Judicial Officers show presumptively have their costs of a discipline hearing regardless of result

Massiah v Justices of the Peace Review Council, 2016 ONSC 6191:

[49]           In my view, the 2012 Panel started from a flawed premise, that is, that where there has been a finding of judicial misconduct, the presumption should be that compensation will not be made.  Specifically, the 2012 Panel said:

… it is only in exceptional circumstances that the public purse should bear the legal costs of a judicial officer who has engaged in judicial misconduct.

The 2012 Panel adopted this presumption from an earlier decision of a different Hearing Panel of the JPRC in Re Foulds (JPRC, July 21, 2013).  

[50]           I do not accept that any such presumption exists nor do I find any cogent reasons why such a presumption should exist.  Rather, there are compelling reasons for the opposite approach.  

[51]           First, and as noted above, dismissal of a judicial officer is a matter of public importance.  The considerations to be taken into account in dismissing a judicial officer include not only the conduct of the individual, but its effect on the justice system as a whole.  The principal objective of the complaint process is to restore and maintain public confidence in the integrity of the judiciary, not to punish the judicial officer holder, although punishment may result.

[52]           Second, where a Provincial Attorney General makes a complaint against a federally appointed judicial officer, a hearing is mandatory.[1]  While the same provision does not apply in the case of judges of the Ontario Court of Justice or of justices of the peace, the prospect of a complaint emanating from the Government is, nonetheless, a real one.  This possibility is of some significance given that one of the most important roles performed by a judicial officer is to stand between the state and the citizen, in terms of the application of government powers.  This role is referenced in the earlier statement I quoted above from Re Therrien.  Judicial officers are therefore exposed not only to the vagaries of complaints by citizens but also to those of government.  

[53]           Thirdly, judicial office holders, by the very nature of their duties, and the decisions that they make, naturally attract criticism and animosity.  It is an easy matter for someone, or some group, to make a complaint regarding something that a person, who holds judicial office, does, says, or decides.  While there are screening mechanisms to ensure that only complaints that appear to have a requisite degree of validity, and that are related to judicial conduct rather than judicial decisions, are permitted to proceed beyond the stage of the initial complaint, the impact on the holder of a judicial office, where a hearing is called, is significant, as this case and others have amply demonstrated.

[54]           Fourthly, there is a serious risk that, if we hold to a presumption that a judicial officer holder will not be compensated for their legal expenses, where a finding of misconduct is made, those persons will then face the judicial equivalent of the Gordian Knot.  On the one hand, the person can choose to defend themselves but with the knowledge that, if the adjudicator decides against them, they will not only lose their position but may effectively bankrupt themselves and their family in the process.  That result arises from the reality that the legal expenses associated with responding to a complaint, and participating in such a hearing, are likely to be significant.  Few judicial office holders would be able to self-fund those expenses.  On the other hand, that same person, in order to avoid those dire financial consequences, may simply decide that it is easier, and financially safer, to simply resign their office.  In doing so, though, they leave the allegations unanswered and consequently, in most persons' minds, admitted to.  If that is the knot that a judicial officer holder faces, it means that the mere fact of a complaint becomes, in and of itself, a threat to judicial independence, because it may lead to one of two undesirable results.  Either the judicial office holder, for reasons other than the merits of a particular complaint, acquiesces in their removal from office or they may choose to avoid decisions that will subject them to criticism.

[55]           The legal expenses issue is not a fanciful one.  In this case, for example, the applicant incurred legal fees in excess of $600,000.  In setting out that fact, I do not, for a moment, mean to suggest that that level of legal fees was either appropriate or justified for what took place in this case.[2]  I merely use it as an example of the type of financial consequence that may arise for a judicial officer holder, who finds her/himself in the position of having to decide whether s/he can actually afford to respond to a complaint.

[56]           For these reasons, adjudicative bodies, dealing with complaints against judicial office holders, ought to start from the premise that it is always in the best interests of the administration of justice, to ensure that persons, who are subject to such complaints, have the benefit of counsel.  Consequently, the costs of ensuring a fair, full and complete process, ought usually to be borne by the public purse, because it is the interests of the public, first and foremost, that are being advanced and maintained through the complaint process.  Again, this reflects the public interest nature of the process.

