Tag: Law

I read this morning about what George W. Bush said about lawsuits and the need to cut back on awards being ordered in personal injury cases:

“The costs of frivolous lawsuits in some cases make it prohibitively expensive for a small business to stay in business or for a doctor to practice medicine, in which case it means the health care costs of a job provider or job creator is escalating,” Bush said. Bush spoke at a two-day White House economic conference, reiterating his oft-stated plea for Congress to impose caps on legal awards. “Justice ought to be fair,” the president said. “Those who have been hurt ought to have their day in court. But a judicial system run amok is one that makes it really hard for small businesses to stay in business.”

What a nut, I thought as I always do as a knee-jerk, me being a mere pawn caught between the propagandist intercessions of broadcast news and talk radio. But then I realized on this point he is just being a good Canadian. The majority of the Supreme Court of Canada in the case Ratych v. Bloomer, [1990] 1 S.C.R. 940 found the following:

It is a fundamental principle of tort law that an injured person should be compensated for the full amount of his loss, but no more. This is implicit in the principles governing the recovery of damages for personal injury set forth by this Court in the trilogy of Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, Thornton v. Prince George School Board, [1978] 2 S.C.R. 267, and Arnold v. Teno, [1978] 2 S.C.R. 287. In the trilogy this Court affirmed that the purpose of awarding damages in tort is to put the injured person in the same position as he or she would have been in had the tort not been committed, in so far as money can do so. The plaintiff is to be given damages for the full measure of his loss as best that can be calculated. But he is not entitled to turn an injury into a windfall. In each case the task of the Court is to determine as nearly as possible the plaintiff’s actual loss. With respect to non-pecuniary damages, the task is necessarily imprecise, and resort must often be had to conventional figures. But where pecuniary damages are at issue, it is the actual pecuniary loss sustained by the plaintiff which governs the amount of the award. The functional rational for the award of damages adopted in the trilogy of Andrews, Thornton and Teno underlines the necessity of using the plaintiff’s actual loss as the basis of his or her damages. The award is justified, not because it is appropriate to punish the defendant or enrich the plaintiff, but because it will serve the purpose or function of restoring the plaintiff as nearly as possible to his pre-accident state or alternatively, where this cannot be done, providing substitutes for what he has lost.

All the US wants is something we have which is not water or mile after mile of untouched woods. Prudence and common sense.

For those of us trying to keep up with the meaning of the newish Personal Information and Protection and Electronic Documents Act, the ruling of the Federal Court of Appeal in Englander v. Telus is interesting for its ennunciation alone. One interesting point to note is a statement in relation to the somewhat daft but perhaps brilliant use of lay language in the key schedule to the statute:

[45] The Court is sometimes left with little, if any guidance at all. Clause 4.3, for example, requires knowledge and consent “except where appropriate.” Clause 4.3.4 sets up a standard of “sensitivity of the information,” only to add that “any information can be sensitive, depending on the context.” Clause 4.3.5 then goes on to say that “[i]n obtaining consent, the reasonable expectations of the individual are also relevant.”

[46] All of this to say that, even though Part 1 and Schedule 1 of the Act purport to protect the right of privacy, they also purport to facilitate the collection, use and disclosure of personal information by the private sector. In interpreting this legislation, the Court must strike a balance between two competing interests. Furthermore, because of its non-legal drafting, Schedule 1 does not lend itself to typical rigorous construction, In these circumstances, flexibility, common sense and pragmatism will best guide the Court.

This is the first higher court ruling which I have seen on the statute and marks the beginning of the interpretation of its principles which will flesh out the meaning of privacy in the private sector in common law Canada. Quebec, as we all know, operates under the civil code system, has had its own statute for a decade and protects privacy in the Quebec Charter of Rights and Freedoms. A more private place.

Perhaps for no other reason than the irony, perhaps we could all post the link to Secrecy News, a project of the Federation of American Scientists. In one report this week, we learn of a former US Republican Congresswoman learning about secret regulations while undergoing an airport security check:

Chenoweth-Hage, an ultra-conservative former Congresswoman (R-ID), requested a copy of the regulation that authorizes such pat-downs.

“She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told that she couldn’t see it,” local TSA security director Julian Gonzales told the Idaho Statesman (10/10/04). “She refused to go through additional screening [without seeing the regulation], and she was not allowed to fly,” he said. “It’s pretty simple.” Chenoweth-Hage wasn’t seeking disclosure of the internal criteria used for screening passengers, only the legal authorization for passenger pat-downs. Why couldn’t they at least let her see that? asked Statesman commentator Dan Popkey. “Because we don’t have to,” Mr. Gonzales replied crisply. “That is called ‘sensitive security information.’ She’s not allowed to see it, nor is anyone else,” he said.

I suppose the list of secret regulation topics is also secret so we can’t know a head of time when we might trip up.

