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.