Western Weekly Reports

WESTERN WEEKLY REPORTS Reports of Cases Decided in the Courts of Western Canada and Certain Decisions of the Supreme Court of Canada 2013-VOLUME 1 (Cited [2013] 1 W.W.R.)

All cases of value from the courts of Western Canada and appeals therefrom to the Supreme Court of Canada

SELECTION EDITOR Walter J. Watson, B.A., LL.B.

ASSOCIATE EDITORS (Alberta) E. Mirth, Q.C. (British Columbia) Darrell E. Burns, LL.B., LL.M. (Manitoba) E. Arthur Braid, Q.C. (Saskatchewan) G.L. Gerrand, Q.C.

CARSWELL EDITORIAL STAFF Cheryl L. McPherson, B.A.(HONS.) Director, Primary Content Operations Audrey Wineberg, B.A.(HONS.), LL.B. Product Development Manager Jennifer Weinberger, B.A.(HONS.), J.D. Supervisor, Legal Writing Sharon Yale, LL.B., M.A. Supervisor, Legal Writing Sarah Leopoldo, B.A.(HONS.) Content Editor WESTERN WEEKLY REPORTS is published 48 times per year. Subscrip- Western Weekly Reports est publié 48 fois par année. L’abonnement est de tion rate $409.00 per bound volume including parts. Indexed: Carswell’s In- 409 $ par volume relié incluant les fascicules. Indexation: Index a` la docu- dex to Canadian Legal Literature. mentation juridique au Canada de Carswell.

Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la rédaction est situé a` Montréal — 430, rue St. Pierre, Mon- Montréal, Québec, H2Y 2M5. tréal, Québec, H2Y 2M5.

NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D’EXONERATION´ DE RESPON- tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILITE´ : Tous droits réservés. Il est interdit de reproduire, mémoriser sur form or by any means, electronic, mechanical, photocopying, recording or un système d’extraction de données ou de transmettre, sous quelque forme ou otherwise, without the prior written consent of the publisher (Carswell). par quelque moyen que ce soit, electronique´ ou mécanique, photocopie, enre- gistrement ou autre, tout ou partie de la présente publication, a` moins d’en avoir préalablement obtenu l’autorisation ecrite´ de l’éditeur, Carswell. A licence, however, is hereby given by the publisher: Cependant, l’éditeur concède, par le présent document, une licence :

(a) to a lawyer to make a copy of any part of this publication to give to a a) a ` un avocat, pour reproduire quelque partie de cette publication pour judge or other presiding officer or to other parties in making legal submis- remettre a` un juge ou un autre officier-pr´esident ou aux autres parties dans sions in judicial proceedings; une instance judiciaire;

b) a` un juge ou un autre officier-président, pour produire quelque partie de (b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ou in judicial proceedings; or c) a` quiconque, pour reproduire quelque partie de cette publication dans le cadre de délibérations parlementaires. (c) to anyone to reproduce any part of this publication for the purposes of « Instance judiciaire » comprend une instance devant une cour, un tribunal ou parliamentary proceedings. une personne ayant l’autorité de décider sur toute chose affectant les droits ou les responsabilitiés d’une personne. “Judicial proceedings” include proceedings before any court, tribunal or per- Ni Carswell ni aucune des autres personnes ayant participé a` la réalisation et son having authority to decide any matter affecting a person’s legal rights or a` la distribution de la présente publication ne fournissent quelque garantie liabilities. que ce soit relativement a` l’exactitude ou au caractère actuel de celle-ci. Il est entendu que la présente publication est offerte sous la réserve expresse que ni Carswell and all persons involved in the preparation and sale of this publica- Carswell, ni le ou les auteurs de cette publication, ni aucune des autres per- tion disclaim any warranty as to accuracy or currency of the publication. This sonnes ayant participé a` son elaboration´ n’assument quelque responsabilité publication is provided on the understanding and basis that none of Carswell, que ce soit relativement a` l’exactitude ou au caractère actuel de son contenu the author/s or other persons involved in the creation of this publication shall ou au résultat de toute action prise sur la foi de l’information qu’elle be responsible for the accuracy or currency of the contents, or for the results renferme, ou ne peuvent etreˆ tenus responsables de toute erreur qui pourrait of any action taken on the basis of the information contained in this publica- s’y etreˆ glissée ou de toute omission. tion, or for any errors or omissions contained herein. La participation d’une personne a` la présente publication ne peut en aucun cas etreˆ considérée comme constituant la formulation, par celle-ci, d’un avis No one involved in this publication is attempting herein to render legal, ac- juridique ou comptable ou de tout autre avis professionnel. Si vous avez counting, or other professional advice. If legal advice or other expert assis- besoin d’un avis juridique ou d’un autre avis professionnel, vous devez tance is required, the services of a competent professional should be sought. retenir les services d’un avocat ou d’un autre professionnel. Les analyses The analysis contained herein should in no way be construed as being either comprises dans les présentes ne doivent etreˆ interprétées d’aucune fa¸con official or unofficial policy of any governmental body. comme etant´ des politiques officielles ou non officielles de quelque organ- isme gouvernemental que ce soit.

8 The paper used in this publication meets the minimum requirements of 8 Le papier utilis´e dans cette publication satisfait aux exigences minimales American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984.

ISSN 0049-7525 ISBN 978-0-7798-5225-3 Printed in Canada by Thomson Reuters

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com Contact www.carswell.com/contact R. v. O’Brien 639

[Indexed as: R. v. O’Brien] Her Majesty The Queen, Appellant and Kelly Joseph O’Brien, Respondent Supreme Court of Canada Docket: 34694 2013 SCC 2 McLachlin C.J.C., Fish, Abella, Rothstein, Cromwell, Moldaver, Wagner JJ. Heard: December 6, 2012 Judgment: January 17, 2013 Criminal law –––– Offences — Threatening communications or uttering threats to cause death — Elements — Intent –––– Where complainant does not feel objectively threatened — Accused was charged with uttering threats to cause death and with breach of probation — In telephone conversation with complainant from jail, accused repeatedly stated intention to kill complainant, and how that would occur — Complainant gave evidence at trial and testified that accused often spoke in belligerent manner without hostile intent — Com- plainant further testified that she did not feel threatened by accused’s statements — Accused was acquitted and Crown appealed — Appeal was dismissed — Court of Appeal found that mens rea for uttering threats requires subjective intent to cause fear, which may be inferred but only where appropriate given circumstances in which impugned utterances were made — Crown appealed with Supreme Court of Canada — Appeal dismissed — At no point in her reasons did trial judge state that she was acquitting accused solely because complainant did not take threats seriously — Trial judge did not err in her decision that she was left with reasonable doubt that accused intended that threats be taken seriously. Droit criminel –––– Infractions — Communications comportant des menaces ou profération de menaces de mort — Nature et el´´ ements de l’infraction — Intention –––– Lorsque le plaignant ne se sent pas objectivement menacé — Accusé a et´´ e inculpé d’avoir proféré des menaces de mort et d’avoir fait défaut de se conformer a` une ordonnance de probation — Au cours d’une conversation téléphonique avec la plaignante tenue alors qu’il etait´ emprisonné, l’accusé a exprimé a` plusieurs reprises son intention de tuer la plaignante et a précisé la fa¸con dont il s’y prendrait — Dans son témoignage au procès, la plaignante a affirmé que l’accusé lui parlait souvent de manière agressive, mais sans intention malicieuse — Plaignante a de plus affirmé qu’elle ne se sentait pas menacée par les paroles de l’accusé — Accusé a et´´ e acquitté et le ministère public a interjeté appel — Appel a et´´ e rejeté — Selon la Cour d’appel, il etait´ 640 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

possible de conclure que l’accusé avait une intention subjective de susciter la peur, ce qui constitue la mens rea requise pour l’infraction de menace de mort, mais seulement si cela etait´ conforme aux circonstances au cours desquelles les menaces alléguées avaient et´´ e proférées — Ministère public a formé un pourvoi devant la Cour suprême du Canada — Pourvoi rejeté — Nulle part dans ses motifs la juge du procès n’a affirmé avoir acquitté l’accusé pour la seule raison que la plaignante n’avait pas pris les menaces au sérieux — Juge du procès n’a pas commis d’erreur en concluant qu’elle avait un doute raisonnable que l’accusé voulait que ses menaces soient prises au sérieux. The accused was charged with uttering threats to cause death and with breach of probation. In a telephone conversation with the complainant from jail, the accused repeatedly stated his intention to kill the complainant, and how that would occur. The complainant gave evidence at trial and testified that the accused often spoke in a belligerent manner without any hostile intent. The complainant further testified that she did not feel threatened by the accused’s statements. The accused was acquitted and the Crown appealed. The appeal was dismissed. The Court of Appeal found that the mens rea for uttering threats requires subjective intent to cause fear, which may be inferred but only where appropriate given the circumstances in which the impugned utterances were made. The Crown appealed with the Supreme Court of Canada. Held: The appeal was dismissed. Per Fish J. (Cromwell, Moldaver, Wagner JJ. concurring): At no point in her reasons did the trial judge state that she was acquitting the accused solely because the complainant did not take the threats seriously. The trial judge did not err in her decision that she was left with a reasonable doubt that the accused intended that the threats be taken seriously. Per Rothstein J. (dissenting) (McLachlin C.J.C., Abella J. concurring): The trial judge was required to determine whether the reasonable person would consider that the words were uttered as threats. The trial judge erred in making the complainant’s perception the determinative factor in assessing the accused’s intent to instill fear in her and to intimidate her. The appeal should have been allowed, and a conviction should have been entered. L’accusé a et´´ e inculpé d’avoir proféré des menaces de mort et d’avoir fait défaut de se conformer a` une ordonnance de probation. Au cours d’une conversation téléphonique avec la plaignante tenue alors qu’il etait´ emprisonné, l’accusé a exprimé a` plusieurs reprises son intention de tuer la plaignante et a précisé la fa¸con dont il s’y prendrait. Dans son témoignage au procès, la plaignante a af- firmé que l’accusé lui parlait souvent de manière agressive, mais sans intention malicieuse. La plaignante a de plus affirmé qu’elle ne se sentait pas menacée par les paroles de l’accusé. L’accusé a et´´ e acquitté et le ministère public a interjeté appel. R. v. O’Brien 641

L’appel a et´´ e rejeté. Selon la Cour d’appel, il etait´ possible de conclure que l’accusé avait une intention subjective de susciter la peur, ce qui constitue la mens rea requise pour l’infraction de menace de mort, mais seulement si cela etait´ conforme aux circonstances au cours desquelles les menaces alléguées avaient et´´ e proférées. Le ministère public a formé un pourvoi devant la Cour suprême du Canada. Arrêt: Le pourvoi a et´´ e rejeté. Fish, J. (Cromwell, Moldaver, Wagner, JJ., souscrivant a` son opinion) : Nulle part dans ses motifs la juge du procès n’a affirmé avoir acquitté l’accusé pour la seule raison que la plaignante n’avait pas pris les menaces au sérieux. La juge du procès n’a pas commis d’erreur en concluant qu’elle avait un doute raisonnable que l’accusé voulait que ses menaces soient prises au sérieux. Rothstein, J. (dissident) (McLachlin, J.C.C., Abella, J., souscrivant a` son opinion) : La juge du procès devait déterminer si une personne raisonnable considér- erait que les paroles prononcées etaient´ des menaces. La juge du procès a commis une erreur en considérant la perception de la plaignante comme le facteur déterminant de l’analyse visant a` décider si l’accusé avait l’intention de susciter la crainte chez cette dernière et de l’intimider. Le pourvoi aurait dû etreˆ accueilli et une déclaration de culpabilité aurait dû etreˆ prononcée. Cases considered by Fish J.: R. v. Clemente (1994), [1994] 8 W.W.R. 1, 95 Man. R. (2d) 161, 70 W.A.C. 161, [1994] 2 S.C.R. 758, 31 C.R. (4th) 28, 91 C.C.C. (3d) 1, 168 N.R. 310, 1994 CarswellMan 152, 1994 CarswellMan 380, EYB 1994-67186, [1994] S.C.J. No. 50 (S.C.C.) — considered R. v. McCraw (1991), 7 C.R. (4th) 314, 128 N.R. 299, 66 C.C.C. (3d) 517, [1991] 3 S.C.R. 72, 49 O.A.C. 47, 1991 CarswellOnt 1024, 1991 Carswell- Ont 113, EYB 1991-67627, [1991] S.C.J. No. 69 (S.C.C.) — referred to

Cases considered by Rothstein J. (dissenting): R. v. Clemente (1994), [1994] 8 W.W.R. 1, 95 Man. R. (2d) 161, 70 W.A.C. 161, [1994] 2 S.C.R. 758, 31 C.R. (4th) 28, 91 C.C.C. (3d) 1, 168 N.R. 310, 1994 CarswellMan 152, 1994 CarswellMan 380, EYB 1994-67186, [1994] S.C.J. No. 50 (S.C.C.) R. v. McCraw (1991), 7 C.R. (4th) 314, 128 N.R. 299, 66 C.C.C. (3d) 517, [1991] 3 S.C.R. 72, 49 O.A.C. 47, 1991 CarswellOnt 1024, 1991 Carswell- Ont 113, EYB 1991-67627, [1991] S.C.J. No. 69 (S.C.C.) R. v. Morrissey (1995), 1995 CarswellOnt 18, 38 C.R. (4th) 4, 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, 80 O.A.C. 161, [1995] O.J. No. 639 (Ont. C.A.) R. v. Y. (C.L.) (2008), [2008] 2 W.W.R. 1, 225 Man. R. (2d) 146, 419 W.A.C. 146, [2008] 1 S.C.R. 5, 227 C.C.C. (3d) 129, 53 C.R. (6th) 207, 2008 SCC 2, 642 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

370 N.R. 284, 2008 CarswellMan 19, 2008 CarswellMan 20, 289 D.L.R. (4th) 1, [2008] S.C.J. No. 2 (S.C.C.) Statutes considered by Fish J.: Criminal Code, R.S.C. 1985, c. C-46 s. 264.1(1)(a) [en. R.S.C. 1985, c. 27 (1st Supp.), s. 38] — referred to s. 264.1(1)(b) [en. R.S.C. 1985, c. 27 (1st Supp.), s. 38] — referred to s. 693(1)(a) — pursuant to

Statutes considered by Rothstein J. (dissenting): Criminal Code, R.S.C. 1985, c. C-46 s. 264.1(1) [en. R.S.C. 1985, c. 27 (1st Supp.), s. 38] — referred to

APPEAL from judgment reported at R. v. O’Brien (2012), 2012 MBCA 6, 280 C.C.C. (3d) 481, 2012 CarswellMan 25, [2012] M.J. No. 28, 275 Man. R. (2d) 144, 538 W.A.C. 144, [2012] 5 W.W.R. 265 (Man. C.A.), dismissing appeal from judgment acquitting accused for uttering threats.

POURVOI formé a` l’encontre d’un jugement publié a` R. v. O’Brien (2012), 2012 MBCA 6, 280 C.C.C. (3d) 481, 2012 CarswellMan 25, [2012] M.J. No. 28, 275 Man. R. (2d) 144, 538 W.A.C. 144, [2012] 5 W.W.R. 265 (Man. C.A.), ayant rejeté l’appel interjeté a` l’encontre d’un jugement ayant acquitté l’accusé d’avoir proféré des menaces.

Rekha Malaviya, Amiram Kotler, for Appellant Michael P. Cook, Marie-France Major, for Respondent

Fish J.: I 1 This appeal from a judgment of the Manitoba Court of Appeal comes to us as of right, pursuant to s. 693(1)(a) of the Criminal Code. 2 In virtue of that provision, the Attorney General may appeal to this Court “on any question of law on which a judge of the court of appeal dissents”. Here, the question is whether the trial judge, in acquitting the respondent Kelly Joseph O’Brien, erred in law as to the mens rea of the offence with which he was charged. I agree with the majority in the Court of Appeal that she did not (2012 MBCA 6, 275 Man. R. (2d) 144 (Man. C.A.)). 3 I would therefore dismiss the appeal. R. v. O’Brien Fish J. 643

II 4 The respondent was charged with uttering a threat to cause death or bodily harm to another person, contrary to s. 264.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. He was charged as well, in a separate count, with threatening to damage that person’s property, contrary to s. 264.1(1)(b). 5 In her brief reasons for judgment, delivered orally, the trial judge held — correctly, in my view — that the actus reus of the offence created by s. 264.1(1)(a) is “the actual speaking or uttering of the threats of death or serious bodily harm”. And, again correctly, the trial judge held that the mens rea “is that the words are meant [to convey] a threat. In other words they are meant to intimidate.” 6 This understanding of the essential elements of a charge under s. 264.1(1)(a) conforms fully with the governing decisions of this Court. 7 Speaking for the Court in R. v. Clemente, [1994] 2 S.C.R. 758 (S.C.C.), at p. 763, Cory J. stated: Under the present section the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously. [Emphasis deleted.] See, to the same effect, R. v. McCraw, [1991] 3 S.C.R. 72 (S.C.C.), at p. 82. 8 Moreover, before rendering judgment, the trial judge took care to re- cess the proceedings for the express purpose of reviewing the decision of this Court in Clemente. In her reasons for judgment, as I have already mentioned, she then proceeded to set out her understanding of the law in full conformity with that decision.

III 9 At no point in her reasons did the trial judge state, as the Crown contends, that she was acquitting the accused solely because the recipient of the threats did not take them seriously. 10 Rather, after setting out the law correctly, the trial judge quite properly felt bound “to consider the words [uttered by Mr. O’Brien] in the context of the evidence of [the person to whom they were directed]”. 644 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

That evidence was relevant and therefore admissible for the purpose of assessing the context in which the words were spoken. 11 As Cory J. explained in Clemente, at p. 762: ... the question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in the absence of any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they were directed. 12 Manifestly, the trial judge asked herself the right question. Her answer was that the evidence left her with a reasonable doubt whether Mr. O’Brien had acted with the requisite mens rea of the offence with which he was charged. And she entered an acquittal for that reason.

IV 13 I agree with the Crown that it is not an essential element of the offence under s. 264.1(1)(a) that the recipient of the threats uttered by the accused feel intimidated by them or be shown to have taken them seriously. All that needs to be proven is that they were intended by the accused to have that effect. 14 Here, the trial judge was left with a reasonable doubt in that regard. Another judge might well have decided otherwise, but for the reasons given, I am not persuaded that the trial judge committed the error of law imputed to her by the Crown in concluding as she did. 15 I would therefore dismiss the appeal.

Rothstein J. (dissenting):

16 Kelly O’Brien was charged with two counts of uttering threats contrary to s. 264.1(1) of the Criminal Code, R.S.C. 1985, c. C-46, and two counts of breach of probation. 17 The charges arose as a result of statements made by Mr. O’Brien during a telephone call to his ex-girlfriend, Ms. W, while he was incarcer- ated. Ms. W was pregnant with his child and was planning to have an abortion because she suspected him of having had an affair with another woman. Mr. O’Brien told Ms. W that he would kill her if she went through with the abortion. 18 The actus reus of uttering threats has been conceded by Mr. O’Brien and is not in issue in this appeal. The only issue before this Court is R. v. O’Brien Rothstein J. 645

whether the trial judge properly assessed the mens rea of the offence of uttering threats. 19 At trial, Mr. O’Brien’s counsel submitted that if “at the end of the day [the recipient of the threats] simply just didn’t feel threatened ... just didn’t feel scared it’s my respectful submission that the offence at law has not been made out” (A.R., at p. 57). On the other hand, the Crown submitted that “in law ... it matters not that the words were not taken seriously” (A.R., at p. 57). 20 The learned trial judge, referring to R. v. Clemente, [1994] 2 S.C.R. 758 (S.C.C.), said in the course of argument that while “the comments have to be uttered with the intent to intimidate or instill ... fear.... The case also indicates that such threats have to be taken seriously” (A.R., at p. 59). The trial judge then retired to review Clemente. 21 After a short adjournment, she returned to the courtroom to deliver her oral reasons. In dealing with the mental element, the trial judge stated that she had a reasonable doubt about “the mens rea of the offence because of the evidence of Ms. [W], the fact she did not take [the threats] seriously” (A.R., at p. 4). 22 Respectfully, the trial judge’s holding misinterprets the mens rea of the offence of uttering threats as set out in Clemente and R. v. McCraw, [1991] 3 S.C.R. 72 (S.C.C.). The Clemente test asks the question: “Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?” (p. 762, quoting McCraw, at p. 83). 23 The trial judge did not ask herself what a reasonable person would objectively perceive. Rather, she asked herself what Ms. W perceived. According to Clemente, the trial judge was required to determine whether the reasonable person would consider that the words were uttered as threats by “regard[ing] them objectively, and review[ing] them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed” (p. 763). Accordingly, the relationship between Mr. O’Brien and Ms. W is not irrelevant. It forms part of the context and circumstances surrounding the offence. However, whether the recipient of a threat takes the threat seriously is not, in and of itself, an element of the mens rea of the accused. 646 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

24 Here, the trial judge erred in making Ms. W’s perception the determinative factor in assessing the accused’s intent to instill fear in her and to intimidate her so that she would not have the abortion. 25 I am not unmindful of the “cautio[n] [to] appellate judges not to dis- sect, parse, or microscopically examine the reasons of a trial judge” (R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5 (S.C.C.), at para. 11, referring to R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-5). However, in my respectful opinion, the error of law made by the trial judge is self-evident. 26 I would accordingly allow the appeal, enter a conviction and remit the matter to the Provincial Court of Manitoba for sentencing. Appeal dismissed. Pourvoi rejet´e. R. v. Eckstein 647

[Indexed as: R. v. Eckstein] Her Majesty the Queen, Respondent and Suzanne Maureen Eckstein, (Accused) Appellant Manitoba Court of Appeal Docket: AR 11-30-07570 2012 MBCA 96 Barbara M. Hamilton, Richard J. Chartier, Alan D. MacInnes JJ.A. Heard: June 7, 2012 Judgment: October 18, 2012 Criminal law –––– Extraordinary remedies — Certiorari — Appeal from certiorari application –––– Accused was charged with offences including manslaughter and arson — After preliminary inquiry, accused was committed to stand trial — Accused brought judicial review motion for certiorari order, to quash committal decision — This motion was dismissed — Accused appealed from reviewing judge’s decision — Appeal dismissed — As there was no legal error committed, deference was owed to findings of reviewing judge — Crown’s evidence was capable of belief and at this stage, was taken to be true — There was admissible evidence present on all essential elements of offences, as required by applicable test — Any inconsistency in evidence was to be dealt with at trial — Identity of accused was based on circumstantial evidence — This was allowable as evidence was sufficiently reliable — Accused was identified as “Susan”or “Sue” when her full name was Suzanne — Names were similar and were mentioned by people who clearly knew that accused was person charged with offences — Evidence on identity was capable of belief and was admissible at this stage. Criminal law –––– Extraordinary remedies — Certiorari — Grounds for review — Exceeding jurisdiction — Sufficiency of evidence for committal –––– Accused was charged with offences including manslaughter and arson — After preliminary inquiry, accused was committed to stand trial — Accused brought judicial review motion for certiorari order, to quash committal decision — This motion was dismissed — Accused appealed from reviewing judge’s decision — Appeal dismissed — As there was no legal error committed, deference was owed to findings of reviewing judge — Crown’s evidence was capable of belief and at this stage, was taken to be true — There was admissible evidence present on all essential elements of offences, as required by applicable test — Any inconsistency in evidence was to be dealt with at trial — Identity of accused was 648 WESTERN WEEKLY REPORTS [2013] 1 W.W.R. based on circumstantial evidence — This was allowable as evidence was sufficiently reliable — Accused was identified as “Susan”or “Sue” when her full name was Suzanne — Names were similar and were mentioned by people who clearly knew that accused was person charged with offences — Evidence on identity was capable of belief and was admissible at this stage. Cases considered by Richard J. Chartier J.A.: Canada (Attorney General) v. British Columbia (Provincial Court Judge) (1996), (sub nom. Canada (Attorney General) v. Trueman, P.C.J.) 83 B.C.A.C. 227, (sub nom. Canada (Attorney General) v. Trueman, P.C.J.) 136 W.A.C. 227, 1996 CarswellBC 2373, [1996] B.C.J. No. 2193 (B.C. C.A.) — distinguished Q. v. College of Physicians & Surgeons (British Columbia) (2003), 2003 SCC 19, 2003 CarswellBC 713, 2003 CarswellBC 743, 11 B.C.L.R. (4th) 1, 223 D.L.R. (4th) 599, 48 Admin. L.R. (3d) 1, (sub nom. Dr. Q., Re) 302 N.R. 34, [2003] 5 W.W.R. 1, (sub nom. Dr. Q. v. College of Physicians & Surgeons of British Columbia) [2003] 1 S.C.R. 226, (sub nom. Dr. Q., Re) 179 B.C.A.C. 170, (sub nom. Dr. Q., Re) 295 W.A.C. 170, [2003] S.C.J. No. 18, REJB 2003-39403 (S.C.C.) — followed R. v. Arcuri (2001), 2001 SCC 54, 2001 CarswellOnt 3083, 2001 CarswellOnt 3084, 274 N.R. 274, 157 C.C.C. (3d) 21, 203 D.L.R. (4th) 20, 44 C.R. (5th) 213, 150 O.A.C. 126, [2001] 2 S.C.R. 828, [2001] S.C.J. No. 52, REJB 2001-25685 (S.C.C.) — referred to R. v. Barros (2011), 88 C.R. (6th) 33, 2011 CarswellAlta 1724, 273 C.C.C. (3d) 129, [2011] 12 W.W.R. 619, 421 N.R. 270, 49 Alta. L.R. (5th) 223, 2011 SCC 51, 2011 CarswellAlta 1725, [2011] 3 S.C.R. 368, 242 C.R.R. (2d) 243, 513 A.R. 1, 530 W.A.C. 1, 338 D.L.R. (4th) 219, [2011] S.C.J. No. 51 (S.C.C.) — referred to R. v. Creelman (2007), 48 C.R. (6th) 29, 254 N.S.R. (2d) 155, 810 A.P.R. 155, 2007 NSCA 51, 2007 CarswellNS 186, 155 C.R.R. (2d) 49, [2007] N.S.J. No. 174 (N.S. C.A.) — referred to R. v. Hawley (2012), 2012 CarswellOnt 9493, 2012 ONCA 528, 295 O.A.C. 85 (Ont. C.A.) — considered R. v. Hickey (2007), 2007 CarswellOnt 10241, 2007 ONCA 845 (Ont. C.A.) — referred to R. v. Howells (2009), 2009 CarswellBC 3001, 2009 BCCA 460, [2009] B.C.J. No. 2221 (B.C. C.A.) — referred to R. v. Hynes (2001), 2001 SCC 82, 2001 CarswellNfld 316, 2001 CarswellNfld 317, 47 C.R. (5th) 278, 88 C.R.R. (2d) 222, 159 C.C.C. (3d) 359, 278 N.R. 299, 206 D.L.R. (4th) 483, [2001] 3 S.C.R. 623, 208 Nfld. & P.E.I.R. 181, 624 A.P.R. 181, [2001] S.C.J. No. 80, REJB 2001-27032 (S.C.C.) — referred to R. v. Eckstein Richard J. Chartier J.A. 649

R. v. O’Kane (2012), 2012 MBCA 82, 2012 CarswellMan 554, [2012] M.J. No. 307 (Man. C.A.) — followed R. v. Rao (2012), 94 C.R. (6th) 109, 2012 CarswellBC 1976, 2012 BCCA 275, 323 B.C.A.C. 165, 550 W.A.C. 165, [2012] B.C.J. No. 1247 (B.C. C.A.) — referred to R. v. Russell (2001), 2001 SCC 53, 2001 CarswellOnt 3085, 2001 CarswellOnt 3086, 274 N.R. 247, 157 C.C.C. (3d) 1, 203 D.L.R. (4th) 1, 44 C.R. (5th) 231, 150 O.A.C. 99, [2001] 2 S.C.R. 804, [2001] S.C.J. No. 53, REJB 2001- 25684, [2001] A.C.S. No. 53 (S.C.C.) — followed R. v. Sazant (2004), 193 C.C.C. (3d) 446, 348 N.R. 1, 210 O.A.C. 376, 2004 SCC 77, 2004 CarswellOnt 4768, 2004 CarswellOnt 4769, [2004] 3 S.C.R. 635, 266 D.L.R. (4th) 357, 208 C.C.C. (3d) 225, [2004] S.C.J. No. 74, REJB 2004-80491 (S.C.C.) — considered R. v. Shiers (2003), 114 C.R.R. (2d) 53, 2003 CarswellNS 434, 2003 NSCA 138, 219 N.S.R. (2d) 196, 692 A.P.R. 196, [2003] N.S.J. No. 453 (N.S. C.A.) — referred to United States v. Shephard (1976), [1977] 2 S.C.R. 1067, 34 C.R.N.S. 207, 9 N.R. 215, (sub nom. United States of America v. Sheppard) 30 C.C.C. (2d) 424, (sub nom. United States of America v. Sheppard) 70 D.L.R. (3d) 136, 1976 CarswellNat 1, 1976 CarswellNat 433F, [1976] S.C.J. No. 106 (S.C.C.) — followed Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 548(1) — considered s. 830 — considered

APPEAL by accused from judgment reported at, R. v. Eckstein (2011), 264 Man. R. (2d) 183, [2011] 9 W.W.R. 126, 2011 MBQB 94, [2011] M.J. No. 132, 2011 CarswellMan 189 (Man. Q.B.), upholding committal of accused to trial.

M.D. Glazer, for Appellant C.A. Vanderhooft, for Respondent

Richard J. Chartier J.A.: Introduction and Issues 1 The accused brought a motion for judicial review, seeking an order in the nature of certiorari in the Court of Queen’s Bench before Joyal C.J.Q.B. (the reviewing judge) to quash the committal decision of the preliminary inquiry judge. In clear and comprehensive reasons, the reviewing judge dismissed the motion. 650 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

2 The accused appeals, arguing that the reviewing judge erred in law by finding that there was some evidence for each essential element of the four charges and that he also erred in law by finding that there was some evidence of the accused’s identity. 3 For reasons which will become apparent, there is no need for me to detail the facts to any great degree. A fire occurred in the house of the accused’s fiancé. In addition to the fiancé, the accused and two of the fiancé’s nephews, Calvin and Kenneth, resided in that home. It is alleged that Kenneth purposely set the fire. He died in the fire. It is also alleged that the accused arranged for Kenneth to burn the house down for insurance proceeds. The evidence against the accused is circumstantial in nature. 4 Following a preliminary inquiry, the accused was committed to stand trial on charges of manslaughter, arson, conspiracy and arson for a fraudulent purpose.

Standard of Review 5 There is some disagreement as to the standard by which this court should review the decision of the reviewing judge who reviewed the committal decision. The accused submits that the standard of review should be correctness. The Crown says it is highly deferential. As the jurisprudence in this area is sparse, it would be fitting to address it more fully. 6 The accused first calls attention to the fact that the committal test following a preliminary inquiry is the same test as the one used on a directed verdict motion following the close of the Crown’s case at trial. She is correct on that point. That test, commonly known as the Shephard test (see United States v. Shephard (1976), [1977] 2 S.C.R. 1067 (S.C.C.)), requires a judge to determine whether there is any admissible evidence (direct or circumstantial) “upon which a reasonable jury properly instructed could return a verdict of guilty” (at p. 1080). If there is, the judge must commit the accused to stand trial (if at the preliminary inquiry stage), or dismiss the accused’s directed verdict motion (if at trial). 7 The accused also points out that the standard to be applied on appellate review of a judge’s directed verdict motion decision is correctness (see R. v. Barros, 2011 SCC 51 (S.C.C.) at para. 48, [2011] 3 S.C.R. 368 (S.C.C.)). Again, she is correct. The accused now argues that the stan- R. v. Eckstein Richard J. Chartier J.A. 651

dard by which this court should review the committal decision should be the same as the one applied on a directed verdict motion decision; that is, correctness. The accused contends that, if this court reaches a different conclusion than that of the reviewing judge (as to whether there is any evidence for the preliminary inquiry judge to commit), then no deference is owed and appellate intervention is warranted. 8 The accused’s argument, while seemingly attractive at first blush, is not sound for two reasons. 9 First, while a directed verdict motion decision is reviewable by way of appeal, there is no right of appeal from a s. 548(1) Criminal Code (the Code) committal decision (see R. v. Sazant, 2004 SCC 77 (S.C.C.) at para. 46, [2004] 3 S.C.R. 635 (S.C.C.)). The only way to review a committal decision is by judicial review on a motion for certiorari by a Court of Queen’s Bench and that is a limited review. Unlike an appeal, where the court can review for errors of law or fact or both, a reviewing judge on certiorari is only allowed to review the committal decision for jurisdictional error, not any other type of error. For instance, there is jurisdictional error when a preliminary inquiry judge commits an accused to stand trial when there is no evidence on an essential element of an offence charged. As stated by the Supreme Court of Canada in R. v. Rus- sell, 2001 SCC 53, [2001] 2 S.C.R. 804 (S.C.C.), while a preliminary inquiry judge’s committal is reviewable on certiorari, it “is very limited” and the decision to commit will only be quashed where the preliminary inquiry judge acted without jurisdiction or committed due process errors (at para. 19): .... Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, [[1984] 2 S.C.R. 93], at p. 100 (citing Forsythe v. The Queen, [1980] 2 S.C.R. 268). 10 Despite the fact that the test on committal is identical to the directed verdict motion test, the Supreme Court of Canada in Russell held that the standard of review to be applied by the reviewing judge to the preliminary inquiry judge’s decision to commit is a highly deferential standard. McLachlin C.J.C. wrote that the decision of the preliminary inquiry 652 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

judge “is entitled to the greatest deference; only if there is no evidence on an [essential] element of the offence ... can a reviewing court vacate the committal” (at para. 48). In the context of a judicial review on certiorari of a committal decision, “greatest deference” means that there may be more than one view of the evidence and, as long as that view falls within a range of reasonableness, interference would be unwarranted. The “no” in “no evidence” is better understood by its antonym: “some” or “any” evidence. “Some” or “any” evidence means that “there need only be a scintilla of evidence” on each essential element of each offence for the committal to be valid (see R. v. Hickey, 2007 ONCA 845 (Ont. C.A.) at para. 5 (CanLII)). Suffice it to say that the combination of a very high level of deference with a very low evidentiary threshold means that interference will be very rare. 11 This highly deferential standard is in stark contrast to the correctness standard applicable on an appeal of a directed verdict motion decision. The reason for this extremely narrow scope of review of a committal decision is that, at the preliminary inquiry stage, unlike at the trial stage, the Crown need only lead a prima facie case; it does not have to call all the evidence it plans to lead at trial (see Russell at para. 20 and R. v. Hynes, 2001 SCC 82 (S.C.C.) at para. 33, [2001] 3 S.C.R. 623 (S.C.C.)). Thus, the Crown’s entire case may well not be before the judge when he/she applies the Shephard test at a preliminary inquiry. 12 The second reason why the accused’s argument (that the applicable standard is correctness) cannot be accepted is that the matter at hand is commonly referred to as a “second-level appeal” or second-level review. This court is being asked to review the decision of the reviewing judge who reviewed the decision of the preliminary inquiry judge. There has already been one review: the reviewing judge’s review on certiorari of the preliminary inquiry judge’s committal decision. On second-level appeals, we review the decision of the first-level review (the reviewing judge), not the decision in the first instance (in this case the preliminary inquiry judge). 13 While mindful that we are in a criminal law setting, the principles set out in Q. v. College of Physicians & Surgeons (British Columbia), 2003 SCC 19, [2003] 1 S.C.R. 226 (S.C.C.), are, in my view, applicable. These principles have been applied by appellate courts on second-level appeals in the following criminal cases: R. v. Shiers, 2003 NSCA 138 (N.S. C.A.) at para. 10, (2003), 219 N.S.R. (2d) 196 (N.S. C.A.), and R. v. Creelman, 2007 NSCA 51 (N.S. C.A.) at para. 8, (2007), 254 N.S.R. R. v. Eckstein Richard J. Chartier J.A. 653

(2d) 155 (N.S. C.A.). This means this court will examine the decision of the reviewing judge to determine, first, whether the correct standard of review was selected and, second, whether it was correctly applied. These two determinations will be reviewed by this court on the correctness standard and if error occurs here, no deference is owed. However, if the reviewing judge selects the correct standard of review and correctly applies it, the same high level of deference which was owed to the preliminary inquiry judge’s committal decision by the reviewing judge is owed to the reviewing judge’s decision by this court. 14 Determining whether the correct standard was selected will be easily ascertainable. Determining whether the reviewing judge incorrectly applied the correct standard entails reviewing the decision to ensure that it was not arrived at on an erroneous basis. For example, if the reviewing judge correctly selects a deferential standard, but then fails to show the appropriate level of deference, second-level appeal intervention would be justified. This court would then stand in the shoes of the reviewing judge and assess the preliminary inquiry judge’s decision to commit in light of the correct standard of review. 15 I am aware of two decisions from the British Columbia Court of Ap- peal (R. v. Howells, 2009 BCCA 460 (B.C. C.A.), and R. v. Rao, 2012 BCCA 275, 323 B.C.A.C. 165 (B.C. C.A.)) that rely, directly or indirectly, on a third (Canada (Attorney General) v. British Columbia (Provincial Court Judge) (1996), 83 B.C.A.C. 227 (B.C. C.A.)) for the proposition that the standard of review on an appeal from an order in the nature of certiorari is correctness. In the Trueman case, a Provincial Court judge dismissed a case against the accused for want of prosecution. The Crown moved for an order in the nature of certiorari to set aside the Provincial Court judge’s order. The Supreme Court judge dismissed the motion on the basis that the Crown should have exercised its right of appeal under s. 830 of the Code, rather than seek a remedy through a prerogative writ. On appeal, the British Columbia Court of Appeal noted that while s. 830 allows for appeals against convictions and acquittals, it does not provide a right of appeal against a dismissal for want of prosecution. As this was a clear legal error, reviewable on correctness, it allowed the appeal. 16 The Trueman case is easily distinguishable. Unlike the case at bar, the reviewing judge in the Trueman case declined to review on certiorari on the basis of an erroneous interpretation of the law. There can be no doubt that in such cases the standard of review is correctness. In the instant 654 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

case, the reviewing judge did consider the matter on its merits and, in the absence of legal error, great deference is owed to his decision.

Analysis 17 In the case at bar, it is clear that the reviewing judge selected the correct standard to review the preliminary inquiry judge’s decision on committal when he chose the deferential standard set out in Russell. To determine whether the reviewing judge correctly applied that standard, it is good to be reminded that it is a highly deferential one which allows the reviewing judge to vacate the committal “only if there is no evidence on an [essential] element” of any offence. If there was any or some or “only ... a scintilla of evidence,” the reviewing judge was correct not to intervene. 18 A few points need to be made on certain distinctive evidentiary fea- tures which exist at the preliminary inquiry stage. At this stage, if the Crown’s evidence is capable of belief, it is to be believed. The preliminary inquiry judge is not to assess credibility or generally weigh the evidence, nor is the judge allowed to draw inferences from the circumstantial evidence. Rather, that judge is to assess the reasonableness of the Crown’s suggested inferences. This requires a “limited weighing” of the whole of the Crown’s evidence (see R. v. Arcuri, 2001 SCC 54 (S.C.C.) at paras. 29-30, [2001] 2 S.C.R. 828 (S.C.C.)). While the accused may disagree with those inferences or prefer other inferences, such differences of opinion are not proper considerations at this stage of the proceedings. Finally, when conducting this assessment, the preliminary inquiry judge must bear in mind that “where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered” (Sazant at para. 18). 19 The two issues raised by the accused in the instant case are whether the reviewing judge erred by finding, first, that there was some evidence for each essential element of the four charges and, second, that there was some evidence of the accused’s identity. 20 I would not accede to the first ground of appeal. 21 The issue turns on whether there is, on each essential element of each offence, some admissible evidence capable of belief which, if believed, could reasonably support the Crown’s suggested inference. This is not a difficult threshold to meet. R. v. Eckstein Richard J. Chartier J.A. 655

22 The accused has attempted to explain why it would be unreasonable to draw an inference. In doing so, he has isolated each piece of circumstantial evidence without regard to the rest of the evidence. Engaging in such a piecemeal analysis is not the appropriate way to consider circumstantial evidence. That evidence must be taken as a whole and its cumu- lative effect is to be considered when making the assessment on the reasonableness of any inferences to be drawn. 23 From the reviewing judge’s decision, it is clear that he correctly applied the appropriate standard when he conducted his review of the decision of the preliminary inquiry judge. It also shows that he examined the totality of the evidence adduced to assess the reasonableness of any inferences to be drawn with respect to each essential element of the four counts. As was recently stated in R. v. Hawley, 2012 ONCA 528 (Ont. C.A.) (CanLII) (at para. 10): ...... [I]f the inferences urged by the Crown are within the field of inferences that could reasonably be drawn, the preliminary inquiry judge must commit for trial even if those are not the inferences that the preliminary inquiry judge would draw. 24 In the instant case, the reviewing judge could only intervene if the preliminary inquiry judge committed jurisdictional error; such as, that there is no evidence on an essential element of any offence. In my view, the reviewing judge correctly concluded that, as the inferences suggested by the Crown fell within a range of reasonableness, the preliminary inquiry judge made no jurisdictional error by committing the accused to stand trial. As already stated, while the accused may disagree with those inferences or prefer other inferences, such differences of opinion are not proper considerations at this stage of the proceedings. In the result, I have not been persuaded that the reviewing judge erred in any way. 25 I now turn to the second ground of appeal. Counsel for the accused argues that the reviewing judge erred by finding that there was some evidence of identity. He submits that there was no evidence of the accused’s identity because none of the Crown’s witnesses directly identified the accused by pointing her out in court. 26 At the beginning of any preliminary inquiry or trial, the judge will invariably ask whether the accused is present in court and ready to proceed. If not present, the judge will seek an explanation and consider whether to issue a warrant. If the person is present, it means that the person referred to in the information or indictment as the accused is before the court. The fact that the accused is present means nothing else. 656 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

The Crown must still satisfy the court that the person standing charged and in attendance committed the offence. 27 Like any other essential element, the identity element need not be proven by direct evidence. It can be proven by circumstantial evidence. In this case, as the matter was simply at the committal stage and as this is a circumstantial evidence case, there needed only to be some admissible evidence upon which the preliminary inquiry judge could reasonably infer that it was the accused who committed the offences. 28 This court recently had occasion to consider the issue of the sufficiency of evidence in relation to the identity of the accused in the context of a directed verdict motion in R. v. O’Kane; R. v. O’Kane, 2012 MBCA 82 (Man. C.A.). As the test on a directed verdict motion is the same for committal, the principles set out in O’Kane have applicability here. In that case, the two accused were police officers. The circumstantial evidence before the court included the similarity of the names of the accused to evidence tendered by consent, as well as the evidence of a witness who said one of the accused identified himself as Officer O’Kane and that he received a police officer business card with the names of Officer Zebrun and Officer O’Kane on it. Hamilton J.A. wrote (at paras. 47-50): In my view, the fundamental question here is whether the similarity of names between the accused and the officers referred to in the evidence was sufficient to fulfill the identification component of the test to be applied on the directed-verdict motions. The case law is clear that similarity of names may serve as circumstantial evidence of identity, particularly at the directed-verdict stage. Similarity of names “is an item of proof of identity” (Nicholson [R. v. Nicholson (1984), 52 A.R. 132 (C.A.), leave to appeal to S.C.C. denied, [1984] S.C.C.A. No. 176 (QL)] at para. 33). See also McWil- liams’ [The Honourable Mr. Justice S. Casey Hill, David M. Ta- novich & Louis P. Strezos, eds., McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Aurora: Thomson Reuters Canada Lim- ited, 2010) vol. 2] (at para. 29:40.20.90): Name It has been held that some evidence of identity is provided simply by a similarity of name and address. .... The point to remember is that some evidence is all that is needed to commit for trial or to resist a motion for non-suit. R. v. Eckstein Richard J. Chartier J.A. 657

The seminal case in Canada regarding similarity of name as identification evidence is R. v. Chandra (1975), 29 C.C.C. (2d) 570 (B.C.C.A.). Chandra was a directed verdict case where the jury was directed to acquit based on a lack of identification evidence. The accused was alleged to have run over an elderly woman with his car as she was crossing the street. The Court of Appeal concluded that there was some admissible evidence of identification and, therefore, allowed the appeal and directed a new trial. McIntyre J.A. (as he then was), for the court, made the following remarks regarding similarity of name as identification evidence (at p. 573): In my opinion mere identity of name affords some evidence of identity of a person. When accompanied by other factors such as the relative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a licence or other document of significance, its weight is strengthened. The trier of fact when such evidence is before it, whether Judge alone or jury, must consider it, weigh it and reach its determination. When such evidence is adduced to the trier of fact it cannot be said there is no evidence. ... In R. v. D.R.H., 2007 MBCA 136, 220 Man.R. (2d) 271, which was a conviction appeal relating to a sexual assault, Scott C.J.M., writing for the majority, cited Chandra and concluded that “the fact the accused and the perpetrator share the same name may be used as circumstantial evidence of identity” (at para. 46). See also R. v. Zarubin (G.A.), 2004 SKCA 14, 241 Sask. R. 292, R. v. J.V.-R. (1999), 120 O.A.C. 298, and R. v. D.B., 2007 ONCA 368 (QL). [emphasis added] 29 Regarding the case at hand, the reviewing judge first reviewed the evidence and found that there was some evidence on each of the essential elements for each offence to prove that “Susan Eckstein” or “Sue Eck- stein” committed the offences. The issue raised by the accused was that, as there had been no dock or in-court identification, there was no evidence that the person who presented herself in court in answer to the information naming the accused as “Suzanne Maureen Eckstein” was the same person referred to by the witnesses as the perpetrator who committed the offences. 30 The reviewing judge disagreed. He was “mindful that a person who identified herself as Susan Eckstein presented herself (through counsel) 658 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

in court at the start of the preliminary inquiry in answer to the charges” (at para. 74). He held that the following evidence could reasonably support the Crown’s suggested inference that the person who came forward to answer the charges was “the person involved in the offences alleged, either as a principal or party” (at para. 75): 1) that a number of persons who testified at the hearing mentioned the name “Susan Eckstein” in their testimony; 2) that a number of those witnesses were persons who clearly knew her; and 3) that Calvin (her fianc´e’s nephew) testified that he recognized “Sue Eckstein” in the courtroom. 31 In my view, there is no merit to the accused’s argument. As mentioned above, there need only be some evidence to ground identification at the preliminary inquiry stage. The name “Susan Eckstein” was mentioned a number of times during the proceedings by people who clearly knew her as the person accused of the offences. Moreover, her fianc´e’s nephew, who also knew her, testified that “Sue Eckstein” was present in the courtroom. As the reviewing judge pointed out, those witnesses were never “challenged respecting their purported relationship with or knowledge of the accused, Susan Eckstein, when reference was made to her by them” (at para. 74). 32 In the end, there was some evidence that the perpetrator of the offences was “Susan Eckstein” or “Sue Eckstein.” While those names are not identical to “Suzanne Maureen Eckstein” (the name on the information), they are very similar. As was stated in Russell, “only if there is no evidence on an element of the offence ... can a reviewing court vacate the committal” (at para. 48). As the accused and the perpetrator share similar names and, as similarity of names may serve as circumstantial evidence of identity, there was some admissible evidence capable of belief which, if believed, could reasonably support an inference that it was the accused who committed the offences. 33 In the result, I am of the view that the reviewing judge correctly applied the appropriate standard of review. As such, his decision is owed great deference. I would therefore not interfere with his decision to dismiss the certiorari motion. R. v. Eckstein Alan D. MacInnes J.A. 659

Conclusion 34 I would dismiss the appeal.

