Law Times

September 17, 2018

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Page 2 September 17, 2018 • Law timeS mier has the power to invoke the notwithstanding clause and it's "certainly a legislative option available to him. "It would be a dark day for de- mocracy if he did." Butt says the decision by Be- lobaba was important because it provides "significant advance- ment" of the law in terms of the relationship between freedom of expression and democracy. "Tough cases either make bad law or they advance the law," he says. Lawyer Aaron Wudrick, fed- eral director of the Canadian Taxpayers Federation, says his organization supported the province's appeal and believes there is a strong legal argument to be made that Belobaba's anal- ysis blurred the lines between s. 2 and s. 3 of the Charter. "We believe parliament is su- preme," says Wudrick, who did not take a stance on the invoca- tion of s. 33. Alex Neve, secretary general of Amnesty International Can- ada, on the other hand, said in a statement that questions about the interpretation and applica- tion of the Charter "should be pursued through appeals and left to judges to determine." "No government in Canada should take the contemptuous step of disregard for the Charter of Rights that the notwithstand- ing clause offers them," he said in a statement. One legal issue the province might encounter is the issue of making the appeal of Belobaba's decision moot, either by wait- ing until after the election or by mentioning or going forward with invoking s. 33 and the not- withstanding clause, says Mat- thew Fleming, a partner at Den- tons Canada LLP. The appellate court has the discretion to hear an appeal that has been rendered moot anyway, Fleming says, which may be important if the province wants the precedent set by Belobaba's decision to be reversed on appeal. "By saying that the govern- ment is invoking the notwith- standing clause, and if the gov- ernment proceeds, the govern- ment has handed an argument to the city on mootness that the city may not otherwise have had," Fleming says. LT — With files from Gabrielle Giroday The province's invocation of s. 33 comes after an "unprece- dented" decision written by Jus- tice Edward Belobaba, a judge at the Ontario Superior Court of Justice, who said in a ruling released Sept. 10 that the prov- ince's bill to cut the size of city council "clearly crossed the line." The decision, City of Toronto et al v. Ontario (Attorney Gen- eral), 2018 ONSC 5151, focused on a challenge to the constitu- tional validity of a provision of Bill 5, presented by the provincial government to change the num- ber of wards and councillors to 25 from 47, according to Belobaba. He said the provisions of the bill were unconstitutional and should be set aside immediately to allow for planned elections on Oct. 22. Ontario Premier Doug Ford, however, said the province will fight the court's decision, indi- cating that it's the courts, not the province, that crossed a line. "No one else is the judge and jury but the people of Ontario," Ford said at a press conference Sept. 10, the same day Belobaba released the ruling. "[W]hen we cross that line, that is very concerning to me as the premier." Ford said at the conference that "virtually every single legal expert agreed that this law was completely constitutional and within the legal power of the province to enact." "What is very concerning moving forward is if our deci- sions in changing the laws to make this province better, make it more efficient, build tran- sit, build infrastructure, build housing, is being shot down by the courts? That's scary. That's disturbing," Ford said. On Sept. 13, the majority of City of Toronto councillors vot- ed in favour of exhausting "all le- gal avenues, including the appeal of any further judicial ruling(s)." Mathen says that the chances of challenging election results are slim. "We generally frown on peo- ple challenging the results on the basis of anything other than ir- regularities in the actual voting," she says. Mathen says federal disallow- ance cannot block the province's efforts either, and there's no clear case for intervention from the Supreme Court of Canada. "Before the Supreme Court can weigh in, the issue has to get to them somehow," says Aaron Dantowitz, a litigation partner at Stockwoods LLP in Toronto. He says that, apart from the matter of Bill 5's constitutional- ity working its way through the appeal process, the only other mechanism to put the matter be- fore the Supreme Court would be a "reference." He says this is where the fed- eral government can refer a ques- tion to the Supreme Court for its opinion, including a question about the constitutionality of pro- vincial legislation. But