Date: 2006-01-12 Docket: CA33447 Parallel citations: 262 DLR (4th) 681; 49 BCLR (4th) 82 URL: http://canlii.ca/t/1mb94 Citation: Radke v. M.S. et al, 2006 BCCA 12 (CanLII), retrieved on 2014-01-09

Date: 2006-01-12
Docket: CA33447
Parallel citations: 262 DLR (4th) 681; 49 BCLR (4th) 82
URL: http://canlii.ca/t/1mb94
Citation: Radke v. M.S. et al, 2006 BCCA 12 (CanLII), <http://canlii.ca/t/1mb94> retrieved on 2014-01-09
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COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Radke v. M.S. et al,




2006 BCCA 12


Date: 20060112



Docket: CA33447

Between:

Christopher Radke

Respondent

(Plaintiff)

And:

M.S., an infant by his litigation guardian J.S.,

Malik Rama, and Insurance Corporation of British Columbia

Respondents

(Defendants)

And:

Robert Kurtz, Her Majesty the Queen in Right of the Province of
British Columbia, Attorney General of British Columbia,
and Attorney General of Canada

Appellants

(Defendants)

And:

Her Majesty the Queen in Right of the Province of

British Columbia, Attorney General of British Columbia,

and Attorney General of Canada

Appellants

(Third Parties)






Before:

The Honourable Chief Justice Finch


The Honourable Madam Justice Rowles

The Honourable Mr. Justice Low




H.J. Roberts

Counsel for all Appellants


Place and Date of Hearing:

Vancouver, British Columbia


November 28, 2005


Place and Date of Judgment:

Vancouver, British Columbia


January 12, 2006






Written Reasons by:


The Honourable Chief Justice Finch


Concurred in by:


The Honourable Madam Justice Rowles

The Honourable Mr. Justice Low









Reasons for Judgment of the Honourable Chief Justice Finch:

I.

[1] The issue raised on this application is whether a judgment that decides only liability issues, but not damages, is a final order for which leave to appeal is not required, or an interlocutory order within Section 7(2)(a) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, for which leave to appeal is required.

[2] At the conclusion of the oral hearing, we held that the order was final and that leave to appeal was not required with written reasons to follow. These are those reasons.

II.

[3] The plaintiff Radke claims damages for injuries suffered in a motor vehicle accident on 16 February 2003. His vehicle was struck in an intersection by a stolen vehicle driven by a young offender, M.S., who failed to stop at a stop sign. The stolen vehicle was being pursued by Constable Kurtz, an R.C.M.P. officer driving a police vehicle.

[4] A consent order was made that the issues of fault or liability be tried separately and in advance of the issues on damages.

[5] Madam Justice Bennett heard the trial on liability. She pronounced judgment on 27 September 2005. All parties conceded that M.S. was primarily at fault for the accident. The issues at trial were the liability of Constable Kurtz, and of the provincial and federal governments.

[6] The trial judge held that Constable Kurtz was negligent in the operation of his vehicle, and that his negligence contributed to the plaintiff’s injuries. It was not disputed that if Constable Kurtz was held to be negligent, the province was jointly and severally liable with him.

[7] The judge also held that Constable Kurtz was not grossly negligent. Therefore, applying the provisions of Section 21 of the Police Act, R.S.B.C. 1996, c. 367, he was not personally liable. The parties agreed that if Constable Kurtz was not personally liable, the Government of Canada was not liable.

[8] The action against I.C.B.C. was dismissed. The judge held that the plaintiff Radke was not negligent in the operation of his vehicle.

[9] Counsel from the Department of Justice applied in chambers for directions as to whether leave to appeal was required. In accordance with current practice, she filed both a notice of appeal and a notice of application for leave to appeal. Both documents name Constable Kurtz, the Crown in Right of the Province of British Columbia, the Attorney General for British Columbia, and the Attorney General for Canada as appellants, or applicants. The chambers judge referred the motion for directions to a division of this Court.

III.

[10] The relevant provisions of the Court of Appeal Act are:

6(1) An appeal lies to the court

(a) from an order of the Supreme Court or an order of a judge of that court, and

…



7(2) Despite, section 6(1), an appeal does not lie to the court from

(a) an interlocutory order,

…



without leave of a justice.





[11] The Court of Appeal Act does not define “interlocutory order”. For many years this Court has applied, or attempted to apply, the test stated by Lord Alverstone C.J. in Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547 at 548-49 (C.A.) to determine what is, or is not, interlocutory:

It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.

[Emphasis added.]



[12] Application of this test has become increasingly difficult because of the number of cases where the trial is “split” with liability being decided separately from, and in advance of, damage issues, as was done in this case. Difficulties also arise from the large number of cases now decided under Rule 18A which provides in subrule 18A(11) that:

On the hearing of an application under subrule (1), the court may

(a) grant judgment in favour of any party either on an issue, or generally …





[13] The difficulties in applying the Bozson test, and the sometimes inconsistent results, are referred to in H.A. Brinton, Civil Appeal Handbook, looseleaf (Vancouver: Continuing Legal Education, 2002) at ss. 3.4, 3.7 and 3.8.

