LSO and non-compliance orders, youth and mental health holds, and discretion under FOI requests

Law Society of Ontario v Odeleye, 2019 ONLSTH 315

Decision involves the LSO Tribunal exercising its discretion under the SPPA to ask the division court to inquire into whether the Immigration and Refugee Board is in contempt of its orders for production of records. The case originally involves a series of complaints against the licensee-lawyer for unwelcome sexual advances and related conduct (source). The lawyers for the licensee requested production for documents from the IRB and the IRB produced several documents (about 90 pages) with some redactions. The LSO ordered the production of same with no redactions. The IRB did not comply as argued the LSO did not have jurisdiction. The Tribunal disagreed and ordered again. The Tribunal takes the position that it can put protections in place to address the privacy concerns.

Strathroy-Caradoc (Police Service) (Re), 2019 CanLII 99482 (ON IPC)

Decision involves access to records involving the death of a minor child. The appellants are the parents’ of the minor child. The parents made five access requests to the police service. The police denied access relying on statutory provisions that the matter is still being investigated and/or part of a law enforcement investigation. The adjudicator finds that all the records are exempt but that the police’s exercise of discretion is not upheld and re-ordered to re-exercise discretion. The decision held that the exercise of discretion was not in accordance with Municipal Freedom of Information and Protection of Privacy Act, and ordered the police to re-exercise the discretion. Further, the adjudicator was not persuaded that the police independently exercised their discretion in not disclosing the records and hence, the order.

BS v Youthdale Treatment Centres (CYFSA s. 171), 2019 CFSRB 51

The child (BS) made an application to the Child and Family Services Review CFSRB (“CFSRB”) to review her emergency admission to the Acute Support Unit at a local treatment centre. The child took the position that the statutory criteria under the Child, Youth and Family Services Act was not met. The supervisor of the residence testified that the child had a history of self-harm and running away from the residence. The supervisor also said that a note was found and this note was taken as a suicide note. No medical treatment required for self-harm to her wrists; medical treatment provided to cuts on her legs but the child was released from the hospital. The CFSRB held that the evidence provided did not meet the statutory requirement for the admission. Namely, the CFSRB held,  

At para 21: The description presented by the Supervisor and the admitting psychiatrist did not demonstrate that the Child had a substantial disorder of thought, emotion or cognition which grossly impaired her capacity to make reasoned judgments at the time of her admission to the Unit as required under the Act.

LSO, Employment Insurance Commission and MPAC

Law Society of Ontario v. Bogue, 2019 ONLSTA 19

This is an appeal from an interlocutory suspension and five related interlocutory orders. The LSO suspended the lawyer’s license after the LSO held, “That there is evidence … to suggest that Mr. Bogue is using litigation techniques that could harm the administration of justice and cause cost and delay to his clients and others.” (Source.) Mr. Bogue requested relief from the transcript requirements and several orders requesting the LSO pay for certain transcripts from other related hearings and an order that someone other than the chair select the appeal panel, among other things. Mr. Bogue made other arguments relating to jurisdiction and in sum, argued that the LSO has no jurisdiction to “regulate his conduct as an Indigenous lawyer.” The tribunal who determined Mr. Bogue’s interlocutory suspension held that the evidence “raised very serious concerns that he lacks competence and/or the capacity to practice law.” Relying on these holdings, Mr. Bogue requested that the LSO pay for the transcripts, which was denied. Motion dismissed.

