Tuesday, November 2, 2010

CASE COMMENT Hansen v Harder: Defence of Responsible Journalism on Matters of Public Importance - Examination of Emerging Defence ~ By C. D. Steinberg

This judgment released yesterday by the British Columbia Court of Appeal canvasses the currently evolving Law of Defamation; specifically with respect to recent judgments by the Supreme Court of Canada setting out criteria for the Defence of "Responsible Communication on Matters of Public Interest", which is available to "journalists" in appropriate circumstances. The clear message delivered by this judgment, as set out below, is that if a journalist intends to rely on this defence, a stringent standard of care will be required to be exercised to verify a story, including making stringent efforts to do so when appropriate.

The appellant Peak Publications Society publishes The Peak. The appellant Derrick Harder was The Peak’s copy editor and edited and approved the three articles. Kevin Tilley, The Peak’s news editor, wrote the articles.

Mr. Hansen has a long history of involvement in student government associations. During the relevant events he was the financial and services coordinator of the Douglas Students Union (the “DSU”), at Douglas College.

A controversy arose between two competing groups within the DSU over Mr. Hansen’s stewardship of the DSU’s financial affairs. Thus, in March 2006 the DSU treasurer, retained a forensic account to perform a forensic review, a process that is significantly less rigorous and extensive than an audit. This was opted for due to financial constraints that made it impossible for the DSU to obtain an audit.

The "review" was very critical of Mr. Hansen’s skills and performance as the financial manager of the DSU, and contained the following comments about Mr. Hansen:

We note that over one hundred cheques, in addition to payroll cheques, were issued payable to Joey Hansen in the year ended August 31, 2005. We understand the auditors have requested from him documentation adequate to support these expenditures, but he has not yet provided same. We have not quantified the amounts involved, as your auditors are working on this, but regardless of the amounts, we regard this as a serious breach of internal control and accountability, and if Mr. Hansen is unable to produce adequate documentation, a misappropriation of funds.
We found a cheque payable to Christa Peters in the amount of $20,000 dated December 6, 2004. The amount was repaid to DSU on December 22, 2004. We understand Christa Peters is the partner of Mr. Hansen, who confirmed that to us and stated that it was intended to be a temporary loan for the purpose of making a down-payment on a house. The cheque was signed by Mr. Hansen and Jeremy Gervan, who Mr. Hansen said “approved” the loan. In our view, Mr. Hansen and Mr. Gervan exceeded their authority, and the loan should have been approved, if at all, by the Representative Committee. Notwithstanding the repayment, this is an example of blatant misuse of DSU member funds.

The report was presented to a meeting of an internal committee during which the accountant presented a summary of his findings. The committee members voted to terminate Mr. Hansen’s employment. Subsequently, however, the committee determined there had not been a proper quorum at the meeting, thus the vote was invalid. Mr. Hansen was placed on a paid leave until the DSU formally terminated his employment in November 2006.

In May 2006 Mr. Tilley received a copy of the report, and as a result interviewed several representatives of the DSU. These inquiries led to publication of three articles about Mr. Hansen.

The first article described the “controversial” financial crisis in the DSU, the fact Mr. Hansen had been terminated and then reinstated as there had not been a proper quorum, and that he was now on a paid leave. It gave a history of the financial difficulties leading to those actions, and cited comments from members of the committee who supported the decisions to terminate Mr. Hansen. At trial, Mr. Hansen established the following statements in the article were defamatory:

… the results of a forensic audit showed serious discrepancies in the way money was handled within the organization …

The forensic audit revealed over 100 unapproved cheques payable to Mr. Hansen, which have yet to be documented or accounted for. Additionally, the auditor found a cheque to Christa Peters, Hansen’s partner, for $20,000 allegedly for a down-payment on a house. The amount was repaid to the DSU two weeks later.

The second article was regarding the two competing groups within the DSU, described financial problems of DSU, and set out this statement, which Mr. Hansen established at trial was defamatory:
The College Board of Douglas College has been withholding the DSU’s funds since last fall following a scathing financial audit which showed significant discrepancies in internal controls as well as possible fraud and misappropriation of funds by the DSU’s Financial Coordinator.

The third article focused on a reported police investigation into the DSU finances and summarized Mr. Hansen’s background with student organizations, and said he remained on leave as investigations continued. Mr. Hansen established at trial that several aspects of this edition of The Peak were defamatory. Its cover had a drawing of two police officers, one holding a magnifying glass and the other a notebook, with a caption reading “Busted! Police launch investigation on Douglas (College) Students’ Union News, page 6.” Page 6 set out this headline:

Police investigate DSU
Police probe launched after financial mishandlings at Douglas Students’ Union

The article that followed included these statements:

The New Westminster Police have launched an investigation at the Douglas Students’ Union into crimes relating to the organization’s finances, the DSU has recently confirmed. The investigation was initiated after an anonymous Douglas College student contacted the police following a forensic auditor’s report showing potential fraud and misappropriation of funds.

The DSU wouldn’t say whether any specific individuals are under investigation, but Joey Hansen, the finance and services coordinator responsible for the union’s finances remains on leave since the auditor’s report.
Hansen was unavailable for comment.

The report notes a number of specific issues that drew attention to Hansen. In particular a $20,000 cheque signed by Hansen was made out to Hansen’s partner for the purpose of making a down payment on a house. The money, although paid back to the DSU several weeks later, was never approved by the organization.

This would not be the first time a high-ranking CFS official has been in the police spotlight.