Of the Law Societies of Upper Canada and Nunavut 

Failure to consider Aboriginal heritage an error regardless of distance from heritage

R. v. Kreko, 2016 ONCA 367:

[18]        Section 718.2 of the Criminal Code requires consideration of the principles of sentencing, including the following principle:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[19]        As observed in R. v. Gladue, [1999] 1 S.C.R. 688, at para. 93(3), s. 718.2(e) is remedial in nature: it is intended to ameliorate the serious problem of overrepresentation of Aboriginal people in prisons. 

[20]        The sentencing judge erred by effectively requiring a causal link between the appellant's Aboriginal heritage and the offences, as is illustrated by the following extracts from his reasons for sentence and report to the Court of Appeal:

·       "There was nothing tied to his Aboriginal genetic heritage, let alone considerations in Gladue and Ipeelee, that led the accused, Mr. Kreko, to the negative side of hip-hop, including its fascination with guns."

·       "These things [possession of a gun, driving a Jaguar] relate to gang culture and do not relate to his Aboriginal background."

·       "It appeared to me that his Aboriginal connection had been irrelevant to his offences, or how he got there." 

·       "I ultimately held that his Aboriginal heritage could not be linked in any meaningful way to these current offences, although his hip-hop affiliations could."  

[21]        The jurisprudence makes it clear that no causal link is required. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court held that it was an error to require an Aboriginal offender to establish a causal link between his or her background factors and the commission of the offence(s) in question before he or she is entitled to have those factors considered by the sentencing judge. The court suggested, at para. 82, that requiring a causal connection demonstrated "an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples", and also imposed an evidentiary burden on the offender that was not intended by Gladue. 

[22]        The court continued, at para. 83:

[I]t would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86: 

Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated. 

Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence.  

[23]        The court explained that what is required is that the factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing. Finally, the court in Ipeelee also made it clear that s. 718.2(e) applies to serious offences: see paras. 84-86. 

[24]        In the present case, the appellant's dislocation and loss of identity can be traced to systemic disadvantage and impoverishment extending back to his great-grandparents. This was relevant to his moral blameworthiness for the offences. The intervener has referred to some studies suggesting that adoptions of Aboriginal children by non-Aboriginal parents have a significantly higher failure rate than other adoptions. The appellant's Aboriginal heritage was unquestionably part of the context underlying the offences. The sentencing judge erred by failing to consider the intergenerational, systemic factors that were part of the appellant's background, and which bore on his moral blameworthiness, and by seeking instead to establish a causal link between his Aboriginal heritage and the offences.

[25]        The sentencing judge also misapprehended the evidence about the appellant's efforts to reconnect with his heritage:

I applaud any efforts by Mr. Kreko to put down any pro-social roots he can, and that includes the Aboriginal healing path in which he has dabbled to date. I note he did not participate in that path while at the Central East Correctional Centre. [Emphasis added.]

Of the Law Societies of Upper Canada and Nunavut 

Adjournment of a civil trial

Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222:

[18]       The applicable principles are well understood. They were expressed by this court in Khimji v. Dhanani (2004), 69 O.R. (3d) 790, per Laskin J.A. dissenting, but not on this point, at para. 14:

A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here.

[19]       Laskin J.A. observed that in refusing an adjournment, the trial judge should have taken into account the goal expressed in r. 2.01(1)(a), namely “to secure the just determination of the real matters in dispute” and the resolution of cases on their merits.

[20]       Khimji was considered by this court in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, which adopted the above statement. This court observed, at para. 36, that “[t]he presiding judge has a well-placed and a well-established discretion to decide whether an adjournment request ought to be allowed or denied.” After setting out the above statement, the court added, at para. 37:

Laskin J.A.'s passage makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice.

[21]       The court added that factors to be considered include the reason for the adjournment request, the history of the matter, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request. The fact that a party is self-represented is a relevant factor as the court has an obligation to ensure that all litigants have a fair opportunity to advance their positions.

[22]       In Ariston Realty Corp. v. Elcarim Inc., [2007] O.J. No. 1497 (S.C.), a case much relied on by the appellants, Perell J. helpfully set out at para. 34 a non-exclusive list of factors that may be weighed in the exercise of a court’s discretion with respect to an adjournment.

[23]       That list includes not simply factors of immediate concern to the parties, but factors affecting the broader public interest, including the objective of determining the matter on its merits, the appearance of justice and the needs of the administration of justice in the orderly processing of trials.

[24]       The list in Ariston also suggests that the court should consider whether the refusal of an adjournment would significantly compromise the ability of the party prosecuting or defending the litigation and the effect of the adjournment on substantive and procedural justice.