[14] Under the Bozson test, it is the “judgment or order, as made” which determines whether it is a final or interlocutory order. Applied in this case, the order would be seen as interlocutory because damages have not been assessed, and the order therefore does not finally dispose of the parties’ rights. Only if the action had been dismissed against all defendants who contested liability would the order be final under the Bozson test.

[15] It is to be remembered that in Bozson itself the judge had held there to be no binding contract, and made an order dismissing the action. It was on appeal from that order that the Court of Appeal laid down the test as expressed by Lord Alverstone. The Court did not have before it a case in which liability had been found and damages remained to be assessed.

[16] Such a case was before a division of this Court in Boslund v. Abbotsford Lumber, Mining & Development Co. Ltd. (1925), 36 B.C.R. 386 (B.C.C.A.). There the trial judge held the defendants liable for negligence in allowing fires to spread to the plaintiff’s lands. He referred the assessment of damages to the Registrar.

[17] On the defendant’s appeal from the finding of liability, the respondents raised the preliminary objection that the appeal was interlocutory and therefore out of time. This Court overruled the objection and held that:

[9] … when the Court decides the substantial question of liability and merely refers the assessment of damages to a referee reserving nothing to itself, the judgment ought to be regarded as a final judgment for the purposes of appeal.





[18] It is evident that if the trial judge had held there to be no liability and dismissed the plaintiff’s action, the order would have been seen as final. So in that case, characterization of the order as final did not depend upon “the judgment or order, as made”, to use the language ofBozson. The case may be seen as one where the order would have been characterized as final for the purposes of appeal no matter which way the judge decided the issue of liability.

[19] This approach to the issue of “final or interlocutory” has sometimes been called the “application approach”. Rather than look to the order “as made”, one looks to the application that gave rise to the order. On this approach, a final order is one made on such an application or proceeding that, no matter who succeeds, the order will, if sustained, finally determine the matter in litigation. Examples of this approach go back at least to Salaman v. Warner [1891] 1 Q.B. 734.

[20] The application approach has now been clearly embraced by the English Court of Appeal in White v. Brunton [1984] 2 All E.R. 606. There, the plaintiff brought an action against the defendant for damages for breach of contract and for a declaration that, by an agreement, the defendant had agreed to contribute to the costs associated with construction of an access road. The district registrar ordered that a preliminary issue be tried, namely whether the defendant was liable under the contract for construction costs associated with the access road. The preliminary issue was determined in favour of the defendant and the plaintiff sought leave to appeal. Sir John Donaldson M.R. held that the plaintiff did not need leave to appeal. He said at 608:

The court is now clearly committed to the application approach as a general rule and Bozson’s case can no longer be regarded as any authority for applying the order approach. However, the decision in Bozson’s case, as distinct from the reasoning, can be upheld on a different ground as an exception to the general rule. It was a case of a ‘split trial’, all questions of liability and breach of contract being tried before and separately from any issues as to damages. If the two parts of the final hearing of the case had been tried together, there would have been an unfettered right of appeal, even if the judgment had been that there was no liability and that accordingly no question arose as to damages. It is plainly in the interests of the more efficient administration of justice that there should be split trials in appropriate cases, as even where the decision on the first part of a split trial is such that there will have to be a second part, it may be desirable that the decision shall be appealed before incurring the possibly unnecessary expense of the second part. If we were to hold that the division of a final hearing into parts deprived the parties of an unfettered right of appeal, we should be placing an indirect fetter on the ability of the court to order split trials. I would therefore hold that, where there is a split trial or more accurately, in relation to a non-jury case, a split hearing, any party may appeal without leave against an order made at the end of one part if he could have appealed against such an order without leave if both parts had been heard together and the order had been made at the end of the complete hearing.

[Emphasis added.]







[21] The application approach was again adopted by the English Court of Appeal in Holmes v. Bangladesh Biman Corporation [1988] 2 Lloyd’s Rep. 120. There, after citing White with approval, Lord Justice Bingham (as he then was) said:

Order 33, r. 3 gives the Court a wide discretion to order the separate trial of different issues in appropriate cases and a decision is not to be regarded as interlocutory simply because it will not be finally determinative of the action which ever way it goes. Instead, a broad common sense test should be applied, asking whether (if not tried separately) the issue would have formed a substantive part of the final trial. Judged by that test this judgment was plainly final, even though it did not give the plaintiff a money judgment and would not, even if in the airline’s favour, have ended the action.





See also Dale v. British Coal Corp. [1992] E.W.J. No. 351 (QL) and Webb v. Webb [1996] E.W.J. No. 141 (QL).