there would have to be a good reason for the federal gov- ernment to want to get involved, says Dantowitz. "It seems like a rather remote possibility in these circumstances." As the notwith- standing clause's force fades in five years' time, moving forward with an appeal would ensure the legislature would avoid having to renew the legislation every five years, says Dantowitz. David Butt, a Toronto-based criminal lawyer, says the pre- amid the arrival of the planned courthouse on Armoury Street. "Madam Attorney, if Ontario is going to complete provincewide expansion of [Unified Family Courts] to all sites by 2025, we must have a commitment from the Ontario government that suf- ficient facilities will exist to prop- erly support it," Smith said. Smith lauded the Uni- fied Family Court expansion planned in Ontario, thanking both the justice minister and attorney general for their help. But she also noted the heavy workload of Ontario's judges. There are 21 judges in the Court of Appeal with one vacancy, 202 judges in the Superior Court of Justice, which has 16 vacancies, and 33 judges in Family Court, which has one vacancy as of Sept. 1, according to the website of the Office of the Commissioner for Federal Judicial Affairs Canada. "We can only do so much when 21 judicial vacancies, ap- proaching nearly 10 per cent of our full-time judicial com- plement, are left vacant for months on end," Smith said. "I have written to the minister of justice about this issue, urging that a new system be established for filling judicial vacancies im- mediately and seamlessly as they arise. I ask that you please, again, pass on this message." Sean Gaudet, a senior coun- sel at Justice Canada, said the justice ministry recognized the pressing need to address court delays and that the ministry considers it a high priority to fill the vacancies with meritorious candidates as quickly as possible. Other issues addressed at the ceremony included the turnover in the judicial system and the importance of modernizing the courts and improving access to justice. "Since I spoke to you last year, our court has seen tremen- dous turnover in our judicial officers — with 27 new judges and 17 new justices of the peace joining our bench," said Chief Justice Lise Maisonneuve of the Ontario Court of Justice. "This inf lux of new appointments has meant an increased workload for our administrative judges and justices of the peace." Maisonneuve said she looks forward to working with Mulro- ney to further "common goals of serving the public through a fair and impartial justice system that is accessible to all." Law Society of Ontario Treas- urer Malcolm Mercer echoed calls to fill judicial vacancies and for reforms that support a "com- petent, independent" court sys- tem as a "foundation of our free and democratic society." Ontario Chief Justice George Strathy used the Opening of the Courts ceremony to remark on the open and transparent nature of the judiciary. "Judges explain their decisions with reasons, and their reasons and decisions are open to public examination and criticism," Stra- thy said. "Our decisions are open to appeal. . . . [D]ebate is the sign of a healthy democracy." LT NEWS Tensions highlighted? Continued from page 1 Continued from page 1 'As lawyers, never accept a conclusion as given' © 2018 Thomson Reuters Canada Limited 00251LD-92563-NK Get the latest insight on construction law trends and issues Available risk-free for 30 days Online: Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # L7798-8629-65203 $194 Hardcover May 2018 approx. 250 pages 978-0-7798-8629-6 Annual volumes supplied on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. The new 2018 edition of this annual journal includes insightful articles, each covering current issues in construction law. New in this edition • Net Profit or Gross Profit? by Jasmin Lefebvre, LL.M. and Guy St-Georges, CPA, CA, CFF, CFE • Summary Judgment in Construction Cases – Has the Culture Shifted? by Brendan Bowles and Markus Rotterdam • Regulating Project Risk: Project Development in the Regulatory State, by Allan Wu, with assistance from Stuart B. Hankinson, Q.C. • Fairness and Transparency in Large Project Public Procurement, by John Haythorne and Mollie Deyong • Facing Facts - Problems with Factoring Agreements in the Construction Context, by John Kulik, Q.C., with the assistance of Melanie Gillis and Daniel Watt • Primacy of the Right to Arbitrate Under a CCDA/ CCA Contract: Substance Over Form, by Colin D. Piercey and Laura Rhodes New Edition Journal of the Canadian College of Construction Lawyers 2018 Editor-in-Chief: Brian Samuels Bernard Quinn and D. Geoffrey Machum, Q.C.

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