Canada: The Tiger In The Jungle: A Tribute To Neil Finkelstein

On June 12, 2018, the Canadian legal community lost an icon of the litigation bar with the passing of Neil Richard Finkelstein.

Neil's achievements as a litigator were legendary. After graduating from McGill Law School in 1979, obtaining his LLM from Harvard Law School in 1980, and serving as Law Clerk to Chief Justice Bora Laskin from 1980-1981, Neil went on to argue 30 appeals at the Supreme Court of Canada, 58 appeals in nine courts of appeal, 102 trials and hearings in eight provinces, two commissions of inquiry, and two international arbitrations. 

Over the course of his nearly 40-year career, he successfully litigated some of the most important cases in Canadian legal history. Along the way, he found time to author, co-author and edit seven books and 32 articles, while teaching generations of students at the University of Toronto and Osgoode Hall law schools, and acting as a tireless mentor for countless junior lawyers. All this was secondary, of course, to Neil's primary calling as a devoted husband, father and grandfather.

Neil was a great lover of stories, and he constantly relayed old anecdotes about life and litigation to his juniors. One of his favorites concerned a conversation with his mentor, Justice Willard "Bud" Estey of the Supreme Court of Canada, early in Neil's career. As a young man with both a Chartered Accountant designation and two law degrees, Neil asked Justice Estey why he should stick with litigation, rather than make more money by pursuing a career in finance. Justice Estey responded, "Neil, once you've been a tiger stalking in the jungle, you can never be anything else".

Neil took that advice to heart. He went on to become a tiger of the Canadian litigation bar. In this blog post, we honour his legacy by tracing five of his most significant cases, and explaining their enduring implications for our legal system.

Ross v. New Brunswick School District No. 15,[1996] 1 SCR 825

Malcolm Ross was a Holocaust denier and an anti-Semite. He was also a schoolteacher in Lutes Mountain, New Brunswick. In 1988, a Moncton resident and parent named David Attis filed a complaint with the province's Human Rights Commission in respect of Ross's conduct. The Commission convened a Board of Inquiry, which ordered the school board to remove Ross from the classroom – and to fire him entirely unless he stopped spewing hatred. Ross sought judicial review, and won at the New Brunswick Court of Appeal. Attis, the Commission, and others brought the case to the Supreme Court of Canada.

Neil acted for the Canadian Jewish Congress in the New Brunswick Court of Appeal – judgment here – and for Attis before the Supreme Court of Canada. His submissions focused on the constitutionality of the Board's order, and the balance to be struck between Ross's freedom of expression and freedom of religion, and his students' right to a learning environment free from bias, prejudice and intolerance. Neil argued that Ross's conduct had "poisoned the educational environment at the school and created an environment in which Jewish students were forced to confront racist sentiment" (at para. 34). This, he said, made the infringements on Ross's Charter rights reasonable and demonstrably justifiable, and thus constitutional.

The Court agreed. It upheld the Board's order that Ross be removed from his teaching position, but quashed the requirement that the school board fire Ross altogether if he continued to disseminate his hateful views. For a unanimous Court, La Forest J. concluded that the benefits of keeping Ross out of the classroom – i.e., "preventing and remedying the discrimination in the provision of educational services to the public" – outweighed the deleterious effects of the infringement on his rights (at para. 108).

In Ross, Neil's advocacy helped the Court maintain the careful equilibrium between our Charter rights and the reasonable constraints that our coexistence requires. In other significant cases – notably Ramsden v. Peterborough (City) and Toronto (City) v. Quickfall – Neil had earned a reputation as a passionate defender of free expression. Here, he protected the core of that right by policing its limits. He lent his voice to schoolchildren who had been discriminated against, and whose right to learn in a hatred-free environment had been taken from them. By winning the case on their behalf, Neil set a precedent that has paid dividends for students across Canada, and for the freedom of expression itself, ever since.

Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748

In an era when reading the news still meant getting ink on your fingers, residents of the Lower Mainland had choices galore: they could subscribe to Vancouver's two daily newspapers, or turn to an assortment of free community newspapers. The owner of the two dailies, Southam Inc., viewed the community newspapers as competitors and began acquiring controlling interests in them. Southam also set up its own far-reaching flyer delivery service. The Director of Investigation and Research ("Director") – which is what we used to call the Competition Commissioner – decided this was anti-competitive and tried to make Southam divest itself of three of the community papers. After 40 days of hearings, 50 witnesses, and 147 pages of reasons, the Competition Tribunal ("Tribunal") largely disagreed with the Director, holding that Southam's buying spree did not "substantially lessen competition" other than for real estate advertising in the North Shore region. The Tribunal found the daily newspapers and the community newspapers did not serve the same markets and were not substitutable products. The Tribunal only ordered Southam to divest itself of one North Shore community paper or real estate paper.

The Director appealed, and the Federal Court of Appeal allowed the appeal and quashed the Tribunal's order. The Court of Appeal held that the Tribunal was not entitled to deference because the issue of what constitutes a relevant market is a question of law, not fact. Moreover, the Court of Appeal held that since the Tribunal was comprised of judges and lay persons (without any particular expertise required), no curial deference was owed.

Southam appealed, and the Supreme Court of Canada used the opportunity to not only side with Southam, but to rewrite administrative law. From C.U.P.E. v. New Brunswick Liquor Corporation in 1979 until Southam in 1997, a judge hearing a judicial review had two options: ask whether the decision under review is correct, or is patently unreasonable. Building on the recent decision in Pezim v. British Columbia (Superintendent of Brokers), Neil argued that there should at least be a middle ground between the extremes of correctness and patent unreasonableness. The Court agreed and introduced the standard of reasonableness simpliciter. The Tribunal's decision was reasonable, and Southam got to keep its community newspapers.

Neil represented Southam from Tribunal to Supreme Court. He was no stranger to competition law and litigated dozens of competition cases before the Tribunal and the courts. As for reasonableness simpliciter, it formed the foundation of judicial review analyses for over a decade until it was collapsed in Dunsmuir. But the debate over whether deference is a spectrum or a handful of discrete categories continues today.

Canada (House of Commons) v. Vaid, [2005] 1 SCR 667

Neil's next case, Canada (House of Commons) v. Vaid, 2005 SCC 30 ("Vaid"), shaped the interaction of two competing bodies of law, each of which go to the very heart of our constitutional democracy. On the one hand, the Canadian Human Rights Act is a quasi-constitutional piece of legislation designed to ensure Canadian citizens live free from discrimination. On the other hand, the collection of powers and immunities known as parliamentary privilege enables our elected legislators to deliberate and make laws free from outside interference.

Mr. Vaid, former chauffeur to the Speaker of the House of Commons, complained that he had been dismissed from his position due to discrimination and requested relief under the Canadians Human Rights Act ("CHRA") and its constituent tribunal. After a unanimous Federal Court of Appeal determined that Mr. Vaid that parliamentary privilege did not prevent the CHRAs direct application, Neil – acting for both the Speaker and the Commons itself – successfully convinced the Supreme Court of Canada to overturn that ruling.

Neil did not merely argue that parliamentary privilege immunized the Commons from human rights legislation. More subtly than that, he argued that parliamentary privilege, based on parliament's interest in controlling its own process, allowed it to legislate a Parliament-specific regime that could effectively replace the CHRA with Parliament-specific legislation (the Parliamentary Employment and Staff Relations Act ("PESRA") in the employment context. As Justice Binnie put it:

The issue is whether PESRA's system of redress, which runs parallel to the enforcement machinery provided under the Canadian Human Rights Act, manifests a parliamentary intention to oust the dispute resolution machinery of the Canadian Human Rights Commission.

The Supreme Court agreed that Parliament had indeed ousted the jurisdiction of less specific human rights legislation and that Mr. Vaid was required to pursue his grievance through a PESRA-specific mechanism, stating that: "A grievance that raises a human rights issue is nevertheless a grievance for purposes of employment or labour relations."

In retrospect, this judgement can be seen as achieving a judicious balance between the need for modern employment legislation to apply to all employment relationships, including those in the nation's highest legislature, while nevertheless preserving the important imperatives that guard that legislature's independence from outside influence.

Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 SCR 489 ("Cogeco")

Neil had an enormous impact on broadcasting and telecommunications law, particularly in the final decade of his career. As counsel for Cogeco Cable Inc., he persuaded a majority of the Supreme Court to hold that the Canadian Radio-television and Telecommunications Commission (the "CRTC") had exceeded its statutory jurisdiction. This was an historic reversal for the CRTC, which has reverberated in the case law ever since.

The question in Cogeco was whether the Broadcasting Act empowered the CRTC to implement a "value for signal" regime, which would have given local televisions stations the right to negotiate compensation directly with broadcasting distribution undertakings ("BDUs"), such as cable companies, for the retransmission of their over-the-air television signals, by blocking those signals from retransmission where no contractual terms with BDU could be agreed. Under the status quo, BDUs do not pay fees directly to local broadcasters when they pick up and retransmit their signals, but must instead provide the local broadcasters with a suite of regulatory protections (e.g., mandatory channel carriage).  The BDUs argued that the proposed "value for signal" regime was ultra vires the CRTC. The CRTC referred the matter for the Federal Court of Appeal, which ruled 2-1 that the CRTC had the requisite jurisdiction.

With Neil leading the charge, the BDUs appealed to the Supreme Court of Canada. They won. The majority, per Rothstein J., concluded that the statutory grants of power in the Broadcasting Act did not confer jurisdiction on the CRTC to make regulations "pertain[ing] to the creating of exclusive rights for broadcasters to authorize or prohibit the distribution of signals or programs, or to control the direct economic relationship between the BDUs and the broadcasters" (at para. 29). Moreover, even if the CRTC had the requisite authority, Rothstein J. held, it could not exercise it by creating the proposed regime, because doing so would bring the Broadcasting Act into conflict with the Copyright Act.

Arguing Cogeco required technical mastery – not just of the intricacies of statutory interpretation, which had to be applied to a complex web of interrelated legislation, but also of the broadcasting technology and regulatory framework at issue. Neil proved equal to the task. In so doing, he succeeded where other outstanding advocates had failed, and persuaded the Court to clip the CRTC's wings in a manner consistent with Parliament's intent.

Bhasin v. Hrynew, [2014] 3 SCR 494

The world of business is cutthroat, the law of the jungle rules, promises are made to be broken, and you can trust no-one. Right? Actually, no, said Neil. If two people make an agreement to do something, they should at least be able to count on each other to act in good faith – including being honest.

So went the argument of Neil and his colleagues (with Neil's characteristic bold italics throughout his factum), and the Supreme Court unanimously sided with his client, Mr. Bhasin. The facts of the case presented a compelling tale. Over the years, Mr. Bhasin had built up a profitable business in Alberta selling education savings plans for Canadian American Financial Corp. ("Can-Am") under a renewable dealership agreement (the "Contract"). But Can-Am developed a secret plan to put Mr. Bhasin's growing competitor and enemy, Mr. Hrynew, in charge of Alberta sales. Can-Am lied to Mr. Bhasin about Mr. Hrynew's increasingly prominent role, and misled Mr. Bhasin about its planned reorganization. If Can-Am had been honest, Mr. Bhasin could have taken steps to retain the value in his agency. As it was, Can-Am eventually told Mr. Bhasin it would not renew the Contract; Mr. Bhasin lost the value of his agency; and the majority of his sales force was recruited into Mr. Hrynew's agency.

Neil drew on extensive jurisprudence from Quebec and internationally, together with a large body of academic literature, to argue that contracting parties owe each other a duty of honesty in performing the contractual terms. And it is irrelevant to the existence of this duty whether the contract contains a boilerplate "entire agreement" clause buried at the end.

The Supreme Court agreed, and went even further: all contracts are underlain by an "organizing principle" of good faith performance. In carrying out their contractual performance, "a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner".  This organizing principle includes, but is not exhausted by, a duty of honest performance, i.e.: "parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract." Can-Am's dishonesty entitled Mr. Bhasin to compensation for the value of his agency.

Bhasin was a watershed decision that reverberated around the world, having already been cited by courts in England, Ireland, Australia and New Zealand. It permanently changed the expectations for anyone who enters into contracts – which is pretty much everyone. While the full implications of the decision for the law of contracts are complex, and will likely be debated for decades to come, it is a testament to Neil that Bhasin's logic was grounded in his own simple ethos: that people should just do the right thing.

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