[22] More recently in Roerig v. Valiant Trawlers Ltd. [2002] 1 W.L.R. 2304, [2002] 1 All E.R. 961, [2002] 1 Lloyd’s Rep. 681, after referring toWhite v. Brunton and the broad common sense test expressed by Lord Justice Bingham in Holmes v. Bangladesh, Lord Justice Waller said this:

[46] If one poses the question-if no preliminary issue had been ordered would the decision as to the appropriate law have formed a substantive part of the final decision on damages?-the answer would undoubtedly be that it would, and that an appeal would have lain to the Court of Appeal against that final decision. The fact that the issue is sensibly taken separately should not deprive a party of their right to go to the Court of Appeal, and furthermore it would be an active discouragement to parties to support the trial of preliminary issues if the result was to so deprive them. That is the principle that the new rules in my view seek to uphold.



[23] In my view, the time has now come to restate the principle expressed by this Court in Boslund v. Abbotsford, and to adopt the approach of the English Court of Appeal in White v. Brunton and the subsequent English cases referred to above. If liability had not been tried separately, it would have been tried as part of a single trial. The parties would have had the right of appeal no matter what the outcome. If the action had been dismissed on liability, the plaintiff would have had a right of appeal. It is unfair that the defendant should not have a right of appeal when liability has been found.

[24] There are practical advantages to split trials. If the defendant is not liable, there is no need to try damages. That will save the parties time and expense. If liability is found, the parties may be able to resolve the damage issues without a trial. If the plaintiff’s injuries have not resolved to the point where damages can fairly be tried, the parties may still try the liability issues while the events are fresh in the witnesses’ memories. A right of appeal from a decision on liability alone will facilitate all of these practical goals.

[25] Applying the broad common sense test expressed in the English authorities, the question to be asked in this case is whether the issue decided by the trial judge, if it had not been tried separately, would have formed a substantive part of the final trial. It is clear that the trial judge’s disposition of the liability issues would have been such a substantive part, and that the resulting order should therefore be treated, for the purposes of appeal, as final.

[26] These are the reasons on which I would rest the order pronounced at the conclusion of the oral hearing of this appeal.



“The Honourable Chief Justice Finch”

I AGREE:



“The Honourable Madam Justice Rowles”





I AGREE:



“The Honourable Mr. Justice Low”









Corrigendum to the reasons of

The Honourable Chief Justice Finch – 19 April 2006

The citation at paragraph 7 for the Police Act should read R.S.B.C. 1996, c.367.

Date: 2007-04-17 Docket: CA033447 Parallel citations: 280 DLR (4th) 647; 66 BCLR (4th) 174 URL: http://canlii.ca/t/1r4xz Citation: Radke v. M.S. (Litigation guardian of), 2007 BCCA 216 (CanLII), COURT OF APPEAL FOR BRITISH COLUMBIA