L. N. v Canada Employment Insurance Commission, 2018 SST 1066

This is an appeal from the Employment Insurance Commission. The appellant stopped working for medical reasons in July 2017. The appellant claimed she was covered by a sickness indemnity plan with her employer. The appellant received $350 under her collective agreement for the first seven days to compensate for the EI’s benefit program one-week waiting period under this plan. The Commission determined that the amount paid to the appellant was earnings as defined in the Employment Insurance Act. The appellant argues the $350 constituted an advance from the employer which she repaid and that it must be considered a loan. The appellant repaid the employer because the employer paid the appellant directly as opposed to the insurer. If the employer sent money to the insurer, the appellant would effectively receive double-payment and hence, the appellant repaid the employer. The advance the employer paid was replaced by the insurer’s coverage, which constituted earnings. The tribunal held that employment insurance regulations clearly state that group wage-loss indemnity plans are earnings and confirmed short-term benefits under group insurance are considered income. The commission allocated the earnings correctly.

Morellato v Municipal Property Assessment Corporation, Region No. 32, 2019 CanLII 89274 (ON ARB)

Appellants seek to obtain costs in respect of the original decision, an appeal from an annual assessment in land owned by the appellants. The appellants argue that MPAC engaged in frivolous, vexatious and unreasonable conduct, and also acted in bad faith in its dealings with the appellants. MPAC disagrees and says all actions were carried out in good faith. The appellant grounds include disagreement with characterization of their land as residential and the length of the appeal. The original decision held that such was a result of the appellant’s behaviour and was a difference of opinion. The original decision held that a difference of opinion “is not the same as unacceptable behaviours as set out in the Board’s Rules and the SPPA” (which states that costs are awarded in conduct that are alleged “to be unreasonable, frivolous, vexatious or in bad faith”). The tribunal agreed and the motion was denied, with no costs.

The Winning Combination Inc. v. Canada (Attorney General), 2019 FC 1014

Application for judicial review dismissed on basis of prematurity. There is a long-standing regulatory relationship between the Applicant and Respondent, as well as a history of judicial review. On previous decisions, the Applicant was awarded costs on a solicitor-client basis as a result of Health Canada’s conduct. That matter was sent back for redetermination. Following these previous decisions, Health Canada advised the Applicant in a letter that the scope of redetermination would be limited to whether the Applicant was a natural health product, namely whether a specific ingredient fell within Schedule 1 of the regulations under the act in question. Health Canada said it would rely on laboratory testing, among other things, to make its decision. The Applicant alleges Health Canada does not have the authority to include laboratory testing in its redetermination; a reasonable apprehension of bias arose out of Health Canada’s conduct in its decision to rely on laboratory testing; Health Canada is acting for an improper purpose (namely, in response to the previous cost decisions); and Health Canada created a legitimate expectation in that it would follow standard procedures established by Health Canada in establishing its redetermination (gathering own evidence in the form of a lab testing goes against this legitimate expectation).

The court asked for more information whether this notice of redetermination is a reviewable decision under the Federal Courts Act and whether the application was premature. Ultimately, the court agreed the application was premature.

In addition, the court also held that the notice of redetermination did not constitute “exceptional circumstances” warranting judicial intervention at an early stage. The court expressed concern over the number of times the Applicant could challenge Health Canada’s decisions regarding Health Canada’s process. This persuaded the court to prevent “piecemeal” court proceedings. The court further stated its reasons were without prejudice to the Application raising same arguments on any future application for judicial review.

Grandjambe Jr. v. Canada (Parks), 2019 FC 1023

Note: The citation spells the Applicant’s name incorrectly. I use the correct spelling in this citation; the citation is cited as Grandjamb v Canada (Parks).

This is an application for judicial review of the decision of the superintendent of Buffalo National Park refusing the Applicant’s application seeking a permit to construct a harvesting cabin within Wood Buffalo National Park. It was brought on behalf of the Applicant, Robert Grandjambe Jr., and members of the Mikisew Cree Nation.

Briefly, the Applicant sought to build a harvesting cabin in Treaty 8 territory. The Superintendent refused the permit to build the cabin. The Applicant, prior to this decision, requested an update sometime on the application and offered to assist in answering questions, providing clarification or consulting with other affected Indigenous groups. The Applicant also stated if he was not to be consulted similar to other affected Indigenous groups, then he would expect that the Superintendent would share the details of those consultation and provide the opportunity to respond. The Superintendent, by way of email, agreed to provide a timeline and responses from affected groups once reviewed. The Applicant sent two follow-up letters.

