Vol. 35, No. 2. | FALL 2016 The largest Swiss Army knife has 85 tools that can perform 141 tasks. The Advocates’ Journal Vol. 35, No. 2; Fall 2016 18

Redactions to relevant documents: From the Editor 3 29 A revised approach Alexander M. Gay

Judicial impartiality: A paperless courtroom: Appearance and reality Embracing the use of electronic trials 7 32 working in harmony James Bunting, Chantelle Spagnola and Anisah Hassan William Poulos Almost as helpful as McKellar. All’s fair in love and court: The reason why we are Canada’s largest and most comprehensive structured settlement firm has everything The use of wrongfully obtained The Journal conversation: to do with our passion for service and performance— without exaggeration, we make life easier for you. evidence in civil proceedings 10 36 Sheila R. Block, LSM, ASM Erin Pleet Stephen Grant, LSM and Chantelle Spagnola

BMO v. Spence: Good faith as an Racial discrimination and “private wills” 18 42 “organizing principle” Ian M. Hull and Suzana Popovic-Montag Doug Mitchell CANADA & USA 1.800.265.8381 | EMAIL [email protected] | www.mckellar.com THE ADVOCATES’ JOURNAL | FALL 2016 | 1 FROM THE EDITOR Eschewing Obfuscation THE ADVOCATES’ SOCIETY

The intellect of man is forced to choose PAST PRESIDENTS Perfection of the life, or of the work, And if it take the second must refuse 1965-66 J. J. Robinette, Q.C. 1992-93 The Hon. Justice Eleanore A. Cronk A heavenly mansion, raging in the dark. 1966-67 The Hon. R. F. Reid 1993-94 Roger Oatley 1967-68 The Hon. Justice R. S. Montgomery 1994-95 The Hon. Justice Mary Anne Sanderson ~ W.B. Yeats, The Choice 1968-69 The Hon. Justice P. Cory 1995-96 C. Clifford Lax, Q.C., LSM 1969-71 W. B. Williston, Q.C. 1996-97 Margaret A. Ross, LSM 1971-72 The Hon. Justice W. D. Griffiths 1997-98 The Hon. Justice Harriet Sachs Vol. 2. | FALL 35, No. 2016 1972-73 C. F. McKeon, Q.C. 1998-99 Michael F. Head ay I speak frankly with you? allegations are true!” 1973-74 A. E. M. Maloney, Q.C. 1999-00 James A. Hodgson Do you trust that statement? Is it just a We use phrases like “off the record” to impart some 1974-76 P. B. C. Pepper, Q.C. , LSM 2000-01 Ronald G. Slaght, Q.C., LSM byword for dissembling or a fair representa- meaningful, but possibly unreliable, nugget of data. 1976-77 H. G. Chappell, Q.C. 2001-02 J. Bruce Carr-Harris, LSM 1977-78 W. S. Wigle, Q.C. 2002-03 Philippa G. Samworth Mtion of a true state of being? Does it matter that I said In today’s hipster parlance, it’s “just sayin’.” “Without Fall 2016; Vol. 35, No. 2. 1978-79 The Hon. Justice J. J. Fitzpatrick 2003-04 Jeffrey S. Leon, LSM Stephen Grant, “with you” (implying conspiratorial activity) or “to prejudice” has its own jurisprudential history. 1979-80 E. A. Cherniak, Q.C., LSM 2004-05 Benjamin Zarnett, LSM you” (a directive instead)? Does it mean that I wasn’t To analyze this tendency, we could hold a semin- Editor 1980-81 The Hon. Justice J. W. O’Brien 2005-06 Linda Rothstein, LSM LSM Stephen Grant, LSM | [email protected] 1981-82 T. H. Rachlin, Q.C. 2006-07 Michael E. Barrack speaking frankly before? It’s akin to the phrase, “To ar on legal semiotics, invoking the deconstructionist 1982-83 K. E. Howie, Q.C. 2007-08 Michael Eizenga be honest with you …”; or to a witness saying, “In all tools of Jacques Derrida and his ilk. If this isn’t too Managing Editor 1983-84 J. P. Nelligan, Q.C., LSM 2008-09 Peter J. E. Cronyn honesty, I can’t recall …” far-fetched, one could write an Umberto Eco–like book, Aaron Dantowitz | [email protected] 1984-85 Peter Webb, Q.C., LSM 2009-10 Sandra A. Forbes 1985-86 Bert Raphael, Q.C., LSM 2010-11 Marie T. Henein I’ve been thinking about the way we communicate say, The Name of the Writ. Production Editor 1986-87 A. D. Houston, Q.C. 2011-12 Mark D. Lerner as lawyers, our subtleties and special language, our Canadian poet John Robert Colombo once suggested Sonia Holiad | [email protected] 1987-88 The Hon. Justice J. R. R. Jennings 2012-13 Peter H. Griffin lingua franca. In court and daily exchanges, we use to me that poetry was the exact opposite of law. As law- 1988-89 R. A. Stradiotto, Q.C., LSM 2013-14 Alan H. Mark 1989-90 The Hon. Justice Peter G. Jarvis 2014-15 Peter J. Lukasiewicz text and subtext. We are legal interpreters and techni- yers, we want words to be as precise as possible (unless, 1990-91 John F. Evans, Q.C., LSM 2015-16 Martha A. McCarthy, LSM cians. Our language is nuanced. The public has com- of course, ambiguity suits a drafter’s purposes), while The Advocates’ Journal: cite as Adv J 1991-92 Terrence J. O’Sullivan, LSM plained about the scourge of legalese at least since the poets expect words to impart as much meaning as pos- days of the scriveners, well-known by Dickens’ time. sible, creating verbal elasticity, if you will, leaving the Editorial Correspondence Stephen Grant, LSM, Grant & Sadvari Legal obscurantism has long ago fallen out of favour. reader to forge his or her own meaning. OFFICERS 165 Avenue Road, Suite 201 Plain language has been in vogue for at least the past Speaking of “reader,” we recently received a letter Toronto, ON, M5R 3S4 [email protected] | 416 238-7776 quarter-century. from a lawyer who described himself as “the writ- President: Bradley E. Berg To the extent legalese hangs on like a bad cold, Amer- er.” The letter had phrases such as “the writer objects Advertising and Subscription Correspondence Vice-president: Sonia L. Bjorkquist ican attorney Stefan Savic says that, while no one likes to this,” “the writer takes issue with respect to the Robin Black Treasurer: Brian J. Gover [email protected] | 1-888-597-0243 x.108 Secretary: J. Scott Maidment it, we still use it because it’s safe and it works, truly within proposal” and so on. In response to a letter I Executive Director: Alexandra M. Chyczij a sad commentary (“Legalese: Won’t Do with It, Can’t received like this one some years ago, I replied: “The Creative Director Jessica Lim Do without It” – Above the Law, July 1, 2016). Local legal reader acknowledges yours of the 28th instant, etc.” [email protected] observer Jeffrey Miller laments in his blog the loss of I’m not sure if the writer got the point. Even worse, of DIRECTORS Cover “Afternoon Break” legal Latin (“Donald Trump as compost mentis: A de- course, is the “undersigned.” Does anyone really talk Illustrated by Natalie Nehlawi fence of legal Latin,” June 25, 2016). All I can say to that or write this way anymore? In this century? Frank Addario D. Brian Foster, Q.C. Ann L. Morgan Steve J. Tenai is ex nihilo nihil fit. We all have our pet peeves, although I become peev- Paintings, Illustrations and Photography: Sarah J. Armstrong Rosemary A. Fisher J. Kenneth Helder M. Travassos As a lot, we are commitment-phobic. The passive ish hearing that expression. Ditto for “that said.” Or, Karam Bajwa: p. 18-19, 33, 42 Michelle Awad, Q.C. Aaron M. Franks McEwan, Q.C. Anne M. Turley Laurna Germscheid: Spot Illustrations: p. 3, 15, 34, 40 Brian A. Babcock P.A. Neena Gupta David C. Marie-Andrée voice alone – never saying who did what to whom – “not to put too fine a point on it.” And do we really Anja Javelona: p. 7, 37 Sandra L. Barton J. Sheldon Hamilton Nahwegahbow Vermette Natalie Nehlawi: Cover | p. 10-11, 29 is a prime example of commitment-phobia. Judicial need “in order” to do something? Usually not. I recent- Colin S. Baxter Eric R. Hoaken Deborah E. Palter Janice L. Wright discretion is advised? Then there’s “on the one hand ly heard a lawyer say, “In our legal world, words have Edward V.B. Bergeron Dominique T. Hussey Dana M. Peebles Paul B. Vickery The opinions expressed by individual authors are their this, on the other, that,” forgetting that clients sure- own and do not necessarily reflect the policies of Wendy R. Berman Stephen D. Jovanovic Guy J. Pratte Aaron Dantowitz, The Advocates’ Society. Andrew E. Bernstein Eliot N. Kolers Lonny J. Rosen ex officio ly have the right to our best assessment and likely Blair W.M. Bowen Peter W. Kryworuk M.J. Lucille Shaw outcome of a set of facts. And “I would have thought Emily C. Cole R. Reena Lalji Megan E. Shortreed Publications Mail Commercial Sales Agreement No. 40019079 J. Thomas Curry Joseph J. Markson Tara M. Sweeney that …” – to which I ask, but for what? The Advocates’ Journal is printed in Canada and is published four times a year by The Advocates’ Society, 250 Yonge Street, Suite We say “allegedly,” sometimes half in irony, the 2700, Toronto, Ontario, M5B 2L7. Distributed free to all members of other half in steadfast refusal to propound statements the Society. Contents copyright © 2016 by The Advocates’ Society. PAST EDITORS OF THE ADVOCATES’ SOCIETY JOURNAL Second class registration number 5941, paid at Scarborough. from which defamation might ensue. The media has Contents may be reproduced only with written authorization adopted this verbiage: “These allegations have not of the authors and acknowledgment of The Advocates’ Journal. 1982-90 Moishe Reiter, Q.C. been proven in court” – allegations being, of course, The editors do not assume responsibility for the loss or return of 1991-08 David Stockwood, Q.C., LSM manuscripts, photographs, or illustrations. unproven claims. In the old cattle call of undefended divorces, a certain judge would roar: “Don’t ask her if the facts are true! Facts are always true! Ask her if the

2 | FALL 2016 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2016 | 3 CONTRIBUTORS meaning.” Truer words were never spoken, at least “in my submis- sion.” Family law has its own trite expressions, “etched in stone,” among them, “What’s sauce for the goose, etc.” My current irri- Sheila Block, LSM, ASM tant is “fulsome,” which I recently heard uttered by both opposing Sheila Block is a trial and appellate counsel at Torys LLP. She thought she was going for drinks with Grant and ended counsel and our motions judge supposedly to mean “complete,” the up in the Journal. extra syllable presumably giving the submission additional heft? I think it’s just pretentious, like the redundant “as per.” Need relief? Stanford professor Bernard Roth claims that tweak- ing two phrases of common parlance can make you more success- James Bunting ful. Trade “and” for “but” to eliminate conflict and “have to” for THE ADVOCATES’ JOURNAL James Bunting is a partner at Davies Ward Phillips & Vineberg LLP in the litigation group located in Toronto. He is a “want to” to accentuate the positive, so to speak. This is called “de- SUBMISSION GUIDELINES trial lawyer experienced in commercial and corporate matters including class actions, arbitration, advertising, franchise disputes and securities litigation. Jim also has extensive experience with sports related matters, having sign thinking,” useful for reframing the paradigm (Shana Lebowitz: represented athletes in various capacities including appearing before the International Court of Arbitration for Sport • “A Stanford Professor …”; Business Insider, June 29, 2016). If this Content: We value articles about advocacy and various international and domestic tribunals. simple fix fails, you might well take comfort in Alain de Botton’s and advocates that are topical and crackle How Proust Can Change Your Life or Sarah Bakewell’s How to Live: A with currency. Alexander M. Gay Life of Montaigne in One Question and Twenty Attempts. Alexander Gay is a senior litigator, practising primarily in the area of commercial litigation and trade disputes. He Res ipsa loquitur. • File format: We accept submissions only in is also a part-time law professor at the University of Ottawa Law School where he teaches Civil Procedure. *** Microsoft Word format. Chilly winds, brisk walks, beautiful colours. It’s fall. There is something magical about the changing seasonal air. Chantelle • Length: Although we appreciate concision, Spagnola and I had a delightful talk with Sheila Block at the there is no maximum or minimum length for Anisah S. Hassan Campbell House fireside (although there wasn’t a Scotch to be Journal articles. The majority of our articles Anisah Hassan is an associate at Davies Ward Phillips & Vineberg LLP in the litigation group located in Toronto. She has acted in a variety of litigation proceedings including commercial disputes, class actions, intellectual property found that evening, malheureusement). You can find our chat here are between 1,500 and 3,500 words (excluding claims, tort claims and other matters. Anisah has worked on proceedings before all levels of courts in Ontario, as along with articles on advocacy in one form or another, including, notes), but we will consider articles outside well as appellate courts in other provinces. but not limited to, this year’s Stockwood Prize winner, all designed this range. to spark those neurons as we head back to court. Marty Teplitsky, legendary counsel, teacher and friend, mediator/ • Notes: We would prefer articles without Ian M. Hull Co-founder of Hull & Hull LLP in Toronto, Ian M. Hull practises exclusively in the areas of estates, trusts, capacity arbitrator, founder of the Lawyers Feed the Hungry program, and notes, but whether to include notes is at the and fiduciary litigation. He also maintains a specialized mediation practice through Hull Estate Mediation Inc. occasional Journal contributor, died in July. Tribute to follow. author’s discretion. (All direct quotations Ian is a certified specialist in estates and trusts law and in civil litigation as well as a frequent lecturer and author should be referenced, however, whether of numerous articles and publications specializing in estate law issues. in the body of the article or in notes.) If you include notes with your submission, Doug Mitchell we prefer endnotes to footnotes. When Doug Mitchell is a partner at Irving Mitchell Kalichman LLP, a litigation boutique in Montreal. A Montrealer to reviewing notes after completing the final the core, he is passionate about the Habs (and P.K. Subban) and the unique features of Quebec civil law. draft, double-check that cross-references (“ibid.,” “supra”) haven’t changed because of late additions or deletions of text. Erin Pleet • Citation format: We do not insist on a particular Erin Pleet is an associate at Thornton Grout Finnigan LLP in Toronto, practising commercial litigation. citation style. If you include citations, we trust that you will ensure they are accurate, complete, current and internally consistent. In particular, check that citations to Internet sources refer to web addresses that are valid Suzana Popovic-Montag as of the date of the submission. If a cited web Suzana Popovic-Montag is the managing partner of Hull & Hull LLP in Toronto, practising exclusively in the areas address is no longer valid, we expect you to of estates, trusts, capacity and fiduciary litigation. She also maintains a specialized mediation practice through Hull make note of this in the citation. Estate Mediation Inc. Suzana is a frequent speaker at various OBA, CBA and Law Society of Upper Canada programs and her numerous academic articles are referred to in many of Canada’s leading estates texts. Thank you, William Poulos Stephen Grant, William Poulos is a sole practitioner in Kingston with interests in civil and criminal litigation as well as administrative law. Editor

Aaron Dantowitz, Managing Editor Chantelle T. Spagnola Sonia Holiad, Chantelle Spagnola is a litigation associate at Davies Ward Phillips & Vineberg LLP in Toronto. She practises civil Production Editor litigation and enjoys trial work, golfing and snowboarding, in no particular order of preference.

THE ADVOCATES’ JOURNAL | FALL 2016 | 5 TRIAL ADVOCACY

Hello point B. A paperless courtroom: Your search for legal information and insight just got easier. Embracing the use of electronic trials

James Bunting, Chantelle Spagnola and Anisah Hassan

Intuitive design lthough electronic trials (also known as “e-trials”) contin- litigation to trial on an expedited schedule. Of particular note, the pro- Exceptional content ue to be the exception in Ontario, the tipping point is fast cedure adopted by the court and the parties included the use of iPads approaching, if not yet upon us. As technology advances, by both counsel and the court; the “chess clock” method of allocating Productivity tools Awe as litigation counsel are provided with an increasing array of each party’s time at trial; evidence-in-chief by way of affidavit; cloud tools that can be used to manage the trial process efficiently and storage and transfer technology; and real-time transcription. Anywhere access effectively. The great volume of electronic documents such as emails have become the norm in civil litigation. These tools assist the court, he Husky v. Schad et al trial – a paperless courtroom counsel and litigants in reducing the time and expense of litigation. The case of Husky v. Schad involved Husky Injection Molding Such cuts are particularly important in complex commercial cases. Systems Ltd., one of the world’s leading manufacturers In this article, we discuss a number of innovative practices that were Tand suppliers of injection moulding equipment to the plastics in- adopted by the parties and the court in the Husky v. Schad et al.1 trial dustry, as the plaintiff; and Husky’s founder, Robert Schad, and heard in the Ontario Superior Court (Commercial List) in late 2015 and his new company Athena Automation Limited, as defendants. ® ® lexisnexis.ca/advance show how the adoption of those practices allowed the parties to effec- This case involved allegations by Husky that the defendants, Lexis Advance Quicklaw tively and efficiently bring this large and complex piece of commercial among other things, misused Husky’s confidential information

