In Ahousaht Indian Band and Nation v. Canada, the British Columbia Court of Appeal considered whether an award of special costs to the respondent First Nations groups was justified in a case concerning the adjudication of their Aboriginal rights over commercial fisheries. Reasoning that the case did not raise sufficiently exceptional matters of public importance and that the litigation was, at least indirectly, in the respondents' economic interest to pursue, the Court held that special costs were not justified.
The underlying case concerned the aboriginal rights of the respondent First Nations groups to commercially fish for any species of fish within certain territories. At trial, the respondents won a declaratory judgment as to the existence of those rights. They were awarded costs, and also special costs because of the public significance of the constitutional litigation they had undertaken. Canada appealed the award of special costs.
The framework for the awarding of special costs in Victoria (City) v. Adams, 2009 BCCA 563, was the focus of the Court's analysis. Noting that it was not disputed by the parties that at least two of the four Adams factors (appellant's superior capacity to bear the costs, and the absence of abusive, vexatious or frivolous conduct) weighed in favour of special costs, the Court proceeded to analyze the remaining two factors: whether "The case involves matters of public importance that transcend the immediate interests of the named parties, and which have not been previously resolved," and whether "The successful party has no personal, proprietary or pecuniary interest in the outcome of the litigation that would justify the proceeding economically."
In regards to the "public importance" factor, the Court held that an award of special costs requires exceptional circumstances beyond merely being "difficult cases" that are of "general interest". The Court reasoned that such cases can already give rise to elevated costs under the British Columbia Rules of Court s.2(3), and that an award of special costs must therefore require something more. In this case, while the proper resolution of aboriginal fishing claims was "significant," it was "questionable" whether the litigation established principles that may well be applicable to other aboriginal rights cases because the case did not "break novel ground in establishing legal principles". The Court reached this conclusion despite noting that the trial judge developed certain points of aboriginal law, including modifying the test for the existence of an aboriginal right from R. v. Van der Peet, [1996] 2 SCR 507, and reconciling into a single analysis the test for infringement of an aboriginal right from R. v. Sparrow, [1990] 1 SCR 107, and R. v. Gladstone, [1996] 2 SCR 723. Contrasting this case to an earlier case on Aboriginal fishing rights, Lax Kw'alaams Indian Band v. Canada (Attorney General), 2009 BCCA 593, the Court argued that the different outcome in this case was largely fact-driven, and that it did not rise to the exceptional level of public importance required for an award of special costs.
In regards to the "pecuniary interest" factor, the Court held that any pecuniary interest, whether direct or indirect, weighed against the awarding of special costs. Reasoning that the "pecuniary interest" factor derives from a concern that, in the absence of funding, an issue of public interest will not be considered judicially, the Court held that the respondents in this case had an indirect but "significant" interest in seeking a right to fish commercially. In the Court's view, it was relevant, but not determinitive, that the matter had gone to trial in the absence of pro bono representation. The Court also noted that both the claim for aboriginal rights and the evidence concerning infringement concerned economic interests.
In concluding that special costs were not justified in this case, overturning the decision of the trial judge, the Court noted that there was "some force" to the notion "that an award of special costs in this case would open the door to such an award in all aboriginal rights cases."
October 31, 2011
Link to Decision
Mary Phan & Kai Sheffield
*
Monday, October 31, 2011
Thursday, October 27, 2011
Moldovan v. Republic Western Insurance Company, 2011 BCCA 418
In Moldovan v. Republic Western Insurance Company, the British Columbia Court of Appeal considered whether s.103 of Part 7 of the Insurance (Vehicle) Regulation, B.C. Regulation 447/83, is inapplicable to a foreign insurer. The court held that the provision applies to anyone who commences an action for Part 7 benefits, whether the insurer is out-of-province or not.
The provision in question provides that “No person shall commence an action in respect of benefits” under Part 7 unless the action is commenced within two years after the date of the accident for which the benefits are claimed or, where benefits have been paid, the date of the last such payment. The plaintiff, due to inadvertence on the part of his solicitors, failed to bring the claim within the two year period. The insurer refused benefits, relying on s.103, and the plaintiff sought to have the insurer added as a defendant in the action pursuant to R. 15(5)(a) of the Supreme Court Rules, which permits the court to add a person as a party when it would be “just and convenient.” The master of the Supreme Court rejected the plaintiff’s application because he failed to bring the action within the limitation provided by s.103. The chambers judge held that s.103 didn’t apply and ordered the insurer to be added as a defendant.