[25]       The list also makes it clear that the court must consider “the competing interests of the parties in advancing or delaying the progress of the litigation”.

[26]       Finally, Perell J. noted, the judge is entitled to consider “the particular circumstances of the request for an adjournment and the reasons and justification for the request”.

[27]       The balancing of interests – the private interest of the parties and the public interest in the fair and efficient adjudication of disputes on their merits – is quintessentially the responsibility of the trial judge who has the parties in front of her and is best equipped to assess all the relevant circumstances. The trial judge identified some of the factors she considered. In my view, those factors – and others she did not mention – amply justified her decision.

Promissory estoppel cannot be used to estop a public official from applying a clear statutory provision, or from fulfilling a statutory mandate.

Nunavut v Agnico-Eagle Mines Ltd., 2016 NUCA 02:

[47] The hearing judge did not have the benefit of Robitaille, and did not apply the ratio of Mount Sinai, both cases establishing pivotal considerations that must be brought to bear when determining the availability of promissory estoppel in the public law context. In Robitaille, although dealing with promissory estoppel in a regulatory offence situation, the Supreme Court of Canada clearly held that the doctrine cannot be used to estop a public official from applying a clear statutory provision, or from fulfilling a statutory mandate. The hearing judge erred in law by failing to recognize this clear limitation on the doctrine of promissory estoppel in the public law context, and by applying the doctrine of promissory estoppel in the face of the express legislative provision of s 8(4.1).

Polar bear in the distance in a blizzard

Curious Bear, Ningeokuluk Teevee 2008

Waving Bear

Caesar

I come to bury Caesar, not to praise him.

The evil that men do lives after them;
The good is oft interréd with their bones;
So let it be with Caesar. The noble Brutus
Hath told you Caesar was ambitious:
If it were so, it was a grievous fault,
And grievously hath Caesar answer'd it.
Here, under leave of Brutus and the rest—
For Brutus is an honourable man;
So are they all, all honourable men—
Come I to speak in Caesar's funeral.
He was my friend, faithful and just to me:
But Brutus says he was ambitious;
And Brutus is an honourable man.
He hath brought many captives home to Rome
Whose ransoms did the general coffers fill:
Did this in Caesar seem ambitious?
When that the poor have cried, Caesar hath wept:
Ambition should be made of sterner stuff:
Yet Brutus says he was ambitious;
And Brutus is an honourable man.
You all did see that on the Lupercal
I thrice presented him a kingly crown,
Which he did thrice refuse: was this ambition?
Yet Brutus says he was ambitious;
And, sure, he is an honourable man.
I speak not to disprove what Brutus spoke,
But here I am to speak what I do know.
You all did love him once, not without cause:
What cause withholds you then, to mourn for him?
O judgment! Thou art fled to brutish beasts,
And men have lost their reason. Bear with me;
My heart is in the coffin there with Caesar,
And I must pause till it come back to me.

—Act III, sc. ii

Bear

Baby Bear

Bear

Where a mandatory minimum sentence is valid it fully applies to aboriginal offenders

R. v. Johnson, 2013 ONCA 177:

[62]      Counsel for Johnson also argues that, given his Aboriginal status the starting point for the sentence, the sentencing floor, should be considered differently.  Otherwise, the impact of Johnson's Aboriginal status is unjustifiably watered down, if not totally eliminated.  

[63]      The difficulty I have with this submission is that there can be no denying that the five-year mandatory minimum applies to all cases, including those, such as this, where s. 718.2(e) of the Code applies.  

[64]      As pointed out in R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 S.C.R. 433, at paras. 68-73, sentencing of all offenders, including Aboriginal offenders, is an individualized process. Section 718.2(e) must be addressed in all cases involving Aboriginal offenders. However, the considerations relevant to s. 718.2(e) must still have some connection to the offence and/or the offender before they will impact on the sentence. As explained in Ipeelee, at para. 83:

[65]      Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. 

[66]      As the trial judge correctly recognized, his sentencing options were restricted by the fact that Johnson faced a five-year minimum prison sentence. And it was against the background of this restriction that the trial judge was obliged to consider the circumstances of the offence and the offender, including his Aboriginal status.  These circumstances included the fact that the crimes for which Johnson was being sentenced were serious as was his criminal record

[Note: the five-year mandatory minimum sentence set out in s. 95(2) of the Criminal Code, was held to be unconstitutional in the companion cases of R. v. Nur, 2013 ONCA 677 (CanLII), 117 O.R. (3d) 401, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 17, appeal heard and reserved November 7, 2014, and R. v. Charles, 2013 ONCA 681 (CanLII), 117 O.R. (3d) 456, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 18, appeal heard and reserved November 7, 2014.]