THE ADVOCATES’ JOURNAL | FALL 2016 | 7 in the process of manufacturing injection moulding machines. to provide the parties with direction when there was disagree- the trial documents, examination briefs and briefs of authorities. The trial took place over four weeks, from November 23 to De- ment over scheduling and to facilitate the efficient resolution of In particular, documents were viewed in the “GoodReader” applica- cember 23, 2015, before Justice Newbould. preliminary motions, such as a motion on refusals brought by tion, which provides a look and feel similar to a physical document This matter progressed on a highly accelerated timetable for Husky during the discovery process. and contains extensive annotation and editing functions (including a case of its size and complexity. The claim began in May 2013 The parties were also fortunate to make use of Courtroom 8-1 the ability to highlight and create markups of documents). in the Ontario Superior Court. Given the real time nature of the at 330 University Avenue in Toronto, which is furnished with all The use of iPads, which was highly effective for dealing with allegations raised, the amounts at issue (in the hundreds of mil- the equipment necessary to conduct an e-trial, including moni- such a complex case in real time, eliminated the need for parties lions of dollars) and the sophistication of the parties and experi- tors and large screens for projecting materials for the judge, the to allow additional time for printing and assembly. It also allowed ence of counsel, the defendants were granted a request to have witnesses, counsel and observers. for the use of technological tools to navigate the vast evidence the matter transferred to the Commercial List. Justice Newbould directed that no hard copy materials be used more efficiently, making it possible to navigate the entire case with It became clear to the defendants at an early stage of the pro- during the course of the trial.2 Opening submissions, which were ease. The amount of paper saved by a single iPad the size of a thin ceedings that it would be essential for the parties and the court made orally, were accompanied by PowerPoint presentations. No notebook could have filled several rooms. to adopt innovative practices to bring the case to trial in an ef- written motion materials were filed for motions that took place Finally, the parties used a cloud-sharing service supplied by Da- fective and efficient manner. This was particularly apparent not during the trial, and there were no hard copy “witness binders” vies to upload and share materials. For counsel using iPads, the only from the substantive content of the documents produced put to the various witnesses on cross-examination. Rather, all ma- tablets were set up to synchronize with the cloud-sharing site so by the parties in discovery (the vast majority of which related to terials were displayed electronically on screens in the courtroom they could be fluidly updated as new files were added. This process highly technical engineering matters), but also from the volume and, as explained below, accessible by the court on an iPad. made the act of sharing files highly efficient because there was no of documents produced – more than 31,000 records. During the approximately four weeks of trial, more than 3,000 doc- need to deliver physical USB keys. (The size of many of the docu- Proceeding by way of e-trial allowed the parties to advance from uments were put to witnesses on examination. In a traditional paper ments and materials made it impossible to send them by email.) the documentary discovery phase through to the completion of trial trial, at least seven printed copies of each of these documents would in 14 months. This process included extensive examinations for dis- have been needed for distribution to the judge, the court reporter, the onclusion covery, with nearly 16,000 questions asked over 24 days of discov- witnesses and each of the parties. Although e-trials offer benefits for Although the advantages of e-trials are particularly evident ery and more than 2,000 answers to undertakings provided. Such a all kinds of trials, the sheer volume of documents involved in this in large, electronic document-intensive cases such as Husky v. complex endeavour would have been extraordinarily difficult, if not case made the electronic approach particularly beneficial. CSchad, they can make any size of trial more efficient and cost-effective. impossible, to carry out using the conventional “paper trial” method. The efficiency and seamlessness of the paperless courtroom were Conducting an e-trial may seem like a daunting proposition, but suc- The parties requested and were assigned a case management helped by a trial protocol – agreed to by all parties – that document- cessful execution involves the same essential skills as a conventional judge to assist them in maintaining the aggressive trial sched- ed the processes and procedures to be used. For example, all parties trial: organization, preparation and effective communication between ule, including being available to deal with preliminary motions. agreed to (and they ultimately did) prepare, serve and file their evi- the parties and the court. E-trials may currently be the exception in That judge, who quickly became familiar with the case, was able dence-in-chief by way of affidavit, a process that provided for consid- Ontario; from the perspective of the authors, however, the efficiency erable time savings in a trial involving evidence of a technical nature and seamlessness with which technology can be incorporated into lit- heard from 17 fact witnesses and six independent expert witnesses. igation means it is only a matter of time until these practices are wide- The use of affidavits in this manner resulted in a substantial front- ly adopted. Indeed, at the conclusion of the Husky v. Schad case, the end loading of the preparation required for trial and was critical trial record – which includes thousands of documents and thousands in allowing the trial to be completed in only four weeks. Viva voce more pages of testimony, in the form of affidavits and transcripts – was direct examinations were still conducted for each witness, but the stored on the court file on a single USB key the size of a thumb. length of each examination was considerably reduced. At the suggestion of counsel for Mr. Schad and Athena, and as approved by the court, the parties also used the “chess clock” meth- Notes od for allocating time during the trial. Under this method, a par- The authors are all lawyers in the Litigation Department at Davies Ward Phillips ty is allocated a fixed amount of time in which to present its case.3 & Vineberg LLP. They acted together with Kent Thomson, the head of Davies’ This method places a premium on good advocacy, forcing parties to Litigation Department, as counsel to the defendants Robert Schad and Athena hone in on the issues of central importance to the case. The Cana- Automation Limited. The authors would like to thank the exceptional clerks, dian Competition Tribunal is one of the first adjudicative bodies in litigation support personnel and assistants involved in this matter for their tireless Canada to have used this method,4 which is recommended as a best efforts in bringing this electronic trial to life. In particular, enormous thanks practice by the Advocates’ Society.5 Although not new, the chess are due to Debra Bilous, Tanya Barbiero and Michelle Lee for keeping counsel Your client’s data can be a minefield of hard drives and clock method has rarely been used in the Ontario Superior Court.6 organized and the trial running smoothly. mobile devices. Thousands of gigabytes to be decrypted, In the Husky v. Schad case, the total amount of time allotted for 1. Husky Injection Molding Systems Ltd v Schad, 2016 ONSC 2297. de-duplicated and analyzed in preparation for production. the trial was divided between the parties based on percentage 2. The only exception was the use by each witness of a hard copy version of his Our technical experts collaborate with our seasoned allocations that were negotiated between them in advance. Fol- affidavit during the course of his examination. lowing the trial protocol, time was debited from a party’s total 3. See for example the decision of the Canadian Competition Tribunal in B-Filer Inc legal team to ensure that your information is managed allocation for each of opening submissions, direct examinations, v The Bank of Nova Scotia, [2006] CCTD No 36 (QL). practically and cost effectively. cross-examinations, re-examinations, closing arguments and any 4. Ibid. motions lost during the course of the trial. (For all motions brought 5. “Best Practices for Civil Trials (Toronto: The Advocates’ Society, June Contact Susan Wortzman to devise a plan to decipher the during trial, the total time used for the motion was debited entire- 2015) at 5; online: www.advocates.ca/assets/files/pdf/news/The%20 ly from the time of the party that lost the motion.) Advocates%20Society%20-%20Best%20Practices%20for%20Civil%20 disarray. [email protected], 416.642.9025 Although the plaintiff initially expressed concerns that the ne- Trials%20-%20June%202015.pdf. gotiated time allocations might be insufficient, each party concluded 6. Notably, the chess clock method was mandated by the Joint Trial Protocol INFORMATION GOVERNANCE e-DISCOVERY TECHNOLOGY STRATEGIES wgharb.com its case with time remaining. in the highly publicized cross-border trial in the matter of Nortel Networks This trial also prominently featured the use of tablet technology, as Corporation (Re), 2015 ONSC 2987. both the parties and the court used iPads in place of printed copies of STOCKWOOD PRIZE

All’s fair in love and court: The use of wrongfully obtained evidence in civil proceedings

Erin Pleet This article is the winning submission for the 2016 David Stockwood Memorial Prize, awarded by Stockwoods LLP and The Advocates’ Society.

“It matters not how you get it; if you steal it even, it would be admissible in evidence.” ~ Crompton J., R. v. Leatham (1861)

our client is in a dispute with her sister about the future of the family business. She sends you a note: “Good news! I swiped my sister’s cell phone, cracked the password and read her texts. They prove she knew all along that I am supposed Yto inherit the company!” But is this good news? It appears your client has stolen evidence. As a lawyer, you may instinctively find stealing troublesome. But, luckily for your client, the state of evidence law allows the stolen texts to be used in court to your client’s benefit. Although the law relating to the exclusion of wrongfully obtained evidence in crim- inal proceedings has received considerable attention, the same cannot be said for civil proceedings.1 The admissibility of wrongfully obtained evidence is evolving in differ- ent ways, depending on the area of civil law at issue. Such evidence is more often being excluded in family cases, where courts have been willing to state their repugnance of law-breaking and amateur sleuthing efforts. However, courts are far less willing to con- done the same behaviour by litigants in general civil or commercial cases.

10 | FALL 2016 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2016 | 11 This article reviews the current state of inadmissible; but if it led to subsequent not address whether a discretion to exclude nal offence (and therefore prejudicial to the administration of justice), the law and discusses strategic and ethi- evidence which bolstered the credibility the evidence, in line with either the majori- admitting such recordings would also be contrary to the best interests cal considerations for counsel faced with of the confession, that subsequent evidence ty or the dissent in Wray, could apply to the of the child, who is entitled to experience private conversations with wrongfully obtained evidence. was permitted.9 The trial judge in Wray evidence obtained in violation of a third his or her parents. The court also considered the importance of Charter Congratulations held that he still had the discretion to ex- party’s Charter rights.13 values in the development of the common law, and cited Jones v. Tsige,23 mproperly obtained evidence at clude the evidence. Here a number of facts where the Ontario Court of Appeal took into account Charter values in common law weighed in favour of exclusion, including that Family law proceedings holding that there was a common-law cause of action for invasion of At common law, relevant evidence was the police deliberately did not allow Wray’s Early family law cases followed the strict privacy. 24 The court in C. (B.D.) did not admit the recordings. Iadmissible in a civil proceeding, regardless counsel to contact him while the police ar- inclusionary approach, but more recent cas- In U. (A.J.) v. U. (G.S.), the trial judge went so far as to say that, “[i]n Erin Pleet of how it was obtained. It was believed that ranged for Wray to bring them to the swamp es show the court’s willingness to exclude my view, it is a rare case where illegally obtained evidence should be the trier of fact would benefit from having where, according to his earlier involuntary wrongfully obtained evidence as being det- admitted, and only after the trial judge holds a voir dire to determine all relevant evidence at hand, however that confession, he had thrown the weapon. rimental to the administration of justice.14 In its admissibility,”25 and held that the onus is on the party seeking to evidence was obtained.2 In the leading En- The Supreme Court disagreed and held the 1926 decision of Lightheart v. Lightheart,15 a enter such evidence to establish a compelling reason to do so.26 glish case of Kuruma v. The Queen (“Kuruma”),3 that the trial judge had no discretion to ex- wife took her husband’s keys from his pock- In the recent Saskatchewan Court of Appeal case of Propp v. Lord Goddard held: clude such evidence. Martland J. cited the test et while he slept and obtained papers from Propp,27 one spouse attended at the vacant family home and re- In their Lordships’ opinion, a locked drawer in his desk. moved the other’s old income tax forms. The other spouse argued the test to be applied in con- The papers proved the husband that the documents were stolen and therefore inadmissible. The sidering whether evidence had committed adultery. The trial judge remarked that each party had behaved questionably: is admissible, is whether it court allowed the papers to be the spouse with control of the documents ought to have disclosed is relevant to the matters admitted in evidence. More re- them, and the other ought to have used a more traditional means in issue. If it is, it is admis- cently, however, in Fattali v. Fat- of obtaining disclosure of the documents. In citing Sopinka’s The sible, and the Court is not tali (“Fattali”),16 the court refused Law of Evidence, the Court of Appeal confirmed that the evidence concerned with how the to allow secretly recorded con- was admissible, regardless of how it was obtained. evidence was obtained … versations between the father The Ontario Court of Appeal has recently upheld a balancing ap- There can be no difference in princi- set out in Kuruma as he saw it: “whether [the and a pediatrician where the pediatrician proach in considering whether surreptitious recordings may be ad- ple for this purpose between a civil evidence] is relevant to the matters in issue” discussed the mother’s administration of a mitted into evidence. In Fiorito v. Wiggins, the Court of Appeal held and a criminal case.4 and, if so, “the court is not concerned with drug to the child.17 The court held: that the trial judge “… acknowledged that in family law cases courts Shortly after Kuruma was decided, it was how the evidence was obtained.”10 Although In my view, such forays into the gath- discourage the surreptitious taping of the other party, but he cor- cited with approval by the Supreme Court Lord Goddard in Kuruma did note a discre- ering of potential evidence are to be rectly proceeded to determine the admissibility of the recordings of Canada.5 tion to disallow evidence if the strict rules of discouraged in the strongest terms. by balancing their prejudice against their probative value, includ- This inclusionary approach was consistent admissibility would operate unfairly against Proceedings involving the best interests ing their reliability.”28 Interestingly, the Court of Appeal noted that with the broader common-law approach to an accused, Martland J. limited this discre- of the children should not be decided the move toward exclusion of wrongfully obtained evidence applies evidence. Historically, judges were gov- tion to the court’s function to ensure that the on evidence the product of calculated primarily in family law cases. erned by strict rules and categories to be accused has a fair trial, “[b]ut other than that, subterfuge. It does not help the father’s applied regardless of whether these rules in my opinion, under our law, the function of position to be plotting tricks or deceit to Anton Piller orders would work an injustice. Since the 1970s, the court is to determine the issue before it, advance his cause. The tape recording of Courts may also address wrongfully obtained evidence when Canadian evidence law has shifted to a on the evidence admissible in law, and it does the statements … [is] not admissible.18 considering potential repercussions for breaches of Anton Piller principled approach, where judges may re- not extend to the exclusion of admissible evi- Fattali was cited with approval in F. (J.) v. C. orders. In Solara Technologies Inc. v. Beard,29 the plaintiff corporation view the facts and exercise their discretion dence for any other reason.” (V.), on the basis that allowing such a record- obtained an Anton Piller order to retrieve and copy software, code Erin Pleet is this year’s winner of the David Stockwood in determining admissibility. The treatment Cartwright C.J. dissented. He noted a num- ing “would discourage members of the help- and correspondence belonging to the defendant, his counterparty Memorial Prize. Her winning article “All’s Fair in Love of wrongfully obtained evidence has not ber of cases, including Kuruma, that expressed ing professions from providing assistance to to a technology development contract. The plaintiff had not fully and Court: The Use of Wrongfully Obtained Evidence fully followed this trend. Unlike the princi- a discretion for judges in criminal cases “to parties who might be involved in family law complied with the notice and disclosure obligations imposed by the in Civil Proceedings” appears in this issue of The pled approaches developed for admissibil- disallow evidence if the strict rules of ad- proceedings arising from the problems for chambers judge in executing the Anton Piller order. In conducting the Advocates’ Journal. ity of hearsay, privilege, corroboration and missibility would operate unfairly against which they sought medical, psychological or search, the plaintiff found an email between the defendant and his opinion evidence,6 there appears to be limit- an accused.”11 It was his opinion that this social work help. That would not advance the parents that appeared to assist the plaintiff’s case. Erin maintains a commercial litigation practice with ed judicial consideration of a fixed test or set statement confirmed a broader discretion administration of justice.”19 The chambers judge exercised his discretion to exclude the email. cases involving contract disputes, injunctions, of criteria for the admission of wrongfully to exclude otherwise relevant evidence for Family courts have expressed a deep con- On appeal, the defendant argued that the court ought to exercise negligence, securities litigation and breach of fiduciary obtained evidence in civil proceedings. reasons beyond an unfair trial; for example, cern for the effect that secretly recording its jurisdiction to exclude the “yield” from an Anton Piller order ob- and statutory duties. She is an active volunteer with Pro if allowing the evidence would bring the ad- family members has on the ongoing famil- tained on the basis of non-disclosure.30 The B.C. Court of Appeal Bono Law Ontario and worked with PBLO to establish anadian case law ministration of justice into disrepute. ial relationship. In Hameed v. Hameed, Sherr noted that in Guess? Inc. v. Mon31 and Naf Naf S.A. v. Dickens (London) an amicus program to assist self-represented litigants. Pre-Charter criminal cases In the post-Charter case of R. v. Edwards, J. observed, “There is already enough con- Ltd.,32 those respective courts confirmed that, as a matter of law, evi- Erin, congratulations from all your colleagues at TGF. Criminal cases that either predate (“Edwards”)12 the police entered the home of flict and mistrust in family law cases, with- dence found as a result of an improperly obtained Anton Piller order Cor do not engage the Charter of Rights and Edwards’ girlfriend in breach of her Charter out the parties’ worrying about whether the is admissible. The seriousness of the non-disclosure will vary, and Leading and Succeeding. Freedoms7 demonstrate limited deviation rights for the purpose of obtaining evidence other is secretly taping them.”20 In Seddon the court should be granted discretion to balance the inequities “in from the absolute admissibility expressed of Edwards’ drug-trafficking. The evidence v. Seddon, Thackray J. called surreptitious order to see where the interests of justice truly lie.” 33 in Kuruma. In R. v. Wray (“Wray”),8 the ac- was found admissible as against Edwards, recording of household conversations an The B.C. Court of Appeal ultimately allowed the plaintiff to keep its cused made an involuntary confession, because it was a third party’s Charter rights “odious practice.”21 “yield,” including the email at issue. The defendant had waited a year which led to discovery of the location of that were violated, not his, and section 24 In C. (B.D.) v. B. (B.J.),22 the court held that, in to seek to have the email excluded; the court did not want to “pick and the murder weapon. Under the rule in St. of the Charter responds to breaches of one’s addition to the fact that the recordings at issue choose” among the evidence to exclude only one document; the email Lawrence, an involuntary confession was own Charter rights. The court in Edwards did were obtained by the commission of a crimi- itself was relevant; and there was no other basis on which to exclude

12 | FALL 2016 | THE ADVOCATES’ JOURNAL Thomson, Rogers Lawyers the email from production. The exclusion privacy, and that allowing these recordings trategic and ethical considerations of the email from use in the litigation could would bring the administration of justice when faced with wrongfully- not be supported in principle as balancing into disrepute. The cassettes were held inad- obtained evidence the interests of justice. missible under article 2858 of the Civil Code. SAs courts have become more willing to ex- The criteria in Solera were summarized ercise a discretion to exclude wrongfully and approved by Pepall J. (as she then was) in Charter-infringing evidence obtained evidence, counsel should consid- TRUST Bell ExpressVu Ltd. Partnership v. Rodgers.34 In In circumstances where a civil proceeding er their obligations surrounding such ev- considering whether to exclude the “yield” may follow a criminal proceeding, courts idence and whether and how they would Every time you refer a client to our firm, from an improperly obtained Anton Piller or- have been willing to admit in the civil pro- introduce and use – or oppose – it. der, Pepall J. confirmed that the court should ceeding evidence that was excluded from the you are putting your reputation on the line. consider the ability of the court to do justice prior criminal proceeding because of a Char- Lawyers’ involvement in illegal or dis- between the parties, the administration of ter violation. In the seminal case of P. (D.) v. honest conduct It is all about trust well placed. justice, justice in relation to the public inter- Wagg,39 the plaintiff sued the defendant for The Law Society of Upper Canada’s Rules est and justice to the parties.35 sexual assault. She sought disclosure of a of Professional Conduct state that lawyers statement made by Wagg. This statement had should not “knowingly assist or permit the been excluded from the criminal proceed- client to do anything that the lawyer consid- ing because it was obtained in violation of ers to be dishonest or dishonourable”; nor Wagg’s Charter rights. The Ontario Court of should lawyers “otherwise [assist] in any Appeal held that the statement was required fraud, crime, or illegal conduct.”46 Notwith- to be produced in the civil action and that standing that wrongfully obtained evidence “the analysis of whether or not to exclude is admissible, these Rules make it clear that evidence for a Charter breach is entirely dif- lawyers should not encourage or advise ferent in the civil context than in the crim- their clients to obtain evidence in this fash- inal context.”40 Even if the evidence would be ion. Counsel should consider if there are used against the same individual in another other avenues through which to obtain sus- proceeding against him, it would “work an pected evidence, such as by asking pointed T he Quebec Civil Code injustice” to exclude the evidence based on questions on cross-examination, seeking Under the former Civil Code of Lower Canada, the decision in the criminal proceeding. the evidence from other potential sources or illegally obtained evidence was admissible This same holding has been applied to bringing a motion to force production. ALAN FARRER | PATRICK SCHMIDT | LEONARD KUNKA in civil proceedings. Quebec’s modern Civil other civil actions that follow criminal The trickier issue may be what steps a law- Code provides a mechanism similar to sec- proceedings. For example, where Breath- yer should take if the client already has in his tion 24(2) of the Charter:36 alyzer evidence was held to be inadmissible or her possession wrongfully obtained evi- Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship [2858] The court shall, even of its own in criminal proceedings, it was held to be dence. Although the client should be dissuad- motion, reject any evidence obtained admissible in subsequent civil proceedings ed from collecting more evidence in this way, with hundreds of lawyers across the province. under such circumstances that funda- ranging from employment discipline arising the evidence is likely relevant and in your 41 47 As a law firm specializing in civil litigation, we have a record of accomplishment mental rights and freedoms are violated from drunk driving to a claim for insurance client’s possession, and therefore producible. and whose use would tend to bring the coverage for a collision occurring while the If so, and if it is in document form, it should second to none. With a group of 30 litigators and a support staff of over 100 people, administration of justice into disrepute.37 driver was impaired.42 Photographs of mari- be included in an affidavit of documents (or we have the resources to achieve the best possible result for your client. In Houle v. Mascouche (Ville), Houle sought juana production that were inadmissible in a a supplementary affidavit). Counsel should Moreover, we are exceptionally fair when it comes to referral fees. judicial review of the termination of her criminal proceeding were admissible in a anticipate this evidence will rouse action on employment with the municipality of Mas- subsequent civil proceeding where the plain- the part of your opponent, who may move We welcome the chance to speak or meet with you about any potential referral. couche. Mascouche relied on surreptitiously tiffs claimed against the police for alleged to have it excluded for having been wrong- We look forward to creating a solid relationship with you recorded audio-cassettes of telephone con- breaches of their Charter rights in connection fully obtained. Counsel should also consider versations Houle had while at home on lunch with the photographs.43 A doctor being dis- whether the interests of any third parties are that will benefit the clients we serve. or after work to support her termination. ciplined for possession of child pornogra- at stake; for example, does the document actu- Houle’s neighbour methodically recorded phy was unsuccessful in having evidence of ally belong to someone else? That person may calls using a professional wave scanner such pornography on his computer exclud- wish to have this property returned, or his or YOUR ADVANTAGE, (specifically purchased for this mission). The ed from a discipline proceeding, notwith- her privacy interests as a non-party protected. in and out of the courtroom. mayor of Mascouche came to know that the standing that the evidence was obtained neighbour was making the recordings and in breach of his Charter rights.44 Categories of prejudice allowed the practice to continue. In all of these cases, the courts concluded Although a number of the cases simply The Quebec Court of Appeal held that that the issue to be determined in whether to refer to a balancing approach, or a preju- Mascouche “usurped the justice system” admit the evidence in the civil proceeding was dice versus probative value approach, the and that a reasonably informed person a different question altogether from whether B.C. Supreme Court in Mathews v. Mathews “would consider that our system of civil jus- the evidence was collected in violation of the (“Mathews”)48 (a Hague Convention family tice should not be used for purposes such as accused’s Charter rights. Rather, the evidence law case) has broken down the potential prej- those which appear to have been present in would go to whether that individual had driv- udices into four categories: this matter.”38 The Quebec Court of Appeal en while drunk; or had possessed marijuana; 1. Prejudice to the opposing party. Is the evi- confirmed that the evidence was obtained or had possessed child pornography – and dence of uncertain provenance, incom- TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com 45 in violation of Houle’s fundamental right to there was therefore no issue of res judicata. plete or capable of manipulation? Is the