The Court of Appeal upheld the decision, although on different grounds. Newbury, J.A. rejected the plaintiff's argument that foreign insurers' reliance on the "Power of Attorney and Undertaking System," an interprovincial system of contracts between insurers that allows insurers to respond to claims in respect of extra-territorial accidents, operated outside of British Columbia's statutory vehicle insurance regime. Noting that s.103 is not phrased as an obligation of the insurer, nor as a contractual term that must be incorporated by agreement before it will operate, but rather as a regulation applying to "any person who commences an action," Newbury, J.A. reasoned that the provision's application was universal. While s.103 would therefore be available to the insurer in defence of the plaintiff’s claim, the court held that s.4(1)(d) of the Limitation Act effectively removes the limitation defence where the rule is invoked, and dismissed the appeal.
October 27, 2011
Link to Decision
Fidelia Ho
*
The provision in question provides that “No person shall commence an action in respect of benefits” under Part 7 unless the action is commenced within two years after the date of the accident for which the benefits are claimed or, where benefits have been paid, the date of the last such payment. The plaintiff, due to inadvertence on the part of his solicitors, failed to bring the claim within the two year period. The insurer refused benefits, relying on s.103, and the plaintiff sought to have the insurer added as a defendant in the action pursuant to R. 15(5)(a) of the Supreme Court Rules, which permits the court to add a person as a party when it would be “just and convenient.” The master of the Supreme Court rejected the plaintiff’s application because he failed to bring the action within the limitation provided by s.103. The chambers judge held that s.103 didn’t apply and ordered the insurer to be added as a defendant.
The Court of Appeal upheld the decision, although on different grounds. Newbury, J.A. rejected the plaintiff's argument that foreign insurers' reliance on the "Power of Attorney and Undertaking System," an interprovincial system of contracts between insurers that allows insurers to respond to claims in respect of extra-territorial accidents, operated outside of British Columbia's statutory vehicle insurance regime. Noting that s.103 is not phrased as an obligation of the insurer, nor as a contractual term that must be incorporated by agreement before it will operate, but rather as a regulation applying to "any person who commences an action," Newbury, J.A. reasoned that the provision's application was universal. While s.103 would therefore be available to the insurer in defence of the plaintiff’s claim, the court held that s.4(1)(d) of the Limitation Act effectively removes the limitation defence where the rule is invoked, and dismissed the appeal.
October 27, 2011
Link to Decision
Fidelia Ho
*
Monday, October 24, 2011
Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc., 2011 SKCA 120
In Mosaic Potash Esterhazy Limited Partnership v. Potash Corporation of Saskatchewan Inc., Richards, J.A. clarified the law regarding the granting of interlocutory injunctions. He held that the proper approach to interlocutory injunction is flexible, and that the ultimate focus of the court must always be on the justice and equity of the situation at issue.
Potash Corporation of Saskatchewan ("PCS") was granted an interlocutory injunction against Mosaic Potash Esterhazy Limited ("Mosaic") that prevented Mosaic from discontinuing potash shipments to PCS. Mosaic contested the injunction claiming that the trial judge used an improper approach. Richards, J.A. reviewed Metropolitan Stores Ltd. v. Manitoba (Attorney General), the governing 1987 Supreme Court of Canada case on this point, in order to determine how the three tests or considerations identified in that case - strength of the case, the possibility of irreparable harm and the balance of convenience - operate in relation to one another. Richards, J.A. clarified that these three considerations are "not usefully seen as an inflexible straightjacket", but rather as providing a framework of interconnected tests in which justice and equity remain the Court's "ultimate focus".
