceeded even the most broadly
defined reasonable boundaries of zealous advocacy."
Cronk J.A. emphasized that trials are not just about the
resolution of the immediate dispute between the parties. They touch
everyone from the trial judge and witnesses, to court staff, to the
community at large. As the community's forum for dispute
resolution, trials "engage the public interest in its multiple
dimensions," and the propriety of a lawyer's in-court
conduct must be assessed with this in mind. Justice Cronk concluded
that if viewed by an informed and objective member of the public,
Groia's conduct at trial "could only have diminished
public confidence in the administration of justice."
Cronk J.A. further held that the Appeal Panel engaged in a
balanced and fair assessment of Groia's circumstances and
conduct when fashioning an appropriate penalty, and noted that the
penalty is entitled to considerable deference on the reasonableness
standard. Groia identified no error in principle in the costs
award, or any reason to depart from the general rule that the
reasonable costs of investigating and conducting a discipline
proceeding should not be borne by the profession as a whole where a
determination adverse to the defending lawyer has been made. The
Divisional Court's award of costs to the Law Society also could
not be set aside. Its ruling was neither tainted by error in
principle nor plainly wrong. However, the Court of Appeal did not
award costs for the appeal due to the public interest issues at
stake.
Brown J.A., dissenting, held that the Divisional Court erred
in upholding the Appeal Panel's finding that Groia was guilty
of professional misconduct. Specifically, both the Divisional Court
and the Appeal Panel failed to give sufficient consideration to the
measures taken by the trial judge to address Groia's conduct
and to Groia's response, which indicated compliance with his
directions. Brown J.A. cautioned that a standard of perfection
regarding counsel's conduct is unreasonable because of the
considerable emotion generated at trial. The trial judge is best
placed to determine whether an advocate's conduct is
approaching or has crossed over the line that separates zealous
advocacy from impermissible conduct. Any regulatory review that
fails to consider how the trial judge reacts to a lawyer's
conduct, and how that lawyer responds to judicial direction,
ignores a necessary and critical element of the context in which
the analysis of the behaviour must take place. Failing to take into
account Groia's responses to judicial directions was an error
of law.
Justice Brown emphasized that the appeal before the Court was
not about the jurisdiction of the Law Society to review how a
barrister acts in the courtroom. Rather, "the question is:
when the Law Society does review a barrister's courtroom
conduct, what standard of review should a court apply to the
regulator's decision?" Justice Brown noted that the
judiciary's constitutional responsibility for what goes on its
courtrooms points to the application of a standard of correctness
"so that the judiciary retains the last word, so to speak,
about what happens in its courtrooms."
4. Best v. Ranking, 2016 ONCA 492
(Blair, Pardu and Brown JJ.A.), June 21, 2016
In this decision, the Court of Appeal considered a decision
ordering counsel to pay costs personally.
Donald Best commenced an action for negligence and economic
loss against sixty-two defendants, including three of the
respondents in this appeal. The action was stayed on jurisdictional
grounds. Several of the defendants successfully moved for a finding
of contempt against Best for failure to comply with court orders
related to attempts to collect costs from him. Best did not purge
his contempt despite being given an opportunity to do so. Instead,
he chose to leave the country for some time. He later returned to
Canada and applied to purge the finding of contempt, swearing an
affidavit that contained accusations of perjury, conspiracy, fraud,
obstruction of justice and fabrication of evidence by the opposing
parties and their counsel. These accusations were rejected as
baseless. His application was dismissed and he served two months in
prison.
At this point, Best retained the appellant, Paul Slansky. Best
then sought to appeal the finding of contempt and the dismissal of
his application to have that finding set aside. His repetition of
allegations that had been judicially rejected led Feldman J.A. to
conclude that the court must "express its condemnation"
by awarding costs against him on a full indemnity scale. A panel of
the Court of Appeal declined Best's request to review Justice
Feldman's decision, and Best's attempts to stay that
decision and to obtain leave to appeal to the Supreme Court were
also unsuccessful. He did not pay the costs award and his appeal
was dismissed.
With the appellant as his counsel of record, Best commenced a
new action against thirty-nine defendants, including the five
respondents to this appeal, alleging intentional torts committed
during the contempt proceedings.