David v. Goliath? Perhaps, less dramatic – a nuisance suit. It seems that Prince Edward Island, North America’s tiniest jurisdiction, is pulling out the colonial stops and suing the motherland over the issue of fisheries quota and lines in the water. The Government’s press release includes the following:

Premier Pat Binns today confirmed that the provincial government will be commencing legal action against the Government of Canada to seek a resolution to a number of outstanding fisheries disputes. The disputes relate to not only the herring seiner boundary line, but also to the unfair and inequitable allocation of a number of fisheries species including Bluefin tuna, snow crab and gulf and northern shrimp. “The Prince Edward Island government has been actively and aggressively seeking a resolution to these and other fisheries issues and has not received a satisfactory response or rationale from the federal Department of Fisheries and Oceans,” said Premier Binns. “We are reluctant to have to take the federal government to court in order to secure justice for Island fishermen, but the failure to resolve these issues through other means leaves us with no options but to seek a legal settlement.”

There are some very interesting aspects to this case:

• For me the political question turns on (what I understand to be from a distance) the province’s opposition party’s allegation that the legal opinion upon which this decision is based actually advises against bringing a law suit. This may be mere puffery but what will the skuttlebutt be if the case were to be taken on and then lost?
• The issue of where provincial boundaries (even watery ones) are located, according to the wise Professor Hogg who writes on Canadian constitutional law, depends on how the province entered Confederation. This raises the prospect that warms any constitutional hobbyist’s heart that we may actually have an airing of the little discussed but fundamental colonial constitutions which continue as a structure underlying the nature of the fact of each province’s government. In the case of PEI, the colonial constitution is largely located in letters to the first Lieutenant-Governor of the then new colony circa 1769 at the time it broke off from Nova Scotia. The best source of comment on the 1769 PEI constitution is that of Georgia, its next nearest neighbour in time in terms of colonial creation. Will the constitutional law professors of Altanta be taking the stand? Will the lawyers in the case not know or care?
• It will be very interesting to witness the determination of the standing a province has in relation to the rights of its residents under an area of Federal law. “Standing” in law is the right to be associated with a claim and therefore bring or be involved in the case. There is here the play of the related matter of the local culture which is, frankly, first provincial and also to a certain degree unitarian in a way that somewhat excludes the idea that a resident there is also (let alone primarily)…umm…Canadian and subject to the Federal law directly as an individual and not as a part of the collective “Islanders”. Not quite the Borg with red pony-tails but perhaps only by extreme of degree. As the regulation of the fishery is a matter properly within the Federal jurisdiction and the complaint of unfair allocation is an allegation of wrong to individual fishery license holders, I am not clear on what role the provincial government might play in the legal question and what gives them the right to sue on behalf of individuals who happen to live there. Could the towns in which the license holders live also have brought the case? I do not know the answer and there may be a provincial-federal agreement at play but it is a very interesting cultural and constitutional nexus.

So there you have it – hot constitutional law issues arising in the land of the spud. Just the thing as the long winter starts with its promise of stormstays a plenty.

Here is one for the Red Ensign
bloggers.

Last summer the Supreme Court of Canada rejected the claim in a class action
suit brought by vets and the heirs of vets who had been incapacitated and had
had their affairs managed by the Federal Government. The Supreme Court of
Canada on July 17, 2003 ruled that the claim before it was barred by a
section of the Veterans Affairs Act introduced in 1990 which barred
actions for interest on monies held and administered under the War Veterans
Allowance Act. In doing so the Court concluded:

The respondent and the class of disabled veterans it
represents are owed decades of interest on their pension and benefit funds. The
Crown does not dispute these findings. But Parliament has chosen for undisclosed
reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty,
these benefits whether legal, equitable or fiduciary. The due process
protections of property in the Bill of Rights do not grant procedural rights in
the process of legislative enactment. They do confer certain rights to notice
and an opportunity to make submissions in the adjudication of individual rights
and obligations, but no such rights are at issue in this appeal. While the due
process guarantees may have some substantive content not apparent in this
appeal, there is no due process right against duly enacted legislation
unambiguously expropriating property interests.

So you go to war for
the country, get disabled for the country, put your property in the hands of the
country only to have the legislature of the country cut out the interest by a
few words in an amending statute.   Nice.

Happy am I, then, to read two lower
court
rulings from last December (published only now in the Ontario Reports) in
which the Superior Court of Ontario court ruled that the Supreme Court of Canada
only barred a part of the relief and that there are other remedies available to
the vets and their families. The matter will no doubt work its way up the courts
again and years will pass before resolution but it is my hope that the resting
place of these assets of our disabled vets will be someplace other than the
general coffers of the national treasury.

To be fair to all sides, the Canadian War Amps came out against the court
case early on and felt interest should only be paid out in “justifiable cases“.
My feeling is that but for the disability of the vets, the interest on their
assets would have passed to successors whether children or 57th cousins and as
such was not the government’s to withhold except for the intervention of the
disability.

So…why do people presume we dislike our 57th cousins anyway?