Bear

Is Uniqueness of Land A Requirement for Injunctive Relief?

Since the Supreme Court decision in Semelhago v. Paramadevan,  [1996] 2 SCR 415 it has been widely accepted that specific performance for the sale of land is not presumed because it "cannot be assumed that damages for breach of contract for the purchase and sale of real estate will be an inadequate remedy " (at par. 21). 

As a result, where there is an alleged breach of contract and a remedy other than damages is sought in the context of real estate, one of the issues live before the Court is uniqueness of the property.  To show a good case the plaintiff must show that damages will not suffice.

This view has meant that uniqueness has been an issue in real estate cases where an injunction is sought. 

That said the Court of Appeal recently released a decision that suggests that where real estate is in play special considerations will apply and damages will be presumed not to be sufficient.  In  1465152 Ontario Limited v. Amexon Development Inc., 2015 ONCA 86 the Court reviewed  Pointe East Windsor Limited v. Windsor (City), 2014 ONCA 467, 374 D.L.R. (4th) 380.  Pointe East Windsor Limited v. Windsor (City) unsurprisingly, held that equitable relief, such as a permanent injunction, is only available where damages are an inadequate remedy for the harm suffered.

Despite Pointe East Windsor Limited v. Windsor (City), the Court in 1465152 Ontario Limited v. Amexon Development Inc., held that where an injunction is sought there is a strong inclination towards preserving a property right – something functionally the same as a presumption that damages will be an inadequate remedy for a loss of real property rights.  The Court holds:   

[23]       As the law in Ontario currently stands, different considerations apply in the latter circumstance, as was explained in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (consulted on 30 January 2015), (Toronto: Canada Law Book, 2014), at 4.10 and 4.20:

Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favored.  This is especially so in the case of direct infringement in the nature of trespass.

…

The reason for the primacy of injunctive relief is that an injunction more accurately reflects the substantive definition of property than does a damages award.  It is the very essence of the concept of property that the owner should not be deprived without consent. An injunction brings to bear coercive powers to vindicate that right.  Compensatory damages for a continuous and wrongful interference with a property interest offers only limited protection in that the plaintiff is, in effect, deprived of property without consent at an objectively determined price.  Special justification is required for damages rather than an injunction if the principle of autonomous control over property is to be preserved.  A damages award rather than an injunction permits the defendant to carry on interfering with the plaintiff's property.  [Footnotes omitted.]

 

 

 

An injunction will be granted to protect a leasehold interest even if damages could suffice

In a decision that seems contrary to specific performance precedent the Ontario Court of Appeal has held an injunction will protect a leasehold interest even where damages would otherwise be sufficient. 

1465152 Ontario Limited v. Amexon Development Inc., 2015 ONCA 86:

[22]       First, the Landlord contends that in Pointe East Windsor Limited v. Windsor (City), 2014 ONCA 467, 374 D.L.R. (4th) 380, at para. 17, this court held that equitable relief, such as a permanent injunction, is only available where damages are an inadequate remedy. The Landlord submits that the leased premises are not unique, so an award of compensatory damages to the Tenant would serve as an adequate remedy.  However, in Pointe East Windsor Limited, the issue of remedy arose in the context of an action for breach of contract, not where the holder of an interest in property, such as the Tenant, was alleging a wrongful interference with a proprietary interest.   

[23]       As the law in Ontario currently stands, different considerations apply in the latter circumstance, as was explained in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (consulted on 30 January 2015), (Toronto: Canada Law Book, 2014), at 4.10 and 4.20:

Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favored.  This is especially so in the case of direct infringement in the nature of trespass.

…

The reason for the primacy of injunctive relief is that an injunction more accurately reflects the substantive definition of property than does a damages award.  It is the very essence of the concept of property that the owner should not be deprived without consent. An injunction brings to bear coercive powers to vindicate that right.  Compensatory damages for a continuous and wrongful interference with a property interest offers only limited protection in that the plaintiff is, in effect, deprived of property without consent at an objectively determined price.  Special justification is required for damages rather than an injunction if the principle of autonomous control over property is to be preserved.  A damages award rather than an injunction permits the defendant to carry on interfering with the plaintiff's property.  [Footnotes omitted.]