The article also stated Mr. Hansen claimed “he was entitled to the money as a result of outstanding overtime and other payroll issues.”


The trial judge found an ordinary person would reasonably have understood the first article to mean:

(a) that over 100 cheques had been issued to Mr. Hansen without the approval of his employer and that in spite of the efforts of a professional forensic auditor the cheques could not be documented or accounted for; and

(b) that the auditor had “found” an unapproved $20,000 cheque payable to Mr. Hansen’s partner, Christa Peters, allegedly for a down-payment on a house and that upon the cheque being discovered by the auditor, the $20,000 was repaid to the DSU some two weeks later.

He found the statements in the second article inferred that Mr. Hansen was guilty of fraud and misappropriation of monies or that there were reasonable grounds to reach that conclusion.

He found that the third article, and cover of The Peak, would reasonably be understood to mean:

(a) that the two officers depicted on the cover are involved in a police investigation in which they had “busted” or charged someone as a result of the investigation of the DSU;

(b) that a complaint from an anonymous Douglas College student initiated the police investigation after the forensic review showed potential fraud and misappropriation of monies from the DSU;

(c) that the DSU would not say who was being investigated, but the article then added that Mr. Hansen, the finance and service coordinator responsible for the DSU’s finances, had been on leave since the auditor’s report inferring that Mr. Hansen was the individual under investigation;

(d) that the article further linked the police investigation directly to Mr. Hansen when it drew attention to Mr. Hansen in stating that a $20,000 cheque signed by Mr. Hansen and payable to his partner, Ms. Peters, although repaid, was never approved by the DSU, inferring that Mr. Hansen was guilty of fraud and misappropriation.

After reviewing all evidence, the judge found:

1. there was no evidence Mr. Hansen was guilty of fraud or misappropriation of funds;

2. there was no evidence the police investigated the DSU’s finances - merely rumours of an investigation from a DSU board member who was an opponent of Mr. Hansen, and an unsubstantiated statement from a student; and

3. the inferences flowing from the three articles were false and defamed Mr. Hansen. ...

The appellants declined to prove the truth of the allegations, rather asserted the defence of "qualified privilege" under s. 4(1) of the Libel and Slander Act, and the emerging defence of responsible journalism.

The trial judge rejected both defences, and awarded Mr. Hansen damages of $30,000. The Defendants appealed.

The following is the analysis of the Court of Appeal, applying the law as recently developed by the Supreme Court of Canada:

1. Did the trial judge err in rejecting the defence of statutory qualified privilege?

[24] The defence of statutory qualified privilege is set out in s. 4(1) of the Libel and Slander Act, the relevant parts of which state:
A fair and accurate report published in a public newspaper or other periodical publication ... of the proceedings of a public meeting ... is privileged, unless it is proved that the report or publication was published or made maliciously.


[26] The appellants thus had to establish the meeting of the DSU representative committee on April 19, 2006 was a public meeting, and the three articles were fair and accurate reports of the proceedings at that meeting.

[27] The trial judge found the appellants failed to prove any of those constituent elements of the defence. He found none of the articles reported the proceedings at the April 19 meeting ... because the meeting lacked the necessary quorum he concluded there was no meeting, public or otherwise ... and found the April 19 meeting ... did not fall within the statutory definition of a “public meeting”. Finally, he found the articles did not fairly and accurately report the events.

[28] The appellants attack each of those findings.


[29] The appellants first ... say the financial concerns of the DSU were matters of public interest. The meeting was not conducted in camera. There was no evidence the public or press were screened or barred from attending meetings of the representative committee. ... The appellants maintain that if the trial judge had properly weighed these facts, he would have found it was a public meeting.

[30] In McCartan Turkington Breen (a firm) v. Times Newspapers Ltd., [2000] 4 All. E.R. 913, [2001] 2 A.C. 277 (H.L.), the House of Lords considered whether the British equivalent of s. 4(1) afforded a defence where the publication reported on a press conference called by a private individual. They had no difficulty finding the general invitation issued to journalists to attend the press conference demonstrated a clear intent to widely disseminate information about what the organizers viewed as a matter of public concern, and the press conference was a public meeting.


[32] This is a very different situation from that in McCartan. Under the DSU bylaws attendance at meetings of the representative committee is restricted to “members of the Union”, who are Douglas College students. All present on April 19, with the exception of Mr. Parks, were members. No press were invited to the meeting. The fact attendees were not screened carries little weight since, as ... they all knew each other well. Nor is the evidence about who did or did not attend subsequent meetings helpful. The issue is whether the representative committee intended the ... meeting to be public. ...

[33] I am not persuaded the trial judge erred in finding the ... meeting was not a public meeting. ... there is a sufficient factual basis to support a finding that the representative committee did not intend the proceedings of that meeting to be communicated to a wider public.

[34] ... I also see no error in the trial judge’s conclusion that the three articles failed to fairly and accurately report the events. ... he correctly identified a number of inaccuracies ... the three most significant ...

[35] First, the trial judge properly criticized the appellants for inaccurately describing the ... report as a forensic audit when it was a forensic review. The difference is significant, and I agree that by describing the report as an audit, the appellants imported a high and unjustified level of reliability to (its) findings, and falsely implied the information in their articles had been objectively verified. In fact, the ... report contained significant errors ...

[36] Second, the second and third articles stated or clearly implied that (the) “audit” revealed possible or potential “fraud and misappropriation of funds” by Mr. Hansen. The trial judge properly found ... At no time did (the accountant) accuse Mr. Hansen of fraud or misappropriation of funds.


[38] ... the trial judge correctly found the third article did not reflect appropriate standards of fairness and accuracy.


2. Is the defence of responsible communication on matters of public interest available to the appellants?

[41] This defence developed from the defence of responsible journalism established by the House of Lords in Reynolds v. Times Newspapers Ltd. and Others, [1999] UKHL 45, [1999] 4 All E.R. 609, and Jameel and Another v. Wall Street Journal Europe SPRL, [2006] UKHL 44, [2006] 4 All E.R. 1279. When the trial of this matter took place the defence was just emerging in Canada. ... and appeals from ... decisions were making their way to the Supreme Court of Canada.

[42] The trial judge thus based his analysis of the defence on the framework adopted by the Ontario Court of Appeal in Cusson.


[46] Since his decision, the Supreme Court has delivered judgment in Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, and Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640. These decisions accept responsible communication on matters of public interest as a new defence to defamation in Canada. While this defence closely mirrors that of responsible journalism, the Court chose the broader label to acknowledge the increasing role of online communication, as well as traditional journalism, in publishing material of public interest. It defines two elements in the test for responsible communication. First, the publication must be on a matter of public interest. Second, the defendant must show the publication was responsible, in the sense that he or she was diligent in trying to verify the allegations having regard to all the relevant circumstances. MacLachlin C.J., writing for the Court, summarized those circumstances at para.126 of Grant:

(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff's side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
(h) any other relevant circumstances.

[47] While that list is similar to the one established in Reynolds and employed by the trial judge, it is not identical. I agree with the appellants that this Court should consider the trial judge’s findings in the framework established by the Supreme Court in Grant.

[48] The first part of the test is met as the parties agree the three articles published by the appellants were on a matter of public interest.


[51] The appellants say since the trial judge did not have the benefit of Grant he inadvertently erred by considering the meaning of the defamatory comments too early in his analysis, and by selecting the most severe interpretation of the defamatory comments from a range of possible meanings. The appellants argue these errors coloured his analysis of the remaining factors, leading him to assess them too harshly and wrongly reject the defence of responsible communication.


[53] I am not persuaded there is substance to these complaints. First, nothing in Grant requires the fact-finder to consider the relevant factors in their listed order. Even if that were the case, the “seriousness of the allegation” tops the list ... Moreover ... the Court made it clear that the “logic of proportionality” requires that the seriousness of the allegation inform the degree of diligence required in verifying it. Thus, regardless of when the fact-finder considers the meaning of the comments, this aspect of the analysis must be examined in connection with other factors on the list.

[54] In determining whether the trial judge properly considered the range of reasonable meanings of the comments, it is important to note the focus of this analysis is the defendants’ intended meaning. In Bonnick v. Morris and others, [2002] UKPC 31, [2003] 1 A.C. 300, the Privy Council decided the “single meaning” rule, used to determine whether a statement is defamatory, should not be applied in considering whether the defence of responsible journalism has been established...

[55] In Grant the Supreme Court adopted this aspect of Bonnick...

[56] Here, ... neither Mr. Harder nor Mr. Tilley was asked about the meaning they intended to convey by the defamatory comments...

[57] The trial judge considered the meaning of the comments at several junctures. He initially examined this in deciding whether the comments were defamatory. ... at that point ... it is appropriate for the fact-finder to determine a single meaning of the words. The trial judge’s findings at that stage are set ... I am satisfied the comments reasonably bear the meaning he ascribed to them, with one exception. ... I agree with the appellants that there was ambiguity in the first article as to when (money) was repaid, and the less serious interpretation, that the funds were repaid two weeks after they were borrowed, should have been adopted by the trial judge. I am not convinced, however, that this played a significant role in his analysis.

[58] The trial judge ... examined the seriousness of the allegation and the tone of the articles (and) found they contained allegations “of a most serious nature”, and their tone was that Mr. Hansen had committed criminal actions founded in fraud and misappropriation leading to his being “busted”, as reflected in the third article. The appellants say the trial judge erred in taking the most serious view of the defamatory statements, and failing to acknowledge they could also be interpreted as suggesting Mr. Hansen was merely under investigation.

[59] ... I am not satisfied, however, that consideration of that alternative meaning substantially reduces the standard of responsible communication required to establish the defence. Mr. Hansen had spent his entire career in financial management of post-secondary educational institutions. Statements that police are investigating him for suspected fraud and misappropriation of funds are properly characterized as serious allegations. The ... had a duty to responsibly investigate and confirm those statements before publication. ... the use of the word “busted” in the headline of the third article could properly be interpreted as indicating the police had moved beyond the investigatory stage and had charged or arrested Mr. Hansen. ...

[60] The appellants’ second ... is that he gave too much weight to “minor” flaws in the ... report that were repeated in the publications ... The appellants point out that ... in his letter of (correction, the accountant) stated the corrections did not change his conclusion that there were significant problems ... under Mr. Hansen’s stewardship.

[61] ... this argument fails to appreciate the difference between the (of the) erroneous comments about Mr. Hansen and the context in which they were published. ...The appellants ... used (the) erroneous comments as the basis for allegations of potential fraud and misappropriation ... and gave them heightened reliability by wrongly describing them as the product of a forensic audit. In that context, I see no error in the trial judge’s assessment ...

[62] The appellants next criticize the trial judge’s treatment of the reliability and status of their primary sources...

[63] ... the trial judge found the appellants’ information came from his “flawed forensic review”, and was critical of Mr. Tilley for failing to ... make any attempt to verify the information in the ... report, and explore the difference between a forensic review and a forensic audit.


[65] ... it is not possible to say what would have transpired had Mr. Tilley tried ... but I am not persuaded the trial judge erred in finding he should have done so... I see no error in the trial judge’s view that the standard of responsible journalism required the appellants to discern the import and reliability of a forensic review in contrast to a forensic audit ... I agree with the trial judge that characterizing the report as an audit gave it an undeserved reliability. ... there were other sources at the DSU whom Mr. Tilley could and should have contacted to verify the circumstances ... that were the focus of the allegations ....

[66] ... The appellants argue ... Further, it is common and necessary for journalists to rely on second-hand information. Court-established certainty in reporting matters of public interest is not required.

[67] The trial judge ... dealt with the information ... finding Mr. Tilley was unable to confirm a police investigation when he contacted the police, and relied instead on second-hand information. ...


[69] Mr. Tilley tried to verify the investigation by speaking to the police and Nicole. Neither would confirm it. He then spoke to ... one of the DSU student representatives from the anti-Hansen faction, who confirmed the RCMP had called her and said an investigation would take place.

[70] I agree with the appellants the trial judge was wrong in saying there was no evidence to support the allegation of a police investigation. The question remains, however, as to the reliability of Mr. Tilley’s sources on that point, and whether the steps he took to verify their information were sufficiently diligent. ... there was a sufficient evidentiary basis on which the trial judge could find (the source's) views on those matters were not entirely objective, and Mr. Tilley should have sought verification of the police investigation from more neutral sources.

[71] The appellants next argue the trial judge erred in finding their efforts to contact Mr. Hansen and get his side of the story before publication lacked the expected diligence and balance of a responsible journalist.

[72] The trial judge ... found Mr. Tilley’s efforts to contact Mr. Hansen were limited to leaving email and voicemail messages for him at the DSU office. Mr. Tilley could provide no details of these messages, and Mr. Hansen said he did not receive them. The trial judge noted Mr. Tilley did not attempt to locate Mr. Hansen at his home although he had the means to do so. He also observed the third article stated Mr. Hansen was not available for comment, yet Mr. Harder was at a meeting with him in June before that article was published and had not bothered to speak to him.

[73] The appellants point out Mr. Tilley also asked Mr. Hansen’s supporters for his contact information, which they refused to provide. As well, the third article included part of Mr. Hansen’s side of the story, stating he said “he was entitled to the money as a result of outstanding overtime and other payroll issues” (and) say these steps, together with the messages left for Mr. Hansen at his office, were sufficiently diligent to meet the standard of responsible communication.


[75] I am satisfied there was a proper evidentiary basis for the trial judge’s finding that the appellants failed to demonstrate the required standard of diligence ... both Mr. Tilley and Mr. Harder testified they recognized their journalistic obligations required them to make every effort to contact Mr. Hansen and obtain his side of the story, given the serious allegations in the articles. Yet Mr. Tilley’s only attempt to do so involved leaving messages for Mr. Hansen at the DSU office, after his position there had been terminated. Moreover, Mr. Tilley ... agreed he may only have tried to call Mr. Hansen once at the DSU before May 8, and was unsure if he tried to email him there before the first article was published. He claimed he had “exhausted all options” to contact Mr. Hansen when the second and third articles were published, yet could not say what further efforts he had made to reach him. Finally (he) agreed he was aware of Mr. Hansen’s explanation for the $20,000 cheque very early on ... yet he did not include it in the first two articles ... the trial judge properly found the appellants’ efforts to obtain Mr. Hansen’s side of the story were inadequate.

[76] Finally, the appellants argue the statements about Mr. Hansen in the three articles were reportage and thus do not attract liability. The Supreme Court discussed reportage as an exception to the repetition rule ...

[77]... I am not satisfied the Supreme Court’s affirmation of the reportage exception assists the appellants. The three articles did not indicate their truth had not been verified. Nor did they fairly set out both sides of the dispute.

[78] In my view, the findings of the trial judge, re-examined in the framework established in Grant, properly lead to the conclusion that the defence of responsible communication on matters of public interest is not available to the appellants.

Thursday, October 28, 2010

Supreme Court of Canada will decide: What Constitutes Hate Speech in the Context of Anti-Homosexual Literature? - Case Comment by Corey D. Steinberg

The issue in this action is over four anti-homosexual flyers left in the mailboxes of various homes in Saskatoon and Regina, by Mr. Whatcott. This occurred during 2001 and 2002. Some recipients of the flyers filed complaints alleging that the message within them "promotes hatred against individuals because of their sexual orientation" in violation of s. 14(1)(b) of the Saskatchewan Human Rights Code.

At the first instance, a Tribunal heard the complaints, and concluded that the flyers did indeed contravene the Code.

Mr. Whatcott appealed, arguing that he was exercising his right to freedom of expression and freedom of religion and the flyers do not violate the Code. He argued in the alternative that if the materials do exhibit hate, it is directed towards sexual behaviour, which is not a prohibited ground. Finallly, he argued that if sexual behaviour is a prohibited ground within the meaning of sexual orientation, then the provision is overbroad and should be inoperative to the extent that it conflicts with s. 4 and 5 of the Code and s. 2 of the Charter of Rights and Freedoms.

The Court of Queen's Bench of Saskatchewan dismissed the appeal.

The Court of Appeal allowed the appeal.

Today, the Supreme Court of Canada granted leave to hear the final appeal on this matter, and we look forward to what the highest Court in this country will rule on this highly sensitive issue.

For further details see Saskatchewan Human Rights Commission v. William Whatcott et al (Sask. C.A., February 25, 2010) (33676)

Wednesday, October 20, 2010

Health Care Costs Recovery Act – Savings for Most of Us, or Costs Redistributed? - by Greg Diamond, Double Diamond Law Corporation

Recently, our local papers have published concerns expressed about the potential impact of the HCCRA within the recreation setting. One fear was that our Provincial Government would now be seeking compensation from the recreational activity provider every time a person was injured in the course of participation. To start with, this fear should be tempered as the HCCRA only addresses situations where the provider was deemed to be a “wrongdoer”. This folksy term is defined in the HCCRA as:

(a) a person whose negligent or wrongful act or omission causes or contributes to a beneficiary's personal injury or death, and

(b) a person who is responsible at law for the acts or omissions of a person referred to in paragraph (a), but does not include the beneficiary.

“Beneficiary” is the injured individual that required health care as a result.

On reading the HCCRA, it should be clear that it does not intend to deal with situations other than where there has been negligence or a wrongful act or omission involved. Thus, activity providers should not be concerned with situations where there has been no such “wrongdoing”.

However, it is not necessary that a lawsuit be started by the injured person for the Government to seek recovery for health cares costs. The HCCRA permits independent claims by the Government for such costs, regardless of the actions of the injured person. This begs the question, though, of how the Government would learn of the potential claim. For the situation where a lawsuit has been commenced, or a settlement of some sort has been reached, it is mandatory for the Government to be notified of any settlement or claim, and to include the health care costs recovery claim in any lawsuit that is commenced. However, where no lawsuit has been commenced, nor settlement pursued, there does not appear to be any provision whereby the Government would receive notice. Accordingly, it seems that the Government may be content to rely on people’s desire to pursue personal injuries compensation as the measure of the worthiness of pursuing a HCCRA claim.

Another issue that is not clear from reading the HCCRA, is whether a waiver of liability will relieve the activity provider of liability for health care costs. I raise this because the HCCRA talks in terms of “cause” as opposed to liability, and it is silent in regards to waivers. On plain reading of the HCCRA, it appears that the Government can make a claim, even when the injured person is precluded from doing so because they signed a waiver.

From my understanding, the HCCRA got its start when the Government enacted legislation to allow it to claim against the tobacco companies for the health care costs it spent on tobacco related illnesses. Having passed Constitutional mustard, it seems our Government then looked at a more wide-spread plan to recover health care costs for all forms of “wrongdoing”. The HCCRA was then enacted in April 2009. Why should the tax payer pay for expensive medical procedures necessitated by a negligent party? In most cases, I expect it will be a matter of recovery from insurance companies, which insurance companies have been doing with (to?) each other for years. But will this mean we will save money through a reduction in taxes? Who knows. Such gains may simply be counterbalanced by increased insurance premiums spread across the board, with the resulting increase in user fees for services. Time will tell, but, in the short term, recreation providers (among others) should be aware of the potential claims and insurance premium increases that may follow.

Saturday, September 25, 2010

New Drinking and Driving Laws or Just the Old Ones on Steroids ~ By Greg Diamond, Double Diamond Law, Whistler, BC

The “new” drinking and driving laws were brought into force this week and there is a surprising amount of awareness and chatter about them. I say surprising because many new drinking and driving laws have come into force in the past, but never with such awareness. I suppose this speaks to the success of the Government’s advertising campaigns. Good for them.

But, are these laws really so new?

First of all, the Criminal laws surrounding Impaired Driving have not changed since July 2008. The ones in the news now are Provincial, regulatory laws. Thus, people need not concern themselves with increased penalties or other changes within the Criminal sphere. As well, there is a myth that needs to be dispelled: the legal limit has NOT been lowered to 50 mg%. It is still 80 mg%.

What has come into force are increased penalties and sanctions imposed by the Province. These are not criminal. We have had 24-hour driving prohibitions for a very long time, which can be imposed by a Police officer at the roadside (immediately). The traditional means by which officers decided to impose this sanction was a “Warn” indication on an Approved Screening Device (ASD). A “Warn” is indicated when a person’s blood alcohol level is between 50 mg% and 100 mg%. Now, they have the power to impose 72-hour prohibitions for the same “Warn” reading plus a $200 fine (for first offence).

We have also had 90-day, Administrative Driving Prohibitions (ADP’s), for over a decade. These were imposed whenever someone blew over 80 mg% or if they refused to provide a breath sample. There was a right of review for ADPs and so they would not take effect for 21 days. What has changed is that they can now be imposed, effective immediately, and they come with a fine of $500.00, a 30-day vehicle impoundment, and the person must take the Responsible Drivers Programme ($900), and then drive with a breathalyzer device in the car (Interlock device) for one year ($1,700). Previously, these latter sanctions would only be imposed – by the provincial Superintendant of Motor Vehicles, upon conviction in Criminal Court for Impaired Driving, Driving while over 80 mg%, or Refusing to Provide a Breath Sample.

Why Should We Worry?

Of greatest concern is the fact that these tougher new sanctions can all be based on the ASD, as opposed to the more sophisticated breathalyzer machine (“Approved Instrument”) that is used at the police station. Up until now, the ASD has only been used as a screening device, to develop the grounds to require breath samples on the more reliable Approved Instrument. The Courts could not rely on the ASD results as evidence of impairment or blood alcohol level.

Thus, I have many concerns about this new procedure. The ASD was only ever prescribed to be a screening device. The Approved Instrument has many checks and balances designed to ensure its accuracy and proper operation, including generating printouts of the calibration and breath testing results. As well, it could only be relied upon if two proper samples were obtained. Not only does the ASD not have this level of quality assurance built into it, but now, only one sample from the ASD is required to impose the new sanctions. Simple factors such as very recent consumption of alcohol or a deep lung burp or regurgitation can artificially inflate the results on the ASD. Thus, many false positives may result in people losing their licence immediately for 3 months and then having to endure expensive mandatory programmes for the next year. Further, the rules of evidence that apply in Court, the burden of proof beyond a reasonable doubt, and the rights enshrined in the Canadian Charter of Rights and Freedoms (the “Charter”), do not apply to these new procedures. The latter would include the right of full disclosure of the evidence against you. And after all that, a person may still be charged criminally for the same actions.

So, no, the legal limit has not changed. But the penalties and sanctions imposed by the Province have dramatically increased. 24-hour prohibitions used to be a preventative measure that was not considered a form of offence. It is clear that they are seen as such now and that the focus of these measures is punitive. Sadly, they are based on very limited evidence. To my mind, our Province (ironically, headed by a convicted impaired driver), has decided that it cannot rely on the Courts to decide these issues and has substituted its own regime to regulate criminal driving offenses. However, it is doing so using procedures that do not offer the safeguards we expect in a free and democratic society. As a result, I expect to see a Constitutional challenge to these new laws in relatively short order and I am confident that it will succeed. I would relish the opportunity to be the one to make that argument.

Wednesday, August 25, 2010

Help save BC black bears found in Christina Lake drug bust ~ By Corey D. Steinberg

About three weeks ago, police raided an outdoor grow-op near the southern BC Interior town of Christina Lake, finding approximately 1,000 marijuana plants and more than a dozen friendly black bears. Police suspect the operators of the grow-op had been feeding the bears dog food in order to get them to stay present and guard the grow-op.

Public pressure is mounting for the government to save the black bears.

Originally conservation officers said the bears would likely have to be destroyed because they were so habituated to humans, however, an online petition calling for the bears to be protected has already collected more than 2500 signatures and there is now a second petition with over 1,500 signatures and aiming for 3,000.

In response, the government is looking at options to save the bears. B.C.'s Environment Minister Barry Penner says: "We are hoping the bears will move off and disperse on their own. If they don't, we're willing to try and encourage them to do that. Another option would be forced relocation with trapping and then taking them in a cage and then releasing them somewhere," he said. He admitted, however, that if the relocation is unsuccessful, it may be necessary for conservation officers to kill the bears.

Charges under the Wildlife Act are being considered against the woman who ran the grow-op, and who was feeding the bears. Acquaintances report she loved the bears like they were her children.

Click here to sign the petition

Wednesday, July 7, 2010

Holland v. Douglas - Suing Opposing Counsel for "lawyer misconduct" Leads to Finding of "abuse of the court" ~ By Corey D. Steinberg

Holland v. Douglas 2010 BCCA 345 - July 5, 2010

This was an appeal from an Order handed down by a judge in January dismissing the Claim of the Plaintiffs on the basis that the Statement of Claim must be struck as disclosing "no reasonable claim" at law.

The underlying action was framed in medical malpractice, but this appeal was specifically directed at the conduct of defence counsel, Ms. Douglas, and to the opinions expressed by Dr. Joschko, an expert who had prepared a report for the Defence. The self-represented plaintiff, Ms.Holland, brought this Appeal (in her words) to “deal with misconduct in court”.

She argued, despite direction by the Court to the contrary, that the Court had deprived the plaintiffs of their “day in court” and had swept the allegations of “lawyer misconduct” under the rug. Her alternative argument was that Madam Justice Levine of the Court of Appeal had committed a “deliberate act of misconduct” by “refusing” to hear the matter by way of an “evidentiary hearing”

Madame Justice Newbury wrote the unanimous judgment for the court, which included Madame Justice Kirkpatrick and Justice Groberman, concluding that:

[13] Ms. Holland made no attempt to come to grips with the fact, of which there can be no doubt, that with few exceptions (none of which applies here), a lawyer owes a duty of care only to his or her client and cannot be sued for consequences that may be suffered by other parties as the result of the lawyer’s doing his or her job. Ms. Holland simply refuses to recognize this fact. Similarly, Ms. Holland steadfastly insists that her son is under a disability and has a constitutional right to have counsel paid for by “the state” to act for him in the private litigation that Ms. Holland has pursued on his behalf and her own behalf.

[14] I have no doubt that Truscott J. was correct in concluding that the plaintiffs’ statement of claim disclosed no cause of action and indeed was an abuse of the court. I must also say in response to Ms. Holland’s complaint that she has not had her “day in court”, that the purpose of R. 19(24) is to ensure that claims that fail to disclose a viable cause of action or are frivolous, vexatious or abusive do not take up valuable trial time in the Supreme Court of British Columbia. The defendants’ application pursuant to R. 19(24) was an application in the normal course and the plaintiffs’ claims were not ‘swept under the rug.’ The outcome reflects the fact that the claims have no merit.

Link to full judgment:


Wednesday, May 5, 2010

Summary Trial: If no evidence to support Claim - Dismiss - Harrison v. BC (Child & Family Devpt) BC Ct of Appeal - May 5 2010 - By Corey D Steinberg

In a Summary Trial (18A under the BC Rules of Civil Procedure, but with similar provisions in other provincial Rules) each party is expected to put its best foot forward, and "lead trump" or risk losing. It is not up to the judge deciding the case to consider that something else could come up at trial.

This Appellate decision stands for the principle that the record before that judge is the record, and if there is no evidence that could support the claims made, the action should be dismissed.

(I have edited the case, below, for brevity; but a link to the full judgment appears at the bottom ~ CDS)
Harrison v. British Columbia (Children and Family Development),2010 BCCA 220 (May 5, 2010)

[3] .. Mr. Harrison filed a claim seeking damages of $520 million for the improper disclosure of personal information by the MCFD to Access House. …

[4] … alleging three causes of action in tort: negligence, defamation and misfeasance in public office.

[5] The appellants and Mr. Harrison each applied to have the action determined by summary trial … and it was their common position that this evidence provided an adequate basis to properly resolve the issues pursuant to R. 18A.

[6] At the summary trial, however, the trial judge disagreed. He dismissed all of the claims against Mr. McNeill, but declined to grant judgment with respect to the other defendants on the basis that there was a conflict in the affidavit evidence that left “too many questions unanswered”.

[7] The appellants appeal that order.

[10] In 1996 Mr. Harrison operated a licensed family child care in Sechelt, British Columbia, with his then spouse. In August 1996, a person … made an allegation that, five years earlier, Mr. Harrison may have abused his infant daughter.

[11] The Ministry intake worker in Sechelt opened an “Assessment Only” file. The allegation, the only ever made against Mr. Harrison, was noted to be “outside of statutory definition”. It was determined and noted in the file that no further action would be taken.

[13] Mr. Harrison contacted the Ministry to discuss the file, and was told by the intake worker that no investigation had or would be undertaken with respect to the unsubstantiated allegation. Mr. Harrison continued to operate the child care business with his spouse. No further action was taken by the Ministry, and no further complaints were received.

[15] On April 29, 2006, Mr. Harrison was interviewed by Access House’s program director, Marian Haden, for a temporary contract to assist staff with a particular youth with severe behavioural difficulties. At the conclusion of the interview he was told he had been hired …

[17] Because of the unusual manner in which Mr. Harrison was hired, neither the checks nor the training normally required by Access House policy were completed before he began ...

[19] At some time between May 10 and 12, 2006, Ms. Bischoff advised the acting program director of Access House, Jessie Ford, that the PCC had turned up a file concerning Mr. Harrison, and that she wished to investigate further. She also told Ms. Ford she wished to receive more specific consent to the disclosure of information before openly discussing the file. …

[20] On May 14, 2006, Mr. Harrison attended a meeting with Ms. Ford and Ms. Haden...

[21] The appellants argue that at the time of that meeting, no details regarding the contents of the file had been disclosed to Access House, and all Ms. Ford and Ms. Haden knew was that “something had come up”...

[22] According to Mr. Harrison, however, it was apparent at the meeting … the Ministry had reported it had a file regarding him and his daughter, it had not been properly investigated, and he was to be supervised while working with youth...

[23] On May 18, 2006, Mr. Harrison signed a second, more detailed consent to disclose, and was informed by Access House staff he would need supervision while working with youth, something Ms. Bischoff had suggested in an email that day “to be on the safe side” until her investigation was complete.

[24] On May 24, 2006, Mr. Harrison was told by Ms. Haden that, in light of the need for supervision, his contract of employment was terminated.

[25] Ms. Bischoff claims that it was only after receiving the second consent that she shared the general content of the file, her concerns about the adequacy of the 1996 investigation and her belief that the files as a whole contained some “red flags”...

[26] Within a week of his termination, Mr. Harrison requested a formal review by the MCFD … Mr. Harrison was dissatisfied with the outcome of the review, and filed a complaint with the Privacy Commissioner.

[27] In September 2007, the Commissioner found Mr. Harrison’s complaint to be unsubstantiated…

[28] Judicial review of that decision initially resulted in the matter being remitted to the Commissioner for consideration …

[29] In April 2008, Mr. Harrison brought the present action, seeking damages of $520 million against the Ministry, Ms. Bischoff and the MCFD regional director, Bruce McNeill. Both Mr. Harrison and the defendants applied to have the action determined by way of summary trial.

Reasons of the Summary Trial Judge

[30] At the summary trial, the judge dismissed all claims against Mr. McNeill.

[31] With respect to the claims against Ms. Bischoff, however… The trial judge determined a full trial was required because of “a conflict in the evidence that cannot be resolved simply by examining the affidavits and transcripts of the examinations for discovery ...

Issues on Appeal

[36] The appellants’ primary submission on this appeal (as it was at trial) is that the conflict in the evidence is immaterial to the merits of the case. They argue that the uncontested legal principles relevant to the three causes of action lead invariably to the same conclusion, irrespective of which version of events is accepted, that Mr. Harrison’s claims are not supported by the evidence.


[39] In my opinion, the evidentiary conflict identified by the trial judge did not preclude him from adjudicating the issues of negligence, defamation or misfeasance in public office. On the contrary, I find that the evidentiary record provides all of the facts necessary to grant the appellants’ application for summary judgment, and it would not have been unfair to do so.

The Correct Approach to Rule 18A

[40] … It is not a question of whether a full trial could conceivably “turn something up” or produce a different result…

[41] When an application under R. 18A is made, it is the obligation of the parties to take every reasonable step to put themselves in the best possible position and adduce all evidence they believe is necessary for judgment: Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 at para. 34. I find the parties had this opportunity, and note that the record before the trial judge was considerable.

[42] Appellate interference will be justified if the trial judge’s determination that judgment should not be granted under R. 18A is “clearly wrong”: McGregor v. Van Tilborg, 2005 BCCA 217 at para. 21. If all of the facts necessary to support the defendant’s application for dismissal could have been found in the evidentiary record, and it would not have been unjust for the trial judge to have done so, this Court will be entitled to substitute its opinion and dismiss the action: Pearlman v. American Commerce Insurance Company, 2009 BCCA 78 at para. 36.


[45] A claim in negligence can only arise if the defendant owes the plaintiff a duty of care: Cooper v. Hobart, [2001] 3 S.C.R. 537; Reference re Broome v. Prince Edward Island, 2010 SCC 11 at para. 12.

[52] The primary obligation of social workers operating under the CFCSA … provides that the safety and well-being of children must be the paramount considerations in the administration of the statute. It is in the context of this statutory mandate that Ms. Bischoff was expressly required to review the background of individuals seeking to work with vulnerable children in the care of the MCFD.

[53] Imposing a private law duty of care on a social worker to those whose background he or she must review for child safety concerns has the potential to interfere with their ability to discharge that vital task. More broadly, it would interfere with the paramount duty to the safety of the child … Accordingly, imposing a duty of care on Ms. Bischoff in these circumstances poses precisely the risk for inherent conflict …

[55] For these reasons, and irrespective of the conflict in the evidence, Mr. Harrison’s claim in negligence could not succeed...

Misfeasance in Public Office

[57] The second cause of action identified by the appellants in Mr. Harrison’s statement of claim is misfeasance in public office.

[58] To be successful, Mr. Harrison must prove either that Ms. Bischoff acted with the specific purpose of causing his injury (“Category A”), or that she was aware she acted unlawfully and knew harm to the plaintiff would be the likely result (“Category B”). In either case, Mr. Harrison must establish that Ms. Bischoff deliberately disregarded the obligations of her office, and was aware of the harm it would cause him: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263.

[59] There is no evidence whatsoever of Ms. Bischoff having acted with targeted malice against Mr. Harrison. …nothing in the pleadings or evidentiary record could possibly support a claim under Category A.

[60] As for a claim under Category B, I find that the evidentiary record—even when read in the manner most generous to the plaintiff, and with all conflicts resolved in his favour—is incapable of satisfying the requirements of this tort.

[61] Misfeasance in public office is an intentional tort requiring proof of bad faith. … “where bad faith on the part of a public official is alleged, clear proof commensurate with the seriousness of the wrong should be provided”. …

[63] … The evidence from the appellants is all to the contrary, and even if the version of events argued by Mr. Harrison were to be established at trial, the record would remain incapable of providing the “clear proof” necessary for a trier of fact to find that Ms. Bischoff acted with bad faith in her communications with Access House.

[64] The trial judge was plainly wrong to conclude that he could not find the facts necessary to adjudicate this claim, and I find the appellants are entitled to have the action in misfeasance in public office dismissed.


[65] The final cause of action raised by Mr. Harrison is defamation.

[66] I agree with the appellants that this action cannot succeed because the communications between Ms. Bischoff and Ms. Ford occurred on occasions of qualified privilege without malice.

[67] The defence of qualified privilege operates to protect otherwise defamatory communications that are made on occasions of qualified privilege. Privileged occasions arise where the person making the statement has an interest—legal, social or moral—to make the statement to persons with a corresponding interest or duty to receive it: Moises v. Canadian Newspaper Co. (1996), 24 B.C.L.R. (3d) 211 (C.A.); Haight-Smith v. Neden, 2002 BCCA 132 at paras. 52-55.

[68] In this case, Ms. Bischoff had a legal and moral duty to ensure the protection of youth in the care of the MCFD. Ms. Ford had a corresponding duty to receive information about an individual providing care to youth …

[69] The law is clear that statements made on such occasions are protected, as long as they are made in good faith and honestly for the purpose for which the privilege exists: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 79.

[70] The onus for defeating the defence rests entirely on the plaintiff: Netupsky v. Craig, [1973] S.C.R. 55. I have already concluded that there is no evidence that Ms. Bischoff acted with bad faith. Mr. Harrison has therefore failed to meet this onus, and the defence of qualified privilege remains a complete defence to his claim in defamation. It follows that the appellants are entitled to have this action dismissed.

Summary & Conclusion

[71] The evidence adduced at the summary trial provided all of the facts necessary to support the appellants’ application for dismissal of the claims against them, and it would not have been unjust to do so.

[72] Ms. Bischoff did not owe Mr. Harrison a duty of care in negligence, and there is no evidence of bad faith that would support the claim of misfeasance in public office or overcome the defence of qualified privilege to the claim in defamation.

[73] These conclusions are reached on the basis of facts and legal principles that are unaffected by the “unanswered questions” that concerned the trial judge. However those questions are answered, and whichever version of events is accepted, it would not advance Mr. Harrison’s claim. The result would be the same.

[74] Thus, the trial judge erred in concluding he was obliged to dismiss the appellants’ applications for summary judgment. The appellants are entitled to have the action against them dismissed.

[75] I would allow the appeal, set aside the order of the trial judge, and dismiss Mr. Harrison’s action.

“The Honourable Madam Justice Levine”

I Agree:
“The Honourable Mr. Justice K. Smith”

I Agree:
“The Honourable Mr. Justice Frankel”