THE ADVOCATES’ JOURNAL | FALL 2016 | 15 evidence reliable, despite how it was obtained?49 Notes 2. Prejudice to the trial process. Is the cost of admitting the ev- 1. The civil law cases do not always [1997] 1 SCR 358. For further discussion, 15 BCLR (3d) 370 (SC), which addressed the 46. Rule 5.1-2 of the Law Society of Upper Canada SAVE TIME: idence out of proportion to its probative value (for exam- distinguish between improperly or see AW Mewett, “Illegally Obtained role the plaintiff’s solicitor played in the Rules of Professional Conduct (adopted June ple, where the sheer volume of secretly recorded material immorally obtained evidence and Evidence at Common Law after the Charter execution of the order. 22, 2000), as amended. would prejudice the trial process)?50 illegally obtained evidence. For the – Post Hoc Ergo Propter Hoc?” (1998) 3 Can 34. (2007), 161 ACWS (3d) 982 (SCJ (Comm List)) 47. Rules of Civil Procedure, RRO 1990, Reg 194, 3. Prejudice to the administration of justice. Is the means by which purposes of this discussion, they Crim L Rev 285. [Bell ExpressVu]. Solara was again cited with r 30.02(1). ASK US WHAT the evidence was gathered illegal? Or would the acts consti- will be referred to collectively as 14. For further discussion, see DA Rollie approval in O’Connell v Mazilescu, 2011 48. 2007 BCSC 1825 [Mathews]. In Mathews the tute a trespass or tortious invasion of privacy? Alternatively, “wrongfully obtained evidence.” Thompson, “Are There Any Rules of BCCA 363. father removed two documents, a diary should the opposing party have disclosed this evidence in its 2. Sidney N Lederman, Alan W Bryant & Michelle Evidence in Family Law?” (2003) 21 CFLQ 35. Bell ExpressVu, ibid. at para 22. and a letter, from a locked box in the WE CAN’T DO productions – and is therefore also “in the wrong”? K Fuerst, The Law of Evidence in Canada, 4th 245. 36. See Houle c Mascouche (Ville) (1999), 179 DLR mother’s bedroom. The trial judge found 4. Prejudice arising from the exclusion of the evidence. Does the ed (Markham, ON: LexisNexis Canada 15. (1926), 21 Sask LR 300, [1927] 1 DLR 386 (4th) 90 at para 65, 90 ACWS (3d) 413 (CA) that, notwithstanding the invasion of the Call to book your next arbitration, evidence speak to a critical issue (for example, in family law 2014) at § 9.3. (KB) [Lightheart]. Lightheart was cited with [Houle]. mother’s privacy, the documents were cases where the evidence speaks to the best interests of the 3. [1955] A.C. 197 at 203–204 [Kuruma]. In R. v approval in Cuthbertson v Cuthbertson, 37. Arts 2857 and 2858 CCQ relevant and the probative value of the mediation or examination at child)? The court may also want to consider whether the Leatham (1861), 8 Cox CC 498 at 501, cited [1951] OWN 845 (H Ct J). 38. Houle, supra note 37 at para 186. evidence outweighed the prejudicial Arbitration Place, and leave the rest to us: party is tendering the evidence for rebuttal or impeachment in Kuruma, Crompton J. Held: “It matters 16. (1996), 22 RFL (4th) 159 (Ont Gen Div). 39. (2004), 71 OR (3d) 229, 239 DLR (4th) 501 (CA). effect. purposes, or where that evidence would not have been used not how you get it; if you steal it even it 17. Note that section 184 of the Criminal Code 40. Ibid at para 77. 49. See for example Zinyama-Mubili v Mubili, • Unmatched roster of internationally- but for the other party raising an issue. In some respects, would be admissible in evidence.” See DE provides: “(1) Every one who, by means 41. Charette v Sault Ste Marie (City) Police Service, 2010 ONSC 3928 (SCJ), where the court was renowned arbitrators and mediators this will go to whether the evidence is necessary. Wilkes, Jr, “Critique of Two Arguments of any electro-magnetic, acoustic, 2011 ONSC 3447. concerned about selective editing of the Counsel faced with a dispute over whether a court should ex- against the Exclusionary Rule: The Historical mechanical or other device, wilfully 42. Chrysler Credit Canada Ltd v Arnold (2006), 147 video recordings. • State-of-the-art facilities, recognized ercise a discretion to exclude wrongfully obtained evidence may Error and the Comparative Myth” (1975) intercepts a private communication ACWS (3d) 813 (Ont SCJ). 50. Although in Toope v Toope (2000), 193 Nfld as among the top 10 in the world by wish to consider these prejudices as categorized in Mathews in 32 Wash & Lee L Rev 881 for a detailed is guilty of an indictable offence and 43. Wojtanowska v Mustard (2009), 174 ACWS (3d) & PEIR 313, 8 RFL (5th) 446 (UFC), Global Arbitration Review light of the facts of their case. These prejudices are just as appli- history of English civil law before and liable to imprisonment for a term not 423 (Ont SCJ). the court rejected any concern that cable in general civil proceedings as in family law. after Kuruma. exceeding five years.” 44. Kelly v Ontario, 2014 ONSC 3824. listening to the tapes or reading the • Daily catering service staffed by a team of 4. Kuruma, ibid. at 203–204. Modern English 18. Supra note 17 at para 5. 45. See also Ault v Canada (Attorney General) transcripts because, in the view of the in-house chefs Credibility of the client evidence law allows for a greater discretion. 19. (2000), 8 RFL (5th) 45 at para 27 (SCJ). (2007), 88 OR (3d) 541 (SCJ), Tide Shore judge, “taking up court time” could not Counsel should consider whether efforts to have wrongfully ob- Changes to Rule 32.1(2) of the Civil 20. 2006 ONCJ 274 at para 11. Cited with approval Logging Ltd v Commonwealth Insurance Co override analyzing what is in the child’s • Full suite of reporting, transcription, and tained evidence admitted could ultimately backfire. For example, Procedure Rules gives the court the power in, among other cases, Shaw v Shaw, 2008 (1979), 47 CCC (2d) 215 (BCSC) and Thunder best interests. video-conferencing services seamlessly has the client (or counsel) over-exaggerated the significance of the to “exclude evidence that would otherwise ONCJ 130, 2008 and Turk v Turk, 2015 ONSC Bay (City) Commissioners of Police v Sundell 51. 1999 SKQB 178. provided on-site by ASAP Reporting wrongfully obtained evidence? In Dueck v. Dueck,51 the father in- be admissible.” See Jones v University of 3165. (1984), 15 CCC (3d) 574 (Ont Div Ct). 52. 2014 ONCJ 82. • In-house counsel available to serve as sisted that taped conversations with his children would show the Warwick, [2003] 1 WLR 954, [2003] EWCA 21. [1994] BCWLD 1402, [1994] WDFL 873 at arbitral tribunal secretary mother was a terrible parent. The judge, after listening to the re- Civ 151 and Lifely v Lifely, [2008] EWCA Civ para 26 (Sup Ct). Cited with approval in cordings, held that the tapes showed the opposite: They spoke vol- 904. McDermott v McDermott, 2013 BCSC 534. • Concierge-level service and umes about the father’s character and motivations while shedding 5. This statement was adopted by the Supreme 22. 2012 YKSC 64 [C (BD)]. administrative support little light on the mother’s. They disclosed the father’s orchestrated Court of Canada in The Attorney General for 23. 2012 ONCA 32. Rosen Sunshine conversations with the children, following the theme that the moth- Quebec v Begum, [1955] SCR 593. See also the 24. This approach was supported by the trial er was deranged and violent but the father would always be there early civil law decision of Reliable Toy Co v judge in Armoyan v Armoyan, 2012 NSSC congratulates to rescue the children. Another good reason to pre-emptively dis- Collins, [1950] 4 DLR 499, [1950] OR 360 (H 323. However, the Nova Scotia Court of Lonny Rosen suade clients from taking improper steps to obtain evidence. Ct J), where secretly recorded tapes were Appeal expressly declined to provide permitted as evidence. a view on the trial judge’s conclusion on being named Cost consequences 6. Supra note 3 at §§1.2–1.30. See also P Sankoff, regarding this issue, on the basis of the inaugural recipient of the Courts may order costs as a means of discouraging the collection “The Search for a Better Understanding mootness. (See 2013 NSCA 99.) OBA Susan Hilary Davidson and use of wrongfully obtained evidence. In Sheidaei-Gandovani of Discretionary Power in Evidence Law” 25. 2015 ABQB 6 at para 168. Memorial Award for v. Makramati,52 the recordings the mother sought to have admitted (2007) 32 Queen’s LJ 487. 26. A similar statement was made by Sherr J in Excellence in Health Law into evidence did not demonstrate what she alleged they would 7. The Constitution Act, 1982, Schedule B to the Hameed v Hameed, 2006 ONCJ 274. say. The court held that there should be adverse consequences as Canada Act 1982 (UK), 1982, c 11. 27. 2014 SKCA 5. a result, and that costs were an appropriate mechanism to discour- 8. [1971] SCR 272, 1970 CarswellOnt 22 [Wray]. 28. 2015 ONCA 729 at para 22. age surreptitious recordings. See also R v Steinberg, [1967] 1 OR 733, [1967] 29. 2007 BCCA 402. 3 CCC 48 (CA), R v Foll (1956), 117 CCC 19, 30. Further, in Grenzservice Speditions GmbH v onclusion 64 Man R 198 (QB). Jans (1995), 15 BCLR (3d) 370 (SC), Huddart As more information is created and stored electronically, it 9. R. v St Lawrence, [1949] OR 215, 7 CR 464 J, as she then was, excluded from use in the may become easier to improperly or illegally access such (Sup Ct). litigation all of the documents obtained as Cinformation for a party’s benefit in litigation. Smartphones provide 10. Wray, supra note 9 at para 40. the result of execution of an ex parte order endless opportunities for litigants to make surreptitious recordings 11. Ibid at para 22. In addition to Kuruma, see Noor obtained by non-disclosure. they think will prove their case. Courts have become more willing Mohamed v the King, [1949] AC 182, Harris v 31. (1986), [1987] FSR 125 (Hong Kong CA). to exercise a discretion to exclude wrongfully obtained evidence, Director of Public Prosecutions, [1952] AC 32. (1992), [1993] FSR 424 (Eng Ch Div). See also and counsel will have to consider their obligations relating to 694., HM Advocate v Turnbull, 1951 JC 96 and Tsako’s Shipping & Trading SA v Orizon Tanker such evidence. The case law provides some guidance for counsel Callis v Gunn, [1964] 1 QB 495. Co, [1998] EWJ No 370 (Eng CA). arbitrationplace.com 416-848-0203 in formulating their approach to wrongfully obtained evidence, 12. (1994), 34 CR (4th) 113 (Ont CA), aff’d [1996] 33. The Court of Appeal also distinguished 212 Adelaide West, Suite 200 Bay Adelaide Centre, 900 - 333 Bay Street, Toronto whether they wish to tender it themselves or are faced with such 1 SCR 128. Solara from a more recent BC case, Toronto, ON M5H 1W7 evidence by the party opposite. 13. See also Benner v Canada (Secretary of State), Grenzservice Speditions GmbH v Jans, (1995), CASE COMMENT

BMO v. Spence: Racial discrimination and “private wills”

Ian M. Hull and Suzana Popovic-Montag

imits to testamentary freedom In a common-law jurisdiction, freedom of testation is generally regarded as the guiding principle of modern succession law. There are, however, limitations. One Lsuch limitation is developed, in part, through the body of law related to family law and dependant relief. The Family Law Act (“FLA”)1 and “elective share” rights provide strong protections for a surviving spouse. Pursuant to section 6(1), if a spouse feels that he or she was inadequately provided for under the will, he or she may elect to receive the entitle- ment under section 5 of the FLA. Similarly, Part V of the Succession Law Reform Act2 allows for claims of dependant support. In addition, the common law imposes a limit on testamentary freedom when it protects creditors. “A creditor of an estate cannot be prejudicially affected by the terms of the will. His or her rights are fixed and determined by the law and not in any manner controlled by the will of his debtor.”3 The Rule against Perpetuities and its continuance in Ontario. by way of the Perpetuities Act,4 serves as a restriction on the absolute freedom of the testator by imposing a limit on how long the testator may exercise control over an estate after death. Courts will also not enforce a gift that encourages the commission of a crime or an illegal activity.5 As a result, although testamentary freedom is the general rule, there are exceptions – several of them. Freedom of testation is not absolute, nor should it be. Another limit