Date: 2007-04-17 Docket: CA033447 Parallel citations: 280 DLR (4th) 647; 66 BCLR (4th) 174 URL: http://canlii.ca/t/1r4xz Citation: Radke v. M.S. (Litigation guardian of), 2007 BCCA 216 (CanLII), <http://canlii.ca/t/1r4xz> retrieved on 2014-01-09 Share: Share Print: PDF Format Noteup: Search for decisions citing this decision Reflex Record Related decisions, legislation cited and decisions cited COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Radke v. M.S. (Litigation guardian of), 2007 BCCA 216 Date: 20070417 Docket: CA033447 Between: Christopher Radke Respondent (Plaintiff) And M.S., an infant by his litigation guardian J.S., Malik Rama, and Insurance Corporation of British Columbia Respondents (Defendants) And Robert Kurtz, Her Majesty the Queen in Right of the Province of British Columbia, Attorney General of British Columbia, and Attorney General of Canada Appellants (Defendants) And Her Majesty the Queen in Right of the Province of British Columbia, Attorney General of British Columbia, and Attorney General of Canada Appellants (Third Parties) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry The Honourable Mr. Justice Chiasson J. A. Bowers, Q.C. and B. Bharaj Counsel for the Appellants, Attorney General of British Columbia and Robert Kurtz C. R. Bacon Counsel for the Respondent (Plaintiff) G. P. Brown and M. K. Kinch Counsel for the Respondents (Defendants) Place and Date of Hearing: Vancouver, British Columbia January 30, 2007 Place and Date of Judgment: Vancouver, British Columbia April 17, 2007 Written Reasons by: The Honourable Mr. Justice Lowry Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Chiasson Reasons for Judgment of the Honourable Mr. Justice Lowry: [1] Christopher Radke was seriously injured when a stolen vehicle driven by a young offender who was age 15 ("M.S.") ran through a stop sign and collided with his car. M.S. was at the time being pursued by a member of the R.C.M.P., Constable Robert Kurtz. Mr. Radke brought this action for damages against M.S., the Attorney General, and the police officer. It was tried before Madam Justice Bennett who found both M.S. and the officer to have been negligent; the conduct of both fell below the required standard of care. The judge apportioned the fault for the collision between them 85% and 15% respectively: 2005 BCSC 1355 (CanLII), 48 B.C.L.R. (4th) 178, 2005 BCSC 1355. The Province of British Columbia is liable for the conduct of the officer. The Attorney General of British Columbia appeals, raising two grounds upon which it is contended the judge erred. The Attorney General of Canada is named as an appellant but takes no part in the hearing of this appeal. [2] Counsel for the Attorney General of British Columbia first says that it was not open to the judge to find the officer was negligent in having breached the standard of care in the absence of any evidence that he failed to meet the standard required of a competent police officer. He says no evidence was adduced to establish the standard of care. He then says the judge erred in concluding that the officer's conduct in pursuing M.S. caused the collision, in the absence of any evidence with respect to causation. Both grounds are then predicated on there being an absence of evidence to prove two of the requisite elements of the tort of negligence. [3] The appeal was argued with the appeal in Burbank v. R.T.B., 2007 BCCA 215 (CanLII), 2007 BCCA 215, in which judgment is being rendered concurrently. The factual circumstances are somewhat similar and the grounds of the appeal are the same. [4] I outline the circumstances of the pursuit and the judge's conclusions before addressing the two grounds of the appeal. The Pursuit and the Judge's Conclusions [5] Constable Kurtz first observed the vehicle when he was responding to a call about a residential "break and enter" that had occurred. The vehicle was parked and unoccupied. He established, through his dispatcher, it had been reported stolen. He continued on but requested assistance first to watch and then to disable the vehicle on his return, in the expectation of waiting to apprehend its occupants when they arrived. Three other police officers were dispatched and took up positions near the vehicle. [6] Perhaps 15 or 20 minutes later, when Constable Kurtz was again in the vicinity of the vehicle, M.S. and two others got into the vehicle and drove away. One of the officers driving an unmarked van followed. Constable Kurtz, who was then coordinating the pursuit, decided to take over the pursuit himself. He was driving a regularly marked police vehicle. The judge found what happened after that to be as follows: [29] Thus, I make the following findings of fact relating to the pursuit: the stolen vehicle was travelling under the speed limit initially. The speed limit was 50 km/h. It slowed, but did not stop, at the stop sign at Albert Street. It slowed to 20 km/h, but did not stop, at the stop sign at Frances Street, at which point the pursuit commenced. Constable Kurtz turned on both lights and siren. The vehicle picked up speed. The vehicle sped around the corner at Union Street and almost hit the south-side curb, causing M.S. to lose some control of the vehicle. The vehicle accelerated, driving through the stop sign at Beta Avenue at 40 km/h. It continued to accelerate and drove through the stop sign at Alpha Avenue at 60 km/h. Finally, it drove through the stop sign at Willingdon Avenue and struck Mr. Radke's vehicle when travelling at approximately 70 km/h. The entire pursuit lasted 46 seconds. [7] In considering whether the conduct of Constable Kurtz was to any degree negligent, the judge cited the standard of care to be that stated by Kirkpatrick J., as she then was, in Doern v. Phillips Estate 1994 CanLII 1869 (BC SC), (1994), 2 B.C.L.R. (3d) 349 at para. 68 (S.C.), aff'd 1997 CanLII 2433 (BC CA), (1997), 43 B.C.L.R. (3d) 53 (C.A.): ... [T]here is little doubt that the standard of care to which a police officer will be held is that of a reasonable police officer, acting reasonably and within the statutory powers imposed upon him or her, according to the circumstances of the case. [8] The judge then reviewed the legislation governing police pursuits as well as the applicable R.C.M.P. policies. She said: [71] The statutes and policy provisions provide the context within which to assess whether there was negligence on the part of Constable Kurtz. [72] I add that no expert evidence was provided on the issue of how a reasonable police officer would conduct himself or herself. However, while not saying expert evidence would be inadmissible, in this case, given the facts, the statutes, the policy and case law, I do not need expert evidence to assess whether negligence existed. [73] In assessing the conduct of Constable Kurtz it is necessary to determine whether he complied with the policy. [74] In Noel (Committee of) v. Botkin, 1995 CanLII 