Richards, J.A. proceeded to elaborate upon the proper approach to be taken in such cases. "Strength of the case" is a threshold issue in which the plaintiff must generally demonstrate that there is a serious issue to be tried. This general rule includes applications for mandatory relief. "Irreparable harm" is best seen as an aspect of the "balance of convenience." The standard of proof for irreparable harm is "meaningful doubt" as to the adequacy of damages. The "balance of convenience" consideration is usually at the core of the analysis and includes a range of equitable and other considerations. Richards, J.A. stressed that each aspect of this test is flexible and that the "overall equities and justice of the situation at hand" are the ultimate focus of the analysis.
October 24, 2011
Link to Decision
Kaitlind de Jong & Kai Sheffield
*
Potash Corporation of Saskatchewan ("PCS") was granted an interlocutory injunction against Mosaic Potash Esterhazy Limited ("Mosaic") that prevented Mosaic from discontinuing potash shipments to PCS. Mosaic contested the injunction claiming that the trial judge used an improper approach. Richards, J.A. reviewed Metropolitan Stores Ltd. v. Manitoba (Attorney General), the governing 1987 Supreme Court of Canada case on this point, in order to determine how the three tests or considerations identified in that case - strength of the case, the possibility of irreparable harm and the balance of convenience - operate in relation to one another. Richards, J.A. clarified that these three considerations are "not usefully seen as an inflexible straightjacket", but rather as providing a framework of interconnected tests in which justice and equity remain the Court's "ultimate focus".
Richards, J.A. proceeded to elaborate upon the proper approach to be taken in such cases. "Strength of the case" is a threshold issue in which the plaintiff must generally demonstrate that there is a serious issue to be tried. This general rule includes applications for mandatory relief. "Irreparable harm" is best seen as an aspect of the "balance of convenience." The standard of proof for irreparable harm is "meaningful doubt" as to the adequacy of damages. The "balance of convenience" consideration is usually at the core of the analysis and includes a range of equitable and other considerations. Richards, J.A. stressed that each aspect of this test is flexible and that the "overall equities and justice of the situation at hand" are the ultimate focus of the analysis.
October 24, 2011
Link to Decision
Kaitlind de Jong & Kai Sheffield
*
Tuesday, October 18, 2011
Red Seal Vacations Inc. v. Alves, 2011 SKCA 117
In Red Seal Vacations Inc. v. Alves, the Saskatchewan Court of Appeal held that it is not necessary for the representative plaintiff to have a cause of action against each defendant in order to certify a class action proceeding. Justice Caldwell held that a defendant in a multi-defendant class action cannot have the claim struck under Rule 173(a) of The Queen’s Bench Rules simply because there is no named party plaintiff with a claim against the defendant.
Red Seal, the defendant, contended that Ontario’s position on this issue should be followed. They submit that Ragoonanan Estate v. Imperial Tobacco Canada Ltd. (2000), 51 O.R. (3d) 603 (Ont. Sup. Ct.) stands for the authority that for every named defendant in a proposed class action, there must be a party plaintiff with a cause of action against the defendant. However, the Saskatchewan Court of Appeal supported the position taken by the British Columbia Court of Appeal. According to Justice Caldwell, it is not “plain and obvious” that the claim against Red Seal cannot be certified because the statement of claim does not include a named plaintiff with a cause of action against Red Seal. An issue like this does not start as an “ordinary” action, but has special character from the beginning. Thus, it is not a pre-condition of certification that the representative plaintiff has a reasonable cause of action against each defendant. The Court of Appeal also rejected the policy argument that this will open the door for abuse by noting that class proceedings advanced on behalf of a class that does not exist will be prevented from being certified. Further, the costs that are awarded when a party engages in vexatious and frivolous lawsuits by unjustifiably naming defendants will serve as a deterrent against such behaviour.