Barbara M. Hamilton J.A.:

I agree

Alan D. MacInnes J.A.:

I agree Appeal dismissed. 660 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

[Indexed as: Lund v. Boissoin] Stephen Boissoin and the Concerned Christian Coalition Inc. (Respondents) and Darren Lund (Appellant) and The Attorney General of Alberta and Canadian Civil Liberties Association (Interveners) Alberta Court of Appeal Docket: Calgary Appeal 1001-0078-AC 2012 ABCA 300 Carole Conrad, Clifton O’Brien, Brian O’Ferrall JJ.A. Heard: December 7, 2011 Judgment: October 17, 2012 Human rights –––– What constitutes discrimination — Sex — Sexual orientation — Miscellaneous –––– Respondent newspaper published letter to the editor written by respondent individual — Letter was ostensibly directed to members of heterosexual majority, and criticized, in unsophisticated and arguably vulgar terms, “homosexual machine” — Letter stated that “machine” was operating to cause “children as young as five and six years of age [to be] subjected to psychologically and physiologically damaging pro-homosexual literature and guidance in the public school system” — After reference to letter in news item concerning “gay-bashing” assault, complainant commenced proceedings against respondents before Human Rights & Citizenship Commission — Commission Tribunal held that letter was “likely to expose a person or a class of persons to hatred or contempt” on basis of sexual orientation, contrary to s. 3(1)(b) of Human Rights, Multiculturalism and Citizenship Act as was then in force and related governing jurisprudence — Complaint was accordingly upheld and complainant was, inter alia, awarded damages — Respondents brought application for judicial review — Application was granted, complaint was dismissed and complainant appealed — Appeal dismissed — Applications judge erred in finding that Act required connection or linkage between impugned message and any subsequent discriminatory practice — Trial judge further erred in reading down s. 3(1)(b) of Act, inter alia as constitutionality of that provision, either on division-of-powers or Canadian Charter of Rights and Freedoms grounds, was not before court — However, on its face while letter was insulting and puerile it did not rise to level of exposing any person or persons to hatred or contempt — Accordingly letter did not violate s. 3(1)(b) of Act and appeal was properly dismissed. Lund v. Boissoin 661

Human rights –––– Statutory exemptions — General principles –––– Expres- sions of opinion — Respondent newspaper published letter to the editor written by respondent individual — Letter was ostensibly directed to members of heterosexual majority, and criticized, in unsophisticated and arguably vulgar terms, “homosexual machine” — Letter stated that “machine” was operating to cause “children as young as five and six years of age [to be] subjected to psychologically and physiologically damaging pro-homosexual literature and guidance in the public school system” — After reference to letter in news item concerning “gay-bashing” assault, complainant commenced proceedings against respondents before Human Rights & Citizenship Commission — Commission Tribunal held that letter was “likely to expose a person or a class of persons to hatred or contempt” on basis of sexual orientation, contrary to s. 3(1)(b) of Human Rights, Multiculturalism and Citizenship Act as was then in force and related governing jurisprudence — Complaint was accordingly upheld and complainant was, inter alia, awarded damages — Respondents brought application for judicial review — Application was granted, complaint was dismissed and complainant appealed — Appeal dismissed — Applications judge erred in finding that Act required connection or linkage between impugned message and any subsequent discriminatory practice — Trial judge further erred in reading down s. 3(1)(b) of Act, inter alia as constitutionality of that provision, either on division-of-powers or Canadian Charter of Rights and Freedoms grounds, was not before court — However, on its face while letter was insulting and puerile it did not rise to level of exposing any person or persons to hatred or contempt — In any event, by operation of s. 3(2) of Act, s. 3(1) shall not be “deemed to interfere with the free expression of opinion on any subject” — As sex education of children was matter of public debate and as letter was clear expression of opinion on that subject, respondents could properly rely upon s. 3(2) of Act to bar any proceedings under s. 3(1)(b) had letter been held to violate that provision, and appeal was accordingly properly dismissed. Civil practice and procedure –––– Costs — Costs of appeals — General principles –––– Human right complaint was upheld with costs to complainant — Respondents’ application for judicial review was granted, without costs before Commission Tribunal or on judicial review on basis that complainant established public interest in proceedings — Complainant’s appeal to Court of Ap- peal was dismissed — Costs award below was properly granted deference given public interest finding — However, present appeal was taken inter alia in order to secure private damages award to complainant, and accordingly respondent individual was entitled to costs of appeal to be taxed on Sched. C, Tariff of Costs, column 2 of Alberta Rules of Court. 662 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

Cases considered by Clifton O’Brien J.A.: British Columbia v. Imperial Tobacco Canada Ltd. (2005), 45 B.C.L.R. (4th) 1, [2005] 2 S.C.R. 473, 134 C.R.R. (2d) 46, 2005 SCC 49, 2005 CarswellBC 2207, 2005 CarswellBC 2208, 257 D.L.R. (4th) 193, [2006] 1 W.W.R. 201, 218 B.C.A.C. 1, 359 W.A.C. 1, 339 N.R. 129, 27 C.P.C. (6th) 13, EYB 2005-95296, [2005] S.C.J. No. 50, [2004] S.C.C.A. No. 302 (S.C.C.) — considered Canada (Attorney General) v. Mowat (2011), 93 C.C.E.L. (3d) 1, D.T.E. 2011T- 708, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 2011 SCC 53, 422 N.R. 248, (sub nom. C.H.R.C. v. Canada (A.G.)) 2011 C.L.L.C. 230-043, (sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) [2011] 3 S.C.R. 471, [2011] S.C.J. No. 53, [2011] A.C.S. No. 53 (S.C.C.) — considered Canada (Human Rights Commission) v. Taylor (1990), 75 D.L.R. (4th) 577, [1990] 3 S.C.R. 892, 3 C.R.R. (2d) 116, (sub nom. Taylor v. Canada (Human Rights Commission)) 117 N.R. 191, 13 C.H.R.R. D/435, 1990 Car- swellNat 742, 1990 CarswellNat 1030, [1990] S.C.J. No. 129, EYB 1990- 67250 (S.C.C.) — followed Canadian Western Bank v. Alberta (2007), [2007] I.L.R. I-4622, 281 D.L.R. (4th) 125, [2007] 2 S.C.R. 3, 409 A.R. 207, 402 W.A.C. 207, 49 C.C.L.I. (4th) 1, 2007 SCC 22, 2007 CarswellAlta 702, 2007 CarswellAlta 703, 362 N.R. 111, 75 Alta. L.R. (4th) 1, [2007] 8 W.W.R. 1, [2007] S.C.J. No. 22 (S.C.C.) — considered Cherneskey v. Armadale Publishers Ltd. (1978), [1979] 1 S.C.R. 1067, 1978 CarswellSask 103, 24 N.R. 271, [1978] 6 W.W.R. 618, 7 C.C.L.T. 69, 90 D.L.R. (3d) 321, 1978 CarswellSask 133 (S.C.C.) — considered Chiasson v. Kellogg Brown & Root (Canada) Co. (2007), 62 C.C.E.L. (3d) 177, (sub nom. Alberta (Human Rights & Citizenship Commission) v. Kellogg Brown & Root (Canada) Co.) 60 C.H.R.R. D/307, (sub nom. Alberta HRCC v. Kellogg Brown & Root) 2008 C.L.L.C. 230-005, 2007 ABCA 426, [2008] 4 W.W.R. 63, (sub nom. Human Rights and Citizenship Commission (Alta.) v. Kellogg Brown & Root (Canada) Co.) 418 W.A.C. 35, 84 Alta. L.R. (4th) 205, 2007 CarswellAlta 1833, (sub nom. Alberta (Human Rights & Citizenship Commission, Director) v. Kellogg Brown & Root (Canada) Co.) 289 D.L.R. (4th) 95, (sub nom. Human Rights and Citizenship Commission (Alta.) v. Kellogg Brown & Root (Canada) Co.) 425 A.R. 35, [2007] A.J. No. 1460 (Alta. C.A.) — referred to Grant v. Torstar Corp. (2009), 204 C.R.R. (2d) 1, [2009] 3 S.C.R. 640, 397 N.R. 1, 258 O.A.C. 285, 72 C.C.L.T. (3d) 1, 314 D.L.R. (4th) 1, 2009 Cars- wellOnt 7956, 2009 CarswellOnt 7957, 2009 SCC 61, 79 C.P.R. (4th) 407, EYB 2009-167615, [2009] S.J. No. 61, [2009] S.C.J. No. 61 (S.C.C.) — considered Lund v. Boissoin 663

Harper v. Canada (Attorney General) (2004), 2004 CarswellAlta 646, 2004 CarswellAlta 647, 2004 SCC 33, 27 Alta. L.R. (4th) 1, [2004] 8 W.W.R. 1, 348 A.R. 201, 321 W.A.C. 201, [2004] 1 S.C.R. 827, 320 N.R. 49, 239 D.L.R. (4th) 193, 119 C.R.R. (2d) 84, [2004] S.C.J. No. 28, REJB 2004- 61915 (S.C.C.) — considered Hellquist v. Owens (2006), (sub nom. Owens v. Saskatchewan (Human Rights Commission)) 267 D.L.R. (4th) 733, 2006 SKCA 41, 2006 CarswellSask 217, (sub nom. Owens v. Saskatchewan (Human Rights Commission)) 279 Sask. R. 161, (sub nom. Owens v. Saskatchewan (Human Rights Commis- sion)) 372 W.A.C. 161, (sub nom. Owens v. Saskatchewan (Human Rights Commission)) 56 C.H.R.R. D/51, [2006] 7 W.W.R. 433, [2006] S.J. No. 221 (Sask. C.A.) — considered Kane, Re (2001), 2001 CarswellAlta 1066, 43 C.H.R.R. D/97, 94 Alta. L.R. (3d) 87, [2001] 9 W.W.R. 744, (sub nom. Kane v. Alberta Report) 291 A.R. 71, 2001 ABQB 570, [2001] A.J. No. 915 (Alta. Q.B.) — considered Luka v. Lockerbie & Hole Industrial Inc. (2011), 2011 CarswellAlta 9, 16 Ad- min. L.R. (5th) 255, [2011] 6 W.W.R. 70, 39 Alta. L.R. (5th) 236, 329 D.L.R. (4th) 76, 502 W.A.C. 295, 493 A.R. 295, 2011 ABCA 3, 2011 C.L.L.C. 230-008 (Alta. C.A.) — referred to Lund v. Boissoin (2007), 62 C.H.R.R. D/50, 2007 CarswellAlta 2347, 2007 AHRC 11 (Alta. H.R. & Cit. Comm.) — referred to Lund v. Boissoin (2009), (sub nom. Boissoin v. Lund) 204 C.R.R. (2d) 48, 2009 CarswellAlta 1995, 2009 ABQB 592, 314 D.L.R. (4th) 70, 17 Alta. L.R. (5th) 256, [2010] 7 W.W.R. 320 (Alta. Q.B.) — referred to Lund v. Boissoin (2010), 22 Alta. L.R. (5th) 253, 2010 ABQB 123, 2010 CarswellAlta 311, [2010] 7 W.W.R. 359 (Alta. Q.B.) — referred to McKay v. R. (1965), [1965] S.C.R. 798, 1965 CarswellOnt 73, 53 D.L.R. (2d) 532 (S.C.C.) — considered Q. v. College of Physicians & Surgeons (British Columbia) (2003), 2003 SCC 19, 2003 CarswellBC 713, 2003 CarswellBC 743, 11 B.C.L.R. (4th) 1, 223 D.L.R. (4th) 599, 48 Admin. L.R. (3d) 1, (sub nom. Dr. Q., Re) 302 N.R. 34, [2003] 5 W.W.R. 1, (sub nom. Dr. Q. v. College of Physicians & Surgeons of British Columbia) [2003] 1 S.C.R. 226, (sub nom. Dr. Q., Re) 179 B.C.A.C. 170, (sub nom. Dr. Q., Re) 295 W.A.C. 170, [2003] S.C.J. No. 18, REJB 2003-39403 (S.C.C.) — referred to Québec (Procureur général) c. Canada (Procureur général) (2010), (sub nom. Reference re Assisted Human Reproduction Act) 410 N.R. 199, (sub nom. Reference re Assisted Human Reproduction Act) 327 D.L.R. (4th) 257, (sub nom. Reference re Assisted Human Reproduction Act) 263 C.C.C. (3d) 193, (sub nom. Reference re Assisted Human Reproduction Act) [2010] 3 S.C.R. 457, 2010 SCC 61, 2010 CarswellQue 13213, 2010 CarswellQue 13214, [2010] S.C.J. No. 61 (S.C.C.) — referred to 664 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

R. v. Big M Drug Mart Ltd. (1985), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 C.L.L.C. 14,023, 13 C.R.R. 64, 1985 CarswellAlta 316, [1985] 1 S.C.R. 296, 1985 CarswellAlta 609, [1985] S.C.J. No. 17 (S.C.C.) — considered R. v. Rodgers (2006), 140 C.R.R. (2d) 1, (sub nom. R. v. Jackpine) 210 O.A.C. 200, 2006 SCC 15, 2006 CarswellOnt 2498, 2006 CarswellOnt 2499, (sub nom. R. v. Jackpine) 207 C.C.C. (3d) 225, [2006] 1 S.C.R. 554, 37 C.R. (6th) 1, (sub nom. R. v. Jackpine) 347 N.R. 201, (sub nom. R. v. Jackpine) 266 D.L.R. (4th) 101, [2006] S.C.J. No. 15 (S.C.C.) — considered Reference re Alberta Legislation (1938), 1938 CarswellAlta 88, [1938] S.C.R. 100, [1938] 2 D.L.R. 81, [1938] S.C.J. No. 2 (S.C.C.) — considered Saskatchewan (Human Rights Commission) v. Engineering Students’ Society (1989), 10 C.H.R.R. D/5636, 72 Sask. R. 161, 56 D.L.R. (4th) 604, 1989 CarswellSask 627, [1989] S.J. No. 35 (Sask. C.A.) — considered Saumur v. Quebec (City) (1953), 1953 CarswellQue 41, [1953] 2 S.C.R. 299, [1953] 4 D.L.R. 641, 106 C.C.C. 289 (S.C.C.) — referred to Scowby v. Saskatchewan (Board of Inquiry) (1986), 8 C.H.R.R. D/3677, 1986 CarswellSask 249, (sub nom. Scowby v. Glendinning) [1986] 6 W.W.R. 481, [1986] 2 S.C.R. 226, 32 D.L.R. (4th) 161, 70 N.R. 241, 51 Sask. R. 208, 29 C.C.C. (3d) 1, 1986 CarswellSask 445, EYB 1986-67933, [1986] S.C.J. No. 57 (S.C.C.) — considered Shaw Cablesystems G.P. v. Society of Composers, Authors & Music Publishers of Canada (2012), 38 Admin. L.R. (5th) 1, 2012 CarswellNat 2378, 2012 CarswellNat 2379, 2012 SCC 35, 102 C.P.R. (4th) 204, (sub nom. Shaw Cablesystems G.P. v. Society of Composers, Authors and Music Publishers of Canada) 347 D.L.R. (4th) 235, (sub nom. Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada) 432 N.R. 1, [2012] S.C.J. No. 35, [2012] A.C.S. No. 35 (S.C.C.) — referred to Simpson v. Mair (2008), 2008 SCC 40, 80 B.C.L.R. (4th) 1, [2008] 8 W.W.R. 195, 66 C.P.R. (4th) 121, 256 B.C.A.C. 1, 431 W.A.C. 1, (sub nom. WIC Radio Ltd. v. Simpson) 175 C.R.R. (2d) 145, 293 D.L.R. (4th) 513, 376 N.R. 80, [2008] R.R.A. 515, (sub nom. WIC Radio Ltd. v. Simpson) [2008] 2 S.C.R. 420, 56 C.C.L.T. (3d) 1, 2008 CarswellBC 1311, 2008 CarswellBC 1347, [2008] S.C.J. No. 41 (S.C.C.) — considered Trinity Western University v. College of Teachers (British Columbia) (2001), 2001 SCC 31, 2001 CarswellBC 1016, 2001 CarswellBC 1017, 269 N.R. 1, 199 D.L.R. (4th) 1, (sub nom. British Columbia College of Teachers v. Trinity Western University) 2001 C.L.L.C. 230-026, [2001] 1 S.C.R. 772, 151 B.C.A.C. 161, 249 W.A.C. 161, 31 Admin. L.R. (3d) 163, 82 C.R.R. (2d) 189, 39 C.H.R.R. D/357, [2001] S.C.J. No. 32, REJB 2001-24105 (S.C.C.) — considered Lund v. Boissoin 665

Vriend v. Alberta (1998), 50 C.R.R. (2d) 1, 224 N.R. 1, 212 A.R. 237, 168 W.A.C. 237, 31 C.H.R.R. D/1, [1999] 5 W.W.R. 451, 67 Alta. L.R. (3d) 1, [1998] 1 S.C.R. 493, 98 C.L.L.C. 230-021, 4 B.H.R.C. 140, 1998 Carswell- Alta 210, 1998 CarswellAlta 211, 156 D.L.R. (4th) 385, [1998] S.C.J. No. 29 (S.C.C.) — considered Whatcott v. Saskatchewan Human Rights Tribunal (2010), [2010] 4 W.W.R. 403, 317 D.L.R. (4th) 69, 2010 SKCA 26, 2010 CarswellSask 109, 477 W.A.C. 210, 346 Sask. R. 210, 218 C.R.R. (2d) 145 (Sask. C.A.) — followed Statutes considered: Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3 Generally — referred to Alberta Bill of Rights, R.S.A. 2000, c. A-14 Generally — referred to Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 Generally — referred to s. 3 — considered s. 3(1) — considered s. 3(1)(b) — considered s. 3(2) — considered s. 3(3) — considered s. 3(3)(b) — considered s. 32 — considered s. 32(1) — considered s. 32(2) — considered s. 37 — considered Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — considered s. 2 — considered s. 2(a) — considered s. 2(b) — considered s. 24 — referred to Canadian Human Rights Act, S.C. 1976-77, c. 33 s. 13(1) — considered Human Rights, Citizenship and Multiculturalism Amendment Act, S.A. 2009, c. 26 Generally — referred to Individual’s Rights Protection Act, R.S.A. 1980, c. I-2 s. 2(1) — considered 666 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

Tariffs considered: Alberta Rules of Court, Alta. Reg. 124/2010 Sched. C, Tariff of Costs, column 2 — referred to Regulations considered: Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3 Designation of Constitutional Decision Makers Regulation, Alta. Reg. 69/2006 Generally — referred to

APPEAL by complainant from judgment reported at Lund v. Boissoin (2009), [2010] 7 W.W.R. 320, 17 Alta. L.R. (5th) 256, 314 D.L.R. (4th) 70, 2009 ABQB 592, 2009 CarswellAlta 1995, (sub nom. Boissoin v. Lund) 204 C.R.R. (2d) 48 (Alta. Q.B.), allowing respondents’ application for judicial review of decision of Human Rights & Citizenship Commission upholding complaint of discrimination on basis of sexual orientation.

G. Chipeur, Q.C., J.W. Wilkie for Respondents C. Bataluk for Appellant D. Kamal for Attorney General of Alberta J. McCready for Canadian Civil Liberties Association

Clifton O’Brien J.A.: I. Introduction 1 This appeal requires the Court to construe the prohibition found in Alberta’s human rights legislation against language commonly known as “hate speech”. It concerns the line to be drawn between “hate speech”, which is prohibited, and speech that may be hurtful and offensive, but which is protected by the fundamental freedom of expression. 2 A human rights tribunal held that a letter to the editor published in an Alberta daily newspaper exposed homosexuals to hatred or contempt, and directed remedies, including an order to cease and desist and an award of damages. On appeal, a Queen’s Bench judge set aside the tribunal’s finding. The judge held that while the language of the letter “may be jarring, offensive, bewildering, puerile, nonsensical and insulting”, it was not likely to expose homosexuals to hatred or contempt within the meaning of the Alberta statute. I agree that the letter is offensive; it is coarse, crude and insensitive. However, in my view, the letter constituted an expression of opinion that did not infringe the statute. For the reasons which follow, I would dismiss the appeal. Lund v. Boissoin Clifton O’Brien J.A. 667

II. Background 3 The respondent, Stephen Boissoin, wrote a letter to the editor of the Red Deer Advocate, (the newspaper), which published it on June 17, 2002, under the headline “Homosexual Agenda Wicked”. The newspaper composed the headline. At the time, Boissoin was the executive director of the respondent Concerned Christian Coalition Inc., (Coalition). The target audience of the letter was people whom Boissoin believed were apathetic to the inroads made by the “homosexual machine”, primarily in respect to educating children that homosexuality is a morally acceptable choice and lifestyle. 4 The letter stated: The following is not intended for those who are suffering from an unwanted sexual identity crisis. For you, I have understanding, care, compassion and tolerance. I sympathize with you and offer you my love and fellowship. I prayerfully beseech you to seek help, and I assure you that your present enslavement to homosexuality can be remedied. Many out- spoken, former homosexuals are free today. Instead, this is aimed precisely at every individual that in any way supports the homosexual machine that has been mercilessly gaining ground in our society since the 1960’s. I cannot pity you any longer and remain inactive. You have caused far too much damage. My banner has now been raised and war has been declared so as to defend the precious sanctity of our innocent children and youth, that you so eagerly toil, day and night, to consume. With me stand the greatest weapons that you have encountered to date — God and the “Moral Majority.” Know this, we will defeat you, then heal the damage you have caused. Modern society has become dispassionate to the cause of righteous- ness. Many people are so apathetic and desensitized today that they cannot even accurately define the term “morality.” The masses have dug in and continue to excuse their failure to stand against horrendous atrocities such as the aggressive propagation of homo- and bisexuality. Inexcusable justifications such as “I’m just not sure where the truth lies” or “If they don’t affect me then I don’t care what they do,” abound from the lips of the quantifiable majority. Face the facts, it is affecting you. Like it or not, every professing heterosexual is having their future aggressively chopped at the roots. 668 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

Edmund Burke’s observation that, “All that is required for the tri- umph of evil is that good men do nothing,” has been confirmed time and time again. From kindergarten class on, our children, your grandchildren are being strategically targeted, psychologically abused and brainwashed by homosexual and pro-homosexual educators. Our children are being victimized by repugnant and premeditated strategies, aimed at desensitizing and eventually recruiting our young into their camps. Think about it, children as young as five and six years of age are being subjected to psychologically and physiologically damaging pro-homosexual literature and guidance in the public school system; all under the fraudulent guise of equal rights. Your children are being warped into believing that same-sex families are acceptable; that men kissing men is appropriate. Your teenagers are being instructed on how to perform so-called safe same gender oral and anal sex and at the same time being told that it is normal, natural and even productive. Will your child be the next victim that tests homosexuality positive? Come on people, wake up! It’s time to stand together and take whatever steps are necessary to reverse the wickedness that our leth- argy has authorized to spawn. Where homosexuality flourishes, all manner of wickedness abounds. Regardless of what you hear, the militant homosexual agenda isn’t rooted in protecting homosexuals from “gay bashing” The agenda is clearly about homosexual activists that include, teachers, politicians, lawyers, Supreme Court judges, and God forbid, even so-called ministers, who are all determined to gain complete equality in our nation and even worse, our world. Don’t allow yourself to be deceived any longer. These activists are not morally upright citizens, concerned about the best interests of our society. They are perverse, self-centred and morally deprived individuals who are spreading their psychological disease into every area of our lives. Homosexual rights activists and those that defend them, are just as immoral as the pedophiles, drug dealers and pimps that plague our communities. The homosexual agenda is not gaining ground because it is morally backed. It is gaining ground simply because you, Mr. and Mrs. Het- erosexual, do nothing to stop it. It is only a matter of time before some of these same morally bankrupt individuals such as those involved with NAMBLA, the North American Man/Boy Lovers [sic] Association, will achieve their goal to have sexual relations with Lund v. Boissoin Clifton O’Brien J.A. 669

children and assert that it is a matter of free choice and claim that we are intolerant bigots not to accept it. If you are reading this and think that this is alarmist, then I simply ask you this: how bad do things have to become before you will get involved? It’s time to start taking back what the enemy has taken from you. The safety and future of our children is at stake. (signed) Rev. Stephen Boissoin, Central Alberta Chairman, Con- cerned Christian Coalition, Red Deer. 5 A news item published in the newspaper about two weeks later became important, as it reported that a gay teenager had been assaulted in downtown Red Deer — solely because he was gay. In the course of detailing a number of comments attributed to the victim, the newspaper reported: He also doesn’t feel safe reading the anti-gay statements like the ones in the Red Deer Advocate’s June 17 letter to the editor from Stephen Boissoin of the Concerned Christian Coalition. “I feel the letter was just encouragement for people to go out and stop the gay rights movement.” 6 The appellant, Dr. Darren Lund, describes himself as a human rights educator and activist. In 2002, he was a member of the faculty of the University of Calgary, and had previously taught as a high school teacher in Red Deer, where he was involved with the Gay/Straight Alliance. He explained in later testimony that the reported assault, and the specific reference by the alleged victim to Boissoin’s letter, triggered his complaint to the Human Rights and Citizenship Commission in July 2002. He maintained that Boissoin’s letter exposed people to hatred and contempt, and that it fostered an atmosphere of violence, citing the reported assault and the alleged quotation of the victim as support for his claim.

III. Alberta Human Rights Legislation 7 In 2002, section 3 of the Human Rights, Multiculturalism and Citi- zenship Act, RSA 2000, c H-14 (Act), provided: 3(1) No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that (a) indicates discrimination or an intention to discriminate against a person or a class of persons, or (b) is likely to expose a person or a class of persons to hatred or contempt 670 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or class of persons. (2) Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject. (3) Subsection (1) does not apply to (a) the display of a notice, sign, symbol, emblem or other representation displayed to identify facilities customarily used by one gender, (b) the display or publication by or on behalf of an organization that (i) is composed exclusively or primarily of persons having the same political or religious beliefs, ancestry or place of origin, and (ii) is not operated for private profit, of a statement, publication, notice, sign, symbol, emblem or other representation indicating a purpose or membership qualification of the organization, or (c) the display or publication of a form of application or an ad- vertisement that may be used, circulated or published pursuant to section 8(2), if the statement, publication, notice, sign, symbol, emblem or other representation is not derogatory, offensive or otherwise improper. 8 It is noteworthy that subsection 3(1) did not include a reference to sexual orientation. It was accepted as part of the statute, nonetheless, as a result of the decision of the Supreme Court of Canada in Vriend v. Al- berta, [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385 (S.C.C.), where sexual orientation was read into the Alberta human rights legislation. In 2009, the Act was amended to change the title and chapter to the Alberta Human Rights Act, RSA 2000, c A-25.5, and to expressly include sexual orientation as a prohibited ground of discrimination: Human Rights, Citi- zenship and Multiculturalism Amendment Act, SA 2009, c 26. Subsec- tions (2) and (3) of section 3 were not amended and remained in the Act. 9 The other relevant provision of the Act for this appeal is section 32, which provides: 32(1) A human rights panel (a) shall, if it finds that a complaint is without merit, order that the complaint be dismissed, and Lund v. Boissoin Clifton O’Brien J.A. 671

(b) may, if it finds that a complaint has merit in whole or in part, order the person against whom the finding was made to do any or all of the following: (i) to cease the contravention complained of; (ii) to refrain in the future from committing the same or any similar contravention; (iii) to make available to the person dealt with contrary to this Act the rights, opportunities or privileges that person was denied contrary to this Act; (iv) to compensate the person dealt with contrary to this Act for all or any part of any wages or income lost or expenses incurred by reason of the contravention of this Act; (v) to take any other action the panel considers proper to place the person dealt with contrary to this Act in the position the person would have been in but for the contravention of this Act. (2) A human rights panel may make any order as to costs that it considers appropriate.

IV. Decisions of the Human Rights Panel: [Lund v. Boissoin] 2007 AHRC 11 (Alta. H.R. & Cit. Comm.); 2008 AHRC 6 10 Lund’s complaint was initially dismissed by the Southern Regional Office of the Alberta Human Rights and Citizenship Commission. On appeal to the Chief Commissioner, the complaint was allowed to advance to a panel hearing, subject to Lund agreeing to take carriage of the complaint. In a written decision issued on May 25, 2005, the Chief Commis- sioner wrote: Determinations / Reasons: Having completed a documentary file review it is my view that respondents were at least partially responsible for the publication of the letter which they wrote and which contained the inflammatory, hateful and untruthful comments being complained about. I believe there is a reasonable basis in the evidence to advance this case to the panel hearing stage. In accordance with s. 27(1) I shall appoint a hearing panel to hear the case subject to the complainant wanting to take charge of it. [emphasis in original] 11 A one-person panel was subsequently appointed to hear the complaint, which Lund agreed to prosecute. The newspaper was not a party 672 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

in the complaint hearing. The panel explained in its decision that in 2004 the newspaper had expanded its letter publishing policy so as not to publish statements that indicate unlawful discrimination or intent to discriminate against a person or class of persons, or are likely to expose people to hatred or contempt because of ... sexual orientation (para 6). 12 Boissoin submitted that his letter raised objections, manifesting his religious beliefs, against teaching “school-aged children in grades K through 12 that homosexuality was normal, necessary, acceptable and productive,” and that the issue was a matter for political debate because tax payers’ dollars were used for the purpose of this education. For its part, the Coalition made no submissions, other than to seek its removal as a party. 13 The Attorney General of Alberta intervened1 and asserted that since Boissoin was not making a Charter challenge to section 3 of the Act he was not entitled to a constitutional remedy, such as reading down the legislation (para 216). The Attorney General further submitted that section 3 of the Act applied to all forms of discriminatory expression, in-

1Pursuant to the Designation of Constitutional Decision Makers Regulations, AR 69/2006, made pursuant to the Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3, a human rights panel has jurisdiction to determine “questions of constitutional law arising from the federal or provincial distribution of powers under the Constitution of Canada,” but is not given jurisdiction to determine questions of constitutional law that relate to the Canadian Charter of Rights and Freedoms. In its Preliminary Matters Decision dated June 28, 2007, the panel noted that a Notice of Constitutional Question had been given by Bois- soin, but observed that he was not seeking “a constitutional remedy such as a declaration that the statute has no force or effect under the Charter, or a remedy prescribed under section 24 of the Charter”. The panel agreed, however, that it could hear argument relating to the interpretation of the statute having regard to Charter values. With respect to the question of constitutionality based upon the distribution of powers, the panel noted that it had jurisdiction to make a ruling pursuant to the aforementioned Regulation, but that it would not do so at a preliminary stage. The record discloses that subsequent to the decision of the panel on November 29, 2007, Boissoin served Notice of Constitutional Questions. The Attorney General of Alberta responded that he was appearing on the appeal to the Court of Queen’s Bench of Alberta “solely for the purpose of defending Alberta’s human rights legislation against Mr. Boissoin’s constitutional challenge”. The Attorney General of Canada advised that he did “not intend to intervene on the constitutional issue at this stage of the proceedings”. Lund v. Boissoin Clifton O’Brien J.A. 673

cluding political and religious speech (para 246). The Canadian Civil Liberties Association (CCLA) was also granted intervener status before the panel. It argued that section 3 applied only to expression linked to the specific discriminatory actions prohibited by the Act (paras 252, 254). 14 In its decision on November 29, 2007, the panel found that the Com- mission had jurisdiction to deal with the complaint on the following basis: (i) Boissoin’s article was, in fact, a matter of local and private nature related to, albeit perhaps somewhat indirectly, the educational system in Alberta; (ii) Secondly, there was a circumstantial connection between the hate speech of Boissoin and the Coalition and the beating of a gay teenager in Red Deer less than two weeks following the publication of the letter; and (iii) “Without evidence of a crime as captured in the Criminal Code, after finding this letter is likely to expose people to hate and or contempt, there is a void in jurisdiction. With- out the crime, the Parliament has no jurisdiction. Because it is hate speech, it becomes a local matter. Not taking jurisdiction would mean that inciting hatred would be acceptable up to the point that a crime occurs as a result of it. This cannot be the case, given the context of this being rural Al- berta that is a matter of a local nature.” [para 350] 15 The panel further elaborated on the connection between the alleged beating and the publication of the letter, at para 354: While the evidence of the beating of the gay man two weeks after the publication of the letter was indirect, I find in addition, that there was sufficient nexus to conclude circumstantially, that the two matters may be connected. 16 In response to Boissoin’s submissions, the panel found that “there appeared to be no raging debate in the community at the time that the letter was published,” so that “the context of the letter is not within the context of a public debate” (paras 324F-I, 338). The panel refused the Coalition’s application for removal as a party, finding that both Boissoin and the Coalition published the letter in the newspaper, or caused it to be published, because Boissoin submitted the letter with the intent that it be published (paras 300-311). 674 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

17 The panel then considered subsection 3(1). Relying on the decision of Rooke J., as he then was, in Kane, Re (sub nom Kane v Alberta Report), 2001 ABQB 570, 291 A.R. 71 (Alta. Q.B.), the panel asked itself these questions: Does the communication itself express hatred or contempt of a person or group on a basis of one or more of the listed grounds, and would a reasonable person, informed about the context, understand the message as expressing hatred or contempt? The panel held that it was “clear that the letter expresses hatred or contempt for a group of persons on the basis of their sexual preference.” Further, the panel agreed with Lund that the letter exposed homosexuals to hatred or contempt. The panel concluded that Boissoin and the Coalition violated subsection 3(1)(b) of the Act. 18 The panel held that subsection 3(2) was “not a defence to the breach of subsection 3(1)”. It viewed subsection 3(2) as “an admonition for Panels to balance the freedom of expression with the eradication of discrimination in the consideration of complaints under s. 3” (para 346). The panel stated: It is my view that the views of individuals expressing their opinions or expressing political statements must be made in a responsible manner. I am not prepared to afford Mr. Boissoin and the CCC an absolute defence to their responsibility for statements they made, simply because they are attempting to express their statements under the guise of political speech or opinion. [para 345] 19 In the panel’s subsequent decision dealing with remedy, dated May 30, 2008, Boissoin and the Coalition were ordered to cease publishing disparaging remarks about gays and homosexuals in newspapers, by electronic mail, on the radio, in public speeches or on the internet in future. They were also ordered to write an apology, pay Lund an award of damages in the amount of $5000, and pay expenses up to $2000 for one of the witnesses.

V. Decisions of Wilson J: 2009 ABQB 592 (Alta. Q.B.) ; 2010 ABQB 123 (Alta. Q.B.) 20 Boissoin and the Coalition appealed by originating notice pursuant to section 37 of the Act. The Attorney General of Alberta and the CCLA were again granted intervener status, as was a third intervener, the Cana- dian Constitutional Foundation. 21 The reviewing judge found, as a preliminary matter, that the Province has jurisdiction to regulate discriminatory expression with respect to Lund v. Boissoin Clifton O’Brien J.A. 675

matters within its provincial sphere. He then interpreted subsection 3(1)(b) in a manner that required any allegedly hateful or contemptuous speech be linked to other discriminatory practices in the Act, such as discrimination in employment or with regard to accommodation. He rea- soned that without this linkage the section would be ultra vires the province (paras 33 and 67). 22 He also interpreted the section to require further “linkages.” He found that subsection 3(1)(b) applied only to hateful expression that itself signals an intention to engage in discriminatory behaviour or seeks to per- suade another person to do so, and that both the message and its intended effect must be considered. In addition, he found there must be some likelihood that the message might bring about a prohibited discriminatory practice, and there was an obligation on the complainant to produce evidence to this effect — as he would not presume discriminating practices are likely to ensue simply from a finding that the impugned expression was hateful or contemptuous (paras 24-37, 56, 67). 23 Applying this construction of section 3, the reviewing judge concluded that the letter, and the evidence before the panel about its potential effects, were not sufficient to create a linkage between the letter in question and other discriminatory practices described in the statute (paras 59-67). He also found that the impugned letter could not be linked to the likelihood of further discriminatory acts. In this regard, he dealt with the alleged assault on the gay teenager which had been relied upon by the panel. He found that there was no evidence that an assault had taken place, and furthermore, even assuming an assault had occurred, there was no evidence to support an inference that the person committing the assault had read the letter or been influenced by it to commit his crime (paras 20-23). 24 Having found these reasons to overturn the panel’s conclusions, the reviewing judge went on to find that the panel had also erred in its finding that the impugned letter was hateful and contemptuous of homosexuals, and that it had failed to properly conduct the balancing of freedom of speech required by subsection 3(2) (para 89). Further, the judge found that the panel overlooked evidence demonstrating that there had been pre-existing public debate about whether and how homosexuality should be taught as a matter of public education, being the general topic discussed in Boissoin’s letter. The judge concluded that the panel’s erroneous factual findings had stripped Boissoin of any credible contextual ba- 676 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

sis to claim that the letter manifested political or religious expression, (para 105). 25 With respect to the Charter, the judge noted that the parties agreed with the Crown’s concession that subsection 3(1)(b) of the Act infringed subsection 2(b) of the Charter protecting freedom of expression (para 118). He held, however, that such infringement was reasonably justified for the reasons set out in the decision of the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, 75 D.L.R. (4th) 577 (S.C.C.). 26 The reviewing judge observed that the Coalition was not named as a party in the original complaint, and that the panel overlooked or ignored evidence that Boissoin had written the subject letter in his individual capacity. The judge consequently held that the evidence failed to establish that the Coalition had contravened subsection 3(1)(b) of the Act. 27 Finally, the court held the remedies directed by the panel were without legal foundation and beyond the remedial powers granted by section 32 of the Act. In particular, the reviewing judge found it was beyond the power of the Act to regulate and restrain “disparaging remarks” or “same or similar contraventions” of the Act; Lund did not qualify to receive an ordered apology; there was no authority in the Act allowing the panel to order publication of an apology; Lund did not meet the criteria for receiving damages, namely he was not a person dealt with contrary to the Act; and there was no authority to order payment of expenses incurred by a witness. The court further directed that each party bear its own costs.

VI. Grounds of Appeal 28 The appellant essentially challenges the reviewing judge’s interpretation of subsection 3(1)(b) of the Act. Lund submits the reviewing judge erred: (i) in requiring the hateful or contemptuous speech to be directly linked to areas of prohibited discriminatory practice, and in holding that subsection 3(1)(b) applied to only such expression that encouraged or indicated the intention to do so; (ii) in requiring that a complainant demonstrate the likelihood of discriminatory practices resulting from the hateful or contemptuous speech; (iii) in considering the intention of the impugned speech; and Lund v. Boissoin Clifton O’Brien J.A. 677

(iv) in determining that the impugned letter did not reach the level of hate speech. 29 Even though the reviewing judge found that the broad interpretation of the Act which Lund had advanced would mean that the legislation was ultra vires of provincial jurisdiction, Lund makes no submissions on the constitutionality of section 3, either from the standpoint of the Charter or the division of powers. Further, Lund does not challenge the removal of the Coalition as a party, nor the ruling with respect to remedies, with the exception of the finding that he personally was not dealt with contrary to the Act. He seeks to uphold the award of $5,000 made by the panel in his favour.

VII. Positions of the Respondent and Interveners 1. The Respondent 30 Boissoin likewise does not argue the constitutional issues raised in the Court of Queen’s Bench, and asserts that “the constitutional questions need not and should not be answered in this appeal”. He relies upon the reviewing judge’s construction of the Act in finding that subsection 3(1) had not been contravened. In any event, he submits that the panel’s findings and conclusions should be disregarded, as they were materially influenced by the errors and omissions in the panel’s fact findings as identified by the court below. 31 Boissoin submits, further, that the subject letter was an expression of political and religious opinion and thereby excluded by subsection 3(2) from the impact of subsection 3(1) of the Act. Finally, Boissoin charac- terizes the panel’s award of damages to Lund as an “unlawful bounty,” and submitted that the reviewing judge was correct in finding that Lund was not a person dealt with contrary to the Act.

2. The Attorney General of Alberta 32 The Attorney General of Alberta notes that the parties in this appeal are not explicitly challenging the constitutionality of section 3 of the Act, and further asserts that the reviewing judge correctly construed the legislation. The Attorney General, however, takes no position with respect to the subject letter. Importantly, the Attorney General asserts that the Prov- ince’s ability to limit hateful or contemptuous speech occurs only when it is linked to acts of discrimination falling within provincial subject matters. 678 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

33 More particularly, the Attorney General disagrees with Boissoin’s submission that subsection 3(2) gives a blanket exemption to hateful and contemptuous political and religious discourse. The Attorney General claims jurisdiction on behalf of the Province to limit all discriminatory expression, which it defines as “any expression that either (1) expressly advocates discriminatory practice with respect to the subject matters enumerated in the Act, or (2) is hateful and contemptuous and linked to discriminatory acts with respect to subject matters enumerated in the Act”(emphasis added).

3. Canadian Civil Liberties Association 34 The CCLA rejects the views of Boissoin as expressed in his letter, but intervenes to ensure that the fundamental rights to freedom of expression, conscience and religion are given a robust application. The CCLA submits that the reviewing judge correctly read down subsection 3(1)(b) of the Act as prohibiting the publication or display of materials that lead to specific acts of discrimination in the provision of goods and services. While the CCLA acknowledges that the constitutionality of subsection 3(1)(b) from a Charter aspect was not argued by the parties, it submits that unless subsection 3(1)(b) is read down in the manner suggested by the reviewing judge, the section is vulnerable to challenge as infringing upon subsections 2(a) and 2(b) of the Charter.

VIII. Standards of Review 35 It must first be determined whether the reviewing judge chose and applied the correct standard of review. If he did, then this court must consider whether he applied it correctly. If he did not, the tribunal’s decision must be reviewed applying the correct standard: Q. v. College of Physicians & Surgeons (British Columbia), 2003 SCC 19, [2003] 1 S.C.R. 226 (S.C.C.), at para 43. The practical effect of these obligations, in this case, is that this court is entitled to determine the appropriate standard of review to apply to the panel and then apply it. 36 This Court has previously set a correctness standard of review for decisions on questions of law by Human Rights Panels: Luka v. Lockerbie & Hole Industrial Inc., 2011 ABCA 3, 329 D.L.R. (4th) 76 (Alta. C.A.), at paras 8-10; Chiasson v. Kellogg Brown & Root (Canada) Co., 2007 ABCA 426, 425 A.R. 35 (Alta. C.A.), at paras 16-28. 37 In the case before us, the interpretation and application of section 3 of the Act, intertwined as it is with constitutional and jurisdictional issues, is Lund v. Boissoin Clifton O’Brien J.A. 679

a question of law of general importance to the legal system so that the correctness standard applies: Shaw Cablesystems G.P. v. Society of Composers, Authors & Music Publishers of Canada, 2012 SCC 35 (S.C.C.), at paras 10-20. Further, the members of human rights tribunals in Alberta are not full-time human rights adjudicators, but are lawyers in private practice appointed on an ad hoc basis, so that we are not dealing with a specialized board which has acquired an expertise in this area. 38 In its decision in Canada (Attorney General) v. Mowat, 2011 SCC 53, [2011] 3 S.C.R. 471 (S.C.C.), the Supreme Court recognized that not all questions of general law entrusted to human rights tribunals rise to the level of issues of central importance to the legal system, or fall outside the adjudicator’s specialized area of expertise, requiring that proper dis- tinctions be drawn (para 22). In that case, the Supreme Court concluded that the question of whether legal costs may be awarded in a compensation order was reviewable on a standard of reasonableness. However, it excepted “issues of general legal importance” (para 24), to which correctness applies.

IX. Analysis 39 I begin by emphasizing that the parties have chosen not to argue the constitutionality of section 3, either from the aspect of whether that section is ultra vires of the Province’s jurisdiction based upon distribution of powers, or whether the section unjustifiably violates the fundamental freedoms recognized in section 2 of the The Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act 1982 (UK), 1982, c 11. In view of my ultimate decision, I am satisfied that these important constitutional issues can be left to another day. 40 The issues before this Court are consequently ones involving the interpretation and application of section 3 of the Act with regard to the impugned publication — issues to be determined on the correctness standard. I will first consider the interpretation placed upon the statute by the reviewing judge, and explain where and why I differ. I will next give my reasons for agreeing with the judge that the letter in question does not meet the threshold of hate speech. I will also examine the purpose and effect the exemption provided by subsection 3(2). Finally, I will express my concerns, which arise out of the issues on this appeal, about the lack of clarity in the legislation. 680 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

1. The Reviewing Judge’s Interpretation of subsection 3(1)(b) 41 Subsection 3(1)(b) directly prohibits the publication before the public of any statement that is likely to expose a person or a class of persons to hatred or contempt on the basis of the listed grounds. The rationale for like prohibitions contained in federal and provincial statutes is that speech exposing persons to hatred or contempt “may result in increased acts of discrimination, including the denial of equal opportunity in the provision of goods, services and facilities, and even incidents of violence”: Taylor at 918-19. Further, it should be noted that federal legislation under review in Taylor expressly made the subject communication “a discriminatory practice”. 42 The reviewing judge interpreted subsection 3(1)(b) as requiring a “causal link between publication of the message and the infringement of rights contained in the Act” (para 38), and further requiring some “concrete evidence” linking the message to the prohibited practices listed in section 3, (para 56). He accepted that “hateful or contemptuous speech” may prompt or even add to existing prejudice, but that “more” was required to be demonstrated under section 3. In my view, neither of these implied linkages is supported by the language of the Act. Furthermore, the requirement that there be a causal link between the publication and other rights contained in the Act comes from the inappropriate use of the constitutional remedy of “reading down.”

A. The language of the Act 43 It is trite law that the words of a statute must be read in their ordinary sense harmoniously with the scheme and object of the Act and the intention of the Legislature. In my view, a plain and ordinary reading of subsection 3(1)(b) requires only a demonstration that the publication is likely to expose a person or a class of persons to hatred or contempt. The trigger is exposure. No evidence of a subsequent discriminatory activity caused by such exposure is required to make the prohibition effective. To that extent, the prohibition against hateful and contemptuous speech is “freestanding”, as Lund submits. However, the Alberta statute does not identify such speech as in itself being an act of discrimination, as did the legislation in Taylor . 44 Giving effect to the plain and ordinary meaning of the words of subsection 3(1)(b) serves the purpose and objective of the statute and the intention of the Legislature in attempting to strike at a cause of discriminatory activities. It is also consistent with the history of the legislation. Lund v. Boissoin Clifton O’Brien J.A. 681

Section 3(1), in its previous incarnation, appeared as section 2(1) of the Individual’s Rights Protection Act, RSA 1980, c I-2. It read as follows: 2(1) No person shall publish or display before the public or cause to be published before the public any notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against any person or class of persons for any purpose because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry or place of origin of that person or class of persons. 45 In 1996, however, the Alberta Legislature broadened the scope of this provision. It did so, at least in part, in response to recommendations made in a report by the Human Rights Review Panel entitled Equal in Dignity and Rights (otherwise known as the O’Neill Report). The Panel recommended that section 2 be broadened for the purposes of “prohibiting the spread of hatred through public media” (at 68). The name of the enactment was changed to the Human Rights, Citizenship and Multicul- turalism Act, and, among other changes, the present subsection 3(1)(b) was introduced into the legislation. The elimination of the spread of hatred through public speech motivated the amendment to subsection 3(1) in 1996. This prohibition was additional to the discriminatory practices which were prohibited under the prior legislation, and was aimed at eradicating one underlying cause of such activities (i.e., speech that promotes hatred). 46 In my view, therefore, there is no need to prove a connection or linkage between the impugned message and a subsequent discriminatory practice in order to restrain the message, as the reviewing judge held (para 60).

B. Reading down not permissible 47 The reviewing judge rejected a “narrow, literal interpretation” of section 3 which would give rise to a “stand-alone” prohibition on hateful and contemptuous expression in any public forum, (paras 28-29). It appears that he did so, at least in part, to avoid giving the statute an interpretation that would make it ultra vires provincial jurisdiction. He stated: “the purpose of the section cannot be to simply restrain hateful or contemptuous speech per se. Such legislation would be ultra vires the province” (para 33). The judge cited the majority judgment of Cameron J.A. of the Saskatchewan Court of Appeal in Saskatchewan (Human Rights Commission) v. Engineering Students’ Society (1989), 56 D.L.R. (4th) 682 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

604, 72 Sask. R. 161 (Sask. C.A.), in support of the proposition that legislation should be interpreted in such a fashion as to sustain its constitutional validity, speaking in that case to the division of powers aspect. 48 It is correct, of course, that “if words in a statute are fairly susceptible of two constructions of which one will result in the statute being intra vires and the other will leave a contrary result, the former is to be adopted”: McKay v. R., [1965] S.C.R. 798 (S.C.C.), at 803 — 4, (1965), 53 D.L.R. (2d) 532 (S.C.C.). In my view, however, the words of the statute in this case are not susceptible to two alternative constructions. With respect, the reviewing judge has, in effect, read down section 3 in order to produce a perceived need for a constitutional fit. This is the wrong approach. 49 The difficulty with this approach is that the court did not begin with an analysis of the “pith and substance” of the impugned section, which is a mandatory first step in determining whether a statute is within the jurisdiction of the enacting body: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3 (S.C.C.), at para 25. Once the “pith and substance” or “matter” of a statutory provision is characterized, the second step is to determine whether the matter falls under a head of power assigned to that body: Québec (Procureur général) c. Canada (Procureur général), 2010 SCC 61, [2010] 3 S.C.R. 457 (S.C.C.), at para 19. 50 The pith and substance doctrine permits a statute that is otherwise intra vires to have ancillary extra-provincial and “incidental” effects; i.e., effects that may be of significant practical importance, but are collateral and secondary to the mandate of the enacting legislatures: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 (S.C.C.), at para 28. When “incidental effects” infringe upon the other level of government sufficiently to place the impugned statute under another head of power in pith and substance, the remedy of “reading down” may be employed. As Binnie and LeBel JJ. summarized in Canadian Western Bank, at para 31: When problems resulting from incidental effects arise, it may often be possible to resolve them by a firm application of the pith and substance analysis. The scale of the alleged incidental effects may indeed put a law in a different light so as to place it in another constitutional head of power. The usual interpretation techniques of constitutional interpretation, such as reading down, may then play a useful role in determining on a case-by-case basis what falls exclusively to a given level of government. In this manner, the courts in- Lund v. Boissoin Clifton O’Brien J.A. 683

crementally define the scope of the relevant heads of power. The flexible nature of the pith and substance analysis makes it perfectly suited to the modern views of federalism in our constitutional jurisprudence. [emphasis added] 51 Reading down, within the context of division of powers jurisdiction, is thus a remedy for extra-jurisdictional effects that are beyond “incidental”. In the absence of a pith and substance analysis, and a determination that the statute is in fact ultra vires, it is inappropriate to read the legislation down. 52 As the parties have chosen not to make submissions on the constitutional validity of the statute, and as it is unnecessary to do so because of my interpretation of the letter, I will not attempt to deal with the constitutional issue. I would note only that Peter Hogg (Constitutional Law of Canada, loose-leaf (Toronto: Carswell, 2007) at 34 — 10 points out that the pith and substance of anti-discrimination laws is best determined, not necessarily by reference to the law’s effects on freedom of speech or expression, for example, but rather to the types of activities specifically being regulated. As Estey J. commented in Scowby v. Saskatchewan (Board of Inquiry), [1986] 2 S.C.R. 226 (S.C.C.), at para 8; (1986), 32 D.L.R. (4th) 161 (S.C.C.): In each case, the essential question is whether provincial legislation is valid as in relation to property and civil rights or some other head of s. 92, or impermissibly deals with matters in relation to a subject over which Parliament has been given exclusive legislative jurisdiction. Should the root of the human rights legislation under challenge be within the territory of pure criminal law, and not in a valid provincial legislative object, it is beyond the powers of the provincial legislature. 53 Here the reviewing judge did not analyse whether subsection 3(1)(b) was in pith and substance a matter of property and civil rights. Rather, he interpreted the section in such a way as to ensure its vires. As pointed out, this is an incorrect approach. In my view, the words of subsection 3(1)(b), given their plain and ordinary meaning, constitute a free-standing prohibition against speech that is likely to expose a person or class of persons to hatred or contempt. It only remains to be said that there is a serious issue whether the regulation of speech in that fashion falls within the power of the Province as a matter of property or civil rights, or falls within the power of the Federal Government as criminal power or 684 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

otherwise: Reference re Alberta Legislation, [1938] S.C.R. 100, [1938] 2 D.L.R. 81 (S.C.C.), and Saumur v. Quebec (City), [1953] 2 S.C.R. 299, [1953] 4 D.L.R. 641 (S.C.C.). The sole point I make in this regard is that not having undertaken the required pith and substance analysis, the reviewing judge had no foundation upon which to read down the statute from the jurisdictional division of powers aspect. 54 There is a second constitutional basis for reading down a statute, namely, as a remedy to avoid an interpretation of a statute which would offend the Charter. Here, the CCLA submits that reading down subsection 3(1)(b) of the Act accords with its purposes, and reconciles the goals of prohibiting discrimination and protecting the freedom of expression and religion. It argues that failing to read down subsection 3(1)(b) calls its constitutionality into question on Charter grounds. Thus, on this basis, the CCLA supports the judge’s interpretation of subsection 3(1). 55 It should be noted, on this point, that the reviewing judge found that subsection 3(1)(b) did not violate the Charter, (paras 8 and 126). Thus, the remedy of reading down can have no application. While I appreciate that the judge’s determination that subsection 3(1)(b) did not violate the Charter was grounded, at least in part, upon his restrictive interpretation of the subsection, the parties have chosen not to place in issue the constitutionality of the section on any basis, including the Charter. It would therefore be inappropriate to now undertake an analysis whether subsection 3(1)(b) can withstand a Charter challenge, in light of its interpretation as being a free-standing restriction on speech. 56 Furthermore, the restrictive interpretation advanced by the CCLA (and agreed with by the Attorney General) cannot be supported on the basis that subsection 3(1)(b) must be so interpreted to comply with Char- ter values. The proper limits of Charter values as an interpretive tool were set out by Charron J. in her majority judgment in R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554 (S.C.C.), at paras 18-19: ... it is equally well settled that, in the interpretation of a statute, Charter values as an interpretative tool can only play a role where there is a genuine ambiguity in the legislation. In other words, where the legislation permits two different, yet equally plausible, interpretations, each of which is equally consistent with the apparent purpose of the statute, it is appropriate to prefer the interpretation that accords with Charter principles. However, where a statute is not ambiguous, the court must give effect to the clearly expressed legislative intent and not use the Charter to achieve a different result. In Bell Ex- Lund v. Boissoin Clifton O’Brien J.A. 685

pressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (S.C.C.), at para. 62, Iacobucci J., writing for a unanimous court, firmly reiterated this rule: ...to the extent this Court has recognized a “Charter values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations. [emphasis in original] If this limit were not imposed on the use of the Charter as an interpretative tool, the application of Charter principles as an overarching rule of statutory interpretation could well frustrate the legislator’s intent in the enactment of the provision. Moreover, it would deprive the Charter of its more powerful purpose — the determination of the constitutional validity of the legislation: Symes v. R., [1993] 4 S.C.R. 695 (S.C.C.), at p. 752; Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.), at pp. 679-80; Vriend v. Alberta, [1998] 1 S.C.R. 493 (S.C.C.), at paras. 136-42; Bell ExpressVu, at paras. 60-66; Charle- bois c. Saint John (City) (2005), [2005] 3 S.C.R. 563, 2005 SCC 74 (S.C.C.), at paras. 23-24. 57 For reasons discussed earlier, the words of subsection 3(1)(b) do not yield two alternate and plausible interpretations. The subsection must be construed in accordance with its plain and ordinary meaning and within the context of the statute as a whole. I would not, therefore, uphold the dismissal of Lund’s complaint on the basis that he had failed, on an evidentiary basis, to establish a connection or linkage between the impugned message and the discriminatory practices set out in the Act.

