Law Times

lAw Times • April 8, 2013 Page 7 COMMENT Abella captivates audience with defence of judiciary Y ou don't have to be a great jurist in Ottawa to know how Prime Minister Stephen Harper and his pals feel about the Charter of Rights and Freedoms and the Supreme Court that upholds that great document. The 30th anniversary of the Charter came and went last year and there was very little that Harper saw fit to celebrate. In any other democracy, there would have been a big celebration with jurists and politicians coming from all over the world. Instead, Harper spent a fortune celebrating a war 200 years ago between the British and the Americans on this continent, a conflict that changed nothing and never got beyond the Great Lakes. There were military marches and parades, musket shootings, tall and short ships, canoe flotillas, re-enactments of battles, dances, and parties of all kinds. Harper had so much fun he's decided to spend millions more and keep the party going into 2013 and 2014. There's no truth, however, to the story going around Ottawa that he bought a set of lead soldiers for his basement at 24 Sussex Dr. to recapture his lost youth. Last year, Harper and his pals didn't even attend the Charter celebrations. They didn't attend the Charter's 25th anniversary celebrations five years earlier either. Had there been muskets to fire off, maybe Harper and company would have attended. Can you blame him? Who cares about a dull Charter when you can go around firing off real muskets? So it fell to the lawyers, judges, and jurists in the national She figures the "anxiety capital to celebrate the Charclearly sprang from the constiter, which they did a couple of The Hill tutionalization of the Charter." weeks ago. For centuries, judges in the They held a well-attended common law system had been symposium at the University handing down judgments that of Ottawa honouring the leended up having the force of gal contributions of former law, whether it was about slavSupreme Court justice Louise ery, race, religion, family or the Charron. It was a big success. rights of women. That was long Of course, neither Harper nor any of his ministers were there. Richard Cleroux before there was any Charter and nobody accused judges of The keynote speaker was Justice Rosalie Abella, whose address was as going too far and writing law. She cited a few cases. A judge in 1873, for much about how the Charter has changed our society as it was about her former col- example, ruled that "the paramount destiny and mission of women are to fulfil the noble league on the bench. Abella was in rare form. She defended and benign offices of wife and mother." In 1905, a judge ruled that support our judicial system and the Charter of Rights, both of which have been under laws were desirable so that "wives would attack by political opponents for the past be preserved from imminent temptation." 30 years. In 1915, a judge found that admitting But she carefully avoided blaming any particular federal government. She didn't women to the legal profession would be "a manifest violation of the laws of public even mention Harper's name. Abella spoke about "judicial myths" decency." A court ruled in 1929 that the word that "sprang out of the closet" after the "persons" included women. Another Charter became law. When the Charter came in, people court ruled that the word "persons" didn't suddenly took an interest in the justice include women. The courts ruled in 1939 that freedom system, she said, as well as the protection of fundamental rights and how far the of commerce took precedence over the rights of blacks to be served beer. courts should go in protecting them. A court ruled in 1949 that the sancThe debate about the courts' powers, what Abella called "the debate over the tity of contracts and restricted covenants appropriate scope of the judicial role," be- took precedence over the rights of Jews to buy property. came "particularly intense." "Not one of those judges" who decided "The debate isn't new," she said. "What was most surprising to most judges was those things, said Abella, faced accusahow anxious most people were about things tions of unduly making law or having a political agenda. most judges had long considered truisms." "So what changed 30 years ago?" asked Abella. Why was there so much fuss when the Charter came in? "It was not so much what judges did but how what they did was described by people who were not happy with their decisions." They conveniently ignored, she continued, that for centuries common law judges had been doing exactly what they did after the Charter came into being. Abella said that the second big myth was that judges who had opinions were biased. Weighing social values and taking public policy into account in making a judgment doesn't impair neutrality and impartiality, she countered. "I think that pretending that we don't take opinions into account and refusing to confront our own personal views and not being open in spite of them is a bigger risk to impartiality," said Abella. "But neutrality or impartiality does not mean and can't mean that the judge has no prior conception, opinions or sensibilities. It only means those preconceptions should not close our minds to the arguments presented. There's a critical difference between an open mind and an empty one." You could have heard a pin drop in the hall at this point. We've heard judicial defences of the courts before. This happened to be a particularly good one. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. Lawyers eager for clarity on limitation periods for equitable claims T The decision is very well reasoned and is an he issue of limitation periods in equiexcellent review of limitations laws in Ontario, table claims in family law has been an Family including the legislative history and intent when area of confusion for quite some time, Law the new limitations scheme was in development. particularly on the heels of the Supreme All family lawyers should read the decision, parCourt's decision in Kerr v. Baranow and Vanasse ticularly in our current climate of increasing unv. Seguin in 2011 and the unjust enrichment litijust enrichment litigation. gation that has followed as well as the additional Perkins conducts a thorough analysis of the questions sparked by the new Limitations Act in Limitations Act, specifically s. 4 that provides for Ontario a number of years ago. Thankfully, Suthe basic two-year limitation period from the perior Court Justice Craig Perkins brings some date of discovering a claim and s. 5 that enumerclarity, at least for the time being, to the issue. ates specific elements necessary to determine Historically, claims in equity, including Marta when someone discovered or should have been those for unjust enrichment in family law, were Siemiarczuk aware of a claim. thought to have no specific limitation period and Ultimately, Perkins comes to the conclusion that as were simply subject to the doctrine of laches or equitable estoppel. So where do we stand now? The short answer, ac- a result of the factors enumerated in s. 5 of the Limitacording to Perkins, is that if a party is seeking a construc- tions Act, the two-year limitation period can't apply in tive trust remedy in respect of real property, then a 10-year the context of unjust enrichment claims in family law limitation period under the Real Property Limitations Act because the requirements may make it impossible for applies. All other unjust enrichment claims in family law some claimants to assess discoverability given the parcontinue to have no statutory limitation period and are ticular nature of such allegations. When, for example, did the loss or, more appropriately, the unjust enrichment subject to limitation by the courts' equitable jurisdiction. In McConnell v. Huxtable, Judith McConnell brought occur? Thereafter, Perkins canvassed the Real Property Limitaan unjust enrichment claim against Brian Huxtable. She sought a constructive trust remedy for an ownership inter- tions Act and its applicability to constructive trust claims est in a home where she alleged the parties cohabited and in matrimonial matters. Dismissing Huxtable's argument sought damages for unjust enrichment in the alternative. that a constructive trust claim for property isn't an action She also raised other claims, including for spousal support. to recover land as stated in that act, Perkins concluded that Huxtable denied that the parties had cohabited in a recovery of land can include a court ordering an interest in spousal relationship. McConnell argued the parties had land where technically one didn't exist previously. Notably, the Real Property Limitations Act doesn't have the same been in a spousal relationship for roughly 13 years. Huxtable brought a motion for summary judgment. He rigid criteria of discoverability as Ontario's Limitations Act. took the position that the two-year limitation period un- However, the test still requires an assessment of when the der Ontario's Limitations Act had passed and therefore the right to bring such an action first accrued, a requirement unjust enrichment claim was statute barred. McConnell that can ultimately leave the parties with the same difficulty argued there was no statutory limitation period and only as trying to assess the Limitations Act criteria. What's eminently clear from this case and conversations equitable principles applied. Alternatively, she said that if there was a statutory limitation period, it was the 10-year I'm sure most of us have had with other colleagues in the time frame under the Real Property Limitations Act that family law bar is that we need either some form of appellate clarity on the issue of equitable claims in family law when it applied and her claim could therefore proceed. www.lawtimesnews.com comes to limitation periods or, alternatively, another crack at revisions to or clarification on the revamped scheme by the legislature given the changing landscape. In the meantime, family practitioners should confirm with the other side that they're not going to rely on limitation periods if they're trying to negotiate before initiating an actual court application. LT uMarta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta. siemiarczuk@nelligan.ca. u Editorial corrEspondEncE TEEN CONVICTED FOR ONLINE CHAT NEEDS HELP More important than what he was charged with is what they will do with this young man now. He needs therapy. A lot of it. He probably needs medications. He needs to engage in courses to try to correct some of his deepseated hatred towards women. What can we do to rehabilitate him and protect society from his harmful urges? The research suggests that sexual sadists are hard to rehabilitate, but I think we have to at least give it a concerted effort. What's our alternative? Locking these sorts of people up and throwing away the key? I feel for his parents and I hope they, too, get help for the guilt and confusion they are bound to feel over the supposed failure of raising their son. I just hope we're not reading a case note about this man a decade from now after he's carried out these vile fantasies. Comment on lawtimesnews.com by Susannah about "Threat conviction for Facebook chat considers line between fantasy, intention."

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