October 18, 2011
Link to Decision
Kelly Ng
*
Red Seal, the defendant, contended that Ontario’s position on this issue should be followed. They submit that Ragoonanan Estate v. Imperial Tobacco Canada Ltd. (2000), 51 O.R. (3d) 603 (Ont. Sup. Ct.) stands for the authority that for every named defendant in a proposed class action, there must be a party plaintiff with a cause of action against the defendant. However, the Saskatchewan Court of Appeal supported the position taken by the British Columbia Court of Appeal. According to Justice Caldwell, it is not “plain and obvious” that the claim against Red Seal cannot be certified because the statement of claim does not include a named plaintiff with a cause of action against Red Seal. An issue like this does not start as an “ordinary” action, but has special character from the beginning. Thus, it is not a pre-condition of certification that the representative plaintiff has a reasonable cause of action against each defendant. The Court of Appeal also rejected the policy argument that this will open the door for abuse by noting that class proceedings advanced on behalf of a class that does not exist will be prevented from being certified. Further, the costs that are awarded when a party engages in vexatious and frivolous lawsuits by unjustifiably naming defendants will serve as a deterrent against such behaviour.
October 18, 2011
Link to Decision
Kelly Ng
*
Canada (Public Safety and Emergency Preparedness) v. Shpati, 2011 FCA 286
In Canada (Public Safety and Emergency Preparedness) v. Shpati, the Federal Court of Appeal considered the question of whether removal from Canada should be deferred for a refugee claimant who has a pending judicial review of a negative pre-removal risk assessment ("PRRA"). The claimant submitted that if they were removed, their right to have a negative PRRA judicially reviewed would be rendered moot.
The Federal Court of Appeal found that, should removal be deferred for these reasons, it would amount to an automatic stay where a refugee claimant applies for a judicial review of a negative PRRA. Since the Immigration and Refugee Protection Act, S.C. 2001, c. 27 already prescribes a number of circumstances where an automatic stay would be applied, interpreting otherwise would be contrary to the statutory scheme. Furthermore, the potential mootness of the judicial review does not necessarily constitute irreparable harm under the tripartite test described by El Ouardi v. Canada (Solicitor General), 2005 FCA 42 and Palka v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 165. Since the mootness of the action does not constitute irreparable harm, there is no reason why enforcement officers should be legally obligated to consider it when determining a request for deferral of removal.
October 18, 2011
Link to Decision
Mary Phan
*
The Federal Court of Appeal found that, should removal be deferred for these reasons, it would amount to an automatic stay where a refugee claimant applies for a judicial review of a negative PRRA. Since the Immigration and Refugee Protection Act, S.C. 2001, c. 27 already prescribes a number of circumstances where an automatic stay would be applied, interpreting otherwise would be contrary to the statutory scheme. Furthermore, the potential mootness of the judicial review does not necessarily constitute irreparable harm under the tripartite test described by El Ouardi v. Canada (Solicitor General), 2005 FCA 42 and Palka v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 165. Since the mootness of the action does not constitute irreparable harm, there is no reason why enforcement officers should be legally obligated to consider it when determining a request for deferral of removal.
October 18, 2011
Link to Decision
Mary Phan
*
Friday, October 7, 2011
Smith v. Inco Limited, 2011 ONCA 628
In Smith v. INCO Limited, the Ontario Court of Appeal held that nickel particles released by Inco's operations and deposited in the plaintiffs' lands that raised unproven concerns about potential health risks did not constitute actionable private nuisance, despite the potential for diminuation of property values. The Court, writing per curiam, also clarified the operation of Rylands v. Fletcher in Ontario, finding that there is no independent common law rule of strict liability for extra-hazardous activities, and holding that, for the purposes of the Rylands tort, a nickel refinery is not a "non-natural use of land." Lastly, the Court clarified, in dicta, the other elements of the Rylands tort.
This class action was originally brought under Pearson v. Inco. The trial judge found that nickel emissions from the Inco plant had contaminated the plaintiffs' private properties, adversely affecting their value. Furthermore, Inco was held liable under private nuisance and also under the Rylands v. Fletcher strict liability rule.
The Court of Appeal reversed the trial courts ruling on both nuisance and Rylands v. Fletcher liability. To establish nuisance, the claimants had to show physical damage to their land caused by the nickel deposits. The Court held that without evidence the deposits had some detrimental effect on the land itself, rights associated with the use of the land, or the health and well-being of the occupants, the change in the chemical composition of the soil did not constitute physical damage. Public concerns about the nickel deposits that may have affected the plaintiffs' property values did not by themselves amount to actual, substantial, physical damage.