Assisted Suicide Allowed by SCC

  Carter v. Canada (Attorney General), 2015 SCC 5

 

Section 241 (b) of the Criminal Code  says that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14  says that no person may consent to death being inflicted on them. Together, these provisions prohibit the provision of assistance in dying in Canada. After T was diagnosed with a fatal neurodegenerative disease in 2009, she challenged the constitutionality of the Criminal Code  provisions prohibiting assistance in dying. She was joined in her claim by C and J, who had assisted C's mother in achieving her goal of dying with dignity by taking her to Switzerland to use the services of an assisted suicide clinic; a physician who would be willing to participate in physician‑assisted dying if it were no longer prohibited; and the British Columbia Civil Liberties Association. The Attorney General of British Columbia participated in the constitutional litigation as of right.

                    The trial judge found that the prohibition against physician‑assisted dying violates the s. 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement is not justified under s. 1  of the Charter . She declared the prohibition unconstitutional, granted a one‑year suspension of invalidity and provided T with a constitutional exemption. She awarded special costs in favour of the plaintiffs on the ground that this was justified by the public interest in resolving the legal issues raised by the case, and awarded 10 percent of the costs against the Attorney General of British Columbia in light of the full and active role it assumed in the proceedings.

                    The majority of the Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow this Court's decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, where a majority of the Court upheld the blanket prohibition on assisted suicide. The dissenting judge found no errors in the trial judge's assessment of stare decisis, her application of s. 7 or the corresponding analysis under s. 1 . However, he concluded that the trial judge was bound by the conclusion in Rodriguezthat any s. 15 infringement was saved by s. 1 .

                    Held:  The appeal should be allowed. Section 241 (b) and s. 14  of the Criminal Code unjustifiably infringe s. 7  of the Charter  and are of no force or effect to the extent that they prohibit physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. The declaration of invalidity is suspended for 12 months. Special costs on a full indemnity basis are awarded against Canada throughout. The Attorney General of British Columbia will bear responsibility for 10 percent of the costs at trial on a full indemnity basis and will pay the costs associated with its presence at the appellate levels on a party and party basis.

                    The trial judge was entitled to revisit this Court's decision in Rodriguez. Trial courts may reconsider settled rulings of higher courts in two situations:  (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Here, both conditions were met. The argument before the trial judge involved a different legal conception of s. 7  than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez. The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.

                    The prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27)  of the Constitution Act, 1867 , and it does not impair the protected core of the provincial jurisdiction over health. Health is an area of concurrent jurisdiction, which suggests that aspects of physician‑assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation. On the basis of the record, the interjurisdictional immunity claim cannot succeed.

                    Insofar as they prohibit physician‑assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering,ss. 241 (b) and 14  of the Criminal Code  deprive these adults of their right to life, liberty and security of the person under s. 7  of the Charter . The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. The rights to liberty and security of the person, which deal with concerns about autonomy and quality of life, are also engaged. An individual's response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.

                    The prohibition on physician‑assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice. The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals' rights are not deprived arbitrarily. However, the prohibition catches people outside the class of protected persons. It follows that the limitation on their rights is in at least some cases not connected to the objective and that the prohibition is thus overbroad. It is unnecessary to decide whether the prohibition also violates the principle against gross disproportionality.

                    Having concluded that the prohibition on physician‑assisted dying violates s. 7 , it is unnecessary to consider whether it deprives adults who are physically disabled of their right to equal treatment under s. 15  of the Charter .

                    Sections 241 (b) and 14  of the Criminal Code  are not saved by s. 1  of the Charter . While the limit is prescribed by law and the law has a pressing and substantial objective, the prohibition is not proportionate to the objective. An absolute prohibition on physician‑assisted dying is rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, because prohibiting an activity that poses certain risks is a rational method of curtailing the risks. However, as the trial judge found, the evidence does not support the contention that a blanket prohibition is necessary in order to substantially meet the government's objective. The trial judge made no palpable and overriding error in concluding, on the basis of evidence from scientists, medical practitioners and others who are familiar with end‑of‑life decision‑making in Canada and abroad, that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. It was also open to her to conclude that vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decision capacity in the context of medical decision‑making more generally. The absolute prohibition is therefore not minimally impairing. Given this conclusion, it is not necessary to weigh the impacts of the law on protected rights against the beneficial effect of the law in terms of the greater public good.