3320 (BC SC), (1995), 9 B.C.L.R. (3d) 21, [1995] 7 W.W.R. 479 (S.C.), Clancy J. summed up the approach in this way, at para. 65: In summary, the question to be asked in assessing the conduct of police officers during pursuit is whether they, viewed objectively from the viewpoint of a reasonable police officer, acted reasonably and within the statutory powers conferred upon them. In considering that question, the Court must take into account that officers will be expected to perform the duties imposed on them by statute and to comply with policies adopted by the force to which they belong. A failure to comply with policy will not necessarily constitute negligence, nor will an error in judgment. Officers are exempted from compliance with certain traffic rules, provided they meet they meet [sic] the requirements of s.118 of the Motor Vehicle Act. There must be a recognition that officers are required to exercise judgment in balancing the competing interests of arresting wrongdoers and protecting citizens. [75] Therefore, Constable Kurtz's compliance or non-compliance with the pursuit policy is a factor, albeit an important factor, in determining whether he was negligent. See also Doern, supra, at para. 69; Doern v. Phillips Estate 1997 CanLII 2433 (BC CA), (1997), 43 B.C.L.R. (3d) 53, 2 D.L.R. 108 (C.A.), at para. 15-16. [9] After summarizing what she considered to be the principles to be derived from the legislation and the police policies, and expressing the view that Constable Kurtz should have taken the opportunity to disable the vehicle when he had the opportunity, the judge concluded as follows: [83] [Constable Kurtz's] assessment before he started the pursuit did not give due consideration to the factors in the police pursuit policy. The stolen vehicle was not being driven in a manner that threatened public safety. The offence being committed, which he thought was a dual or hybrid offence (and he was probably right), was not a serious offence. There was no one in position to assist him, which raised the risk to the public significantly. [84] Once he put on his lights to pull the vehicle over and saw that the driver's response was to accelerate in a residential area and drive through stop signs while heading towards one of, if not the busiest street in Burnaby, a proper risk assessment would have informed him of the significant danger to the public posed by continuing the pursuit. Constable Kurtz clearly did not follow police policy when initiating the pursuit or by continuing it once the vehicle began accelerating and driving dangerously. [85] Taking into account his failure to conduct proper risk assessments at two critical times, I find Constable Kurtz did not act within the standard of the reasonable police officer, acting reasonably and within the statutory powers imposed upon him in the context of all of the circumstances of this case. I find Constable Kurtz breached his duty of care. [10] With respect to Constable Kurtz's conduct having been a cause of the collision with Mr. Radke's automobile, the judge said: [86] The negligence was clearly a contributing cause to the injuries suffered by Mr. Radke. While I acknowledge M.S. was not obeying traffic signs, it was not until the pursuit commenced that he began driving dangerously. His dangerous driving and the accident was a consequence of the police pursuit. Standard of Care [11] The Attorney General contends that, because there was no evidence that a reasonably competent police officer would have conducted himself differently than did Constable Kurtz, it was not open to the judge to conclude that he had not met the requisite standard of care. Reliance is placed on what was said by Southin J.A., for a majority of four, in Roy v. British Columbia (Attorney General), 2005 BCCA 88 (CanLII), 38 B.C.L.R. (4th) 103, 2005 BCCA 88 at para. 36: Where, as here, at issue is the standard of a competent member of a trade or profession (and the occupation of peace officer falls within that rubric), evidence of those carrying on that occupation is necessary unless, in the words which McPherson C.J.M., inAnderson v. Chasney, reflex, [1949] 2 W.W.R. 337 (Man. C.A.) at 341, adopted from the American case of Mehigan v. Sheeham, 51 A.2d 632 (U.S. N.H. S.C. 1947), the matter is one of "non-technical matters or those of which an ordinary person may be expected to have knowledge." [12] The Attorney General says that no expert evidence was called in support of the case against Constable Kurtz and that police pursuits are not matters that lay persons know about. [13] However, as I have attempted to explain in Burbank, it was not necessary that there be evidence, much less expert evidence, of the standard of care to be met by a police officer for the judge to be able to determine whether the utility of the officer's conduct justified the risk to public safety. The question the judge had to answer was simply whether the nature of the crime (theft of an automobile) for which the police officer sought to apprehend M.S. was sufficiently serious to justify the risk of the consequences that became manifest within less than a minute of the commencement of the pursuit. The question was not unlike the kind of question judges have to regularly answer in negligence cases and, while there may be aspects of police pursuits that are foreign to those who are not trained or experienced police officers, the answer to the question lay well within what can be said to be common knowledge and experience. It lay in assessing whether Constable Kurtz had properly balanced the competing concerns of the apprehension of a young offender who had stolen a car against the danger of a pursuit at considerable speed on city streets where significant pedestrian and vehicular traffic could be expected. [14] The judge decided that the question with which she was faced in this case was to be answered in the negative. In so doing, she found the officer's conduct to be below the requisite standard of care. It was a decision that, on the evidence adduced, was open to her to make, such that I would not accede to the first ground of the appeal. Causation [15] The Attorney General contends that the evidence does not establish that Constable Kurtz's pursuit of M.S. caused the collision with Mr. Radke's automobile. He maintains that M.S. alone caused the collision by refusing to stop when the police car's lights and siren were engaged and then by running the stop sign. [16] I find the judge's succinct finding, that the pursuit was a cause of the collision, entirely consistent with the "but for" test recently affirmed inResurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 at paras. 20-28, as I have discussed in Burbank. I would not accede to this ground of the appeal either. Disposition [17] I would dismiss the appeal. “The Honourable Mr. Justice Lowry” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Chiasson”