18 | FALL 2016 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2016 | 19 on testamentary freedom has been imposed by BMO at the appeal that it was obligated Kairo and Kailen, even though he had no The application judge’s decision in this case implicitly endors- where the court has found that a gift is mo- to appeal the lower court decision.13 In fact, relationship with them. However, Kairo’s es a general supervisory role for the courts in policing a tes- tivated by racial discrimination.6 Racially arguably, it was well within BMO’s man- and Kailen’s father was black. tator’s unqualified and legitimate choice of her heirs on the discriminatory motives obviously impose date to leave the point “alone” after the Based on the uncontested affidavit evi- ground of enforcing the public policy against discrimination. great social costs that are often worthy of ju- lower court’s adjudication. dence of Verolin and Imogene Parchment This proposition, if accepted, would significantly erode and dicial intervention. Consequently, it is argu- The facts in BMO were as follows. The – the deceased’s best friend and primary arguably displace meaningful testamentary freedom.18 He who wins able that a testamentary instrument should testator, Rector Emanuel Spence, had, for caregiver – the lower court held that the It is interesting to note Lauwers J.A.’s comment that the courts be altered or set aside on the basis of public nearly four decades, a strong and loving re- deceased disinherited Verolin, the natural ought not expand the public policy against discrimination.19 The policy when it is based on an offensive, ra- lationship with his daughter Verolin Spen- object of his bounty, because of discrimina- reality is that there is no public policy against discrimination per last, wins. cially discriminatory principle that imping- ce. When Mr. Spence separated from his tory motives. Gilmore J. set aside the will se. After all, one may make discriminatory decisions that are quite es on the dignity of human life.7 wife, Verolin began to reside exclusively on the basis that the deceased’s racist mo- proper and do not require any judicial intervention. However, it with him. Donna, his other daughter, re- tives offended public policy. was argued at the Court of Appeal by the respondents that the Whether you won at trial and face an he Court of Appeal for Ontario sided exclusively with her mother. In 1979, The subsequent appeal focused on two court must enforce a public policy against racial discrimination.20 appeal or lost at trial and wish to launch and testamentary freedom Mr. Spence immigrated to Canada from primary issues. The first issue was in re- Arguably, if it is a case of racial discrimination, then there is a re- an appeal, we can help you determine As it stands in Ontario today, after the United Kingdom, leaving Donna with spect of a technical point: When is extrinsic stricted and limited focus for the court to consider if public policy the final outcome for your client. Tcareful scrutiny by the Court evidence admissible? The sec- protections are required and there is therefore limited or no risk of Appeal for Ontario in Spence ond issue was when should a as to any floodgates of litigation being opened. v. BMO (“BMO”),8 testamentary will be set aside because it of- In contrast, referring to the same Otis decision, Gillese J.A. in Neu- freedom (i.e., the right to do with fends public policy? berger emphasized the broad jurisdiction of the court in probate mat- your estate what you want) has ters. In relying particularly on paragraphs 23 to 26 of the Otis decision, been preserved to the point of al- ixed messages from Gillese J.A. agreed with Cullity J. and noted: lowing a racially discriminato- the Court of Appeal? The court’s jurisdiction in probate is inquisitorial. That is, rily motivated will to be upheld; Before discussing the court’s role is not simply to adjudicate upon a dispute this notwithstanding that the Mthese issues, it is worth noting between parties. It is the court’s function and obligation to public funds the judicial and administrative her mother. After finishing her secondary that, on the very same day, March 8, 2016, at ascertain and pronounce what documents constitute the tes- process of the verification of a will (i.e., the school education, Verolin immigrated to 10:30 a.m., the Court of Appeal also released tator’s last will and are entitled to be admitted to probate. Fur- Proof in Common or Proof in Solemn form). Canada to reside with her father. In Canada, the decision in Neuberger v. York (“Neuberg- ther, the granting of probate does not bind only the parties in On March 8, 2016, at approximately 12:30 Mr. Spence financially supported Verolin. He er”),14 where it dealt with some of the same the proceeding. Unless and until probate is set aside, it oper- p.m., the Court of Appeal in BMO set aside covered tuition and living expenses for her wills and estates issues as in BMO. ates in rem and can affect the rights of other persons. The court the lower court decision of Justice Gilmore while she completed three degree programs The panel on the BMO decision was Cronk, also has a special responsibility to the testator, who cannot be and held that a court cannot enter into a and one postgraduate certificate program. Be- Lauwers and van Rensburg JJ.A., and the present to give voice to his or her true intentions.21 public policy based review of a private will.9 tween her studies, she lived with her father panel on the Neuberger decision was Gillese, In addressing the policy considerations that underline the ju- In BMO, Lauwers J.A., in his concurring at his home. Furthermore, Mr. Spence emo- van Rensburg and Miller, JJ.A. risdiction and the role of the court, in Neuberger, at paragraph 118, judgment, stated that a will is “a quintessen- tionally supported Verolin. He welcomed As noted, in BMO, the Court of Appeal Gillese J.A. noted: tially private act of personal expression.”10 her former boyfriends, who were of the has now clearly considered and held that A will, however, is more than a private document. As ex- Furthermore, he noted that, in probating a same skin colour as the Spence family, and the probating of a will is not a “state ac- plained above, a dispute about a will’s validity engages inter- will, there is “no state action that engages he later consoled her when those relation- tion” and that a will is a private document. ests that go beyond those of the parties to the dispute and the Charter in the relevant sense.”11 ships ended. In Neuberger, Gillese J.A. also analyzed the extend to the testator and the public. Once a testamentary In emphasizing the private nature of a However, the father-daughter relation- question of proving a will and reviewed instrument is probated, it speaks to society at large. Probate will and the limited role of the courts in ship came to a dramatic end when Verolin the role of the court in the probate process. is an in rem pronouncement that the instrument represents To sign up for the Lerners’ Appellate Advocacy matters of wills, Lauwers J.A. further stated: told her father that she was pregnant by a On the issue of the nature of the court’s the testator’s true testamentary intentions and that the es- Netletter, visit www.lerners.ca/appealsnetletter The basic probate question is whether man of a different skin colour. The Spen- role and jurisdiction in probate – in contrast tate trustee has lawful authority to administer the estate. the will itself is formally valid, the testa- ce family is black, but Verolin had become to the BMO decision of the Court of Appeal, Because of this, the court has a responsibility to ensure that Toronto: 416 867 3076 tor was of sound mind, and the will was pregnant by a white man. Mr. Spence re- which espoused a limited role of the court – only wills that meet the hallmarks of validity are probated. Earl A. Cherniak, Q.C., William Pepall, Kirk Boggs, not made in suspicious circumstances. jected Verolin and her “bastard white son” the Court of Appeal in Neuberger noted: It owes that duty to the testators whose deaths preclude them Mark Freiman, Angus McKinnon, Bryan Smith, In probating a will the court is not con- and thereafter refused to have anything to Probate is the court procedure by which from protecting their own interests, to those with a legiti- Jasmine Akbarali, Brian Radnoff, Cynthia Kuehl, 22 cerned about the validity of specific be- do with them, despite Verolin’s attempts to a will is proved to be valid or invalid: mate interest in the estate, and to the public at large. Jason Squire, Stuart Zacharias quests and does not require proof that repair the relationship. Black’s Law Dictionary, 8th ed. (St. Paul: The carefully chosen words of Gillese J.A. cannot be ignored. bequests in a valid will are non-discrim- Mr. Spence died on January 25, 2013. In Thomson West, 2004). The term is also A will is more than a private document, and its impact extends London: 519 672 4510 inatory. The court neither condones nor his will, he explicitly disinherited Verolin commonly used to refer to the court or- to the public and speaks to society at large. This view of Gillese Peter Kryworuk, Andrew Murray, Carolyn Brandow approves of particular bequests.12 and her 11-year-old son. The basis for Ver- der certifying that the particular writ- J.A., in Neuberger v. York, is in direct opposition to the comments In this case, which was heard by the olin’s disinheritance, the will stated, was ings constitute a deceased’s will.15 of Lauwers J.A. in BMO, where he says a will “is a quintessen- Court of Appeal on September 4, 2015, the because “she has had no communication Both the BMO decision and the Neuberger tially private act of personal expression.”23 Bank of Montreal (BMO), a neutral estate with me for several years and has shown decision relied on the reasons of Cullity J. It is in the context of the expanded view of the court’s jurisdic- trustee, had taken it upon itself to appeal no interest in me as a father.” The will di- in Otis v. Otis (“Otis”),16 the leading case on tion in Neuberger that the mixed message is so clearly observed. the lower court decision. Arguably, the rected that the entire estate be distributed the jurisdiction of the court in will matters. If it is accepted that there is indeed a public and expanded role www.lerners.ca duty of BMO, as executor, was discharged to Donna and her two children. Notwith- Lauwers J.A., in BMO, stated that the Otis of the court as described in Neuberger, then it is difficult for one by way of the lower court ruling that adju- standing Mr. Spence’s stated reason for dis- decision stands, in part, for the proposition that to reconcile the BMO decision, from the same level of court and dicated the point. There exists no authority, inheriting Verolin and her son, Mr. Spence the court’s jurisdiction in matters of probate in even from one identical panel member, to judicially sanction a and no jurisprudential authority was cited did not disinherit Donna or her two children, Ontario is narrow.17 Cronk J.A. also stated: clearly racially discriminatorily motivated will.

20 | FALL 2016 | THE ADVOCATES’ JOURNAL xtrinsic evidence: When is it the basis of language would probably not of the residual beneficiary and its illegal pur- admissible? What is its application be void as against public policy. He went poses, rather than on the testator’s motive.38 in the BMO decision? on to note that this was, of course, subject Interestingly, the court in BMO seems to EThe general rule is that evidence is admis- to an analysis of the context, purpose and distinguish McCorkill on the basis that sible when it is relevant to a legal issue and effect of the restriction.30 [i]t was the illegality of the prospective no exclusionary rule of law or policy ap- Arguably, for a court to properly deter- use of the residual bequest and the un- plies.24 Motive then may be relevant to the mine the validity of a will, with its impor- lawful nature of the residual benefi- public policy question. Extrinsic evidence tance to the “public at large,”31 one must ciary’s communications and activities may be needed to determine a testator’s mo- implicitly be expected to rely on extrinsic that drove the decision in McCorkill. tives. With regard to exclusionary rules, the evidence in this judicial process.32 These considerations are simply not SKIMMING THE rule in Rondel v. Robinson Estate (“Rondel”)25 The Court of Appeal in BMO considered in play here.39 applies to evidence of intention; it does not Re Leonard Foundation and emphasized the Again, it is difficult to follow the court’s apply to evidence of motives. As such, argu- distinction between private trusts and pub- reasoning in BMO on this point. It was the ably the Rondel exclusionary rule does not lic charitable trusts and noted: uncontroverted evidence before the court SURFACE IS FINE apply to extrinsic evidence where it discloses Thus, Tarnopolsky J.A. viewed the public of the testator’s friend and caregiver of the the testator’s racially discriminatory motives nature of the charitable trust as central to testator’s direct and racially discriminatory for the purpose of the public policy issue and, the determination whether interference communications that drove his decision to UNTIL A DEEPER therefore, may be admissible.26 with testamentary freedom was war- disinherit his daughter. ranted on public policy grounds in light Extrinsic evidence has also been admitted Extrinsic evidence may be relevant to the of the explicit discriminatory provisions in other estate- and trust-law contexts, such public policy issue of the trust indenture.33 as in testamentary capacity cases.40 Courts DIVE IS REQUIRED. Courts have recognized that motive is rel- The Court of Appeal in BMO found that, will consider whether a testator was able to evant when determining whether a gift unlike Re Leonard Foundation, the will at understand and appreciate those “who are contravenes public policy. In Re Leonard issue implied no conditions that offend pub- the natural objects of his or her bounty.”41 Foundation (referred to in the BMO case as lic policy.34 Additionally, in BMO, in contrast Courts will also admit extrinsic evidence Canada Trust),27 the Ontario Human Rights to Re Leonard Foundation, the will did not when it is relevant to the issue.42 Arguably, Commission brought an action against an involve the creation or operation of a public extrinsic evidence is needed to understand educational trust set up by Reuben Wells charitable trust or other public entity so as a testator’s racially discriminatory motives, Leonard, which granted bursaries to students to require conformity to the public policy and such motives are relevant for the public in financial need. In the recitals, Mr. Leonard against discrimination.35 policy issue. As a result, extrinsic evidence outlined his motives. He enumerated his In summary, it appears that, in BMO, the of racially discriminatory motives may be belief in the superiority of the white race Court of Appeal distinguished its own deci- relevant in cases involving a public policy and in the continuing importance of Prot- sion in Re Leonard Foundation, in large part, issue and, therefore, may be admissible.43 estant Christianity and the British Empire. by relying on the public/private distinction Although not part of the trust document of testamentary gifts. Again, it is difficult No exclusionary rule applies because motive itself, these discriminatory recitals were to see how this distinction can be recon- is distinct from intention the motivation for the establishment of the ciled with the clear public nature analysis Racially discriminatory motives were the trust and formed the criteria for potential of Gillese J.A. in Neuberger and her clear issue in Re Leonard Foundation, McCorkill applicants. In Re Leonard Foundation, the statements on the fact that a probated will and BMO at first instance; and, in each, ex- Court of Appeal for Ontario held that the speaks to society at large. trinsic evidence of racially discriminatory recitals were relevant to the public policy In McCorkill v. McCorkill Estate (“McCork- motives was admitted. The Rondel exclu- question and therefore admissible. After ill”)36 the New Brunswick Court of Appeal sionary rule may not apply when courts considering the recitals, the court held that admitted extrinsic evidence in a case involv- suspect racially discriminatory motives. the trust violated public policy. In concur- ing a public policy issue. In this case, extrin- Racial discrimination often operates in se- ring reasons, Tarnopolsky J.A. noted that sic evidence was necessary to demonstrate cret, and it should not be tolerated simply “analysis of the context, purpose and effect that the beneficiary under the testator’s will because it functions so subtly.44 Start with Practical Law Canada. of the restriction” would determine wheth- was a white supremacist organization. The Relying on Bayda J.A. in Haidl v. Sacher,45 Whether you need a surface view or a deeper understanding of a legal er the restriction violated public policy.28 will was set aside because it contravened the court in Rondel acknowledged that there issue, Practical Law Canada offers up-to-date, straightforward how-to guides, As such, it was argued by the respondents public policy. There was no discussion of are instances where extrinsic evidence is annotated precedents, checklists, and more. in BMO that the court in Re Leonard Founda- the admissibility of extrinsic evidence, but it admissible; for example, instances where tion “implicitly acknowledged that extrinsic was clearly relevant and admitted. the language of a will may disclose no am- For more information about our Personal Injury Litigation and evidence may be required to evaluate the In support of its finding that the respon- biguity on first reading but where the sur- Corporate & Commercial Litigation services, visit www.practicallaw.ca public policy question.”29 dent did not have available to her the use of rounding circumstances make ambiguity Although in Re Leonard Foundation the extrinsic evidence, the Court of Appeal in apparent.46 However, the court in Rondel racist motives were apparent in the trust’s BMO held that McCorkill did not endorse the held that the extrinsic evidence was not recitals, Tarnopolsky J.A. noted that not all admission of third-party evidence of a testa- admissible because the evidence tendered restrictions will violate public policy. He tor’s alleged motive to support a public poli- was not relevant to remedying ambiguity noted that, for example, given the history cy–based attack on a testator’s will.37 Rather, in the facts or circumstances surrounding and importance of bilingualism and multi- in BMO, the court held that the extrinsic evi- the testator’s will. Instead, the evidence ten- culturalism in this country, restrictions on dence in McCorkill was focused on the quality dered in Rondel disclosed only the testator’s