                    The appropriate remedy is not to grant a free‑standing constitutional exemption, but rather to issue a declaration of invalidity and to suspend it for 12 months. Nothing in this declaration would compel physicians to provide assistance in dying. The Charter  rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment.

 

Striking a pleading for failure to comply with interim order

Koohestani v. Mahmood, 2015 ONCA 56:

[54]       Notwithstanding the legitimate concerns raised before Spence J., my difficulty with his decision to strike the appellants' defence is that he failed to apply the principles relevant to such a request, particularly those set out by this court in Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85, 94 O.R. (3d) 614. In Bell ExpressVu, at para. 35, the majority identified striking out a defence as a severe remedy and made it clear that it should generally not be imposed as a remedy of first resort.  The defaulting party should, at least, be provided with an opportunity to cure the default.  

[55]       Such was not done in this case.

[56]       This failure is of particular note given the order of Roberts J. was not finally settled until November 6, 2013, the day before the motion to strike. The record suggests to me that it was the appellants' recusal motion and on-going attempts to re-argue the merits that led to such profound delay in settling the terms of the order.  Nonetheless, the November 6, 2013, endorsement indicates that on that day a non-trivial change was made to the December 12, 2012 order – namely the removal of any reference to declaratory relief.  The respondent has not disputed that the time for appealing the order continued to run when the parties appeared before Spence J.  Given the on-going willingness of Roberts J. to hear further submissions and alter the order into November 2013, and the extant right to appeal that order when the motion was argued before Spence J., it is possible that the appellants did not fully appreciate the peril of not paying the damages and costs ordered by Roberts J. 

[57]       In addition to the primary principle identified in Bell ExpressVu, - that striking out a defence should not be the remedy of first resort, additional factors should be taken into account in deciding whether to strike a defence for failure to comply with court orders.  

[58]       First, the action should be examined with particular attention to the merits of the defence: Bell ExpressVu, at para 36. The pleading and any evidence relevant to the defence may demonstrate a strong defence supporting the conclusion that the interests of justice warranted finding another way to sanction the misconduct.  On the other hand, a blatantly unmeritorious defence may give rise to the inference that the defendant's refusal to comply with a court order is part of a deliberate strategy to delay a decision on the merits – conduct that may justify the imposition of a more severe sanction.  

[59]       In my view, it cannot be said that the appellants' defence in this case is obviously without merit.  

[60]       Second, the context of the misconduct relied upon is relevant to the determination of a response that is not only proportional to the severity of the misconduct but also in keeping with the overarching objectives that guide the application of the rules; namely, that set out in r. 1.04 that the rules should be interpreted to secure the just determination of each civil proceeding on its merits.  

[61]       In this case, the misconduct that led to the striking of the defence took place in the context of a peripheral dispute involving a relatively small amount (just over $15,000) in relation to the amount in issue, at least as pleaded (over $680,000).   See Tarion Warranty Corp. v. 1486448 Ontario Inc., 2012 ONCA 288, 2012 CarswellOnt 5355.

[62]       Third, in some cases the record may indicate that it was counsel for the defaulting parties rather than the parties themselves who should bear primary responsibility for the misconduct in issue.  As stated by Sharpe J.A., writing for the court in Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores, 2007 ONCA 695, 87 O.R. (3d) 660,  at para. 28, "The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor".  

[63]       Here, even without the proposed fresh evidence, the record before Spence J. points to Mr. Barnwell as the guiding (although hardly inadvertent) force behind the appellants' failure to comply with Roberts J.'s order.  The fact that much of what concerned Spence J. was conduct that lies at the feet of their former counsel does not insulate the appellants from the consequences of such conduct.  However, in my view, it is relevant to the determination of an appropriate sanction. 

[64]       The failure of Spence J. to take these factors into account disentitles his decision to the deference it would normally attract.  I would not sanction the appellants' failure to comply with the order of Roberts J. and associated conduct by striking the defence.  My review of the record demonstrates a misguided refusal to accept the result of the motion for partial summary judgment rather than an abuse of process.   In this light and in the light of my other observations set out above, I would impose a less draconian remedy.  I would set aside the order striking the statement of defence on the following terms.  I would order that the amounts owing under the order of Roberts J., including costs and post-judgment interest, be paid within 30 days of the release of these reasons, failing which the respondent would be entitled to move to strike out the statement of defence.

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