2. Does the letter violate subsection 3(1)? 58 As stated at the outset, the reviewing judge considered the subject letter to be “jarring, offensive, bewildering, puerile, nonsensical, and insulting”, but that its language did not go “so far as to fall within the prohibited status of ‘hate’ or ‘contempt’” (para 90). For the reasons that follow, I agree with him.

A. The Taylor test 59 It is useful to begin by setting out the standard by which hateful or contemptuous speech is measured in the context of the prohibition contained in subsection 3(1)(b). “Hatred and contempt” are words capable of broad or narrow interpretation. These words were interpreted in Taylor, 686 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

however, having regard to Charter values, and the bar was set high because a free and democratic society places a premium on the free expression of opinion and the free exchange of ideas. Accordingly, as Chief Justice Dickson explained in Taylor, a statutory prohibition of free speech is only justifiable under section 1 of the Charter if it is directed at “speech of an ardent and extreme nature” (at 929). The Chief Justice expanded on this necessity at page 928: The reference to “hatred” in the above quotation speaks of “extreme” ill-will and an emotion which allows for “no redeeming qualities” in the person at whom it is directed. “Contempt” appears to be viewed as similarly extreme, though is felt by the Tribunal to describe more appropriately circumstances where the object of one’s feelings is looked down upon. According to the reading of the Tribunal, s. 13(1) thus refers to unusually strong and deep-felt emotions of detestation, calumny and vilification, and I do not find this interpretation to be particularly expansive. 60 The statutory reference in this passage is to subsection 13(1) of the Canadian Human Rights Act, SC 1976-1977, c-33, which referred to telephonic communications that were “likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.” Nonetheless, I accept that for purposes of this appeal, the words “hatred or contempt”, found in subsection 3(1)(b), fall to be interpreted according to the Supreme Court’s decision in Taylor. I would note, however, that the speech considered in Taylor was repetitive hate propaganda. The words were not spoken in the course of debate on a matter of public interest. Language which is offensive and hurtful to others does not necessarily qualify as hateful or contemptuous speech.

B. Consideration of context 61 In cases subsequent to Taylor, the importance of the context and the circumstances of the publication have been emphasized. For example, in considering the application of the comparable Saskatchewan legislation, Richards J.A., in Hellquist v. Owens, 2006 SKCA 41 (Sask. C.A.), stated at para 60: As a result, it is apparent that s. 14(1)(b) must be applied using an objective approach. The question is whether, when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred ... Lund v. Boissoin Clifton O’Brien J.A. 687

62 In Whatcott v. Saskatchewan Human Rights Tribunal, 2010 SKCA 26, 317 D.L.R. (4th) 69 (Sask. C.A.), Hunter J.A. spoke of the “particular importance” of context in cases such as the one before this Court. She stated at para 62: Context is of particular importance when considering complaints based on sexual orientation and the impact on freedom of expression. Most often, underlying these complaints are issues relating to matters of morality. It is acceptable, in a democracy, for individuals to comment on the morality of another’s behaviour. For this reason there will be a relatively high degree of tolerance for the language used in debates about moral issues, subject, of course, to limitations. Any- thing that limits debate on the morality of behaviour is an intrusion on the right to freedom of expression. 63 Moreover, the court noted at para. 120 that a contextual analysis is required to ensure that the application of the statutory provision does not exceed the limitations to freedom of expression justifiable in a free and democratic society. In addition to freedom of expression, the Charter also identifies the related freedoms of thought, belief,and opinion as fundamental freedoms. 64 I would add that moral issues often also relate to the freedom of religion — another fundamental right protected by the Charter. A moral statement arising out of religious conviction may, in some cases, be seen as the dissemination of religious belief — an aspect of freedom of religion. Dickson J., as he then was, underscored this point in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (S.C.C.), at 336, (1985), 18 D.L.R. (4th) 321 (S.C.C.): The essence of the concept of freedom of religion is the right to en- tertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. 65 I agree with the observation of the reviewing judge that the primary freedom applicable in this case is that of freedom of expression. The letter is not so much an expression or dissemination of religious beliefs, as “a manifestation of” Boissoin’s beliefs (para 117).

C. Examination of the letter 66 As suggested above, it is essential to place the letter in context and to examine it as a whole, not piecemeal. It is unfortunate that the panel, in 688 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

this case, appears either to have misapprehended, ignored, or overlooked evidence required to place the letter in context. I agree with the reviewing judge that this led to erroneous fact findings by the panel which stripped the speech from its contextual setting. 67 It should first be noted that the “statement” in question is a letter written to the editor of a daily newspaper. Letters to the editor are an important means by which citizens express their opinions on matters of public interest. As was stated in dissent by Dickson J., as he then was, in Cherneskey v. Armadale Publishers Ltd. (1978), [1979] 1 S.C.R. 1067, 90 D.L.R. (3d) 321 (S.C.C.), a defamation case arising from a letter to an editor: It is not only the right but the duty of the press, in pursuit of its legitimate objectives, to act as a sounding board for the free flow of new and different ideas. It is one of the few means of getting the hetero- dox and controversial before the public. Many of the unorthodox points of view get newspaper space through letters to the editor. It is one of the few ways in which the public gains access to the press. By these means various points of view, old and new grievances and proposed remedies get aired. The public interest is incidentally served by providing a safety valve for people. [1096-7] 68 Boissoin wrote his letter for publication and, in that very limited sense, may have caused its publication. It was the newspaper, however, that determined whether or not it would be published. The newspaper decided to publish it because the letter was identified as expressing an opinion on a matter of public interest, and the newspaper was correct in coming to this conclusion. In Simpson v. Mair, 2008 SCC 40, [2008] 2 S.C.R. 420 (S.C.C.), the Supreme Court observed at para 57: “The public debate about the inclusion in schools of educational material on homosexuality clearly engages the public interest.” 69 The reviewing judge observed, and I agree, that the panel’s oversight in failing to consider the affidavit of Joe McLaughlin, Managing Editor of the newspaper, also stripped the subject letter of context. The affidavit was filed as an exhibit in the proceedings. McLaughlin was not cross- examined on it, and his evidence was not otherwise challenged. The affidavit attached McLaughlin’s Memorandum, dated September 12, 2002, to the Alberta Human Rights and Citizenship Commission in response to Lund’s complaint. McLaughlin stated therein: The Advocate disagrees with Lund’s suggestion that by publishing Boissoin’s letter, the Advocate engaged in conduct likely to promote Lund v. Boissoin Clifton O’Brien J.A. 689

the discrimination on the basis of sexual orientation. We believe Ad- vocate editorials, commentary and letters written in critical response to Boissoin’s letter are more likely than not to promote tolerance of homosexuals rather than discrimination. ... The most fundamental thing to understand about Boissoin’s letter is that it is not directed specifically, narrowly or exclusively to homosexuals. He states at the outset that his target is not homosexuals, but the “machine” that supports them. He expresses sympathy, love and fellowship for some homosexuals. While we do not agree with or support much of what Boissoin says, we believe his views are honestly felt, based on his understanding of the Bible. We believe that he has a right to express his views, and the Advocate has the responsibility to publish letters on issues of wide public interest. ... Boissoin’s letter of June 17, (Homosexual agenda wicked) was written a [sic] part of a campaign “to fight moral decay in Canada.” It’s a campaign which we first reported in a front-page story by reporter Cameron Kennedy on April 29, (Christian coalition takes political role) and in a commentary by Advocate columnist Mary-Ann Barr the following day. (Religious diversity should be celebrated.) Bois- soin objected to some characterization in the news story and column, so he sought and was given the right of reply in a guest opinion column on May 13. (Christian coalition back morality.) Publishing that column fulfilled our responsibilities under the Alberta Press Council Code of Practice: “It is the duty of newspapers to allow fair opportunity for reply when reasonably called for.” Other reaction to our news coverage was published in a letter on May 17 (Advocate columnist unfair to Christian organization.) On June 17, Boissoin’s letter (Homosexual agenda wicked) was published further advancing his political agenda, followed by a flurry of letters supporting and opposing his views. 70 McLaughlin’s views need not be accepted, nor does the newspaper’s decision to publish the letter determine whether the letter offends the Act. Nevertheless, it is evidence that the newspaper published the subject letter because it decided that it was an honestly-held expression of opinion by Boissoin on an issue of public debate. The purpose of its publication, therefore, was to further public debate. The newspaper was independent of Boissoin, and its decision to publish signals that its publication was considered to be a matter of public interest. Nor can the letter reasonably be viewed as advocacy for discriminatory practices prohibited by the Act. 690 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

The letter is of a different nature and quality than the repetitive telephonic hate propaganda dealt with in Taylor and other cases. Whether offensive or not, the letter was perceived to stimulate and add to an ongoing public debate on matters of public interest, as distinct from hate propaganda which serves no useful function and has no redeeming qualities. A certain amount of public debate concerning such an issue must be permitted, even if some of it is offensive, to make the general public aware that such type of thinking is present in the community and to allow for its rebuttal. 71 As I agree with the reviewing judge’s analysis with respect to various parts of the letter, I need not repeat it. Suffice to say that the letter is essentially an expression of Boissoin’s opinion that teaching children at school that homosexuality is normal, and that same sex families are equivalent to heterosexual families, is morally wrong and should not be tolerated. In the words of the panel, the “letter is, on the face of it, a critique of the homosexual agenda which [Boissoin] alleged existed in the school system in Red Deer, Alberta” (para 351). Boissoin hoped to rouse others of like mind and involve them in the public debate. While his views are expressed in strong, insensitive, and some might say big- oted terms, the words are clearly the expression of his opinion. And the aim of the letter was to stir apathetic people, who agreed with him, to his cause. 72 Matters of morality, including the perceived morality of certain types of sexual behaviour, are topics for discussion in the public forum. Fre- quently, expression on these topics arises from deep seated religious conviction, and is not always temperate. It is unfortunate when some choose to express their opinions in a crude and offensive manner, but sincerely held convictions sometimes give rise to extreme polemical speech. Free- dom of speech does not just protect polite speech. Further, in my view, some latitude should be given to those who do not have the educational advantage of being able to communicate their message in more sophisticated language. Indeed, a message in sophisticated language may be capable of greater harm, as listeners may give it more credence than a message delivered in coarse and crude language. In this regard, the reviewing judge pointed out that an expert witness called by Lund was of the view that Boissoin’s letter was so extreme that it would be immediately dismissed by a reasonable person reading the letter (para 65). 73 As editor McLaughlin observed, the target of the letter is not homosexuals, but rather all those that promote the teaching that homosexuality Lund v. Boissoin Clifton O’Brien J.A. 691

is normal and acceptable. Boissoin was calling upon those of like mind to that of his own to take a stand. The subject and perceived target of the speech was sexual behaviour; i.e., homosexuality, rather than homosexuals. In particular, I agree with the reviewing judge’s observation, at para 96 of his reasons, that the letter’s reference to pedophilia was only to those involved in the North American Man / Boy Love Association, and was not suggestive of general behaviour. Rather it expressed the writer’s apprehension that if homosexual behaviour is accepted as normal then the door will be open for acceptance of other forms of sexual behaviour. 74 The distinction between disapprobation of conduct and behaviour, and the persons who engage in that conduct and behaviour, is itself a matter of debate and has been rejected by many. In her dissent in Trinity Western University v. College of Teachers (British Columbia), 2001 SCC 31, [2001] 1 S.C.R. 772 (S.C.C.), L’Heureux-Dub´e J. expressed her “dis- may” at the idea that “one can separate condemnation of the ‘sexual sin’ of ‘homosexual behaviour’ from intolerance of those with homosexual or bisexual orientations”, and challenged “the idea that it is possible to condemn a practice so central to the identity of a protracted and vulnerable minority, thereby discriminating against its members and affronting their human dignity and personhood” (para 69). The majority in Trinity, however, drew the line between belief and conduct, and pointed out that “the freedom to hold beliefs is broader than the freedom to act on them”, and refused to presume that the belief that homosexual conduct is immoral was itself a discriminatory practice or would necessarily result in discrimination (para 36). 75 Boissoin and others have the freedom to think, whether stemming from their religious convictions or not, that homosexuality is sinful and morally wrong. In my view, it follows that they have the right to express that thought to others. This is not a license to engage in discriminatory practices or to advocate them. I agree with the observation of Smith J.A. in Whatcott that while exception is understandably taken to the extreme and polemical language employed in cases such as this, the “real objection is to the essential message” contained in such publications (para 136). In other words, the message would be hurtful no matter how po- litely expressed. That message is that homosexuality is morally wrong and sinful, and the author does not want its mandated acceptance to be taught to children. It is doubtful that such a message would ever sit well with those that accept that homosexuality is an identity, not a behaviour. 692 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

76 Does Boissoin’s condemnation of homosexuality, albeit in extreme and intemperate language, subject him to censorship by the human rights panel? The Act provides no exemption for religious leaders or public places of worship. If it is not possible to condemn sexual behaviour which is said to be central to the identity of homosexuals, without discriminating against them and offending their human dignity, then is it possible for any pastor, priest, rabbi or imam to publicly declare that homosexuality is sinful and morally wrong? Or does it depend upon how polite the language of condemnation is? The point is that subject and context are so very important when interpreting a letter like Boissoin’s. Its broad subjects are sexual behaviour and morality, and education about these subjects in public schools funded by taxpayers. The letter attempts to engage in public debate with respect to these matters, as the newspaper editor perceived when he deemed it worthy of publication. 77 It is difficult to make an objective determination of what constitutes hate speech as the perceptions of reasonable persons often differ. I have attempted to analyse the impugned speech, however, from the perspective of a reasonable reader who is aware of the context and circumstances of the letter’s publication. In my view, the letter would properly be viewed as a polemic on a matter of public interest and does not qualify as reaching the extreme limits mandated by Taylor to expose persons to hatred or contempt. While expressing hostility to teaching tolerance of homosexuality in school, it does not, on the whole, elicit emotions of detestation, calumny, or vilification against homosexuals. Nor, I think, would a reasonable person, aware of the relevant context and circumstances, understand the letter as likely to expose homosexuals to hatred or contempt. It would be understood more as an overstated and intemperate opinion of a writer whose extreme and insensitive language undermines whatever credibility he might otherwise have hoped to have. It is not necessary to agree with the content of the letter to acknowledging the writer’s freedom to express his views. Thus, I agree with the reviewing judge’s conclusion that the letter does not breach subsection 3(1)(b) of the statute.

3. Consideration of subsection 3(2) of the Act 78 In my view, the letter also constitutes an expression of opinion in the course of public discourse within the meaning of subsection 3(2) of the Act, which exempts it from the application of subsection 3(1)(b). This is Lund v. Boissoin Clifton O’Brien J.A. 693

a further ground for upholding the conclusion reached by the reviewing judge. 79 Subsection 3(2) was contained in the Alberta legislation prior to the 1996 amendments that introduced the prohibition against statements and publications likely to expose a person or a class of persons to hatred or contempt. The O’Neill Report recommended that the subsection “be kept as a safeguard of free expression”. Subsection 3(2), however, raises a formidable challenge to anyone seeking to interpret and apply it within its legislative context. The difficulty in interpreting the subsection lies in the fact that the preceding subsection, 3(1), prohibits any public statements that are likely to expose a person or class of persons to hatred or contempt. This gives rise to the question: How does one give meaning to each subsection when they appear, on their face, to collide? Various so- lutions to this paradox have been proposed. 80 In Taylor, Chief Justice Dickson commented in obiter upon the effect of provisions such as subsection 3(2) in provincial human rights legislation. He observed that such provisions may be “best seen as indicating to human rights tribunals the necessity of balancing the objective of eradicating discrimination with the need to protect free expression” (at 930). While some respectful weight must be accorded to the Chief Justice’s comments, the force of the dictum is diminished due to the fact that none of the provincial enactments, and in particular the Alberta statute, were before him for interpretation. Further, the federal statute which he was interpreting was very narrow in scope, being directed only at repetitive telephonic “hate propaganda”. This difference may have led to his observation that the so-called provincial “exemptions ... are found in provisions which appear to be radically different from s.13(1)”, (at 930). 81 In Kane, Rooke J., as he then was, adopted the obiter of Dickson C.J.C. in Taylor, and held that subsection 3(2) “is an admonition to balance the two competing objectives of freedom of expression and the er- adification of discrimination” (para 72). He rejected interpreting the term “opinion”, as used in subsection 3(2), as being narrower than all forms of expression, and thereby construed the subsection to apply to all manner of speech (para 69). The reviewing judge in this case did not treat subsection 3(2) as providing an exemption, because he was concerned that to do so would “operate to provide blanket protection for the publication of an otherwise unlawful message through the simple device of describing that message as a political, religious or personal ‘opinion’” (para 85). 694 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

82 In my view, the words “nothing in this section” cannot be interpreted reasonably as sometimes permitting interference with the free expression of opinion. Once again, the canons of construction call for an interpretation that, if reasonably possible, gives each subsection meaning and fits them together into the overall scheme of the legislation. I note that in considering the comparable exempting provision in the Saskatchewan statute, Hunter J.A pointed out in Whatcott at para 57 the need to apply general principles of interpretation: ...it is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain ... and that ... every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant. 83 Moreover, the intent of the legislators in retaining subsection 3(2), when amending the statute to broaden it to include the prohibition against statements likely to expose persons to hatred or contempt, should not be ignored. In attempting to discover that intent, it is necessary to consider the scope of the prohibition set forth in subsection 3(1). The words “issue”, “publication”, and “statement” were added in 1996, as well as the new subsection 3(1)(b), with the effect that the prohibition applies to all matters of speech, both written and oral, and by every means, provided that the communication is public. More pertinent to this case, the prohibition applies to statements made in the press which also has an impact upon freedom of the press. 84 In short, the prohibition, as framed, applies to all manner of public speech, whether printed in a newspaper, whether made by a candidate in the course of political debate during a campaign, or made by a pastor, priest or imam to his congregation in a public place of worship. Neither a political campaign, nor a place of worship, is excluded from the scope of subsection (1), provided the speech is public. 85 It is also relevant to examine subsection (3) for the purpose of interpreting subsection 3(2). Section 3(3)(b) provides that subsection (1) does not apply to: ... (b) the display or publication by or on behalf of an organization that Lund v. Boissoin Clifton O’Brien J.A. 695

(i) is composed exclusively or primarily of persons having the same political or religious beliefs, ancestry or place of origin, and (ii) is not operated for private profit. of a statement, publication, notice, sign, symbol, emblem or other representation indicating a purpose or membership qualifications of the organization, or ... if the statement, publication, notice, sign, symbol, emblem or other representation is not derogatory, offensive or otherwise improper. 86 This subsection also vexes a determination of legislative intent. Re- garding the application of sub-subsection 3(3)(b), which relates to “persons having the same political or religious beliefs, ancestry or place of origin,” it is clear that the exempted communication is limited to “a purpose or membership qualification of the organization”. Further, subsection 3(3) exempts only statements and publications that are “not derogatory, offensive or otherwise improper”. These words impose a much laxer test than words “likely to expose persons to hatred or contempt,” so that it is difficult to conceive that subsection 3(3) would ever be applicable if the speech offended subsection 3(1). 87 Having regard then to the sweep of subsection 3(1), and the narrow, if any, application of subsection 3(3), it seems likely that in retaining subsection 3(2) the legislators were seeking, firstly, to ensure that in matters coming within provincial legislative authority Alberta citizens enjoyed the freedoms of speech and religion recognized in the Alberta Bills of Rights, RSA 2000, c A-14. Secondly the legislators were attempting to tailor the section to ensure it was within their provincial jurisdiction. It is pertinent, in this regard, to consider Duff C.J.’s remarks in Reference re Alberta Legislation at 134: Any attempt to abrogate this right of public debate or to suppress the traditional forms of the exercise of the right (in public meeting and through the press) would, in our opinion, be incompetent to the legislature of the provinces, or to the legislature of any one of the provinces, as repugnant to the provisions of The British North America Act, by which the Parliament of Canada is established as the legislative organ of the people of Canada under the Crown, and Dominion legislation enacted pursuant to the legislative authority given by those provisions. The subject matter of such legislation could not be described as a provincial matter purely; as in substance exclusively a 696 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

matter of property and civil rights within the province, or a matter private or local within the province. 88 More recently, McLachlin C.J. and Major J. articulated similar senti- ments in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827 (S.C.C.), at para 12: The right of the people to discuss and debate ideas forms the very foundation of democracy... For this reason, the Supreme Court of Canada has assiduously protected the right of each citizen to participate in political debate. 89 Thus, it would appear that in attempting to protect the expression of opinion, the Legislature, was drawing a line between pure opinion in the context of public discourse, and statement and publications of a different nature and character. I consider it contrary to standard principles of statutory interpretation either to read in, or read out, any words of subsection 3(2). The plain meaning of “nothing in this section” cannot be subverted to “sometimes” or some other contrary meaning. Nor do I think that the resulting interpretation clothes “all communication with blanket protection”, as feared by the reviewing judge. 90 Subsection 3(2), therefore, is directed solely at the free expression of opinion. An opinion has been defined as “a belief or assessment based on grounds short of proof” or “what one thinks about a particular topic or question”: Canadian Oxford Dictionary, 2d ed, sub verbo “opinion”. Drawing from law relating to defamatory statements, whether a statement is capable of being construed as an opinion is a matter for the jury. For example, mere invective does not constitute opinion; nor do direc- tions and commands; nor lies, statements of purported facts; nor mis- statement of historical facts. In other words, not all communication constitutes opinion. Only the free expression of opinion is protected — not all speech. Whether a message is a “political, religious or personal opinion” is a question of fact to be determined by the trier of fact. The simple device of labelling a message as “opinion” does not make it so. 91 Within the context of the legislation in question, a sign or other notice stating that certain persons are excluded from service or accommodation cannot be construed as an opinion but rather as a directive discriminating against such persons. Likewise, a statement advocating discriminatory activities of a kind prohibited by the statute is not likely to qualify as an expression of opinion, albeit it may stem from an opinion held by the maker thereof. Subsection 3(2) is confined to “expression of opinion”, as Lund v. Boissoin Clifton O’Brien J.A. 697

distinct from directives and calls to action of discriminatory conduct, and does not thereby offer blanket protection. 92 I acknowledge that drawing the distinction between expressions of opinion, and statements of another kind, may sometimes be difficult to draw, and may depend upon the context of the statement. In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 (S.C.C.), it was said that statements of opinion are a category “which includes any deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof” (para 31), and further, that in determining whether a publication is an a matter of public interest, the judge must consider the subject matter of the publication as a whole. In that case, the Supreme Court modified the law of defamation to include a new defence of responsible journalism on matters of public interest. While the task of separating and distinguishing opinion from facts and other types of statement may not always be easy, it should be no more difficult than determining whether the publication of a defamatory communication was responsible journalism, or any of the other questions that commonly arise in a defamation action. 93 Accordingly, in my view, if the public statement properly qualifies as an expression of opinion, and is not something more than that, or something of a different character, then pursuant to subsection 3(2) the statement of opinion is exempt from the prohibition set forth in subsection 3(1). In this case, I have already found that Boissoin’s letter, seen in context, was an opinion on a subject of public debate — teaching in schools concerning homosexuality. It was, therefore, protected speech under this section of the Act. I would add, as a final comment, that even if the application of subsection 3(2) only required balancing freedom of expression against the goal of eradicating discrimination, as suggested in both Tay- lor and Kane, the fact that Boissoin’s letter constituted a freely expressed opinion on a matter of public interest would be a significant factor in considering context in the application of subsection 3(1)(b), and would tend against an interpretation that the letter violated the subsection.

4. Comments on the legislation 94 The objective of statutory interpretation is to discern the legislative intent from the language of the legislation, if possible, and to give effect to such intent. This objective becomes difficult to attain when there is conflict, imprecision, or a lack of clarity in the legislation. Of particular concern in the area of human rights law is that a lack of clarity will cast a 698 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

chill on the exercise of the fundamental freedoms, such as freedom of expression and religion. 95 The goals of protecting the freedoms of expression and religion, on the one hand, and protecting vulnerable minorities from discrimination, on the other, are matters of primary concern to the citizens of this Prov- ince. It is unfortunate, therefore, that section 3 gives rise to the difficulties of interpretation manifest in this judgment and the decisions below. This lack of clarity has resulted in this protracted litigation, to the detri- ment and expense of all parties. 96 The Attorney General in his factum claims the ability to limit expression that is characterized as “hateful” or “contemptuous” only when such expression “is linked to acts of discrimination falling within provincial subject matters”. In his view, section 3 is to be interpreted as “dealing with a narrow range of extreme expression that clearly falls outside the bounds of normal discourse and leads to discriminatory acts” (emphasis added). If that is the intent of the legislators, it would be helpful if they said so clearly. 97 Further, this judgment has attempted to grapple with reconciling the “free expression of opinion on any subject” with the broad prohibition against statements, publications, and other representations by any means and in any public place that are likely to expose a person or a class of persons to hatred or contempt. I am reluctant to accede to the views of others, referred to in this judgment, that a provision such as subsection 3(2) is either superfluous or merely cautionary in face of the introductory words “nothing in this section”. On the other hand, it cannot have been the intent of the legislators, in retaining the subsection in 1996, to wholly nullify the prohibition against statements, publications, and other representations likely to expose a person or persons to hatred or contempt. If the Legislature thinks it appropriate to regulate speech in this area, then it is incumbent upon it to do so in a clear fashion. 98 Finally, in the course of this judgment I have touched upon subsection 3(3), which exempts, in very limited circumstances, statements, publications, and other representations “not derogatory, offensive or otherwise improper”. This begs the question whether the legislators thought they were regulating speech that was merely derogatory or offensive. In- deed, as pointed out in the judgment, it is virtually impossible to give this exemption any meaning. Lund v. Boissoin Brian O’Ferrall J.A. 699

99 In my view, the citizens of this Province are entitled to certainty when it comes to exercise of their fundamental rights. It is ironic that the O’Neill Report, which inspired the 1996 amendments, recommended that “the Act be rewritten in plain language”. In my view, it would serve the interests of the citizens of this Province if the Legislature would direct its attention to this objective.

X. Conclusion 100 The appeal is dismissed. 101 The respondent, Boissoin, sought costs in the event that the appeal was unsuccessful — in this Court, in the Court of Queen’s Bench, and before the Tribunal. The reviewing judge denied costs, up to this stage of the proceeding, on a public interest basis, and I see no good reason to reverse his direction. However, after a full hearing before the panel, and in the Court of Queen’s Bench, Lund chose to appeal hoping to recover the damages awarded by the panel. In my view, therefore, the general rule that costs follow the result is applicable. Accordingly, the respondent will have his costs of the appeal, taxable on Column 2 of Schedule C. The interveners neither sought nor will recover costs.

Carole Conrad J.A.:

I concur:

Brian O’Ferrall J.A.:

I concur: Appeal dismissed. 700 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

[Indexed as: Bellan v. Fillmore Riley LLP] Bernard W. Bellan, (Plaintiff) Respondent and Fillmore Riley LLP, (Defendant) Appellant and Stafford F. Swain & Associates (Defendant) Manitoba Court of Appeal Docket: AI 12-30-07714 2012 MBCA 84 Michel A. Monnin, Freda M. Steel, Martin H. Freedman JJ.A. Heard: April 19, 2012 Judgment: September 12, 2012 Civil practice and procedure –––– Parties — Representative or class proceedings not under class proceedings legislation — Discretion of court –––– Preferability determination — As between representative action and statutory class proceedings — Defendant law firm drafted prospectuses for investment fund, and were allegedly negligent in so doing — Plaintiff investor, and others, suffered pure economic losses in failure of investment fund — Investors brought action against directors and officers of fund, which action was settled, inter alia, by assignment of directors’ and officers’ rights of action for contribution and indemnity from defendant — Plaintiff commenced assigned-rights proceeding by way of representative action against defendant, pursuant to R. 10 of Queen’s Bench Rules — Defendant brought motion for order striking statement of claim with leave to re-commence as statutory class proceeding on basis that Class Pro- ceedings Act (“CPA”) constituted complete code of procedure for all multi-party proceedings in province — Motion was dismissed, R. 10 Rules representative action was continued and defendant appealed — Appeal dismissed — Pursuant to s. 41 of CPA, CPA does not apply to “a proceeding that may be brought in a representative capacity under another Act”, and s. 4(d) requires that court consider preferable options to class proceeding — Rule 10 states expressly that “where it appears necessary or desirable a judge may by order appoint one or more persons to represent any person or class of persons” — Interaction of ss. 4(d) 41 of CPA and R. 10 of Rules, together with jurisprudence, indicated that class proceedings and representative actions each remained available options for multi-party proceedings — In present case as some 36,000 investors might qualify as persons possibly effected by proceeding who “cannot readily be . . . served”, representative action option was clearly available — Motion judge’s decision with respect to preferable proceeding was exercise of discretion entitled to high degree of appellate deference — Test for preferability is balance of convenience, “designed to encourage an expeditious means of resolving contentious Bellan v. Fillmore Riley LLP 701

issues” — It could not be said that representative action was clearly less convenient proceeding to statutory class proceeding in present case, and in fact motion judge’s decision was likely correct and certainly reasonable attracting appellate deference in circumstances — Accordingly appeal was properly dismissed and representative action proceedings affirmed. Civil practice and procedure –––– Parties — Representative or class proceedings under class proceedings legislation — Certification — Plaintiff’s class proceeding — Preferable procedure –––– Preferability determination — As between representative action and statutory class proceedings — Defendant law firm drafted prospectuses for investment fund, and were allegedly negligent in so doing — Plaintiff investor, and others, suffered pure economic losses in failure of investment fund — Investors brought action against directors and officers of fund, which action was settled, inter alia, by assignment of directors’ and officers’ rights of action for contribution and indemnity from defendant — Plaintiff commenced assigned-rights proceeding by way of representative action against defendant, pursuant to R. 10 of Queen’s Bench Rules — Defendant brought motion for order striking statement of claim with leave to re-commence as statutory class proceeding on basis that Class Proceedings Act (“CPA”) constituted complete code of procedure for all multi-party proceedings in province — Motion was dismissed, R. 10 Rules representative action was continued and defendant appealed — Appeal dismissed — Pursuant to s. 41 of CPA, CPA does not apply to “a proceeding that may be brought in a representative capacity under another Act”, and s. 4(d) requires that court consider preferable options to class proceeding — Rule 10 states expressly that “where it appears necessary or desirable a judge may by order appoint one or more persons to represent any person or class of persons” — Interaction of ss. 4(d) and 41 of CPA and R. 10 of Rules, together with jurisprudence, indicated that class proceedings and representative actions each remained available options for multi-party proceedings — In present case as some 36,000 investors might qualify as persons possibly effected by proceeding who “cannot readily be . . . served”, representative action option was clearly available — Motion judge’s decision with respect to preferable proceeding was exercise of discretion entitled to high degree of appellate deference — Test for preferability is balance of convenience, “designed to encourage an expeditious means of resolving contentious issues” — It could not be said that representative action was clearly less convenient proceeding to statutory class proceeding in present case, and in fact motion judge’s decision was likely correct and certainly reasonable attracting appellate deference in circumstances — Accordingly appeal was properly dismissed and representative action proceedings affirmed. 702 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

Cases considered by Freda M. Steel J.A.: Berry v. Pulley (2011), 106 O.R. (3d) 123, 2011 CarswellOnt 1296, 2011 ONSC 1378, [2011] O.J. No. 927 (Ont. S.C.J.) — considered Canwest Global Communications Corp., Re (2009), 2009 CarswellOnt 9398 (Ont. S.C.J. [Commercial List]) — considered Chiefs of Ontario v. Ontario (2003), 2003 CarswellOnt 681, [2003] O.J. No. 585 (Ont. S.C.J.) — considered Chippewas of Sarnia Band v. Canada (Attorney General) (1996), 1996 Cars- wellOnt 2396, 137 D.L.R. (4th) 239, 29 O.R. (3d) 549, [1997] 1 C.N.L.R. 23, 2 C.P.C. (4th) 295, (sub nom. Chippewas of Sarnia Indian Band v. Canada (Attorney General)) 9 O.T.C. 32, [1996] O.J. No. 2475 (Ont. Gen. Div.) — considered Dugal v. Research in Motion Ltd. (2007), 37 B.L.R. (4th) 112, (sub nom. Ironworkers Ontario Pension Fund (Trustees of) v. Research in Motion Ltd.) 87 O.R. (3d) 721, 50 C.P.C. (6th) 398, 2007 CarswellOnt 7565, [2007] O.J. No. 4535 (Ont. S.C.J. [Commercial List]) — considered Fontaine v. Canada (Attorney General) (July 21, 2011), Doc. 816/2005 (Sask. Q.B.) — considered Hollick v. Metropolitan Toronto (Municipality) (2001), (sub nom. Hollick v. Toronto (City)) 56 O.R. (3d) 214 (headnote only), (sub nom. Hollick v. Toronto (City)) 205 D.L.R. (4th) 19, (sub nom. Hollick v. Toronto (City)) [2001] 3 S.C.R. 158, (sub nom. Hollick v. Toronto (City)) 2001 SCC 68, 2001 CarswellOnt 3577, 2001 CarswellOnt 3578, 24 M.P.L.R. (3d) 9, 13 C.P.C. (5th) 1, 277 N.R. 51, 42 C.E.L.R. (N.S.) 26, 153 O.A.C. 279, [2001] S.C.J. No. 67, REJB 2001-26157 (S.C.C.) — referred to Jellema v. American Bullion Minerals Ltd. (2010), 75 B.L.R. (4th) 198, 294 B.C.A.C. 261, 498 W.A.C. 261, 2010 BCCA 495, 2010 CarswellBC 2966, 10 B.C.L.R. (5th) 267, 94 C.P.C. (6th) 103, 326 D.L.R. (4th) 482, [2011] 2 W.W.R. 673, [2010] B.C.J. No. 2170 (B.C. C.A.) — referred to John v. Rees (1968), [1970] Ch. 345, [1969] 2 All E.R. 274 (Eng. Ch. Div.) — considered Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General) (2012), 2012 FC 517, 2012 CarswellNat 2082, 2012 CarswellNat 4178, 2012 CF 517 (F.C.) — referred to Nortel Networks Corp., Re (2009), 53 C.B.R. (5th) 196, 75 C.C.P.B. 206, 2009 CarswellOnt 3028, [2009] O.J. No. 2166 (Ont. S.C.J. [Commercial List]) — considered Paramount Pictures (Canada) Inc. v. Dillon (2006), 2006 CarswellOnt 3536, 29 C.P.C. (6th) 13, 53 C.C.P.B. 88, 24 E.T.R. (3d) 189, 2006 C.E.B. & P.G.R. 8205, [2006] O.J. No. 2368 (Ont. S.C.J.) — considered Payne v. Wilson (2002), 2002 CarswellOnt 2394, [2002] O.J. No. 1450 (Ont. S.C.J.) — considered Bellan v. Fillmore Riley LLP 703

Payne v. Wilson (2002), 2002 CarswellOnt 2224, 162 O.A.C. 48, (sub nom. Payne v. Ontario (Minister of Energy, Science & Technology)) [2002] O.J. No. 2566 (Ont. C.A.) — referred to Police Retirees of Ontario Inc. v. Ontario (Municipal Employees’ Retirement Board) (1997), 35 O.R. (3d) 177, 1997 CarswellOnt 3084, 17 C.C.P.B. 49 (Ont. Gen. Div.) — considered Potter v. Bank of Canada (2007), 2007 CarswellOnt 1816, 2007 C.E.B. & P.G.R. 8238, 59 C.C.P.B. 219, 31 E.T.R. (3d) 163, 223 O.A.C. 166, 85 O.R. (3d) 9, 282 D.L.R. (4th) 553, 37 C.P.C. (6th) 104, 2007 ONCA 234, [2007] O.J. No. 1174 (Ont. C.A.) — considered Proulx c. Pyzer (1985), 1985 CarswellQue 800, [1985] R.D.J. 47, [1985] J.Q. No. 607 (Que. C.A.) — considered Ryan v. Ontario (Municipal Employees Retirement Board) (2006), 51 C.C.P.B. 237, 29 C.P.C. (6th) 24, 2006 CarswellOnt 883 (Ont. S.C.J.) — referred to Soldier v. Canada (Attorney General) (2006), 2006 MBQB 50, 2006 Car- swellMan 82, 38 C.P.C. (6th) 125, 200 Man. R. (2d) 216 (Man. Q.B.) — followed Soldier v. Canada (Attorney General) (2009), 236 Man. R. (2d) 107, 448 W.A.C. 107, [2009] 2 C.N.L.R. 362, [2009] 4 W.W.R. 455, 2009 MBCA 12, 2009 CarswellMan 36, [2009] M.J. No. 32 (Man. C.A.) — referred to Sparvier v. Lac La Ronge Indian Band (2011), 2011 CarswellSask 648, 2011 SKCA 115 (Sask. C.A. [In Chambers]) — referred to Sutherland v. Hudson’s Bay Co. (2005), 74 O.R. (3d) 608, 2005 CarswellOnt 2564, 46 C.C.P.B. 225, 17 E.T.R. (3d) 287, 17 C.P.C. (6th) 199, [2005] O.J. No. 1455 (Ont. S.C.J.) — considered Western Canadian Shopping Centres Inc. v. Dutton (2001), (sub nom. Western Canadian Shopping Centres Inc. v. Bennett Jones Verchere) 201 D.L.R. (4th) 385, [2002] 1 W.W.R. 1, 286 A.R. 201, 253 W.A.C. 201, 8 C.P.C. (5th) 1, 94 Alta. L.R. (3d) 1, 272 N.R. 135, 2001 SCC 46, 2001 Carswell- Alta 884, 2001 CarswellAlta 885, [2001] 2 S.C.R. 534, [2000] S.C.J. No. 63, REJB 2001-25017 (S.C.C.) — referred to Statutes considered: Class Proceedings Act, S.M. 2002, c. 14 Generally — referred to s. 4(d) — considered s. 41 — considered Class Proceedings Act, 1992, S.O. 1992, c. 6 Generally — referred to s. 37(a) — considered Code de proc´edure civile, L.R.Q., c. C-25 art. 1003 — considered 704 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 Generally — referred to Crocus Investment Fund Act, S.M. 1991-92, c. 48 Generally — referred to Rules considered: Queen’s Bench Rules, Man. Reg. 553/88 R. 10 — considered R. 10.01(1) — considered R. 10.01(1)(f) — considered R. 10.01(2) — considered R. 10.01(3) — considered R. 10.01(4) — considered R. 12.01 — considered R. 12.01(1) — considered R. 12.01(2) — considered R. 25.02 — considered R. 59-61 — referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 5 — considered R. 6 — considered R. 10 — referred to

APPEAL by defendant from judgment dismissing defendant’s motion to strike plaintiff’s statement of claim in representative action with leave to re-commence as statutory class proceeding.

M.T. Green, L.W. Bowles, for Appellant D. Lennox, J.C. Prober, J.R.N. Boudreau, for Respondent

Freda M. Steel J.A.:

1 This is another chapter in the Crocus Investment Fund (Crocus) saga. The issue in this appeal is whether the underlying claim should proceed as a class action under The Class Proceedings Act, C.C.S.M., c. C130 (the CPA), or as a representation order procedure under Rule 10 of the Queen’s Bench Rules. The question is essentially one of statutory interpretation. 2 The motion judge decided that the matter should proceed by way of a representation order procedure rather than as a class action. For the reasons that follow, I agree. I believe that the passage of the CPA did not eliminate the possibility of a representation order under Rule 10 of the Bellan v. Fillmore Riley LLP Freda M. Steel J.A. 705

Queen’s Bench Rules. Moreover, while the question of whether the CPA requires all class actions to proceed under that Act is a question of law, whether a particular action should proceed as a class action or by way of representation order procedure is a discretionary decision which the motion judge was entitled to make. His decision took into account the correct factors, contained no error of law or misapprehension of fact and was not unjust. I see no ground for appellate intervention. 3 My decision dismissing this appeal simply confirms the motion judge’s decision as to the most convenient procedure for this litigation. The merits of the main action itself were not an issue in front of the court and I make no comment in that respect.

Facts 4 Crocus fell into receivership in 2005. A class action was filed by the respondent, Mr. Bernard Bellan, as the representative plaintiff, on behalf of his fellow shareholders (over 36,000). This class action was brought against the directors and officers of Crocus, and others, who had all signed the prospectuses under which shares of Crocus were sold, either directly or through agents. 5 The appellant, Fillmore Riley LLP (Fillmore), prepared those prospectuses and it is alleged that this was done negligently; in particular as regards to its obligation to confirm legislative compliance with The Cro- cus Investment Fund Act, C.C.S.M., c. C308, the statute which governed Crocus. It is alleged that this led directly to the over-valuation of the fund and the shareholders’ losses. 6 The shareholders did not have a contractual claim against Fillmore since there was no privity between Fillmore and the Crocus shareholders, but it is alleged that the directors and officers did have such a relationship with the law firm. The directors and officers did not have sufficient funds to fully compensate shareholders. For the shareholders to recover against Fillmore, they needed the directors and officers to sue Fillmore. However, the directors had limited insurance, and they could not afford to either continue the class action litigation or to pursue a claim against Fillmore. The shareholders did not want to settle their claim against the directors and officers without the chance to recover against Fillmore. 7 Ultimately, a compromise was reached. The class action was settled by way of a court-approved agreement in 2009, in which the directors and officers agreed to pay substantially all of their insurance to Bellan, 706 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

on behalf of the shareholders, and to assign to Bellan, on behalf of those shareholders, any third-party claim that they had against Fillmore and others. Court-approved notice of the settlement agreement and assignment was mailed to each of the shareholders of Crocus. Seventeen shareholders opted out of the settlement and assignment. All other shareholders accepted the settlement and assignment, and compensation has been paid to them, albeit they still have a loss. 8 In particular, para. 12 of the order which approved the settlement between Bellan and the officers and directors of Crocus reads: It is declared that any and all claims the Settling Director and Officer Defendants may have, in law or in equity, whether such claims could be made by or on behalf of the Settling Director and Officer Defend- ants, for contribution or indemnity from any of the Non-Settling De- fendants or against any other party in respect of the claims asserted in the Class Actions are assigned to the Plaintiff on behalf of the Settle- ment Class. 9 In 2011, Bellan filed an amended statement of claim against Fillmore pursuant to the assignment of the claim of the directors and officers of Crocus, acting as the representative of the shareholders pursuant to Rule 10 of the Queen’s Bench Rules. The proceeding originally included a claim against an accountant and business valuator, Stafford F. Swain & Associates, who had provided professional advice to the directors and officers, but that claim has now been settled. 10 In response, Fillmore brought a motion seeking an order striking out Bellan’s statement of claim, with leave to commence a fresh action in accordance with the provisions of the CPA. Fillmore argued that Bellan’s action ought properly to have been brought pursuant to the CPA rather than by way of a representation order. Alternatively, it sought an order for summary judgment dismissing the statement of claim and, alternatively, an order striking out paras. 4.1 and 34 of the statement of claim, and an order compelling Bellan to amend the statement of claim to aver that the action is one being brought pursuant to the provisions of the CPA. 11 Fillmore’s motion was dismissed and it now appeals the dismissal of that motion.

The Motion Judge 12 The motion judge rejected Fillmore’s argument that the matter should proceed under the CPA. He concluded that “a class proceeding would not Bellan v. Fillmore Riley LLP Freda M. Steel J.A. 707

be the preferable procedure for the fair and efficient resolution of this case.” He stated that: .... Given the nature of the case, a representative action under Queen’s Bench Rule 10.01(1)(f) would be less complicated, more efficient, quicker and cheaper. There would be no need for a number of procedural steps required under The Class Proceedings Act. Notice and opting out have already taken place under the Crocus class action and need not be repeated. Fillmore Riley will not be prejudiced in any way. It will have similar discovery rights and be able to advance any defences it has to the action just as effectively.

Position of the Appellant 13 Fillmore argues that the motion judge erred in two ways. 14 First, it is their position that, as a matter of law, the CPA cannot be circumvented by a party relying on Queen’s Bench Rule 10.01(1)(f). They argue that there is only one way in which class proceedings, such as the present one, can be brought and that is pursuant to the CPA. 15 In support of this argument, they point out that, prior to the passage of the CPA, class proceedings had been governed by Rule 12.01 of the Queen’s Bench Rules. That rule was repealed in its entirety when the CPA came into force. Consequently, it is submitted that in passing the CPA and repealing the former Rule 12.01, the legislature intended that multi-party proceedings (such as the present one) were to be governed by the CPA, including the procedure provided for therein. Rule 10 was not designed, nor should it be interpreted, it is submitted, to give parties the option of deciding how class actions are to be brought and conducted. 16 Alternatively, Fillmore argues that the motion judge erred in the exercise of his discretion in finding that, in the present circumstances, Bel- lan’s action should be brought pursuant to Rule 10. It is submitted that not only did the motion judge err in failing to give effect to the clear intention of the legislation, but he had no basis for his assertion that “a representative action under Queen’s Bench Rule 10.01(1)(f) would be less complicated, more efficient, quicker and cheaper.”

Relevant Statutory Provisions 17 Section 41 of the CPA states: Application of Act 41 This Act does not apply to 708 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

(a) a proceeding that may be brought in a representative capacity under another Act; (b) a proceeding required by law to be brought in a representative capacity; and (c) a representative proceeding commenced before this Act comes into force. 18 The relevant Queen’s Bench Rules read as follows: RULE 10 REPRESENTATION ORDER REPRESENTATION OF AN INTERESTED PERSON Proceedings in which order may be made 10.01(1) In a proceeding concerning, (a) the interpretation of a deed, will, agreement, contract or other instrument, or the interpretation of a statute, order in council, order, rule, regulation, by-law or resolution; (b) the determination of a question arising in the administration of an estate or trust; (c) the approval of a sale, purchase, settlement or other transaction; (d) the approval of an arrangement under section 59 of The Trus- tee Act; (e) the administration of the estate of a deceased person; or (f) any other matter where it appears necessary or desirable; a judge may by order appoint one or more persons to represent any person or class of persons, including; (g) unborn persons; or (h) persons who cannot readily be ascertained, found or served; who have a present, future, contingent or unascertained interest in, or may be affected by, the proceeding. Order binds represented persons 10.01(2) Where an appointment is made under subrule (1), an order in the proceeding is binding upon a person or class so represented, subject to rule 10.03. Settlement affecting persons who are not parties 10.01(3) Where in a proceeding referred to in subrule (1) a settlement is proposed and one or more persons interested in the settlement are not parties to the proceeding, but Bellan v. Fillmore Riley LLP Freda M. Steel J.A. 709

(a) those persons are represented by a person appointed under subrule (1) who assents to the settlement; or (b) there are parties to the proceeding having the same interest who assent to the settlement, the court, if satisfied that, (c) the settlement will benefit the interested persons; and (d) service on the interested persons will cause undue expense or delay; may by order approve the settlement on behalf of those persons. Settlement binding 10.01(4) A settlement approved under subrule (3) binds the interested persons who are not parties, subject to rule 10.03. [emphasis added] 19 For the purposes of this analysis, it is useful to note that the predeces- sors of Rule 10, under the old court rules, were much more restrictive than the current, more liberal version. Rules 59-61 stated: 59. Where the right of an heir-at-law, or of the next of kin, or of a class, or of an unborn person, depends on the construction of an instrument and it is not known or is difficult to ascertain who is such heir-at-law, next of kin, or class, and the court deems it convenient to have the question determined before the heir-at-law, next of kin, or class in question is ascertained, or before the birth of any unborn person, the court may appoint some person to represent the heir-at-law, next of kin, class, or unborn person, and the judgment of the court shall be binding on the person or class or unborn person so represented. 60. The court may appoint some person to represent, for the purposes of any action or proceeding, the interest of any person or class who may not be ascertained, or who may be unborn, and the judgment of the court shall be binding on the person or class so represented. 61. Where in any action or proceeding concerning a trust a compromise is proposed and some of the persons interested in the compromise are not parties to the action or proceeding, but there are other persons in the same interest before the court and assenting to the compromise, the court, if satisfied that the compromise will be for the benefit of the absent persons, and that to require service on them would cause unreasonable expense or delay, may approve the compromise and order that the same shall be binding on the absent per- 710 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

sons; and they shall be bound accordingly, except where the order has been obtained by fraud or non-disclosure of material facts. 20 The former Rule 12.01 was replaced upon the coming into force of the CPA. The current version of Rule 12.01 addresses class proceedings and states: Definition 12.01(1) In this Rule, “Act” means The Class Proceedings Act. Conduct of class proceedings 12.01(2) Class proceedings shall be conducted in accordance with the Act. ...