THE ADVOCATES’ JOURNAL | FALL 2016 | 23 dispositive intentions – what she intended to include in her will It should be noted that, notwithstanding should be loath to sanction such an in- Rights and Freedoms (“Charter”)68 and inter- but did not – and, in this case, the evidence submitted would the significant reliance on the Rondel deci- direct attack, which the deceased can- national anti-discrimination instruments have established contrary intentions.47 As noted in Feeney’s Cana- sion, the Court of Appeal’s ruling in Rondel not challenge, on a testator’s expressed signed by Canada.69 The morals of the time, dian Law of Wills, allowing an oral agreement with regard to in- has not been universally applauded. For motive and testamentary choices … The contained in legislation and the common tentions to trump a clear written agreement would have created example, UK courts have held that extrinsic scope for judicial interference with a law, attest to the fact that discrimination much uncertainty in the law.48 evidence which discloses a clear intention not testator’s private testamentary dispo- offends public policy. Intentions are, of course, different from motives. Intentions ask to revoke a prior foreign will can be relied on, sitions is limited.59 “what?” Motives ask “why?” Extrinsic evidence of intentions can be allowing both wills to stand.52 In the United Racial discrimination offends public policy described as “This is what the testator really wanted to do with his Kingdom, extrinsic evidence that is relevant hen should a will be set aside as evidenced by legislation estate.” But extrinsic evidence of motives says “this is why the testator can be admissible, even where there is no am- for public policy? Relations between private parties in On- did what she did with her estate.” Indeed, this distinction is what sep- biguity or equivocation. Dispositions can be altered or tario are subject to the Code. Section 47 arates Rondel from Re Leonard Foundation, McCorkill and BMO. In addition, in Canada, Cullity J. careful- Wset aside if they offend public policy provides that the Code prevails over other In Re Leonard Foundation, explicit discriminatory motives were ly analyzed the Rondel decision in his article Testamentary freedom is the general rule legislation unless the legislation specif- sufficient to void a trust, even in the absence of any ambiguity “Rectification of Wills – A Case Comment with regard to testamentary instruments; ically provides that it is to apply despite about the testator’s intentions. Counsel for the trustee inquired on the Robinson Case” (referred to in the however, testamentary freedom has limits. infringing the Code. Interactions between whether the trust would be invalid because of uncertainty of BMO case as Rondel).53 Cullity J. noted in his As noted, dependant support claims and private parties in Ontario must conform to intentions, as it was likely to become more difficult to interpret article that the Rondel decision has resulted family-law claims are two of these limits; the Code, and testamentary instruments in- eligibility requirements. For example, who are “Christians of the in considerable uncertainty as to the correct public policy is a third. For three-quarters volve interactions between private parties. white race” in an increasingly multicultural context?49 Tarnopo- approach to future cases.54 He further noted: of a century, the Supreme Court of Canada Therefore, the Code should apply to testa- losky J.A. held that there had been no difficulty in ascertaining In consequence, in Robinson [Rondel] has recognized that testamentary instru- mentary instruments. whether a student qualified over the life of the trust. For him, the Court of Appeal had the opportu- ments may be altered or set aside on the In the alternative, regardless of the ap- there was no ambiguity about the intentions. And yet the court nity to clarify the present state of the grounds of public policy. In the 1937 case plication of the Code, the Supreme Court still considered the recitals as they disclosed Mr. Leonard’s mo- law and, if it deemed it appropriate, of Re Millar Estate,60 the Supreme Court of of Canada has clearly stated that, even tives for establishing the trust. to point the way to further develop- Canada acknowledged that a testamenta- where the Charter does not apply (such as Furthermore, in the more robust lower court ruling, there was ments and to break new ground. Nei- ry instrument may be set aside for public in interactions between private parties), the also no ambiguity about the intentions of the testator in McCorkill; ther of the opportunities were taken policy reasons.61 common law should develop in accordance and yet, the court admitted extrinsic evidence to show that the and, regrettably, the reasoning of the Courts are aware that public policy can with Charter values.70 Section 15 guarantees recipient – the National Alliance, an American-based neo-Nazi court raises new questions about the be an “unruly horse.”62 As such, one must equality rights and freedom from discrimi- organization – was discriminatory, racist and supremacist and continued vitality of what have in the exercise caution in appealing to public pol- nation.71 Equality and human dignity are wilfully promoted hatred. Here, the gift was private and absolute, past been accepted as established rules icy. However, “there are cases where the in- core principles and values underlying all yet the court held that it was invalid because of the discriminatory of probate law, and has left old ques- terests of society require the court’s inter- areas of the legal system.72 There are laws nature of the recipient organization.50 There was no ambiguity tions unanswered.55 vention on the grounds of public policy.”63 prohibiting racial discrimination in every about the testator’s intentions, but the court admitted the extrinsic In summary, the difficulty posed byRon - In Re Leonard Foundation, the court invoked jurisdiction in Canada.73 As such, even if the evidence because the public policy issue before it was the recipient’s del arises from the court’s application of the public policy when altering the trust. Rob- Code does not apply, it is clear that racial discriminatory ideology. rule of admissibility applicable in a court ins J.A. held that appeals to public policy discrimination offends public policy. In BMO, the issue was not the testator’s intentions. It was clear of construction to issues that traditionally should be reserved for matters where there Finally, the world community has made an- what the testator wished: He wanted to, and intended to, disin- would fall within the probate jurisdiction. is clear public opinion and widespread ti-racial discrimination a matter of public pol- herit his daughter. The issue in BMO was the reason why he did As a result, the rules of admissibility that criticism.64 The court in McCorkill set aside icy, and Canada, with the unanimous consent what he did with his estate – namely, his racially discriminatory traditionally applied – and were accepted an absolute gift in a will on the basis of of all the provinces, has ratified various inter- motives. For this reason, the extrinsic evidence was properly ad- even in Balaz Estate v. Balaz56 – for the pur- public policy, holding that “[p]ublic pol- national anti-discrimination instruments.74 mitted by Gilmore J. pose of exercising the probate jurisdiction, icy … embodies the ‘interests of society’ “It would be nonsensical to pursue every one LEADERS IN 57 In summary, extrinsic evidence of a testator’s racially discrimina- were ignored. as expressed in the morals of the time, the of these domestic and international instru- tory motives may be admissible for the purposes of a public policy In Balaz Estate v. Balaz, Brown J. (as he common law and legislation.”65 Although ments” and yet hold that unlawful racial FUTURE CARE analysis because racially discriminatory motives are relevant to the then was) stated with approval the tradi- courts must exercise caution, they have ju- discrimination can continue unchecked in legal issue and the exclusionary rule in Rondel does not apply. tional rules of admissibility: risdiction to invoke public policy, and they some areas of the law.75 A fundamental element of the BMO decision to uphold the will in Suffice it to say, where a court seeks to do so appropriately when there is clear ANALYSIS question was the Court of Appeal’s finding that the lower-level judge ascertain whether the testatrix knew public opinion and widespread criticism Racial discrimination offends public erred by admitting the extrinsic evidence of the testator’s inten- and approved of certain language in her about the matter. policy as evidenced by the common law AND COSTING tions. As the court in BMO noted: will, it can take in account of evidence In addition to legislation, the judiciary has The Extrinsic Evidence was the lynchpin of the application about the circumstances surrounding Racial discrimination offends public policy affirmed that equality under the law is a OUR REGULATED HEALTH PROFESSIONALS judge’s ruling. Yet, in relying on it to set aside the Will, the the making of the will, including refer- In the words of Tarnopolsky J.A. in Re Leon- fundamental Canadian value and that racial ARE SPECIFICALLY CREDENTIALED IN THE application judge failed to consider whether it was properly ring to earlier wills or drafts of the par- ard Foundation, “The promotion of racial har- discrimination is abhorrent in a diverse, plu- AREA OF LIFE CARE PLANNING. admissible … And without the Extrinsic Evidence, there was ticular will, as well as direct evidence of her mony, tolerance and equality is clearly and ral and inclusive society such as ours. The ra- nothing to ground the claim that Verolin’s disinheritance intention.58 [Emphasis added.] unquestionably part of the public policy cially discriminatory recitals in the Leonard was racially-motivated.51 Notwithstanding the apparent frailties of of modern day Ontario.”66 That racial dis- trust restricted bursaries to white, Protestant In coming to this conclusion, the court dealt with the general the reasoning in Rondel, the Court of Appeal crimination is contrary to the interests of persons of British heritage. Females were LEARN MORE HERE: 2015 rule that extrinsic evidence of a testator’s intentions is not ad- in BMO stated: society has been widely expressed. Ra- eligible, but their portion was capped at 25 readers’ choice missible when the testator’s will is clear and unambiguous on its I see no basis at law for the admission of cial discrimination is contrary to public percent. The court struck the recitals and ex- awards CBAFUTURECARE.COM face. In excluding extrinsic evidence, the court in BMO relied wholly contradictory, extrinsic evidence policy as evidenced by the Ontario Hu- patiated all restrictions on race, colour, creed, heavily on its own decision in Rondel. of motive … In my view, the courts man Rights Code (“Code”),67 the Charter of religion, ethnic origin and gender because 1.866.314.7335 THE ADVOCATES’ JOURNAL | FALL 2016 | 25 discrimination offends public policy. be valid. This should not be permitted because the improper ra- the discretion that individual judges are able to exercise, while giving A possible solution In Fox v. Fox Estate,76 a widow was given broad discretion over a life cially discriminatory motive is obvious. space for the common law to develop in ways that give voice to the The Court of Appeal in BMO quite properly noted: “It need estate. Her son was to receive the residue of capital if he survived his Simply because a testator may remain silent about the discrimina- evolving social, moral and economic values of our society. hardly be said that public policy in Canada precludes dis- mother. The widow exercised her powers as trustee in a manner so tory motives for his or her disposition does not make discrimination Further, the use of a clear and comprehensive common-law test, crimination on the basis of race and other discriminatory as to exhaust the residue. Her motivation was to deprive her son of any less abhorrent.81 McLachlin C.J.C. stated that, if the law re- as described, will ensure that only in rare occasions will cases of characteristics.”86 However, it cannot be that the Court of Ap- the benefit because he married a woman of a different faith. This fuses to intervene in instances of discrimination based on the the nature that arose in BMO come before the courts. peal wants to send the message to the public that one’s pri- discrimination, the court held, offended public policy. freedom of personal choice, then the law has adopted an “ethic Finally, allowing people the (testamentary) freedom to racially vate musings about his or her testamentary intentions are to Until McCorkill, jurisprudence on setting aside dispositions for of passive tolerance of inequality.” Passive tolerance of inequal- discriminate does not protect social or individual freedom. Rath- be entirely ignored. Surely the test for judicial intervention public policy due to racial discrimination was generally confined ity “allow[s] discrimination to continue and thereby reinforce[s] er, because it undermines the values and principles on which our in testamentary freedom cannot be that it is acceptable to be to instances where conditions were attached to specific bequests. the ethic of exclusion and subordination.”82 society is built, racial discrimination of any kind impinges on ev- a racist, as long as you do not say it out loud. As noted, there Mr. McCorkill left an unconditional bequest to the National Alli- In summary, the Code should apply to all testamentary instru- eryone’s freedom. are already many instances of limits to testamentary freedom, ance. However, the court refused to “check [its] common sense at ments. However, even if the Code does not apply, the common and the in rem and public nature of the probate process must the courtroom door.”77 The court went behind the neutral wording law should develop in accordance with Charter values with ap- onclusion allow for judicial intervention into cases where the evidence of the will to consider the recipient’s ideology and, implicitly, the preciation for the international instruments signed by Canada. Dispositions motivated by racial discrimination inflict is clear and demonstrative that the testator was motivated by testator’s racially discriminatory motives. The racially discrimina- Jurisprudence confirms that equality is part of the public policy of harm on others, and they impose great social costs – racist views. tory ideology of the recipient and the implicit racial discrimination Canada and that racial discrimination is against public policy. Ceroding our basic values of human dignity and equality. We propose a test to allow the courts to balance the import- of the testator were contrary to public policy. Developing jurisprudence has acknowledged the ways racial Recognizing racially discriminatory motives as a basis to chal- ant need to protect testamentary freedom within the publicly In BMO, at the Superior Court level, Gilmore J. looked be- discrimination can lurk in the shadows and that it is appropri- lenge a testamentary instrument would not constitute a significant funded process of probating a will. For the court to maintain hind the wording of the will and held, “It is clear and uncontra- ate, at times, to look behind a testamentary instrument in order development in succession law since it is logically consistent with its important inquisitorial role, and at the same time measure dicted in my view, that the reason for disinheriting Verolin … to make inferences about racially discriminatory motives. Suc- other recognized limits to testamentary freedom. Furthermore, it that publicly funded role against the need for testamentary free- was one based on a clearly stated racist principle.”78 The testa- cession law should not “check common sense at the courtroom would help remedy the high cost racial discrimination exacts on dom, we suggest that a court should not set aside a will for pub- tor’s discriminatory motives offended “not only human sensibil- door” but should conform to our core values of equality and hu- victims, targeted groups and all of society. As such, as a matter of lic policy reasons unless ities but also public policy.”79 man dignity by refusing to enforce testamentary instruments public policy, courts should not condone testamentary instruments There is overwhelming demonstrative evidence that the On appeal, the court held that no one should look behind a motivated by racial discrimination. where the testator’s motives are racially discriminatory. rationale for a post-mortem disposition of property is sub- testamentary instrument if the document is silent about the mo- Although public policy should be invoked with caution, racial stantially motivated by racial discrimination with the male tive for the gift.80 This argument advances form over substance: No floodgates will be opened by affirming a public policy limit discrimination is a matter where there is clear public opinion and fidesintention to deprive a person who is the natural object If a disposition is made for law school bursaries through a testa- for racially discriminatory motives widespread criticism. In our view, it is acceptable for the courts to of the testator’s bounty.87 mentary instrument that excludes one particular race, but the Some might posit that a public policy limit for racially discrim- fully recognize racially discriminatory motives as a limit to testa- It remains to be seen how the future jurisprudence in this will does not name the motivations, then the document could inatory motives would open the litigation floodgates since any mentary freedom. area evolves. disappointed beneficiary could allege such discriminatory mo- tives. In our view, however, that would be highly unlikely. First, section 13 of the Evidence Act requires that, to obtain a verdict, judgment or decision about any matter occurring before the Always get death of a deceased person, the evidence of an interested person must be corroborated by material evidence. It would be difficult for a disappointed beneficiary to bring a claim without a dis- PROVEN ADVOCACY at least three interested party to substantiate his or her position. Second, a public policy claim for racially discriminatory mo- LEADERSHIP. quotes tives would be available only to persons who were the natural ob- jects of the testator’s bounty – not any disappointed beneficiary. Claims would be limited to those who might have “a reasonable Gowling WLG’s Laura B. Stewart has been named the 2016 winner “…notable strength on the contentious side… and well warranted expectation” to benefit under the will.83 In of The Advocates’ Society Award for Excellence in Teaching. other words, the class of potential claimants is limited. [and]…stellar track record in significant ip matters…” A distinguished medical defence partner in Ottawa, Laura combines superior Third, in response to the floodgates argument advanced by the Chambers Canada 2016 litigation skills with an unrelenting desire to help her clients — and other respondent in McCorkill, Grant J. pointed out that, while public advocates — achieve the best possible results. policy has been recognized for centuries, there has been no “del- “…one of the busiest contentious teams…” uge of cases.”84 Furthermore, he noted, “In my view, there is little The Award for Excellence in Teaching represents her outstanding leadership IAM Patent 1000 2015 risk of that. Each case must be dealt with on its own merits and in both the classroom and the legal profession. Congratulations, Laura! Gold Level Litigation & Transactions I have little doubt that the expense of litigation will discourage Learn more about Laura and our litigation team at gowlingwlg.com frivolous applications.”85 “…they are extremely strong in litigation … a go-to choice” Fourth, affirming racial discrimination as a bar to testamenta- CANADA WTR 1000 2015 ry freedom would create more certainty in the law. Anti-racial U.K. discrimination legislation exists in every province in Canada; EUROPE equality is constitutionalized in the Charter, and anti-racial dis- MIDDLE EAST Read more about our track record at dimock.com crimination is a stated concern of the global community. There ASIA is far more uncertainty produced in the law by differentiating among areas of the law where racial discrimination is permit- Gowling WLG (Canada) LLP is a member of Gowling WLG, an international law firm which consists of independent and autonomous entities providing services around ted and where it is not. the world. Our structure is explained in more detail at gowlingwlg.com/legal Fifth, determining public policy by reference to objective criteria – such as legislation and international instruments – serves to limit FEATURE

Notes 1. RSO 1990, c F3 (FLA). considered reasons of the application judge.” 2015 812 (Mo Banc 1959). See also Re: Wishart Estate (No 2) 2. RSO 1990, c S 26 s 58(1). NBCA 50, 255 ACWS (3d) 1047 at para 1. As such, 1992 CanLii 2679 (NBQB). 3. Carmen S Thériault, Widdifield on Executors and Trustees this article refers to the robust reasoning found in 62. Lord Denning calls public policy an “unruly horse” in 6th ed (Toronto: Carswell Thomson Canada, 2002) at the application judge’s decision [McCorkill]. Enderby Town Football Club Ltd v Football Association Ltd, 3–50; and Daniel B Kelly, “Restricting Testamentary 37. BMO, supra note 8 at para 104. [1971] 1 Ch 591 at 606, 607. Redactions to relevant documents: Freedom: Ex Ante Versus Ex Post Justifications” (2013) 38. Ibid at paras 104–105. 63. Robins, J.A., Re Leonard Foundation, supra note 27 at para 34. A revised approach 82(3) Fordham L Rev 1125 at 1163. 39. Ibid at para 106. 64. Ibid at paras 37–39. 4. RSO 1990, c P9. 40. For example, in cases involving testamentary capacity, 65. McCorkill, supra note 36 at para 61. 5. Kelly, supra note 3 at 1163. a court will consider extrinsic evidence, such as whether 66. Tarnopolsky, J.A., Re Leonard Foundation, supra note 27 at 6. For example see McCorkill v Streed, Executor of the Estate of the testator was able to articulate a rational reason para 96. Alexander M. Gay Harry Robert McCorkill (aka McCorkell), Deceased, 2014 for his or her disposition. In Scott v Cousins [2001] OJ 67. RSO 1990, c H19. The views expressed in this article are those of the author and do not necessarily represent those of his employer, the Department of Justice. NBQB 148, 2015 NBCA 50. No 19, [2001] OTC 9 [Scott], the fact that the testator did 68. The Constitution Act, 1982, being Schedule B to the Canada 7. For an excellent article supporting the lower court not provide a rationale for disinheriting his daughters Act 1982 (UK), 1982, c 11. decision, see Charles B. Wagner & Adam Hummel, was considered by the court when it held that the 69. These instruments include Universal Declaration of Human here is a growing trend for parties to unilaterally redact “Spence v. BMO Trust Co. – Should the Decision Be deceased did not have testamentary capacity. [2001] OJ Rights, GA Res 217(III), UNGAOR, 3d Sess, Supp No 13, allegedly irrelevant information from otherwise relevant Overturned at the Court of Appeal?” (2015) 9 ETR 34. No 19, [2001] OTC 9. See also Leger v Poirier, [1944] SCR UN Doc A/810, (1948) 2; the International Convention documents exchanged in the course of litigation, with- 8. Spence v BMO Trust Company, 2016 ONCA 196, reversing 152, 1944 CarswellNB 11 (SCC). on the Elimination of All Forms of Racial Discrimination Tout the consent of the opposing party or court authority. The 2015 ONSC 615, leave to appeal to SCC requested 41. Schwartz v Schwartz, [1970] 2 OR 61, [1970] OJ No 1438 at (1965), GA Res 2106 A (XX); the International Convention opposing party in receipt of the redacted documents is left with [BMO]. para 44. on the Elimination of All Forms of Discrimination Against the choice of either accepting the documents in redacted form 9. Ibid at para 113. 42. Ibid; Scott, supra note 40. For a discussion on the “broader Women (1979), GA Res 34/180; as well as Articles 2, 3, 25 or bringing a motion before the court to challenge the redac- 10. Ibid at para 128. range of evidence … admissible in … [the old] court of and 26 of the International Covenant on Civil and Political tions. The law as it relates to redactions in Ontario creates an 11. Ibid at para 129. probate,” see Maurice Cullity, “Rectification of Wills” Rights (1966), GA Res 2200 A (XXI). inconsistency in the manner in which information is allowed to 12. Ibid. (2012) 31(2) Estates, Trusts & Pensions Journal 127 at 70. Dolphin Delivery Ltd. v RWDSU, Local 580, [1986] 2 SCR be removed from the public. For instance, although the courts 13. Spence v BMO, ONCA (Factum of the Appellant at para 2). 141; Timothy G Youdan, “Case Comment: Rapp Estate” 573, [1986] SCJ No 75. impose strict requirements on the issuance of sealing orders, 14. Neuberger v York, 2016 ONCA 191 [Neuberger]. (1992) 42 ETR 229. 71. R v Kapp, 2008 SCC 41; Corbiere v Canada (Minister of Indian they apply a much less onerous test when it comes to the appli- 15. Ibid at para 66. 43. As in Re Leonard Foundation, supra note 27; McCorkill, and Northern Affairs), [1999] 2 SCR 203, 1999 CanLII 687. cation of redactions to relevant documents, which also has the 16. Otis v Otis, [2004] OJ No 1732, 7 ETR (3d) 221 [Otis]. supra note 36. 72. Israel Doron, “A Multi-Dimensional Model of Elder effect of removing information from the public. The current state 17. BMO, supra note 8 at para 129. 44. Beverley McLachlin CJC, “Racism and the Law: The Law,” in Israel Doron, ed, Theories on Law and Ageing of the law as it relates to redactions is in need of some realignment. 18. Ibid at para 112. Canadian Experience” (2002) 1 JL & Equality 7. (Heidelberg, Germany: Springer-Verlag, 2010) at 59. The general rule is that there is no absolute entitlement for a 19. Ibid at paras 119–120. 45. Haidl v Sacher (1979), 106 DLR (3d) 360 (Sask CA) at para 7. 73. Re Leonard Foundation, supra note 27 at para 92. party to redact irrelevant material in an otherwise relevant doc- 20. Ibid at para 119. See also Re Kaptyn Estate, 2010 ONSC 4293 at para 38. 74. Ibid at para 94. See also, Universal Declaration, supra note 69. ument. A document that is assessed as relevant is to be included 21. Neuberger, supra note 14 at para 68. 46. Factum of the Respondents, supra note 29 at para 40. 75. Ibid Re Leonard Foundation at para 94. in the affidavit of documents and produced in its entirety on de- 22. Ibid at para 118. 47. Rondel, supra note 25 at para 28. 76. Fox v Fox Estate, ONCA 1996, 28 OR (3d) 496. mand, with redactions for privilege claims only. The general rule 23. BMO, supra note 8 at para 128. 48. Ibid, at para 28. See James MacKenzie, Feeney’s Canadian 77. McCorkill, supra note 36 at para 77. was articulated in North American Trust Co. v. Mercer International 24. Sidney N Lederman, Alan W Bryant & Michelle K Fuerst, Law of Wills, 4th ed (Markham, ON: LexisNexis Canada, 78. BMO, supra note 8 (SCJ) at para 49. Inc. (“North American Trust”),1 where it was held that a party can- The Law of Evidence in Canada, 4th ed (Markham, ON: 2000) at § 10.30–10.32, 10.45. 79. Ibid at para 49. not avoid producing a document in its entirety simply because LexisNexis Canada 2014) at § 2.40. 49. Bruce Ziff,Welcome the Newest Unworthy Heir, (2014) 1 ETR 80. BMO, supra note 8 (ONCA) at para 57. some parts of it may not be relevant. The whole of the document 25. Rondel v Robinson Estate, 2011 ONCA 493 [Rondel]. (4th) 76; and see S Grattan & H Conway, “Testamentary 81. After Re Leonard Foundation, it was generally maintained is producible if part of it relates to a matter in question. However, 26. Ibid at paras 24–26. Conditions in Restraint of Religion in the Twenty-First that public policy could be invoked only in testamentary the case carved out an exception to the general rule and provides 27. Canada Trust Co v Ontario (Human Rights Commission), Century: An Anglo-Canadian Perspective” (2005) 50 instruments of a quasi-public nature – e.g., a charitable that, where the information is clearly not relevant, a party may [1990] OJ No 615, 74 OR (2d) 481 (ONCA) [Re Leonard McGill LJ 511 trust that receives public benefits such as favourable tax be excused from having to make a disclosure that will in no way Foundation]. 50. Ibid Ziff. status and that confers a benefit on a large cross-section serve to resolve the issues. The court also held that it should not 28. Ibid at para 105. 51. BMO, supra note 8 at para 88. of the public. However, in addition to developments in permit one party to take unfair advantage or to create undue em- 29. Spence v BMO, ONCA (Factum of the Respondents at 52. Re Vickers, [2001–2] 4 ITELR 584; Re Wayland, [1951] 2 All the law with regard to intervening in unconditional barrassment by requiring another to disclose part of a document a narrow exception which allows a party to redact if the infor- para 33). ER 1041; Martyn Frost, “It’s Good to Talk” (2012) 136 bequests, in Fox, McCorkill and Spence, the law has that could cause considerable harm but serve no legitimate pur- mation is clearly not relevant. Although the case does not provide 30. Supra note 28. Trusts and Estates Law & Tax Journal 26 at 27–28. developed with regard to intervening in private pose in resolving the issues. As far as the process is concerned, guidance on what information is clearly not relevant, it is likely 31. Neuberger, supra note 14. 53. Cullity, supra note 42. testamentary instruments. See Bruce Ziff,Unforeseen North American Trust states that, where a party has good reason to that information which does not assist in resolving the issues, 32. Factum of Respondents at para 32. 54. Ibid at 142. Legacies: Reuben Wells Leonard and the Leonard Foundation withhold disclosure of parts of a discoverable document that are or information that does not provide some context to assist in 33. BMO, supra note 8 at para 46; see also Factum of the 55. Ibid at 127. Trust (Toronto: University of Toronto Press & Osgoode not relevant, the proper procedure is to make an appropriate note understanding the relevant portions of the document, is clearly Respondents at para 32. 56. [2009] OJ No 1573, 176 ACWS (3d) 1204. Society for Legal History, 2000) at 149–154. on the affidavit of documents to the effect that the document has irrelevant. Again, much like in North American Trust, the court 34. Ibid at para 46. 57. Cullity, supra note 42 at 141–142. 82. McLachlin, CJC, “Racism and the Law,” supra note been redacted. Where there is a dispute on the redaction, a par- held that it will not permit one party to take unfair advantage or 35. Ibid at para 71. 58. Supra note 56 at para 10. 44 at 13, 14. ty should be required to obtain dispensation from the court and to create undue embarrassment by requiring another to disclose 36. McCorkill v Streed, Executor of the Estate of Harry Robert 59. BMO, supra note 8 at paras 110–111. 83. Banks v Goodfellow, 1870 LR 5 QB 549 at 817. make the document available to the court for review. part of a document that could cause considerable harm but serve McCorkill (aka McCorkell), Deceased, 2014 NBQB 148 2015 60. Re Millar Estate, [1938] SCR 1 at 4. 84. McCorkill, supra note 36 at para 88. Within the context of Ontario, the applicable law as it relates no legitimate purpose in resolving the issues. The case provides NBCA 50 (leave to appeal to the SCC has been sought). 61. Ibid at 7, citing Thankerton LJ in Fender v Mildmay, [1938] 85. Ibid at para 87. to redactions is laid out in McGee et al. v. London Life Insurance that the party seeking to redact a document bears the onus of The Court of Appeal upheld the application judge’s AC 1 at 22 and Atkin LJ at 12 (PCCA UK). See also 86. BMO, supra note 8 (ONCA) at para 97. Company Limited (“McGee”),2 where the court adopted the rea- establishing that redactions are necessary to protect an import- decision. The reasoning at the Court of Appeal was Eyerman et al v Mercantile Trust Co. NA et al 524 SW 2d 87. Many thanks to Jordan Atin for his thoughtful comments soning in North American Trust and held that a party may not ant interest. Where the basis of the redaction is that it concerns very brief and simply stated that it was “in substantial 210, quoting Dille v St Luke’s Hospital, 355 Mo 436; 196 and for his creation of the fundamentals of the language redact portions of a relevant document only because it contends confidential business information, a party must show specific harm agreement with the essential features of the carefully SW 2d 615, 620 (1946); Brawner v Brawner, 327 SW 2d 808, for this test. that they are not relevant. The court, however, held that there is and not general harm. General harm can be expected from the