In regards to liability under Rylands v. Fletcher, the Court first clarified the juridical basis for the Rylands rule, holding that it does not arise from any broader rule of strict liability for those whose activities are extra hazardous. The Court then found that there was no liability under Rylands because the claim did not meet the "non-natural use" element of the tort; a nickel refinery that uses nickel brought in from off-site was not a "non-natural use," the Court reasoned, because it was an "ordinary or usual" use for land in a heavily industrialized part of the city. The Court stated that this was consistent with the "user appropriate" approach outlined in Tock v. St. John’s Metropolitan Area Board, a 1989 Supreme Court of Canada case.
In dicta, the Court clarified the other elements of the Rylands tort, suggesting that foreseeability by the tortfeasor of the kind of damages suffered may be an element of the tort, and also that, while the tort applies to the repeated and cumulative effects of multiple "escapes," it may not apply to "escapes" that are the intended result of the activity undertaken by the defendant.
October 7, 2011
Link to Decision
Diego Beltran, George Pakozdi & Kai Sheffield
*
This class action was originally brought under Pearson v. Inco. The trial judge found that nickel emissions from the Inco plant had contaminated the plaintiffs' private properties, adversely affecting their value. Furthermore, Inco was held liable under private nuisance and also under the Rylands v. Fletcher strict liability rule.
The Court of Appeal reversed the trial courts ruling on both nuisance and Rylands v. Fletcher liability. To establish nuisance, the claimants had to show physical damage to their land caused by the nickel deposits. The Court held that without evidence the deposits had some detrimental effect on the land itself, rights associated with the use of the land, or the health and well-being of the occupants, the change in the chemical composition of the soil did not constitute physical damage. Public concerns about the nickel deposits that may have affected the plaintiffs' property values did not by themselves amount to actual, substantial, physical damage.
In regards to liability under Rylands v. Fletcher, the Court first clarified the juridical basis for the Rylands rule, holding that it does not arise from any broader rule of strict liability for those whose activities are extra hazardous. The Court then found that there was no liability under Rylands because the claim did not meet the "non-natural use" element of the tort; a nickel refinery that uses nickel brought in from off-site was not a "non-natural use," the Court reasoned, because it was an "ordinary or usual" use for land in a heavily industrialized part of the city. The Court stated that this was consistent with the "user appropriate" approach outlined in Tock v. St. John’s Metropolitan Area Board, a 1989 Supreme Court of Canada case.
In dicta, the Court clarified the other elements of the Rylands tort, suggesting that foreseeability by the tortfeasor of the kind of damages suffered may be an element of the tort, and also that, while the tort applies to the repeated and cumulative effects of multiple "escapes," it may not apply to "escapes" that are the intended result of the activity undertaken by the defendant.
October 7, 2011
Link to Decision
Diego Beltran, George Pakozdi & Kai Sheffield
*
Wednesday, October 5, 2011
Canadian Broadcasting Corporation v. Ontario, 2011 ONCA 624
This case explicitly addresses question of the jurisdiction of appeals regarding orders granting or denying access to exhibits after the criminal matters in which the exhibits were filed were completed. In it, the Ontario Court of Appeal held that the characterization of the proceedings are civil in nature and not criminal. Therefore, appeals of this type may go through the intermediate court of appeal rather than directly to the Supreme Court of Canada as per s. 40(1) of the Supreme Court Act.
Doherty, J.A. reasoned that because the criminal proceedings were fully and finally disposed of, there was no reason to characterize an application to obtain access to exhibits submitted in the criminal proceedings as a criminal matter. The proceedings were therefore civil in nature.
Furthermore, Doherty, J.A. reasoned that characterization of the proceedings as civil had a functional benefit by providing the right to appeal to an intermediate court of appeal, as opposed to the requirment of seeking leave to appeal to the Supreme Court of Canada that exists for criminal proceedings. Justice Doherty also noted that intermediate courts of appeal play a meaningful role in the resolution of individual cases and the development of a coherent and effective jurisprudence. Therefore, characterizing the proceeding as civil also enhances the effectiveness of the administration of justice.