Decision Must the Action Proceed under the CPA 21 The issue of whether the enactment of the CPA requires all such possible claims to proceed initially under that Act is a question of law that must be reviewed on a standard of correctness. It is a question of statutory interpretation requiring a holistic analysis of the relevant provisions themselves, the CPA as a whole, the relevant cases and commentary. 22 Looking first to an examination of the relevant statutory provisions, I note that s. 41 of the CPA states explicitly that the CPA does not apply to “a proceeding that may be brought in a representative capacity under another Act” (emphasis added). Turning next to Rule 10 of the Queen’s Bench Rules, it states that in a proceeding concerning “any other matter where it appears necessary or desirable a judge may by order appoint one or more persons to represent any person or class of persons” (emphasis added). 23 Fillmore seeks to limit the scope of the rule to “unborn persons” or “persons who cannot readily be ascertained, found or served.” I do not agree. The rule gives these as examples, which are included in the rule, but the rule is not limited to those examples. The rule uses the words any person or class of persons, “including unborn persons; or persons who cannot readily be ascertained, found or served; who have a present, future, contingent or unascertained interest in, or may be affected by, the proceeding” (emphasis added). Bellan v. Fillmore Riley LLP Freda M. Steel J.A. 711

24 In any case, over 36,000 shareholders would qualify as “persons who cannot readily be ... served” under the rule and as persons who “may be affected by, the proceeding.” 25 In addition, s. 4(d) of the CPA requires the court to consider any preferable alternatives to a class action. This has been interpreted to include whether an action pursuant to a representation order may be a better vehicle for a plaintiff’s claims. If a representative proceeding is preferable, the court may exercise its discretion under the CPA to deny class action status, and direct that action be brought pursuant to a representation order. 26 The case of Soldier v. Canada (Attorney General), 2006 MBQB 50 (Man. Q.B.) at para. 68, (2006), 200 Man. R. (2d) 216 (Man. Q.B.), aff’d 2009 MBCA 12, 236 Man. R. (2d) 107 (Man. C.A.), is an example of a case where the court held that a representative action was preferable to a class action. It is true, as Fillmore contends, that one of the bases of decision of the certification judge was that since the plaintiffs were not the proper plaintiffs, there was no cause of action. However, that was held to be an error on appeal. 27 Rather, it was the preferability analysis of the certification judge that was upheld in this court. The certification judge held that a representative action was the preferred procedure in Soldier and that was confirmed by this court, which held “[e]veryone is agreed that the choice is between a class action and a representative action” (at para. 80). 28 A survey of the relevant commentary and other case law supports the argument of Bellan that class actions and representation orders were intended to co-exist. 29 For instance, Todd Archibald, Gordon Killeen, Q.C. & James C. Morton, Ontario Superior Court Practice, 2012 (Markham: LexisNexis Canada Inc., 2011), observe that (at p. 670): .... It [Rule 10] is also used as the “simplified procedure” version of proceedings under r. 12 and the Class Proceedings Act, 1992 (“CPA”), particularly in pension fund disputes where the individual amounts in dispute are small while the issues and interests of a large number of disputants are similar if not identical. Rule 10 is designed to encourage an expeditious means of resolving contentious issues without the cost and expense associated with a class procedure. A number of r. 10 orders have been issued since the advent of the CPA. 712 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

30 Linda S. Abrams & Kevin P. McGuinness, Canadian Civil Procedure Law, 2d ed. (Markham: LexisNexis Inc., 2010), similarly remark that (at para. 4.93, 7.74): Representative proceedings are intended to simplify the process of conducting litigation involving matters that pertain to a dispropor- tionately large number of potential parties. They are intended to provide a means for the expeditious resolution of a dispute without the cost and expense associated with a formal class proceeding, and without a proceeding involving each potentially affected party personally. .... The settlement Representative Order procedure under Rule 10 (which permits the court authority to appoint a person to represent others who may be affected by the proceeding) is sometimes employed as a simplified alternative to a proceeding under the Class Proceedings Act, 1992. Differently stated, Rule 10 is now employed as a supplement to the more formalized process of the C.P.A. .... [emphasis added] 31 Even the authors Michael A. Eizenga, Michael J. Peerless & John E. Callaghan, Class Actions Law and Practice, 2d ed., looseleaf (Markham: LexisNexis Canada Inc., 2009) at para. 3.144 admit that representation orders exist as possible alternatives to proceedings under the CPA. 32 In their civil procedure text, Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario (Markham: LexisNexis Canada Inc., 2010), Justices Perell and Morden write (at 257): .... A representative order under Rule 10 is for situations where parties cannot be readily ascertained, found or served, but the use of the rule has been expanded to provide a simplified approach to the certification procedure under the Class Proceedings Act, 1992. The use of the rule may also be combined with a class proceeding. 33 Canadian court rules regarding representation orders originated in En- gland. See the comments of McLachlin C.J.C. in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 (S.C.C.) at paras. 19-24, [2001] 2 S.C.R. 534 (S.C.C.). Flexibility has always been a hallmark of representative actions. As Megarry J. observed in John v. Rees (1968), [1969] 2 All E.R. 274 (Eng. Ch. Div.) “the rule [as to representative suits] is to be treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice” (at p. 283). In Mani- toba, Rule 10 predates class action legislation and has been unchanged since its passage. Bellan v. Fillmore Riley LLP Freda M. Steel J.A. 713

34 In terms of the case law in Manitoba, as mentioned previously, Sol- dier is a case which is the inverse of the one at bar. In that case, the plaintiffs sought to proceed under the CPA, but the defendant resisted on the basis that the matter had to be brought as a representative action. The certification judge agreed with the argument and that decision was affirmed by this court. However, implicit in both the trial decision and the decision of this court is that the two procedures continue to co-exist. Other courts with similar legislation have come to the same conclusion. 35 The legislation in Saskatchewan is quite similar. In fact, in the case of Fontaine v. Canada (Attorney General) (July 21, 2011), Doc. 816/2005 (Sask. Q.B.), the court concluded that “[t]he remaining objection, that a representation order may not issue where there is class action legislation in force, is not supported by the principles of statutory interpretation or existing jurisprudence” (at para. 20). However, that decision is presently under appeal. (See Sparvier v. Lac La Ronge Indian Band, 2011 SKCA 115 (Sask. C.A. [In Chambers]).) 36 The Federal Court has had an interesting experience that supports the conclusion that the two procedures should co-exist. In 2002, that court enacted class action rules and repealed its representative action regime. In 2007, the court reversed itself and now accommodates both class actions and representative proceedings expressly in its rules. See Soldier v. Canada (Attorney General), 2009 MBCA 12 (Man. C.A.) at paras. 84- 87. And see, for example, Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 FC 517 (F.C.) at paras. 81-89. See also The Hon. Allan Lutfy & Emily McCarthy, “Rule-Making in a Mixed Ju- risdiction: The Federal Court (Canada)” (2010) 49 Sup. Ct. L. Rev. (2d) 313 at 323-28. 37 The situation in Quebec provides a useful contrast with the legislative scheme in force in Manitoba. In Quebec, it would appear that class proceedings and representation orders exist in two separate compartments and are not intended to overlap. However, the legislation is explicit in that regard and makes that clear. Article 1003 of Quebec’s Code of Civil Procedure, R.S.Q., c. C-25, provides that, in order to pursue a class action in Quebec, plaintiffs must show that the application of the regular rules regarding representation orders would be “difficult or impracticable.” The Quebec Court of Appeal has confirmed in Proulx c. Pyzer, [1985] J.Q. No. 607 (Que. C.A.)), that the plaintiff must do more than simply allege that it would be difficult or impracticable. Furthermore, that court has specifically stated that a person does not have a choice 714 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

between recourse to representative proceedings under art. 59 and class actions. 38 It is the cases arising out of Ontario that can provide us with the most useful comparison, even though the wording of Ontario’s Rule 10 is slightly different than Manitoba’s. The first part of the rule is quite similar to Manitoba, but the latter part is arguably more restrictive. In Mani- toba, “a judge may by order appoint one or more persons to represent any person or class of persons ... who have a present, future, contingent or unascertained interest in, ormay be affected by, the proceeding.” In On- tario, Rule 10 only applies when such person(s) “cannot be readily ascertained, found or served.” While Manitoba’s rule may be considered to be applicable in a wider group of situations, this distinction is not relevant in the case at bar since the group in question here is a group who both may be affected by the proceeding and cannot be readily served. 39 The Ontario Court of Appeal’s decision in Potter v. Bank of Canada, 2007 ONCA 234, 85 O.R. (3d) 9 (Ont. C.A.), involved a conflict between class proceedings and representation orders. The appellants wished to bring a class action against the Bank of Canada for unlawfully extracting funds from the pension plan it established for its employees. One of the issues in the case was whether s. 37(a) of the Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6, prevented the action from being brought as a class action because it could have been brought as a representative proceeding under Rule 10. 40 Goudge J.A. stated “[t]he fundamental question is whether s. 37(a) of the Act encompasses actions that may be brought under Rule 10. In my view, it does not” (at para. 36). Instead, he concluded that class proceedings and representation orders were intended to co-exist, and the preferable procedure should be determined on a case-by-case basis (at paras. 37- 40, 43-46). As to the correct interpretation of s. 37(a), he held that “it precludes resort to the Act only where another piece of legislation provides expressly for representative proceedings” (at para. 40). But, fundamental to our case here is the comment that the two procedures co-exist and the decision to adopt one procedure as opposed to another is not a question of law, but rather convenience and preferability depending upon the circumstances of each case. 41 Although the Potter case is the only Ontario appellate decision on point, there are a plethora of other Ontario trial court decisions to the same effect. They all support the premise that the class action legislation Bellan v. Fillmore Riley LLP Freda M. Steel J.A. 715

did not sound the death knell for representation orders under Rule 10; all of the cases accept that there remains some scope for the operation of Rule 10. 42 For example, in the early case of Chippewas of Sarnia Band v. Canada (Attorney General) (1996), 29 O.R. (3d) 549 (Ont. Gen. Div.), certification was sought pursuant to the Class Proceedings Act, 1992, for a dispute relating to treaty land entitlements. However, a representation order was expressly considered as an alternative. 43 Several years later, this issue arose again, in the case of Chiefs of Ontario v. Ontario, [2003] O.J. No. 585 (Ont. S.C.J.). The underlying dispute in that case related to various First Nations’ claims against the government and other entities regarding casino revenues. A representation order was granted, with Campbell J. noting that “it is available as a ‘flexible tool of convenience’ and will in this case avoid many practical difficulties in this case that would otherwise lead to unnecessary incon- venience delay and expense” (at para. 21). 44 Bellan relies on Cullity J.’s decision in Sutherland v. Hudson’s Bay Co. (2005), 74 O.R. (3d) 608 (Ont. S.C.J.), which was another pension case. In that case, the plaintiffs were seeking certification under the Class Proceedings Act, 1992, and the judge raised the possibility of a representation order with respect to certain defendants. Cullity J. held that a representation order was preferable to certification under the Class Proceed- ings Act, 1992, at least with respect to certain defendants. Some of the factors considered in reaching this decision were (at paras. 80-86): • the number and dispersal of these defendants; • the fact that no direct claims were being made against them; • their identity of interests; • the lack of necessity for and inappropriateness of the procedures applicable to class defendants under the Class Proceedings Act, 1992, in the circumstances; • no objections from counsel regarding ability to provide adequate representation; • no indication that certification of defendant class would promote economy, efficiency or expedition (in fact, the opposite was more likely); and • these defendants were unlikely to adduce evidence. 716 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

45 Thus, Cullity J. proceeded under Rule 10, rather than the Class Pro- ceedings Act, 1992, with respect to these defendants. In the case of Paramount Pictures (Canada) Inc. v. Dillon (2006), 29 C.P.C. (6th) 13 (Ont. S.C.J.), when Cullity J. was again called upon to decide whether a pension dispute should proceed under the Class Proceedings Act, 1992, or Rule 10, he decided the matter should proceed by way of class proceeding, but he did consider both alternatives and decided the issue after considering a number of discretionary factors (see para. 38). 46 In Dugal v. Research in Motion Ltd. (2007), 87 O.R. (3d) 721 (Ont. S.C.J. [Commercial List]), shareholders sued Research in Motion Ltd. over certain option-granting and accounting practices. The matter was settled, but in order to implement the settlement, the parties sought and were granted a representation order under Rule 10. As Campbell J. explained (at para. 20): The Rule is described as the “.... ‘simplified procedure’ version of proceeding under the Class Proceedings Act ....” Rule 10 is “designed to encourage an expeditious means of resolving contentious issues without the cost and expense associated with a Rule 12 [Class Proceedings Act, 1992, S.O. 1992, c. 6] order”. As such, a number of Rule 10 orders have been issued since the advent of the Class Pro- ceedings Act. 47 In the case of Berry v. Pulley, 2011 ONSC 1378, 106 O.R. (3d) 123 (Ont. S.C.J.), Perell J. compared and contrasted Rule 10 and the Class Proceedings Act, 1992, as follows (at paras. 55-56): .... Under the Act [Class Proceedings Act, 1992], class proceedings may be brought if the criteria of s. 5 of the Act are satisfied. In contrast, under rule 10.01(1), there is no certification test and representative actions may be brought for six types of proceedings (including the interpretation of instruments and the approval of an arrangement under the Variation of Trusts Act, R.S.O. 1990, c. V.1). In both class proceedings and also in proceedings under Rule 10, the court’s order on the merits will bind the class members represented. In class proceedings, but not proceedings under rule 10.01, a putative class member has an opportunity to opt-out. Under the Act and under Rule 10, the court has the jurisdiction to approve settlements. Pursuant to rule 10.03, the court may relieve a person from the binding effect of an order approving a settlement; however, there is no comparable right under the Act, and settlements approved by the court are binding on class members without a right for them to be relieved from the binding effect of the court’s order. Bellan v. Fillmore Riley LLP Freda M. Steel J.A. 717

The utility of this comparison is that it reveals that representative proceedings in general involve a class member being bound to the outcome notwithstanding that he or she does not fully participate as a party. The comparison also reveals that in representative proceedings under the Act, the Legislature intended that class members would not have the right to be relieved of the binding effect of a settlement approved by the court. The Legislature did not, as it did with representative actions under Rule 10, reserve a right for class members to be relieved of a binding settlement, and this suggests, in turn, that if a class member wishes to have the autonomy to accept his or her own settlement, he or she must opt-out of the class proceeding. 48 See also Nortel Networks Corp., Re (2009), 53 C.B.R. (5th) 196 (Ont. S.C.J. [Commercial List]), and Canwest Global Communications Corp., Re, 2009 CarswellOnt 9398 (Ont. S.C.J. [Commercial List]), both cases where a Rule 10 representation order was sought and granted in the context of Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, proceedings as opposed to proceeding under class action legislation for reasons of cost and efficiency. 49 In sum, this wealth of authority from Ontario confirms that class proceedings and representation orders are alternatives to one another; it is possible that a particular action could be brought under either regime and in each case a procedural preferability analysis will have to be conducted. While the Class Proceedings Act, 1992, offers advantages with respect to notification procedures and opting-out, these rules may sometimes be “overkill” and Rule 10, with its more relaxed procedures, may be more appropriate (see Chippewas of Sarnia Band and Sutherland).

Motion Judge’s Exercise of Discretion 50 The standard of review with respect to the question of preferability was discussed in this court’s decision in Soldier. Although, in that case, the defendant was resisting certification, the appeal was from the judge’s decision that a representation order was the preferable procedure in the circumstances. On that point, I wrote that (at para. 3): The certification judge is entitled to substantial deference in the exercise of her discretion in matters of fact and mixed fact and law. She considered all the facts and gave sufficient weight to all the relevant considerations. I see no palpable and overriding error in her conclusion that a class action is not the preferable procedure in this case and on these facts. .... 718 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

51 Again, this deferential standard of review is confirmed (at para. 66): I agree with the Crown that the certification judge’s decision on preferability is a discretionary decision that ought to be accorded significant deference. As I indicated earlier, while the overall decision of the certification judge is entitled to deference, some courts have pointed out that the decision as to preferable procedure is entitled to special deference because it involves a careful balancing of competing interests. .... Again, as previously mentioned, an appellate court ought not to interfere with the exercise of that discretion with respect to the issue of preferable procedure unless it is persuaded that the judge erred in principle or was clearly wrong. .... 52 In my opinion, a similarly deferential standard of review ought to be applied in the case at bar in respect of the exercise of discretion by the motion judge that a representation order was the preferable procedure. 53 However, with respect to representation orders, the jurisprudence indicates that, in deciding whether to make a representation order under Rule 10, or its equivalent in other provinces, the courts will apply a balance of convenience test. 54 As Abrams & McGuinness explain (at para. 7.74): .... The test for granting a Rule 10 representation order is a simple balance of convenience test. The court must consider the inconve- nience that would be experienced by each party if the order were or were not granted .... 55 The onus is on the party seeking a representation order to prove that the balance of convenience favours the granting of the order. In analyzing the balance of convenience, the judge should consider the inconve- nience that would be experienced by each party if a representation order was or was not granted. 56 A thorough discussion of Rule 10 was undertaken in the case of Police Retirees of Ontario Inc. v. Ontario (Municipal Employees’ Retirement Board) (1997), 35 O.R. (3d) 177 (Ont. Gen. Div.), which involved a pension dispute. Kiteley J. endorsed the following approach (at p. 183): These cases suggest that the test to be applied in considering a request for a representation order is not whether the individual members of the group can be found or ascertained, but rather whether the balance of convenience favours the granting of a representation order instead of individual service upon each member of the group and individual participation in the proceedings. Such an interpretation is Bellan v. Fillmore Riley LLP Freda M. Steel J.A. 719

consistent with the legislative purpose behind this provision, which is designed to encourage an expeditious means of resolving contentious issues without the cost and expense associated with a Rule 12 order. In analyzing the balance of convenience, I must consider the incon- venience which would be experienced by each party if the representation order were or were not granted. .... 57 Some of the factors that have been considered are: the vulnerability of the members of the group; their means (or lack thereof); any social benefit or efficiencies that might accrue from the granting of a representation order; and whether the members of the group have a sufficient common- ality of interest(s) (see Nortel and Canwest). A representation order may not be appropriate where the applicant makes no attempt to describe the essential characteristics of the members of the proposed group or to limit the class being represented to persons that have the same characteristics (see Police Retirees). The representative plaintiff ought to share a com- monality of interest with the proposed group (see Ryan v. Ontario (Municipal Employees Retirement Board) (2006), 29 C.P.C. (6th) 24 (Ont. S.C.J.)). 58 Depending on the facts of each case, it is the job of the court to choose the best vehicle for the litigation. It is up to the discretion of the judge to decide which procedure is preferable because it is less complicated, more efficient, quicker and cheaper, or because the nature of the cause of action asserted requires it. 59 The mechanisms of a class action, such as notice and opting-out, can be slow and costly and take years to resolve, but they are used to ensure that a judgment on the common issues of law and fact are res judicata for all of the aggregated claims. There are, in fact, many personal causes of action heard together in a mass joinder. 60 In the case at bar, a cause of action has already been aggregated, or already entrusted to an individual for the benefit of others. It involves a cause of action which is not “personal” to the plaintiff, but which, by its very nature, can only be asserted on a collective basis. See Jellema v. American Bullion Minerals Ltd., 2010 BCCA 495, 294 B.C.A.C. 261 (B.C. C.A.). 61 In this case, the motion judge who made the order decided the representation order would be more convenient. This judge had also been assigned as the trial judge for the class action and ultimately presided over the settlement proceedings, so he had intimate knowledge of the underlying facts and proceedings. He had affidavit evidence in front of him at 720 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

the motion, which was the source of his evidentiary findings, as well as having just heard the submissions of counsel. He made a finding that no prejudice would result to Fillmore as a result of proceeding by way of representation order. I have not been persuaded otherwise upon appeal. 62 Given his long experience with these matters, the motion judge’s reasons for agreeing that a representation order was more convenient were brief. Nonetheless, the soundness of reasons is not measured by the number of words used. The reasons were to the point and correct. He held that it was “necessary [and] desirable” for this lawsuit to proceed with a representation order pursuant to Rule 10.01(1)(f). Not only was he entitled to exercise his discretion as he did, but I believe he made the correct decision. Fillmore has not shown any error in this exercise of discretion.

Conclusion 63 Both class actions and representation orders co-exist, and both have their own place and their own utility. They are complementary tools having the goal of promoting access to justice in the most efficient and cost- effective manner. The court may select the procedure which is most appropriate for the particular case and circumstances. Indeed, in Suther- land, the Ontario court both certified a class action under the Class Pro- ceedings Act, 1992, and also granted a representative order under Rule 10 of the Ontario rules, recognizing that some aspects of the case were more appropriate for class treatment, and other aspects of the case were better handled by way of a representation order. 64 Not all multi-party proceedings must proceed by way of class action. There are other tools in the judicial toolbox. Such tools not only include a representation order under Rule 10, but also joinder under Rule 5 and consolidation under Rule 6, all of which deal with multi-party proceedings. Class action legislation is only engaged if it is preferable and more efficient than the alternatives. Indeed, class action legislation was passed to enhance access to justice, judicial efficiency and behaviour modification, not to prolong litigation and increase cost. The Supreme Court of Canada has told us that “it is essential ... that courts not take an overly restrictive approach” to class action legislation (Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68 (S.C.C.) at para. 15, [2001] 3 S.C.R. 158 (S.C.C.)). 65 There are two final points I wish to make. The original statement of claim was issued in 2010. Fillmore brought a motion before the Master for an order compelling Bellan to amend his statement of claim to com- Bellan v. Fillmore Riley LLP Freda M. Steel J.A. 721

ply with Queen’s Bench Rule 25.02 and to amend his statement of claim by designating only one law firm as his lawyer, in conformance with the rules. Assisting counsel, rather than primary counsel for Bellan, attended at this motion. That counsel was briefed only on the issues raised by the motion. Bellan’s statement of claim was struck out with leave to refile. There was no mention either in the motion or the order as to the procedure by which the claim would be prosecuted. 66 However, at the hearing of the motion, a discussion took place and assisting counsel for Bellan indicated that the action would be proceeding by way of class action and he would make that clear if the claim had to be refiled. He did so without discussing the matter with lead counsel. The disposition sheet stated, among other things, “s/c to be amended to comply with Rule 25.02 ... eliminate repetition and specifically plead The Class Proceedings Act.” 67 The statement of claim was refiled in 2011 and is essentially identical to the original statement of claim except for the fact that the paragraphs are now in separate, renumbered paragraphs and the addition of para. 34, which states: This action is not a class action brought under the Class Proceedings Act. It is a representative action with the Plaintiff having been appointed in a representative capacity pursuant to the Settlement Order. 68 Mr. Lennox, lead counsel at the motion and on appeal, explained that he had not had an opportunity to discuss with assisting counsel the manner in which the action would be proceeding, and hence the erroneous representation to the Master. 69 Fillmore argued on the motion in front of the motion judge that, as a result of such comments by assisting counsel, this case must now proceed as a class action. The motion judge did not accede to that argument, and neither do I. It is a technical, formalistic argument which is based on an unfortunate lack of communication between counsel for Bellan. 70 Given all that has transpired since that appearance in front of the Master, it cannot be said that Fillmore has been misled or prejudiced in any regard. In fact, it should be noted that the original statement of claim, which Fillmore successfully had struck by the Master (with leave to refile), contained in para. 4 the statement that “Mr. Bellan brings this action as a representative action on behalf of the shareholder class against the Defendants.” The refiled statement of claim contained the same 722 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

words, numbered as para. 4.1, along with the addition of para. 34 mentioned above. 71 Second, the order made by the motion judge does not actually contain a clause appointing Bellan as the representative plaintiff under Rule 10. On this point, see Payne v. Wilson, [2002] O.J. No. 1450 (Ont. S.C.J.), aff’d on other grounds (2002), 162 O.A.C. 48 (Ont. C.A.), where the court made an order nunc pro tunc to remedy the oversight. Since this matter was not raised upon appeal, at this juncture, I will say only that this procedural oversight should be rectified in front of the motion judge. 72 I would dismiss the appeal with costs. Appeal dismissed. Vellacott v. Saskatoon Starphoenix Group Inc. 723

[Indexed as: Vellacott v. Saskatoon Starphoenix Group Inc.] Maurice Vellacott, Plaintiff and Saskatoon Starphoenix Group Inc., Darren Bernhardt and James Parker, Defendants Saskatchewan Court of Queen’s Bench Docket: Saskatoon Q.B.G. 1725/02 2012 SKQB 359 R.W. Danyliuk J. Judgment: August 31, 2012 Torts –––– Defamation — Nature of defamation — What constituting defamatory words — Allegations of misuse of public office –––– Plaintiff was Member of Parliament who had “franking” privileges, whereby he could sign and send mail postage-free via Canada Post — Two new articles were published as result of complaints over plaintiff’s misuse of his“franking” privileges — Plaintiff brought action in damages based on his allegation that defendants defamed him in two newspaper articles — Action dismissed — Issues existed as to whether plaintiff’s use of his “franking” privileges was appropriate, especially in context of leadership race — Overall, both stories complained of were fair, accurate and balanced — Two passages of one article, implying that plaintiff was crook, were considered defamatory — Two articles engaged public interest — No reasonable person would conclude that it was seriously being alleged that plaintiff was criminal — Defendants met all criteria required to establish defence of responsible journalism — Facts of case gave rise to defence of qualified privilege and fair comment — Public had interest both in leadership race on at that time, as well as in whether its elected representatives were spending their allowances properly — Two defamatory passages alleging that plaintiff was crooked were based on actual established facts — Persons could make comments as to crookedness or stealing when they honestly arose from facts set out in article. Torts –––– Defamation — Privilege — Qualified privilege — When qualified privilege arises — Matters of general interest — Reports concerning public figures –––– Plaintiff was Member of Parliament who had “franking” privileges, whereby he could sign and send mail postage-free via Canada Post — Two new articles were published as result of complaints over plaintiff’s misuse of his“franking” privileges — Plaintiff brought action in damages based on his allegation that defendants defamed him in two newspaper articles — Action dismissed — Issues existed as to whether plaintiff’s use of his “franking” privileges was appropriate, especially in context of leadership race — Overall, both stories complained of were fair, accurate and balanced — Two passages of one article, 724 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

implying that plaintiff was crook, were considered defamatory — Two articles engaged public interest — No reasonable person would conclude that it was seriously being alleged that plaintiff was criminal — Defendants met all criteria required to establish defence of responsible journalism — Facts of case gave rise to defence of qualified privilege and fair comment — Public had interest both in leadership race on at that time, as well as in whether its elected representatives were spending their allowances properly — Two defamatory passages alleging that plaintiff was crooked were based on actual established facts — Persons could make comments as to crookedness or stealing when they honestly arose from facts set out in article. Torts –––– Defamation — Fair comment — General principles –––– Plaintiff was Member of Parliament who had “franking” privileges, whereby he could sign and send mail postage-free via Canada Post — Two new articles were published as result of complaints over plaintiff’s misuse of his“franking” privileges — Plaintiff brought action in damages based on his allegation that defendants defamed him in two newspaper articles — Action dismissed — Issues existed as to whether plaintiff’s use of his “franking” privileges was appropriate, especially in context of leadership race — Overall, both stories complained of were fair, accurate and balanced — Two passages of one article, implying that plaintiff was crook, were considered defamatory — Two articles engaged public interest — No reasonable person would conclude that it was seriously being alleged that plaintiff was criminal — Defendants met all criteria required to establish defence of responsible journalism — Facts of case gave rise to defence of qualified privilege and fair comment — Public had interest both in leadership race on at that time, as well as in whether its elected representatives were spending their allowances properly — Two defamatory passages alleging that plaintiff was crooked were based on actual established facts — Persons could make comments as to crookedness or stealing when they honestly arose from facts set out in article. Cases considered by R.W. Danyliuk J.: Adam v. Ward (1917), [1916-17] All E.R. Rep. 157, [1917] A.C. 309 (U.K. H.L.) — considered Ballina Shire Council v. Ringland (1994), 33 N.S.W.L.R. 680, 83 L.G.E.R.A. 115 (New South Wales Sup. Ct.) — considered Clement v. McGuinty (2001), 2001 CarswellOnt 1275, 18 C.P.C. (5th) 267, 143 O.A.C. 328, [2001] O.J. No. 1400 (Ont. C.A.) — referred to Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 106 O.A.C. 279, 38 O.R. (3d) 97, 1998 CarswellOnt 535, 156 D.L.R. (4th) 27, 41 C.C.L.T. (2d) 11, [1998] O.J. No. 510 (Ont. C.A.) — considered Cusson v. Quan (2009), 397 N.R. 94, 314 D.L.R. (4th) 55, 2009 SCC 62, 2009 CarswellOnt 7958, 2009 CarswellOnt 7959, 70 C.C.L.T. (3d) 1, 102 O.R. Vellacott v. Saskatoon Starphoenix Group Inc. 725

(3d) 480 (note), (sub nom. Quan v. Cusson) [2009] 3 S.C.R. 712, 258 O.A.C. 378, [2009] S.C.J. No. 62 (S.C.C.) — considered Gichuru v. Pallai (2012), 2012 CarswellBC 1384, 2012 BCSC 693, [2012] B.C.J. No. 949 (B.C. S.C.) — considered Grant v. Torstar Corp. (2009), 204 C.R.R. (2d) 1, [2009] 3 S.C.R. 640, 397 N.R. 1, 258 O.A.C. 285, 72 C.C.L.T. (3d) 1, 314 D.L.R. (4th) 1, 2009 Cars- wellOnt 7956, 2009 CarswellOnt 7957, 2009 SCC 61, 79 C.P.R. (4th) 407, EYB 2009-167615, [2009] S.J. No. 61, [2009] S.C.J. No. 61 (S.C.C.) — considered Grenier v. Southam Inc. (1997), 1997 CarswellOnt 1892, [1997] O.J. No. 2193 (Ont. C.A.) — referred to Hill v. Church of Scientology of Toronto (1995), 25 C.C.L.T. (2d) 89, 184 N.R. 1, (sub nom. Manning v. Hill) 126 D.L.R. (4th) 129, 24 O.R. (3d) 865 (note), 84 O.A.C. 1, [1995] 2 S.C.R. 1130, 1995 CarswellOnt 396, 1995 Carswell- Ont 534, (sub nom. Hill v. Church of Scientology) 30 C.R.R. (2d) 189, 1995 SCC 67, EYB 1995-68609, [1995] S.C.J. No. 64 (S.C.C.) — considered Lee v. Globe & Mail (The) (2001), 6 C.P.C. (5th) 354, 2001 CarswellOnt 239, 52 O.R. (3d) 652, [2001] O.J. No. 317 (Ont. S.C.J.) — referred to Loos v. Robbins (1987), [1987] 4 W.W.R. 469, 1987 CarswellSask 346, 55 Sask. R. 183, 37 D.L.R. (4th) 418, [1987] S.J. No. 237 (Sask. C.A.) — considered Lund v. Black Press Group Ltd. (2009), 2009 BCSC 937, 2009 CarswellBC 1809, [2009] B.C.J. No. 1374 (B.C. S.C.) — distinguished Milgaard v. Saskatchewan (Minister of Justice) (1996), 1996 CarswellSask 734, [1997] 3 W.W.R. 82, 3 C.P.C. (4th) 279, (sub nom. Milgaard v. Mitchell) 151 Sask. R. 100 (Sask. Q.B.) — considered Myers v. Canadian Broadcasting Corp. (1999), 1999 CarswellOnt 3735, 103 O.T.C. 81, 47 C.C.L.T. (2d) 272, [1999] O.J. No. 4380 (Ont. S.C.J.) — followed Parlett v. Robinson (1986), 37 C.C.L.T. 281, 5 B.C.L.R. (2d) 26, 30 D.L.R. (4th) 247, [1986] 5 W.W.R. 586, 1986 CarswellBC 189, [1986] B.C.J. No. 594 (B.C. C.A.) — considered Puddister v. Wells (2007), 2007 NLCA 25, 2007 CarswellNfld 134, 265 Nfld. & P.E.I.R. 174, 805 A.P.R. 174, [2007] N.J. No. 137 (N.L. C.A.) — followed Reynolds v. Times Newspapers Ltd. (1999), [1999] 3 W.L.R. 1010, [1999] UKHL 45, [2001] 2 A.C. 127, [1999] 4 All E.R. 609, [1999] H.L.J. No. 45 (U.K. H.L.) — referred to Silva v. Toronto Star Newspapers Ltd. (1998), 1998 CarswellOnt 5507, 167 D.L.R. (4th) 554, [1998] O.J. No. 6491 (Ont. Gen. Div.) — referred to Simpson v. Mair (2008), 2008 SCC 40, 80 B.C.L.R. (4th) 1, [2008] 8 W.W.R. 195, 66 C.P.R. (4th) 121, 256 B.C.A.C. 1, 431 W.A.C. 1, (sub nom. WIC Radio Ltd. v. Simpson) 175 C.R.R. (2d) 145, 293 D.L.R. (4th) 513, 376 N.R. 80, [2008] R.R.A. 515, (sub nom. WIC Radio Ltd. v. Simpson) [2008] 2 726 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

S.C.R. 420, 56 C.C.L.T. (3d) 1, 2008 CarswellBC 1311, 2008 CarswellBC 1347, [2008] S.C.J. No. 41 (S.C.C.) — followed Stopforth v. Goyer (1979), 1979 CarswellOnt 670, 97 D.L.R. (3d) 369, 8 C.C.L.T. 172, 23 O.R. (2d) 696, [1979] O.J. No. 4128 (Ont. C.A.) — considered Vander Zalm v. Times Publishers (1980), [1980] 4 W.W.R. 259, 12 C.C.L.T. 81, 18 B.C.L.R. 210, 109 D.L.R. (3d) 531, 1980 CarswellBC 6, [1980] B.C.J. No. 1391 (B.C. C.A.) — referred to 2964376 Canada Inc. v. Bisaillon (2012), 2012 CarswellOnt 6510, 2012 ONSC 3113, [2012] O.J. No. 2348 (Ont. S.C.J.) — considered Tariffs considered: Queen’s Bench Rules, Sask. Q.B. Rules Tariff of Costs, Sched. I “B”, column 4 — referred to

ACTION in damages based on allegation that defendants defamed plaintiff in two newspaper articles.

Daniel N. Tangjerd, for Plaintiff Sean M. Sinclair, for Defendants

R.W. Danyliuk J.: Introduction 1 The cut-and-thrust of politics can be a tough, even vicious, business. Not for the faint of heart, modern politics often means a participant’s actions are examined under a very public microscope, the lenses of which are frequently controlled by the media. While the media has obligations to act responsibly, there is no corresponding legal duty to soothe bruised feelings. 2 The plaintiff seeks damages based on his allegation that the defendants defamed him in two newspaper articles published in the Saskatoon Star-Phoenix newspaper on March 4 and 5, 2002. The defendants state the words complained of were not defamatory and, even if they were, that they have defences to the claim. 3 To better organize this judgment, I have divided it into the following sections: Item Paragraphs Facts 4 - 45 Issues 46 Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 727

Item Paragraphs Analysis 47 - 115 1. Are the words complained of defamatory? 47 - 73 2. Does the defence of responsible journalism avail 74 - 83 the defendants? 3. Does the defence of qualified privilege avail the 84 - 94 defendants? 4. Does the defence of fair comment avail the de- 95 - 112 fendants? 5. Does the defence of consent avail the defendants? 113 6. If liability is found, what is the appropriate quan- 114 tum of damages? 7. What is the appropriate disposition of costs? 115 Conclusion 116 - 117

Facts 4 In defamation actions, there is a need to examine the facts, including the words complained of and their context, in significant detail. 5 The plaintiff is a Member of Parliament representing Saskatoon- Wanuskewin. He was first elected in 1997 and subsequently won federal elections held in 2002, 2004, 2006, 2008 and 2011. The plaintiff is mar- ried with four children, two of whom are independent adults and two of whom still reside at home. The plaintiff’s education and employment background prior to politics were in the religious calling. He obtained several theological degrees and held positions both as a pastoral minister and as an educator in smaller religious colleges. 6 As a Member of Parliament at the relevant time, the plaintiff enjoyed certain privileges regarding creation and dissemination of printed materials. Two are germane here. The first is the “franking” privilege. “Frank- ing” is a process whereby Members of Parliament may sign their mail and send same postage-free via Canada Post. It can be sent anywhere in the country but not outside Canada. As well, mail sent to Members is postage-free if addressed to a recipient on Parliament Hill. Neither the member nor a citizen directly incurs any costs for such correspondence. 7 The second type of communication privilege enjoyed by Members of Parliament is commonly referred to as a “ten percenter”. These consist of photocopied materials which are reproduced in a quantity which cannot 728 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

exceed ten percent of the number of households in the Member’s constituency. Members are allowed to print and mail out an unlimited number of ten percenters in each year. However, the same item cannot be sent out time and again; the rules provide that at least 50 percent of the text content must be different from the other ten percenters sent out in that year. Also, these items can only be distributed within the Member’s constituency. On average, 4000 to 4500 ten percenters are sent with each separate mailing. 8 Obviously, both types of communication carry an actual cost for production and distribution, but there is no direct cost to either the Member of Parliament or the recipient of such correspondence. The exact rules controlling these materials have been altered over the years. To some degree at least, partisanship is not prohibited and is even expected. There were, and perhaps still are, varying opinions as to the extent to which partisan politics may overlap with these mailing privileges. 9 As a member of Parliament, the plaintiff was entitled to these privileges, irrespective of whether he was in government or opposition, or his party affiliation. Originally, the plaintiff was a member of the Reform Party of Canada, which subsequently became the Canadian Alliance. During the relevant time (in 2002), there was a leadership race. Stock- well Day, who had been the leader, declared his candidacy. From his testimony and the exhibits filed, it is abundantly clear the plaintiff was an ardent supporter of Mr. Day. The other candidates were Stephen Harper (ultimately successful), Grant Hill and Diane Ablonczy. 10 During the leadership campaign and in the early months of 2002, the plaintiff sent out three communications under his official Member of Par- liament letterhead. In the context of this legal action, each is worthy of some detailed examination. 11 The first item was sent out January 4, 2002. In his testimony, the plaintiff characterized this as a report on his travel activities. In fact, the document is the plaintiff’s endorsement of Mr. Day as leader and an invitation to a public campaign event. The plaintiff’s travel activities described therein all relate to Mr. Day’s leadership campaign. The correspondence (with emphasis as in the original) reads as follows: Vellacott Endorses Stockwell Day as “Tested, Tried and True” For Immediate Release January 4, 2002 Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 729

Saskatoon — Maurice Vellacott, M.P. for Saskatoon-Wanuskewin will travel to Montreal Monday, January 7th to take part in the launch of Stockwell Day’s Leadership Campaign. On Tuesday, January 8th, Stockwell Day gets the momentum rolling across the country at a stop in St. Catharines, Ontario where he’s expected to address a large enthusiastic crowd. Vellacott will be back in Saskatoon on Wednesday, January 9th, where Stockwell Day will be speaking at a public event at Prairie Harvest House, 702 Circle Drive East. Free coffee and dessert will be served starting at 6:30 p.m. and the formal program revs up at 7 p.m. There is no admission cost. At that event Vellacott will be re-stating his support for Stockwell Day in the leadership campaign. Vellacott says, “All my reasons for supporting Stock first time around still apply except now I have one major additional reason. I have seen his remarkable resilience in the face of adversity. He rebounded. He as a leader and we as the Canadian Alliance Party had a good fall session in the House of Commons setting the agenda in the aftermath of September 11. This man, Stock- well Day, is ‘tested, tried and true!’” 12 The plaintiff testified that while this document was a media release, he also distributed it as a mailout to perhaps 400 or 500 people from his database. This would have included constituents as well as some people outside his riding. This document was sent out under the plaintiff’s “franking” privilege. 13 Another item was sent out bearing the date of January 28, 2002. This was a one-page document with printing on both sides. Page one was on the plaintiff’s parliamentary letterhead and was a letter to the editor of the Saskatoon StarPhoenix regarding an issue of alleged racism regarding a colleague. Printed in large font on the back of that letter was the following (again, emphasis is as in the original): Member of Parliament, Stockwell Day, will be speaking at a public event Tuesday, February 12th at Circle Drive Alliance Church, Prairie Trail Lounge located at Circle Drive South at Preston Ave- nue in Saskatoon. This public breakfast begins at 7:15 a.m. There will be a $5 cost-recovery charge for the breakfast. 14 The plaintiff testified that this letter was originally sent to the newspaper but that the event notice was subsequently printed on the reverse of 730 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

the letter and then distributed to the names on his database. The two items were combined because he felt it convenient to do so. This item was also sent out using the plaintiff’s franking privilege. The plaintiff indicated he was away on February 12, 2002, and did not actually attend this event. 15 The third document was undated but would likely have been sent by the plaintiff between February 23 and 28, 2002, as it refers to the results of a poll regarding the Alliance leadership race, which poll was released on February 23, 2002. This poll placed Mr. Day at the lead of that race. The entire communication is supportive of Mr. Day and is, in essence, campaign literature for him. 16 All three of these documents were sent out to the names on the plaintiff’s database as it existed at that time. All of these documents were sent using the franking privilege, thus the plaintiff incurred no direct costs for sending out communications pertaining to his party’s leadership race. Others involved in politics began to take exception to the plaintiff’s use of these privileges. 17 At some point during these events, the communications attracted the attention of reporters at the defendant newspaper, which received contact and complaints from other members of the Alliance party. Two news articles were published as a result. 18 The first article was published Monday, March 4, 2002. The prior day, the plaintiff received a call from the defendant Darren Bernhardt (“Bernhardt”), a reporter at the defendant newspaper. Bernhardt advised the plaintiff of the potential story, indicating there were some expressions of concern about the plaintiff’s use of his parliamentary privileges for what were, at their core, purely internal party matters. The plaintiff said he replied by advising that he had the franking privilege and that here was nothing improper in the way he had used it. The plaintiff testified he expected there would be an article published but not of the tone and content as that of March 4, 2002. The plaintiff indicated Bernhardt had not asked his permission to print the article; had he, the plaintiff would have refused. 19 Bernhardt’s article of March 4, 2002, appeared below the fold on the first page of the paper that day, with a continuation on the second page. It Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 731 is reproduced in its entirety, as it forms much of the basis for the plaintiff’s defamation claim: Harper camp screams foul over mailouts by Vellacott Several Saskatchewan Canadian Alliance members have accused party MP Maurice Vellacott of violating government privilege by using tax dollars to mail letters of support for CA leadership candidate Stockwell Day around the province. But Vellacott, the CA member for Saskatoon Wanuskewin, says he is within his right and chalks up the complaints to sour grapes by supporters of Stephen Harper, Day’s top rival to become party leader. “There’s certain kinds of politics, I suppose, played throughout the course of a campaign. I think a certain amount of this is what we’d expect to happen,” said Vellacott. “People feel strongly, at a point in time, in respect for a candidate and at the end of the day, whichever way this (leadership race) goes, I think people would respect democracy and be of the view that our real target is the Liberals, not each other.” Party member Tom Ballantyne, who backs Harper, says party politics has nothing to do with it. He says it’s a matter of right and wrong. “It bothers me that he is using the taxpayers’ mailing system to do this. If an MP wants to back an individual and speak on their behalf, OK. But it’s crooked to send that kind of mail by franking,” he said. Franking is a term used for mail sent through the government system on an MP’s expense account regarding constituent business and stamped with the MP’s name. The letters sent by Vellacott are clearly marked as coming from the House of Commons. Arnold Murphy, who works in Prince Albert CA MP Brian Fitzpat- rick’s office, has received a handful of complaints about the mailings and explained that the MPs must be careful about what is in the letters. “It can question things, criticize the government and raise various issues but it can’t be a campaign for someone,” he said. Fitzpatrick, who is not supporting Day, is trying to stay away from the issue, but is aware of it. “Let (Vellacott) make a contribution to Day out of his own pocket, not ours,” said Ballantyne, who has received two letters as has Alice Fyfe, who lives in Nipawin. “I’m just an ordinary citizen but I’m very perturbed when I see things like this. I’m raising the issue because it is my duty to do that as a citizen of this country,” said Fyfe. “Those people are put in office to 732 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

do a job for us, not to steal from us. These people (Day supporters) are trying to with this race on the basis of Christianity, but I see shades of Jim and Tammy Faye Bakker here.” TV evangelist Jim Bakker lost his lucrative ministry and his wife after being convicted of bilking followers out of $158 million. If Vellacott’s mailouts were aimed at the entire CA membership base of 1,700 in the province — and done more than once — the cost could be tremendous, said an Alliance member who is working on Harper’s campaign and didn’t want his name used. “We’re certainly talking thousands of dollars,” he said, noting that Battlefords-Lloydminster CA MP Gerry Ritz is also behind Day but has been campaigning on his behalf with personal letters sent in his own envelopes with his own stamp. “Gerry is a gentleman about this stuff,” he said. “That’s the way that it should be done. Maurice is well aware he is wrong but he is able to get away with it because most decent people don’t want to get involved. “I was going to leave this until after the election but I can’t,” he said, adding he is aware the issue could taint the party image “but I just don’t think we should bury this.” Vellacott said he sent letters to members, non-members and business- people and was commenting on political issues. One letter, obtained by The StarPhoenix, is in response to a Global TV/National Post survey released on Feb. 23. The poll showed Stockwell Day’s support at 34 per cent and Harper’s at 22 per cent among Alliance voters. Vellacott suggests in the letter that the margin of difference is greater in Saskatchewan. He praises Day’s “impressive record” while in the Alberta government and says the “adjustment” to federal politics that gave Day some trouble is now past. “He is a solution-oriented kind of guy” and “most suited for the government side,” Vellacott states in the letter. “He’ll really shine when we’re on the government side (in the House of Commons) and that’s eventually where we intend to be.” In an interview, Vellacott insisted he was “within the House of Com- mons boundaries” in mailing the letter. “I don’t think it’s any particular secret that, for months now, I’ve been in support of Stockwell Day,” he said. “I do frank mailouts throughout the course of the year and I have a fairly extensive database. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 733

“All through the time that I’ve been an MP, you do stuff on all kinds of issues and some of it is obviously more of a partisan nature. “It’s kind of indicating party policy, promoting the leader, what you’re doing as an individual MP, an [sic] so on.” 20 The plaintiff stated he was bothered by this article. He testified that it upset not only himself, but his wife and family members. He took exception to the characterization of being crooked or wrong. He said that when he read the article, it “felt like a swift kick to the gut”. He stated that as a politician, educator and clergyman, his integrity was of vital importance to him, both personally and in terms of his career. 21 A second article appeared in the StarPhoenix on Tuesday, May 5, 2002. This one was by James Parker (“Parker”), at that time a reporter employed by the newspaper. This article appeared at page A4, and reads as follows: Sask. MPs join attack on Vellacott mailouts ❏Ex-parliamentary worker says all parties routinely violate mailing privileges...... Canadian Alliance MP Maurice Vellacott is inviting a backlash from voters by abusing his communications privileges while campaigning for Alliance leadership candidate Stockwell Day, say other Saskatch- ewan MPs. “As parliamentarians, we have to be very judicious about how we use this,” New Democrat Dick Proctor said Monday. “This is a great privilege awarded to elected members, to be in touch with your constituents and in some cases people who aren’t your constituents. If we aren’t careful how we use it, there will demands for restrictions on how we use it. “What Maurice has done doesn’t pass the smell test.” New Democrat Lorne Nystrom and former Alliance MP Jim Pankiw, now a member of a parliamentary coalition headed by Progressive Conservative Leader Joe Clark, said Vellacott seems to have broken the spirit of the regulations governing MP communications. Supporters of Alliance leadership hopeful Stephen Harper have complained about Vellacott’s mailouts, some of which have been distributed to voters throughout the province. Recently, the MP for Wanuskewin sent out a letter detailing his response to a Global TV/National Post survey released Feb. 23 which 734 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

showed Day was leading the leadership race with 34 per cent support among Alliance members. The mailout, printed with House of Commons letterhead, praised Day’s abilities and endorsed the expulsion of MPs from the Alliance caucus who “treacherously backstabbed the leader and tried to hijack the party and steal it from the members.” On at least two occasions, Vellacott has used his parliamentary expense account to print letters inviting people to hear Day speak. Vellacott did not return phone calls Monday. On Sunday, he told The StarPhoenix the letter on the poll was “within the House of Com- mons boundaries.” He said he has sent letters on “political issues” to party members, non-members and business people. Eric Duhaime, a spokesperson for Day, said Harper supporters such as Alberta MP Bob Mills have also used their communications allowance to campaign for their candidate. “That’s another issue,” Duhaime said when asked if he thought it was appropriate. MPs are allowed to send out four newsletters a year to all their constituents. They can also send an unlimited number of mailouts to the number of households equivalent to 10 per cent of their constituency population. The so-called “10 per centers” can be mailed anywhere in Canada. The House of Commons’ board of internal economy is responsible for enforcing rules governing the use of communications expenses. The two main rules are that MPs should not use their mailouts to fund-raise for their party or sell party memberships, said a government official, who stressed the letters should deal with parliamentary business. The Alliance leadership race is a one-member, one-vote affair. Day and the other candidates are selling memberships at their public events. “It’s a fuzzy, foggy line,” said Nystrom, who represents Regina Qu’Appelle. “He’s not asking them to buy a membership,” he said. “But he’s inviting them to a meeting where they will be asked to buy a membership.” Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 735

Nystrom said it’s clear the mailouts discuss the internal business of the Alliance, not a broader public policy question such as bank mergers. Richard Truscott, provincial director of the Canadian Taxpayers Fed- eration, said MPs of all parties routinely abuse their communication privileges. “When I worked on Parliament Hill (from 1993 to 1997), every MP was sending either householders or 10 per centers into neighbouring constituencies on various issues often coloured with partisan rhetoric,” Truscott said. “The bottom line is they shouldn’t be using this for partisan purposes.” 22 In his testimony, the plaintiff was adamant that he did not violate the rules as they existed in 2002. He stated the rules contemplated partisan communications. He indicated he felt that as the leadership race in question would determine the leader of the Opposition who would, in turn, influence the Opposition’s position on matters in the House, therefore this was a matter of broader concern than just for Alliance members. The plaintiff clearly did not, and does not, believe his conduct to be an abuse of his parliamentary privileges as they then existed. The plaintiff dis- avowed any knowledge whatsoever of any practical “smell test” or of the concept of violating the spirit, if not the letter, of these rules. He felt the second article was also unfair and defamatory. 23 After these articles were published, the plaintiff wrote to the Board of Internal Economy on April 11, 2002, to see if he was offside. In his examination-in-chief, a letter of reply was tendered from the Board dated April 30, 2002. That very short letter indicated he did not violate the rules. However, it was not until cross-examination that the Court learned of a second letter received by the plaintiff, from the same author, dated May 2, 2002. The chair of the Board of Internal Economy, Speaker of the House Peter Milliken, advised the plaintiff as follows: On April 11, 2002, you wrote to the Board requesting an opinion of the By-laws governing the use of franking and postal privileges. As I wrote you previously, the Board considered your request at [sic] and agreed that you had not violated the By-laws as written. How- ever, the Board was of the opinion that the printed matter you submitted was close to the edge of what may be acceptable, although as stated, the Board agreed that you had not infringed the By-laws as they presently exist. 736 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