The court addressed three issues with a standard of reasonableness applying to the decision itself. The issues include:

  • Was the decision to refuse the permit reasonable?
  • Was there a breach of procedural fairness?
  • Is judicial review the appropriate venue to consider whether the decision infringed the Applicant’s treaty rights and if so, whether those rights were infringed?

On the first issue, the court held that the decision was reasonable and not made in a manner inconsistent with the honour of the Crown. The Court also held the Superintendent did not fetter his discretion, did not ignore evidence or failed to provide adequate reasons.

On the second issue, the court held that there is a high degree of procedural fairness given decision involves constitutionally protected Indigenous rights and traditional knowledge. The Applicants had a legitimate expectation that the Superintendent would share details about consultations with other parties, namely First Nations and that the Applicant would have a chance to respond to the information considered by the Superintendent. The court held that the Superintendent’s conduct fell below required minimum standard of procedural fairness that was applicable and promised. The decision-maker stated that he would share the First Nations’ positions and that he would have an opportunity to respond. The Applicant, thus, had a legitimate expectation that a certain procedure would be followed. This procedure was not followed.

On the third issue, the court appropriately held that JR is not the appropriate venue to determine the rights infringement, and that the application granted based on breach of procedural fairness.

Law Society of Ontario v. Fathi, 2019 ONLSTH 112

This decision concerns several notices by the Law Society: marketing and advertising; referrals; responses to the Law Society; and uncivil behaviour. The parties submitted an agreed statement of facts and submissions. The tribunal made a finding of professional misconduct.

Rules 8.02 and 8.03 of the Paralegal Rules of Conduct (generally, the marketing and advertising rules).

The Law Society received information about potentially improper public advertisements and social media marketing on various social media platforms and websites. The advertisements contained the following violations:

  • “advertising himself as a law firm or made up of lawyers, and inviting the public to contact him when they need the services of a lawyer;
  • broadly claiming that he provided legal services in various areas of law, much of which was outside the scope of practice of a paralegal (for example, personal injury law and criminal law);
  • asserting specialization, which is confusing because only lawyers can be certified specialists;
  • failing to identify himself as a paralegal;
  • claiming qualitative superiority over other licensees (“best law firm in Toronto,” “best personal injury lawyers”); and
  • guaranteeing results with phrases such as “MAX SETTLEMENT” and “#maximumbenefits” without providing a caution that past success does not guarantee future success.”

The paralegal has since removed or amended the improper advertising and marketing.

On referrals, the tribunal held that the paralegal did not act with integrity by misleading a fellow licensee. Particularly, the paralegal asserted a client referral and claimed an entitlement to a referral fee.

In the interviews with the Law Society, the paralegal made several untrue statements.

On the uncivil behaviour, the paralegal communicated with insurance company representatives in a manner that uncivil, abusive and offensive or otherwise inconsistent with the proper tone of professional communications by a paralegal. The tribunal also held that by imputing racist motives to the representatives without evidence, the paralegal failed to act with integrity and good faith.

The tribunal suspended the paralegal’s license for 45 days with a cost award for the Applicant.

College of Dental Hygienists, Registrar of Motor Vehicles and Ontario Nurses Association

Ontario (College of Dental Hygienists of Ontario) v O’Donnell, 2019 ONCDHO 3

Straight forward case that reminds me of all the times I completed assignments in law school where I attested to complete on my own (and which I did). The case involves a registered dental hygienist who acknowledged that as part of her understanding of a quality assurance (QA) exam. She did not complete it on her own. This constitutes a false or misleading statement, among other things. As a result, this constitutes misconduct under Regulated Health Professions Act.