October 5, 2011
Link to Decision
David Hoang
*
Doherty, J.A. reasoned that because the criminal proceedings were fully and finally disposed of, there was no reason to characterize an application to obtain access to exhibits submitted in the criminal proceedings as a criminal matter. The proceedings were therefore civil in nature.
Furthermore, Doherty, J.A. reasoned that characterization of the proceedings as civil had a functional benefit by providing the right to appeal to an intermediate court of appeal, as opposed to the requirment of seeking leave to appeal to the Supreme Court of Canada that exists for criminal proceedings. Justice Doherty also noted that intermediate courts of appeal play a meaningful role in the resolution of individual cases and the development of a coherent and effective jurisprudence. Therefore, characterizing the proceeding as civil also enhances the effectiveness of the administration of justice.
October 5, 2011
Link to Decision
David Hoang
*
Tuesday, October 4, 2011
Town of Gander v. Gander International, 2011 NLCA 65
The Supreme Court of Newfoundland and Labrador Court of Appeal held that s.17 of the Assessment Act, RSNL 1990, c. C-44 [the “Act”], required the municipal assessor to take into account the special lease restrictions imposed on the Gander International Airport Authority [the “Authority”] when assessing the Gander International Airport [the “Airport”] for taxation purposes. Section 17(1) of the Act mandates an assessor to assess property at its fair market value.
Justice Welsh first dealt with a gap in s.44(2) of the Act, holding that a review of the assessment review commission’s decision should “proceed by way of inquiry into the matter anew,” rather than by way of judicial review of the commission’s decision [9]. The Authority leased the Airport from the federal government in 2001. The lease contains severe lease restrictions, requiring the Authority to operate an airport that, in 2001, “was not financially or economically viable”. Where the Crown leases property to a tenant, s.13 of the Act requires the property to be assessed as if the tenant were the owner. This, according to the majority, meant that the lease restrictions must be accounted for when determining “fair market value” under s.17. The court went on to hold that the proper approach to determining fair market value is to first identify the market, even if it is a hypothetical one, and then to consider the proper method of valuation. In identifying the market for a public amenity under strict restrictions, the court held that in addition to the lease restrictions, the fact that public utilities are often exempt from taxation, due to their social utility and limited revenue generating abilities, should be taken into consideration. Ultimately, the court held that where no alternate use is possible, a willing buyer in an open market would not offer more than a nominal amount.
Dissenting, Justice Barry cautions that the majority decision “risks creating doubt regarding the established approach to valuation for assessment purposes, which recognizes that a tenant’s interest must be valued as though the tenant were the owner.” Accordingly, the land in this case should have been valued, “not as a mere interest under a restrictive ground lease but as an interest in fee simple”. The government is entitled to take possession of the property in the event that the Authority defaults. In this situation, the property would have value to a subsequent entity mandated to operate a major international airport at Gander. Therefore, the hypothetical market, though limited, exists. Furthermore, Justice Barry felt that the obligation to continue the operation of an airport distinguished this case from the public amenity cases.
October 4, 2011
Link to Decision
Steve Holinski & Katerina Svozilkova
*
Justice Welsh first dealt with a gap in s.44(2) of the Act, holding that a review of the assessment review commission’s decision should “proceed by way of inquiry into the matter anew,” rather than by way of judicial review of the commission’s decision [9]. The Authority leased the Airport from the federal government in 2001. The lease contains severe lease restrictions, requiring the Authority to operate an airport that, in 2001, “was not financially or economically viable”. Where the Crown leases property to a tenant, s.13 of the Act requires the property to be assessed as if the tenant were the owner. This, according to the majority, meant that the lease restrictions must be accounted for when determining “fair market value” under s.17. The court went on to hold that the proper approach to determining fair market value is to first identify the market, even if it is a hypothetical one, and then to consider the proper method of valuation. In identifying the market for a public amenity under strict restrictions, the court held that in addition to the lease restrictions, the fact that public utilities are often exempt from taxation, due to their social utility and limited revenue generating abilities, should be taken into consideration. Ultimately, the court held that where no alternate use is possible, a willing buyer in an open market would not offer more than a nominal amount.