The questions raised in your letter provoked interesting discussion as to the whole issue of parliamentary functions and partisan activity and were of sufficient interest that a sub-committee of the Board has been established to study the By-laws relating to this matter in the hopes of providing greater clarity to all Members of Parliament. On behalf of the Board, I want to thank you for bringing this matter to our attention. [Emphasis in original] 24 In fact, evidence tendered during this trial disclosed that these rules have now been changed and, presently, it is highly doubtful that Mr. Vel- lacott could issue the same type of communications and engage his franking privileges. 25 The plaintiff noted that in 2004 his plurality in the election had dip- ped slightly. On cross-examination, it was demonstrated that in each suc- cessive election the plaintiff’s percentage of the votes cast actually increased: • 2004 — 46.64 percent; • 2006 — 49.38 percent; • 2008 — 56.50 percent; and • 2011 — 58.40 percent. 26 The plaintiff remained steadfast in his view that there was “no cost” to anyone (including taxpayers) in sending out these franked envelopes, as opposed to “no cost to him”. 27 Four witnesses testified for the defence, one expert and three from the newspaper. Darren Bernhardt testified. He obtained his B.A. in 1995, and his B.A. (Journalism) in 1997. He worked as a Saskatoon StarPhoenix reporter from 1997 to 2008. Politics was not his “regular beat” in 2002, but he was on duty the first weekend in March and was assigned this story by one of the editors, a typical occurrence. 28 Bernhardt was the author of the March 4, 2002, article. When asked what the actual “story” or focus was in the article, he stated it concerned internal strife within the Canadian Alliance party due to the merger and leadership race. Additionally, the focus of the story was not whether the plaintiff had broken the law or any rules of the House of Commons. It was a “reactionary story”, given the strong feelings expressed by some members of the Alliance to what the plaintiff had done. There had been a complaint or comment from one person to the newspaper, which is what Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 737

drew attention to the issue. This was not a story initiated by the StarPhoenix or Bernhardt. 29 Bernhardt conducted several interviews for the story, all via telephone. As others were criticizing the plaintiff, Bernhardt called him out of what he termed “a sense of fairness” and “balance to the story”. He could not specifically recall the discussion but believed he would have followed his standard practice of outlining the tenor of the story and reading quotes from other people to the plaintiff and seeking the plaintiff’s reaction to same. He confirmed all quotes in his article were accurate. All interviews were done on Sunday, March 3, 2002. Although he could not now locate same, he took notes during the interviews and used them to prepare his article for publication. 30 Bernhardt testified, as did the other two StarPhoenix witnesses, that he was not aware of any corporate agenda to “get” the plaintiff nor did he harbour any such personal agenda. There was no benefit in this for him or for the newspaper. He wrote the story because it was assigned to him and because, as it developed, it was clear there was significant conflict within the party, which was “news”. 31 On cross-examination, Bernhardt said there was nothing unusual about the story assignment. This was a story about a federal political party, and the plaintiff was a high-profile figure within Saskatoon and area. It was not a story about the rules regarding franking, so he did no research in that regard. 32 He was questioned about the quote from Ms. Fyfe regarding the Bak- kers and his explanatory paragraph. Bernhardt confirmed the Fyfe quote was accurate and indicated his view was this demonstrated how heated matters were getting within the party. While there was no direct connection between the Bakkers and the plaintiff, Bernhardt pointed out it is not his opinion that was the focus of the article. The following paragraph in the story was inserted by way of explanation and information. He again indicated the plaintiff would have had an opportunity to respond to all these direct quotes. While there was no urgency to get the story out, he felt it was completed and tendered it to the editorial desk for publication. He also confirmed that someone other than the reporter writes the headlines and chooses the photos. 33 James Parker also testified. He was with the StarPhoenix from 1988 to 2003. He had obtained his B.A. in Management and Economics from Guelph University in 1984, and his journalism/communications degree 738 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

from University of Regina in 1988. Parker was the author of the March 5, 2002, news story. His beat was politics, so this was squarely within his mandate at the newspaper. 34 Parker saw the focus of his follow-up story as being different. His view was that issues existed as to whether the plaintiff’s use of his franking privileges was appropriate, especially in the context of a leadership race. There had already been articles concerning franking. He felt this was newsworthy and in the public interest to report. He, therefore, spoke with several MPs and other party officials about the plaintiff’s use of the privilege, obtaining several opinions. Parker also telephoned the plaintiff at his office but was unable to reach him. He said he wanted to be fair and give the plaintiff an opportunity to comment. 35 As his focus was different and centred on the appropriateness of the plaintiff’s use of his privilege, Parker did contact the Board of Internal Inquiry in Ottawa to obtain information about the rules. He also noted that he specifically contacted a Day supporter to elicit reaction. Nothing in the story reflected his personal opinion. 36 Like Bernhardt, Parker swore he had no personal vendetta against the plaintiff nor was he aware of any StarPhoenix policy to attempt to “smear” the plaintiff. He was just reporting news. 37 On cross-examination, plaintiff’s counsel went through Parker’s testimony, and Parker confirmed matters to which he had already testified. It was suggested to him that Parker’s conversation with MP Lorne Nystrom contained an invitation to the latter to raise the matter in the House of Commons; this was denied by Parker. He pointed out that by the time he spoke with Nystrom, he already knew the matter was governed by the Board of Internal Economy and was not a House matter, so there would have been no reason for him to suggest anything of the sort to Mr. Nys- trom. The plaintiff did not call Mr. Nystrom as part of his case. 38 Steven Gibb testified for the defendants. He was with the StarPhoenix for 35 years, from 1975 to 2010, and ended his tenure as editor-in-chief for the last 17 years. He was responsible for the overall news operation. He described how news stories went from concept to completion, citing a variety of sources for the genesis of any particular story. He confirmed that it was quite common for related stories to have two or more reporters. He confirmed neither the newspaper nor he personally had any vendetta with the plaintiff nor was there any policy to pursue or persecute any individual. He corroborated the testimony of the two reporters. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 739

39 Finally for the defendants was Patricia Bell, who, by consent, was qualified as an expert witness and allowed to provide her opinion testimony on best practices for journalists and news reporting agencies, and what constitutes “news” in the news reporting industry. Ms. Bell teaches journalism at the University of Regina and has since 1999. She taught at Carleton University as well. She has taught and still lectures in the area of rights and ethical responsibilities of journalists. She obtained her Bachelor of Arts in Journalism in 1963 from the University of Western Ontario. She has significant experience in the industry, much of it with the Globe & Mail and Ottawa Citizen newspapers. She has reported on education, health and international affairs. She has reported from India. She covered controversial and emotionally-charged stories such as abortion protests on Parliament Hill. 40 Ms. Bell testified that while there are many definitions of “news”, news includes three concepts: (a) News should be timely. It should generally relate to something that is happening now, or has recently discovered to have occurred in the past. The concept of timeliness has changed and is faster now than it used to be in the industry, given the 24-hour news cycle. (b) News should be important. In her words, “it should matter”. A reporter or editor must ask “why is this story important?” The story should touch people. (c) News should be interesting. It should be more than a flat factual recitation. It should relate something out of the ordinary. Often, a reporter must write with a particular reader or audience in mind. 41 With respect to the two articles in issue in this action, Ms. Bell defined them as news. A reader would likely think them news, in her professional opinion. They were timely. The leadership race in a federal party that was appearing to gain in support and momentum was important. The fact there was strife within the party within the context of its leadership race was important and newsworthy. The fact that elected MPs and taxpayers’ funds were at issue made the story important and newsworthy as well as interesting to a large number of people. Both stories, with their different emphases, were news and were worth printing in her view. 42 Ms. Bell also testified as to best practices in gathering and writing news stories. She analyzed both Bernhardt’s and Parker’s articles. In 740 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

general, reporters and editors follow best practices when they ensure their news articles: (a) contain information about something that is happening now, something that until now has not been known or reported; (b) are of interest to readers of this particular newspaper. As a rule, local stories should be given precedence; (c) always, except under very rare circumstances, have more than one source so that the story does not rely upon a single perspective. These sources should be identified and have a legitimate place in the news story; (d) are verified, balanced and complete as possible given restraints of deadlines; (e) are presented in a clear, unbiased manner with sufficient facts, details and explanations to allow readers to draw their own conclusions; (f) are written in a tone appropriate to the subject-matter; (g) include, within the original story, the response of any person who is the subject of accusations or criticisms, either express or implied. Where there are accusations or implied criticisms of any person or institution, there must always be a rigorous attempt to obtain a response before publication, and the response should be included in the original story. 43 Ms. Bell then applied these criteria to the two news stories in issue. In each case, her opinion was that the StarPhoenix reporters and editors complied with best journalistic practices. The following summarizes her views: (a) These stories were “news”. The events were in the midst of the leadership race. She felt it important to note that the “news peg” for the stories was not whether the plaintiff misused his franking privilege; rather, it was that some members of the Alliance were voicing objections to the use of franking privileges to support one internal candidate over another. She noted this could have remained a purely internal issue but for a member drawing it to the attention of the newspaper. With the second story the “news peg” was widened to more generally raise the appropriateness of this use of communication privileges, and other Saskatchewan MPs and taxpayers were brought into the debate. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 741

(b) Both stories were of interest to StarPhoenix readers. Many would have received the letters in question; others are members of the party, on either side of the leadership race; non-members were taxpayers and interested in the use of this allowance; the plaintiff was a high-profile local MP. The first story raised the manner in which such allowances were used for internal party purposes. The second story picks up on readers’ curiosity as to how they are used and whether this is appropriate. The second article is very much a broadening of the first in her view. (c) Multiple sources were used in each story to an appropriate degree. In all but one case, the individuals were identified. One was delib- erately anonymous in the first story, which Ms. Bell says could only have occurred with editorial approval. However, that person was identified as a Harper supporter, thus a reader could analyse his/her remarks in that context, rather than taking same as an objective opinion on the issue of permissible uses of franking. The second story used multiple and diverse sources appropriately; there is a reason for each person quoted to be in the article. (d) The stories were balanced. The stories reflect the reporters’ efforts to contact a variety of sources. The first article shows that there is, geographically, widespread concern about this amongst Saskatch- ewan’s Harper supporters. The second story reflects Parker’s efforts to reach as many people as possible, from different parties and even an official from the Board of Internal Economy. (e) Both stories are clear and unbiased, with conclusions to be drawn left to the reader. While there was criticism contained in the first story, it was balanced for readers. Significant space is given to the plaintiff’s explanation (9 of 23 paragraphs, about 35 percnet). It is criticism from the interviewees, rather than the newspaper, which is presented. The reporter used one paragraph to explain “franking” and another to explain the Fyfe reference to the Bakkers. Ms. Bell saw neither of these as problematic, as they were factual. The Parker article also cited numerous sources but included more explanation detailing some of the rules regarding use of such privileges. He directly quoted from a mailout sent by the plaintiff. (f) The tone of the stories was even and reflected the content and issues appropriately. It is clear opinions expressed are from third parties, not the reporters. When quoting others, the writers use the 742 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

neutral word “said” rather than any language implying overly ex- cited speakers. The language used allows readers to judge matters for themselves. In the first story, the accusations from other Alli- ance members are outlined, then the plaintiff’s response is presented immediately after, which is appropriate and balanced. The structure shows these opinions are held by others and leaves it to the reader to judge who, if anyone, is correct. While some comments in both stories are strongly critical, both articles retained the proper overall tone to allow readers to reach their own conclusions. Even Ms. Fyfe’s comment, which is somewhat extreme, said more about her and her views than about the plaintiff in Ms. Bell’s view. (g) The plaintiff’s response was sought for both stories. In the first, it was obtained and given prominence. Efforts were made by Parker to contact the plaintiff, unsuccessfully. It was appropriate that readers be informed of such efforts and that the comments from the first article be reiterated. This ensured readers who had not seen the first story would know what the plaintiff’s response to same had been and would serve as a reminder to those that had read the first story that this was what he had said. A fresh reply is better but, when not available, referring back one day is a valid, acceptable and common practice. 44 Ms. Bell noted that news judgment is “a combination of careful observation, listening skills and critical thinking in order to bring clear, complete reports to readers”. As a politician, the plaintiff could expect to be more “newsworthy” than other individuals. How he spends taxpayers’ money becomes a matter of public interest, and when controversy arises over this spending, there is an obligation for the newspaper to investigate and report. With this dispute between the Day and Harper camps happening in the midst of the Alliance leadership race, this story could not be ignored by any of the defendants in her view. 45 Her conclusion was that all of this was properly done and that the defendants used best practices and maintained journalistic standards regarding both articles.

Issues 46 The issues are: 1. Are the words complained of defamatory? Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 743

2. Does the defence of responsible journalism avail the defendants? 3. Does the defence of qualified privilege avail the defendants? 4. Does the defence of fair comment avail the defendants? 5. Does the defence of consent avail the defendants? 6. If liability is found, what is the appropriate quantum of damages? 7. What is the appropriate disposition of costs?

Analysis 1. Are the words complained of defamatory? • Background 47 “Defamation” is a legal term, a term of art. While one might believe certain words to be defamatory, they are not so unless the legal test for such categorization has been met. Rhetoric, harsh words, unflattering, and even insulting, language — all may result in damaged feelings, but not all are necessarily defamatory, such that an analysis of liability and applicable defences is engaged. 48 Public figures, such as politicians, bear many burdens. One is that they are subject to criticism, castigation and insults, some even made in bad taste or replete with vulgarity. Still, the law has long held that not all such statements are defamatory, particularly with respect to those holding public office. A public official can expect that his or her public conduct will be subject to searching criticism. But the legal test must still be applied to determine whether a publication is “searching criticism” or defamation: Vander Zalm v. Times Publishers (1980), 109 D.L.R. (3d) 531, [1980] 4 W.W.R. 259 (B.C. C.A.); Lund v. Black Press Group Ltd., 2009 BCSC 937, [2009] B.C.J. No. 1374 (B.C. S.C.). 49 The determination of this test is important as a threshold issue. The plaintiff has the onus of showing defamatory language has been used. If so, then the onus shifts to the defendants to assert defences which would justify the use of that language. In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 (S.C.C.), Chief Justice McLachlin held at paragraphs 28 and 29: 28 A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were 744 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism .... The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. 29 If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability. 50 There is no argument from these defendants about the last two elements. Clearly the words in both articles referred to Mr. Vellacott, and the words were published in the Saskatoon StarPhoenix. The defendants do take issue with the first element.

• Positions of the parties 51 The plaintiff argues that several passages in both articles (discussed below) amount to defamation. Although not particularized in the pleadings, plaintiff’s counsel itemized his concerns during final argument. The plaintiff relies on the literal meaning of the words contained in some of the passages and on an inferential meaning flowing from that ordinary meaning. Innuendo is not relied on. The plaintiff submits that these individual comments must be read in conjunction with, and in the context of, a broader impression left by these two news articles. He states they were calculated to capture the public’s attention through the use of headlines, photographs and content. 52 The defendants argue the test is not so simple and that an objective “reasonable person” overlay is superimposed on the classic three-prong test. With respect to the articles themselves, the defendants’ approach is twofold. 53 First, they argue that the articles do not contain any false statements of defamatory fact. Rather, they quote various persons who opine as to whether the plaintiff’s use of his franking privilege for these purposes was proper. The articles offer no editorial opinion on this point. The plaintiff overstates what might be inferred from the articles as such words are normal rhetoric during a political leadership campaign. 54 Second, the plaintiff argues the articles did not have the effect of low- ering readers’ opinion of the plaintiff. As a politician, the plaintiff will frequently be subject to public scrutiny and criticism, which does not amount to defamation. It is argued the public should be taken to be aware that one’s political opponents may use harsh and accusatory language. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 745

• The law 55 The basic test set out above, as repeated in Grant v. Torstar Corp., remains the law in Canada. The standard for whether particular words are defamatory has also been judicially considered and adds complexity to the analysis. 56 In Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 156 D.L.R. (4th) 27, 38 O.R. (3d) 97 (Ont. C.A.), the Ontario Court of Appeal stated at paragraphs 14 and 15: 14 . . . A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or dis- esteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one ... [cites omitted] 15 The standard of what constitutes a reasonable or ordinary member of the public is difficult to articulate. It should not be so low as to stifle free expression unduly, nor so high as to imperil the ability to protect the integrity of a person’s reputation. The impressions about the content of any broadcast — or written statement — should be assessed from the perspective of someone reasonable, that is, a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to viewers. 57 Further, the Court indicated that a court is to resist or avoid placing the worst possible meaning on the words used and, instead, is to use the meaning that reasonable and right-thinking people would use. 58 Lund v. Black Press Group Ltd., supra, provides some insight into the test per Bracken J. at paragraph 114: 114 The law of defamation requires that it is not sufficient that the publications complained of contained derogatory words or expressions. The finding of a derogatory imputation is not an end of the matter; it must have been such as to adversely affect the reputation of the plaintiff. [cite omitted] 746 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

59 The impugned passages of the articles, taken in their context, must be measured to determine whether they meet the above test.

• The allegedly defamatory words 60 In the first news story, the plaintiff summarized his position on the specific impugned passages as follows: (a) Party member Tom Ballantyne, who backs Harper, says party politics has nothing to do with it. He says it’s a matter of right and wrong. “It bothers me that he is using the taxpayers’ mailing system to do this. If an MP wants to back an individual and speak on their behalf, OK. But it’s crooked to send that kind of mail by franking,” he said. The plaintiff relied upon the plain and literal meaning of these words. The plaintiff termed this language “volatile”. In particular, the use of the word “crooked” to describe the plaintiff’s conduct was said to be defamatory. (b) “Let (Vellacott) make a contribution to Day out of his own pocket, not ours,” said Ballantyne. The plaintiff relied on the inferential meaning of these words. He said the passage implies some diversion of funds by the plaintiff that is inappropriate or, when read with the preceding passage, that the plaintiff’s conduct was “crooked”. (c) “I’m just an ordinary citizen but I’m very perturbed when I see things like this. I’m raising the issue because it is my duty to do that as a citizen of this country,” said Fyfe. “Those people are put in office to do a job for us, not to steal from us. These people (Day supporters) are trying to win this race on the basis of Christianity, but I see shades of Jim and Tammy Faye Bakker here.” There are two aspects to the plaintiff’s complaint here. First, reading the plain language, an ordinary reader would understand that it was being said that the plaintiff was stealing from the people of Canada. Further, it leaves the impression of an individual being Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 747

grudgingly drawn into the battle out of a sense of civic duty so as to deal with issues of fraud or diversion of funds. (d) TV evangelist Jim Bakker lost his lucrative ministry and his wife after being convicted of bilking followers out of $158 million. The plaintiff complained that of all the things Bernhardt could have expanded upon by way of explanation or background, the Fyfe comment was the least worthy. It was sensationalism. While not directly accusing the plaintiff of theft, this comment provokes an ordinary reader to draw that inference, the plaintiff says. (e) If Vellacott’s mailouts were aimed at the entire CA membership base of 1,700 in the province — and done more than once — the cost could be tremendous, said an Alliance member who is working on Harper’s campaign and didn’t want his name used. The plaintiff links this comment to the last and argues it creates an inferential defamation against him. The plaintiff says this comment creates a context of misuse of funds within which the other impugned passages would be read. (f) “We’re certainly talking thousands of dollars,” he said, noting that Battlefords-Lloydminster CA MP Gerry Ritz is also behind Day but has been campaigning on his behalf with personal letters sent in his own envelopes with his own stamp. The plaintiff contends that this creates an inference which an ordinary reader would draw, that is, that the plaintiff’s expenditure of funds was somehow wrongful. It refers to the fact that a significant amount of public money would have been spent. The subsequent reference to Gerry Ritz’s mode of spending being “proper” connotes that the plaintiff’s was somehow improper. (g) “Gerry is a gentleman about this stuff,” he said. “That’s the way that it should be done. Maurice is well aware he is wrong but he is able to get away with it because most decent people don’t want to get involved. 748 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

“I was going to leave this until after the election but I can’t,” he said, adding he is aware the issue could taint the party image “but I just don’t think we should bury this.” During testimony the plaintiff explained his understanding that Mr. Ritz was operating in a different capacity and therefore under a different set of rules. This, the plaintiff says, is innuendo. The comments give the impression that the speaker is a courageous individual being grudgingly dragged into a conflict he would rather not take part in, but doing so out of a compelling sense of moral duty to express outrage at this conduct. Further, the use of the plaintiff’s first name suggests the speaker is “in the know”. 61 The second article, by James Parker, was admitted to be more balanced but was still a continuation of the defamation when a literal reading of four passages is considered: (a) Canadian Alliance MP Maurice Vellacott is inviting a backlash from voters by abusing his communications privileges while campaigning for Alliance leadership candidate Stock- well Day, say other Saskatchewan MPs. While not attributed, the statement purports to emanate from other member(s) of Parliament. As well, the use of the word “abusing”, while not as strong as “crooked” or “wrong”, still connotes improper conduct on the part of the plaintiff. It reinforces the bad impression already made by the previous article. (b) Dick Proctor’s quote: “What Maurice has done doesn’t pass the smell test.” Plaintiff’s counsel stated, “This creates a visualization of something quite odorous, something quite improper, something foul.” (c) New Democrat Lorne Nystrom and former Alliance MP Jim Pankiw, now a member of a parliamentary coalition headed by Progressive Conservative Leader Joe Clark, said Vellacott seems to have broken the spirit of the regulations governing MP communications. The plaintiff admitted this is the most moderate of the comments, although still inaccurate. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 749

(d) Richard Truscott’s quote: “The bottom line is they shouldn’t be using this for partisan purposes.” Again, this is not accurate and demonstrates a lack of understanding of the rules then in force, according to the plaintiff. It states as a matter of fact what is really a matter of the speaker’s opinion. 62 The plaintiff emphasized that the articles must be read together to discern that a broader impression is being left with readers. Newspapers know this, says the plaintiff, and the articles must be looked at as a whole in that they target the plaintiff in a way that is far from complimentary. The fact that his photograph was published shows he was a particular target of the newspaper. 63 Plaintiff’s counsel further submitted that a newspaper has an obligation to know the makeup of its readership, in terms of intelligence, understanding and capacity, and publish its articles accordingly. No authority was cited to support this proposition.

• Analysis of the words complained of 64 First, it must be noted that both articles were “news” within the definition presented by the expert witness and as discussed in the case law. I have no doubt as to the defendants’ motives for publishing on these matters. Overall, both stories were fair, accurate and balanced. I find that in the first article, that written by Bernhardt, there are only two passages that could be defamatory. The rest, while strong and even harsh criticism, all fall within legitimate criticism of the plaintiff’s actions in the political arena during a period of controversy within his party. See Lund, supra, paragraphs 118 and 123. 65 The passages quoting Mr. Ballantyne and Ms. Fyfe are troublesome. Ballantyne uses the word “crooked”; Fyfe’s comment suggests the plaintiff is an MP who is stealing from the people. These two passages are, in my view, defamatory. The ordinary, reasonably informed person reading same would tend to think less of Mr. Vellacott. Had Ballantyne’s comment been limited to suggesting the plaintiff was “wrong”, it would not have crossed the line. The comments, as made, suggest criminality on the plaintiff’s part. 66 The defendants contend that cases such as Lund should still apply. With respect, there is a distinction that is clear from the language used in Lund itself. In that case a public official was criticized over his role in a zoning dispute. Statements were made, inter alia, alleging that plaintiff 750 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

was acting in his own interest rather than the public’s, that he was trying to consolidate his personal power, that he was a dictator, that he had not been totally honest and forthright during an election campaign, and that he was rigging the voting procedure regarding zoning decisions. Those statements were found not to be defamatory. It is acceptable to bring criticism of the conduct of public officials. 67 However, in Lund it was clear from the evidence that none of the impugned statements suggested that plaintiff acted out of monetary interest or was guilty of any moral fault (Lund, paragraph 120). The same is not true here. The statements that Mr. Vellacott’s conduct was “crooked” and that he was “stealing” from the public both convey a moral blame- worthiness of a personal nature going well beyond legitimate public expression of differences of opinion with an elected official. Those statements allege squarely that the plaintiff was guilty of moral fault by means of dishonest or criminal behaviour. Reasonably informed readers could conclude from these statements that the plaintiff had done something wrong, something bad and even something illegal. 68 Also of assistance is Puddister v. Wells, 2007 NLCA 25, 265 Nfld. & P.E.I.R. 174 (N.L. C.A.). There, a commercial development in a city was in issue. The mayor went on a radio show and referred to the developers and some councillors as being not genuine and not sincere, as well as saying they were “crooked”, a “bunch of crooks”, a “bunch of shysters” and a “bunch of crooks playing games”. The trial finding that these words were defamatory was upheld on appeal. The Court noted at paragraphs 14 to 19 a distinction between the other critical words and the use of words such as “crook”. The facts and findings in Puddister v. Wells are of assistance in the instant analysis. 69 Thus I find the following statements contained in the first StarPhoenix article to be defamatory: (a) Party member Tom Ballantyne, who backs Harper, says party politics has nothing to do with it. He says it’s a matter of right and wrong. “It bothers me that he is using the taxpayers’ mailing system to do this. If an MP wants to back an individual and speak on their behalf, OK. But it’s crooked to send that kind of mail by franking,” he said. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 751

(b) “I’m just an ordinary citizen but I’m very perturbed when I see things like this. I’m raising the issue because it is my duty to do that as a citizen of this country,” said Fyfe. “Those people are put in office to do a job for us, not to steal from us. ...” 70 I do not find the comments about the Bakkers, nor the explanatory paragraph, to be defamatory. While the plaintiff may have been particularly sensitive to the same given his personal background, a right-thinking, reasonably informed person would not be troubled by such statements. They are hyperbole. They are so outrageous, and the comparison so ludicrous, as to be unbelievable. They would not have lowered a right- thinking person’s opinion of Mr. Vellacott. Aside from the two passages set out above, the rest of Mr. Bernhardt’s article is fair, balanced and certainly newsworthy. 71 With respect to the second article authored by Mr. Parker, I do not find any of the four impugned statements therein to constitute defamation, even taking them in the context of that article or both articles. That article is factual. It is properly researched. It is fair and balanced. It is newsworthy. That being the case, the action must be dismissed against Mr. Parker outright. 72 In neither case do I find that the article was motivated by anything other than a desire to print news. There is absolutely no evidence of any hidden agenda on the part of any of the defendants nor of any desire to besmirch Mr. Vellacott’s name for any reason. The plaintiff tendered no proof of malice. 73 This being the finding, I must go on to consider whether the defendants raise defences to the claim. I will include the Parker article in this analysis in the event I am in error as to the finding of no defamation in that story.

2. Does the defence of responsible journalism avail the defendants? 74 This was the primary defence raised by the defendants. Since it was articulated by the Supreme Court of Canada in a pair of 2009 decisions, it has, to some extent, supplanted the defence of qualified privilege, although the two remain distinct and viable as independent defences. 75 In the companion cases of Grant v. Torstar Corp., supra, and Cusson v. Quan, 2009 SCC 62, [2009] 3 S.C.R. 712 (S.C.C.), the new defence of “responsible communication on matters of public interest” was created. 752 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

This defence has two components. Initially, the burden is on the defendants to show that the publication was on a matter falling within the public interest. If so, the defendants must demonstrate that the publication was “responsible” in the sense that the author and/or publisher made diligent attempts to verify the allegations made within the context of the existing circumstances of the story.

• Public interest 76 The Supreme Court essentially adopted the meaning of “public interest” ascribed to it in Raymond E. Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1994). To be of public interest, the matter must be one which invites public attention or about which the public is substantially concerned because it affects the welfare of citizens or has attracted substantial public notoriety or controversy. The profile of the subject of the story may drive it to being a matter of public interest. Readers and viewers are naturally attracted to, and interested in, what is happening with public figures, but that alone is not sufficient, and the test is not limited to well-known persons. Matters of curiosity or prurience do not suffice. The public, or some portion thereof, must have a genuine and legitimate interest or stake in wanting to have information about the subject matter of the allegedly defamatory publication. There is no exhaus- tive list of such matters; each case turns on its facts. Courts have taken a fairly liberal view of what is included as the public has a legitimate interest in finding out about many things. It is not confined to political or governmental matters. Care must be taken not to define public interest too broadly or narrowly. See Grant, supra, paragraphs 102 to 107. 77 Here, I find the two news articles engaged the public interest, albeit in different ways. Taken in its temporal context (2002), the Canadian Alli- ance was a new, dynamic and growing national political party. There was wide interest in it, and that interest could not have been limited to supporters of the party. The fact that there was a leadership race, in and of itself, would engage the public interest on a national level. Add to that controversy and disputes, with disagreements as to the use of a publicly- funded communication allowance, and the matter was one which clearly would have engaged the interest of any reasonably well-informed member of the public. As stated at paragraph 106 of Grant, supra, while public interest includes governmental and political matters, it is broader: “The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality.” Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 753

Further, it is difficult for the plaintiff to argue against a public interest in this matter, given his own sworn testimony which explained his mailouts. The plaintiff said that as the leadership race would determine the Opposi- tion leader, it was a matter of broad concern and that interest was not limited to party members. If that is his view, the plaintiff should understand why taxpayers would be interested in the two stories printed. 78 The Bernhardt article’s focus was not a deliberate attempt to smear the plaintiff. The newspaper had received complaints and comments on the plaintiff’s use of his parliamentary communication allowance for internal party purposes. There were differing opinions on the propriety of this. But it was the fact that these differences existed, and the lengths to which party members with differing views were prepared to go, which formed the focus of the first article. Clearly, strife and dissension within the Canadian Alliance during a leadership race being held while that party’s political fortunes were ascending would engage the public interest, certainly on a local basis and perhaps even nationally. 79 The Parker article took a different focus and dealt more directly with the propriety of this sort of use of monetary parliamentary privileges. It engaged broader principles of proper use of taxpayer resources within the larger democratic process. Again, I have no difficulty in finding that this article engaged the public interest.

• Responsible publication and diligence 80 At paragraph 126 of Grant, supra, the required elements for this defence are summarized. It is useful to review those factors in the context of the evidence in this case. 81 First, I have already determined that this was a matter of public interest and that the defendants were entitled to publish on point, providing they did so properly. 82 The next criterion is that the publisher must have been diligent in trying to verify the allegation, having regard to a list of eight factors, as follows: (a) The seriousness of the allegation. The defendants state that the allegation is a questionable use of franking privileges, not an allegation of criminal conduct. Despite the use of “crooked” and “steal” in the first article, I agree with that characterization. Really, at the root of this story is a dispute as to whether the plaintiff’s conduct was an improper use of taxpay- 754 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

ers’ money, as opposed to allegations of outright fraud or theft. A reasonably-informed member of the public reading the impugned articles would not conclude that Mr. Vellacott had committed a criminal offence nor that he was even being investigated for same or that it was being alleged as such. The gravamen of the story is that he was using an allowance that permitted him to communicate with constituents for free for the purposes of advancing an internal party leadership candidate. Looking at those news articles as a whole, as the plaintiff urges, no reasonable person would conclude that it was seriously being alleged that Mr. Vellacott was a criminal, even with the defamatory statements being a part of the first article. This being the case, a less thorough effort at verification was permissible. In this case the defendants met, and likely exceeded, the standard. (b) The public importance of the matter. The plaintiff termed this as relatively insignificant. I disagree. The expenditure of taxpayers’ funds and issues arising during a federal leadership race are important to the public. Such matters will always be accorded journalistic importance. As an elected official, the plaintiff has sought and received the trust of the public. The plaintiff should expect, and even welcome, close scrutiny. (c) The urgency of the matter. Both reporters candidly acknowledged there was no particular rush, but each submitted their article because it was “ready”. The expert, Bell, indicated that news needed to be current and that best practices were to report on an event as close to its occurrence as possible. In this case, while there was certainly no rush to publish, there is no indication that anything would be different had the newspaper waited to do so. Given that the first story centred on the strife within the Alliance party during the leadership race, the reporting was done in a timely manner, and the impact of the story was preserved. The timing of these stories does not give me concern. (d) The status and reliability of the source. The evidence disclosed that the StarPhoenix had actually received copies of the documents in question. While one source did not want to be named, all were known to the reporters and all but one were actually named in the articles. There was no truly anony- Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 755

mous source. Many of the quotes actually were from Alliance members or MPs. Some were from concerned members of the public. There was an appropriate level of canvassing of a variety of opinions from a variety of sources. Certainly, the articles could not be termed one-sided. (e) Whether the plaintiff’s side of the story was sought and accurately reported. This criterion is perhaps the most important. Plaintiff’s counsel characterized this as having been “badly overlooked”. This is not borne out by the evidence. The first article was published only after the plaintiff was contacted by Bernhardt on a Sunday. That article actually begins with comments from the plaintiff, and much of the text is devoted to his view. The second article followed an unsuccessful attempt to contact the plaintiff but reiterated what he had said the previous day. According to Ms. Bell, this is acceptable journalistic practice. As well, on a plain reading, the second article is also balanced, quoting numerous sources which include the plaintiff and a representative of the Board of Internal Econ- omy. This criterion provides a safeguard, ensuring that news stories are presented in a fair and balanced way when measured on an objective standard. While the plaintiff does not feel he was treated fairly, on an objective assessment, he was. There is no suggestion in the evidence that the plaintiff was misquoted. (f) Whether the inclusion of the defamatory statement was justifiable. The plaintiff does not feel it was. He feels that the defamatory statements added nothing to the story and that there could still have been a story about internal party strife during the leadership campaign without these statements. While the latter statement is possibly correct, it is also correct that the statements sought and presented were from a wide variety of sources. While criminality is not alleged, the propriety of the plaintiff’s conduct is called into question on moral and political bases. The defendants presented a variety of types of commentary on these points from a variety of sources. Interestingly, some of the harshest criticism of the plaintiff came from members within his own party rather than political foes. The range of comments in the first article presents what the “news peg” of the story was — the differing views of how to properly conduct the leadership campaign. As Ms. Bell stated, the 756 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

hyperbole of some of those opinions may say more about the person stating same than about the plaintiff. The inclusion of the two defamatory passages was justifiable in these circumstances. (g) Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”). On this point, the plaintiff argued that without the defamatory comments, this is a back-page story. This misses the point. The defendants were not adopting these statements as their own, they were simply reporting what was actually said. This is clear from a plain reading of the articles. The defendants attributed all sources but one, who specifically did not wish to be named. The makers of the defamatory statements were identified. There is no assertion that the plaintiff was clearly wrong in how he used his franking allowance; rather, there is a reporting that some people believed him to be wrong. The defendants were reasonably careful to report both sides of the argument about the use of franking privileges. It is abundantly clear from the two stories that these arguments were very much political, made in the heat of a leadership race. The stories do not assert that there has been any legal or other determination that the plaintiff was, in fact, using his allowance wrong- fully. In summary, the utility of the public receiving these statements lay in the fact the statements were made at all, not in whether they were true. The defendants’ repetition of the impugned statements qualify as reportage. (h) Any other relevant circumstances. Here, the plaintiff’s strong complaint lies with the overall tone or tenor of the stories. He feels the combination of headlines, photographs and content combine to paint him in a derogatory light that is not justifiable. In fact, the articles did not amount to distortion or sensationalism, though there was ample opportunity to do both. As the Supreme Court stated in Grant at paragraph 123, the media is not to be held to a standard of “stylistic blandness”: ... Neither should the law encourage the fiction that fairness and responsibility lies in disavowing or concealing one’s point of view. ... An otherwise responsible article should not be denied the protection of the defence simply because of its critical tone. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 757

While the tone of neither article strikes me as overly harsh or critical (indeed, it is fairly benign), even if it was, the defendants did not have a legal obligation to write their articles in a manner that satisfied the plaintiff. The plaintiff admitted that had his permission been sought to run the articles, he would have withheld same. But that is not a duty the defendants laboured under. They owed him some legal duties, but writing in an overall tone satisfactory to the plaintiff was not one of them. As well, there was no allegation or evidence of malice on the part of any of the defendants. 83 The defendants have met all the criteria required to establish the defence of responsible journalism. In many respects, the defendants appear to have gone beyond what is required. This defence avails the defendants and, accordingly, I dismiss the plaintiff’s claim on this basis. However, I will go on to examine the other defences which were raised in the alternative.

3. Does the defence of qualified privilege avail the defendants? 84 While defendants’ counsel was careful to clearly note this defence was not being abandoned, he indicated he relied primarily on the responsible journalism defence, above. However, qualified privilege was asserted in the pleadings, was left alive at the conclusion of this trial and is relied upon by the defendants as an alternative defence. 85 Unlike other forms of privilege, qualified privilege in the defamation context does not attach to a document or utterance. Rather, it attaches or applies to an occasion on which such a statement is made. Once an occasion is shown to be privileged, the defendants’ bona fides is presumed, and the defendants may publish remarks about the plaintiff which ultimately turn out to be untrue and defamatory. Qualified privilege may be defeated as a defence if the plaintiff shows the dominant motive behind publication is actual or express malice. A classic discussion of qualified privilege is found in Brown, The Law of Defamation in Canada, supra, at pages 662-669: ... No action can be maintained against a defendant unless it is shown that he or she published the statement with actual or express malice. An occasion is privileged if a statement is fairly made by a person in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to a person who has some corresponding interest in receiving it. The duty may be either legal, social or moral. The test is whether persons of 758 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to these to whom it was published. A privilege is recognized where a person seeks to protect or further his or her own legitimate interests, or those of another, or interests which he or she shares with someone else, or the interests of the public generally. ... There are occasions where the interest sought to be protected is not so compelling and important as to warrant an absolute privilege, but is important enough to justify a limited immunity from actions for libel and slander for defamatory publications. This privilege is referred to as “defeasible”, “qualified” or “conditional”. Baron Parke in Toogood v. Spyring [(1834), 1 C.M. & R. 181, 149 E.R. 1044] has offered one of the more popular legal formulas: In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another ... and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. It enables a person to make defamatory and untrue statements about another without incurring legal liability, so long as he or she acts honestly, in good faith and without malice. “Good faith, a right, duty, or interest in a proper subject, a proper occasion, and a proper communication to those having a like right, duty, or interest, are all essential to constitute words spoken, that are actionable per se, a privileged communication”. The protection is justified on the basis of public policy and utility, and in furtherance of the “common convenience and welfare” or “general interest” and “advantage” of society. The purpose of the immunity is not so much to protect the parties involved as it is to promote the public welfare. As Bankes J. in Gerhold v. Baker [[1918] W.N. 368 at 368-69 (C.A.)] said: It was in the public interest that the rules of our law relating to privileged occasions and privileged communications were introduced, because it is in the public interest that persons should be allowed to speak freely on occasions when it is their duty to speak, and to tell all they know or believe, or on occasions when it is necessary to speak in protection of some common interest. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 759

... In such cases, a person should not be deterred from disclosing prejudicial information by the fact that he or she may be mulcted in damages, even though it turns out that the information is untrue and defamatory, and its disclosure creates a personal hardship on someone else. If the law were otherwise, cautious persons might not be candid in their appraisal of the character of others. ... A qualified privilege does not change the actionable quality of the words. It merely rebuts the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, “the bona fides of the defendant and his honesty of belief in the truth of his statements is presumed”, and the defendant is free to publish with impunity remarks which are defamatory and untrue about the plaintiff. In such a case, no action will lie unless the plaintiff can prove that the words were spoken or written with express or actual malice. 86 Qualified privilege was explained more succinctly by Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (U.K. H.L.), at page 334: ... a privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. ... 87 The law will recognize such privilege in several circumstances: where the person making the statement seeks to protect (or further) his own legitimate interests, or those of another, or interests which he shares with someone else, or even the interests of the public generally. 88 The common law as to qualified privilege was considered and somewhat streamlined by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129 (S.C.C.). At paragraphs 144 and 145: 144 The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149. 760 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

145 Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey [[1979] 1 S.C.R. 1067], at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. ... 89 In the case at bar, the task is to determine whether the defendants had any legitimate interest in communicating to the public at large the information contained in the two articles, as well as determining whether the public had a corresponding interest in the receipt of this information. 90 Here, the initial story concerned infighting during a national leadership race in a newly-formed political party, a party which appeared as- cendant and which looked as though it could (indeed, it ultimately did) form a government. The second story contained a similar focus but also dealt with the alleged impropriety of the manner in which the plaintiff was using one of his communication allowances. Taken in its temporal context, there can be little doubt that the public generally would have an interest in such matters. As previously noted, the plaintiff’s own explanation of the importance of the leadership race to all persons, not just party members within his constituency, should also have informed him as to why the media and the public would be interested in another aspect of that contest. 91 There are a number of cases in which courts have found that the media has a legitimate interest in disseminating such information to the public and that the public has a corresponding interest in receipt of same. As well, courts have consistently determined that there is a genuine public interest in the manner in which governments and elected officials conduct their business. See the following: (a) Loos v. Robbins (1987), 37 D.L.R. (4th) 418, [1987] 4 W.W.R. 469 (Sask. C.A.). There, a provincial cabinet minister made public statements as to the reasons some 13 employees of a Crown corporation were terminated and alluded to their incompetence. He successfully defended himself on the basis of qualified privilege, in that there was a legitimate public interest in the manner in which a public corporation was being operated, thus eliminating the allegation of malice. (b) Similar in nature was Stopforth v. Goyer (1979), 97 D.L.R. (3d) 369, 23 O.R. (2d) 696 (Ont. C.A.). A federal cabinet minister spoke to reporters concerning the demotion of a high-ranking bu- reaucrat. He indicated the demotion resulted from a dereliction of Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 761

duty. The civil servant sued, but the comment was held covered by qualified privilege as the minister had a public duty in satisfying the electorate’s interest in the reasons driving the demotion. In that case, the bona fide interests of the public were held to be represented by the media. (c) Milgaard v. Saskatchewan (Minister of Justice) (1996), [1997] 3 W.W.R. 82, 151 Sask. R. 100 (Sask. Q.B.). After the plaintiff’s release from custody, he criticized certain public officials. The provincial justice minister made public statements rebutting these allegations, even going so far as to indicate he believed the plaintiff was guilty. In a defamation action the defendant relied on qualified privilege. The plaintiff applied to strike that pleading, unsuccessfully. Barclay J. indicated at paragraph 37: [37] In my view, the electorate, as represented by the media, has a real and bona fide interest in the administration of justice in the Province of Saskatchewan, and in particular the alleged public wrongdoing concerning the manner in which certain senior officials ... handled Milgaard’s case in 1971. However, Mitchell, as Minister of the Crown and as Attorney General, has a corresponding public duty and interest in satisfying the electorate. ... (d) Parlett v. Robinson (1986), 30 D.L.R. (4th) 247, [1986] 5 W.W.R. 586 (B.C. C.A.). The defendant was the federal NDP critic for the solicitor-general. He suggested there was scandalous behaviour within Corrections Canada and unsuccessfully lobbied the federal minister for an inquiry. He then expressed his concerns to the media and was sued by an impugned official with Corrections Can- ada. The action failed. It was held that where there was an allegation of official misuse of power or privilege, the federal member had a duty to “ventilate his concerns” through the media. Quali- fied privilege was held to apply. His statements to the media were not unduly broad because the group having a bona fide interest in the matter was the electorate of Canada. (e) Qualified privilege traditionally was held to depend in part upon a special relationship between the maker and recipient of the impugned statement. As a result, the media often found it difficult to rely upon this defence. However, more modern cases have recognized the media’s role in the public interest concerns relating to governments and relaxed the old strictures. See Grant v. Torstar 762 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

Corp., supra, paragraphs 35 to 37. Also see Clement v. McGuinty (2001), 143 O.A.C. 328, 18 C.P.C. (5th) 267 (Ont. C.A.); Lee v. Globe & Mail (The) (2001), 52 O.R. (3d) 652, 6 C.P.C. (5th) 354 (Ont. S.C.J.); Silva v. Toronto Star Newspapers Ltd. (1998), 167 D.L.R. (4th) 554, [1998] O.J. No. 6491 (Ont. Gen. Div.); Grenier v. Southam Inc., [1997] O.J. No. 2193, 1997 CarswellOnt 1892 (Ont. C.A.); and Reynolds v. Times Newspapers Ltd. (1999), [2001] 2 A.C. 127 (U.K. H.L.). 92 That our courts have so found, and found consistently, is hardly sur- prising. The ability to discuss governments and political matters is one of the cornerstones of any true democracy. It has been upheld in other coun- tries with a common law system, such as Australia. See Ballina Shire Council v. Ringland (1994), 33 N.S.W.L.R. 680 (New South Wales Sup. Ct.), where the Court of Appeal said: The idea of a democracy is that people are encouraged to express their criticisms, even their wrong-headed criticisms, of elected governmental institutions, in the expectation that this process will im- prove the quality of the government. The fact that the institutions are democratically elected is supposed to mean that, through a process of political debate and decision, the citizens in a community govern themselves. ... Albeit made in the context a suit by a government institution, the concept of free speech and criticism regarding elected officials, as set out above, is no less apposite to the within situation. 93 It may be that our Supreme Court has incorporated the United King- dom’s rather “elastic” expansion of the application of qualified privilege into the new responsible journalism defence, discussed above. Neverthe- less, the cautious common law trend is to expand the media’s access to the defence of qualified privilege, where the matter is of such public interest that publication appears warranted. 94 In my view, the unique facts of this case do give rise to the defence of qualified privilege. Surely the public had an interest both in the leadership race on at that time, as well as in whether its elected representatives were spending their allowances properly. I find on these facts there is a sufficient nexus between the ability of these defendants to publish this information and the interest of the public in receiving same to give rise to qualified privilege. As a result, qualified privilege avails all the defendants and I would dismiss the plaintiff’s action on that basis as well. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 763

4. Does the defence of fair comment avail the defendants? 95 The defendants also placed significant reliance upon the defence of fair comment, as an alternative to that of responsible publication. 96 In Canada, persons are allowed to comment fairly on matters of public interest. This is to encourage discourse on matters of public interest, without a defamation action hanging over commentators’ heads like the sword of Damocles. A type of qualified privilege applies to such commentary, but only if: • the comments are actually comments and not statements of fact; • they are made honestly and in good faith; • they are made regarding facts which are true; and • a matter of public interest is involved. In this legal context “comment” means a subjective expression of an opinion. It may come in the form of a deduction, inference, conclusion, criticism, judgment, remark or observation — items generally incapable of proof. 97 Not every such comment is protected. For this defence to avail, the comment must be fair; that is, the facts upon which the comment is based are true, and the comment itself amounts to the expression of the honestly held opinion which arises from such facts. If the comment is highly negative in nature (suggesting, for example, corrupt motivation to a person), it must be shown that such imputations are warranted by and could be reasonably inferred from the facts underlying such opinion. Evidence of malice can negative the defence of fair comment. 98 The test for the applicability of the defence of fair comment was set out in Myers v. Canadian Broadcasting Corp. (1999), 47 C.C.L.T. (2d) 272, 103 O.T.C. 81 (Ont. S.C.J.): 84 The defence of fair comment protects words that are prima facie defamatory provided they are comments, based on true facts, made honestly and without malice, with reference to a matter of public interest: Drew v. Toronto Star Ltd., [1947] O.R. 730 (Ont. C.A.). 85 The defence of fair comment requires the defendant to establish the following: (Hodgson, [ (1998), 39 O.R. (3d) 235 (Ont. C.J.)] at 385) (a) That the words complained of are recognizable by the ordinary viewer as comment, although the comment may consist of, or include inferences from, facts; 764 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

(b) That the comment is based on true facts set out in the article (broadcast) or clearly indicated therein; (c) That the comment is on a matter of public interest; and (d) That the comment is one which a person could honestly make on the facts proven, and some authorities indicate must, at least where dishonourable motives are imputed, be fair, in the sense that a fair-minded person could believe it. 86 The defence will fail if the plaintiff shows that the defendant was actuated by express malice. It is here that the question of actual belief in the comments made becomes an issue. 87 In order for the defence to apply, two hurdles must be overcome. First, at the objective stage, the words must be capable of being fair comment. Here, the burden of proof is on the defendant. Second, at the subjective stage, the issue is whether the comment was actuated by malice. The burden of proof is on the plaintiff to establish malice: Milmo, [Milmo & Rogers, Gatley on Libel and Slander, 9th ed., 1998] at para. 12.21. I will deal with the issue of malice separately. 99 The Supreme Court of Canada most recently dealt directly with fair comment in Simpson v. Mair, 2008 SCC 40, [2008] 2 S.C.R. 420 (S.C.C.). Binnie J. set out the test at paragraph 28: [28] For ease of reference, I repeat and endorse the formulation of the test for the fair comment defence set out by Justice Dickson, dissenting, in Cherneskey [[1979] 1 S.C.R. 1067] as follows: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice...... [Emphasis in original deleted] 100 Simpson v. Mair is notable for more than its reaffirmation of the test for this defence. It also confirms that the defence has a wide or generous application. Comments which many people would consider outrageous or “offside” have been protected by this defence. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 765

101 In Mair, Mair was a radio talk show host, a “shock jock” well known for being controversial. On his program, the defendant took aim at the views of the plaintiff, Kari Simpson, who was described by the Supreme Court as a widely known social activist. She was engaged in a public debate concerning the introduction of materials dealing with homosexuality into the public school system in British Columbia. The plaintiff was opposed to such material and was well known to the public as a spokesperson for people opposed to any positive portrayal of a gay lifestyle. The defendant took the opposite side of the debate and broadcast an editorial which in part stated: 3. . . . Before Kari was on my colleague Bill Good’s show last Friday I lis- tened to the tape of the parents’ meeting the night before where Kari harangued the crowd. It took me back to my childhood when with my parents we would listen to bigots who with increasing shrillness would harangue the crowds. For Kari’s homosexual one could easily substitute Jew. I could see Governor Wallace — in my mind’s eye I could see Governor Wallace of Alabama standing on the steps of a schoolhouse shouting to the crowds that no Negroes would get into Alabama schools as long as he was governor. It could have been blacks last Thursday night just as easily as gays. Now I’m not suggesting that Kari was proposing or supporting any kind of holocaust or violence but neither really — in the speeches, when you think about it and look back — neither did Hitler or Gov- ernor Wallace or [Orval Faubus] or Ross Barnett. They were simply declaring their hostility to a minority. Let the mob do as they wished. He went on to compare her position to those taken by skinheads, the Ku Klux Klan, anti-evolutionists and vigilantes. He concluded by stating the public could recognize “a mean-spirited, power mad, rabble rousing and, yes, dangerous bigot when they see one.” 102 The plaintiff lost at trial but succeeded at the Court of Appeal. The Supreme Court restored the trial judge’s dismissal of her action. It was held that the defence of fair comment has a wide ambit. Vigorous public debate on both sides of any issue in which the public interest was engaged was to be encouraged. It was held, at paragraph 26, that words which might appear to be factual may actually be comment, especially “in an editorial context where loose, figurative or hyperbolic language is used [cite omitted] in the context of a political debate, commentary, media campaigns and public discourse.” 766 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

103 Two recent decisions have considered Mair and fair comment generally: Gichuru v. Pallai, 2012 BCSC 693, [2012] B.C.J. No. 949 (B.C. S.C.), and 2964376 Canada Inc. v. Bisaillon, 2012 ONSC 3113, [2012] O.J. No. 2348 (Ont. S.C.J.). Both were delivered after this trial was heard and final submissions presented. Both involved the defence of fair comment and applied Mair, although with respect to different aspects of the test and with different results. Each is of some assistance when considering the various criteria of the test for fair comment, which I will now do.

• Comment or statement of fact? 104 Based on the totality of the evidence entered in this trial, I find the two defamatory passages (alleging that the plaintiff was “crooked” and that he was not to “steal from” the taxpayers) were comments as opposed to statements of fact. The speaker in each case was voicing his or her opinion as to what the plaintiff had done. The comments were not statements of fact defining the acts of the plaintiff; they amounted to charac- terizations of his conduct as somehow being criminal in nature. A reasonable reader of this newspaper would recognize these to be opinions or comments rather than statements of fact.

• Public interest 105 As previously set out herein, the comments pertained to the manner in which the plaintiff had used taxpayers’ money through his use of his parliamentary mailing privileges. The context in which those funds were used was that of the hotly contested national leadership of a relatively new political party. I find the function of the national government and system of government were engaged by these actions.

• Comments based on facts? 106 In this case, the basis of the comments was objective facts which can be proven. There is no doubt from the evidence before me that the plaintiff sent out a mailout to persons within this province using his franking privilege. Further, the first newspaper article clearly sets this out in the very first paragraph. 107 It was admitted by the plaintiff that he sent out the mailers, that he used his parliamentary mailing privileges to do so and that the items mailed contained expressions of support for Mr. Day, a leadership candidate. While the plaintiff never admitted that ultimately the taxpayers of Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 767

Canada paid for these mailouts (instead insisting there was “no cost” to same), it is clear from all of the evidence that this is the case. 108 I am therefore fully satisfied the comments were based on actual established facts.

• Could anyone honestly make the comment based on those facts? 109 This aspect of the test for fair comment was dealt with in Mair at paragraphs 49 to 51: [49] The test represents a balance between free expression on matters of public interest and the appropriate protection of reputation against damage that exceeds what is required to fulfill free expression requirements. The objective test is now widely used in common law jurisdictions as the “honest belief” component of fair comment, including the United Kingdom: Telnikoff v. Matusevitch, [1991] 3 W.L.R. 952 (H.L.), quoting with approval Dickson J.’s dissent, at p. 959. In Australia, the High Court recently affirmed a similar approach; see the observation of Gleeson C.J.: The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, “fair” does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word “fair” refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts. (Channel Seven Adelaide Pty Ltd. v. Manock (2007), 241 A.L.R. 468, [2007] HCA 60, at para. 3 (emphasis added)) In New Zealand, the objective test at common law has now been replaced by a more subjective test in the Defamation Act 1992 (N.Z.), 1992, No. 105, s. 10. See generally B. Marten, “A Fairly Genuine Comment on Honest Opinion in New Zealand” (2005), 36 V.U.W.L.R. 127; Mitchell v. Sprott, [2002] 1 N.Z.L.R. 766 (C.A.). [50] Admittedly, the “objective” test is not a high threshold for the defendants to meet, but nor is it in the public interest to deny the defence to a piece of devil’s advocacy that the writer may have doubts about (but is quite capable of honest belief) which contributes to the debate on a matter of public interest. 768 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

[51] Of course, even the latitude allowed by the “objective” honest belief test may be exceeded. “Comment must be relevant to the facts to which it is addressed. It cannot be used as a cloak for mere invective”; Reynolds [[1999] 4 All E.R. 609] at p. 615. 110 There was a debate as to whether the franking privilege could be used for internal party purposes. It should not surprise anyone that from time to time citizens and taxpayers become upset as to how government officials, particularly those who are elected, use tax dollars. Certainly in this case, people could (and did) become irate at how the plaintiff used his mailing allowance and make the comments in the article. My conclusion is that persons could make comments as to crookedness or stealing when they honestly arose from the facts set out in the article. 111 It must always be remembered that this branch of the test does not import a requirement of reasonableness nor that the comments be fair, impartial, reasonable or balanced. There is only the requirement of a nexus between the facts and the comments; that is, that the comments flow from the established facts. Mair illustrates this. On air, the defendant referred to the public speaker as a Nazi and likened her to notable bigots who were elected or were at least notable public figures. Here, the views of the plaintiff that he properly used his mailing allowance were attacked. 112 Accordingly, the defence of fair comment also avails these defendants, and they also avoid liability on this basis.