28 | FALL 2016 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2016 | 29 general disclosure of business information and is an expected The manner in which redactions are handled by Australia is reconcile. For example, the legal test for a sealing order is high consequence within the context of commercial litigation. Unlike instructive. One of the leading cases on the issue of redactions is and to be granted only in exceptional circumstances. In Sierra in North American Trust, the decision is silent on the process that MG Corrosion Consultants Pty Ltd. v. Gilmour,4 where Justice Baker Club of Canada v. Canada (Minister of Finance) (“Sierra”),5 Justice should be followed in claiming the benefit of a redaction. As it held that, save in cases where a privilege is claimed, the whole Iacobucci held that a sealing order could be granted only where stands, parties often simply deliver a copy of the document in document should be produced unless there was prior agreement (1) such an order is necessary to prevent a serious risk to an im- redacted form when exchanging affidavits of documents. This to the contrary from the opposing party or some prior dispensation portant interest, including a commercial interest, in the context practice generally causes the party wanting to challenge the re- by the court where agreement cannot be reached. This approach of litigation because reasonably alternative measures will not daction to bring a motion on the grounds that the redaction does differs from the one adopted in Ontario, where a unilateral redac- prevent the risk (the necessity stage of the test); and (2) the salu- not fall within the narrow exception. The onus then shifts to the tion may be made without consent and where a challenge to the tary effects of the confidentiality order, including the effects party that has claimed the benefit of the redaction to show that redaction requires a motion. The case also provides that, where a on the right of civil litigants to a fair trial, outweigh its deleteri- the information is clearly irrelevant and that it would suffer spe- party claims confidentiality over documents and wants to limit ous effects, including the effects on the right to free expression, cific harm or embarrassment. the circulation of the document, it must obtain a confidentiality which in this context includes the public interest in open and Within the federal context, one of the more recent cases that order from the courts. Parties are not entitled to set the bounds accessible court proceedings (the proportionality stage of the deals with redactions is Canada (Commissioner of Competition) v. of confidentiality unilaterally, and the court must be satisfied test). The same considerations do not appear to be factored into Visa Canada Corporation (2011) (“Visa”),3 which has adopted the that the order is required to protect a legitimate interest. Thus, the McGee or Visa test when redactions are applied unilaterally, Ontario case law although it adds a few nuances to the reason- where the information is clearly irrelevant and there is an inter- without opposing-party consent and in the absence of a court ing. The tribunal in this case accepts the McGee test but, rather est that needs to be protected, the redaction can be applied with order. Although some thought may eventually be given to the than calling for an assessment of the varying interests of the par- the consent of the parties. Where the information is clearly irrele- specific harm or embarrassment that a party would suffer, this ties and the relative harm that would flow from the disclosure of vant, even though it may be confidential, no confidentiality order consideration occurs only after a party has challenged the redac- the information, states that a redaction is permissible if the in- is required. Where the information is redacted on the grounds tions to a document. Unless and until the redactions are chal- ASAP has delivered the most accurate formation is clearly irrelevant and the disclosure of the informa- that it is confidential, an order from the court must be sought. lenged, no thought is given to specific harm or embarrassment. transcripts in the industry for over 20 years. tion would cause specific harm or embarrassment. The legal test The Australian approach is helpful in that it reinforces the view The contrast and differences in approach between the case law in articulated by the federal court creates a higher threshold than that the administration of justice is best served by the parties en- Ontario that allows for unilateral redactions of clearly irrelevant How? We don’t just press ‘start’ on a recorder what is found in McGee. The case, however, contains no mention of deavouring to agree on redactions first. Where agreement cannot information from relevant documents and the legal test that is and send the audio off to a pool of typists, the procedure that should be adopted in dealing with redactions. be reached, the parties are free to apply to the court to obtain a applied to sealing orders are stark and unexplainable. A party is entitled to claim the benefit of a redaction if it is of ruling on relevance and seek dispensation from having to pro- The law as it relates to redactions in Ontario is in need of re- hoping for the best. the view that it falls within the exception and the opposing party vide the documents in unredacted form. alignment. The Australian experience is insightful in that it calls is left to bring a motion to challenge it. No prior discussion or The approach taken by the courts in Ontario on the issue of for a party to obtain the consent from opposing counsel or move ASAP’s reporters - whether located in our court authorization is required at the federal level. redactions gives rise to a legal dissymmetry that is difficult to to obtain an order from the court seeking dispensation. Within state-of-the-art facilities at Arbitration Place, the context of Ontario, the Discovery Plan process, which con- or in another location of your choosing - templates negotiation by the parties on the terms of discovery, may afford the parties an opportunity to discuss such matters. instead use advanced technology and their Thus, under this approach, parties would not be entitled to re- rigorous training to personally capture every move information from the public unilaterally and hope that there is no challenge by opposing counsel. To the extent that the word and nuance from your examination. redaction relates to confidential information, a party should And the reporter in the room is the person be required to move to obtain a confidentiality order. As it re- creating your transcript. lates to the legal test that should be applied by the courts in deciding whether the redaction is proper, the reformulated test Go ahead: expect the best. ASAP delivers. found in Visa aligns well with the legal test found in Sierra and is the preferred approach. A court should provide dispensation from proving the entire document in unredacted form only if a party can show that the information is clearly irrelevant and that it would suffer specific harm or embarrassment. Of course, the presence of a confidentiality order weighs against an order allowing for redactions since a party would receive sufficient protection from the confidentiality order. The documents should also always be made available.

Notes 1. North American Trust Co v Mercer International Inc (1999) BCJ No 2107. 2. McGee et al v London Life Insurance Company Ltd, 2010 ONSC 1408. 3. The Commissioner of Competition v. Visa Canada Corporation and MasterCard International Incorporated, 2011 CACT 19 (CanLII). 4. MG Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514. 5. Sierra Club of Canada v Canada (Minister of Finance), [2002] 2 SCR 522. asapreportingservices.com THE JUDICIARY

Judicial impartiality: Appearance and reality working in harmony

William Poulos

or generations, human beings have thereon the required information; it spe- The reference to “subjectively present” been fascinated by the distinction cifically asks what an informed person, is the reality. The reference to “objectively between appearance and reality. A viewing the matter realistically and prac- demonstrated to the informed and reason- Fmajor theme in Hamlet is the disparity be- tically and having thought through the able observer” is the appearance. Appear- tween the two states. In his 1893 work, Ap- matter, would conclude.5 Would he or she ance and reality must work in harmony pearance and Reality: A Metaphysical Essay, think it more likely than not that the de- and be consistent. Not only actions, but the English philosopher Francis Herbert cision-maker, whether consciously or un- also words can upset the required consis- Bradley described the way in which one is consciously, would not decide fairly?6 tency between appearance and reality. inseparable from the other.1 “Don’t judge a A number of factors are involved in assess- The fundamental importance of appear- book by its cover” and “things do not always ing the appearance of judicial impartiality, ance and reality working in harmony and appear as they seem” may be trite expres- among them reasonableness, right-minded- being consistent is especially evidenced in sions, but there is truth in them. ness, being informed, being realistic, being the following further principle: Appearance and reality are often not in reflective and being practical. Fortunately, [I]f the judge’s words or conduct give[s] balance. There is, however, at least one area appearance and reality work hand in hand rise to a reasonable apprehension of bias, When impartiality is not consistent in appearance and reality, lieves that fairness and judicial impartiality have existed in both where the two states must be consistent and in the overwhelming majority of our court it colours the entire trial and cannot be public confidence is shaken and cracks may appear in the founda- appearance and reality throughout the process. in harmony, with no dichotomy between cases, with only the occasional one steering cured by the correctness of the subse- tion of our judicial system. However, the Court of Appeal has con- The importance of appearance applies outside the courtroom as them: judicial impartiality. Justice must not away from a consistent impartial approach quent decision. Therefore, on appeal, a firmed that “the threshold for a finding of real or perceived bias is well as within it. In the Canadian Judicial Council’s Ethical Princi- only be done but must be seen to be done.2 in fact and in appearance. The dichotomy finding of actual or apprehended bias high.”15 There is a “strong presumption of judicial impartiality”16 ples for Judges, this guideline appears under the heading “Civic and This principle is essential to the integrity of may arise inadvertently. As noted, it does will ordinarily result in a new trial.11 – that our judges will actually be, and appear to be, impartial and Charitable Activity”: the administration of the law. not matter whether the end product is a con- The reference to “actual ... bias” in the fair. Metaphysics may focus on what is ultimately real as opposed Judges are free to participate in civic, charitable and religious activi- This article explores some of the case law scious or an unconscious effort. It should above quotation is the reality of a bias find- to what is apparent, but there is one truth in the law when it comes ties subject to the following considerations: on appearance and reality in the context of not matter whether the undesired impres- ing. The “apprehended bias” reference is the to fairness and impartiality of the trial judge: The actual must be (a) Judges should avoid any activity or association that could judicial impartiality and reasonable appre- sion is inadvertent or the product of the appearance factor. A judge may (and often consistent and in harmony with the perceived. reflect adversely on their impartiality or interfere with the hension of bias. Justices do not have the lux- subconscious. A justice may have the best will) wish to do the right thing and reach the The Court of Appeal also recently reaffirmed the principle that, performance of judicial duties …22 ury of operating under a system with a divi- intentions, but reasonable apprehension just position, but if the appearance points to a to maintain public confidence in the administration of justice, “the The Superior Court of Justice recently noted: sion between appearance and reality. They of bias can pierce the veil of best intentions different direction and a dichotomy is found appearance of judicial impartiality is as important as the reality.”17 One of the rationales behind the establishment of ethical guide- must at all times deliver impartiality in fact if the black clouds of unfairness hover over between appearance and reality, it won’t In the process of doing so, the court travelled back to a 1968 deci- lines for the judiciary is to ensure that judges avoid any perceived and in appearance. Should this goal not be the decision-making process. matter – the result is the same. Fairness and sion of Lord Denning stressing the importance of the appearance apprehension of bias. Actual bias will always disqualify a judge; achieved, the judicial process is tainted. About 15 years ago, Justice Laskin re- impartiality do not rest only on a subjective of judicial impartiality where impression is key.18 While in Hamlet however, where there is reasonable apprehension of bias, a judge viewed the principles of judicial bias in reality but also on an objective one. or Macbeth appearance may be something very different from re- must disqualify himself/herself to safeguard confidence in the ad- easonable apprehension of bias Marchand (Litigation Guardian of) v. Public Relatively recently, the Court of Appeal ality, the two must work in tandem to radiate judicial impartiality ministration of justice.23 The test for reasonable apprehen- General Hospital Society of Chatham.7 Those for Ontario reaffirmed that judicial impar- throughout the trial process. The reality of the judicial role remains that the appearance sion of bias on the part of a trial principles, described as “well established,”8 tiality is “the key to our judicial process.”12 Reasonable apprehension of bias can spring from a judge’s of impartiality can be damaged by events or activities outside Rjudge has been established for some time. In were summarized by the Supreme Court of The court further put the matter this way: words or conduct and, when present, “colours the entire trial.”19 the walls of the courtroom. Public perceptions have no physical 1997, it was reiterated by the Supreme Court Canada in R. v. S. (R.D.).9 In particular: “The presumption of impartiality anchors Words and conduct throughout the trial process must preserve boundaries and, given the importance of preservation of public of Canada in R. v. S.(R.D.)3 as being that set Fairness and impartiality must be both sub- public confidence in the integrity of the public confidence in the fairness of the trial. confidence in the administration of justice, can be demanding. out by de Grandpré J. in Committee for Jus- jectively present and objectively demonstrat- administration of justice”13 and added: “An Public perception of judicial impartiality “involves the percep- Cracks in the appearance of judicial impartiality may be more ob- tice and Liberty v. National Energy Board et al.4 ed to the informed and reasonable observ- allegation of bias engages the very foun- tion of the public at large as well as the perception of the liti- vious in some cases than in others. Repeated interventions by the That test confirmed the apprehension of bias er. If the words or actions of the presiding dation of our judicial system. It calls into gants.”20 An English judge, Sir Robert Megarry, “once observed trial judge, especially with a sarcastic or denigrating tone, can pro- must be a reasonable one, held by reason- judge give rise to a reasonable apprehen- question not simply the personal integrity that the most important person in the court room with respect to duce in the eyes of a reasonable party a perception that the judge has able and right-minded persons, applying sion of bias to the informed and reasonable of the judge, but the integrity of the entire the issue of perception is the litigant who is going to lose.”21 It is a bias against the individual.24 It has been said that judges enjoy the themselves to the question in obtaining observer, this will render the trial unfair.10 administration of justice.”14 a little easier to accept the sentencing sanction if the accused be- respect of the vast majority of Canadians earned by their “ability

32 | FALL 2016 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2016 | 33 to conduct trials fairly and impartially.”25 That respect Notes can diminish when the veil of perception is smeared, 1. Francis Herbert Bradley, Appearance and 20. Robinson v Lepage 2015 ONSC 3128 at whether consciously or unconsciously, with the blood Reality: A Metaphysical Essay (London: para 14 (Div Ct). of partiality. The Court of Appeal for Ontario has em- Allen & Unwin, 1893). 21. Ibid, citing Sir Robert Megarry, phasized that “[i]ntervention amounting to interference 2. See R v Sheppard (2002) 1 SCR 869 at para “Temptations of the Bench,” 16 Alta in the conduct of a trial destroys the image of judicial 15. The oft-quoted axiom that “justice L Rev 406 at 410. See also Justice impartiality and deprives the Court of jurisdiction.”26 should not only be done, but should McLachlin’s comments in R v Harrer Some things are clearly irreparable. manifestly and undoubtedly be seen [1995] 3 SCR 562 at para 45: “At base, The Court of Appeal further described the appearance to be done” was stated in R v Sussex a fair trial is a trial that appears fair, and reality of impartiality in a straightforward manner: Justices, Ex parte McCarthy, [1924] 1 KB both from the perspective of the An adjudicator is impartial when he or she is dis- 256, at 259. accused and the perspective of the interested in the outcome and is open to persuasion 3. R v S (RD), [1997] 3 SCR 484. community.” by the evidence and the submissions. A judge must 4. Committee for Justice and Liberty v 22. Supra note 20 at para 16 (italics in both weigh the case impartially in his or her own National Energy Board et al, [1978] 1 original). mind and ensure that the circumstances objectively SCR 369. 23. Ibid at para 18. demonstrate his or her impartiality to an informed 5. See Levac Supply Ltd v Norceram 24. Grande National Leasing Inc v and reasonable observer.27 Products Inc 2014 ONSC 5737 at para Vaccarello 2015 ONSC 5463 at para 14 (Div Ct). 36 (Div Ct). See also R v Huang, 2013 6. Ibid. See also Chippewas of Mnjikaning ONCA 240 (CanLII), where the trial First Nation v Chiefs of Ontario, 2010 judge interrupted a critical point in ONCA 47; leave to appeal to SCC a cross-examination and asked the It’s easier to be 100% certain about a case when refused, [2010], 276 OAC 398 at para witness if he knew what perjury 229. See further R v Windebank 2014 was and suggested defence counsel you’ve eliminated 80% of the irrelevant data. ONSC 5135 at para 6, where the speak to him about its meaning court highlighted that “potential and consequences. The comments ® public perception of bias, even revealed a prejudging of credibility LexisNexis Early Data Analyzer and unconscious bias, on the part of a before the accused had been given ® trial judge strikes to the heart of the an opportunity to explain himself LAW PreDiscovery reputation of the administration of and all evidence and submissions justice.” were heard. 7. Marchand (Litigation Guardian of) v 25. Grande National Leasing Inc v Appearance is an objective phenomenon. Our courts Public General Hospital Society of Vaccarello, ibid at para 38. have emphasized that judges “benefit from a presump- Chatham. [2000] OJ No 4428 (QL) 26. Majcenic v Natale, 1967 CanLII 267 tion of integrity.”28 Fortunately, integrity demonstrates it- at para 131; leave to appeal to SCC (ON CA). See R v Vlachos 2015 ONSC self in our courts – in appearance and in reality – day dismissed September 27, 2001, SCC 1700 for three types of interventions Keep eDiscovery costs down and increase your after day, year after year. Nevertheless, under the File No 28379 (SCC Bulletin, 2001 at that could lead to unfairness or the lens of reasonableness, a trial judge’s subjective view 1685). appearance of unfairness. These of whether the test for impartiality has been met is 8. Ibid. include questioning an accused efficiency with our seamless integration trumped by the objective view – namely, the view of the 9. Supra note 3. or defence witness in a way that public, through the informed and reasonable observer. 10. Supra note 7. Supra note 3 at para 94. gives the impression the trial judge First, use LexisNexis® Early Data Analyzer for processing, to capture your document set where it The concern for impartiality and fairness has no 11. Supra note 7. is siding with the prosecution and resides and cut it down to size. This can eliminate as much as 80% of non-relevant data, meaning geographic bounds. The Alberta Court of Appeal made 12. Langstaff v Marson 2014 ONCA 510 at does not believe the accused or it’s possible to learn more about a case early on, and identify whether it’s worth pursuing or not. this cautionary note: para 25. witness; interventions that have It is essential that trial judges not descend into the 13. Ibid. made it impossible for defence Next, save your data directly to LAW PreDiscovery ®, and take advantage of this powerful arena …While judges, in keeping with their sworn 14. Ibid at para 26. counsel to perform their duty duties, may seek clarification of points in issue, the 15. Ibid at para 28 (quoting Cory J at para in putting forward the client’s eDiscovery production tool. Generate TIFF images, number, endorse, and create full productions extent to which a judge may properly go beyond 111 in R v S (RD) supra note 3). defence; and interventions that in dozens of formats. that is circumscribed ... That which governs is the 16. Ibid at para 24. preclude the accused from giving necessity of ensuring a fair trial and one that is per- 17. Hazelton Lanes Inc v 1707590 Ontario their story in their own way (para ceived by all concerned to have been conducted fairly Limited, 2014 ONCA 793 at para 60. 19). In assessing the trial judge’s and impartially.29 18. Ibid, referring to Metropolitan Properties interventions, the cumulative Book a demo of Early Data Analyzer with our Solutions Specialist today. Co (FGC) Ltd v Lannon, [1968] 3 All ER nature of the interventions may tip onclusion 304 (CA) at 310. the scales, creating the appearance lexisnexis.ca/eliminate A judge’s role is unique and of great impor- 19. Supra note 17 at para 65 ; see also R v Hill, of unfairness (para 21). tance. The appearance and the reality of judi- 2011, ONSC 3935, where a trial judge’s 27. R v Arnaout 2015 ONCA 655 at para 18. Ccial impartiality must go hand in hand. Both are im- failure to grant an adjournment, 28. Ibid. See also R v Teskey, [2007] 2 SCR portant for preserving public confidence in our justice refusal to hear a Charter application 267 at paras 19–21. system. Although a dichotomy between appearance and comments to defence counsel 29. R v Switzer 2014 ABCA 129 at para 14, LexisNexis, Lexis, and the Knowledge Burst logo are registered trademarks of Reed Elsevier gave rise to reasonable apprehension repeating the same court’s caution and reality may exist in other contexts, when it comes Properties Inc., used under license. © 2016 LexisNexis. All rights reserved. to judicial impartiality there is no room for it. of bias. in R v Oracz 2011 ABCA 341 at para 7. EDA_LAWPreDiscovery-0416 34 | FALL 2016 | THE ADVOCATES’ JOURNAL INTERVIEW The Journal conversation: Sheila R. Block, LSM, ASM

Stephen Grant, LSM and Chantelle Spagnola This is an edited version of the Young Advocates’ Standing Committee “Fireside Chat on Advocacy” at Campbell House on April 11, 2016. The Advocates’ Journal is grateful to Neesons for transcribing the conversation.