Canada's surveillance agency has admitted that it "incidentally" spies on the communications of citizens.

Canada's surveillance agency has admitted that it "incidentally" spies on the communications of citizens.

The Communications Security Establishment of Canada (CSEC) makes the admission in a new section on its website titled "Inside CSE". Under the heading "Foreign signals intelligence" the agency states that "In the course of targeting foreign entities outside Canada in an interconnected and highly networked world, it is possible that we may incidentally intercept Canadian communications or information."

The statement seems to confirm a Globe and Mail report from last year that in 2011 then-defence minister Peter MacKay gave the green light to a program to secretly monitor global telephone and internet data, including information from Canadians.

The agency is not supposed to monitor the activity of Canadian citizens, but states on its website that "The National Defence Act acknowledges that [surveillance of Canadians] may happen and provides for the Minister of National Defence to authorize this interception in specific circumstances. If a private communication is incidentally intercepted (e.g. a foreign individual we are targeting overseas is communicating with someone in Canada), CSE takes steps to protect the privacy of that information."

The new section of the website also seeks to clarify CSEC's relationship with other security agencies at home and abroad.

"In our foreign intelligence work, it is against the law for CSE to target Canadians anywhere, or anyone in Canada. We also can’t ask our allies to do anything on our behalf that is not legal for us to do," the website states. "While CSE cannot and does not target Canadians or persons in Canada in its foreign signals intelligence work, CSE’s capabilities may, under the Assistance Mandate, be employed by national security or law enforcement agencies in a variety of circumstances — including intercept operations against a Canadian or individuals in Canada. In those cases, CSE is acting in an assistance role, is operating under the requesting agency’s legal authority (such as a warrant) and is subject to the provisions of their mandate and policies."

CSEC's interactions with foreign intelligence agencies, particularly with its Five Eyes partners in the U.S., U.K., Australia and New Zealand, have been the subject of intense scrutiny in the wake of revelations that it collaborated with the U.S. National Security Agency (NSA) to spy at the G8 and G20 summits in Ontario in 2010. CSEC also reportedly worked with the U.S. and Britain to spy on participants at the G20 summit in London in 2012. CSEC has also reportedly conducted industrial surveillance on Brazil. All these revelations on CSEC's activities came from documents retrieved by NSA whistleblower Edward Snowden.


CSEC has defended such espionage activities as being necessary to "protect Candians from threats."

Most recently, CSEC has been under fire after a Federal Court judge ruled in December that the agency collaborated with the Canadian Security Intelligence Service (CSIS) to deliberately withhold information from the courts in an effort to do an end-run around the law when it applied for top-secret warrants to intercept the communications of Canadians abroad.

The situation arose five years ago when CSIS asked the Federal Court for special warrants related to two Canadian citizens — already under investigation as a potential threat to national security — that would apply while they were abroad.

CSIS assured Judge Richard Mosley the intercepts would be carried out from inside Canada, and controlled by Canadian government personnel, court records show.

Mosley granted the warrants in January 2009 based on what CSIS and CSEC had told him.

However, Canadian officials then asked for intercept help from foreign intelligence allies without telling the court. Mosley was unimpressed, saying the courts had never approved the foreign involvement.

"It is clear that the exercise of the court's warrant issuing has been used as protective cover for activities that it has not authorized," Mosley wrote in redacted reasons. "The failure to disclose that information was the result of a deliberate decision to keep the court in the dark about the scope and extent of the foreign collection efforts that would flow from the court's issuance of a warrant."

Once again John Steele at Legal Ethics Forum has compiled his list of the top 10 ethics stories of 2013. As was the case last year, his list has inspired me to think about the top 10 ethics stories in Canada (2012

Once again John Steele at Legal Ethics Forum has compiled his list of the top 10 ethics stories of 2013. As was the case last year, his list has inspired me to think about the top 10 ethics stories in Canada (2012 is here). On reviewing last year’s list it is clear that a number of the stories of significance in 2012 remained important this year. As well, legal ethics in Canada continues to develop as a matter of practical and intellectual significance, with practitioners, judges, regulators and academics paying attention to the conduct and regulation of lawyers and judges.

Thanks to Professor Annalise Acorn of the University of Alberta, and Malcolm Mercer of McCarthy Tétrault LLP, for their assistance in compiling this list.

1. Conflicts of interest: the Supreme Court speaks
On July 5, 2013 the Supreme Court issued its judgment in Canadian National Railway v. McKercher LLP, in which it affirmed the “bright line rule” that “a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client – even if the two mandates are unrelated.” It also limited the rule so it only applies where the new representation is directly adverse to the immediate legal interests of the client and where it would not be “unreasonable for a client to expect that its law firm will not act against it in unrelated matters.” While the judgment has been subject to some criticism. it has also been acknowledged to be a significant step forward in clarifying the obligations of lawyers in relation to their current clients.