5. Does the defence of consent avail the defendants? 113 At trial, the defendants abandoned the defence of consent.

6. If liability is found, what is the appropriate quantum of damages? 114 I have not found liability on the part of any of the defendants and, thus, assess no damages against them. Neither counsel filed authorities that would be of substantial assistance regarding the assessment of damages. I, therefore, make no provisional assessment.

7. What is the appropriate disposition of costs? 115 The defendants have been successful in this action. There was no argument advanced by either side as to any need for a special award of costs. I, therefore, award the defendants a single set of costs of these proceedings, to be assessed on Column 4. Vellacott v. Saskatoon Starphoenix Group Inc. R.W. Danyliuk J. 769

Conclusion 116 The plaintiff’s action against the defendants is dismissed, with a single set of costs to the defendants to be assessed on Column 4. 117 My thanks to counsel for the courteous and capable manner in which this trial was conducted and for the assistance each provided to the Court. Action dismissed. 770 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

[Indexed as: Goodtrack v. Waverley No. 44 (Rural Municipality)] William Goodtrack, Applicant and The Rural Municipality of Waverley No. 44, Respondent R.M. of Waverley #44, Applicant and William Goodtrack, Respondent Saskatchewan Court of Queen’s Bench Docket: Moose Jaw QB 125/11, QB 88/11 2012 SKQB 413 L.M. Schwann J. Judgment: October 10, 2012 Municipal law –––– Attacks on by-laws and resolutions — Grounds — Ultra vires — Miscellaneous –––– Rural municipality W purported to expropriate property owned by G, pursuant to By-law 02/09 (“by-law”), which it enacted — As G failed to file compensation claim, W applied for order barring and extinguishing G’s right to compensation for expropriated land — In response, G brought application for order by way of certiorari quashing by-law — G’s application appeared to be framed as statutory application to quash by-law pursuant to s. 358 of Municipalities Act and application for judicial review — W’s application dismissed; G’s cross-application granted — Order quashing and setting aside by-law was issued — Principles of law and case authority supported G’s position that by-law failed to state its intended purpose, that requirement was mandatory, and consequently, non-compliance with s. 3(2) of Municipal Expro- priation Act rendered by-law void — As matter of transparency, and to ensure municipality is acting within its jurisdictional sphere, land owner must be told why land was expropriated in order to assess if taking was lawful — Statement of purpose underlying expropriating action is condition precedent to lawful bylaw — Having failed to state purpose, W acted without jurisdiction or authority when it purported to enact By-law 02/09, which was therefore ultra vires and had to be quashed and set aside — Curative provision enshrined in s. 359(1) of Municipalities Act provision was of little assistance in face of excess of jurisdiction. Municipal law –––– Attacks on by-laws and resolutions — Practice and procedure — On quashing by-laws or resolutions — Miscellaneous –––– Stan- dard of review — Standard of review for true jurisdictional issues, such as whether rural municipality had statutory authority under s. 3 of Municipal Ex- Goodtrack v. Waverley No. 44 (Rural Municipality) 771

propriation Act to enact impugned by-law was one of correctness, but for questions involving intra vires decisions, it was one of reasonableness. Real property –––– Expropriation — Power to expropriate — Statutory power of municipality — General principles –––– In context of expropriation by-laws, accepted viewpoint is that statutory requirements must be strictly complied with. Real property –––– Expropriation — Power to expropriate — Statutory power of municipality — Purpose for which land required — Miscellane- ous –––– Underlying reasons motivating expropriation extracted from witness’s affidavit did not constitute “purpose” authorized by municipal legislation. Municipal law –––– Attacks on by-laws and resolutions — Practice and procedure — On quashing by-laws or resolutions — Delay. Cases considered by L.M. Schwann J.: Bank of Nova Scotia v. R. (1983), (sub nom. R. v. Bank of Nova Scotia) 24 Sask. R. 312, 1983 CarswellSask 553, [1983] S.J. No. 346 (Sask. Q.B.) — referred to Cabulak, Re (1911), 19 W.L.R. 171, 1911 CarswellAlta 60 (Alta. Dist. Ct.) — referred to Catalyst Paper Corp. v. North Cowichan (District) (2012), 34 Admin. L.R. (5th) 175, 2012 CarswellBC 17, 2012 CarswellBC 18, 2012 SCC 2, 11 R.P.R. (5th) 1, [2012] 2 W.W.R. 415, 340 D.L.R. (4th) 385, 26 B.C.L.R. (5th) 1, 93 M.P.L.R. (4th) 1, 425 N.R. 22, 316 B.C.A.C. 1, 537 W.A.C. 1, [2012] 1 S.C.R. 5, [2012] S.C.J. No. 2 (S.C.C.) — followed Costello v. Calgary (City) (1983), [1983] 1 S.C.R. 14, 143 D.L.R. (3d) 385, 46 N.R. 54, [1983] 2 W.W.R. 673, 23 Alta. L.R. (2d) 380, 41 A.R. 318, 20 M.P.L.R. 170, 1983 CarswellAlta 3, 26 L.C.R. 97, 1983 CarswellAlta 315 (S.C.C.) — considered Cugnet v. Weyburn (1981), 1981 CarswellSask 326, 10 Sask. R. 137, [1981] S.J. No. 1299 (Sask. Dist. Ct.) — referred to Dell Holdings Ltd. v. Toronto Area Transit Operating Authority (1997), 1997 CarswellOnt 78, 1997 CarswellOnt 79, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 31 O.R. (3d) 576 (headnote only), 7 R.P.R. (3d) 1, 36 M.P.L.R. (2d) 163, 45 Admin. L.R. (2d) 1, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 142 D.L.R. (4th) 206, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 206 N.R. 321, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 60 L.C.R. 81, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 97 O.A.C. 81, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 772 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

[1997] 1 S.C.R. 32, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) [1997] S.C.J. No. 6 (S.C.C.) — referred to E.C. Argue Holdings Ltd. v. Edenwold (Rural Municipality) No. 158 (1999), 50 M.P.L.R. (2d) 182, 1999 CarswellSask 47, 179 Sask. R. 142, [1999] S.J. No. 48 (Sask. Q.B.) — referred to Goodtrack v. Waverly No. 44 (Regional Municipality) (2003), 2003 SKQB 336, 2003 CarswellSask 512, [2003] S.J. No. 501 (Sask. Q.B.) — referred to Gravelbourg (Town) v. Smith (1983), 25 Sask. R. 126, 28 L.C.R. 129, 149 D.L.R. (3d) 176, 1983 CarswellSask 287 (Sask. Q.B.) — considered Higdon v. Smoky Lake General & Auxiliary Hospital & Nursing Home District No. 73 (1982), 24 Alta. L.R. (2d) 97, 1982 CarswellAlta 257, 28 R.P.R. 101, 27 L.C.R. 268, 44 A.R. 229, [1983] 3 W.W.R. 23 (Alta. Q.B.) — considered Kane v. Lac Pelletier (Rural Municipality) No. 107 (2009), 342 Sask. R. 113, 61 M.P.L.R. (4th) 212, 46 C.E.L.R. (3d) 114, 2009 CarswellSask 566, 2009 SKQB 348, [2009] 4 C.N.L.R. 108 (Sask. Q.B.) — referred to Markwart v. Blaine Lake No. 434 (Rural Municipality) (2006), 25 M.P.L.R. (4th) 96, 2006 CarswellSask 492, 2006 SKQB 355, 290 Sask. R. 173 (Sask. Q.B.) — considered Morgan v. Prince Albert (City) (1955), 15 W.W.R. 328, 1955 CarswellSask 14, [1955] S.J. No. 14 (Sask. C.A.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Pelican Narrows (Northern Hamlet) v. Thunderbird Enterprises (P.N.) Ltd. (1986), [1986] 5 W.W.R. 8, 1986 CarswellSask 220, 35 L.C.R. 109, 48 Sask. R. 81 (Sask. Q.B.) — referred to Thorcon Enterprises Ltd. v. West Vancouver (District) (1987), 20 B.C.L.R. (2d) 259, 1987 CarswellBC 397, 38 L.C.R. 311, 46 D.L.R. (4th) 742 (B.C. S.C.) — considered Statutes considered: Municipal Expropriation Act, R.S.S. 1978, c. M-27 s. 3 — considered s. 3(1) — considered s. 3(2) — considered s. 5 — considered Goodtrack v. Waverley No. 44 (Rural Municipality) L.M. Schwann J. 773

s. 5(1) — considered s. 5(2) — referred to s. 11(1) — referred to Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1 s. 182 — considered Municipalities Act, S.S. 2005, c. M-36.1 Generally — referred to s. 2(1)(xx) “street” or “road” — considered s. 6 — considered s. 8(1)(g) — considered s. 358 — considered s. 358(2) — considered s. 359(1) — considered s. 360 — considered Rules considered: Queen’s Bench Rules, Sask. Q.B. Rules R. 327 — considered Words and phrases considered: expropriation Expropriation . . . is the compulsory acquisition of property without the consent of the owner.

APPLICATION brought by rural municipality pursuant to s. 5(2) of Municipal Expropriation Act, barring and extinguishing property owner’s right to compensation for expropriated land; CROSS-APPLICATION brought by property owner under s. 358 of Municipalities Act for order quashing expropriating bylaw.

Kirk Goodtrack, for Applicant Kim Ford, for Respondent

L.M. Schwann J.:

1 The Rural Municipality of Waverley No. 44 (the “RM”) purported to expropriate property owned by the respondent, William Goodtrack (“Goodtrack”) pursuant to Bylaw 02/09, enacted on September 8, 2009. As Goodtrack failed to file a compensation claim for the taking of his lands envisioned by s. 5 of The Municipal Expropriation Act, R.S.S. 1978, c. M-27, the RM applies for an order: 774 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

i. pursuant to s. 5(2), barring and extinguishing Goodtrack’s right to compensation for the expropriated land; ii. in the alternative, pursuant to s. 11(1), for leave to pay into court a sum of money as compensation otherwise payable to Goodtrack for the expropriated lands. 2 Goodtrack responded in kind with an application under s. 358 of The Municipalities Act, S.S. 2005, c. M-36.1 “for an order by way of certiorari” quashing the impugned bylaw, and for an order extending the time to bring the within application. While not abundantly clear from the wording of the motion, Goodtrack’s application appears to be framed as both a statutory application to quash pursuant to s. 358 and for judicial review. Under either framework, Goodtrack submits the bylaw is ultra vires and should be quashed and set aside for lack of jurisdiction. In the event the bylaw is found to be intra vires, Goodtrack contends it should be set aside because the RM’s actions were discriminatory, motivated by bad faith, premised on irrelevant considerations, and the bylaw itself is substantively unreasonable.

Background and Factual Context 3 In 1992 Goodtrack purchased several quarter sections of land located within RM boundaries and in close vicinity to the Wood Mountain In- dian Reserve. These lands included the SE 17-4-4 W3 (SE 17) and the NE 17-4-4 W3 (NE 17). Goodtrack’s house is located centrally on the SE 17. 4 The Woodview Road is a municipal road. It begins at highway 18 south of the Village of Wood Mountain and continues along the road allowance to the southeast corner of S 18-4-4-W3, proceeding eastward along the southerly boundary of Goodtrack’s land. 5 The “trails”, which are at issue in these proceedings, run from the Woodview Road at the southerly corner of the SE17 (Goodtrack’s land) and thence diagonally in a northwesterly direction, effectively bisecting Goodrack’s land. Goodtrack accesses this trail from two additional trails leading from his house: one proceeding northwesterly from his house and the other southeasterly. As mentioned, both connect to the so called trails. It was Goodtrack’s practice to maintain three barbed wire gates blocking access to the trails from municipal roads. One gate was placed at the northwest top of the trail, another by his house and a third where the southeasterly part of the trail joins up with the Woodview Road. Goodtrack v. Waverley No. 44 (Rural Municipality) L.M. Schwann J. 775

6 According to the affidavit of Goodtrack, the trails were historically not maintained by the RM nor kept open in the winter. The RM holds the opposite view. It maintains the trails have been in existence since at least the early 1940’s and have been used as a public roadway and as a school bus route. 7 Norman Lee (Lee) is a neighbour of Goodtrack’s. He lives immediately north of Goodtrack’s property on the NW 17-4-4 W3 (NW 17). Lee’s house is located on the NW 17 and he accesses the Woodview Road by using a trail which bisects the SW 20-4-4 W3 (SW 20) (land also owned by Lee). In this respect Goodtrack argues Lee was not and is not “land locked”, however his access was at all times in a northerly direction. 8 At some point in the 1990’s Lee acquired land south of the Good- track’s land and south of the Woodview Road. According to Goodtrack, rather than going north and then around Goodtrack’s land via the municipal road, Lee began using the trails located on Goodtrack’s property (NE and SE 17) as it represented a shorter distance from his house (north of Goodtrack’s property) to Lee’s southern lands. 9 Lee’s use of the trails was initially tolerated by Goodtrack, however it soon became a point of contention when Lee failed to shut the three gates Goodtrack had installed on his property. The natural consequence of Lee’s inaction was that Goodtrack’s cattle were allowed to roam freely. Hard feelings ensured and this lead to the commencement of an action by Goodtrack against Lee in 2002 seeking, among other things, interim in- junctive relief and a declaratory order that the trails were not public roads. Goodtrack’s interim application was unsuccessful (Goodtrack v. Waverly No. 44 (Regional Municipality), 2003 SKQB 336, [2003] S.J. No. 501 (Sask. Q.B.)). Kyle J. found as fact that, for purposes of that interim application, the road in question (i.e. the trails) was a public road and had been so for many years. At para. 2 he states: [2] All of the evidence suggests that the roadway, which is more than a trail, has been in general use for many years. While the deponents have varying degrees of historical connection to the road ranging from Roy Pearson, whose recollection covers most of his 96 years, to those who have lived nearby only in recent years, all describe the use of the road by neighbours, school buses and such numbers of the public as happen to wish to pass that way. 10 Goodtrack did not appeal this decision nor pursue the substantive claim. 776 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

11 Nothing further transpired amongst the parties until 2007. According to the affidavit of Deidre Nelson, RM Administrator, the RM discovered the trail running across Goodtrack’s land had never been subdivided nor transferred to the RM. The RM proceeded to have the roadway surveyed. (Total surveyed acreage amounted to 8.24 acres). A similar survey was undertaken on the trails located on Lee’s land to the north. 12 In January 2008, the RM offered to purchase the surveyed lands (8.24 acres) from Goodtrack along with the surveyed lands from Lee. Lee accepted the RM offer but Goodtrack failed to respond. This prompted the RM to proceed with an expropriation bylaw on September 8, 2009. The full text of Bylaw 02/09 is set out below: The Council of the Rural Municipality of Waverley No. 44 in the Province of Saskatchewan enacts as follows: 1. The Council of the Rural Municipality of Waverley No. 44 deems it necessary to acquire title to the surveyed roadway through E 1/2 17-04-04-W3 as described in the attached Plan of Survey completed by Altus Geomatics in September, 2007; and cannot do so by agreement with the landowner. 2. It shall be lawful for the Rural Municipality of Waverley No. 44 to expropriate the said property; and to proceed in accordance with the provisions of The Municipal Expropriation Act 3. This bylaw shall take effect on the date of adoption by Council. 13 The bylaw was passed by RM council on September 8, 2009. 14 On December 7, 2009, several months after passage of the expropriation bylaw, the RM served Goodtrack with a “Notice of Intention to Ex- propriate” the roadway. For ease of reference the full text of this Notice is set out below: RE: Expropriation of SE and NE Section 17, Township 4, Range 4, West of the Third Meridian This is to advise you, as registered owner of the SE and NE Section 17, Township 4, Range 4, West of the Third Meridian, that the Rural Municipality of Waverley #44, has determined that it requires a portion of your property for municipal purposes. Since the Rural Munic- ipality of Waverley #44 was unable to reach a suitable agreement with you for acquisition of this area, the municipality is now proceeding under the provisions of The Municipal Expropriation Act. Goodtrack v. Waverley No. 44 (Rural Municipality) L.M. Schwann J. 777

This letter will serve as notice, pursuant to Section 5 of The Munici- pal Expropriation Act, that the Rural Municipality of Waverley #44 intends to acquire that portion of the property (or acquire an interest over the land) described as: SE and NE 17-4-4 W3 as shown on the attached plan, for the purposes of Roadway. A plan showing the area and the specification of the work to be done was deposited with the Administrator of the Rural Municipality of Waverley #44 on December 5, 2007. You are hereby given notice that you are entitled to claim compensation for the land taken or damage sustained to your property resulting from this action. Any claim must be filed with the Administrator of the Rural Municipality of Waverley #44, Glentworth, Saskatchewan, within 30 days from the date of service of this notice. Your claim must specify the nature of the claim and the amount of compensation requested. If your claim is not made within the specified time, your right to request compensation may be legally limited. Please note that pursuant to section 6 of The Municipal Expropria- tion Act, the municipality is, after service of this notice, legally entitled to, and will enter upon, take possession of and use the land, for the purpose of carrying out the required work. 15 Goodtrack did not respond in writing to the Notice of Intention nor has he advanced any claim for compensation otherwise contemplated by s. 5(1) of The Municipal Expropriation Act. 16 In response to affidavit material filed by Goodtrack in these proceedings, Deidre Nelson filed a second affidavit where she explains the impe- tus for the expropriation bylaw. In July 2007 the RM received a letter from the Department of Highways (Saskatchewan) indicating that the W 1/2 of 16-4-4 W3 and the NE and S 1/2 of 17-4-4 W3 had been selected for possible purchase by the Cowessess First Nation as treaty entitlement lands pursuant to the Treaty Land Entitlement (TLE) process. Ms. Nel- son deposed at para. 19 of her affidavit: 19. That following the decision of Mr. Justice Kyle dated July 23, 2003, all was quiet and no correspondence was exchanged between the Municipality and William Goodtrack. The road continued to be used as a roadway without incident. This continued until on or about July of 2007 when the Municipality received a letter from the De- partment of Highways stating that the W1/2 16-4-4 W3 and NE and S1/2 17-4-4-W3 had been selected for a possible purchase by the Cowessess First Nation. As part of this, any transfer of the land 778 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

would also include undeveloped road allowances and suggested that the roadway issued be resolved before any potential sale took place. ... Ms. Nelson further deposed at para. 36 of her affidavit: 36. That over the past 13 years, William Goodtrack has been aware of the position of the Municipality on the roadway and it was the potential sale of the lands in 2007 and the letter from the Department of Highways that prompted the Municipality to take steps to complete the registration of the roadway in the Municipality’s name. 17 The referenced letter from Saskatchewan Highways and Transporta- tion, which specifically earmarked Goodtrack’s lands, spurned the RM to action. While Saskatchewan Highways and Transportation was simply in an information gathering stage in 2007, unresolved municipal road issues were clearly brought to the RM’s attention as was new legislation which imposed stricter requirements for land acquisition. In short, the RM was strongly urged to identify and resolve municipal roadway issues should the TLE selection proceed.

Issues 18 The motions give rise to the following issues: a) were the requisite elements of s. 3(1) of The Municipal Expropria- tion Act satisfied, and if not, did the RM have jurisdiction to expropriate the land in question? b) if the requisite elements were satisfied, did the bylaw ‘specify the land and state the purpose for which it is required’ pursuant to s. 3(2) of The Municipal Expropriation Act, and if not, what is the legal effect of this omission? c) in the alternative, if the bylaw is found to be intra vires the RM, should it be set aside on grounds of discrimination, bad faith, improper purpose or unreasonableness? d) if the bylaw is valid and binding, should Goodtrack’s right to compensation be extinguished, or in the alternative, should the RM be directed to pay money into court as compensation for the expropriated lands? Goodtrack v. Waverley No. 44 (Rural Municipality) L.M. Schwann J. 779

Analysis 1. Preliminary Issues 19 Two preliminary issues must be addressed at the outset. The first is Goodtrack’s application pursuant to Rule 327 of The Queen’s Bench Rules to strike paragraphs 33 and 34 of Deidre Nelson’s affidavit, sworn March 20, 2012. The impugned provisions describe actions taken by Goodtrack to impede traffic flow over the trails on various occasions in 2011. 20 Rule 327 empowers this Court to strike any matter considered to be scandalous, offensive or irrelevant. If the matter is relevant but scandalous, it will not be struck. The test applied is whether the matter alleged to be scandalous would be admissible to show the truth of any allegation material to the relief claimed. (Bank of Nova Scotia v. R. (1983), 24 Sask. R. 312, [1983] S.J. No. 346 (Sask. Q.B.)). 21 Based on the grounds of attack advanced by Goodtrack, and as will be apparent from the decision below, the facts deposed to in paragraphs 33 and 34 are wholly irrelevant to the issues at hand and will therefore be struck. 22 The second matter of a preliminary nature arises out of Goodtrack’s application to extend the time to bring an application to quash the bylaw. This request must be viewed within the context of s. 358 of The Munici- palities Act, which provides: 358(1) Subject to subsections (2) and (3), any voter of a municipality may apply to the court to quash a bylaw or resolution in whole or in part on the basis that: (a) the bylaw or resolution is illegal due to any lack of substance or form; (b) the proceedings before the passing of the bylaw or resolution do not comply with this or any other Act; or (c) the manner of passing the bylaw or resolution does not comply with this or any other enactment. (2) An application pursuant to this section must be made to the court within 60 days after the bylaw or resolution is passed. (3) No application may be made pursuant to this section to quash a bylaw described in section 167. (4) A judge of the court may require an applicant to provide security for costs in an amount and manner established by the judge. 780 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

(5) A judge of the court may quash the bylaw or resolution in whole or in part and may award costs for or against the municipality and determine the scale of costs. (6) If no application is made pursuant to subsection (1), the bylaw or resolution is binding, notwithstanding any lack of substance or form in the bylaw or resolution, in the proceedings before its passing or in the time or manner of its passing. [emphasis added] 23 Section 358 is a statutory mechanism with an expanded right of standing for any voter who wishes to apply to quash a bylaw made by a municipal council. This statutory remedy is time limited as it must be launched within 60 days after the bylaw is passed. (Kane v. Lac Pelletier (Rural Municipality) No. 107, 2009 SKQB 348, 342 Sask. R. 113 (Sask. Q.B.)). Goodtrack concedes his application was filed well beyond the 60 day time limit prescribed by s. 358(2) and that his delay gives rise to his application to extend. Not insignificantly, Goodtrack also seeks to invoke this Court’s inherent jurisdiction by framing his motion as an application for certorari to quash. 24 A similar circumstance came before this Court in Markwart v. Blaine Lake No. 434 (Rural Municipality), 2006 SKQB 355, 290 Sask. R. 173 (Sask. Q.B.). While Mills, J. expressed doubt with the RM’s legal authority to waive “non compliance” in the context of the statutory remedy enshrined in s. 182 of The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1 (as rep. by The Municipalities Act, S.S. 2005, c. M-36.1), he was nonetheless content to dispose of the matter under the alternate judicial review framework of attack. The right to question the validity of a municipal bylaw through other means (i.e. the prerogative relief of certiorari), in addition to the statutory application, is considered accepted practice in Saskatchewan. (E.C. Argue Holdings Ltd. v. Edenwold (Rural Municipality) No. 158 (1999), 179 Sask. R. 142, [1999] S.J. No. 48 (Sask. Q.B.). 25 Given the alternate grounds upon which Goodtrack’s motion rests, I find it unnecessary to determine whether this Court has authority to extend the time for a s. 358 application. In any event, although the limitation issue was initially raised by the RM as a bar to proceedings, the parties have nonetheless agreed to proceed on the jurisdictional issues alone. Accordingly, I will proceed on that basis. Goodtrack v. Waverley No. 44 (Rural Municipality) L.M. Schwann J. 781

2. Standard of Review 26 In an application for judicial review of a municipal taxation bylaw, the Supreme Court of Canada in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 (S.C.C.), applying the reasoning in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), accepted reasonableness as the proper standard of review for intra vires decisions. (The issue in Catalyst Paper Corp. was whether the taxation bylaw in question should be set aside as being substantively unreasonable in that it fell outside the purview and rationale of the statutory scheme.) 27 Goodtrack submits the standard of review for threshold jurisdictional issues (i.e. whether the RM properly acquired jurisdiction or failed to meet the conditions precedent to acquire jurisdiction) is one of correctness, whereas the standard of review for intra vires decisions is reasonableness. The RM argues s. 360 of The Municipalities Act prescribes a standard of patent unreasonableness. (Section 360 prohibits attacks on grounds of unreasonableness where the impugned bylaw is passed in good faith.) 28 It is important to note here that Catalyst Paper Corp. did not pre- scribe a hard and fast reasonableness standard of review for all instances where municipal bylaws are the focus of attack. The question before the court in Catalyst Paper Corp. did not involve a true ‘jurisdictional’ question, accordingly it cannot be said that correctness was eschewed completely in relation to all bylaw challenges. When confronted with true ‘jurisdictional’ issues, that is whether an administrative tribunal had the statutory power to take the impugned action, Dunsmuir, supra, says this at para 59: 59 Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be 782 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

found to be ultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administra- tive Action in Canada (loose-leaf ed.), at pp. 14-3 to 14-6. (See also Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342at para. 33) 29 Moreover, where the jurisprudence has already established an accepted standard of review for a particular category or question, a full blown contextual analysis is unnecessary (Dunsmuir, supra, para. 62). On this point, and even though Saskatchewan jurisprudence has not always differentiated between the statutory remedy and judicial review, the case law is clear that when it comes to s.3(1) of The Municipal Expropri- ation Act, a ‘correctness’ approach has been adopted. 30 Therefore, applying Dunsmuir, supra, and Catalyst Paper Corp., supra, I find the standard of review for true jurisdictional issues (i.e. whether the RM had the statutory authority under s. 3 of The Municipal Expropriation Act to enact the impugned bylaw) to be one of correctness, but for questions involving intra vires decisions, it is one of reasonableness. The distinction between the two standards in their application was explained in the following manner: [13] If the applicable standard of review is correctness, the reviewing court requires, as the label suggests, that the administrative body be correct. If the applicable standard of review is reasonableness, the reviewing court requires that the decision be reasonable, having regard to the processes followed and whether the outcome falls within a reasonable range of alternatives in light of the legislative scheme and contextual factors relevant to the exercise of the power: Dun- smuir, at para. 47. (Catalyst Paper Corp., supra, para. 13)

3. Issues Raised by the Parties 31 I turn now to the substantive issues raised by the parties’ motions.

a) were the requisite elements of s. 3(1) of The Municipal Expropriation Act satisfied, and if not, did the RM have jurisdiction to expropriate the land in question? 32 An examination of the legal constraints on the exercise of municipal legislative authority begins with an understanding of the legal nature of municipal authorities themselves. Municipalities are not abstract, sover- eign authorities with inherent powers derived from the Constitution. Goodtrack v. Waverley No. 44 (Rural Municipality) L.M. Schwann J. 783

Rather, they are creatures of provincial statute inasmuch as they derive both their existence and powers from provincial law. As explained in Catalyst Paper Corp., supra: [11] Municipalities do not have direct powers under the Constitution. They possess only those powers that provincial legislatures delegate to them. This means that they must act within the legislative constraints the province has imposed on them. If they do not, their decisions or bylaws may be set aside on judicial review. 33 In the exercise of their statutory powers, including their bylaw making powers, municipalities are limited by their enabling legislation. Through judicial review, superior courts supervise the exercise of those statutory powers to ensure municipalities do not act in excess of or without lawful authority. This concept was explained in Dunsmuir, supra: [28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. 34 Expropriation, which is the compulsory acquisition of property without the consent of the owner, is a power or authority not infrequently exercised by municipalities. Municipalities possess no common law right to expropriate. Rather, the power to take private property must be conferred squarely in statute. The statutory language must be express and not implied. (C.E.D. (West 4th), Vol. 27, Title 64: Expropriation, p. 109 and 110). 35 In Saskatchewan, The Municipal Expropriation Act clothes municipalities with legal authority to expropriate land through bylaw where it cannot otherwise do so by agreement with the land owner. This power is expressed in the following manner: 3(1) If the council desires to acquire land for any purpose authorized by the appropriate municipal Act, and cannot acquire the land by agreement with the owner, the council may pass a bylaw to expropriate the land in the name and on behalf of the municipality. 36 Section 3(1) has been judicially considered on a number of occasions with Morgan v. Prince Albert (City) (1955), 15 W.W.R. 328, [1955] S.J. No. 14 (Sask. C.A.) being the controlling decision on the scope of the s. 784 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

3(1) power. Culliton, C.J.A., speaking for the Saskatchewan Court of Appeal, found s. 3(1) to be empowering, and not merely procedural in nature. Nevertheless, he observed this legal authority was not open ended, and that for a municipality to clothe itself with lawful authority, it must satisfy the criteria prescribed by that subsection. At para. 16 Cul- liton, C.J.A. commented upon the statutory ‘requisites’: [16] ... The section calls for three requisites: (1) The council must desire the land; (2) It must be for a purpose authorized by the appropriate municipal Act, in this case The City Act; (3) It must have been unable to acquire the land from the owner by agreement. (See also: Cugnet v. Weyburn (1981), 10 Sask. R. 137, [1981] S.J. No. 1299 (Sask. Dist. Ct.); Gravelbourg (Town) v. Smith (1983), 25 Sask. R. 126, 149 D.L.R. (3d) 176 (Sask. Q.B.) 37 In the present case, the parties do not dispute the RM’s desire to acquire the land nor whether the RM was unable to acquire the land agreeably from Goodtrack. (On the latter point, see comments below). They depart, though, on the question of whether expropriation was undertaken “for a purpose authorized by the appropriate municipal Act”. 38 To ascertain if this criteria was met, two questions must be answered: what was the underlying purpose of the RM’s intended expropriation, and second, is that ‘purpose’ authorized by municipal legislation? 39 Consistent with the legislative requirements expressed in s. 3(2) of The Municipal Expropriation Act, one would expect to find the ‘purpose’ articulated in the text of the expropriating bylaw. As discussed below, no purpose is expressed in the bylaw. That said, as Ms. Nelson explains in paragraph 19 of her affidavit, the Cowessess First Nation had identified lands within RM boundaries for possible transfer under the treaty land entitlement process. To accomplish that result, the provincial Ministry of Highways strongly encouraged the RM to clear up outstanding issues including those associated with undeveloped road allowances. This is confirmed in paragraph 36 of her affidavit. 40 The underlying reasons motivating this expropriation extracted from Ms. Nelson’s affidavit was the potential sale of land to the Cowessess First Nation coupled with encouragement from the Ministry of Highways to clean up loose ends. While these represent the underlying reasons which propelled or motivated the RM to take expropriation action, they do not constitute the ‘purpose’ authorized by municipal legislation. The Goodtrack v. Waverley No. 44 (Rural Municipality) L.M. Schwann J. 785

latter concept, in my opinion, is gleaned from the operative legislative schemes. 41 The RM submits that it enjoys plenary bylaw-making authority over streets and roads by virtue of The Municipalities Act. This authority is expressly set out in s. 8 of that Act: 8(1) A municipality has a general power to pass any bylaw for the purposes of the municipality that it considers expedient in relation to the following matters respecting the municipality: (g) streets and roads, including any temporary and permanent open- ings and closings; 42 The term “street” or “road” is broadly defined and embraces the trails on the Goodtrack land. Section 2(1)(xx) defines this term as follows: 2(1) In this Act: ... (xx) “street” or “road” includes all or any part of a culvert or drain or a public highway, road, lane, bridge, place, alley, square, thorough- fare or way intended for or used by the general public for the passage of vehicles or pedestrians; 43 Furthermore, bylaw powers are to be interpreted broadly as directed by s. 6: 6(1) The power of a municipality to pass bylaws is to be interpreted broadly for the purposes of: (a) providing a broad authority to its council and respecting the council’s right to govern the municipality in whatever manner the council considers appropriate, within the jurisdiction provided to the council by law; and (b) enhancing the council’s ability to respond to present and future issues in the municipality. (2) Any specific power to pass bylaws provided for in this Act to be exercised by a municipality is intended to operate without limiting the generality of any general power that might otherwise be interpreted as including the specific power and without limiting the generality of subsection (1) and of section 8. 44 Having regard to the aforementioned provisions, I am satisfied that municipalities have broad unencumbered authority to enact bylaws respecting ‘streets and roads’, including their permanent opening, and that this constitutes a ‘purpose’ authorized by municipal legislation. While it is true s. 8 does not confer express authority to expropriate lands to open 786 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

or create streets and roads, s. 8 must be read in conjunction with s. 3(1) of The Municipal Expropriation Act which does. These are complementary legislative schemes: one authorizes the broad right to expropriate while the other enumerates the municipal purposes when that right may be exercised. These provisions collectively lead to the conclusion that the opening of streets and roads within municipal boundaries is a ‘purpose’ authorized by law for which expropriation action may be taken. In other words, the RM has satisfied this ‘requisite’ element of s. 3(1) of The Municipal Expropriation Act, and did not act outside its jurisdiction in doing so. 45 Having reached this conclusion, and without deciding the issue, it is an open question whether the reasons or motivation underlying this bylaw constitute an improper purpose or can be attacked on some other basis. For the reasons which follow, I find it unnecessary to explore this issue apart from flagging it as a potential point of debate. 46 Before leaving s.3(1), and recognizing this issue was not before me on the within application, the observations of Vancise, J. (as he then was) in Gravelbourg (Town) v. Smith, supra, merit consideration. The issue before the court in Smith was whether the council was unable to acquire land from the owner by agreement, i.e was the third “requisite” of s. 3(1) satisfied. Vancise J. observed that failure to acquire by agreement (which he found not synonymous with ‘reasonable endeavour’) required something more than simple transmittal of an offer. Some attempt at personal contact and engagement was necessary to clothe the municipality with the statutory authority to expropriate. Furthermore, he said, this assessment must be viewed objectively having regard to the whole of the circumstances and not simply from the subjective viewpoint of the municipality. (see Smith, supra, paras. 14 and 15)

b) If the requisite elements were satisfied, did the bylaw ‘specify the land and state the purpose for which it is required’ pursuant to s. 3(2) of The Municipal Expropriation Act, and if not, what is the legal effect of this omission? 47 Goodtrack submits s. 3(2) of The Municipal Expropriation Act im- poses statutory preconditions for the enactment of a valid bylaw, and that failure to comply with these preconditions renders the bylaw void. Spe- cifically, s. 3(2) stipulates that where a municipal council proceeds with expropriation pursuant to s. 3(1), the council must specify both the land Goodtrack v. Waverley No. 44 (Rural Municipality) L.M. Schwann J. 787

proposed to be expropriated and the purpose for which the land is required within the text of the proposed bylaw. Subsection 3(2) provides: 3(2) The bylaw shall specify the land and state the purpose for which it is required. 48 A long line of jurisprudence has affirmed the principle that strict compliance with conditions imposed in statute on an enacting body is required for expropriation to be lawful. Legislatures have enacted requirements which must, as a general rule, be observed by the municipal corporation before the council can validly exercise the powers committed to it. These are referred to as conditions precedent or statutory formalities and are to be distinguished from regulations enacted by a council to govern procedure in the passing of bylaws. ... (Ian Rogers, The Law of Canadian Municipal Corporations, 2d ed. (Toronto: Carswell, 1971) vol. 2 at p. 433) 49 Case law draws a distinction between ‘conditions precedent’, which are a mere statutory formality, direction, or technicality, and true or essential preconditions. The general principle of law has been expressed in the following manner: It would seem necessary in view of these two rules, to distinguish between a condition which is an essential prerequisite to jurisdiction and one which is a statutory formality or direction. Non-compliance with the former renders the by-law void whereas non-observance of the latter renders it voidable. The line between these two classes is hard to distinguish and in most cases, the problem will resolve itself into one of construing the words of the statute to determine whether they are directory or compulsory. (Ian Rogers, The Law of Canadian Municipal Corporations, 2d ed. (Toronto: Carswell, 1971) vol. 2 at 1025) 50 In the context of expropriation bylaws, the accepted viewpoint is that statutory requirements must be strictly complied with. The Supreme Court of Canada in Costello v. Calgary (City), [1983] 1 S.C.R. 14 (S.C.C.) found longstanding support for the rule binding a municipal council to strict compliance with statutory requirements when exercising powers to pass an expropriation bylaw. At page 26, the Court observed: There are many other cases of similar import which have clearly established the principle that, where a power is given by a statute to a municipal government to expropriate individual interests in land, the 788 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

statutory conditions for the exercise of that power must be strictly complied with. (See also: C.E.D. (West 4th), Vol. 27, Title 64: Expropriation p. 111; Dell Holdings Ltd. v. Toronto Area Transit Operating Authority, [1997] 1 S.C.R. 32 (S.C.C.) para.20) 51 Moreover, by invoking the word “shall” in s. 3(2) in connection with the bylaw’s content, the Legislature saw fit to impart an imperative intent on the expropriating authority. This issue was taken up by the Alberta Court in Higdon v. Smoky Lake General & Auxiliary Hospital & Nursing Home District No. 73 (1982), [1983] 3 W.W.R. 23, 44 A.R. 229 (Alta. Q.B.) where the court commented on how the word “shall” should be interpreted in the context of expropriation legislation: 37 .....The word ‘shall’ occurring in a statute does not always infer that the provision is imperative: McMicken v. Fonseca (1890) 6 Man R 370. Where, however, an interpretation Act, such as our Interpreta- tion Act, supra, ch. 1, see. 41(v), expressly provides that the expression ‘shall’ shall be construed as imperative and, sec. 41(n), that the expression ‘may’ shall be construed as permissive, the court is bound to assume that the legislative might use the word ‘shall’ in a statute intends that the provision shall be imperative as contrasted with permissive, unless such an interpretation is inconsistent with the context, that is, renders the clause irrational or unmeaning.” See McHugh v. Union Bank of Canada (1913) 3 W.W.R. 1052, at 1062-63, [1913] A.C. 299, at 314, 315. When powers, rights or privileges are granted with a direction that certain regulations or formalities shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or privilege or authority conferred and it is therefore probable that such was the intention of the legislature: In re Cabulak (1911) 19 W L R 171” (See also Cabulak, Re (1911), 19 W.L.R. 171 (Alta. Dist. Ct.); Pelican Narrows (Northern Hamlet) v. Thunderbird Enterprises (P.N.) Ltd. (1986), 48 Sask. R. 81, [1986] 5 W.W.R. 8 (Sask. Q.B.)) 52 I turn now to the application of those principles to Bylaw 02/09. Goodtrack submits this Bylaw fails to state its intended purpose, that the requirement is mandatory, and consequently non-compliance with s. 3(2) renders the bylaw void. The RM on the other hand submits the purpose is implicitly found in the parties long standing relationship, discussions and prior legal encounter. Goodtrack v. Waverley No. 44 (Rural Municipality) L.M. Schwann J. 789

53 The principles of law and case authority set out above support the position advanced by Goodtrack. The rationale behind the requirement is obvious. As a matter of transparency, and to ensure the municipality is acting within its jurisdictional sphere, a land owner must be told why the land was expropriated in order to assess if the taking was lawful. They should not be asked to speculate. This rationale was eloquently expressed in Thorcon Enterprises Ltd. v. West Vancouver (District) (1987), 46 D.L.R. (4th) 742, 20 B.C.L.R. (2d) 259 (B.C. S.C.) at paras.22 and 23: [22] Unless the authority pursuant to which council purports to act is manifest from the terms of the resolution or by-law which it votes upon and passes, there is no effective way of determining whether or not the power which council is purporting to exercise is one which it lawfully enjoys. That is particularly so in those areas of activity, such as the expropriation of private property, where council’s powers are expressly and severely restricted by the terms of the Municipal Act. ... [23] The best evidence of the purpose which lies behind the legislative act of a municipal council is disclosed by the language with which it chooses to describe that purpose in the by-law which reflects the action taken. It is that language which, when voted upon, focuses council’s attention on the precise action to be taken and the reason or reasons which lie behind it. 54 A statement of purpose underlying the expropriating action is, in my opinion, a condition precedent to a lawful bylaw. Not only does s. 3(2) direct it by employing mandatory wording in that regard but the strict construction approach to expropriation statutes strongly sustains the view that it is a prerequisite to jurisdiction. Having failed to state a purpose, the RM acted without jurisdiction or authority when it purported to enact Bylaw 02/09 and the bylaw is therefore ultra vires and must be quashed and set aside. 55 A brief comment on the curative provision enshrined in s. 359(1) of The Municipalities Act is warranted, in particular whether it acts to save the bylaw in question. That section provides: 359(1) No bylaw or resolution is invalid if, at the time any action or proceeding is commenced to challenge its validity, the council has jurisdiction to pass it pursuant to this or any other Act. 56 Case authority suggests this provision is of little assistance in the face of an excess of jurisdiction, that is it does not authorize a municipality to go beyond the powers granted to it by legislation. Thus, a void or ultra 790 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

vires bylaw cannot be saved and validated by s. 359(1) but a bylaw made within the limits of the statutory powers of a municipality (i.e. intra vires) is not rendered invalid, merely voidable. (Ian Rogers, The Law of Canadian Municipal Corporations, 2d ed. (Toronto: Carswell, 1971) vol. 2 at 1034.10; see also E.C. Argue Holdings Ltd., supra, para. 14). In short, s. 359(1) does not save Bylaw 02/09.

c) in the alternative, if the bylaw is found to be intra vires the RM, should it be set aside on grounds of discrimination, bad faith, improper purpose or unreasonableness? 57 If the bylaw is found to be intra vires the RM, Goodtrack submits that it should nevertheless be set aside for being discriminatory, motivated by bad faith, enacted for an improper purpose or substantively and objectively unreasonable. As I have found the bylaw to be ultra vires, consideration of these issues is unnecessary.

d) if the bylaw is valid and binding, should Goodtrack’s right to compensation be extinguished, in the alternative, should the RM be permitted to pay money into court as compensation for the expropriated lands? 58 Similarly, because Bylaw 02/09 has been determined to be ultra vires, the RM had no legal authority to expropriate lands from Good- track, accordingly, the compensation provisions of The Municipal Expro- priation Act are inapplicable and need not be addressed. The RM’s application is dismissed.

Conclusion 59 For the reasons given, there will be an order quashing and setting aside Bylaw 02/09. 60 Costs may be spoken to. Application dismissed; cross-application granted. Halalt First Nation v. British Columbia 791

[Indexed as: Halalt First Nation v. British Columbia (Minister of Environment)] Chief James Robert Thomas, also known as Sulsimutstun, Chief of Halalt First Nation, on his own behalf and on behalf of all members of Halalt First Nation, and Halalt First Nation (Respondents / Petitioners) and Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Minister of Environment and the Minister of Community Development (Appellant / Respondent) and District of North Cowichan (Respondent / Respondent) and First Nations Summit, Tsuu T’ina Nation, Ermineskin Cree Nation, Samson Cree Nation and Fort McMurray #468 First Nation (Intervenors) Chief James Robert Thomas, also known as Sulsimutstun, Chief of Halalt First Nation, on his own behalf and on behalf of all members of Halalt First Nation, and Halalt First Nation (Respondents / Petitioners) and District of North Cowichan (Appellant / Respondent) and Minister of Environment of the Province of British Columbia, Minister of Community Development of the Province of British Columbia, District of North Cowichan (Appellants / Respondents) British Columbia Court of Appeal Docket: CA039263, CA039264 2012 BCCA 472 Chiasson, D. Smith, Neilson JJ.A. Heard: May 23-25, 2012 Judgment: November 22, 2012 Aboriginal law –––– Reserves and real property — Miscellaneous –––– River and aquifer flowed across and under reserve and other lands over which petitioner First Nation claimed aboriginal title — In response to drinking water turbidity problems, respondent municipality sought leave to pump groundwater from river and aquifer using well system — In belief that proposed pumping project would likely impact upon petitioners’ aboriginal property rights, respondent Crown in Right of province determined that petitioners were entitled to “deep consultation” — Significant negotiation and consultation ensued as between parties — At intermediate stage, province determined that year-round pumping would unduly compromise rights of, inter alia, petitioners, and project 792 WESTERN WEEKLY REPORTS [2013] 1 W.W.R. was amended to limit pumping to non-summer months — Petitioner was not specifically consulted with respect to project amendment prior to enactment of amendment — Province then issued permit to municipality to allow project as amended to proceed — Petitioner commenced judicial review proceedings to quash permit and prohibit further action in respect of project prior to satisfactory consultation and accommodation of petitioner’s aboriginal interests — Petition was granted, permit was quashed, project work was judicially stayed and respondents appealed — Appeal allowed — Respondents conceded that province owed petitioner duties both of consultation and of accommodation — Record disclosed that “deep consultation” in satisfaction of duty to consult pursuant to judgment of Supreme Court of Canada in Carrier Sekani Tribal Council v. Brit- ish Columbia (Utilities Commission) (“Rio Tinto”) did in fact occur in present case — Trial judge erred in law in holding that province owed specific duty to consult petitioner prior to amendment of project, as petitioner was entitled to consult with respect to “the Project that was being recommended to the Minis- ters”, being project as amended — Duty to consult was accordingly discharged in present case — Similarly province wholly satisfied duty of accommodation, as amendment of project to bar summer pumping was clear, significant and satisfactory step toward accommodation and as record disclosed province’s willingness to accommodate petitioner further on multiple occasions — In totality of circumstances, judgment below contained errors of law, of fact and of mixed law and fact and appeal was accordingly properly allowed. Natural resources –––– Waters and watercourses — Miscellaneous –––– River and aquifer flowed across and under reserve and other lands over which petitioner First Nation claimed aboriginal title — In response to drinking water turbidity problems, respondent municipality sought leave to pump groundwater from river and aquifer using well system — In belief that proposed pumping project would likely impact upon petitioners’ aboriginal property rights, respondent Crown in Right of province determined that petitioners were entitled to “deep consultation” — Significant negotiation and consultation ensued as between parties — At intermediate stage, province determined that year-round pumping would unduly compromise rights of, inter alia, petitioners, and project was amended to limit pumping to non-summer months — Petitioner was not specifically consulted with respect to project amendment prior to enactment of amendment — Province then issued permit to municipality to allow project as amended to proceed — Petitioner commenced judicial review proceedings to quash permit and prohibit further action in respect of project prior to satisfactory consultation and accommodation of petitioner’s aboriginal interests — Petition was granted, permit was quashed, project work was judicially stayed and respondents appealed — Appeal allowed — Respondents conceded that province owed petitioner duties both of consultation and of accommodation — Record disclosed that “deep consultation” in satisfaction of duty to consult pursuant to Halalt First Nation v. British Columbia 793 judgment of Supreme Court of Canada in Carrier Sekani Tribal Council v. Brit- ish Columbia (Utilities Commission) (“Rio Tinto”) did in fact occur in present case — Trial judge erred in law in holding that province owed specific duty to consult petitioner prior to amendment of project, as petitioner was entitled to consult with respect to “the Project that was being recommended to the Minis- ters”, being project as amended — Duty to consult was accordingly discharged in present case — Similarly province wholly satisfied duty of accommodation, as amendment of project to bar summer pumping was clear, significant and satisfactory step toward accommodation and as record disclosed province’s willingness to accommodate petitioner further on multiple occasions — In totality of circumstances, judgment below contained errors of law, of fact and of mixed law and fact and appeal was accordingly properly allowed. Environmental law –––– Statutory protection of environment — Environ- mental assessment — Aboriginal interests –––– River and aquifer flowed across and under reserve and other lands over which petitioner First Nation claimed aboriginal title — In response to drinking water turbidity problems, respondent municipality sought leave to pump groundwater from river and aquifer using well system — In belief that proposed pumping project would likely impact upon petitioners’ aboriginal property rights, respondent Crown in Right of province determined that petitioners were entitled to “deep consultation” — Sig- nificant negotiation and consultation ensued as between parties — At intermediate stage, province determined that year-round pumping would unduly compromise rights of, inter alia, petitioners, and project was amended to limit pumping to non-summer months — Petitioner was not specifically consulted with respect to project amendment prior to enactment of amendment — Province then issued permit to municipality to allow project as amended to proceed — Petitioner commenced judicial review proceedings to quash permit and prohibit further action in respect of project prior to satisfactory consultation and accommodation of petitioner’s aboriginal interests — Petition was granted, permit was quashed, project work was judicially stayed and respondents appealed — Appeal allowed — Respondents conceded that province owed petitioner duties both of consultation and of accommodation — Record disclosed that “deep consultation” in satisfaction of duty to consult pursuant to judgment of Supreme Court of Canada in Carrier Sekani Tribal Council v. British Columbia (Utilities Commis- sion) (“Rio Tinto”) did in fact occur in present case — Trial judge erred in law in holding that province owed specific duty to consult petitioner prior to amendment of project, as petitioner was entitled to consult with respect to “the Project that was being recommended to the Ministers”, being project as amended — Duty to consult was accordingly discharged in present case — Similarly province wholly satisfied duty of accommodation, as amendment of project to bar summer pumping was clear, significant and satisfactory step toward accommodation and as record disclosed province’s willingness to accommodate petitioner 794 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

further on multiple occasions — In totality of circumstances, judgment below contained errors of law, of fact and of mixed law and fact and appeal was accordingly properly allowed. Cases considered by Chiasson J.A.: Adams Lake Indian Band v. British Columbia (Lieutenant Governor in Council) (2011), [2011] 2 C.N.L.R. 1, 20 B.C.L.R. (5th) 356, 2011 CarswellBC 440, 2011 BCSC 266, [2011] B.C.J. No. 363 (B.C. S.C.) — considered Adams Lake Indian Band v. British Columbia (Lieutenant Governor in Council) (2012), 2012 BCCA 333, 2012 CarswellBC 2367, 35 B.C.L.R. (5th) 253, [2012] B.C.J. No. 1661 (B.C. C.A.) — referred to Carrier Sekani Tribal Council v. British Columbia (Utilities Commission) (2010), 325 D.L.R. (4th) 1, 406 N.R. 333, (sub nom. Rio Tinto Alcon Inc. v. Carrier Sekani Tribal Council) [2010] 4 C.N.L.R. 250, (sub nom. Rio Tinto Alcon Inc. v. Carrier Sekani Tribal Council)) [2010] 2 S.C.R. 650, 2010 CarswellBC 2867, 2010 CarswellBC 2868, 2010 SCC 43, (sub nom. Rio Tinto Alcon Inc. v. Carrier Sekani Tribal Council) 225 C.R.R. (2d) 75, 11 Admin. L.R. (5th) 246, 96 R.P.R. (4th) 1, [2010] 11 W.W.R. 577, 9 B.C.L.R. (5th) 205, 54 C.E.L.R. (3d) 1, 293 B.C.A.C. 175, 496 W.A.C. 175, [2010] A.C.S. No. 43, [2010] S.C.J. No. 43 (S.C.C.) — followed Haida Nation v. British Columbia (Minister of Forests) (2004), 19 Admin. L.R. (4th) 195, 327 N.R. 53, [2004] 3 S.C.R. 511, 36 B.C.L.R. (4th) 282, 206 B.C.A.C. 52, 338 W.A.C. 52, 11 C.E.L.R. (3d) 1, [2005] 1 C.N.L.R. 72, 26 R.P.R. (4th) 1, 2004 CarswellBC 2656, 2004 CarswellBC 2657, 2004 SCC 73, 245 D.L.R. (4th) 33, [2005] 3 W.W.R. 419, [2004] S.C.J. No. 70, REJB 2004-80383 (S.C.C.) — followed Hupacasath First Nation v. British Columbia (Minister of Forests) (2005), 2005 BCSC 1712, 2005 CarswellBC 2936, [2006] 1 C.N.L.R. 22, 51 B.C.L.R. (4th) 133, 41 Admin. L.R. (4th) 179 (B.C. S.C.) — considered Jens v. Jens (2008), 300 D.L.R. (4th) 136, 57 R.F.L. (6th) 31, 84 B.C.L.R. (4th) 250, 2008 CarswellBC 2091, 2008 BCCA 392, 439 W.A.C. 185, 260 B.C.A.C. 185, [2008] B.C.J. No. 1886 (B.C. C.A.) — referred to Neskonlith Indian Band v. Salmon Arm (City) (2012), 2012 BCCA 379, 2012 CarswellBC 2884, 1 M.P.L.R. (5th) 177, 70 C.E.L.R. (3d) 1, [2012] 12 W.W.R. 1 (B.C. C.A.) — followed North Vancouver (District) v. Lunde (1998), 162 D.L.R. (4th) 402, (sub nom. North Vancouver (District) v. Fawcett) 110 B.C.A.C. 137, (sub nom. North Vancouver (District) v. Fawcett) 178 W.A.C. 137, 1998 CarswellBC 1438, 60 B.C.L.R. (3d) 201 (B.C. C.A.) — referred to Taku River Tlingit First Nation v. British Columbia (Project Assessment Direc- tor) (2004), 19 Admin. L.R. (4th) 165, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) 327 N.R. 133, 36 B.C.L.R. (4th) 370, 206 B.C.A.C. 132, 338 W.A.C. 132, 11 Halalt First Nation v. British Columbia 795

C.E.L.R. (3d) 49, [2005] 1 C.N.L.R. 366, 26 R.P.R. (4th) 50, 2004 Car- swellBC 2654, 2004 CarswellBC 2655, 2004 SCC 74, 245 D.L.R. (4th) 193, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) [2004] 3 S.C.R. 550, [2005] 3 W.W.R. 403, [2004] S.C.J. No. 69, REJB 2004-80382 (S.C.C.) — followed Thomas v. North Cowichan (District) (2011), 2011 CarswellBC 3725, 2011 BCCA 544, [2011] B.C.J. No. 2636 (B.C. C.A. [In Chambers]) — followed Statutes considered: Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44 s. 35 — considered Environmental Assessment Act, S.B.C. 2002, c. 43 Generally — referred to s. 2(1) — considered s. 8(1) — considered s. 8(2) — considered s. 10(1)(c) — considered s. 10(2) — considered s. 11 — considered s. 13 — considered s. 19 — referred to Regulations considered: Drinking Water Protection Act, S.B.C. 2001, c. 9 Drinking Water Protection Regulation, B.C. Reg. 200/2003 Generally — referred to Environmental Assessment Act, S.B.C. 2002, c. 43 Reviewable Projects Regulation, B.C. Reg. 370/2002 Generally — referred to Pt. 5 — referred to

APPEAL by respondents from judgment reported at Halalt First Nation v. British Columbia (Minister of Environment) (2011), 60 C.E.L.R. (3d) 179, 2011 CarswellBC 1846, 2011 BCSC 945, [2011] B.C.J. No. 1343 (B.C. S.C.), granting First Nation’s petition for order quashing decision of respondent Crown in Right of province issuing certain groundwater well permits.

