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Call DOCUdavit Solutions 1-888-781-9083 and Be Prepared. e: [email protected] www.docudavit.com Vol. 35, No. 37 FEBRUARY 12, 2016 lawyersweekly.ca Landmark Nation ‘can and must do better’ tort creation say ministers of child treatment worries some CRISTIN SCHMITZ First Nations children in welfare system chronically received less OT TAWA The Ontario Superior Court’s CRISTIN SCHMITZ recent creation of a sweeping OT TAWA U.S-style privacy invasion tort does more than provide civil It’s rare to witness the attorney recourse for people whose intim- general of Canada, or other cab- ate images are disseminated inet ministers for that matter, without their consent — it also enthusiastically welcoming a tri- provides new redress for those bunal decision against Ottawa, whose “private lives” are publi- especially when it means millions cized without permission when it more in federal spending — in this “would be highly offensive to a case on upgrading First Nations reasonable person and is not of child welfare services to be “sub- legitimate concern to the public.” stantively equal” to those pro- The novel “public disclosure of tecting other children. private facts” cause of action Jus- But that’s exactly what Justice tice David Stinson devised last Minister and Attorney General month in his judgment goes far Jody Wilson-Raybould, and beyond the facts of the case Indigenous and Northern Affairs before the judge — which involved Minister Carolyn Bennett, did Jan. the non-consensual distribution 26, after the Canadian Human of sexually explicit images — to Rights Tribunal released a ground- paving the way to civilly con- breaking decision that some see as strain and punish the non-con- a robust precedent for improving sensual publication of any private chronically underfunded First “information” when the matter Nations child welfare services and publicized — or simply the act of for pushing Canada to upgrade Federal Minister of Justice and Attorney General Jody Wilson-Raybould, left, looks on as Minister of Indigenous publication itself “would be substandard services for indigen- and Northern Affairs Carolyn Bennett speaks about the landmark Canadian Human Rights Tribunal decision highly offensive to a reasonable ous peoples: First Nations Child finding discrimination against First Nations children in the welfare system. ADRIAN WYLD / THE CANADIAN PRESS person, and…is not of legitimate and Family Caring Society of Can- concern to the public:” Jane Doe ada v. Assembly of First Nations v. the federal government has for on the basis of their race or national First Nations children formal v. N.D., 2016 ONSC 541. A.G. Canada (for the Minister of years violated s. 5 of the Canadian or ethnic origin, by underfunding equality by spending less on them In the light of the plainly Indian and Northern Affairs Can- Human Rights Act (CHRA) by dis- their child welfare and protection than what’s spent to protect other egregious facts of the case, the ada), [2016] CHRT 2. criminating against some 163,000 services, including failing to adjust Canadian children. It also denied court did not have to define After hearing 73 days of argu- indigenous children living on for inflation since 1995. substantive equality since their what “highly offensive” and “not ment, the tribunal concluded that reserves and in the Yukon Territory, The government didn’t just deny Grammond, Page 2 Fraser, Page 11 ADR Health LAW BUSINESS & CAREERS Another hurdle The biosimilar U.S. is fertile to annulments patent puzzle ground for P3s Court won’t set aside Differentiating dosage Canadian firms taking international award and medical treatment their expertise south PAGE 12 PAGE 15 PAGE 21 We put our lawyer and notary clients front and centre Ally and we put our efforts into keeping real estate transactions where they belong – in your office. Learn more about our level of support, call (888) 667-5151 or visit stewart.ca. 40065517 NO. AGREEMENT MAIL PUBLICATIONS www.lawyersweekly.ca/subscribe To subscribe to The Lawyers Weekly, The subscribe to Lawyers To visit © 2015 Stewart. All rights reserved. 2 • FEBRUARY 12, 2016 THE LAWYERS WEEKLY News Contents Grammond: Shift of strategy News Ministers say nation ‘can and must do better’ 1 in approach of First Nations Landmark tort creation makes some uneasy 1 Continued from page 1 able water etc. “because the govern- needs are often higher owing to the ment will have to show that it is Judge leery of battleship expenses in dinghy wars 3 harms visited on their commun- treating aboriginal peoples equally ities from the Indian residential with other Canadians. In other Circumstantial evidence is seen schools, and from sub-par services, It is ‘We deserve equal words, the aboriginal peoples are as enough 4 such as poor housing, which leads treatment.’ And saying entitled to receive the same essen- to overcrowding that sparks allega- tial services as other Canadians on Driver to appeal legality of search that puts the light on and arrest 5 tions of neglect, held tribunal an equal basis, and that’s not hap- members Sophie Marchildon and the sad fact that First pening now.” Focus Edward Lustig in their 182-page Nations and indigenous Daniel Poulin, counsel for the ruling. (It was under reserve for 15 Canadian Human Rights Commis- ADR months and is dedicated to tribunal peoples do not receive sion, said complaints related to Another hurdle to annulments 12 member Réjean Bélanger who died equal treatment. First Nations education and poli- during the deliberations.). cing are ready for hearing by tribu- Time crafting arbitration clauses “Overall, [the department’s] nals, and the commission has com- well spent 13 method of providing funding to government agrees that we can and Sébastien Grammond plaints about inadequacies in other Why it’s hard to match mediator ensure the safety and wellbeing of must do better.” Lawyer programs under consideration. with dispute 14 First Nations children on reserve Sébastien Grammond, counsel It is significant that the tribunal and in the Yukon, by supporting for the complainant First Nations rejected federal arguments that the Health LAW the delivery of culturally appropri- Child and Family Caring Society of in First Nations strategy in treatment of First Nations children ate child and family services that Canada, a non-profit research and their fight for adequate federal cannot be compared to that of The biosimilar patent puzzle 15 are in accordance with the provin- policy body which supports First funding of services. other children, and that federal Regulators hot on the trail of fake cial/territorial legislation and stan- Nations child and family services “What’s new essentially is that we funding is not a “service” capable of practitioners 16 dards and provided in a reasonably agencies, said a big question is are using the right to equality, and being discriminatory because the comparable manner to those pro- whether the new Liberal govern- the [CHRA’s prohibition against government structures its pro- Business & Careers vided off reserve in similar circum- ment will continue its predecessor’s discrimination in services]…to fur- grams so they are actually delivered stances, falls far short of its object- eight-year defence of the complaint ther the claims of the indigenous by the provinces or First Nations Canadian law firms take P3 ive,” the tribunal found. in light of Wilson-Raybould’s state- peoples, so it’s an entirely different child welfare agencies (using fed- expertise to U.S. 21 To the contrary, “the evidence ment to the Commons last month way of framing those claims,” he eral money). demonstrates adverse effects for that “there will likely not be any explained. “It’s not: ‘We have Bottom line, “it means that the many” First Nations children and reason why we would seek judicial Aboriginal rights because we were [Canadian] Human Rights Act families, including that the federal review of this decision.” here before.’ It’s not treaty rights applies” to the government and its funding formula provides an incen- (In 2009 Wilson-Raybould was because ‘We made a deal with you funding of First Nations services, tive for children to be removed elected regional chief of the B.C. and we want you to uphold it.’ It is Poulin said. “It’s important for all from their homes. The evidence Assembly of First Nations, but ‘We deserve equal treatment.’ And the programs that the federal gov- accepted by the tribunal indicated stepped down last year to run for saying that puts the light on the ernment delivers on-reserve.” that First Nations children are 12 the Liberals.