Other notable 2013 Supreme Court judgments that address lawyers’ ethics include Ontario v. Ontario Criminal Lawyers’ Association of Ontario which limited the role and compensation of amicus curiae appointed by the court and Wood v. Schaeffer, which indirectly considered the role of the lawyer in advising clients.

2. Regulatory innovation and change by the law societies
Canada’s law societies are on the move. Benchers of the Law Society of British Columbia have approved a merger with the Society of Notaries Public of B.C., to create a program for the creation of “certified paralegals” and, as well, to develop a regulatory framework to credential and regulate other legal service providers. The Nova Scotia Barristers’ Society is actively considering regulatory reforms, including a move to outcomes/risk-based regulation. The Law Society of Upper Canada appointed David Wright as its first tribunal chairman who, with two vice-chairpersons, will be actively involved in adjudicating disciplinary proceedings. This change was first approved in June 2012, but the appointment of Wright, a former chairman of the Human Rights Tribunal of Ontario, demonstrates the LSUC’s commitment to this new approach.
These developments reflect a remarkable shift in Canada’s regulatory landscape. While Canada’s legal profession remains self-regulating, and not all law societies have embarked on these sorts of developments, the changes show a sophistication and engagement on the part of regulators that is to be commended.

3. Integrated practice curriculum as a pathway to licensing
On Nov. 21, the LSUC approved law practice programs offered by Ryerson University (English) and the University of Ottawa (French) as alternatives to articling. It also approved Lakehead University’s integrated practice curriculum, in which students take approximately 10-20 extra credit hours across the course of their law degree, and complete practical and experiential education, as a replacement to articling after graduation. While the Lakehead program in and of itself does not reflect an enormous change in the credentialing of Canadian lawyers, if it is expanded to other law schools and jurisdictions, it could transform Canada into a more experience based version of American legal education. Except for the bar examinations, the totality of the preparation of legal education will be governed by the law schools. The significance of that sort of change is considerable.

4. Resignation of the inquiry committee of the CJC concerning Justice Lori Douglas
The Lori Douglas proceedings are not new, nor are extensive criticisms of their legitimacy and fairness. But the decision of the inquiry committee to resign en masse has reinforced the perception the proceedings have gone badly awry, and are undermining public confidence in the fair and effective regulation of the ethics of the judiciary.

5. Proposed TWU law school
In December, the Federation of Law Societies approved Trinity Western University’s proposed school of law program. The Federation did so despite some “concerns.” It nonetheless concluded the concerns could be addressed through the provision of “additional materials in future annual reports, including more detailed course outlines demonstrating exactly how the competencies will be met.” The federation’s approval of Trinity Western’s program is not the final word on this issue. Law societies that have not delegated their power to approve law degrees to the FLSC must determine for themselves whether the school’s program satisfies the credentialing requirements which they are empowered to impose by virtue of their constituting legislation, taking into account the distinct human rights laws that govern in each province. Clayton Ruby has indicated he will be seeking judicial review of the Federation’s decision. Opposition to the Trinity Western program remains significant. Regardless of how these events unfold, however, the federation’s decision is a significant first step towards the approval of a Canadian law school teaching through a religious perspective.

6. LSUC dismissal of disciplinary proceedings against Beth DeMerchant and Darren Sukonick.
The reasons issued by the LSUC for finding Beth DeMerchant and Darren Sukonick had not been in a conflict of interest when representing Hollinger International Inc. and Conrad Black during the sale of Hollinger’s newspaper businesses to CanWest, are not especially interesting as a matter of doctrinal law (the DeMerchant decision is here). Of greater interest is the arguably questionable decision by the law society to pursue the charges as long as it did and the question of whether the case indicates the problems law societies have in relation to the direct regulation of lawyers at large law firms. The decision may not legitimately have significance in the latter respect – if the charges were baseless then they ought not to have succeeded, regardless of the nature of the practice of the lawyer against whom they were made. But it may nonetheless reinforce the perception that lawyers at large law firms can resist professional discipline with an effectiveness that lawyers at smaller firms cannot.

7. LSUC appeals decision on Joe Groia and incivility
In lengthy reasons, the Law Society of Upper Canada appeal panel halved the sanction imposed on Joe Groia, eliminated the costs award against him (with a new costs award to be determined through a subsequent proceeding), and reversed many of the legal determinations made in the original panel. In particular, it rejected the position that a lawyer would be committing an abuse of process to the extent he sought to litigate the legitimacy of his conduct in the face of judicial criticism of that conduct in prior proceedings to which he was not a party and which involved different legal issues. The panel also narrowed the definition of incivility and emphasized that “the word ‘civility’ should not be used to discourage fearless advocacy manifested by passionate, brave and bold language.”