P.E. Yearwood, for Appellant, Minister of Environment, Minister of Community Development R.E. Harding, G.H. Cockrill, for Appellant, District of North Cowichan W.J. Andrews, for Respondent M. Morellato, Q.C., for Intervenor, Summit First Nations 796 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

C.D. Leonard, for Intervenor, Alberta First Nations

Chiasson J.A.: Introduction 1 These are appeals from orders made on judicial review of the decision of the appellant Ministers to issue a certificate permitting the appellant District of North Cowichan (the “District”) to proceed with a project to pump water from an aquifer. The appeals concern the Crown’s duty to consult Aboriginal groups in the context of a statutorily mandated environmental review process.

Background 2 The District is a municipal entity responsible for providing, among other things, water to the Town of Chemainus on Vancouver Island, Brit- ish Columbia. The District wanted to install three pumps on the banks of the Chemainus River to avoid turbidity problems that occurred with drinking water (the “Project”). The pumps were to be installed on fee- simple land that had been acquired from a third party in 1989. The river runs through the reserve of the respondent, Halalt First Nation (“Halalt”); a substantial part of the Chemainus River aquifer runs under the reserve. The Halalt is one of six members of the Hul’qumi’num Treaty Group (“HTG”). The Group is engaged in treaty negotiations with Canada and British Columbia under the British Columbia Treaty Process. Freshwater resources, including groundwater, are within the scope of the treaty negotiations. 3 In March 2001, the District applied for funding under the Canada-BC Infrastructure Program. In May 2003, its application was approved subject to approval of the Project by the Province pursuant to the Environ- mental Assessment Act, S.B.C. 2002, c. 43 [EAA]. The Province and the federal government each agreed to fund one-third of the Project. The chambers judge described the involvement of the federal government as a result of this funding arrangement in para. 114 of her reasons: When the federal government provides financial assistance to a proponent to construct an undertaking such as the Project, the undertaking is subject to federal review under the Canadian Environmental Assessment Act, S.C. 1992, c. 37 [CEAA]. Accordingly, the Project triggered the federal environmental assessment review process. The Canadian Environmental Assessment Agency (the “CEA Agency”) supervised the federal aspects of the environmental assessment. The Halalt First Nation v. British Columbia Chiasson J.A. 797

federal agency known as Western Economic Diversification Canada (“WEDC”) administered the federal funds granted to the District for the project. WEDC was responsible for ensuring that the environmental assessment was conducted in accordance with the provisions of the CEAA. 4 In 2003, the District delivered a proposal for the Project to the Envi- ronmental Assessment Office (“EAO”), which is an “office of the government” under the EAA (s. 2(1)). On July 15, 2003, Mr. Stephen Con- nolly, a Project Assessment Manager, determined that the Project may have significant adverse effects and issued an order under s. 10(1)(c) of the EAA requiring an environmental assessment certificate and directing that the Project could not proceed without an assessment. 5 The judge described the additional involvement of federal agencies in para. 115: Because of the Project’s proposed groundwater extraction rate, the federal assessment process required the preparation of a Comprehen- sive Study Report. The provincial and federal agencies permitted the District to submit one document that met the requirements of both agencies. For that reason, the application submitted by the District to the EAO was described as both its application under the EAA (the “Application”) and a Comprehensive Study Report under the CEAA. 6 On September 9, 2003, Mr. Connolly met with representatives of the District, a heritage consultant and Mr. Brian Olding, a representative of the HTG. Mr. Connolly “requested the nature of any concerns held by [HTG] and the views of HTG on consultation over this project”. In a letter dated October 7, 2003, representatives of the HTG offered their concerns and views on the Project. The HTG wanted “to be assured that the water to be taken from the aquifer under the project [did] not represent a significant depletion of future water availability”. It recognized that there are uncertainties in the natural environment: “[a]bsolute certainty is not what we are looking for”. The HTG did expect that “professional expertise [would be] brought to bear on producing reasonable estimates of aquifer supply”. The HTG representatives also referred to the ongoing treaty negotiations; it stated its position that it had not relin- quished title to surface or sub-surface resources in its territory. 7 On December 9, 2003, Mr. Connolly issued an order under s. 11 of the EAA. It recited that Canada and British Columbia would work together to develop a project-specific work plan for a cooperative environmental assessment of the Project. It ordered that “the environmental as- 798 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

sessment of the Project be conducted according to the scope, procedures and methods set out in Schedule A”. Schedule A provided for the establishment of an Advisory Working Group (“Working Group”) that “may comprise representatives of federal and provincial agencies, and First Nations”. The order provided for consultation between the District and First Nations. The District was obliged to report on all such consultations to the Project Assessment Manager. Paragraph 18.2 of Schedule A stated: For the purposes of completing the Assessment Report, the Project Manager may consult, as necessary: i. Review Participants in general, ii. First Nations, iii. Advisory Working Group, and iv. any other advisory mechanism deemed necessary to advise on the drafting of the Assessment Report. On January 31, 2004, Mr. Paul Finkel replaced Mr. Connolly as Project Assessment Manager. 8 On August 5, 2004, after an initial screening, the District filed an “Application for an Environmental Assessment Certificate and Draft Comprehensive Study Report”. The document included technical reports by the District’s consultants including Thurber Engineering Ltd. It also described pre-application consultation with the Halalt and other Aborigi- nal groups. A number of meetings had been held with the Halalt, which included presentations describing the Project. An example of such a meeting is a March 16, 2004 open house that was held at the Halalt First Nation Band Office. The open house was described in the applications as follows: ... the Open House provided further details of the proposed project, proposed technical studies, the provincial and federal environmental assessment process and provided an opportunity to pose questions to the DNC and consultants involved with the project. ... The format of the Open House was to present information on the proposed project on descriptive panel boards (Appendix 5) and to provide an opportunity for members of the project team attending their respective boards to answer questions and to provide further information on the project. A feedback form was also provided so that persons attending the Open House could provide written comments on Halalt First Nation v. British Columbia Chiasson J.A. 799

the Applications while at the Open House or forward to the DNC later. The application included a table that summarized issues identified by First Nations during the pre-application process and the location in the application where such issues were addressed. 9 On August 5, 2004, Mr. Finkel wrote to the Halalt Chief and Council noting that a copy of the report had been delivered to their office. Mr. Finkel invited them to provide written comments “on the Application to identify any potential impacts that may be of concern”. On the same date, Mr. Finkel wrote to the members of the Working Group inviting comments. Several Aboriginal groups of the HTG, including the Halalt, were included. 10 On August 20, 2004, Mr. Finkel convened an introductory meeting and a site visit. Mr. Olding was included in the requested participants. He did not attend, but was sent a copy of the draft and final notes of the meeting and action items. 11 On August 27, 2004, Mr. Brian Morales, chief negotiator of the HTG, provided written comments on the District’s application. Mr. Finkel immediately contacted Mr. Olding and replied to Mr. Morales on Septem- ber 22, 2004. In his reply, Mr. Finkel addressed the environmental review process and stated that consultation with First Nations will continue throughout the process “in accordance with the guidelines of the Provin- cial Policy for Consultation with First Nations (October 2002)”. He included a copy of the Policy with the letter. Mr. Finkel noted in his affidavit describing the September 22 letter that although the Policy had been prepared prior to the decisions of the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 (S.C.C.) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 (S.C.C.), “our approach to consultation took those decisions into account”. 12 A copy of the letter was sent to Mr. Olding and to the member First Nations of the HTG. In this communication, as in most, if not all, of his communications to the Halalt, Mr. Finkel stated he would be pleased to meet and to discuss. 13 On November 1, 2004, Mr. Finkel recorded that the previous week he had been contacted by a representative of the Halalt. He discussed this conversation with Mr. Olding. According to Mr. Finkel’s recording, Mr. 800 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

Olding planned to meet on November 2, 2004 with the Halalt to explain the treaty process and to provide an update on the environmental assessment. 14 There were further communications between Messrs. Finkel and Old- ing in October and November 2004. At Mr. Olding’s request, they de- ferred further meetings to the New Year. 15 On November 24, 2004, Georgia Dixon, a representative of the Halalt, advised Mr. Finkel that the group was waiting for a quotation from a hydrological engineer “to provide independent advice to the Chief and Council with respect to the impacts to Halalt’s right and title arising from the Chemainus water supply project”. She noted that the Halalt would be applying to the EAO for funding assistance. Over the course of the environmental assessment, the EAO provided $45,000 to the Halalt. The District also provided financial assistance for the Halalt to conduct an oral history project. 16 On November 25, 2004, after expressing an openness to discuss funding, Mr. Finkel responded that the “hydrology report from Thurber Engi- neering will likely be distributed next week”. The Halalt retained Dr. Wendling of EBA Engineering Consultants Ltd. as its expert. 17 On November 26, 2004, Ms. Dixon wrote to Mr. Finkel, stating: During our conversation this morning, I noted your advice that the issue of Halalt First Nation’s rights and title with respect to the [aquifer] is outside the EOA’s framework for addressing (please advise if I am mistaken here)... Mr. Finkel responded on December 3, 2004: Thanks for this information. Yes, you are correct about my reference to the subject of rights and title and the scope of the environmental assessment. Resolving rights and title claims, including claims to an aquifer, is beyond the scope of an environmental assessment and would be a subject for discussion at a treaty table. The environmental assessment is a process [focused] on project specific impacts. We will consider whether the Chemainus Wells Project has the potential to adversely impact the effectiveness of the existing well on the Halalt First Nation Reserve (I.R. 2), the sustainability of the aquifer or the flows in the Chemainus River. The Environmental Assessment Office will also follow the guidance in the Provincial Policy for Con- sultation with First Nations (October 2002) and applicable case law requirements when conducting the environmental assessment. If you Halalt First Nation v. British Columbia Chiasson J.A. 801

have any other questions about the scope of the environmental assessment please let me know. Ms. Dixon replied the same day clarifying the position of the Halalt: Hello Paul, we have a misunderstanding here if there is an impression that Halalt First Nation is anticipating a resolution of title and rights to the [aquifer] through the Environmental Assessment Office. The duty required here is, pursuant to the provincial policy, if Halalt has a sound claim of aboriginal rights and title, then the Crown must accommodate Halalt’s interest in proportion to the soundness of claim, depending on the specific circumstances. It is upon these grounds that Halalt is undertaking a consultation process with respect to the [aquifer] and the impacts of the Chemainus Water well project on the subject rights and title, and is entitled to have the Crown’s consideration of Halalt First Nation’s aboriginal interests. 18 On December 6, 2004, Mr. Finkel sent a copy of the District’s No- vember 30, 2004 hydrology report prepared by Thurber Engineering to the members of the Working Group, which included, Messrs. Morales and Olding, the Halalt and EBA Engineering. On January 17, 2005, Dr. Wendling provided “Comments and Critics of Thurber Engineering Re- port ... and other related reports”. 19 The Working Group met on January 20, 2005. Thurber Engineering indicated that the period of greatest concern was the summer months when river levels are low. Over the next number of years, the Working Group was asked to provide comments on material and met on a number of occasions. The Halalt and its advisors participated. 20 In para. 139 of his affidavit, Mr. Finkel described his approach to consultation as follows: I also made inquiries with the Ministry of Attorney General and treaty negotiators to determine whether a formal strength of claim analysis had been done in connection with Halalt. The main information I had at this stage (early 2005) was information I received from treaty negotiators and from Halalt. I was not sure how strong the claim to title was. At that point in time, I did not know about the spawning channel or what use Halalt had historically made of the land on which the Project was located. I do not recall the exact timing, but certainly by mid March, after I had obtained Allan Dakin’s views, I was satisfied that, given the proximity of the Project to Halalt’s reserve, the fact that the Chemainus River runs through the reserve, and the fact that both Halalt and the District would rely on the same aquifer for groundwater, the Project could have a signifi- 802 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

cant impact on Halalt’s asserted rights and decided as a result to engage in deep consultation. (It was later in 2007, based on my review of the Ethnographic Report mentioned below, that I concluded that Halalt’s occupation of the area would not have been exclusive but shared with other members of the Hul’qumi’num Treaty Group. But this did not lessen the level of consultation.) He returned to the topic in para. 391: On or about July 11, 2007, I received from the Aboriginal Research Division of the Ministry of Attorney General a research report dated February 15, 2007 prepared by Deidre Duquette that reviewed readily available historic, ethnographic, and archaeological sources concerning the Halalt First Nation. A copy of the report is attached as Exhibit “465”. I obtained this report as part of my effort to assess the strength of the Halalt claim to title over the aquifer. As earlier exhibits indicate, it was my understanding since shortly after the Commen- tary was provided in February 2005 that the question of aboriginal title to the aquifer had not been determined, but that Halalt likely had a strong claim of aboriginal title to the land on which the wells for the Project would be situated. By approximately the end of 2006, however, I also became aware that the District had bought that land from a private land owner some years earlier. 21 On February 4, 2005, the Halalt delivered an extensive report entitled: “Halalt First Nation Commentary to the Environmental Assessment Office Regarding the District of North Cowichan Application for an En- vironmental Assessment Certificate”. In it, the Halalt addressed its title, the history of its occupation of its traditional territory, the Crown’s duty to consult and the consultation that already had taken place. The Halalt also stated its concerns and the accommodation measures that it would consider acceptable, which were described as follows: 10.1.1 To accommodate the aboriginal title, there must be measures in place that shows the reduction in pollution to the aquifer and the enhancement of the ecosystem as a whole. 10.1.2 Protection of the aquifer must be the primary principle for future generations. 10.1.3 To accommodate the aboriginal title, which confers an economic interest in the aquifer and surrounding lands, the parties will negotiate a water lease subject to conditions precedent and/or positive covenants or restrictive covenants. Halalt First Nation v. British Columbia Chiasson J.A. 803

10.1.4 To accommodate the aboriginal title, which confers a cultural interest, the water lease will be in effect as long as the environmental and sustainability conditions are satisfied. 10.1.5 The conditions will involve measures that show a reduction in pollution, and enhancement of the ecosystem as a whole. 22 Mr. Finkel prepared a draft response to some of the comments in the Commentary that he considered inaccurate, but decided not to send a formal response. In his affidavit, he stated that he opted not to do so “in the interests of resolving Halalt’s concerns”. Instead, there was a meeting between the EAO, the District and the Halalt on March 7, 2005. There, the concerns of the Halalt as presented in the Commentary were discussed to ensure that the EAO understood them. Sometime thereafter, Mr. Finkel prepared an “Issues Tracking Document” consisting “of a table [that] summarizes the issues identified in written comments from agencies, First Nations and the public”. The document was described as “a tool used by the EAO and Working Group to focus discussions on specific issues”. 23 Over the ensuing few years, there were extensive requests for and exchange of technical information. In addition to Dr. Wendling, the Halalt retained other experts. Because there was some disagreement among the experts, in February 2005, the EAO retained an independent hydrologist, Allan Dakin. 24 In summary, the initial position of some experts was that there was little relationship between the Chemainus River and the aquifer, that is, pumping water from the aquifer would not affect the river. This was dis- puted and refuted. Programs were explored to test the effect of pumping on the river. Any summer pumping was considered likely to impact the river adversely. Release of other water to supplement the river was discussed. Eventually, the Project was modified. 25 I turn to the first modification beginning with developments that led to it. 26 On March 15, 2005, Mr. Dakin advised Mr. Finkel that the relationship between the Chemainus River and the aquifer was not understood well enough based on available data. The question whether summer pumping would remove surface water from the river was unresolved. On March 16, 2005, Mr. Finkel informed the federal government and the District of this advice. On Friday, March 18, 2005, the District requested that the EAO temporarily suspend the time limit for the environmental 804 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

assessment to allow the District “to collect further field monitoring data and to continue consultation with the Halalt First Nation”. That day, Mr. Finkel advised the Halalt of the District’s request. 27 On Monday, March 21, 2005, the Halalt asked Mr. Finkel for a copy of the District’s letter requesting the suspension of time. Mr. Finkel sent it that day. 28 On April 11, 2005 Mr. Finkel received Mr. Dakin’s report. He sent it to the federal representatives and to the District. 29 On April 14, 2005, the Halalt asked about the implications of the suspension of time. Mr. Finkel replied that the District had to collect more information before the environmental assessment could continue. He stated that “[n]o decision will be made about the wells project until more work is done and until there is more consultation with the Halalt”. He also noted that he had an expert report by a hydrogeologist hired by the EAO to distribute (the Dakin report) and that it would be sent to the Working Group and the Halalt. This was done on April 15, 2005. 30 Steps were taken to assess the implications of the proposed pumping on the Chemainus River and the aquifer. On July 21, 2006, Thurber En- gineering distributed to the Working Group its report on the field monitoring and test program. In an August 18, 2006 email, Mr. Finkel invited comments from the Group. He received some from members of the Group, including the Halalt, Mr. Dakin and Provincial and federal agencies. Mr. Finkel in turn distributed these comments to the Halalt and others on October 12, 2006. 31 On October 24, 2006, EAO met with the Halalt. Mr. Finkel reported on his communications with the District and the options available to it: further studies or mitigation. He noted that the District had to retain an aquatic specialist. 32 On October 25, 2006, the District wrote to the Halalt advising that it proposed to retain a Mr. Todd Hatfield. It also asked for comments. The background of this step was described as follows: Paul Finkel of the BC Environmental Assessment office has requested in his Oct 10/06 letter that The District develop a monitoring and mitigation/contingency plan as the next step in the environmental assessment. The terms of reference for this work will be developed in consultation with the working group members and Halalt First Na- tion. The Plans would be prepared by an aquatic biologist and our Halalt First Nation v. British Columbia Chiasson J.A. 805

ground water consultants. We have received names of experienced biologists from DFO and MOE. On October 27, 2006, the Halalt advised that it agreed to the selection of Mr. Hatfield. 33 On December 6, 2006, representatives of the Halalt, the District and the EAO met. Mr. Hatfield also was present. The implications of the July Thurber report were discussed. Mr. Finkel distributed and reviewed an “EAO Summary of Halalt First Nations Issues Presented in 2005”, which had been developed “to document and track issues raised previously by the [Halalt] and ensure they are not lost”. This document also had been discussed at the October 24, 2006 meeting and was discussed at other meetings throughout the process. 34 On December 8, 2006, Mr. Finkel distributed a three page summary of Mr. Hatfield’s proposed aquatic assessment to the Halalt and others. 35 Mr. Hatfield sought the participation of the Halalt in a site visit he planned in conjunction with his investigation, but the Halalt declined to participate. Mr. Hatfield sought and obtained the comments of Dr. Wendling and provided technical information to him. On February 16, 2007, Mr. Hatfield advised that he was working towards a mid-March completion of a draft report. He delivered the report to the District on March 8, 2007. The District sent it to Mr. Finkel on March 13, 2007. On April 4, 2007, Mr. Finkel sent a copy to federal representatives. The draft report indicated that reduction in river flow during low water risked en- dangering fish and recommended mitigation and monitoring. On July 20, 2007, Mr. Hatfield delivered a draft monitoring plan to Mr. Finkel. 36 On May 9, 2007, the EAO met with the District to discuss the status of the Project. According to Mr. Finkel’s record of the meeting, the Dis- trict expressed a willingness to modify the operating regime. In an email to his federal counterparts subsequent to the meeting, Mr. Finkel described the “revised operating regime” as follows: 1. Use of the wells during the winter months (to a maximum of 131 l/s) to avoid the turbidity problems associated with Banon Creek Reservoir. 2. No use of the wells during the summer period (window to be determined but likely from mid June to mid-October) EXCEPT in response to a public health risk (determined by VIHA), an emergency (such as major fire), or if surface water quality is below acceptable standards (e.g. turbidity). 806 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

3. The restrictions placed on the summer operating regime would be loosened or eventually removed if future testing demonstrates that releases of water from Banon Creek Reservoir successfully mitigate impacts to Chemainus River flows. This was the first modification or the proposed modification. 37 According to this email, the District intended to write to the EAO proposing the change. Once this was received, Mr. Finkel planned to distribute the Hatfield report to the Halalt and the Working Group. The Dis- trict, in a May 24, 2007 letter to the EAO, proposed the above changes. On May 29, 2007, Mr. Finkel sent to the Halalt copies of Mr. Hatfield’s draft report and the District’s May 24, 2007 letter. He invited the Halalt to have its representatives review and comment on the report and proposed a June meeting with the Halalt to discuss its views on the report, recent information from the District and the Project overall. 38 The Halalt did not respond to Mr. Finkel’s overtures. On June 21, 2007, Mr. Finkel again asked for comments and proposed a meeting with the Halalt. There was no response. On July 4, 2007, Mr. Finkel wrote again. He advised the Halalt that if no comments were received by July 13, 2007, the environmental assessment would proceed on the basis of the material then available. He also noted that a promised oral history, which was funded by the District and expected in October 2006, had not been delivered. The oral history “was to help identify how the Project might impact Halalt’s aboriginal rights and title”. 39 On July 6, 2007, Mr. Finkel sent the Halalt copies of correspondence from others commenting on Mr. Hatfield’s report. On July 9, 2007 a representative of the Halalt asked for more time to comment. 40 The Halalt and two of its consultants delivered comments to the EAO on July 27, 2007. The Halalt stated it was pleased to have been given the opportunity to comment on Mr. Hatfield’s report. It expressed the need for caution and urged the establishment of a watershed management plan. Mr. Finkel previously had advised the Halalt that although development of a watershed management plan was outside the mandate of the environmental assessment, he would be pleased to put the Halalt in contact with the appropriate provincial agencies. 41 Mr. Finkel forwarded the Halalt material to the District and the federal representatives on July 30, 2007. 42 On September 20, 2007, the Halalt met with the EAO and representatives of federal and provincial agencies. In addition to technical advisers, Halalt First Nation v. British Columbia Chiasson J.A. 807

the Halalt’s legal advisers were present. Mr. Finkel reviewed the environmental assessment process. The parties discussed technical issues and the concerns of the Halalt. According to the minutes, Mr. Finkel stated that comments were expected from the Ministry of Environment on the Halalt’s commentary on the Hatfield report. Mr. Finkel forwarded to the Halalt the Ministry’s comments and the comments of Mr. Dakin on No- vember 26, 2007. 43 Over the next few months, the various consultants exchanged technical information. In December 2007, Mr. Hatfield provided revisions to his report. A further meeting with the Halalt, federal representatives and the EAO took place on February 6, 2008. In addition to the Halalt’s technical advisers, a legal representative was present. He discussed the Halalt’s Aboriginal rights and title and the Crown’s duty to consult. 44 At this meeting, Mr. Finkel expressed a concern that the Halalt and the District were not meeting. He noted that previously the Halalt had advised the EAO not to mediate because the Halalt preferred to deal directly with the District. 45 On March 10, 2008, Mr. Finkel advised the District that, “given identified and unresolved environmental effects”, the EAO would not recommend for certification the Project as currently designed. He stated he was not recommending any specific course of action, but that the District might want to consider modifying the system as a back-up system for the winter months and to delink the reservoir from the wells proposal. He recorded that his message was a “shock” to the District. Mr. Finkel planned to follow-up his conversation with a letter, but decided to wait until planned meetings between the Halalt and the District took place. 46 These meetings took place on March 12, May 12, June 9 and 23 and July 17, 2008. It is apparent that the District took to heart the comments of Mr. Finkel because at the May meeting with the Halalt the District sought support for the Project, which it described as using the wells: ...during the winter for domestic supply to Chemainus and to continue testing throughout the summer to determine whether or not the aquifer can accommodate summer and winter use. 47 On July 18, 2008, the District reported its understanding of the Halalt’s position to the EAO: The Halalt have advised that we have two options: 1) We sign an agreement with them giving them control or ownership (control and ownership is yet undefined) of the pro- 808 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

posed well project including funding their negotiating costs, in which case they will support the project. 2) We do not sign an agreement — in this case, they will oppose the project and seek assistance from the Provincial and Fed- eral governments for recognition of their claimed ownership of the groundwater. 48 On October 8, 2008, Mr. Finkel wrote to the District advising that the environmental assessment was at the referral stage. He expressed concern with the strength of the rationale for the Project now that the District proposed to operate the wells only in the winter. He asked the District to advise by October 31, 2008 whether it wanted to proceed with the existing proposal or to consider other options. 49 On October 9, 2008, the District wrote to the EAO expressing its view that it was at an impasse with the Halalt. It proposed a revision: In an effort to further address the Halalt’s concerns about the potential impact of the well project on the Halalt First Nation, the District wishes to propose the following change to the operating regime for the project in addition to the changes outlined in our May 24, 2007 letter (attached). 1) The District will reduce the number of wells to be constructed from three to two. Wells #2 and #3 will be constructed. Well #1, which is the closest well to the Chemainus River and could potentially have the most significant impact of the three wells to the Halalt Reserve and spawning channel, will not be constructed at this time. Construction of Well #1 in the future would be subject to an amendment to the Environmental As- sessment Certificate. 2) Only one well, either #3 or #2, will be operated at any one time, for the first winter from October 15 to June 15. The control system will be set such that only one well can operate at a time in the winter months. Both wells will only be operated at the same time for testing purposes in the summer to undertake further monitoring and confirm the effectiveness of the mitigation plan. The District believes that by reducing the number of wells from three to two at this time, it is reducing the potential impact of the project on the Halalt First Nation. We are proposing to construct two wells, but only operate one at a time until further testing confirms that two wells can be run concurrently. Halalt First Nation v. British Columbia Chiasson J.A. 809

50 On November 3, 2008, a meeting was held with the EAO, provincial and federal agencies representatives and representatives of the District. The revised proposal was discussed. 51 On November 10, 2008, Mr. Finkel issued an order under s. 13 of the EAA. The operative part of that order stated: 1. The scope of the Project set out in 2.1 of the Order issued on De- cember 9, 2003 under section 11 is varied and replaced by the following: For the purposes of the environmental assessment of the Pro- ject, the Project comprises the following physical works and the physical activities associated with their construction, operation and closure: i. Two groundwater production wells, PW#2 and PW#3 (Figure 1) each with a capacity of approximately 75 l/sec, located on the north shore of the Chemainus River, downstream of the Trans Canada Highway; ii. Ancillary facilities including monitoring wells, pumphouse, piping, chlorination system, access road and hydro connection; iii. Approximately 3970 m of water main connecting the wells to an existing water main at the intersection of the Trans Canada Highway and Henry Road; iv. A 4.54 million litre (1M Imperial gallon) concrete reservoir to be constructed on River Road, connected to the other elements of the Project by existing water main; v. Subject to the Reviewable Projects Regulation (BC Reg 370/2002), operation of the groundwater production wells only between October 15th and June 15th each year; and vi. Subject to the Reviewable Projects Regulation (BC Reg 370/2002), operation of no more than one groundwater production well at any one time. This was the second modification or the actual modification. 52 By letter dated November 10, 2008, Mr. Finkel advised the Halalt of the modification. He included copies of his October 8, 2008 letter to the District and its October 9, 2008 letter to the EAO. Mr. Finkel confirmed that it was the position of EAO that no summer pumping would be permitted if the Ministers issued a certificate. He noted that the District’s 810 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

proposal had included a timetable for the development of a third well, but stated that “this is not EAO’s assumption”. 53 On November 12, 2008, Mr. Finkel made an additional order under s. 13 ending further public consultation. 54 On November 18, 2008, Mr. Finkel advised the Halalt the EAO would distribute a draft environmental assessment report to the Halalt and it would have 30 days to comment. 55 On November 19, 2008, Mr. Finkel wrote to the District enclosing a copy of his orders. In his cover e-mail, he noted that his letter clarifies that the Project does not include future testing for a third well or emergency operations. A copy of this letter was sent to the Halalt on Novem- ber 20, 2008 together with a copy of the second s. 13 Order. 56 Mr. Finkel asked a number of experts whether the revised proposed pumping regime was likely to have any adverse impacts. They advised him that it would not. (See below at para. 177.) 57 Mr. Finkel sent the draft environmental assessment report to the Halalt on December 10, 2008. He asked for comments by January 23, 2009 and stated that if the Halalt had any questions or wished to meet before that date he should be contacted. The Halalt posed no questions and did not ask for a meeting with Mr. Finkel. He also sent copies of the draft to the District and provincial and federal agencies. The EAO received comments from each of them. 58 On January 9, 2009, Mr. Finkel sent to the Working Group and to the Halalt a draft “Table of Commitments” and a draft “Issue Tracking Table”. 59 On January 26, 2009, the Halalt sent a letter of comments with attach- ments to the EAO. On February 9, 2009, Mr. Finkel advised the Halalt that its comments would be included in the package of information provided to the Ministers. He also provided a response to the technical comments in the Halalt’s material. 60 The District’s application for an environmental certificate was referred to the Ministers on February 9, 2009. The EAO recommended issuance of a certificate. 61 On March 9, 2009, the Ministers issued an Environmental Assess- ment Certificate for the Project (the “Certificate”). The Halalt were advised on March 10, 2009. On June 10, 2009, the federal government approved the Project. Halalt First Nation v. British Columbia Chiasson J.A. 811

62 In spring 2010, the wells were constructed. They were put into operation on June 3, 2010. Operations ceased on June 15, 2010. The wells were placed back into service on October 15, 2010 and ceased operation on June 15, 2011. 63 The Halalt filed a judicial review application on September 3, 2009. It was heard during the months of May, June, July and November 2010. The chambers judge delivered reasons on July 13, 2011. The order of the chambers judge provides: 1. It is hereby declared that the Province, as represented by the Environmental Assessment Office (EAO) and the Minister of Environment and Minister of Community Development (Min- isters), failed to adequately consult with the Halalt First Na- tion in the course of the environmental assessment which resulted in the issuance of the Environmental Assessment Certificate #W09-01 (Certificate) for the Chemainus Wells Project (Project). 2. It is hereby declared that the Province, as represented by the EAO and the Ministers, failed to reasonably accommodate the potential infringements posed by the Project to Halalt First Nation’s asserted Aboriginal rights and title respecting the Project area. 3. Implementation of any actions or decisions pursuant to the Certificate are to be stayed pending adequate consultation concerning year-round operation of the well field and, resulting from such consultation, reasonable interim accommodation of Halalt First Nation’s interests. For greater certainty, the stay precludes the operation of the wells pending these processes. ... 64 The Ministers and the District appealed seeking to set aside this order. 65 The District applied for a stay of the order of the judge pending appeal. On October 11, 2011, this Court refused the stay (2011 BCCA 544 (B.C. C.A. [In Chambers])). 66 This recitation of the background facts, while lengthy, merely high- lights what I consider to be important aspects of an extremely protracted and somewhat complicated process. The parties filed extensive affidavit material. The affidavit of Ms. Tricia Thomas filed in support of the application contains 74 exhibits and is over 600 pages. Mr. Finkel’s affidavit 812 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

contains 629 exhibits and is over 4,200 pages. I have referred to some of the meetings and communications between the EAO and the Halalt and between the District and the Halalt, but there were a great many more.

The chambers decision 67 The chambers judge provided over 200 pages of extensive and comprehensive reasons for judgment. The judge reviewed the facts at length. I shall not attempt to summarize her review. The salient facts emerge in her analysis and conclusions. 68 The gravamen of the judicial review application was that the Minis- ters “had no jurisdiction to issue Environmental Assessment Certificate #W09-01 ... because the Crown ... failed to meet its constitutional obligation ... to consult the [Halalt] and to accommodate [their] interests ...”. The judge reviewed the relevant provisions of the EAA and the Review- able Projects Regulation, B.C. Reg. 370/2002. 69 In paras. 43, 44 and 46, the judge observed: [43] If the executive director or his delegate determines that a reviewable project may have significant adverse effects, he or she must issue an order describing the scope of the required assessment of the project and the procedures and methods for conducting the assessment (s. 11(1)). This is known as the “s. 11 order”. [44] The s. 11 order specifies, among other things, the information required from the proponent of the project “in relation to or to supplement the proponent’s application” (s. 11(2)(c)). At the discretion of the executive director, the order may specify the persons and orga- nizations, including First Nations, to be consulted by the proponent or the EAO during the assessment. It may also specify the procedures for consultation during the assessment (ss. 11(2)(f) and (g)). The executive director may specify, by order, time limits for steps in the assessment procedure that are additional to those prescribed in the EAA (s. 11(2)(h)). ... [46] The proponent of a reviewable project may apply under s. 16 for an environmental assessment certificate (as occurred in the present case). Once the assessment is completed, the executive director or delegate must refer the proponent’s application to the ministers for a decision (s. 17(1)). The ministers must issue a certificate with any conditions they consider necessary, refuse to issue a certificate, or order that a further assessment be carried out as specified by the ministers (s. 17(3)). Halalt First Nation v. British Columbia Chiasson J.A. 813

70 The judge then noted s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, and turned to legislation governing groundwater with the observation that it has rele- vance to assessing “the strength of Halalt’s claims of Aboriginal rights and title” (para. 52). 71 She reviewed the leading authorities on the Crown’s duty to consult, including Haida Nation, Taku River and Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2010 SCC 43, [2010] 2 S.C.R. 650 (S.C.C.). The judge noted the three-stage process for determining whether the Crown has met its obligation to consult and accommodate as stated by Madam Justice Lynn Smith in Hupacasath First Nation v. British Columbia (Minister of Forests), 2005 BCSC 1712, 51 B.C.L.R. (4th) 133 (B.C. S.C.). Reference also was made to the writings of Profes- sor Dwight Newman. 72 At paras. 64-66, the judge commented on the scope of the duty to consult in the context of immediate or future impacts: [64] Implicit in the second stage of the inquiry — the assessment of adverse impact — is whether government action which engages the duty to consult is confined to decisions having an immediate impact on the Aboriginal right in question, or whether a future impact suffices to trigger the duty. [65] Haida Nation involved the granting of long-term tree farm licences (“T.F.L.”) in large areas of Haida Gwaii as distinct from the issuing of cutting permits or operational plans. The Crown argued that any duty to consult the First Nation arose only at the stage of the actual granting of the cutting permits. The Court disagreed. Chief Justice McLachlin explained at para. 76: The T.F.L. decision reflects the strategic planning for util- ization of the resource. Decisions made during strategic planning may have potentially serious impacts on Aborig- inal right and title. The holder of T.F.L. 39 must submit a management plan to the Chief Forester every five years, to include inventories of the licence area’s resources, a timber supply analysis, and a “20-Year Plan” setting out a hypothetical sequence of cutblocks. The inventories and the timber supply analysis form the basis of the determination of the allowable annual cut... for the licence.... Consultation at the operational level thus has little effect on the quantity of the annual allowable cut, which in turn determines cutting permit terms. If con- 814 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

sultation is to be meaningful, it must take place at the stage of granting or renewing Tree Farm Licences. [66] In Rio Tinto, Binnie J. discussed potential impacts, observing the following (at para. 44): A potential for adverse impact suffices. Thus the duty to consult extends to “strategic, higher level decisions” that may have an impact on Aboriginal claims and rights... [Emphasis in original.] 73 She then referred to Adams Lake Indian Band v. British Columbia (Lieutenant Governor in Council), 2011 BCSC 266, 20 B.C.L.R. (5th) 356 (B.C. S.C.), which dealt with potential future effects. 74 Observing at para. 77 that the authorities “are somewhat inconsistent”, the judge turned to the standard of review. She stated the position of the Ministers in para. 75: The Province argued that while the existence or extent of the duty is a question of law, where the appropriate standard of review is correctness, the existence or strength of the duty often involves an assessment of the facts. Where that is the case, said the Province, deference must be shown and the standard of review is reasonableness. Further, both the process of the consultation and the resulting accommodation must be judged on the standard of reasonableness. 75 The judge referred to the observations of the Court in Haida Nation, which were based on general principles of administrative law because at the relevant time British Columbia did not have a legislative process for consultation. I observe that this is not the situation in this case where an environmental assessment was mandated and Mr. Finkel stated at the outset that he would abide by the Province’s Provincial Policy for Con- sultation with First Nations. In para. 80, the judge paraphrased the observations of the Court in Haida Nation on the standard of review: a) On questions of law, a decision-maker must generally be correct, but on questions of fact or mixed fact and law, the decision-maker may be owed a degree of deference; b) The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal and constitutional duty. If, however, it is premised on an assessment of the facts, a degree of deference to those findings of fact may be appropriate; c) Although the Crown must correctly determine the extent or adequacy of the consultation required in the circumstances, Halalt First Nation v. British Columbia Chiasson J.A. 815

the subsequent process of the consultation and its outcome will likely be reviewed on a standard of reasonableness. The process must be reasonable, not perfect. At para. 81, she quoted Chief Justice McLachlin in Haida Nation as follows: Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government’s process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation. 76 At paras. 83-84, the judge addressed judicial deference, stating: [83] It is important to note the factual matrix underlying the comments of McLachlin C.J. in Haida Nation on the standard of judicial review when considering whether the honour of the Crown has been discharged. The Chief Justice prefaced her comments with the observation that there was, at the time, no legislated process in place for consultation with the Haida Nation. That is significant because the standards of judicial review depend on the nature and expertise of the tribunal or decision maker and the statutory mandate within which it does its work. Judicial deference to the factual conclusions of a tribunal theoretically rests on the experience and expertise of the tribunal charged with deciding the matters coming before it. Deference also rests on the presumption that the decision maker is a neutral agency. [84] It is my respectful view that where the decision maker is one of the parties to the dispute — that is, a representative of the Crown itself — the degree of judicial deference owed to its factual findings cannot be the same as that owed to an independent statutory tribunal such as the British Columbia Public Utilities Commission (e.g. the tribunal whose decisions were at issue in Rio Tinto; see also Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103). Such a tribunal is assumed to possess expertise in the matters it adjudicates, and is presumed to be neutral. She concluded at para. 89: I take from the foregoing that the Crown must correctly determine the extent or scope of its duty to consult, and must then engage in consultation that is adequate in the circumstances. The outcome of the consultation process (that is, the accommodation) must fall within the range of reasonable outcomes in the circumstances. 816 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

77 Subsequently, in paras. 90-444, the judge supplied a detailed narra- tive of the background facts. 78 In para. 445, the judge returned to the three-stage process for determining whether the Crown fulfilled its obligation to consult and accommodate as set out in Hupacasath, summarizing them as: ... (1) Did the Crown have knowledge of a potential Aboriginal claim or right?; (2) Did the Crown’s contemplated conduct have the potential to adversely affect the claim or right? if so, (3) What was the scope and content of the duty to consult and accommodate in the circumstances of the particular case, and was that duty adequately met? Determination of the third question requires (a) a preliminary assessment of the strength of the claim and (b) consideration of the seriousness of the potentially adverse effect. 79 The judge observed at para. 448 that the Crown “readily acknowledged” at the outset of the environmental review that it was aware of the claim of the Halalt to Aboriginal title and rights. The Crown also acknowledged that the Project as proposed originally and as first modified had the potential to adversely impact those rights and title. She stated at para. 451: It [the Province] identified the adverse impact as the potential of the Project operations to lower the flow levels of the Chemainus River, thereby creating a risk to the River’s fish and fish habitat as well as other ecosystems in the River, and depleting the Chemainus Aquifer of groundwater. Specifically, the Province acknowledged that interference with the flow levels of the River and the levels of groundwater in the Aquifer had the potential to significantly and adversely impact Halalt’s asserted Aboriginal right to fish, gather plants and bathe for ceremonial purposes in the River. 80 At para. 640, the judge stated that, as a matter of law, “Halalt was entitled to a timely and transparent assessment of its claims”. At para. 641, the judge stated her view: The strength of claim assessment must come at the beginning of the process, not at the end, because it is the foundation for the Crown’s decision concerning the nature and scope of the required consultation with First Nations. 81 At paras. 455-558, she examined the strength of the Halalt’s claims. She summarized her conclusions at paras. 559-562: [559] Based on the foregoing, it is arguable that ownership of the groundwater in the Aquifer adjacent to and under I.R.#2 is deemed to Halalt First Nation v. British Columbia Chiasson J.A. 817

have vested in the Province as early as 1849 or 1858 (when the colo- nies were established by the Imperial government) or 1866 (when Vancouver Island and mainland British Columbia were joined under one government) or, alternatively, at the time of the Union with the Dominion in 1871. It is also arguable that the proprietary interest in the “use, flow and percolation” of groundwater passed to the Domin- ion at the time of the Union. Alternatively, it is arguable that the proprietary interest passed to the Dominion when the Province transferred title to Indian Reserve lands to the federal government pursuant to the 1938 OIC. [560] The evidence establishes that there is not an impermeable bar- rier between the Chemainus River and the Aquifer as the River flows through I.R.#2 adjacent to the site of the Project. The two are intri- cately connected. The groundwater feeds the Chemainus River and influences its flow levels. The River is, and has been traditionally, integral to the lives of Halalt because of its fish and fish habitat, plants and bathing holes. It sustains the animals the Halalt people hunt and the plants they gather. The Aquifer’s groundwater is a significant source of the water levels for the entire length of the Wes- tholme side channel. The Aquifer is of central importance to the sus- tenance of fish and fish habitat. The groundwater warms the side channel in the winter and cools it in the summer. [561] I conclude, based on those considerations, that Halalt has an arguable case that that the groundwater in the Aquifer was conveyed to the federal Crown in order to fulfill the objects for which the reserve lands were set aside. If that is the case, then the Province cannot purport by legislative act to expropriate the groundwater. [562] I reiterate that the issue in these proceedings is the prima facie strength of Halalt’s claims. I go no further than to say that Halalt has an arguable case for a proprietary interest in the groundwater of the Chemainus Aquifer, most of which underlies I.R.#2. As such, the Province ought to have considered the claim to be a credible one, rather than dismissing it out of hand. Final determination of this issue, as with the other claims, must be left to the proceedings which will conclusively determine Halalt’s title and rights, or resolution at the treaty table. 82 At para. 563, the judge noted that the position of the Halalt was that by paring down the Project “the District obtained certification of what is in fact a project of a much larger scale” and that, in any event, the limited 818 WESTERN WEEKLY REPORTS [2013] 1 W.W.R. project has the potential seriously to impact the river and the interests of the Halalt. She stated at paras. 565 and 567-569 and 571: [565] I have concluded that the environmental assessment ought to have encompassed all aspects of the Project for which its infrastructure was designed and is intended. The District intends to operate the well field on a year-round basis. That is the scope of the Project with respect to which the Province had a duty to consult and accommodate Halalt, and which the EAO ought to have assessed for its recommendation to the Ministers. ... [567] Mr. Finkel advised the District to propose further modifications to the Project in 2008 (that is, construction of two wells and extraction during the winter months at 75 L/s and summer pumping for emergency purposes only). Ultimately, the EAO recommended certification of the Project with those modifications. [568] The Certificate (pursuant to Schedule B, the Table of Commit- ments) permits the operation of one well at a time during the winter months with a maximum extraction rate of 75 L/s. Significantly, it leaves in the hands of the District the development of the ERCP “in consultation with” VIHA’s Medical Health Officer, whose interests are completely aligned with those of the District. The ERCP will address the circumstances under which summer groundwater extraction can occur. The Certificate places no parameters on the circumstances under which, or even the times of year during which, groundwater extraction is permitted pursuant to the ERCP. There are no limits placed on the amounts of groundwater that can be extracted under the ERCP, nor are there any terms requiring implementation of mitigation measures in the event of groundwater extraction during the drier summer months. [569] Despite the likelihood of summer groundwater extraction, there are no terms in the Certificate concerning measures to augment the River flows in order to mitigate the effects of the summer pumping. ... [571] It is my view that the EAO erred in allowing the District to amend the Project description and thereby narrow the scope of the environmental assessment. Halalt was not consulted about the modifications, and voiced its objection to them. Given that the District clearly intends in the near future to extract groundwater on a regular basis (quite aside from emergency extraction) during the summer low flow periods of the Chemainus River, the EAO should have assessed the adverse impacts to Halalt’s interests on that basis. Halalt First Nation v. British Columbia Chiasson J.A. 819

83 The judge continued to discuss the District’s needs and desire to shift entirely to groundwater extraction to supply the needs of Chemainus. She described the extensive activity that was undertaken to assess the implications of summer pumping and possible mitigation measures, including releasing water from other sources to supplement the flow in the Chemainus River. 84 Investigating the water release option eventually was abandoned. The judge stated it was not clear exactly when. She commented at para. 593: The explanation advanced by the Province in argument for removing the water release option from the environmental assessment was that it was not necessary in light of the change in the operating regime to winter pumping only. That explanation is not persuasive. First, as already noted, the reason for the proposed water release option was to provide the District with a means to remove or adjust the restrictions on summer pumping. As such, the proposal was integral to the Pro- ject’s design and infrastructure, as well as the District’s need to shift entirely to a groundwater supply in the near future. For that reason, the water release option ought to have been assessed as part of the Project. Second, the consultants advising the EAO emphasized the importance of timely testing of the water release option not only because the Project was clearly designed for year-round pumping, but because of the more immediate prospect of summer pumping for testing and emergency purposes and the risks such pumping posed to the River’s summer flow levels. 85 The judge commented on Mr. Finkel’s view that the Project should be narrowed and on discussions that the Halalt had with the District in the spring of 2008. She observed at para. 604: It is clear, however, that at the same time Mr. Finkel was narrowing the scope of the environmental assessment to the operation of one well in the winter months, the District was telling VIHA that it intended to shift entirely to groundwater and simply needed some time to achieve that goal. In his August 19, 2008 memorandum to the Dis- trict’s Public Works Committee, summarized earlier in these reasons, Mr. MacKay plainly set out the District’s plan as he had described it to VIHA: While the District continued to seek approval from the EAO for the Project, which would entirely replace the surface water supply, its application for the Certificate was structured such that initially the wells would supply water in the winter months and the Dis- trict would undertake additional testing to validate summer operation of the wells. 820 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

86 The judge addressed the two s. 13 Orders, stating at paras. 609-612 and 618: [609] In its response to Mr. Finkel’s letter of October 8, 2008, the District agreed to construct two wells rather than three. In its letter of October 9, 2008, the District said that it would construct the second and third of the three wells (PW#2 and PW#3) and remove PW#1 from the plans. The District asserted that because the second and third wells were slightly further from the Westholme side channel, they were therefore “unlikely” to influence groundwater levels at the side channel. The District provided no hydrogeological basis for this conclusion, nor was there evident in the record any opinion of that nature obtained from the consultants of either the District or the EAO. Nevertheless, that assertion was repeated by Mr. Finkel in his Draft EA Report as a statement of fact, and it appears in the final EA Report as a further step taken to alleviate Halalt’s concerns about the effect of groundwater extraction on the side channel. Halalt was not asked for its views on the matter. [610] It is telling that even as the District advised of its intention to remove PW#1 from the current design of the Project, it stated that its revised Project proposal included a timetable for the development of PW#1. [611] Mr. Finkel issued two s. 13 Orders. The first s. 13 Order was issued on November 10, 2008 varying the scope of the Project as previously defined in the s. 11 Order of December 9, 2003. On No- vember 12, Mr. Finkel issued the second s. 13 Order putting an end to any consultation concerning the environmental assessment before referral of the application to the Ministers. [612] Halalt was not advised or consulted about the matters contained in the s. 13 Orders before they were issued. ... [618] Mr. Finkel told Halalt in his November 10, 2008 letter that in the event the District wished to obtain approval for year-round extraction of groundwater, it would have to apply to amend its Certifi- cate under s. 19 of the EAA. That is the only evidence (as distinct from argument) advanced in these proceedings by the Province concerning the steps the District would be required to take in order to broaden the Project’s operating window to include the summer months. Halalt First Nation v. British Columbia Chiasson J.A. 821