11945 v Registrar of Motor Vehicles, 2019 ONLAT HTRA MED

A case where an older gentleman experienced a series of unfortunate events that led to his case. The case involves a 45-year-old process engineer who has a history of drinking. Physicians and other health care practitioners are required to report any person who is suffering from a prescribed condition which may make it dangerous for the person to drive. On one particular evening, he was taken to the emergency room by the police. Prior to the police arriving, he started drinking after a tow truck driver pulled up beside him, accusing him of having hit a car. The situation escalated. He felt the tow truck driver was trying to scam him and he found the situation frightening. After losing the tow truck driver, he went home, called 911 and started drinking. The police arrived two hours later. In the ER, the doctor indicated that appellant suffers from a mental health condition. He was held for a period of three days as a result of this ER visit. He did not have mental health issues. He testified that he was never diagnosed with a mental health condition, and never prescribed any medication of any kind. The appellant’s family physician completed a medical assessment form and indicated that the appellant suffered from moderate substance use disorder. The panel accepted the appellant’s testimony, namely that he did not, for the most part, drink and drive, among other things, and concluded that the disorder would not significantly interfere with his ability to drive a motor vehicle safely.

Ontario Nurses’ Association v Cambridge Memorial Hospital, 2019 ONSC 3951

This is an application for judicial review by the Ontario Nurses Association seeking to quash and set aside the labour arbitration decision. The respondent, the Hospital, terminated employment of a nurse after she misappropriated narcotics. The nurse filed a grievance against the hospital alleging her termination was contrary to Ontario human rights codes and without just cause. The court granted the application after finding that the arbitrator’s awards was neither transparent nor intelligible, two fundamental requirements of reasonableness. The standard of review was reasonableness and the court held that the unreasonableness in the arbitrator’s award was due to the fact that the arbitrator applied the wrong test. The hospital agreed that the test relied on was no longer good law. The arbitrator also held that the nurse would have not engaged in the misconduct but for her addiction, which the hospital attempted to argue this was not the arbitrator’s finding. The court did not agree and referred to several “but for” references throughout the award. Court set aside award and remit grievance to new mutually agreeable arbitrator.  

Reasonable apprehension of bias, @CaringSociety and definition of “First Nations child”, and the Judicial Council

Update: I recently started my own practice and I will be scaling back the weekly posts to monthly posts. I expect this to increase the consistency in sharing administrative law cases. I hope you can continue to enjoy the twitter account here and say hello to the @IndigiBot! You can contact me directly here. You can subscribe here.

Children’s Aid Society of Oxford County v. E.M.T., 2019 ONCJ 427

This is a motion brought during trial for an order that the judge recuse himself as presiding judge by the respondent (MAR). MAR argued that the court’s intervention into examination of the Society’s worker and subsequently, replying on her answers in his ruling created a reasonable apprehension of bias (“RAB”). The test for RAB is whether “the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case” (para 23). The case highlights that RAB also affirms that the reasonable person must be an informed person and “should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community” (para 23). The case held that while a judge should not intervene in counsel’s presentation of the evidence, cases involving children or a child’s best interests, a trial judge can play a more active role than in ordinary civil litigation (paras 28-28). The judge relied on case law and legislation to hold that a judge can take a more active role. The judge held that his intervention, from the reasonable person, was not excessive, did not convey partiality or suggest prejudgment, and counsel did not intervene (para 42), among other things. The judge dismissed the motion.

First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2019 CHRT 7

This is an order to clarify the definition of “First Nations child” by the applicant, First Nations Child & Family Caring Society of Canada. Specifically, the applicant makes a motion for further relief to ensure that the Tribunal’s orders (four in total) are effective especially on the definition of “First Nations child”. The basis for this request is a case where the applicant intervened to pay for medical transportation for a young First Nations’ child without Indian Act status who required a medical diagnostic service to address a life-threatening condition. Canada would not pay due to the child’s status. The matter was resolved but the applicant’s highlighted the case as an example. The Tribunal ordered that Canada shall provide such children living off-reserve who have urgent and/or life-threatening needs but not have (and are not eligible for) Indian Act status with the services required to meet those urgent and/or life-threatening service needs pursuant to Jordan’s Principle.