STEPHEN GRANT: If you really dig, you SG: At the CCLA? licious meal – he is a wonderful cook – and can find out that, years ago, Sheila was a folk SB: Yes. And I also applied to [former Chief he was reviewing Crown disclosure. He said singer. She was also a motorcycle rider. As Justice] Charlie Dubin. And Borovoy said, the intimacy that you get – about people’s well, on her CV she has a list of practice areas “Look, if Charlie will hire you, go with lives – it really is a privilege. And with that in which she has engaged: class actions, cor- Charlie.” And so I did. Armstrong, Mor- privilege comes a lot of anxiety, responsibility porate restructuring, defamation, intellectual phy, Blair and Brunner were with him. and worry about doing your best. property. She doesn’t mention the fact she SG: Later Justice Armstrong and Justice Blair. SG: You had worries over these years? You? also does family law. She and I have co-coun- This was a litigation boutique, way, way, way SB: Yes. selled on a couple of cases that are not found before its time. But they did everything. Chief SG: You wouldn’t know it. in her resumé, but I’m here to tell the tale. Justice Dubin was so profound a lawyer that, SB: I think I’ve managed the stress pretty Lawyers like to talk about other lawyers, of the labour law he practised, he would act well, and having three kids is a good anti- and particularly the great lawyers. Sheila on the union side one day and on the man- dote because as soon as you get home, you and I have seen some great lawyers over agement the next. He even acted for the La- are in a completely different world. the course of our careers, and I must say bour Board – a real trifecta – he was that great. SG: I’ve known you for a long time and SB: The skills are all learnable skills, and I’ve spent a lot of time These young solicitors would get frustrated because they knew she is the real deal. You don’t find that happening anymore. worked with you from time to time, and teaching advocacy skills, not out of any charitable notion but, self- the case inside and out, yet couldn’t make the submissions. And How did this happen? SB: No. the case or the cause doesn’t matter be- ishly, I teach to learn. in one week they just went from zero to 60 in terms of advocacy SHEILA BLOCK: When I was coming SG: Has it been a fulfilling career over cause the passion was always there, and it’s I learn so much from teaching – by watching other lawyers or skills. It was fantastic. through school, I didn’t want to be a nurse, these years? still there. How do you do that? law students take a problem and formulate a question, do an open- So these skills are all learnable. You can be trained in all these and I didn’t particularly want to be a teacher. SB: It really has. First of all, it’s a helping SB: Well, first of all, you don’t become a judge ing speech or make a closing argument. And I try to figure out skills. We can’t make you a smarter lawyer or make your analysis I thought, maybe I could be a social worker or profession. And when I mentioned social – where you have to decide who is right and why did that work, why didn’t that work, how can I fix it. Can I of the case better, but we can teach you the skills of who, what, a lawyer. It occurred to me, when I found out work as a possibility, my sister is a social who is wrong. That really wasn’t in my DNA. make it better in two minutes or less? You can’t help but learn if when, where, why; how to describe in chief; or to tell, don’t ask, on you could draft wills and do real estate deals, worker and it would have been the natural But knowing that somebody has a position you do advocacy skills training. cross. One fact per question. So the skills are all learnable. that you wouldn’t actually have to speak in thing to do growing up in the sixties that that they can’t themselves put forward and So skills are all learnable. And Jim (Seckinger), my husband, and CS: There has got to be an intangible something then. What is it? public –you could be a lawyer and sit at your you would become a social worker if you they need an advocate, a Paraclete, a repre- I did a lot of teaching in the UK when Margaret Thatcher decided SB: Caring about your cases, caring about the role. Our mutual friend desk. So I thought, I’ll try that. had any sort of care for people. sentative who knows the landscape – that’s she was going to give rights of audience to solicitors. Margaret Garry Watson says the difference between the good lawyer and the And, great surprise, Joyce Harris, now re- But I thought I’d try this law thing. And it my role, and I know what I’m to do. I’m to do had been the daughter of a grocer, she had been a barrister. They great lawyer is that the great lawyer gets more out of the file – so, real- tired, and I did mooting together at the Uni- really is a helping profession, particularly on what they would do for themselves if they turned their noses down at her, and she got back at them because ly, working and thinking. Although sometimes you can over-think it. versity of Ottawa, and we won our moot. our end of the practice where people are al- had the skill and the training. she decided she was going to give rights of audience, and all you But you watch the English barristers, and they have a lot of We were two of eight women in our class. ways in trouble somehow or another. Either I like being given the assignment and needed to do was have some kind of training. So they brought over easy manner and things that seem to be innate – but for them, After that, we came to Toronto and moot- they’ve done something, they’ve been sued, or knowing there will be somebody really advocacy trainers from North America because there is a long tra- some of what they do is really just part of the culture, the way ed with everybody else at U of T. Professor they’re suing because they believe something good on the other side and that there is a dition of training and, particularly, learning by doing training. they cross-examine. [In an English accent] Q: “You’re lying, then, Alan Mewett was one of the judges. All has been done to them. And you are their Peri- third person who will ultimately decide the We would take these young solicitors from the Magic Circle firms, aren’t you?” A: “No.” Q: “So you say!” the other participants were men. And I’m cles – you are the one who stands up for them. rights and wrongs of it. But I can be passion- like Clifford Chance or Linklaters, and we’d go up to some lodge or We can’t get away with that. We actually have to have a refer- tall compared with Joyce, so we were these SG: It’s a privilege, what we do. No? ate about that because that’s my job. some big country estate where they had interrogated Rudolph Hess ence from the discovery or the documents to impeach the witness. two diminutive females. And we won the SB: It’s totally a privilege. As I often say, SG: Passionate but objective, no? after the Second World War or a place with the biggest rhododendron So the English barristers have a lot of style that you don’t really see whole thing. And I thought – well, how “I could stay home and watch the soaps SB: Yes. It’s not what I think or I feel or the garden in the south of England, and we’d spend a week with them. here because our judiciary doesn’t put up with it, but of course the hard can this be? or come to work. You learn so much about idea that you just deny the other side’s ar- They’re all smart as hell. They have all the legal context, but English judiciary are pretty much all former barristers and they So I applied for three jobs. One with your other people’s lives, the intimacy you get.” gument. It’s being passionate for the role of they never had the chance to ask the questions. They’d prepare come from that same tradition. So they may have more tolerance guy, Ian Scott. He later told me he lost my And this is a point my son made to me putting forward the best possible case. all the witness statements, and they would kid that they’d be for it. Of course, they have some fabulous advocates. application. when he was interning for a criminal firm CHANTELLE SPAGNOLA: What skills do sitting behind the barrister, who would say, “I’m appearing on SG: Have you seen an evolution in advocacy over these years SG: That could easily have been true. and he’d come home at night and I’d be work- you possess that have made you the litigator behalf of the plaintiff ...” They would tug his gown and loudly you’ve been practising? SB: One with Alan Borovoy. ing on my transcripts, after he made us a de- you have become? whisper “The defendant! The defendant!” SB: Yes.

36 | FALL 2016 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2016 | 37 SG: What’s changed for the better, and what’s changed for the worse? I didn’t know what I was doing – I was very, very unsure. I was What I found was I had a number of cases er forget the losses. his start with our case. SB: I think we’re less technical now. I did an article about Charlie thrown into the deep end over and over again, flailing around and that were about to go to trial and they didn’t SB: Yes, absolutely. We had a wonderfully long hearing, and Dubin and his contemporaries with whom you and I grew up as felt (and no doubt was) completely inadequate. That was year one. go to trial – they would settle at the court- SG: I think we’re programmed to think Kent and I worked closely on it and had a the heroes and leaders of the bar, like Arnup, Scott, Robinette and Year two and year three, you get a little more competence. But room door. And I eventually realized I just we could have been better, we could have great deal of fun. And I was on a holiday in Finlayson and Laidlaw – that whole crowd – and I went back and it was still a bit of a grind, and exactly when it shifted to be just a enjoyed putting the cases together. Actually done better, we could have argued this or Lunenburg, Nova Scotia, and got a 160-page read a lot of their cases. great joy I’m not sure, but for those of you who might have some getting to the courtroom door was some- could have argued that. judgment on a Friday night. Sitting on this big They would take technical points all the way up to the Supreme doubts at the moment, hang in there. It really does get terrific be- thing I really enjoyed – finding that you’ve SB: Sometimes your case isn’t a winner, so four-poster featherbed and reading this judg- Court of Canada and get a new trial; then they’d lose again, all the cause you can help people. It’s intellectually challenging. got everything lined up and you figure out you should be losing some cases. I’ve hit ment, which we won – that was great fun. way up again, and often for no fee. It was often one of those situa- CS: So, for those of us who are still flailing around, what suggestions what your opening is, how you want to my quota, I think. SG: Did you feel that over the course of tions where they’d been buttonholed by the chief justice of the day do you have for junior lawyers to gain the confidence of our clients? close, what you want to say on closing about SG: How do you live with the fact that it’s your career you had to make sacrifices in in the courthouse hallway, saying, “You know, I need you to start SB: Permit me an anecdote. The first day I came to the firm after this witness or that witness. I enjoyed that on your shoulders? You just say, “Well, it’s other areas of your life – vacations and that a trial next week for the co-defendant. Show up in my courtroom articling and bar admission, Bob Armstrong (who again is one of process. And that was good because most of like the doctor – the patient has the disease.” sort of thing? at 10 a.m. on the seventh.” So, nowadays, there are fewer technical my wonderful mentors) had a discovery. And Dennis Lane, who at what we do doesn’t go to trial. SB: You can’t beat yourself up. I remember SB: You should interview my son. I didn’t arguments and fewer trials, appeals, retrials, et cetera. that time was a very senior lawyer, was on the other side. SG: Did you have any lows? telling my mother after one loss how upset miss one concert or one play. We went on I also think there’s probably a better quality of the bench from And the president of a chemical company was coming in for SB: For sure. I did an injunction that was I was, and she said, “Look, you know, you lots of vacations. My nanny left at six and I those times – times when you really had to fight a lot with cranky discovery, and Bob said, “Dennis Lane has got a few more ques- supposed to be in front of Justice Estey. He have to get on with things.” It’s when you had to be home at six, so I would get up at a old judges. So we don’t get too much of that. tions. Just go over to Oslers with the client.” And we’re walking would have given me the injunction, but I worry that maybe you didn’t do your best. very early hour and get to the office. SG: Did you have any mentors who were meaningful to you? over, and the client (who could tell I looked like I was 12 years old) ended up in front of somebody else, who SG: How are you ever going to know that? SG: So the sacrifice was either working SB: I have had so many mentors. Mentors come in all shapes. asked, ”So how many of these have you done?” I said, “This is my shall remain nameless, and he just wasn’t SB: Oh, you know. out or sleep? Mine were all old white guys, basically because of the era. There first one.” And, typical of the time, and I hope it’s still the same interested. It was a Friday afternoon and, SG: Well, I don’t think it’s fair to say be- SB: No, it wasn’t sacrifice. It was the choices weren’t women litigators. But both on the corporate side of the and I hope this has been your experience, Dennis was every inch as a result, a factory closed and all the peo- cause you’ve lost a case that you didn’t nec- I made. I wanted to have a family, I wanted firm and on the litigation side of the firm, all the people I worked the gentleman. He would have known it was my first day on the ple who had invested in it and were run- essarily do your best. As you say, there are to be a full participant at my firm, I wanted with were just fabulous. job, but he didn’t take advantage at all. ning it lost their jobs. And the lawyer who some cases that are simply not winners, to hold up my end. That may have some- And they also had a great culture of pushing you forward. They’d We don’t do that as much to lawyers on their first day. They instructed me, he lost his whole practice. whether on facts, on the law, the equities, thing to do with the era in which I grew up. always say, you know, “Stephen is a great young lawyer”; or “Sheila don’t seem to get the opportunity to jump in and sink or swim – SG: It’s amazing how many years later you whatever. There are some cases that are SG: A lot more mobility now, though, than will do a fantastic job for you.” It was all generous, and that is a mostly sink. That’s because now there’s so much at stake. Nobody remember this. simply not winners, and I think it’s a bad what we saw? You have been at Torys 44 years? culture that you want to adopt in your own practices because it’s so anymore has a little case that doesn’t count. Everybody’s case is a SB: Oh, yes, I remember this one. strategy beating yourself up. You would be SB: Yes. And I stayed there because I was important for a young lawyer to be given opportunities. mega-case, and so there is more reluctance to throw young law- SG: Was it the injustice or the arbitrari- bloodied and bruised if that were the case, and still am in a group of terrific people When I look back at the early days, the first year was just misery. yers into the arena. ness that resonates so powerfully with you but it can’t be right that you have to worry who care about each other, who work to- these many years later? about every case that you’ve lost. gether. Their successes are my successes; SB: I think it was – and this sometimes hap- SB: That’s absolutely right. I mean, I do my successes are their successes. It’s a col- pens at our end of the work – the serendipity move on. legial environment. And if you’re not in GIFFIN KOERTH S M ART F O RENSI C S of getting X instead of Y to hear your case. CS: Are there any particular wins that that environment, change your environ- SG: I pretty much always get X instead have stayed with you all these years? ment because you can find places where How you look at it matters of Y, so I know what you’re talking about. SB: I’ve been lucky on a number of occasions, people love working together. But was there something specific about and one of them was with your colleague, SG: I agree with that. Nobody is a prisoner of There’s more to smart forensics than superb science and a knack for solving puzzles. that case which was so telling that you can Kent Thomson, when we did an arbitration their firm, right? You always have options. Here’s our view on what makesapreferred partner. relate the story so many years later? with Coors against Molsons and we had an SB: Right. SB: Well, I think I felt it was all on my shoul- international arbitration panel. And even CS: There are so few female litigators who ders. What I’ve tried to do over the years is though arbitrations are private, the result have been practising for as long as you have. Unshakeable Collaborative accept that it’s not my cause of action – it’s was reported and the context was reported, What advice do you have for female litiga- Science Work Style the client’s cause of action. It’s not my case – I so I’m not letting any cat out of the bag. tors in particular to try to manage both – to To win more cases Today’s cases are 360° Services and settle to greater simply too involved didn’t make the facts. But there have been But this was one of those situations where maintain a career for as long as you have advantage, do the for people to work The real world is times when I walked out of court and felt I Pete Coors and Eric Molson shook hands. and to still have it all, to go to the concerts forensics rst. on their own. complex. Forensic should have done more on that re-examina- They were both of the same temperament. and have a family. It seems almost unat- les mirror that Clear Vital Culture tion, or I should have done more on that reply, They were both heads of large, wealthy, tainable, but you’ve managed to do it. complexity. So should forensic Communications People make a or I should have answered this question bet- long-lived families and family businesses. SB: It’s totally doable, and there’s no one way services. Your case is not dierence – ter. I can’t tell you how many times I go out of So Coors thought he had a deal with Mol- to do it – to have a family and have a career especially when compelling unless son, and Molson obviously thought he had a that you enjoy and that you think is meaning- it’s clear–and the you make a court thinking, “If only, if only.” telling holds up dierence for them. SG: That happens to you, too? different deal. And they papered it through ful. The idea of dropping out for that whole under re. SB: It happens, and it should happen. You time, but it didn’t quite say everything that period of time when your kids are growing should always be reflecting on it because maybe they wanted it to say. up is something that has left a lot of women you’re never going to be perfect. So we had to find an arbitrator who wasn’t with no confidence when the eight years are If you see it the way we do, give Chris Gi n a call at 416.368.1700. SG: It’s hard, though, isn’t it, because an Englishman because they’d just look at over (or however long they step out). It’s like don’t we always second guess ourselves the words and put their blinders on. And they were never in it to begin with. Gi n Koerth is located in downtown Toronto at gi nkoerth.com 40 University Ave., Suite 800, M5J 1T1 no matter what? it was an American company and a Cana- So if you want to do both, it is possible. SB: Unless we win, and then we’re on to dian company, so we needed somebody There are all kinds of configurations that the next case. from somewhere else. So we went and got women use that really weren’t available in SG: That’s it. I always think the great ad- a Kiwi, David Williams, who is now one of my day. vocates never remember the wins, but nev- the biggest international arbitrators. He got CS: Did you find you had to chart your own