Counsel for the respondents informed Slansky that they
intended to contest jurisdiction and would therefore not be filing
a defence. They requested that Slansky not note their clients in
default. Respondents' counsel also advised Slansky that other
defendants planned to bring a motion to strike the claim, and
requested that the jurisdiction motion be deferred until after the
motion to strike was heard. Slansky ultimately did not agree to the
deferral, and noted the respondents in default. He refused to agree
to set aside the noting in default until four days before that
motion was to be argued, after motion materials had already been
exchanged. In response, counsel for the respondents advised Slansky
that they were considering seeking costs against him
personally.
Counsel for the respondents informed Slansky on three more
occasions that they intended to seek costs against him personally.
In one letter, they reasoned: "Fundamentally, your approach to
this litigation has been abusive and continues to waste an
astonishing amount of money on legal costs."
Motions to strike were subsequently heard by Healey J. On the
first day of argument, Slansky conceded that the respondents'
jurisdictional motion should await the outcome of the motion to
strike. On the third day of argument, counsel for the respondents
again notified Slansky that they intended to seek costs against him
personally. On the fourth day of argument, Justice Healey dismissed
the action as an abuse of process, making the jurisdiction motion
moot. She ordered costs of the action to the respondents on a full
indemnity basis.
Best's attempted appeal of this ruling was dismissed when
he failed to comply with an order to provide security for
costs.
The respondents moved for an order pursuant to Rule
57.07(1)(c) of the Rules of Civil Procedure, R.R.O. 1990,
Reg. 194, that Slansky be held jointly and severally liable with
Best for all costs awarded in the respondents' favour in that
action, an amount totaling over $160,000.
Healey J. found that the second action was an abuse of
process, a transparent attempt to re-litigate issues already
decided. Rather than being in the interests of justice, the
litigation incurred and wasted costs unnecessarily, taxing the
resources of the respondents and of an already strained judicial
system. She found that Slansky was instrumental both in starting
the action and in advancing it in the manner that he did.
Concluding that this was a rare case in which counsel should
personally pay for costs, Healey J. ordered Slansky to pay costs
fixed at $84,000 on a joint and several basis with Best.
Slansky appealed, arguing that he did not have a reasonable
opportunity to make representations to the court on the particular
ground upon which the motion was decided, namely that the action
lacked merit and should never have been brought. He further
asserted that the motion judge awarded costs against him simply
because he took on a case that had little chance of success.
Justice Pardu found that Slansky had adequate notice that the
merits of the second action would be a component of the Rule 57.07
motion. The motion judge's finding that Slansky wasted costs
unnecessarily by acting on unreasonable instructions from or
providing unreasonable advice to his client on the matter of the
respondents' jurisdiction motion was unassailable. It was also
open to her to conclude that Slansky could offer no justification
for his decision to require the respondents to move to contest
jurisdiction immediately rather than await the motion to strike by
the other defendants.
Pardu J.A. emphasized that the motion judge ordered Slansky to
pay costs not because of the strength of his client's claim,
but because of his conduct during the course of the litigation. The
motion judge examined the entire course of the litigation in
assessing the conduct of counsel, as she was required to do in
accordance with Galganov v. Russell (Township), 2012 ONCA
410. She did not err in considering that Slansky advanced
accusations of criminal misconduct against opposing counsel that
had repeatedly been rejected as baseless.
As the Court held in Galganov, deference is owed to a
motion judge's decision as to whether a lawyer should pay costs
personally. In Justice Pardu's view, there was no basis to
interfere with the motion judge's decision to order Slansky to
pay a portion of the costs wasted.
5. Trinity Western University v. The Law Society
of Upper Canada, 2016 ONCA 518 (MacPherson, Cronk and
Pardu JJ.A.), June 29, 2016
Trinity Western University, a private university in British
Columbia, wants to establish a law school. Seeking to ensure that
its future graduates will be eligible to be called to the bar
throughout Canada, TWU applied to the provincial law societies,
including the Law Society of Upper Canada ("LSUC"), for
accreditation. The benchers of the LSUC denied accreditation on the
basis that TWU's mandate discriminates against members of the
LGBTQ community. In its review of the LSUC's decision, the
Court of Appeal reflected on the balance between freedom of
religion and freedom of equality in the context of sexual
orientation.
Anchored in evangelical Christian theology, TWU's mandate
includes a strong opposition to same-sex relationships and
marriages, as well as common law relationships outside of marriage.
