Law Times

January 16, 2012

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Law Times • January 16, 2012 COMMENT PAGE 7 the Drummond report into where Ontar- io can fi nd savings and increased revenues in preparation for this spring's budget. Headed by Don Drummond, former S TD Bank chief economist, the commission has been poking around the books since last January and is set to report imminently. For fans of good drama, let me lay out the plot and characters because this is already a masterpiece of staged political theatre. We've already been treated to the pro- logue in that we understand the dilemma of the government and how it arrived at this unfortunate budgetary crossroads because the idealists put political dogma ahead of prudent cost containment. Th ink the Green Energy Act, the feed-in tariff program, the cancellation of gas-fi red tep right up, ladies and gentlemen, the show is about to begin. Th e buzz around Queen's Park these days is the anticipated spectacle of generators, and other debacles. Th en there's the plot device. Th e report is the object of desire or what the legendary Alfred Hitchcock called a MacGuffi n. Th e government has built up au- dience expectations that all will be revealed in the report and Drummond has played into this by telegraphing that the recom- mendations will be harsh. "Th ere is pain in every sin- Premier Dalton McGuinty Queen's Park has foreshadowed the response in noting that regardless of the recommendations, it will be the government's job to frame any decisions in the context of the party's philosophy and, ob- viously, how much pain it can expect Ontarians to bear. Here's the best part: Drum- gle chapter," he told Th e Globe and Mail in January. It's classic spin-doctoring. If you've got Ian Harvey bad news, get someone else to deliver it and release it in drips in the preceding weeks so it's not such a shock to the system. Th e second act will begin almost imme- diately aſt er Drummond tables his report as we follow which recommendations the gov- ernment adopts and which ones it jettisons. u LETTERS TO THE EDITOR LAWYER DISTURBED BY MED-ARB Th e family law rules that govern all family law matters before the courts in Ontario were the prod- uct of lengthy discussion, consul- tation, and debate among fam- ily lawyers, judges, and family law academics. Th ey are straightfor- ward, concise, and, in most cases, an improvement over the earlier procedures in family law governed by the Rules of Civil Procedure. Rule 17 of the family law rules addresses the many conferences that are now part of the fam- ily law process. Case conferences, settlement conferences, and trial- management conferences are governed by this rule. Specifi c direction is given to judges, law- yers, and parties as to what can and cannot happen at a particular conference. Briefs fi led on case conferences and on settlement conferences are excluded from the continuing (court) record and are to be returned to the parties at the end of the conference so as not to taint the record for the judge who is later to adjudicate. Th ere are restrictions on what may be disclosed to any other judge aſt er the settlement confer- ence. Rule 17(24) is an unequivo- cal prohibition excluding the judge who conducts the settlement con- ference from later hearing the issue and adjudicating. Fast-forward now to this era of expediency and speeding up the process and we now have a par- allel private court system where all of the above rules are jetti- soned (see "Med-arb splits ADR community," Law Times, Dec. 5, 2011). We have an unregulated profession of mediators and arbi- trators who have mostly decided that the rules should apply only to those foolish and/or poor enough to engage the public court system. "Yes, I as mediator can listen to your innermost thoughts and mo- tives about the case, can receive the minute details of your strat- egy and evidence all in the quite worthy quest for settlement, and then somehow magically disabuse myself of all of this when the arbi- trator hat goes on," someone might say. Sorry, I don't buy it. I admit to engaging in this med-arb process on rare occasion but never have I been satisfi ed with it. Sleepless nights follow any breakdown in the mediation pro- cess when I am locked into both with the same person. More oſt en than not, I beg off . If I am going to mediate and ar- bitrate, I seek agreement that the roles will be fi lled by two separate individuals. Foolishly, I still be- lieve in the rules of evidence, in due process, and in adjudication by a truly independent individu- al. I know my views are unpopu- lar but they seem right to me. I wish we had a unifi ed fam- ily court, but even in its absence I am consistently more satisfi ed with the trial process in the pub- lic courts than in private arbitra- tions. Family law mediators and arbitrators should be separately regulated. Th ose of us in the pro- fession should consider the appro- priateness of family law arbitrators continuing to practise family law. Consider full-contact family law litigation with an opponent who the following month will be the adjudicator in a family law dispute for which you are then counsel for one of the parties. Family law judges are wise- ly removed from such con- cerns. Rule 17 should be manda- tory and family law disputes, even those in the private court system, should be adjudicated only on a principled basis with an arbitrator truly independent of the dispute. I accept that we must move forward and better address the needs of family law disputants but I am not convinced that med- arb serves the public any better. If we are to adopt this private court system for family law as it appears most of the profession has, let's have it better regulated and more fi rmly grounded in the principles of due process and independence. Gary Joseph, MacDonald & Partners LLP, Toronto mond will