8. Litigation re the conduct of the minister of Justice and the deputy minister of Justice
Edgar Schmidt’s litigation was commenced at the end of 2012 but remains significant importance with respect to the question of the ethical duties of lawyers when advising clients. Schmidt alleges the minister of Justice and the deputy minister failed to satisfy their statutory obligations to examine proposed legislation to determine if it is “inconsistent with the purposes and provisions” of the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms, and to advise the House of Commons if it is so. Schmidt alleges the Department’s policy was only to direct the Minister to advise the House on the sufficiency of legislation where it had a less-than-five-per-cent chance of surviving a court challenge.

9. PMO and the Mike Duffy affair
The precise nature and legality of the conduct of Nigel Wright and Ben Perrin, lawyers working at the Prime Minister’s Office and dealing with the problem of Senator Mike Duffy and his expenses, remains unclear. However, the case does suggest the ethical challenges and risks for lawyers working in political settings, in which the legal and ethical implications of decisions can be obscured. This issue has been considered in the United States since Watergate, but this case may be the first time it has been publicly observable here.

10. The CBA Futures Initiative
The CBA Futures Initiative is addressing issues related to the ethics and regulation of the legal profession, education and training of lawyers, and innovation in business structures. While the insights and innovations of the process are uncertain at this time, the CBA seems committed to considering matters of regulatory innovation and change, particularly in relation to the adoption of alternative business structures. If the CBA can identify a path to ABS, this will significantly progress the regulatory innovation and change identified in No. 3, and will help Canada move towards keeping pace with regulatory developments in other jurisdictions such as Australia and England.

I would like to add Rob Ford, since it seems that no Canadian top ten list could be complete without him. But try as I might I could not see the legal ethics angle to his story.

Purolator Inc. 91% owned by Canada Post Corporation,[1] 7% owned by Barry Lapointe Holdings Ltd. and 2% by others.

Purolator Inc. is a Canadian courier that is 91% owned by Canada Post Corporation,[1] 7% owned by Barry Lapointe Holdings Ltd. and 2% by others.


The company was originally organized as Trans Canada Couriers, Ltd. In 1967, it was acquired by the US manufacturer of oil and air filters Purolator[2]—the name was originally an abbreviated form of "pure oil later".[3] In 1987, the company returned to Canadian ownership. Although it retained the Purolator name, it has since had no connection with the oil filter business.

Purolator has partnered with United Parcel Service for deliveries outside of Canada.

Kelowna Flightcraft Air Charter operates DC-10-30F, Boeing 727, and Convair 580 cargo aircraft for Purolator.

Since 2003, Purolator has organized an annual food drive in association with the Canadian Football League. Every season, fans in each city are invited to bring non-perishable food items to a selected home game, and Purolator collects and donates the food to local food banks. Also, for every quarterback sack in the CFL, Purolator donates the quarterback's weight in food to the food bank in the city where the game was held.

On April 28, 2008, Teamsters Canada, the official union of Purolator truck drivers, package handlers, couriers, and other workers, gave employees a 72 hour strike warning[clarification needed]. A tentative agreement from one month prior was rejected by 51% of Purolator union members. Purolator and its union met with a federally appointed mediator and reached a 2nd tentative agreement on April 30, around 24 hours before the strike deadline.[4]
Purolator 727 on the left, and a DHL DC-9 on the right at Calgary International.
Unicell Quicksider[edit]

On September 24, 2007, Purolator Inc. introduced the Unicell Quicksider, a prototype full-electric vehicle, lightweight urban delivery vehicle, developed by a consortium led by Toronto-based Unicell Limited[5] in partnership with ArvinMeritor, Battery Engineering and Test Services Inc.; Bodycote Material Testing; Electrovaya Inc.; PMG Technologies Inc.; Purolator Courier Ltd.; Southwestern Energy; and the Transportation Development Centre of Transport Canada.[6][7]
References[edit]

 "Purolator Facts". Purolator.com. 2010-04-14. Retrieved 2011-01-15.
"Purolator history". Purolator.com. 1960-12-05. Retrieved 2010-11-27.
"Purolator Auto Filters history". Purolatorautofilters.net. Retrieved 2010-11-27.
Business | Purolator, union reach deal". TheStar.com. 2008-05-02. Retrieved 2010-11-27.
 "Unicell". Unicell. Retrieved 2010-11-27.
^ "Purolator Introduces Prototype Battery-Electric Delivery Vehicle". Green Car Congress. 2007-09-24. Retrieved 2010-11-27.
 "Purolator Quicksider Electric Delivery Vehicle Displayed in Toronto". TreeHugger. Retrieved 2010-11-27.
External links
Official website
Purolator Freight website

RMR: Rick's Rant - Flu Shot

happy new year!

happy new year!