Canada (Judicial Council) v. Girouard, 2019 FCA 148

This is an application for judicial review by the Judicial Council. The application sought to have a federal court judgment that dismissed the Council’s motions to strike the applications for judicial review filed by the Hon. Justice Michel Girouard (Justice Girouard). The federal court judgment subject of the application held that Council’s investigative powers do not derive from the Constitution (they come from the Judges Act), and such powers belong to the Council as an institution, not to the chief justices individually, among other things. The standard of review is a standard of correctness. The Court of Appeal agreed with Justice Girouard in that if the Council did have judicial powers (similar to that of superior courts), Parliament would not have conferred on them, the powers and immunities enjoyed by superior courts (para 55). Further, not all of its members are superior court judges within the meaning of the Constitution (para 78). The Court of Appeal agreed that the Judges Act has a “limited scope” and does not grant Council “attributes of a superior court” (para 96). The Court of Appeal dismissed the application.

#IndigiBot: LSO v Findlay, Peddle v Halifax Employers Association & Ewert v Canada (AG)

Law Society of Ontario v. Findlay2019 ONLSTH 70 

This is a decision revoking the licence to practice law of the lawyer, Mr. Findlay, effective immediately. Mr. Findlay was legal counsel for plaintiffs in a class action in 2016 against several parties, including the OPP and Ontario government, was settled for $20 million. Mr. Findlay received a cheque in that amount and was to retain $1.5 million in a trust until distribution of funds. The amount grew because of investments and the court ordered the amount to be held in reserve for over $2 million. The court approved fees for class counsel of 15% and about $3.4 million was moved from the trust to Mr. Findlay for fees and disbursements. He notified the Law Society in 2017 that he had used the funds and was unable to replenish the funds. The Law Society commenced an investigation and proved that the money had bene stolen. Mr. Findlay admitted he used the funds for his own benefit between March 2012 and October 2014. The decision held that Mr. Findlay breached court order, misled the court, misled the counsel for the AG of Ontario, and misled the Law Society. The decision outlines that there is a presumptive penalty of revocation for knowing participation in fraud or misappropriation; exceptional circumstances must exist to justify departure from the penalty. Mr. Findlay had done this before and his was suspended from practice for two years. He was ordered to pay $1.75 million for the class action compensation fund and $51,500 for costs to the Law Society.  

Peddle v. Halifax Employers Association2019 FC 767  

Mr. Peddle sought judicial review of a decision of the Canadian Human Rights Commission, dismissing his complaint against the respondent. The application was dismissed. Mr. Peddle alleged in the original complaint that the respondent discriminated against him on the grounds of disability.  The commission appointed an investigator who reviewed the parties’ positions and interviewed Mr. Peddle. The investigator completed the investigation and recommend that the complaint be dismissed on the grounds that further inquiry was not warranted. The investigation found that Mr. Peddle had not demonstrated a reasonable basis to believe that the commission’s conduct was discriminatory on basis of colour or race or that someone no better qualified or more eligible but lacking Mr. Peddle’s characteristic based upon colour or race had obtained the employment opportunity. The investigator also concluded Mr. Peddle did not identify what accommodation was required in the interview; communicate to the commission a need for accommodation; and demonstrate that the commission should have known of a need for accommodation in the interview. The commission dismissed the complaint. The court held that the decision is reviewable on a standard of reasonableness. The court held that where the commission adopts the investigator’s recommendations and provides no reasons, or only brief reasons, the investigator’s report is deemed to constitute the commission’s reasons.  

