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.

To view the original article click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions