Governor General David Johnston -- who has never practiced private law or run a law firm and for the most part has held a series of tax payer funded academic or public service positions -- proposes that as a part of ensuring access to justice lawyers should dedicate about 10% of their practices to providing pro bono legal services (see the interview given in December 2011 in the Canadian Bar Association's National). This is a misguided solution for a real problem -- the excessive cost of legal services and the lack of access to justice for the poor -- that would poorly serve those in real need. While couched in terms of public service, it actually reinforces a trend that has taken hold over the last 30 years, of proposing individually directed charity by the willing privileged as a substitute for consistent, publicly supported provision of essential services at reasonable levels based upon non-discriminatory criteria. While apparently noble in its intention, a move to a more consistent reliance on pro bono services as a means of providing for access to justice will, I suspect, tend to produce results that are unreliable,unevenly delivered and likely discriminatory -- especially in respect of the provision of services to aboriginal people.
As a starting point let me clear that I do not actually see legal aid as being the primary solution to the access to justice issue. That is a systemic problem that can be addressed in a number of ways that we have barely begun to explore. First, expanding the supply of legal service providers in order to address the demand for legal services is the most sensible way to proceed in the long term. This can be done by expanding the number of lawyers or, as has been done in other jurisdictions (such as the UK) by expanding the range of professionals who can provide the services. If lawyers are unwilling to provide cost-effective or geographically accessible services then perhaps the monopoly on the provision of those services should be narrowed to allow others who are willing to provide the services in a cost-effective way to step in to fill the gap. The established profession may then feel more compelled to ensure that law schools produce lawyers willing to work in rural and suburban areas or to provide legal services outside of the glamour downtown practices or the cozy confines of government.
Second, we should look hard at what is generating the demand for legal services and continue to try to address whether or not we can address these issues. For example, a certain amount of legal demand arises out of the existence of overly complex processes that can only be navigated with the assistance of a lawyer or other professional. Another issue is the criminalization of social behavior that in fact has widespread acceptance (eg the criminalization of drug use). Abolishing certain drug laws would simply remove a large demand upon the legal system both directly (by removing the drug charges) and indirectly (potentially reducing the prohibition related crimes like petty theft). Yet another possibility is simplifying the substantive law, as was done with child support where endless fights over how support should be calculated have been significantly simplified (although not entirely limited) through the introduction of binding tables to calculate child support.
However, inevitably this will not completely fill the void between the need for high end legal services in areas like serious criminal law and the body of lawyers available to fill that need. Serious criminal cases require the assistance of lawyers and in many cases specialized lawyers. Unfortunately, many of the perpetrators of serious crime (leaving aside organized gangs and white collar fraudsters) are not people who have easy access to the large sums of money necessary to hire these lawyers. Note that does not mean they do not have the money available to pay hourly rates of $750 per hour -- usually they do not have the money to pay hourly rates (or the equivalent) of $25 per hour for what it would take to fight a serious criminal charge. Given that the modern reality is that most law firms that can handle serious crimes likely cannot break even for less than $125 per hour, this means that these services will be simply unavailable unless the services are donated or paid for through some public process.
The Governor-General essentially proposes donation or charity as the core solution to the problem -- in effect as part of the price of self-regulation. However this suggestion is blind to certain realities about how pro bono work is doled out by the legal profession. To see this it is useful to look at the way in which legal aid is typically distributed. Legal Aid (subject to its overall budgetary constraints) is distributed by means of a process which assesses financial need, degree of legal need and, particularly for appeals, merit. The criteria are transparent (eg "income must be under $X" or "aid is only available if incarceration is a risk") and administered independently. Moreover, the aid can be distributed through the public purse geographically so that it is available in remote areas and also in way that is non-discriminatory on the basis of race (ie aboriginal people an other racial minorities are able to get legal aid).
Pro bono services by contrast are distributed largely at the whim of the lawyer or law firm. First, there is the basic problem of how the person needing pro bono services comes to the attention of the lawyer. In some cases it is through the intervention of an outside agency such as a charity or a church group but as often as not it is through the intervention of a friend or family member. These methods automatically tend to introduce various selection biases into the process of giving access to pro bono legal services -- for example, not a lot of aboriginal people have friends and relatives who work in law firms. Second, when the requests are made, the decisions as to which cases to take are influenced by factors such as geographic proximity and attractiveness of the client. Thus it is undoubtedly easier to get pro bono services if you are a young, white woman university educated woman in Toronto who has had an unfortunate encounter with the law, than if you are an angry, aboriginal man with a substance abuse problem living in Kenora. The latter may need the legal services more but the former is more likely to get it. Third, and this has to be faced honestly, much pro bono work is done as a form of business development -- it is designed to raise profile either in a potential client community or in the larger community. Thus potential long term benefit is an inevitable part of the analysis of whether or not pro bono services will be delivered.
Another factor to consider is that within the profession the burden of doing pro bono work falls unevenly amongst members of the profession. There simply is not that much call for pro bono services involving the delivery of on the ground legal services by tax lawyers, real estate lawyers and corporate lawyers. The Governor-General would see these lawyers doing their pro bono services by toiling at CLE conferences and perhaps speaking at high schools on law day. They would seldom have to take on a difficult trial involving a drug addled street person or an unsavory character charged with some socially odious crime. It is this concern that actually led to the development of the earliest forms of legal aid where essentially the profession would fund legal aid collectively by all contributing money toward a fund that would support lawyers willing to take on lower paying criminal cases.
In the end reliance on pro bono systems as a means of addressing the shortage of legal services suffers from the same flaws that excessive reliance on charity for the provision of any service does -- it introduces a high level of arbitrariness that arises out of the circumstances and whims of the donors. If the delivery of pro bono services is mandated then it ceases to be charity and starts to become a form of taxation yet one that is still subject to arbitrary distribution. Better to instead have a publicly funded system we all share in funding in the way we fund other public services (I suspect that the profession would even be willing to kick in a levy -- although I doubt a 10% tax). Society can then better control how those services are delivered (legal aid certificates vs. clinics, for example) and how this good is distributed (criteria, independent committees) as well as the total overall cost. The profession would still be free to provide pro bono services on top of these core services but this would not result in the poor, the aborginal, the marginalized -- the unconnected -- being deprived of basic legal services when faced with serious criminal charges or other legal proceedings.
Saturday, 19 May 2012
Sunday, 6 May 2012
Fish Farm Class Action Derailed by Court of Appeal
The British Columbia Court of Appeal, in a decision released last week, overturned an earlier decision by the British Columbia Supreme Court to certify a class action testing the effects of open pen in water fish farms on wild salmon stocks. The claim sought to certify a class of all "aboriginal groups" who held or asserted aboriginal fishing rights in the Broughton Archipelago in a claim alleging that the operation and authorization of open pen fish farms infringed those rights. In a bold move about a year ago Justice Slade certified this class in the face of strenuous opposition by the two governments and (at the appeal) the industry.
The Court of Appeal, in a complex ruling, dismissed this action for reasons that require an intertwined analysis of aboriginal law and class action principles. In essence though the Court held that the issues created by answering the question of "who are the aboriginal groups who hold fishing rights" involve such complex problems that the proposed class is not capable of being certified. In essence the Court relied upon the mess that has been created by the failure of the courts and the governments to devise a mechanism to recognize First Nations to say that these First Nations could not be brought together to challenge the development of a controversial industry in one small area of British Columbia. This will ultimately be a productive force for challenging government decisions but there are years of litigation ahead to really develop the jurisprudence in this area properly.
This case highlights the challenges that will face people seeking to use the court system to protect the environment face. For the most part ordinary citizens do not have substantive rights to a healthy or clean environment. Indeed, when ordinary citizens in the early part of the twentieth century began to use property rights to ward of polluting industries (using the tort of nuisance) the legislatures and Parliament largely overran these rights by legislating away the rights of property owners (this is essentially why a group challenge to noise pollution at YVR failed a few years ago, despite the trial court's finding that there was a nuisance -- Sutherland v. Vancouver Airport Authority 2002 BCCA 416). Even aside from these legislative issues, the recent decision of the Ontario Court of Appeal in Smith v. Inco 2011 ONCA 628 illustrates the formidable hurdles that ordinary property owners face in trying to advance environmental claims rooted in tort law. Ordinary citizens largely did not have a chance as public nuisances can only be advanced by the Attorney General.
Aboriginal people do have special rights to harvest resources which are protected by the Constitution. These rights cannot be legislated away at the whim of the government but as this case illustrates they create their own challenges. Aboriginal litigation has been expensive to press ahead and often takes years. As a result there is often nothing left to fight over by the time the courts render a decision. Courts have pushed back against governments being overly aggressive in taking advantage of this (by issuing injunctions, requiring consultation and making advance costs orders) but despite this at times aboriginal rights and title litigation seems to be modeled on a Bleak House approach to justice. This case demonstrates how we have gotten ourselves in a position where we (the non-aboriginal people) cannot even figure out how to see aboriginal people, much less do justice by them.
The best and most sensible place for many of these issues to be dealt with is in a sensible environmental assessment process. Many of the controversies surrounding fish farms flow from the reality that there has never been a real public transparent environmental assessment of the operations of open net fish farms situated in sensitive salmon bearing regions. Instead the industry has largely been able to grow in a piecemeal basis to a point where now there are very large vested interests opposed to really taking a hard look at what is going on. With the Federal government's move to further limit the application of the Federal environmental process and the Province's commitment to rarely engaging in formal environmental assessment, it is unlikely this will change any time soon. Fundamentally this illustrates how in the end the courts and bureaucratic processes are not a substitute for public engagement in political processes. All of these issues will only be addressed by the governments once there is a perception that there is a public expectation that they will be addressed. The courts have a role in creating momentum around this but the hard work of political engagement has to be done in the public through the press, parties and polls.
The Court of Appeal, in a complex ruling, dismissed this action for reasons that require an intertwined analysis of aboriginal law and class action principles. In essence though the Court held that the issues created by answering the question of "who are the aboriginal groups who hold fishing rights" involve such complex problems that the proposed class is not capable of being certified. In essence the Court relied upon the mess that has been created by the failure of the courts and the governments to devise a mechanism to recognize First Nations to say that these First Nations could not be brought together to challenge the development of a controversial industry in one small area of British Columbia. This will ultimately be a productive force for challenging government decisions but there are years of litigation ahead to really develop the jurisprudence in this area properly.
This case highlights the challenges that will face people seeking to use the court system to protect the environment face. For the most part ordinary citizens do not have substantive rights to a healthy or clean environment. Indeed, when ordinary citizens in the early part of the twentieth century began to use property rights to ward of polluting industries (using the tort of nuisance) the legislatures and Parliament largely overran these rights by legislating away the rights of property owners (this is essentially why a group challenge to noise pollution at YVR failed a few years ago, despite the trial court's finding that there was a nuisance -- Sutherland v. Vancouver Airport Authority 2002 BCCA 416). Even aside from these legislative issues, the recent decision of the Ontario Court of Appeal in Smith v. Inco 2011 ONCA 628 illustrates the formidable hurdles that ordinary property owners face in trying to advance environmental claims rooted in tort law. Ordinary citizens largely did not have a chance as public nuisances can only be advanced by the Attorney General.
Aboriginal people do have special rights to harvest resources which are protected by the Constitution. These rights cannot be legislated away at the whim of the government but as this case illustrates they create their own challenges. Aboriginal litigation has been expensive to press ahead and often takes years. As a result there is often nothing left to fight over by the time the courts render a decision. Courts have pushed back against governments being overly aggressive in taking advantage of this (by issuing injunctions, requiring consultation and making advance costs orders) but despite this at times aboriginal rights and title litigation seems to be modeled on a Bleak House approach to justice. This case demonstrates how we have gotten ourselves in a position where we (the non-aboriginal people) cannot even figure out how to see aboriginal people, much less do justice by them.
The best and most sensible place for many of these issues to be dealt with is in a sensible environmental assessment process. Many of the controversies surrounding fish farms flow from the reality that there has never been a real public transparent environmental assessment of the operations of open net fish farms situated in sensitive salmon bearing regions. Instead the industry has largely been able to grow in a piecemeal basis to a point where now there are very large vested interests opposed to really taking a hard look at what is going on. With the Federal government's move to further limit the application of the Federal environmental process and the Province's commitment to rarely engaging in formal environmental assessment, it is unlikely this will change any time soon. Fundamentally this illustrates how in the end the courts and bureaucratic processes are not a substitute for public engagement in political processes. All of these issues will only be addressed by the governments once there is a perception that there is a public expectation that they will be addressed. The courts have a role in creating momentum around this but the hard work of political engagement has to be done in the public through the press, parties and polls.
Thursday, 3 May 2012
BC Tax Decision Favouring First Nations
In Musqueam First Nation v. British Columbia (Assessor of Area #09), 2012 BCCA 178 the British Columbia Court of Appeal sided with the Musqueam and held that the lands they acquired as a part of a reconciliation agreement and were held in trust for the band were tax exempt under British Columbia's Taxation( Rural Areas) Act. In reaching this conclusion the Court held that the exemption arose not from s. 87 of the Indian Act but from a provision of the provincial taxing statute which essentially gives First Nations an opportunity to extend their land base in rural areas and enjoy a tax exemption from property tax similar to that enjoyed on reserve.
This decision will make the prospect of First Nations acquiring new lands for economic development and uses more attractive as they will not be saddled with significant tax bills. These tax bills can be crippling to many First Nations, particularly as small bands are often low on capital in the develop stages of many off-reserve projects. This welcome decision will make it easier for First Nations to acquire land, protect it and engage in economic development off-reserve while enjoying a modicum of the benefits that comes with on-reserve lands.
This decision will make the prospect of First Nations acquiring new lands for economic development and uses more attractive as they will not be saddled with significant tax bills. These tax bills can be crippling to many First Nations, particularly as small bands are often low on capital in the develop stages of many off-reserve projects. This welcome decision will make it easier for First Nations to acquire land, protect it and engage in economic development off-reserve while enjoying a modicum of the benefits that comes with on-reserve lands.
Tuesday, 1 May 2012
Limiting First Nations Input in Environmental Processes
The Globe and Mail recently reported on a request by Taseko Mines to limit the input of First Nations in the upcoming environmental review of the revised Prosperity Mine proposal. Two specific complaints about the former process were the inclusion of an "aboriginal activist" on the panel and the receipt of somewhat unconventional evidence by the aboriginal participants. It is suggested that this led to bias and neglect of good science.
It is not unusual for proponents to complain quite vociferously about aboriginal participation in processes as being characteristic of bias and any aboriginal perspective on issues as being poor science. Oddly they rarely see the inclusion of industry geologists, energy sector lawyers or long-time Alberta energy sector civil servants in a review process as potentially exhibiting any form of bias toward proponents. It says something about the mindset of these people in this day and age that one could say (without hanging your head in shame) that Hans Matthews (one of the Enbridge JRP members) is objectionable because he is an aboriginal person from a remote community as opposed to a long time beneficiary of the resource sector. In reality (as Minister Peter Kent seems to have recognized), neither is a grounds for objection per se, panels such as these are designed to include different perspectives and to add legitimacy in the eyes of all communities by seeing components of their communities represented in the make-up of the decision maker.
As for the content of the science -- well panels are mandated to consider traditional knowledge, traditional ecological knowledge and also oral history evidence. This evidence is received not just to assess the effects on the biophysical systems at issue but the effects on the people who have to live with the project into the future. These effects can be physical but can also can include the psychological effects that come with knowing that your local area has been put at risk or just generally degraded by being turned from a wilderness to an industrial site. Besides, to use an example from the article, is it really that outrageous to present a play showing the destruction of a fish population when the explicit plan for the project is to destroy a lake called "Fish Lake" and turn it into a tailings pond.
This debate shows the difficult the Harper Government faces in its desire to streamline and limit environmental review processes. In Haida the Supreme Court of Canada mandated consultation with aboriginal people in order to assess the impacts of proposed development upon them,their rights and their interests. As the companion Taku case demonstrated, however, robust environmental review processes with substantial participation by aboriginal people in the design and implementation of the assessment can serve to discharge this duty to consult. The difficulty arises as EA processes become less thorough, less comprehensive and less participatory -- then their ability to address the consultation obligation is diminished and the question of how that duty to be fulfilled remains. In its recent budget and environmental streamlining processes, the Federal government recognized the challenge of dealing with consultation in the face of anaemic environmental assessment processes. Now the question is how will they deal with that challenge?
It is not unusual for proponents to complain quite vociferously about aboriginal participation in processes as being characteristic of bias and any aboriginal perspective on issues as being poor science. Oddly they rarely see the inclusion of industry geologists, energy sector lawyers or long-time Alberta energy sector civil servants in a review process as potentially exhibiting any form of bias toward proponents. It says something about the mindset of these people in this day and age that one could say (without hanging your head in shame) that Hans Matthews (one of the Enbridge JRP members) is objectionable because he is an aboriginal person from a remote community as opposed to a long time beneficiary of the resource sector. In reality (as Minister Peter Kent seems to have recognized), neither is a grounds for objection per se, panels such as these are designed to include different perspectives and to add legitimacy in the eyes of all communities by seeing components of their communities represented in the make-up of the decision maker.
As for the content of the science -- well panels are mandated to consider traditional knowledge, traditional ecological knowledge and also oral history evidence. This evidence is received not just to assess the effects on the biophysical systems at issue but the effects on the people who have to live with the project into the future. These effects can be physical but can also can include the psychological effects that come with knowing that your local area has been put at risk or just generally degraded by being turned from a wilderness to an industrial site. Besides, to use an example from the article, is it really that outrageous to present a play showing the destruction of a fish population when the explicit plan for the project is to destroy a lake called "Fish Lake" and turn it into a tailings pond.
This debate shows the difficult the Harper Government faces in its desire to streamline and limit environmental review processes. In Haida the Supreme Court of Canada mandated consultation with aboriginal people in order to assess the impacts of proposed development upon them,their rights and their interests. As the companion Taku case demonstrated, however, robust environmental review processes with substantial participation by aboriginal people in the design and implementation of the assessment can serve to discharge this duty to consult. The difficulty arises as EA processes become less thorough, less comprehensive and less participatory -- then their ability to address the consultation obligation is diminished and the question of how that duty to be fulfilled remains. In its recent budget and environmental streamlining processes, the Federal government recognized the challenge of dealing with consultation in the face of anaemic environmental assessment processes. Now the question is how will they deal with that challenge?
Wednesday, 25 April 2012
Damages for Interfering with Aboriginal Fishing Rights
In Matsqui First Nation v. Canada (Attorney General), 2012 BCSC 492, the British Columbia Supreme Court rejected a recent attempt by the Department of Fisheries and Oceans to derail a claim by the Matsqui First Nation for damages for DFO having improperly denied them access to their aboriginal fishing rights. The Matsqui sought damages in the Supreme Court for management decisions made in the 2010 fishing season that Matsqui says infringed their Section 35 aboriginal fishing rights. Canada brought a motion seeking to strike out the claim and bring the case to a halt on the basis that it should have been brought in the Federal Court.
Justice Fenlon rejected the greatest part of this attack. She applied the recent series of Supreme Court of Canada cases concerning the doctrine of collateral attack to hold that the claim for damages -- even if it was based upon an attack on the constitutionality of a Federal decision -- could be brought in the Supreme Court rather than the Federal Court. Justice Fenlon rejected this proposition holding that the Telezone line of cases essentially limited the doctrine of collateral attack in these circumstances (and the jurisdiction of the Federal Court) to situations where a claimant actually seeks to set aside a decision or have an order made forcing a Federal minister or board to do something.
This decision is welcome in that it continues the process of simplifying the jurisdictional issues created by the existence of the Federal Court when decisions or actions by the Federal government are being challenged. It is still unfortunate though that if one wants the Federal government to actually do something proceedings must be taken in Federal Court (and must be taken by way of judicial review). This creates real challenges when a claim is launched against joint Federal-Provincial undertakings. For example, aquaculture is jointly regulated by the Federal and Provincial governments. The Federal governments issues licences to allow the aquaculture activities to occur while the Provincial governments issue the foreshore tenures and water lots needed to actually physically situate the activities in the environment. Naturally consultation and infringement issues often arise in this context with both governments and often the adequacy of the consultation process can only be appreciated by looking at both government's actions. Unfortunately to question the Federal licence one must pursue the issue in Federal Court (if one wants something done about the decision) while the proceedings against the Province must be pursued in Supreme Court. A move to resolve this jurisdictional problem and allow for a "one challenge -- one court" approach would be welcome.
Justice Fenlon rejected the greatest part of this attack. She applied the recent series of Supreme Court of Canada cases concerning the doctrine of collateral attack to hold that the claim for damages -- even if it was based upon an attack on the constitutionality of a Federal decision -- could be brought in the Supreme Court rather than the Federal Court. Justice Fenlon rejected this proposition holding that the Telezone line of cases essentially limited the doctrine of collateral attack in these circumstances (and the jurisdiction of the Federal Court) to situations where a claimant actually seeks to set aside a decision or have an order made forcing a Federal minister or board to do something.
This decision is welcome in that it continues the process of simplifying the jurisdictional issues created by the existence of the Federal Court when decisions or actions by the Federal government are being challenged. It is still unfortunate though that if one wants the Federal government to actually do something proceedings must be taken in Federal Court (and must be taken by way of judicial review). This creates real challenges when a claim is launched against joint Federal-Provincial undertakings. For example, aquaculture is jointly regulated by the Federal and Provincial governments. The Federal governments issues licences to allow the aquaculture activities to occur while the Provincial governments issue the foreshore tenures and water lots needed to actually physically situate the activities in the environment. Naturally consultation and infringement issues often arise in this context with both governments and often the adequacy of the consultation process can only be appreciated by looking at both government's actions. Unfortunately to question the Federal licence one must pursue the issue in Federal Court (if one wants something done about the decision) while the proceedings against the Province must be pursued in Supreme Court. A move to resolve this jurisdictional problem and allow for a "one challenge -- one court" approach would be welcome.
Friday, 20 April 2012
Injunction Issues Against Implementation of Federal Income Assistance Policies
In Simon v. A.G. (Canada) 2012 FC 387 Madam Justice Simpson of the Federal Court has issued an injunction restraining the implementation of current Federal policies that (arguably) require bands delivering income assistance to deliver such programs in a way that is identical to provincial income assistance programs. This policy -- which has been emerging over the last decade or more -- is controversial in aboriginal communities as it is often argued that this defeats the whole purpose of First Nations accepted the delegation of a role in the delivery of income assistance and other programs; namely to all First Nations to use their inherent right of self-government to develop programs which more appropriately address the needs of their communities.
This desire reflects the reality that the context in which income assistance is delivered in aboriginal communities is very different than that in which it is delivered in non-aboriginal communities. In aboriginal communities the income assistance receiving population can be very high (upwards of 90% in this case); rural or at least extra-urban in character; and culturally and racially separate. There may also be very different circumstances in terms of relationship to family and place which can affect issues such as the provision and funding of accommodation and the willingness or ability of aboriginal people to move in order to obtain wage employment. Without the ability to respond to these differences, Indian bands often find themselves in the unhappy position of having to bear the administrative and political costs of delivering income assistance without any meaningful power to devise alternate policies.
In Simon the Federal Court faced a challenge to the implementation of this policy founded in the duty to consult. The decision is informative if for no other reason than it illustrates the incredible complexity of this area of policy and programming and its interaction with aboriginal and administrative law. In reading the decision it quickly becomes clear that there is no common ground whatsoever between the Crown and the aboriginal people over the content of the program, the effect of the program or the applicability of the duty to consult. Indeed there is not even common ground on whether or not there has even been a decision. Even the Court in analyzing the question of whether or not there is a serious issue to be tried treads carefully around the issue of whether any duty to consult arises out of classical administrative law principles or out of the modern constitutional duty to consult. How this case will evolve will be interesting to see particularly since it is going to squarely face the court with the practical realities of the impoverishing effects of modern social assistance policies in Provinces like New Brunswick. As Justice Simpson noted in finding that irreparable harm would be suffered if the injunction was not granted:
This desire reflects the reality that the context in which income assistance is delivered in aboriginal communities is very different than that in which it is delivered in non-aboriginal communities. In aboriginal communities the income assistance receiving population can be very high (upwards of 90% in this case); rural or at least extra-urban in character; and culturally and racially separate. There may also be very different circumstances in terms of relationship to family and place which can affect issues such as the provision and funding of accommodation and the willingness or ability of aboriginal people to move in order to obtain wage employment. Without the ability to respond to these differences, Indian bands often find themselves in the unhappy position of having to bear the administrative and political costs of delivering income assistance without any meaningful power to devise alternate policies.
In Simon the Federal Court faced a challenge to the implementation of this policy founded in the duty to consult. The decision is informative if for no other reason than it illustrates the incredible complexity of this area of policy and programming and its interaction with aboriginal and administrative law. In reading the decision it quickly becomes clear that there is no common ground whatsoever between the Crown and the aboriginal people over the content of the program, the effect of the program or the applicability of the duty to consult. Indeed there is not even common ground on whether or not there has even been a decision. Even the Court in analyzing the question of whether or not there is a serious issue to be tried treads carefully around the issue of whether any duty to consult arises out of classical administrative law principles or out of the modern constitutional duty to consult. How this case will evolve will be interesting to see particularly since it is going to squarely face the court with the practical realities of the impoverishing effects of modern social assistance policies in Provinces like New Brunswick. As Justice Simpson noted in finding that irreparable harm would be suffered if the injunction was not granted:
[77] The Ontario Superior Court has held that impoverishment, social stigma and the loss of dignity associated with severe poverty can constitute irreparable harm. In El-Timani v. Canada Life Assurance Co., [2001] OJ No 2648 (SC), 106 ACWS (3d) 526 an insured individual with a severe back injury had been receiving disability payments for four years when these benefits were abruptly terminated by his insurer. In allowing an injunction requiring the insurer to continue paying the insured’s benefits until trial, Madam Justice Molloy of the Ontario Superior Court accepted at paragraph 9 that “the loss of enjoyment of life resulting from a subsistence level existence pending trial is not calculable in money.”[78] This issue was also considered in Ausman v Equitable Life Insurance Co. of Canada, [2002] OJ No 3066 (SC), 114 ACWS (3d) 1096. At paragraph 52, Mr. Justice Henderson said:The long term effect of the loss of security and the impoverished lifestyle constitutes more than the loss of money. It constitutes irreparable harm.[79] In my view, the estimated decline in income assistance rates under the Policy and the potential for ineligibility will cause emotional and psychological stress amounting to irreparable harm for some Recipients. Individuals who are reliant on income assistance are especially vulnerable even to small changes in the resources available to meet their basic needs and, for this reason, I have concluded that the Applicants have demonstrated irreparable harm.
Thursday, 19 April 2012
Human Rights Challenge to Federal Social Assistance Policies Restored
The Federal Court in Canadian Human Rights Commission v. Canada (Attorney General) has revived proceedings before the Canadian Human Rights Tribunal challenging the federal policies informing social assistance funding policies for programs delivered to aboriginal people. The decision is primarily focused on the flawed approach adopted by the original panel in dismissing the challenge at a preliminary stage. Despite this principally procedural analysis underlying these findings is an acceptance that these policies are in fact open to challenge on the basis of existing human rights legislation and the Charter. Now we will have to see if the Harper government abolishes this process to end any possibility that it may get its way.
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