Although there is nothing to prevent members of the lesbian, gay,
bisexual, transgender and queer communities from applying to the
proposed law school, they would not be admitted without signing and
adhering to the Trinity Western University Community Covenant
Agreement, which forbids sexual intimacy except between married
heterosexual couples.
While TWU's Community Covenant discriminates against LGBTQ
students in terms of admission to, and life at, the institution,
the university claims that its mandate is protected by its
Charter right to freedom of religion.
The law societies of the provinces of Alberta, Saskatchewan,
Manitoba, New Brunswick, Prince Edward Island, and Newfoundland and
Labrador granted accreditation, while those in British Columbia and
Nova Scotia refused. The latter decisions were overturned by
superior court decisions in those provinces and were recently
appealed.
In April 2014, by a vote of twenty-eight to twenty-one, the
benchers of the LSUC denied accreditation to TWU's proposed law
school. A year later, a three-judge panel of the Divisional Court
dismissed the university's application for judicial
review.
At the heart of this appeal was the collision and balance of
freedom of religion and the right to equality, both of which are
enshrined in the Charter and have been interpreted
generously by the Supreme Court.
The Divisional Court found that the LSUC's decision not to
accredit TWU's proposed law school infringed TWU's right to
freedom of religion. The court also held, however, that the
decision was saved by the LSUC's proportionate balancing of the
Charter rights and values at issue and that it reached a
reasonable decision.
Writing for the Court of Appeal, MacPherson J.A. held that the
Divisional Court was correct in applying a reasonableness standard
of review to its consideration of the LSUC's decision.
"Reasonableness" has been adopted as the presumptive
standard of review with respect to the decisions of professional
regulatory bodies, including those regulating the legal profession,
engaged in the interpretation of their enabling statutes.
MacPherson J.A. noted that the fact that the LSUC's decision in
this case required a balancing of the TWU's Charter
rights with other Charter values did not alter the
standard of review. Administrative tribunals are entitled and
required to take account of and to act consistently with
Charter values as they make decisions within their
mandate.
Justice MacPherson noted that in assessing the reasonableness
of the LSUC's decision, the court must consider it in the
context of the TWU's Charter rights, the LSUC's
statutory objectives and whether the decision represents a
reasonable balance between the two.
MacPherson J.A. agreed with the lower court that the
LSUC's decision infringed on TWU's right to freedom of
religion under s. 2(a) of the Charter. He also agreed,
however, that it was entirely appropriate for the LSUC to consider
the objectives of the Law Society Act, R.S.O. 1990, c.
L.8. ("LSA"), informed by the values found in the
Charter and the Ontario Human Rights Code, R.S.O.
1990, c. H.19 ("HRC"), when deciding whether to accredit
TWU's proposed law school.
Section 4.1 of the LSA provides that it is a function of the
LSUC to ensure that all persons who practise law in Ontario
"meet standards of learning, professional competence and
professional conduct that are appropriate for the legal services
they provide." Section 4.2 of the LSA provides that in
carrying out its functions, duties and powers, the LSUC "has a
duty to protect the public interest."
Justice MacPherson agreed with the Divisional Court that there
is no "wall" between these provisions. The LSUC has an
obligation to govern the legal profession in the public interest.
In setting and maintaining standards of learning, professional
competence and professional conduct, it is entitled to do so
against the backdrop of the composition of the legal profession,
including the goal of promoting a diverse profession. Moreover,
that the LSUC is itself subject to the Charter and the HRC
means that human rights values must inform how it pursues its
objective of ensuring equal access to the legal profession.
In assessing whether accreditation of TWU's proposed law
school was in the public interest, the LSUC was required to weigh
its goal of promoting a legal profession based on merit and
excluding discriminatory classifications against the limit that
denying accreditation would place on the TWU's religious
freedom. MacPherson J.A. concluded that the LSUC's decision
struck a reasonable balance between TWU's Charter
rights and its own statutory objectives. He noted that TWU may find
it more difficult to operate its law school absent accreditation by
the LSUC, but emphasized that the LSUC's decision does not
prevent it from doing so. The decision instead denied a "a
public benefit, which the LSUC has been entrusted with bestowing,
based on concerns that are entirely in line with the LSUC's
pursuit of its statutory objectives."
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