Ewert v. Canada (Attorney General)2019 FC 733 

This is an application for judicial review by a prisoner for a series of decisions that impacted his time spent in prison and various requests to change institutional parole officer, access to information (broadly speaking), errors and inaccuracies in his documents prepared for a hearing before the Parole Board of Canada. He alleges several violations of procedural fairness. The court summarized the issues as:  

  • Was the final grievance decision in violation of the rules of procedural fairness?  
  • Is the final grievance decision reasonable?  

A standard of correctness is applied to questions of procedural fairness arising from offender grievance decisions. The merits of an inmate grievance; however, are reviewed on a standard of reasonableness, with high level of deference given to correctional service. The prisoner alleges bias. The prisoner alleges bias because the assistant commissioner had been involved in previous adversarial litigation and also upheld the final grievance being challenged in part. The time frame between the involvement between two proceedings (4 years), the overlap in testimony in both proceedings, and the prior knowledge in both proceedings gave rise to bias. The application was granted in part.  

#IndigiBot: Namgis First Nation v Canada (Fisheries & Oceans), X (Re), López v. Canada (Citizenship and Immigration)

Namgis First Nation v. Canada (Fisheries and Oceans)2019 FCA 149 (CanLII) 

This is a decision that outlines procedures and processes, namely around evidence, when appealing a decision by a decision-maker. It is a good read for general administrative principles. Briefly, the First Nation appellant desired additional evidence to be included in its appeal book. The court held that no evidence should be included (and will make a separate order with reasons).  

X (Re), 2018 CanLII 141797 (CA IRB) 

XXXX XXXX (“X”) claimed that if returned to Ukraine, his country of nationality, he will be persecuted as a homosexual. X’s claim for refugee protection was heard and rejected by the Refugee Protection Division (RPD). X appealed to the Refugee Appeal Division (RAD).  

At issue in X’s case was whether there was state protection available. You can learn more about this concept here but in sum, it is whether a Convention refugee “be unable, or by reason of his or her fear of persecution, unwilling to avail him or herself of the protection of the country of nationality (citizenship)”. The RPD held that state protection was available to X and that he did not avail himself of same. The RAD held that the RPD failed to consider several reports and other evidence provided to them, and that RPD did not take a nuanced approach to state protection. The standard of review is correctness, unless the RPD had advantage of oral testimony. In the end, the RAD held that “there is a serious possibility that the Appellant will be persecuted in Ukraine based on his sexual orientation”, among other things. The RAD set aside the RPD decision and allowed the appeal, finding X to be a Convention refugee.   

López v. Canada (Citizenship and Immigration), 2019 FC 349 (CanLII) 

The Applicant, Mr. López, sought judicial review of a visa officer’s decision to refuse his application for an exemption under humanitarian and compassionate grounds (“HC grounds”). The court allowed his application “since the visa officer did not reasonably weigh the relevant factors, in particular the best interests of Mr. López’s daughter” (para 1). Initially, Mr. López was denied for having a conviction which he disputed and sought to overturn in Columbia but was unsuccessful. Mr. López asked to be granted an exemption under HC grounds. The visa officer denied under HC grounds but the court held that the officer failed to properly consider HC grounds, namely the best interests of the child. The officer only relied on the criminal conviction as reasons to deny HC grounds and the court held that this was not reasonable. Specifically, the court held, quoting another decision, that “it is the interests of the child that must prevail, not the circumstances of the child’s birth”

#IndigiBot: the Cindy Gladue (R v Barton) appeal

The Supreme Court of Canada released its decision on R v Barton, or the Cindy Gladue case. You can view more here.  

The SCC held that the appeal should be allowed in part and a new trial on unlawful act manslaughter ordered with Wagner C.J. and Abella and Karakatsanis JJ. dissenting in part.

I wrote about this case originally here and here. You can view more writings here.  

This post first appeared on

My thoughts

The SCC released its decision on the R v Barton appeal or the Cindy Gladue appeal.

