Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt .... Kimberlee Pascoe ©Law Times 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. sepTember 13, 2010 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $135.00 + HST per year in Canada (HST Reg. #R121351134) and US$266.25 for foreign address- es. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jclancy@clbmedia.ca or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Accommodating candidates with disabilities for discussions on the need to accom- modate candidates with disabilities. Barbara Hall, chief commissioner of W the Ontario Human Rights Commis- sion, raised the issue recently in her an- nual report for 2009-10 (see page 11, Law Times). "There's a general move- ment to accessibility in all parts of life," Hall tells reporter Robert Todd. "A real- ity for people with disabilities who wish to run as candidates, however, is that there are a lot of things that need to be looked at and solutions found." Among the issues Hall identifies is ith municipal elections set to take place across the prov- ince this fall, it's a good time the need to make locations for campaign offices, meetings, and debates more ac- cessible. In addition, she's calling on the government to acknowledge the added expenses candidates with disabilities face, including those related to sign-lan- guage interpreting. As a result, she rec- ommends removing those costs from the campaign expense limits those vying for public office must abide by. "At the very minimum, the need to incur those costs shouldn't be included under the spend- ing limits," Hall says. "But I think as a society we need to look more broadly at whether the individual candidate should have to bear those costs." The issue is particularly relevant to municipal elections. In those contests, candidates run independently with no party affiliation, meaning those with dis- abilities often have little outside support for their added expenses. It seems reasonable, then, to fol- low Hall's recommendation to exempt them from campaign spending limits since it's an easy way to address the ac- cessibility gap. The question of covering candi- dates' added costs, however, is more complicated. Who or what body would pay for them? What would the support cover? The issue is tricky given the need for the government to stay neutral in elections. Any move to provide added funding beyond what other candidates receive could provoke concerns over perceived advantages in elections. That's not to say people with disabilities shouldn't receive help, but how to do so remains a challenge. In the meantime, Hall is right to raise an important issue. If we're going to make meaningful progress on reducing barriers, creating a level playing field for people with disabilities to run for office and take on key political roles is crucial. Until then, it's unlikely we'll see those in that situation represented in our pub- lic bodies in numbers proportionate to their share of the population. — Glenn Kauth harmonized sales tax in Brit- ish Columbia and Ontario has had a material impact on vari- ous sectors of those provinces' economies, in no one industry has the effect been more dra- matic than in the new-home construction business. A few recent tidbits from W the major dailies tell the story, including the headline from The National Post that declared, "Home sales tumble; new B.C., Ontario tax knocks wind out of real estate market." According to the Post, home sales were down 30 per cent in July from last year with the blame placed squarely at the feet of the new HST. While the implementation of the HST seems to have gone over in Ontario as somewhat of a fait accompli, the same isn't true in British Columbia. There, the battle against the tax has gone be- yond the political arena and has now drifted into the legal sphere. British Columbia has unique legislation that enables the pub- lic to recall elected officials and bring forward a bid to force the legislative assembly to consider new laws or changes to existing hile it's safe to say that the recent in- troduction of the Harmonized sales tax goes to court The ones. In order to effect such a process, British Columbians must successfully mount a peti- tion that captures the signatures of at least 10 per cent of the eligible voters in every riding in the province. While it's no small task, a coalition of anti-HST activists led by former premier Bill Vander Zalm recently ac- complished it with great fanfare. In total, the petition amassed more than 700,000 signatures of people opposing harmoniza- tion with the federal goods and services tax. Furthermore, those signatures came with a distri- bution sufficient to cross the 10-per-cent threshold in each of the 85 ridings in British Colum- bia, which makes Vander Zalm's anti-HST petition, according to The Globe and Mail, "the first successful citizen-sponsored ini- tiative in B.C. history." Concurrent with the petition, Vander Zalm's anti-HST cam- paign also launched a constitu- tional challenge against the im- position of the tax. In a matter before the B.C. Supreme Court, it's arguing that the introduction of the HST was unconstitutional and, as such, it was illegal to im- plement it there. The arguments the campaign is relying upon Chief Justice Robert Bauman Dirt By Jeffrey W. Lem are, according to its own lawyer, "so complicated that it will take at least two days to fully argue before the court." A key plank of the constitutional challenge rests on whether the B.C. govern- ment could bring in the HST by way of an agreement endorsed by order-in-council and thereby avoiding the need for a parlia- mentary debate altogether. The constitutional challenge is far from a slam dunk, notwith- standing the seeming popular- ity of the concurrent anti-HST petition. There's a long list of credible and powerful interested parties intervening in favour of the HST, including the Council of Forest Industries, the Mining Association of British Columbia, the Independent Contractors and Businesses Association of British Columbia, the Western Convenience Stores Association, the Coast Forest Products Asso- ciation, and the B.C. Chamber of Commerce. www.lawtimesnews.com will have heard the case at the time of writing, but it may be some time before the court ac- tually renders a decision on the constitutionality of the HST. But in what's being hailed by most of the press covering the issue as a partial victory for the anti- HST forces, the court dismissed a preliminary argument by the government to stay the petition matter pending the outcome of the constitutional challenge. The victory is said to be partial only because the petition, even as it proceeds, is far short of an assur- ance that it will lead to repealing the HST. Indeed, all it achieves so far is to force a proposed bill ending the HST to a standing committee which, in turn, has to decide whether or not to direct such legislation to the provincial legislature for a vote or to a refer- endum. Neither scenario actually guarantees a repeal of the tax. Likewise, even if the con- stitutional challenge succeeds, especially if the defect at issue is procedural in nature, there's no prohibition against the gov- ernment simply reintroducing the harmonization bill in a less problematic manner. Such nay- sayers miss the point, however. It's reasonable to suspect that the true strategy of the anti-HST campaigners is to use these legal manoeuvres to redirect the de- bate back into the political arena where they can achieve perma- nent change. So far, they seem to be succeeding. So while Ontario and British Columbia's new-home builders continue to collect and, in most cases, absorb the HST, there's at least some faint hope going for- ward for a repeal of the tax out West. Legally, this faint hope flickers fainter still in Ontario, which has neither a comparable recall and initiative statute al- lowing grassroots petitions to dictate the government's agenda nor a legislative history of HST enactment that's similar to the is- sue at hand in the B.C. Supreme Court. That said, if the goal of anti-HST activists really is to simply reintroduce the tax into the political domain, the sheer fervour and fanfare with which they're pursuing their agenda may very well have already done so on a national scale. LT Jeffrey W. Lem is a partner in the real estate group at Davies Ward Phillips & Vineberg LLP. His e-mail address is jlem@dwpv.com.

• Cover
• Sophisticated Scams
• HST On Trial
• Focus On Human Rights Law