THE ADVOCATES’ JOURNAL | FALL 2016 | 39 course in that regard? a black gown, and she was about 32, an in- SB: I think now it’s the quality of the help SB: I was the first woman at the firm. I vestigative journalist in the financial area, that lawyers get. You have all these ter- was the first married woman at the firm. beautiful and stylish. rific young people who are much better I was the first, second and third pregnant And I’m cross-examining her, and she’s trained as lawyers than in my day, and woman at the firm. tough and I’m getting shrill, and she’s get- they prepare the cases and you can de- SG: First woman partner at your firm? ting shriller, and I’m getting shriller and ploy so many assets, to use a military term, SB: Yes, Pat Myhal and I became partners in Morphy is sitting there beside me, and I’m to get your case ready. So you’re in a much the same year. So maybe it was easier because thinking, “Is it Tuesday yet? When will better position. I think we get to the point my male colleagues had no idea what to do, this end?” of the case faster, and I think we make bet- and they just let me do what I wanted. And from that moment on, I have ter use of courtroom time, fewer and far- SG: Big firms are better or worse now cross-examined women quite different- ther between but I think we make better than they were then? ly. It was a terrible day, but a total use of it. SB: They’re better in the sense learning experience. There may AUDIENCE: I wonder if you could com- that they recognize it is a come a time when it doesn’t ment about how the legal culture could perfectly legitimate thing to matter what your gender change to make not just Bay Street but, gen- do – get pregnant and have is as counsel and what the erally, legal practice feel more safe and more a baby and take some ma- gender of the witness is, but comfortable for people who don’t come from ternity leave and so on. It’s it certainly wasn’t the case traditional backgrounds. not for me to say, “I did it this back then. I’ve been mindful SB: There’s been a huge change in the envi- way, you should do it this way.” of it ever since. ronment, even since Stephen and I started. But it worked out for me. I don’t play AUDIENCE QUESTION: If you At Torys there were no women, and ev- bridge, I don’t have a squash game. There are could give some advice to your young law- erybody was a U of T grad and a white a lot of accomplishments that I don’t have. yer self, what would it be? male. Now our firm has diversity from ev- SG: So are you actually going to share with SB: It really is hanging in there through ery possible group, so that’s been a huge us how you became you? I really want to the learning curve. It’s a steep learning change and nobody would have predicted know what the secret is. curve, and there’s a lot of insecurity in what it before it started to happen. CS: Me, too. you’re doing. First of all, your billing rate is And the thing about the legal profession SB: Well, I have a total bathtub mind. I do a ridiculous and you’re thinking, “People are is that the private bar runs through part- case, I’ll know everything about automatic paying me this much money for that, and I nerships. In every entry level class there are oil-drilling units for however long the case don’t even know what I’m doing.” going to be people like a Stephen Grant or lasts, and then I’ll pull out the plug. And I So, the advice is to realize that you ac- a Sheila Block who, 40 years later, will be really can’t remember anything. tually are learning with everything you’re leaders of the bar. So you have the ability to SG: What’s the key? Come on. There is a doing. The first time you do a bill of costs change your firms from the inside. secret to this that you can share with this or the first time you have to serve a sum- Things have changed tremendously in room of friends. mons, they’re small, stupid things that you my lifetime, and you folks at the entry lev- SB: I find all these things interesting. I find think you should know how to do. But if el, you will make all kinds of changes go- the cases interesting, even the boring cases. you’ve never done them, they’re part of ing forward. I mean, you won’t be sitting SG: Because you’re a natural problem-solver? your evolving skill set. So you keep learn- around in big offices with all that equip- You like crafting the logical answer to a ing over those years, and eventually there ment and furniture and everything. You problem? is this point at which you feel like a law- can now do legal work in so many differ- SB: No, I have an obligation to the client who yer. And it happens in every profession. ent configurations and they will become has a particular point that he or she wants to Compare, though, the amount of flexibility prevalent sooner than later. get across, and that’s what I have to do. you have to learn, to help people, to make AUDIENCE: Any regrets? Anything you CS: Who’s the most difficult person you’ve money, to change the law, to lose cases and would have done differently? ever had to cross-examine? break your heart. SB: There are so many things that, when SB: Well, it was my inexperience and my in- It’s a fantastic profession. It’s so intellec- I look back, I could have done differently eptness that made this a difficult cross-exam- tually stimulating. Case law is so mallea- or had more confidence or less anxiety or ination. It was a Combines case – Competition ble. As one of my friends said, “If the pol- more willingness or more courage. But I Act, we call it now, but it was when the Ottawa icy is with you, any technical argument wasn’t ready for it at those times. Journal and the Winnipeg Tribune both closed. will do – but not vice versa.” So I don’t look back with regret. I just So the Southam paper and the Thomson pa- That’s what the common law is built for, look back and see, yes, I had to learn by do- per both closed on the same day, leaving the because you can find ways to make your ing, which of course is my motto because cities, whose papers were owned respectively point within the constructs of a legal argu- I do a lot of learning by teaching and I do by those two companies, as one-paper towns. ment in most cases, appealing to the justice think that’s how you learn. That’s the great And the head of Combines investigation of the cause. thing about being a young lawyer: Every- didn’t think that was appropriate and AUDIENCE: What is something that ad- thing you touch you can learn from if you brought a criminal case. A couple of days vocates for better or for worse did 44 years think about it and reflect on it. in, Lorne Morphy had me cross-examine ago that they don’t do now, and what are SG: I would like to thank my reluctant a woman from Montreal. I was about nine things that advocates do now that they friend here for being with us tonight. It months’ pregnant, a big beached whale in didn’t do 44 years ago? was truly a treat.

40 | FALL 2016 | THE ADVOCATES’ JOURNAL LETTER FROM QUEBEC the court’s substitution of its own judgment for that of the parties was true, but nonetheless made with the intent to cause damage or to and would be, in essence, an alteration of the contract, which goes harm, the speaker can still be found liable for defamation.9 against the principle of autonomy of the will.”8 Good faith also underpins the exercise of rights in litigation. However, in a unanimous decision, the Supreme Court found that For example, proportionality in proceedings, a well-established the bank breached its duty to act reasonably toward the business concept in both Quebec and Ontario civil procedure, is itself and, in doing so, caused damage to the shareholders. Madame Justice viewed as an instantiation of good faith and abuse of rights.10 As Good faith as an “organizing principle” L’Heureux-Dubé, writing for the Court, stated: our Court of Appeal recently reiterated, good faith and propor- But more fundamentally, the doctrine of abuse of contrac- tionality are the “guiding principles” for the interpretation and tual rights today serves the important social as well as economic application of the entire Code of Civil Procedure.11 function of a necessary control over the exercise of contrac- The destruction of documents in the context of litigation pro- Doug Mitchell tual rights. While the doctrine may represent a departure from vides an illustration of this point. Quebec does not have a regime Doug Mitchell is grateful for the substantial input provided by Jean-Michel Boudreau and Audrey Boctor the absolutist approach of previous decades, consecrated in the of nominate torts, and there is no explicit provision against spo- well-known maxim “la volonté des parties fait loi” (the intent of liation. Once again, however, the courts found the obligation to the parties is the governing factor), it inserts itself into today’s preserve documents in the general provisions regarding reason- performed in good faith at all times for 35 years now,5 and, while trend towards a just and fair approach to rights and obligations able and good faith conduct.12 it does make for less predictability in litigation, it means that (by way of example of this trend: consumer protection leg- Getting back to the contractual realm, it is therefore not surpris- high-handed conduct can have real legal consequences. During islation, family law as regards the disposition of family as- ing that the duty of good faith has served to impose obligations on that time, Quebec’s world has not ended. Contracts – governed sets upon divorce and death, the notion of “lesion between the parties beyond those specified in the contractual documents. by Quebec law – continue to be entered into every day. persons of full age” in the proposed reforms to the Quebec For example, there is a duty to inform the co-contracting party of In Quebec, good faith organizes all stages of the contract, includ- Civil Code, etc.). Such uncertainty which the doctrine of abuse certain relevant information. (However, there does remain a duty ing its formation, performance and termination. Article 1375 of the of rights may bring to contractual relationships, besides being for the opposing party to take due care to inform itself.)13 Civil Code of Québec provides that “[t]he parties shall conduct them- worth that price, may be counterbalanced by the presumption In many relational contracts, such as franchise agreements14 selves in good faith both at the time the obligation arises and at the of good faith which remains basic in contractual relationships. and construction contracts,15 Quebec courts have imposed a duty time it is performed or extinguished.” Courts have so far demonstrated, in applying the doctrine, to co-operate, which means a party may be required to take pos- Interestingly, given that Quebec’s substantive law is based on that they will only sanction marked departure from the itive steps to assist the co-contracting party and ensure that the a statute, the organizing principle of good faith was adopted by general norm of behaviour acceptable in our society. As contract remains relevant when circumstances change. In the the Supreme Court of Canada even before the Civil Code of Québec Professor Pierre-Gabriel Jobin has noted, in a recent confer- franchise context, this translates into a duty to take positive steps came into force in 1994. The previous version of the Civil Code, ence given before the Quebec Bar Association, “L’abus de to “protect and enhance the brand,” which includes an implicit quaintly entitled The Civil Code of Lower Canada, had no provision droit contractuel depuis 1980,” in Congrès annuel du Barreau comparable to article 1375. du Québec (1990), 127, at p. 132: The 1981 decision in Soucisse is widely viewed as the foundational [TRANSLATION] In many respects, abuse of rights is to con- case on good faith. It held that every contract contains an implicit tractual relationships what fault under art. 1053 C.C.[L.C.] is obligation that it be performed in good faith.6 The 1990 decision in to extra-contractual relationships. Houle v. National Bank of Canada7 went one step further and conclud- If this doctrine were not already part of Quebec civil law, there ed that the exercise of a right, if unreasonable or in bad faith, could should be no hesitation to adopt it [pp. 145–146]. [Emphasis added.] constitute an “abuse of rights.” The court there abundantly discuss- Put simply: es the policy underlying the doctrines. [E]very contract contains an implicit obligation on the parties to The National Bank had done business with the Houle family the contract to exercise their rights in accordance with the rules and their pork slaughter and carcass business for 58 years. The of equity and fair play (art. 1024 C.C.L.C.). Consequently, any act that four Houle brothers were the family business’s sole sharehold- breaches this implicit obligation would be a source of liability [p. 155]. ers. The company had several loans with the bank, for which the [Emphasis added.] bank held various securities, including a $1 million trust deed And then, as with commentators in the common-law prov- on all the movable and immovable assets of the company. The inces after Bhasin, many of us waited for the sky to fall. But, of contract between the parties expressly provided that the bank course, it didn’t. he decision of the Supreme Court in Bhasin v. Hrynew had the right to recall the loan on demand and to realize on its To the contrary, when the Civil Code of Québec was adopted in [“Bhasin”]1 was apparently widely seen as a revolution security “without notice.” 1994, it entrenched the doctrines of good faith and abuse of rights in the Canadian common-law world2 and described by While in negotiations to sell the business – which were well as the organizing principles not just of contract law, but of the civil Tsome as imposing a standard of morality in contractual relation- known to the bank – the brothers requested an increase to their line law as a whole. Articles 6 and 7 provide: ships that was unwelcome.3 of credit. Based on a verbal report from the accounting firm hired to 6. Every person is bound to exercise his civil rights in good faith. Sitting here in Quebec, many of us were somewhat puzzled by perform the due diligence, the bank decided to call in the loan. The 7. No right may be exercised with the intent of injuring anoth- both what we saw as the limited scope of the decision and the parties tried to reach some sort of agreement, but, after an hour, the er or in an excessive and unreasonable manner, and therefore reactions to it. We smugly said to ourselves, “So, let me see. It’s bank served notice that it was recalling the loan. The bank immedi- contrary to the requirements of good faith. considered a revolution in Canadian common law for a party to be ately took possession of the company’s assets, and liquidated them This duty to act reasonably and in good faith applies in all con- required not to lie in the performance of a contract?” soon after. The time span from the first notification that recall of the texts and at all times. It includes the exercise of all rights, including, As the dust settled, however, it became clear that, as at least one au- loan was imminent to the liquidation of the assets was three hours. among others, property rights, rights in the context of litigation and thor has noted in this very journal, the revolution is (thankfully) not so The bank of course argued that it had acted precisely as the con- free speech. much in requiring parties not to lie to each other, but in the idea of an tract, signed between sophisticated parties, stipulated it could. With For example, while in the common-law provinces the truth of the “organizing principle” of good faith in the performance of contracts.4 a familiar ring, it pleaded that “since a contract defines how the par- statement provides a defence to a claim for defamation, in Quebec, I would like to assure you there is nothing to worry about. ties may act, the notion of ‘reasonableness’ in exercising rights can- truth is not a defence in and of itself but, rather, a factor that weighs We have lived in Quebec with an obligation that contracts be not be imported into contractual relationships. This would involve in the assessment of the good faith of the speaker. If the statement

42 | FALL 2016 | THE ADVOCATES’ JOURNAL duty to “assist [the franchisee] in staving off competition in order to promote the on-going prosperity of the network as an inherent feature of the relational franchise contract.”16 Notes In another decision, our Court of Appeal found that the duty 1. Bhasin v Hrynew, 2014 SCC 71. to act in good faith had been breached when the party failed to 2. Jacob Young, “Justice Beneath the Palms: Bhasin v. Hrynew and the Role mitigate its damages, even though it was not at fault during the of Good Faith in Canadian Contract Law” (2016) 79 Sask L Rev 79–112; We can help you find the performance of the contract. The Cliffton17 case involved a com- Neil Finkelstein, Brandon Kain, Craig Spurn, Séan C O’Neill and Justin mercial lease for space occupied by an ATM machine. The tenant H Nasseri, “Honour Among Businesspeople: The Duty of Good Faith claimed that it was unable to make ends meet at the location, and and Contracts in the Energy Sector” (2015) 53:2 Alta L Rev 349–382 therefore took its machine away and left. The landlord sued for at paras 1–2; Shannon O’Byrne and Ronnie Cohen “The Contractual the balance of the rent due under the lease. The defaulting tenant Principle of Good Faith and the Duty of Honesty in Bhasin v Hrynew” Paul M. Iacono,Q.C. contested, arguing that since the landlord had made no effort to (2015) 53:1 Alta L Rev 1–34 at paras 1–2. find a replacement tenant, the damages should be reduced. The 3. Chris Hunt, “Good Faith Performance in Canadian Contract Law” (2015) Peter Braund landlord retorted that the Civil Code of Québec contains only a 74:1 Cambridge LJ 4 at 7; Damon Stoddard, “Bhasin v Hrynew: Good Faith Harvey Spiegel, Q.C. duty to mitigate in the extra-contractual (a.k.a. tort) realm. The and Duty of Honesty in Contractual Performance” (2015) The Canadian Court of Appeal sided with the tenant, holding that the duty to Bar Association. Ernie Eves, Q.C. mitigate is itself simply a manifestation of the duty of good faith. 4. Andrea M. Bolieiro “Bhasin v. Hrynew and the Principle of Good It therefore applies to the whole of private law. Faith in Contracts: Moving Toward a Modern View of Commercial Helen Walt Fittingly, our Court of Appeal has characterized good faith as the Relationships” (2015) 33:4 Adv J 23–29. Charles Harnick, Q.C. “metanorm” of the civil law.18 5. National Bank v Soucisse et al, [1981] 2 SCR 339. How do we live with the uncertainty? For starters, good faith 6. Ibid, 356. Douglas Cutbush is presumed.19 And in the vast majority of cases and situations in 7. [1990] 3 SCR 122. Quebec, contracts will be enforced according to their terms; and 8. Ibid, 135. Margaret Rees courts are seldom required, based on the principle of good faith, to 9. Prud’homme v Prud’homme, [2002] 4 RCS 663; Genex Communications inc c Tony Baker impose an additional obligation not otherwise specified. The most Association québécoise de l’industrie du disque, du spectacle et de la vidéo, C extensive applications of good faith have been in interdependent 2009 QCCA 2201. See also Vincent Karim, Les obligations, 4th ed, vol 1 Fred Sampliner contracts of a longer duration, which inherently require adaptabil- (Montreal: Wilson & Lafleur, 2015), paras 2787–2788. M Alicia Kuin ity and flexibility to survive. 10. New Code of Civil Procedure, Art 19; Code of Civil Procedure, Art 4.1; Berthiaume Y More fundamentally, the obligations imposed are generally in c Carignan, 2013 QCCS 1357 (conf’d by 2014 QCCA 2092), at paras 181–182. CM David Smith, C.A. line with what most reasonable parties – who are not embroiled 11.Charland c Lessard, 2015 QCCA 14, at para 171. MY in the dispute – would consider fair. 12. Jacques c Ultramar ltée, 2011 QCCS 6020, at paras 16–17, 20. Cindy Winer

CY In my view, the result has been far more salutary than not. If 13. Banque de Montréal c. Bail Ltée, [1992] 2 RCS 554; Banque de Montréal/Bank of John Beaucage the parties to a longer-term relationship understand that, not- Montreal c Banque de Nouvelle-Écosse/Bank of Nova Scotia, 2013 QCCA 1548. CMY withstanding what is written, they have to conduct themselves 14. Provigo Distribution Inc c Supermarché ARG Inc (1997) AZ-98011010 (CA); K John W. Makins according to certain moral standards and moral precepts, then Bertico Inc et al c Dunkin’ Brands Canada Ltd, 2015 QCCA 624 [Dunkin’ flexibility and adaptability will be encouraged, which will pre- Brands]. Derek Sarluis serve the relationship. The alternative – each party stubbornly 15. Hydro-Québec c Construction Kiewit Cie, 2014 QCCA 947. Richard McLean, Q.C. sitting on its position – undermines the whole purpose of a re- 16. Dunkin’ Brands, supra note 14 (eg para 64). lational contract: the joint creation of a partnership of strengths. 17. Groupe Cliffton Inc c Solutions Réseau d’Affaires Meta-4 Inc, 2003 CanLII 38062 In fact, beyond the strictly moral component, an overriding re- (CA). quirement to exercise all rights reasonably is arguably better for 18. Bellefeuille v Morisset, 2007 QCCA 535, at para 46. business. After all, businesses, shareholders and directors have 19. Art 2805 CCQ. quite successfully adapted to a world where shareholder rights are To arrange a mediation, not limited to those specified in either the legislation or the statues arbitration or appraisal and bylaws of the various companies. In the context of the oppres- sion remedy, courts have had no difficulty imposing an overriding please call our ADR duty to act according to the legitimate expectations of the vari- Coordinator or book online. ous stakeholders. The result is that it is easier to recruit minority shareholders into a business and to maintain the confidence nec- John Collins, B.A., LL .B. (416) 866-2400 essary for the business to thrive. Barrister and Solicitor All this to say that there is no doubt in this Quebec lawyer’s Certified by The Law Society of Upper Canada mind that the common-law courts will find other instances where As a Specialist in Criminal Law the duty of good faith will apply to imply obligations and duties Over 40 Years of Trial and Appellate Experience that are otherwise absent from the written contract, and in some 357 Bay Street Tel: (416) 364-9006 cases even override the clear language of the contract. Indeed, in Suite 703 Fax: (416) 862-7911 Toronto, ON Cell: (416) 726-8279 its traditional resistance to good faith, common-law Canada is the M5H 2T7 E-mail: [email protected] distinct commercial society. NOW SERVING SOUTH-WEST ONTARIO There will be some uncertainty. But, come to think of it, who be- lieves that going to court involves anything other than uncertainty 130 Adelaide Street West, Suite 701, Toronto, Ontario M5H 2K4 on almost every occasion? T 416-866-2400 TF 1-844-967-5782 F 416-866-2403 www.yorkstreet.ca CREDENTIALS MATTER

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