87 The judge then discussed the scope of the Certificate in paras. 622- 625: [622] The District now holds the Certificate for the Project. As I read the provisions of the EAA, if the District wishes to apply to expand the Project to include extraction of groundwater in the summer months, it need only apply under s. 19. Accordingly, the “phased approach” to the Project, as described by the District in its July 2008 letter to VIHA, was an attractive alternative to the process stipulated by s. 11. [623] The result of the “phased approach” is avoidance of a full environmental assessment of groundwater extraction during the summer months when adverse effects are most likely. There is no means of assuring that Halalt will be consulted about summer pumping or the water release option. Those aspects of the Project will now be left to the discretion of one person, the executive director of the EAO, pursuant to an amendment application by the District. [624] Further, under the Certificate that has been issued, the conditions for emergency pumping at any time of the year, including the summer months, have been left to the discretion of the supplier of the water — the District — in consultation with VIHA’s Chief Medical Officer. The outlook of the District is clear: its interest is to provide potable water of an acceptable quality to Chemainus from the wells. The interests of VIHA’s Chief Medical Officer are aligned with those of the District. [625] Finally, the Certificate contains no requirement for mitigation measures to offset groundwater extraction during the summer months. 88 The judge, at para. 626, returned to the comments in Rio Tinto that “... the duty to consult extends to ‘strategic, higher level decisions’ that may have an impact on Aboriginal claims and rights”. She continued in paras. 627-628: [627] In the present case, the strategic decision of the District was to replace its surface water supply with a groundwater supply. As Mr. Dakin observed, the District was not about to invest millions in a groundwater extraction system to provide potable water to Chemainus for only two-thirds of the year. It could not use the surface water supply for the balance of the year without spending many millions more to upgrade the surface water system. Year-round pumping was not just “an idea in the heads of a few government officials” (per Professor Newman referring to the Dene Tha’ First Na- tion decision). This was not merely the exploration of a possibility of 822 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

summer groundwater extraction. It had to happen as an integral part of the Project within a relatively short period of time, and had to happen immediately for emergency purposes. The writing was on the wall throughout the environmental assessment process. [628] The duty to consult must be approached with a good faith determination of the scope of the project in question and the potential impacts of that project. The scope of the Crown’s consultation duty is informed, and indeed driven, by that determination. As observed by Professor Newman, approaching the question too narrowly can result in “death by a thousand cuts” to Aboriginal interests. That observation has resonance in this case. 89 At para. 630, the judge stated that the first inquiry on the judicial review was whether the Crown correctly determined the extent of its duty to consult. She noted that Mr. Finkel swore in his affidavit that he determined at the outset that deep consultation was required, but she viewed this assertion with skepticism (paras. 632-633). 90 The judge did not consider that the participation of the Halalt in the Working Group fulfilled the Crown’s obligations, stating in paras. 651- 654: [651] Mr. Finkel, and not the Working Group, was the engine driving the environmental assessment. Halalt was sometimes included in meetings or discussions and sometimes not. [652] The constitutional and legal duty of the Crown to consult and accommodate is not derived from the EAA. The duty of the Ministers is a constitutional and legal one that is “upstream” of the statute under which they exercise their powers. [653] There may be cases where the statutory requirements concerning the involvement of First Nations in the process are sufficiently stringent that the Crown may be seen to fulfill its duty by fully com- plying with statutory requirements under the legislation in question. That was the case in Taku River. [654] The circumstances of the present case do not resemble those in Taku River. Neither the mandate of the Working Group nor Halalt’s involvement in it was sufficient to discharge the Province’s duty of consultation in this case. 91 At para. 678, she refused to accept the discussions between the Halalt and the District as constituting consultation or adequate consultation. 92 At para. 663, the judge stated that the evidence suggested that the District met with the Halalt in the spring of 2008 with the objective of Halalt First Nation v. British Columbia Chiasson J.A. 823

persuading the Halalt to agree to a project that had been rejected by Mr. Finkel. That point was repeated in para. 669 in which the judge referred to an Information Note authored by Mr. Finkel to his superior. Mr. Fin- kel, according to the judge, did not advise his superior “that the District was attempting to obtain Halalt’s agreement to a project which he ... had concluded should not be certified”. 93 The judge concluded at para. 682: In light of the prima facie strength of Halalt’s claims and the potential of the Project to adversely affect Halalt’s interests, the Province had a duty to engage in deep consultation. The process that unfolded did not amount to such. In particular, the EAO failed to consider, and consult with respect to, the impact of year-round operation of the well field. By doing so, it failed to engage in adequate consultation. 94 The chambers judge then turned to accommodation. She began her consideration of that issue at para. 683, stating: I turn next to the question of whether modifications to the scope of the Project constituted reasonable accommodation by the Province. As Halalt’s counsel rather colourfully put it, accommodation is not “manna from heaven”. Accommodation arises out of, and is the result of, consultation. At the heart of the Crown’s duty to consult is engagement with Aboriginal peoples to understand and accommodate their interests in order to achieve the overriding objective of reconciliation. [Emphasis in original.] 95 At para. 685, the judge commented that the modifications to the Pro- ject were not made in response to consultation with the Halalt because there was no discussion with the Halalt in advance of the decisions to reduce the scope of the Project. She stated that the Halalt objected to the reduction and: ... took the position that the environmental assessment must properly determine whether groundwater extraction on a year-round basis was environmentally sound. The judge continued at paras. 686-689: [686] The Project modifications were made after the EAO received the scientific opinion of numerous consultants, including those of the EAO and the District, that the Project as proposed in the District’s Application would cause significant adverse effects to the Chemainus River and possibly to the Chemainus Aquifer. 824 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

[687] I infer from the facts disclosed by the record that it became apparent to Mr. Finkel that the Project as proposed by the District, and as the District ultimately intended to implement it, could not pass environmental muster based on independent scientific evidence. There were legitimate scientific concerns about both an extraction rate of 131 L/s and the prospect of summer extraction for any reason. The water release option, which was necessary to mitigate summer pumping, was a theory which required extensive testing. Against that backdrop, time was running out for the District to use the funds it had acquired under the funding agreement to construct the Project. Mr. Finkel decided the best solution was to suggest to the District that it scale back the Project in a manner that would avoid, at least in the short term, the difficulties posed by an extraction rate of 131 L/s and the extraction of groundwater during the drier months of the year. [688] Second, in my respectful view one cannot fairly characterize as a reasonable accommodation the decision to remove from the protection of the environmental assessment process the most potentially harmful aspects of the Project. Truncation of the Project resulted in truncation of the environmental assessment. Decisions concerning groundwater extraction on a year-round basis, including any process to determine its viability, are now left to the discretion of the executive director under the certification amendment process. Decisions concerning emergency summer pumping are left to the discretion of the District and the Chief Medical Officer of VIHA. These actions amount to avoidance of Halalt’s concerns, not their accommodation. They certainly did not result from consultation. [689] Third, there is no evidence on the record, from hydrogeological experts or consultants of any kind, that the undertaking finally recommended by the EAO to the Ministers was unlikely to cause significant adverse impacts to the Chemainus River. Mr. Finkel apparently reached that conclusion based on the untested assumption that reducing the originally proposed extraction rate by half was less likely to be harmful. He provided no affidavit evidence as to how or why he reached that conclusion. Once again, the “accommodation” was made without any consultation with Halalt and its hydrogeological expert. 96 At para. 693, the judge commented that it did not appear that “Mr. Finkel turned his mind to the impacts of summer pumping for emergency and contingency purposes”. She stated in para. 696 that Mr. Finkel “expressed confidence in meetings during the assessment that Halalt would Halalt First Nation v. British Columbia Chiasson J.A. 825

play a prominent role in the monitoring program”, but no such role was contained in the Certificate. 97 The judge stated at para. 700: Most of the measures characterized by the Province as accommodations are not accommodations in fact. They were not responsive to concerns of Halalt, and, in practical terms, some of the measures were inimical to those concerns. Further, Halalt was given no role in the monitoring program, which is the one means of determining whether there are adverse affects from the groundwater extraction. She concluded at para. 701: With respect to each of Halalt’s claims, the Province failed to fulfill its constitutional duty to accommodate Halalt’s interests. 98 Beginning at para. 702, the judge addressed compensation as accommodation. In para. 709, she stated that “financial compensation was one of several options that ought to have been available as a means of accommodation for discussion between [the] Halalt and the Province”. 99 In the result, the judge concluded in para. 711 that overall the Crown’s accommodation did not fall “within the range of reasonable alternatives in the circumstances”. She made the requested declaration, but refused to quash the Certificate. Instead, she stayed action under it pending consultation on year-round pumping.

Positions of the parties 100 The Ministers contend that the judge erred by holding that the Crown had a duty to consult on the original Project rather than the Project as modified. They also assert that the judge erred in concluding that the Crown did not undertake deep consultation and did not accommodate adequately. 101 The District supports the positions of the Ministers, but participates mainly on the basis it contends the judge improperly enjoined the District from proceeding with the Project. 102 In response to the Ministers, the Halalt state that the Crown had a duty to consult throughout the Project, not just after the November 10, 2008 s. 13 Order and that the consultation and accommodation were inadequate. 103 In response to the District, the Halalt contend that the judge did not enjoin the District. 826 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

Discussion The legal effect of the Certificate 104 Where a project is a “reviewable project” under the EAA, it cannot be constructed or operated without an environmental assessment certificate (s. 8(1)). When a certificate is issued, a project cannot be constructed or operated “except in accordance with the certificate”. This restriction is “[d]espite any other enactment” (s. 8(2)). 105 The Ministers’ Certificate in this case requires the District to operate in accordance with the Proponent’s Table of Commitments that is attached as Schedule B. Commitment One of the Table states: Subject to the Reviewable Projects Regulaiton (BC Reg 370/2002), the DNC will only operate PW#2 and PW#3 between October 15th and June 15th each year and will not operate more than one of these groundwater production wells at any one time. This is the only pumping that is authorized by the Certificate. 106 In para. 567, the chambers judge stated that the EAO recommended winter pumping with “summer pumping for emergency purposes only”. With respect, this is incorrect. The EAO did not recommend summer pumping for any purpose. The s. 13 Order does not provide for summer pumping. 107 On November 10, 2008, Mr. Finkel wrote to the Halalt making it clear that the Project as reflected in the s. 13 Order provided for the operation of one well only during the winter months, that is, October 15 to June 15. A second well was authorized “to provide a level of redundancy in the system in case the other well fails”. Mr. Finkel noted that the Dis- trict wanted to operate on a year-round basis and had proposed a timetable for the development of a third well, but this was rejected by the EAO. 108 He made it clear that if the District wished to add a third well it would be subject to an assessment under the EAA either as an amendment under s. 19 or as a modification under Part 5(4) of the Reviewable Projects Regulation (B.C. Reg. 370/2002). In the same letter, Mr. Finkel advised that he would provide a draft of the assessment report to the Halalt and the relevant agencies for review and comment. 109 In para. 618, the judge stated: Mr. Finkel told Halalt in his November 10, 2008 letter that in the event the District wished to obtain approval for year-round extraction of groundwater, it would have to apply to amend its Certificate under Halalt First Nation v. British Columbia Chiasson J.A. 827

s. 19 of the EAA. That is the only evidence (as distinct from argument) advanced in these proceedings by the Province concerning the steps the District would be required to take in order to broaden the Project’s operating window to include the summer months. In fact, Mr. Finkel also provided this advice to the District in a Novem- ber 19, 2008 letter, a copy of which was sent to the Halalt. It was included in the EAO recommendation to the Ministers. 110 The chambers judge referred in para. 568 to the provisions in the Ta- ble of Commitments that require the District to develop an Emergency and Contingency Plan (“ERCP”) in consultation with the Medical Health officer of the Vancouver Island Health Authority (“VIHA”) in accordance with the Drinking Waters Protection Regulation (B.C. Reg. 200/2003). She stated, [t]he ERCP will address the circumstances under which summer groundwater extraction can occur”. An examination of the Regulation shows that it is concerned with responding to an “emergency or abnormal operating circumstances”. I see nothing in the Regu- lation that would allow a modification of the clear limitation imposed on the District by Commitment One of the Table quoted above at para. 105. 111 In my view, the judge erred in concluding that the District was not prohibited from pumping other than with one well at the specified rate during the winter months only. At the hearing of the appeal, the Halalt essentially conceded that the judge misconstrued the Certificate, suggesting that this was understandable given the evidence before her. At the hearing, the Halalt also agreed that if the District were to attempt to expand the Project, the Crown’s duty to consult would be engaged. The District and the Ministers concede this fact.

Standard of review 112 I agree with the judge’s articulation of the standard of review in para. 89: ...the Crown must correctly determine the extent or scope of its duty to consult, and must then engage in consultation that is adequate in the circumstances. The outcome of the consultation process (that is, the accommodation) must fall within the range of reasonable outcomes in the circumstances.

Strength of claim assessment and deep consultation 113 Mr. Finkel asserted in para. 139 of his affidavit that he decided to engage in deep consultation. The chambers judge’s statement at para. 828 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

633 that she viewed this assertion with skepticism, in part, was based on her view that there was “not a single email, memo or note to file indicating that Mr. Finkel made inquires of the Ministry of the Attorney Gen- eral and others concerning a strength of claim assessment or that he received any response to those inquiries” (para. 635). 114 As noted previously, in para. 391 of his affidavit, Mr. Finkel further addressed the issue in which he referred to a 2007 report entitled “Re- search in support of a preliminary assessment of strength of claim in [the] Halalt’s First Nations asserted traditional territory”. He stated that he “obtained this report as part of my effort to assess the strength of Halalt claim to title over the aquifer”. The report stated it was “confidential and subject to solicitor-client privilege”. 115 The judge referred to the report in para. 639 and observed that the Crown had not asserted privilege over it at the hearing. She stated that Mr. Finkel had given no reason for not providing a copy of the report to the Halalt. 116 The chambers judge considered it significant that the Crown failed to prepare an assessment of the strength of claim. She stated at paras. 640- 641 that it is essential that such an assessment be prepared at the beginning of the process and that the Halalt were entitled to a timely and transparent assessment. I question both as absolute propositions of law. 117 In para. 39 of Haida Nation, the Supreme Court identified the importance of a preliminary assessment of the strength of the claims of an affected Aboriginal group, stating that “the scope of the duty [to consult and accommodate] is proportionate to ... the strength of the case supporting the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed”. 118 Clearly, it is desirable and sometimes may be necessary to prepare an assessment of the strength of claim at the outset of consultation, but, in a case like this where the Crown concedes consultation should be deep, it is the quality of the consultation that must prevail. The lack of a formal assessment does not undermine the consultation provided it is indeed deep consultation. 119 In Neskonlith Indian Band v. Salmon Arm (City), 2012 BCCA 379 (B.C. C.A.), this Court addressed the absence of a formal assessment in para. 88: The Neskonlith contend that the City did not conduct an assessment of the strength of the Neskonlith’s Aboriginal claim because it, the Halalt First Nation v. British Columbia Chiasson J.A. 829

City, was of the view that as a municipality, it was not subject to the Crown’s duty to consult. This assumption, however, is not determinative of the question of whether adequate consultation could have taken place, as illustrated by Beckman, supra. In that case, the Terri- torial government was found to have engaged in adequate consultation even though it did not regard itself as fulfilling a legal obligation in carrying out the consultation it did: see para. 39; and see Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 . [Emphasis added.] 120 In this case, Mr. Finkel concluded that deep consultation was required because he: ...was satisfied that, given the proximity of the Project to Halalt’s reserve, the fact that the Chemainus River runs through the reserve, and the fact that both Halalt and the District would rely on the same aquifer for groundwater, the Project could have a significant impact on Halalt’s asserted rights and decided as a result to engage in deep consultation. 121 Mr. Finkel stated that he arrived at this conclusion sometime in early spring 2005, subsequent to receiving Allan Dakin’s report. In 2007, he formed the view that the Halalt’s occupation of the area had not been exclusive, but stated that this did not change the level of consultation. 122 Where there is an issue concerning the required extent of consultation, it would be prudent for the Crown to apprise an Aboriginal group of issues that it contends weaken the claims of the group. To fail to do so risks underestimating the strength of the claims, but the exercise is somewhat delicate as is illustrated by this case. 123 Inherently, an assessment of the strength of a claim is subject to solicitor-client privilege. Mr. Finkel’s initial inquiries were to the Department of the Attorney General. The report that he received in July 2007 was marked as confidential and subject to solicitor, client privilege. Repeat- edly, the Halalt were asked for a report on their oral history and repeatedly the Halalt noted that preparation of such a report engaged issues of confidentiality. Although funded by the District, the Halalt failed to produce the promised oral history report to the EAO. 124 In my view, the extent to which parties will share with each other the content of an assessment of the strength of claim will depend on the circumstances faced by them. I do not think that as a matter of law the Halalt were entitled to a “timely and transparent assessment of the 830 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

strength of its claim” or that the absence of such an assessment always is significant to determining the adequacy of the consultation. 125 The judge undertook an extensive analysis of the strength of the Halalt’s claims. She concluded that the Halalt had an arguable case for title to the water in the aquifer. The Crown does not agree with the judge’s conclusion, but takes the position that it does not matter because the Crown accepts that the obligation in this case was deep consultation. I agree with the Crown’s position. 126 The judge’s analysis of the strength of the Halalt’s claims was very thorough, extending over approximately 107 paragraphs of her reasons and canvassing extensively history and law. I question the extent to which such an analysis should be undertaken on a judicial review application. The parties remain engaged in ongoing negotiations concerning the claims. A detailed examination of claims by the court obliges parties to expose their legal analysis that may adversely affect their negotiating positions. Albeit described as a preliminary, prima facie determination, a detailed legal analysis of the positions of the parties is likely to influence them and could create difficulties if the claims subsequently are litigated. 127 I conclude that the decision of the Crown in this case not to undertake an assessment of claim at the outset of the environment assessment is not determinative of whether the Crown met its obligation to consult. Mr. Finkel concluded for good reason that deep consultation was required. The Crown accepts that the Halalt were entitled to such consultation. In this case, the Halalt were not entitled as a matter of law to an assessment of the strength of claim.

Adequacy of consultation 128 There were two key findings of the judge that led to the conclusion that the Crown’s consultation was inadequate: first, “the EAO failed to consider, and consult with respect to, the impact of year-round operations of the well field” (para. 682); second, the EAO failed to address the Pro- ject modifications with the Halalt before the modifications were made. 129 As to the first finding, the judge stated in para. 750: The Province owed a duty of consultation and accommodation to Halalt concerning the actual scope of the Project which is the year- round extraction of groundwater as the sole source of water for Chemainus. The Project’s scope requires consideration of the year- round water demands of Chemainus rather than its water needs in the winter months only... Halalt First Nation v. British Columbia Chiasson J.A. 831

This led to her order that the wells not be operated “pending adequate consultation concerning year-round operation of the well field” (para. 753). 130 The legal foundation for the judge’s approach appears to be comments at para. 44 of Rio Tinto to the effect that “the duty to consult extends to ‘strategic, higher level decisions’ that may have an impact on Aboriginal claims and rights”. 131 It is important to put into context the comments of the Court as relied on by the chambers judge in this case. After stating the passage in para. 44 quoted by the judge, the Chief Justice continued: Examples [of strategic, higher level decisions] include the transfer of licences which would have permitted the cutting of old-growth forest (Haida Nation); the approval of a multi-year forest management plan for a large geographic area (Klahoose First Nation v. Sunshine Coast Forest District (District Manager), 2008 BCSC 1642, [2009] 1 C.N.L.R. 110); the establishment of a review process for a major gas pipeline (Dene Tha’ First Nation v. Canada (Minister of Environ- ment), 2006 FC 1354, [2007] 1 C.N.L.R. 1, aff’d 2008 FCA 20, 35 C.E.L.R. (3d) 1); and the conduct of a comprehensive inquiry to determine a province’s infrastructure and capacity needs for electricity transmission (An Inquiry into British Columbia’s Electricity Transmission Infrastructure & Capacity Needs for the Next 30 Years, Re, 2009 CarswellBC 3637 (B.C.U.C.)). 132 The reason for the concern was articulated by the Court in para. 47. In such cases, current Crown conduct may constrain the ability of the Crown to respond appropriately in the future; it “may remove or reduce the Crown’s power to ensure that the resource is developed in a way that respects Aboriginal interests in accordance with the honour of the Crown. The Aboriginal people would thus effectively lose or find diminished their constitutional right to have their interests considered in development decisions”. 133 In para. 49, the Court in Rio Tinto stated: The question is whether there is a claim or right that potentially may be adversely impacted by the current government conduct or decision in question. [Emphasis in original.] and in para. 50: Nor does the definition of what constitutes an adverse effect extend to adverse impacts on the negotiating position of an Aboriginal 832 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

group. The duty to consult [is] grounded in the need to protect Ab- original rights and to preserve the future use of the resources claimed by Aboriginal peoples while balancing countervailing Crown interests. 134 The chambers judge also referred to Adams Lake, stating in paras. 70- 71: [70] The question of potential for adverse impact was considered at some length by Madam Justice Bruce in the recent decision of Adams Lake Indian Band v. British Columbia, 2011 BCSC 266. The factual matrix of that decision differs from those discussed by Professor Newman, but the approach taken by the Court to the issue of potential adverse impacts is similar. The issue in Adams Lake was the potential for adverse impact on Aboriginal interests of the decision to incorporate Sun Peaks as a municipality. The act of incorporation, in and of itself, did not have an immediate adverse impact. However, incorporation resulted in the transfer of significant aspects of govern- ance from the provincial Crown, which owed the First Nation legal and constitutional duties to consult and accommodate their interests, to an entity (the Sun Peaks Mountain Resort Municipality) which as a matter of law did not owe those duties. [71] The Court in Adams Lake, citing Tysoe J. (as he then was) in Gitxsan First Nation v. British Columbia (Minister of Forests), 2002 BCSC 1701 at para. 82, observed that a change in the identity of the decision maker has the potential to impact the Aboriginal right claimed in much the same manner as any substantive change in the nature of the authority exercised (Adams Lake at paras. 143 and 160). Adams Lake subsequently was overruled by this Court (2012 BCCA 333 (B.C. C.A.)). 135 In Adams Lake, Mr. Justice Low stated in para. 59: At para. 53 in Rio Tinto, the Court said that the duty to consult concerns “the specific crown proposal at issue” and not the “larger adverse impacts of the project of which it is a part’. It continued: “The subject of the consultation is the impact on the claimed rights of the current decision under consideration. The words quoted from para. 53 by Low J.A. in Adams Lake relate to a proposition of the trial judge discussed by Low J.A. in paras. 52 and 53 of Adams Lake. I reproduce both paragraphs. [52] At para. 181 of the reasons, the judge stated that incorporation was “an integral part of the expansion and development of the resort and, in particular, the influence of the [Corporation] over the policies Halalt First Nation v. British Columbia Chiasson J.A. 833

of the municipal council”. She rejected the argument of the Province that the real issue was whether Community could separate consultation on incorporation from consultation about the continuing development of the resort by the Corporation. At para. 188, she held that the Province had “continually failed to realize the real and substantial connection between the incorporation decision and the Sun Peaks development in general”. [53] The chambers judge stated her final conclusion thus: [201] I have concluded the Province failed to adequately consult with the Band prior to the issuance of Order in Council 158/2010 by the Lieutenant Governor in Council and that the accommodation arising from the consultation was not within the range of reasonable outcomes. Thus it is appropriate to declare that the Province did not fulfill its constitutional duty to consult with the Band with respect to the incorporation of the Municipality prior to the issuance of Order in Council 158/2010 by the Lieutenant Governor in Council. I am also satisfied that the court has jurisdiction to order the Province to engage in a consultation process with regard to the incorporation of the Mu- nicipality to uphold the honour of the Crown and in a manner that reflects the strength of the claims and the serious impact on the Band’s interests identified by the court in this judgment. Nothing short of deep consultation and accommodation where possible is appropriate in all of the circumstances. It is also appropriate to order the Prov- ince to include consultation about the incorporation of the Municipality in its ongoing consultation process with the Band concerning the MDA and the transfer of the timber administration. 136 There is little doubt that the District wanted year-round pumping. Even when it finally reduced the scope of the Project, it wanted to retain the ability to undertake test pumping in the summer with the hope that this would lead to a third well. This is not what it got. Mr. Finkel so advised the Halalt in his November 10, 2008 letter. He also made this clear to the District in his November 19, 2008 letter, a copy of which was provided to the Halalt. More importantly, the s. 13 Order, the recommendation of the EAO and the impugned Certificate do not allow pumping in the summer for any purpose. 137 In my view, this is not a case where the ability of the Crown to address future potential adverse impacts was compromised. The Halalt con- 834 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

cede as much on appeal. I conclude that the judge erred as a matter of law in deciding that the Crown failed to meet its duty to consult because it failed to consult with respect to year-round pumping. 138 In para. 682, the judge stated: ...the EAO failed to consider, and consult with respect to, the impact of year-round operation of the well field. By doing so, it failed to engage in adequate consultation. As a question of fact, this statement cannot be supported on the evidence. From the outset in 2003 through to November 2008, there were multiple scientific reports, many, many meetings and communications all focused on the effect of year-round pumping. The judge’s finding can only be considered in the context of her concern with the proposed modification to the Project and, perhaps, with respect to consultation after the s. 13 Order. I shall address these matters subsequently. 139 As noted in my recitation of the background facts, consultation began in September 2003. On October 7, 2003, the Hul’qumi’num Treaty Group provided comments. Its focus was on avoiding “a significant depletion of future water availability”. It expressed that it did not expect “absolute certainty”. It expected that professional expertise would be brought to bear “on producing reasonable estimates of aquifer supply”. That is exactly what occurred over the ensuing years. 140 This initial consultation took place before the December 9, 2003 s. 11 Order requiring a certificate and well before the August 5, 2004 application by the District for a certificate. In para. 8, I describe the pre-application consultation. The lengthy history of further discussions with the Halalt and their consultants is described in the Background section of these reasons. It includes funding provided to facilitate the Halalt’s participation in the assessment process. 141 In para. 17, I set out a November-December 2004 exchange between Mr. Finkel and a representative of the Halalt, which, in my view correctly described the legal positions of the Crown and the Halalt and correctly describes the process that was undertaken. The objective of consultation is to ascertain and to address the effect of Crown conduct on the interests of Aboriginal peoples. It derives from the recognition that there are unextinguished Aboriginal rights and title and flows out of the honour of the Crown; the Crown cannot imperil Aboriginal rights and title where it must participate by treaty negotiation or litigation in determining the existence and scope of such interests. Treaty negotiation leads to Halalt First Nation v. British Columbia Chiasson J.A. 835

reconciliation. Consultation and accommodation foster reconciliation by respecting the interests of Aboriginal groups. 142 To summarize, the Project as proposed originally involved year-round pumping. There was extensive consultation about potential adverse affects that could result from such pumping; this resulted in a proposed modification to confine pumping to the winter, but with summer pumping for some purposes. There was further consultation. The Project later was modified to provide for winter pumping only. Any attempt to expand pumping will engage the Crown’s duty to consult. The decision under review allows winter pumping only. There was and is no ongoing duty to consult about year-round pumping as that proposal has been abandoned. Where there was such a duty, it clearly was met. 143 In my mind, the judge’s comments in para. 566 illustrate the consultation and accommodation that took place: The evidence amply supports the conclusion that the Project as con- figured in the District’s Application in 2003 (that is, construction of three wells and year-round extraction of groundwater at 131 L/s) had the potential to adversely impact the Chemainus River in a significant way and similarly impact Halalt’s claims of Aboriginal rights and title. Mr. Finkel came to that conclusion based on the opinions of the hydrogeological and biological experts. The evidence also establishes that the Project as modified in 2007 (that is, construction of three wells and extraction during the winter months at 131 L/s; summer pumping for emergency and testing purposes) also had the potential to adversely impact the Chemainus River and Halalt’s interests. Mr. Finkel acknowledged this in his Draft EAO Information Note to Mr. Junger in March 2008. Unfortunately, these observations were followed immediately by the judge’s mistaken view that the EAO had recommended approval of the Project with summer pumping for testing and emergency purposes. 144 At para. 611, the judge referred to the second s. 13 Order as “putting an end to any consultation concerning the environmental assessment before referral of the application to the Ministers”. Insofar as the Halalt are concerned, the statement is not correct. In his November 10, 2008 letter, Mr. Finkel advised the Halalt of the changed scope of the Project, told them a draft assessment report would be circulated for comments and invited the Halalt to contact him. The draft was sent to the Halalt on December 10, 2008. On January 9, 2009, Mr. Finkel sent to the Working Group and to the Halalt a draft Table of Commitments and a draft Issue 836 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

Tracking Table. The Halalt responded at the end of January 2009; their response was provided to the Ministers. The second s. 13 Order put an end to public consultation only. It is not relevant to this case. 145 At para. 593, the judge rejected the Crown’s explanation for why the water release option was abandoned. She held that it should be investigated because the District needed “to shift entirely to a ground water supply in the near future”. The recommendation to the Ministers and the Certificate as approved did not allow the District to do so. In my view, the Crown’s explanation made perfect sense. 146 Neither the Crown nor the ratepayers of the District should have been put to the expense of investigating an option pertaining to a pumping regime that was not being considered at that time. If the District seeks in the future to shift entirely to a groundwater supply, that option then would need to be explored in the context of applicable legislation and the Crown’s duty to consult. 147 The effect of the judge’s order is to impose on the Ministers a requirement to consult concerning an application that was not before them and to require the applicant to incur the time and costs of investigating a project it is not pursing. The judicial review was of the Certificate. Its scope defined the scope of the review. Only limited winter pumping was recommended and authorized. The reasonableness of the Ministers’ decision had to be tested in that context, not in the context of an application that was not before them. 148 I now turn to the second key basis on which the judge concluded that the Crown had not fulfilled its duty of consultation: the two modifications to the Project. 149 In my view, Mr. Finkel was not obliged to advise the Halalt of his concerns before expressing them to the District and allowing it, the proponent of the Project, an opportunity to consider its position. He was entitled to express his concern with the original and the modified proposal. The Halalt commented on the original proposal; they commented on the revised proposal and on the proposal that ultimately was recommended to the Ministers. 150 The duty to consult and the interests of the Halalt in this case cannot be considered in a vacuum. In Rio Tinto, the Court made it clear that the duty to consult may be exercised in the context of the work of an administrative tribunal. According to the Court at para. 55, the scope of the duty to consult “depends on the mandate conferred by the legislature that Halalt First Nation v. British Columbia Chiasson J.A. 837

creates the tribunal”. Consultation took place in the context of an environmental review of a project proposed by the District. Federal and Pro- vincial agencies were involved both from an environmental perspective and because the Project was, in part, federally and provincially funded. In my view, it was wholly appropriate for Mr. Finkel to provide information to the proponent and to the other agencies that were involved directly in considering approval of the Project. He often, but not always, did that before providing the information to the Halalt. The record shows that in due course the Halalt were provided with the information and were given an opportunity to comment. Repeatedly, throughout the process, Mr. Finkel invited the Halalt to pose questions and he offered to meet with them to discuss any issues they had. In my view, the fact that the information may have been provided initially to the direct participants in the environmental assessment process does not undermine the consultation that took place. 151 The judge was very critical of Mr. Finkel’s conduct in the spring of 2008 and suggested that he did not report that the District was attempting to obtain the agreement of the Halalt to a project Mr. Finkel had rejected (para. 669). 152 The issue also was addressed in an earlier section of the judge’s reasons. 153 The judge was critical of the fact that the Halalt were not informed that Mr. Finkel advised the District that he would not recommend the Project as then proposed. The judge appears to have been concerned that somehow the failure to inform the Halalt of Mr. Finkel’s comments was improper because the District subsequently met with the Halalt in an effort to gain their support. She stated in para. 334 that “the District sched- uled a series of meetings with Halalt, apparently with a view to persuading Halalt to support the Project as proposed”. Further comments were in paras. 338 and 340: [338] On April 17, 2008, Mr. Finkel advised Mr. Junger by email that he would defer submitting his report to the Ministers because the District planned to meet with Halalt on May 12 to discuss “the status of the Project and EAO’s current findings”. It is unclear what Mr. Finkel meant by the reference to his “current findings” when he was aware that neither he nor the District had advised Halalt of those findings. ... 838 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

[340] The District said the purpose of the meeting was to determine “what it would take” to have Halalt’s support for the Project as currently proposed. There is no mention in the minutes of the meeting of the District’s knowledge that the EAO would not recommend the Project as proposed. 154 I observe that, the April 17, 2008 e-mail from Mr. Finkel to his superior does not state that the District planned to meet with the Halalt to discuss “EAO’s current findings”. It states: “[t]he District wishes to complete this meeting with Halalt prior to further discussions with EAO about the status of the project and EAO’s current findings” [Emphasis added]. 155 As the judge noted in para. 339, the District explained its proposal and recorded its position in the meeting’s minutes as follows: North Cowichan believes there has been a complete and thorough technical analysis for the well project through the environmental assessment process which also identified areas of concern for which a mitigation plan was tabled. The Municipality’s proposal is to utilize the wells during the winter for domestic supply to Chemainus and to continue testing throughout the summer to determine whether or not the aquifer can accommodate summer and winter use. Although Mr. Finkel had indicated his concerns with this approach and ultimately refused to incorporate it into the s. 13 Order, there is no doubt that the District continued throughout to want to proceed as it outlined to the Halalt at the meeting. 156 The next paragraph of the minutes begins with the statement “[t]he Municipality would like to know what it would take to have the Halalt’s support for the well project”. Presumably, the District felt that such support would be important to it in any further discussions with the EAO. 157 In my view, it made good sense to await the outcome of the discussions between the District and the Halalt. The Halalt had made it clear that they did not want the EAO to be in the middle of their discussions with the District. It also offered an opportunity for the Halalt and the District to forge a consensus. 158 In part, it was her concern with the conduct of the District that led the judge to reject the meetings between the District and the Halalt as not satisfying the Crown’s duty to consult. I agree with the judge’s observation that the Crown cannot delegate its ultimate responsibility for consultation (paras. 676 and 678). It can delegate some procedural aspects of Halalt First Nation v. British Columbia Chiasson J.A. 839

consultation, but at the end of the day the ultimate responsibility is that of the Crown. 159 I do not consider that the District was the Crown’s delegate. By the terms of the s. 11 Order (s. 10.2), the District was obliged to consult with the Halalt and to report to the Crown, but nothing in the material suggests that the Crown looked to the District to fulfill the Crown’s duty to consult and accommodate. 160 In Neskonlith Indian Band, Madam Justice Newbury addressed consultation in words I consider to be apt for the present case: Adequacy of Consultation [84] This brings us to the final issue — whether, assuming (i) that the Neskonlith have a strong case for Aboriginal title to their reserve land; (ii) that the City was authorized to consider the Aboriginal rights and claims of the Neskonlith in issuing the permit, and (iii) that an adverse effect sufficient to trigger the duty to consult occurred or might occur, the consultation carried out in this case was sufficient to satisfy the honour of the Crown. Again I note that in my respectful view this is an issue of mixed fact and law to which the standard of reasonableness applies and that “so long as every reasonable effort is made to inform and to consult, such efforts would suffice.” (Haida, at para. 62.) [85] I have described at length the correspondence between Chief Wilson and the Mayor of Salmon Arm, in which the Chief consistently reiterated her Band’s objections to Shopping Centres’ proposed development. These objections were repeated at the public hearing held by the City council in October 2008, which hearing led to the defeat of the then proposal; and at the public meeting held in Decem- ber 2009 to discuss the revised proposal. It will be recalled that Shopping Centres decided to reduce the size of the development further even after it had received final approval under the RAR, and that Chief Wilson again stated her Band’s opposition to the entire development in a letter dated May 26, 2010 and in her statements made at the at the public hearing in July 2010. [86] ...Chief Wilson was provided with all the supporting materials to be considered by the City in connection with the permit, including the Stantec report dated May 6, 2011. Around this time, the Neskon- lith retained Dr. Church and as has been seen, his letters of opinion were forwarded to and commented on by Stantec. A veritable “war of the experts” ensued and ultimately Dr. Church framed the one concern that lies at the heart of this proceeding — the possibility of an 840 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

“imperative demand for flood protection, leading either to [possible] river channel modifications or to dike construction” along the River. In addition the Neskonlith submitted the less focussed opinion of Dr. Turner, which included the concern that any flood mitigation measures on the ethnobotany and indigenous uses of the area would be highly significant and required further consideration. [87] The Neskonlith were again represented and made their objections known at the meeting of the Council on July 11, 2011 following which Council approved the granting of the permit. Further expert reports were generated by the geomorphology experts when the final revised development permit was sought and granted after another hearing. ... [89] Can it be said that the Neskonlith’s concerns regarding the elevation of the proposed development were not “taken seriously”? (See Beckman, supra, at para. 78.) The Neskonlith were treated respectfully by the City and its staff; they were given copies of all relevant materials; they were heard at various meetings; their expert reports were obviously reviewed with care by the owner’s experts; and various modifications, including the reduction of the development to only 20 acres, were made by Shopping Centres to its plans in the process. Although Dr. Turner advocated a more complete botanical assessment of whether the development should be permitted at all, it has not been shown that further expert reports on the specific issue of the development permit would have provided material assistance to the decision-maker or might have led to a different decision. The issue of the permissible elevation for the shopping centre cannot be said to have been ignored or taken lightly, and in the end was resolved on the basis of scientific assessment by qualified professional engineers. [90] The Neskonlith submit that “Even the lowest form of consultation demands substantive engagement and discussion” with the First Nations, and that that has not occurred in this case. In the absence of any statute or case law that requires a particular form of consultation, I cannot agree. I conclude that the process in this case was reasonable; that the Neskonlith were fully and promptly informed of all applications and amendments relevant to the permit and to the development generally; that they were given several opportunities to express their concerns; that their objections (and those of others) were taken seriously and did lead to material modifications of the planned development; and that the City’s decision itself lay within the range of reasonable outcomes. Halalt First Nation v. British Columbia Chiasson J.A. 841

[Underline emphasis added.] 161 I agree with the judge’s comment at para. 651, which I repeat: Mr. Finkel, and not the Working Group, was the engine driving the environmental assessment. Halalt was sometimes included in meetings or discussions and sometimes not. 162 This observation has two dimensions: participation in the Working Group in and of itself may not be sufficient; the corollary is that non- participation in whole or in part is not fatal. To assess whether the Crown has met its duty to consult, the entire context must be considered. In its recommendation to the Ministers, the EAO summarized the participation of the Halalt in the assessment process: From 2005 to 2007 EAO provided funding support to Halalt to retain technical expertise, including a hydrogeologist, and to review the Application and additional documents prepared and submitted by the Proponent. In February 2005 the Halalt provided EAO with The Halalt First Nation Commentary to the Environmental Assessment Officer regarding the District of of North Cowichan Application for an Environmental Assessment Certificate for the Chemainus Water Well Supply Project (February 20, 2005), hereafter referred to as the Commentary. This document set out in detail Halalt’s perspective on the proposed Project and Halalt’s interests, including Halalt’s asserted rights and title. The range of issues identified in the Commen- tary became [the] focus of consultations between EAO and Halalt over the course of the environmental assessment and are discussed throughout the Assessment Report. During the review of the Application the Proponent participated in working group meetings organized by EAO to discuss Project issues and findings, including working meetings on January 20, 2005 and March 8, 2005 that included representation from Halalt and the HTG. The Proponent also participated in three meetings organized by EAO with Halalt representatives on June 16, 2005, July 5, 2005 and De- cember 6, 2006 to discuss a range of issues identified in the Commentary. Halalt’s hydrogeologist attended meetings with the Proponent’s hydrogeologist and EAO’s hydrogeologist on January 23, 2006 and May 31, 2006 to hear and discuss preliminary findings from the 2005 pumping test and monitoring program. The Proponent also met five times with the Halalt between March 2008 and July 2008 to discuss the proposed Project. 842 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

In addition to the working group meetings and joint meetings with the Proponent, EAO and Halalt met directly to discuss Halalt concerns on March 7, 2005, May 2, 2005, June 7, 2005, July 20, 2006, October 24, 2006, September 20, 2007, and February 6, 2008. 163 One example of the approach of the EAO is Mr. Finkel’s November 26, 2007 e-mail to the Halalt, which states as follows: Attached for your information are comments from the Ministry of Environment (including my original request for comments) and from Allan Dakin regarding the Chemainus Wells Project. EAO has forwarded these comments to the District of North Cowichan for review and response. I will review the environmental assessment timetable I provided at our September meeting and circulate a revised timetable shortly. The next step for EAO will be to issue a first draft of an assessment report (December) and seek a mutually agreeable date for another meeting with Halalt First Nation to follow-up on our discussion from September. 164 It is correct that the Halalt were not consulted before the scope of the Project was altered, initially and finally, but once changes were made, the Halalt were consulted and did provide comments. The comments of the Halalt on the proposed recommendation to the Ministers were provided to the Ministers. The recommendation and the comments of the Halalt addressed the scope of the Project as proposed and as modified. 165 It may be that others would have handled the details of consultation differently, but that is not the test. Did deep consultation take place? On the record, clearly it did. The Halalt contend that they should have been consulted before the Project was modified. The chambers judge agreed. In my view, that proposition is premised on an incorrect appreciation of the legal obligation to consult on this Project. As modified, it did not compromise the Crown’s ability to meet its duty to consult. There was no legal obligation to continue consultation on summer pumping. The Crown had no legal duty to consult the Halalt before modifying the Pro- ject; the duty was to consult about the Project that was being recommended to the Ministers. The Crown met that duty. 166 This case is a judicial review of the Ministers’ decision to issue a certificate approving a project. It cannot be contended that there was no consultation. In my view, it equally is untenable to conclude that the consultation was inadequate. I conclude that the Crown met its duty to consult. Halalt First Nation v. British Columbia Chiasson J.A. 843

Accommodation 167 The chambers judge concluded that the Crown did not adequately accommodate the concerns of the Halalt for a number of reasons: 1. “... the modifications to the Projects were not made in response to consultation with Halalt. The EAO had no discussions with Halalt about scaling back the Project and, as a result, the environmental assessment. The EAO made the decision to do so and then advised Halalt” (para. 685); 2. “...one cannot fairly characterize as a reasonable accommodation the decision to remove from the protection of the environmental assessment process the most potentially harmful aspects of the Project. Truncation of the Project resulted in truncation of the environmental assessment. Decisions concerning groundwater extraction on a year round basis, including any process to determine its viability, are now left to the discretion of the executive director under the certification amendment process. Decisions concerning emergency summer pumping are left to the discretion of the District and the Chief Medical Officer of VIHA. These actions amount to avoidance of Halalt’s concerns, not their accommodation. They certainly did not result from consultation” (para. 688); 3. “...there is no evidence on the record, from hydrogeological experts or consultants of any kind, that the undertaking finally recommended by the EAO to the Ministers was unlikely to cause significant adverse impacts to the Chemainus River” (para. 689); 4. it does not “appear that Mr. Finkel turned his mind to the impacts of summer pumping for emergency and contingency purposes. The s. 13 Orders and the EA Report are silent on the issue” (para. 693); 5. the Halalt were not given participation in monitoring the wells operations (para. 696); 6. financial compensation should have been considered (para. 709). 168 I shall address each of these observations.

1. The modifications in response to consultation 169 In my view, it is clear that the modifications were made in response to the concerns of the Halalt. The comments of the chambers judge in para. 566, quoted above, confirm this. Those modifications resulted in 844 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

scaling back the Project, which the District was entitled to do. This did not eliminate the fact that consultation on year-round pumping had taken place for several years. 170 In the absence of the judge’s incorrect understanding of the Certifi- cate and incorrect legal and factual approach to the question of year- round pumping, I cannot see how scaling back the Project to avoid the potential adverse consequences of summer pumping was not an accommodation in the interests of the Halalt.

2. Decisions concerning year-round pumping and summer pumping 171 Continued consultation on year-round pumping no longer was necessary because it was eliminated. The discretion of the executive director must be exercised in accordance with his statutory mandate, just as it was when it was determined at the outset that a certificate was required. At a September 20, 2007 meeting of the Working Group attended by the Halalt, Mr. Finkel explained that if there were an application under s. 19 the “EAO would first conduct a min-environmental assessment of the proposed change to determine whether the change would result in significant adverse effects”. He observed that the Certificate would be amended only if the EAO was satisfied there would be no significant adverse effects. He stated that that the proposed changes would be reviewed “with the appropriate agencies and Halalt”. The federal representative at the meeting advised that proposed changes likely would result in a review under applicable federal legislation and that “[t]he federal government would consult with Halalt about changes and possibly invite further public review”. 172 The matter also was addressed by Mr. Finkel in his November 10, 2008 letter to the Halalt. He stated that the District would be obliged to “collect and provide information needed to assess whether an increase in groundwater extractions could have significant adverse effects” and that any application to increase groundwater extractions “would be carefully examined given the existing uncertainty about the impact of groundwater extractions during the summer months”. Mr. Finkel confirmed that the Halalt would be consulted “about any test program proposed to gather data about impacts and mitigation, and consult[ed] in any review process established to review the results”. 173 Further, it is not correct that “[d]ecisions concerning emergency summer pumping are left to the discretion of the District and the Chief Medi- cal Officer of VIHA”. Halalt First Nation v. British Columbia Chiasson J.A. 845

174 Although she alluded to it in para. 406 of her reasons, the judge apparently did not consider the implications of Part 5(4) of the Reviewable Projects Regulation. At the hearing of the appeal, the Crown advised that a request by the District to develop a third well to accommodate year- round pumping would be a modification. It would engage the provisions of the EEA as are applicable to a “reviewable project”.

3. No evidence of advice received by Mr. Finkel 175 There clearly was evidence that Mr. Finkel received advice “that the undertaking finally recommended by the EAO to the Ministers was unlikely to cause significant adverse impacts to the Chemainus River”. For example, Mr. Finkel received the following emails describing the impacts on the river: • December 30, 2008: an hydrologist with the Vancouver Island Re- gion of B.C Environment, who specified a “very low potential for impact” on surface water flows; • January 7, 2009: an ecosystem biologist with the Ministry of the Environment, who noted a “low potential for significant impacts to fish, wildlife and vegetation”; • January 22, 2009: Section Head, Water Protection, Water Stew- ardship Division — Regional Operations, Vancouver Island Re- gion, who expressed no concern.

4. Mr. Finkel’s awareness of the impacts of emergency and test pumping 176 Mr. Finkel clearly turned his mind to summer emergency and test pumping. As noted previously, he specifically addressed this in his No- vember 10, 2008 letter to the Halalt and in his November 19, 2008 letter to the District, a copy of which was sent to the Halalt. In both letters, he made it clear that the s. 13 Order did not provide for summer emergency and testing pumping.

5. Halalt’s participation in the monitoring program 177 The Crown takes the position that the Halalt did not ask to participate in the monitoring program, but, in any event, were involved extensively in discussions concerning monitoring. The Halalt’s response to EAO’s draft assessment report appears to support the Crown’s position. The Halalt asked that the District be required to conduct comprehensive monitoring and expressed the desire that the monitoring program be “deter- 846 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

mined in consultation with Halalt”. They did not ask to participate in monitoring. 178 The following are examples of consultation with the Halalt on monitoring: • July 27, 2007: Dr. Wendling sent a letter to the EAO in which he addresses monitoring among other matters concerning the Project; • August 16, 2007: Mr. Finkel sent a communication to the Halalt enclosing a number of documents, including a draft monitoring plan prepared by a consultant; • September 20, 2007: a meeting between the EAO, other Provin- cial representatives, Federal representatives and the Halalt at which time Dr. Wendling made a presentation that included monitoring; • February 6, 2008: a meeting with the same parties at which time a draft monitoring plan was distributed. 179 In my view, it was not unreasonable for the Ministers not to include the Halalt in the monitoring program. Monitoring is undertaken by independent consultants. The Halalt are provided with the results of the monitoring. The decision who should undertake monitoring in the circumstances of this case is not a matter that should be of concern to a court on a judicial review.

6. Financial compensation 180 I also am of the view that the refusal to consider compensation was not unreasonable in the circumstances of this case. It is not difficult to discern strong policy reasons for refusing compensation. 181 As noted previously, at the outset of the process the Hul’qumi’num Treaty Group wanted “to be assured that the water to be taken from the aquifer under the project does not represent a significant depletion of future water availability”. It was recognized that there are uncertainties in the natural environment: “[a]bsolute certainty is not what we are looking for”. It was expected that “professional expertise [would be] brought to bear on producing reasonable estimates of aquifer supply”. In my view, that is exactly what occurred over the many years of the environmental review. Halalt First Nation v. British Columbia Chiasson J.A. 847

182 At para. 703, the judge stated: Halalt observed that the objective of preserving asserted Aboriginal rights and title in this case would only have been met entirely if the Ministers refused to certify the project...were the Project to receive approval, accommodation should be aimed at reducing the degree of the infringement as opposed to preventing infringement altogether. I think this is exactly what was done. 183 I consider that the Project as approved by the Ministers reasonably accommodated the adverse impacts identified by the Halalt.

New evidence 184 The District applies to adduce the monitoring report of operations during the winter months of 2009 to 2010. It reports no adverse impacts on the aquifer. The Halalt object to the admission of this new evidence. Their expert responded to it and the Halalt assert that it is controversial. I read Dr. Wendling’s comments. He does not quarrel with the conclusion that the aquifer was not affected adversely. His concerns seem to focus on water quality in the wells and, to some extent, on methodology. 185 In my view, the evidence should be admitted. The chambers judge proceeded on the basis that there was no evidence that the Project as approved would not have an adverse impacts on the aquifer. Although I consider she erred in that regard, the new evidence relates directly to that issue and suggests that the judge’s factual assumption was not correct (Jens v. Jens, 2008 BCCA 392, 84 B.C.L.R. (4th) 250 (B.C. C.A.) at para. 29, quoting Lambert J.A. in North Vancouver (District) v. Lunde (1998), 60 B.C.L.R. (3d) 201 (B.C. C.A.) at paras. 25-26, (1998), 162 D.L.R. (4th) 402 (B.C. C.A.)).

Conclusion 186 The District required a certificate to construct and operate the wells. Construction and operation could only take place as permitted by the Certificate. Summer pumping was not permitted. 187 The District was entitled to request a modification of the originally proposed Project and the EOA was entitled to amend its s. 11 Order to reflect a modified project. The Halalt were entitled to be consulted on whatever project was being considered by the EAO and, particularly, on whatever project was to be considered by the Ministers. 848 WESTERN WEEKLY REPORTS [2013] 1 W.W.R.

188 For several years, the District proposed year-round pumping. Through their expert advisors, the Halalt expressed concern with such pumping. The Project was scaled back to two wells with summer pumping for testing and emergencies. The Halalt commented on that. The Pro- ject was scaled back to winter pumping with no summer pumping. The Halalt were afforded the opportunity to comment on that. Their comments were provided to the Ministers before a decision was made. 189 The Project as submitted to the Ministers and approved by them addressed the concerns of the Halalt based on the advice of consultants, including those of the Halalt. That advice reflected the traditional use the Halalt made of the waters in issue. 190 In my view, the chambers judge erred in law by requiring continued consultation on year-round pumping and erred in fact in concluding that such consultation had not taken place. 191 In my view, the judge’s conclusion that the Crown did not reasonably accommodate the interests of the Halalt was based on her misinterpreta- tion of the effect of the Certificate. This led to an incorrect characterization of the scope of the Project as approved. 192 On the facts, there clearly was deep consultation. The accommodation of limiting pumping to a single pump during the winter months was reasonable.

Disposition 193 I would allow these appeals and set aside the declarations and orders made.

D. Smith J.A.:

I agree:

Neilson J.A.:

I agree: Appeal allowed.