Dissenting, Justice Barry cautions that the majority decision “risks creating doubt regarding the established approach to valuation for assessment purposes, which recognizes that a tenant’s interest must be valued as though the tenant were the owner.” Accordingly, the land in this case should have been valued, “not as a mere interest under a restrictive ground lease but as an interest in fee simple”. The government is entitled to take possession of the property in the event that the Authority defaults. In this situation, the property would have value to a subsequent entity mandated to operate a major international airport at Gander. Therefore, the hypothetical market, though limited, exists. Furthermore, Justice Barry felt that the obligation to continue the operation of an airport distinguished this case from the public amenity cases.
October 4, 2011
Link to Decision
Steve Holinski & Katerina Svozilkova
*
Re Jennifer Hart, 2011 NLCA 64
In Re Jennifer Hart, the Newfoundland and Labrador Court of Appeal held that a defendant is not entitled to continuously postpone an appeal process for the substitution of counsel when there is nothing to suggest that their counsel did not act professionally. Nor does the possibility that the appellant may not be mentally fit to conduct his appeal mandate that the appeal come to a halt.
In the case, the court examined whether the appellant’s wife could be appointed his guardian ad litem during his appeal of murder conviction. Although he was represented by counsel at his trial and at earlier stages of the appeal process, he dismissed his counsel who was appointed under s. 684 of the Criminal Code and has not sought to appoint other counsel or to request the Court’s further assistance in appointing counsel. Justice Green decided that the application to appoint Mrs. Hart as guardian as litem should be dismissed.
Justice Green assumed, but did not decide, that the Court had jurisdiction to appoint a guardian ad litem in these circumstances, but he concluded that the interests of the public and Mr. Hart in having the appeal decided in a timely manner outweighed the interests of Mr. Hart in having oral advocacy on this appeal. In light of the fact that four and a half years had passed since a notice of appeal was filed on behalf of Mr. Hart, Justice Green held that the appointment of a guardian ad litem or an order to assess Mr. Hart’s mental condition would only delay the appeal even further. Moreover, the amicus curiae, who was appointed by the Court on Mr. Hart’s behalf, had filed an extensive brief of legal argument pertaining to Mr. Hart’s appeal and Ms. Rosellan Sullivan, who was selected by Mr. Hart to be his legal counsel, filed a comprehensive factum in support of Mr. Hart’s appeal before he dismissed her as his counsel. Justice Green further noted that much of the delay in processing the appeal had resulted from Mr. Hart’s lack of cooperation in identifying counsel to act for him and his unwillingness to participate in the proceedings or make his wishes known to the Court.
October 4, 2011
Link to Decision
Michael Murphy
*
In the case, the court examined whether the appellant’s wife could be appointed his guardian ad litem during his appeal of murder conviction. Although he was represented by counsel at his trial and at earlier stages of the appeal process, he dismissed his counsel who was appointed under s. 684 of the Criminal Code and has not sought to appoint other counsel or to request the Court’s further assistance in appointing counsel. Justice Green decided that the application to appoint Mrs. Hart as guardian as litem should be dismissed.
Justice Green assumed, but did not decide, that the Court had jurisdiction to appoint a guardian ad litem in these circumstances, but he concluded that the interests of the public and Mr. Hart in having the appeal decided in a timely manner outweighed the interests of Mr. Hart in having oral advocacy on this appeal. In light of the fact that four and a half years had passed since a notice of appeal was filed on behalf of Mr. Hart, Justice Green held that the appointment of a guardian ad litem or an order to assess Mr. Hart’s mental condition would only delay the appeal even further. Moreover, the amicus curiae, who was appointed by the Court on Mr. Hart’s behalf, had filed an extensive brief of legal argument pertaining to Mr. Hart’s appeal and Ms. Rosellan Sullivan, who was selected by Mr. Hart to be his legal counsel, filed a comprehensive factum in support of Mr. Hart’s appeal before he dismissed her as his counsel. Justice Green further noted that much of the delay in processing the appeal had resulted from Mr. Hart’s lack of cooperation in identifying counsel to act for him and his unwillingness to participate in the proceedings or make his wishes known to the Court.
October 4, 2011
Link to Decision
Michael Murphy
*
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