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Page 4 April 9, 2018 • lAw Times www.lawtimesnews.com NEWS NEWS NEWS McRobert, a Peterborough, Ont. lawyer who is involved in the working group. "And we need to make sure there are adjustments to the process to allow them to do that in recognition of the historical injustices that Indigenous peo- ple in Canada faced." The working group says it is not pushing a different mean- ing of good character for Indig- enous applicants or that they have a lower standard to meet. The group says it is simply asking that the law society con- firm it is weighing the appropri- ate factors in its assessments. The group added that its motion is a response to the law society's report approved in late 2016 that identified widespread barriers faced by racialized li- censees at all stages of their ca- reers, including law students. Lawyers say there is a need to make sure that the process for becoming a lawyer does not unfairly penalize racialized ap- plicants. Sue Tonkin, a spokeswoman for the law society, said in an emailed statement that the mo- tion was received. "We welcome the discussion that will take place at the annual general meeting," she said. The motion also calls on the law society to deliver a prelimi- nary report on the requested re- view within six months. If the motion passes, it would not be binding, but LSO benchers would have to con- sider it. LT of a "gap around the issue of de- termining suitability in the con- text of good character." The motion calls on the law society to ensure that the back- ground and systemic context of Indigenous people are consid- ered in such assessments. These factors have been ap- plied in the criminal context since the Supreme Court of Canada ruled in R. v. Gladue that judges must take into ac- count an Indigenous offender's background as well as systemic factors when it comes to sen- tencing. The Supreme Court later re- affirmed those principles in R. v. Ipeelee. The law society has applied the Gladue principles in a dis- cipline proceeding against an Indigenous lawyer. But the working group says it is not clear whether the law so- ciety is taking these factors into account when assessing good character. "It's just really opaque. We don't know what's going on behind closed doors. We don't know what they're taking into consideration," says Sari Gra- ben, an assistant professor in the department of law and busi- ness at Ryerson University's Ted Rogers School of Management. Part of the motion calls for the law society to ensure the process is transparent. Graben, who is part of the working group, says getting more transparency would give Indigenous candidates greater certainty and a better idea of what is being considered in these assessments. Lawyers say that taking into account the Gladue and Ipeelee context when assessing good character is important to ensure diversity of the bar and bench. The working group says there need to be more Indigenous lawyers if Canada is going to address the distrust Indigenous people have of the country's le- gal systems that was identified in the Truth and Reconciliation Commission's final report. "We need more Indigenous lawyers. We need to encour- age more Indigenous people to practise law," says David knowledgement that purports to do so is void. In this case, the ski hills were both occupiers as well as suppli- ers of services under the CPA. Motions judges found con- sumer protection law applied. The Court of Appeal came to the opposite conclusion, finding the right of the occupier to limit its liability trumps what is in the CPA. While the plaintiffs argued that the relevant parts of the two pieces of legislation could be read together harmoniously, the Court of Appeal found that there was an unavoidable con- f lict between the two and that they were irreconcilable. "The OLA permits an oc- cupier to obtain a waiver of li- ability. The CPA precludes a supplier from obtaining a waiver of liability. In other words, what the OLA permits, the CPA pro- hibits," Justice Ian Nordheimer wrote in the decision on behalf of a three-judge panel. Nordheimer added that, un- der this conf lict, the ski resorts would be held liable for "some- thing that they thought they had lawfully protected themselves against" and that such a result would be "absurd." The Court of Appeal found that the OLA was intended to be an exhaustive scheme in rela- tion to the liability of occupiers to people on their property and that its purpose would be under- mined if the CPA "were allowed to reintroduce another novel contractual duty." The court concluded that the OLA was more specific in rela- tion to waivers and should ap- ply. This meant that the waivers bound the two plaintiffs. "This is so regardless of whether their claims are in tort or for breach of warranty," Nord-heimer said. Shantona Chaudhury, one of the lawyers representing both plaintiffs, says the Court of Ap- peal's decision is troubling as it waters down the scope of con- sumer protection law. "The general take on con- sumer protection law is it has to be interpreted very broadly and in favour of the consumer and the whole point of it is to protect consumers," says Chaudhury, a partner at Pape Barristers PC. "What they've done in this deci- sion is essentially made a big ex- ception in consumer protection law for occupier's liability." Chaudhury adds that the de- cision may well have application in other cases as well as it says something about how to inter- pret consumer protection law generally. Edward Chadderton, one of the lawyers who represented Snow Valley Ski Resort, says the decision brings some certainty to the law in this area as there was some conf lict between the two earlier underlying decisions. "If they hadn't been set aside, it would have led to some confu- sion in how to deal with [waiv- ers] when raised as a defence," says Chadderton, a partner with Carroll Heyd Chown LLP. The case attracted the atten- tion of a number of groups that chose to intervene in the ap- peal, including the Ontario Trial Lawyers Association and the Canadian Defence Lawyers. Jim Tomlinson, who repre- sented the Canadian Defence Lawyers as interveners, says the reason for so much interest was the underlying decision's poten- tial implication for waivers. "The net effect would have been to render waivers somewhat hollow," says Tomlinson, a part- ner with McCague Borlack LLP. The lawyer representing the OTLA in its intervention did not respond to a request for com- ment. Chaudhury says she does not know yet whether the plaintiffs intend to seek leave from the Supreme Court of Canada to ap- peal the decision. LT Affects sports, recreational industries Continued from page 1 Continued from page 1 Are background and context considered? Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # A16523- INV–65203 £509.00 Hardcover S.O. Bound Supplemented Publications - INT Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. © 2018 Thomson Reuters Canada Limited 00249XU-A91976-CM New Edition Benjamin's Sale of Goods, 10th Edition Michael Bridge The tenth edition of Benjamin's Sale of Goods provides comprehensive advice on case law and legislation regarding sale of goods in the UK and globally. First published in 1868, this title is a must-have purchase for commercial practitioners, academics, and barristers. 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