The SCC held that the appeal should be allowed in part and a new trial on unlawful act manslaughter ordered with Wagner C.J. and Abella and Karakatsanis JJ. dissenting in part.

There are three major concerns arising from this case that present issues for Indigenous women in the sex trade:

  1. It presumes that Indigenous women who trade and/or sell sex are doing work by referring to all acts of prostitution (a legal term) as sex work (a non-legal term), and this term, “sex work”, likely erases the complex reasons that women, namely Indigenous women, would likely sell or trade sex. This also erases instances of exploitation in a legal relationship. The dissent falls short on this point.
  2. It presumes that any sex trade worker who engages in sexual activity for trade/money consents to any activity in that relationship and thereby, likely erasing the ways sex trade workers negotiate consent in complex and/or dangerous scenarios. This presumes that only the stories of those who are found dead should be considered on an equal basis of the accused.
  3. It acknowledges that all players in the legal system, from defence counsel, to judges and particularly, crowns play a role in how Indigenous women, who are likely victims in the justice system, can be perceived by the justice system. This acknowledges how the law treats Indigenous women and namely, crowns, state actors, cannot rely on their own inaction (for example, not disputing jury instructions) at appeal.

On the first point, the decision refers to Cindy Gladue as a sex worker. I have continuously cautioned the (white) sex work movement to refrain from consistently referring to all people in the sex trade as sex workers. Not everyone who engages in selling/trading sex as work. We cannot know the reasons Cindy engaged in selling/trade sex. We can respect the fact that not everyone’s experience in the selling/trading sex is pleasant or welcomed, and we can recognize that for some, referring to selling/trading sex as sex work creates unpleasant/unwanted feelings/thoughts. It is not work for everyone. And, when we refer to Cindy as a sex worker, we assume that it was work for her. We cannot know this. Specifically, the sex work movement and its allies must recognize that when we refer to prostitution that it is merely a legal term. It means nothing more than to denote a relationship between two people and the complex web of laws that dictate that relationship. For non-sex workers, you can simply refer to Indigenous women in the sex trade as … Indigenous women with sex trade experience. Because, as the sex work movement continues to refuse to address this publicly, when they are calling for the decriminalization of sex work, the laws they are challenging confusingly focus on prostitution. The dissent falls short on this first point.

On the second point, the majority’s reasons on consent and mistake of law does not address how people in the sex trade negotiate consent when trade/money is involved. The reason’s state that Barton’s defence was a mistake in law, not a mistake in fact and the trial judge erred when failing to caution the jury on relying on these mistakes of law. Specifically, the majority held that the trial judge “ought to have clarified for the jury that in determining the ‘sexual activity in question’, they should look to the whole of the evidence, both direct and circumstantial, and they were not bound to accept Mr. Barton’s evidence simply because he was the only witness to the sexual activity in question who was alive to testify” (I have written something similar, here, here and here). This line assumes that only those sex trade workers who are found dead are worth listening too. Being able to survive should mean equal treatment under and before the law too.

On the third point, the majority rightly acknowledges that all players in the court room play an active role and refusing to act is just as problematic as acting in a prejudice, unfair or discriminatory manner. In particular, the majority writes, “the Crown was actively involved in drafting the jury charge” (para 150). The majority held that the court of appeal acted in an appropriate (but limited) manner to properly raise the after-the-fact conduct as a new issue.

In closing, the majority correctly directed judges to appropriately instruct juries when an Indigenous woman is the victim. However, sadly, the reasons do not interrogate the complex way Indigenous women interact with the justice system; they are sometimes “offenders”. This simplicity in victim/offender status has the potential to create more prejudicial and discriminatory views of Indigenous women in the justice system.

Only time will tell.