take the heat. Th e government, then, can choose which recommendations it acts on and when to look like the good guys in the midst of all of the ex- pected doom and gloom. Th e issue is that the lifeline that the gov- ernment prayed for last spring in its bud- get — that the economy would be back on track by now and revenues would jump — just hasn't materialized. As a result, austerity measures will become the mantra. In fact, we've already had a taste of that with the cancellation of some $43 million in research grants. Th e government will also face pressure to bolster its eff orts to streamline the civil service and squeeze more revenue out of agencies and boards. While education and health care remain sacred cows among the Liberals, class sizes may increase and there will have to be a new deal with Ontario doctors. Th en there are the already-promised corporate tax cuts that the government may postpone or cancel. Th ose, however, are the obvious turning points. What we're waiting for, popcorn in hand, are the unforeseen gems that Drum- mond has unearthed. LT Ian Harvey has been a journalist for 34 years writing about a diverse range of is- sues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. 1946 Citizenship Act marked new defi nition of Canadian community O n New Year's Eve 1946, prime minister Mackenzie King noted in his diary that he had signed a letter to thank the Department of External Aff airs for issuing "me Passport no. 1 in which I am designated a Canadian citizen." "It is the fi rst of a new series which, for the fi rst time, related itself to Canadian citizenship," he wrote. King was also happy to receive the very fi rst certifi cate of Canadian citi- zenship dated Jan. 1, 1947, the day the Canadian Citizenship Act came into eff ect. While the federal government has recently Philip Girard History That's which thus allowed white people to circulate freely in the Empire but didn't aff ord the same right to people of other racial backgrounds. Aſt er the First World War, there was considerable restiveness in Canada about the common code. But there could be no change to Ca- nadian naturalization requirements without the agreement of Britain and all of the other dominions. One topic that came up repeated- ly was the status of married women. Th e common code said that alien become more aggressive in its approach to the issue through its vow to revoke the status of hun- dreds of citizens, people don't always realize that Canadian citizenship is a purely statutory cre- ation. Prior to 1947, anyone born in Canada was simply a "British subject resident in Canada." Canadian citizenship emerged largely out of the law of naturalization, which was key to na- tional development given our historic depen- dence on immigration. Canada adopted its own naturalization act in 1881. Its requirements were minimal: three years' residence, an intention to remain in Canada, and good character. But one was naturalized as a British subject resident in Canada, not as a Canadian citizen. At the same time, the status wasn't portable. A Ger- man naturalized in Canada would still be con- sidered a German in Britain or elsewhere. Aſt er 1900, discussions took place to try to regularize this situation. Britain and the domin- ions wanted to create a kind of imperial green card so that a person naturalized in Canada or New Zealand, for example, would be a British subject anywhere in the Empire. Th ey all agreed in 1914 on what became the common code of British subject status. Britain adopted the model law and any dominion that enacted it would now be able to grant a portable British subject status. Canada was the fi rst to opt in via its naturalization act in 1914. But by that time, the so-called white domin- ions were concerned about immigration from Asia. Taken at face value, the common code would have allowed British subjects from India or Hong Kong to enter Canada freely. But the do- minions lobbied for and obtained the ability to discriminate on racial grounds among classes of British subjects for immigration purposes. Th is wasn't considered a breach of the common code, www.lawtimesnews.com women who married British subjects of Canadi- an birth would acquire that status, while women of Canadian birth who married aliens would acquire their husband's status but lose their own. Women's organizations in Canada and around the Commonwealth lobbied for decades to have the national status of married women be- come independent of marriage. But that change wouldn't come until the Canadian Citizenship Act of 1946. In spite of increasing Canadian discomfort, the common code stayed in place until aſt er the war. In a burst of postwar nationalism, the King government adopted the Canadian Citizenship Act without consulting Britain or any of the other dominions. In fact, the Canadian Citizen- ship Act, in making the notion of British subject largely irrelevant, was a constitutional bombshell in Britain. In eff ect, it destroyed the common code by ignoring it. On Jan. 3, 1947, King attended the fi rst Cana- dian citizenship ceremony at the Supreme Court. He was immensely pleased with the occasion, noting that "the one real omission was not having any representatives of the negroes and the Indians among our citizens. It would have made clear that colour was no bar to citizenship; would have rec- ognized those who are descendants of a slave race." Racial categories in immigration law would remain in eff ect for some time, but the Citizen- ship Act marked the beginning of a new and more open approach to the defi nition of the Ca- nadian community. LT uPhilip Girard is a legal historian and professor at Dalhousie University's Schulich School of Law who's currently teaching at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@ osgoode.yorku.ca. Drummond show readies for launch

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