#IndigiBot: Access to Information, HRTO & College of Physicians and Surgeons of Ontario

Canada (Office of the Information Commissioner) v Canada (Prime Minister), 2019 FCA 95   

This involves two appeals from a decision in the federal court relating to an application for judicial review brought by the Information Commission of Canada against the Prime Minister of Canada. A reporter requested records held by the Privy Council Office relating to four senators. The federal court directed PCO to disclose records under the Access to Information Act. The issue, among others, was whether the court applied the correct standard of review in ordering the release of the records. The court of appeal held that the judge applied the appropriate standard, which is/was correctness. In its analysis, the court of appeal agreed that there were “conflicting decisions of this Court as to the appropriate standard of appellate review concerning the applicability of an exemption provision” (para 27). The court of appeal applied a framework established by the Supreme Court of Canada in Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, or the Agraira framework. The court of appeal held that while the Agraira framework was applied in an immigration context, there was nothing preventing the court of appeal from applying the framework in a different context.  

Johnson v Ontario Securities Commission, 2019 HRTO 775  

This is an interim decision from an administrative tribunal, the human rights tribunal.  The applicant filed a request to amend the application to include amendments to the narrative and to add details to the further alleged discrimination. She also requested an interim remedy. The respondent, the OSC, indicated it was prepared to consent to the request on the condition that the applicant’s counsel recuse herself and transfer the file to another counsel. The OSC alleged that the counsel would be in breach of Rule 5.2-1 of the LSO’s Rules of Professional Conduct if she were to continue to act as counsel. The request was allowed and held that the issue whether counsel was/is in conflict was/is not a factor. Further, the applicant’s request for interim remedy was denied.  

Ontario (College of Physicians and Surgeons of Ontario) v Noza, 2019 ONCPSD 19 

This is a decision of the Discipline Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario. The doctor entered a plea of no contest regarding the allegations against him. The allegations include failing to communicate he was going to conduct a vaginal examination, failing to obtain informed consent before proceeding with the examination, and failing to follow his usual practice, including ascertaining whether the patient wanted a chaperone in the room, among other things. The patient felt confused and upset by the conduct. The doctor had no prior history with the Committee and a joint submission was made by counsel for the doctor and counsel for the college. In determining the appropriateness of the penalty, the Committee emphasized the importance of protecting the public, deterrence and integrity of the profession and where applicable, rehabilitation of the member. The Committee accepted the joint submission.  

First Case, First Post

Hello friends!

Welcome to the IndigiBot. As seen elsewhere on this site, it is a simple concept about making case law more accessible by allowing two “apps” to communicate with each other. You can follow the IndigiBot on twitter, @IndigiBot.

For the first post, I thought to outline the area of law that the IndigiBot is currently tweeting, why I picked it and how I hope this space can grow, along with one case that may interest you.

The IndigiBot is currently tweeting out administrative law cases from Ontario and at the federal level. Some non-administrative law cases sneak in there but I have done my best to weed those out. Technology is a love/hate relationship.

The reason I choose administrative law was 1) that energy law was too limiting and 2) that I love administrative law! It’s really that simple. Also, I felt that administrative law is broad enough and applicable enough to your everyday life, even for non-lawyers, that you might enjoy administrative law one day too!

I hope that this space can grow into a resource for other people and help people interact with the law in a more helpful and accessible manner.


Here is one case that the IndigiBot tweeted this past week that may interest you: Canada v Bannister, 2019 CMAC 2.

Brief summary:

A military judge did not find a Captain’s language toward a young woman, who was also a cadet, as disgraceful, and prejudice of good order and discipline. The Captain asked the cadet to “fuck” on his desk and again, on a field trip. The military judge did not find the language as constituting disgraceful conduct or conduct to the prejudice good order and discipline. The Court Martial Appeals Court of Canada found that the military judge erred in his finding, applying a standard of correctness. Particularly, the Court examined whether the military judge was entitled to use his military experience and general service knowledge, including whether that constituted judicial notice. The Court held, among other things, that the military judge conflated the two. The Court set aside the decision of the first military judge and directed a new trial to take place before a different military judge.