Student Sues Law School for Discrimination

GeorgiaLeeLang100Alicia Yashcheshen applied for admission to the College of Law at the University of Saskatchewan, but sought an exemption from writing the standard law school admission test, the LSAT. The law school declined to consider her application without proof of an LSAT score.

She then filed a discrimination complaint with the Human Rights Commission who requested that she file additional evidence to support her claim based on a physical disability, but she failed to do so. The following year she submitted a new application to the law school requesting certain accommodations in writing the LSAT, on account of her Crohn’s disease and hypothyroidism, including a large print test booklet, a seat close to the ladies’ room and “stop the clock” testing, which would allow her additional time for any time she spent in the ladies’ room. She also requested the opportunity to use marijuana during testing and breaks.

The law school agreed to her requests with the exception of the marijuana use and “stop the clock” test conditions.

As a result she sued the law school in the Saskatchewan Queens Bench alleging a breach of section 15 of the Canadian Charter or Rights and Freedoms. Section 15 guarantees equality rights and forbids discrimination on the basis of race, sex, mental or physical disability, ethnic origin, and religion.

The Court dismissed Ms. Yashcheshen’s application holding that the university was not subject to the Charter as it was not governmental in nature and did not further a government program or policy.

Acting for herself, she filed an appeal of the dismissal order, again alleging a Charter breach, together with an allegation of bias on the part of the law school dean, and an appeal of the lower court’s costs order against her.

The appeal court dismissed her appeal, relying on McKinney v. University of Guelph 1990 SCC 60 Canlii, for the proposition that that universities are not “government”. The Court acknowledged that she rightfully did not press her bias claim during oral argument and dismissed her costs appeal. Yashcheshen v. The University of Saskatchewan 2019 SKCA 67.

Lawyer Held in Contempt for Courtroom Photo of Restrained Defendant

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Lawyer Michael Gregory of Louisiana, was minding his own business in the courtroom gallery during a sentencing hearing, when he snapped a cell phone photo of the accused, who on the judge’s order, had his mouth taped by the court bailiff.

The accused, Michael Duhon, was being sentenced for theft exceeding $25,000 and money laundering, and although represented by counsel, he continued to annoy Judge Marilyn Castle by interrupting the proceedings, despite numerous warnings from her.

Judge Castle ordered Mr. Gregory to attend at a contempt hearing a week after the event, where he appeared with throngs of supporters. Despite his submissions, Judge Castle advised that she was bound to find him in contempt of court as there was a strict rule that court proceedings were not to be recorded. She fined him $100 and barred him from bringing his cell phone into court for a period of 6 months.

She ignored his entreaties for an adjournment to obtain counsel and denied his motion that she recuse herself as she would be a witness in the contempt hearing.

Mr. Gregory plans to appeal.

Lawdiva aka Georgialee Lang

Uncle’s Access to Children Upheld on Appeal

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Ontario’s Court of Appeal has upheld a trial judge’s order that it is in the best interests of children, ages 6 and 9, to maintain a relationship with their maternal uncle. Khan v. Ahmad, 2019 ONCA 614 (CanLII)

The facts are simple. The children’s mother died of cancer in May 2015 which led to a 13-day trial in January 2019, resulting in an order that the children’s father, a physician, have sole custody of the kids, and the maternal uncle have access one weekend per month from 10 am on Saturday to 6 pm on Sunday.

The relevant circumstances included that during the mother’s illness, the father spent considerable time away from the family home to work a distance away, and regularly travelled to Pakistan to work as a doctor and maintain his credentials, as he was not qualified to practice medicine in Canada. The mother’s family stepped in to assist her while she took cancer treatment.

After her death in May 2015, the father and children moved in with the children’s uncle for three months, with the uncle performing most of the child care duties, as the father again worked out of town. Later the father and children lived on their own but continued to spend every weekend with the uncle’s family. In November of 2015 the father took the children to Pakistan for 2 months returning in early 2016, whereafter for the first 6 months of 2016 the children would be at their uncle’s after school and with the father, having dinner there every night.

In May 2016 the father again travelled to Pakistan with the children which prompted the uncle to bring an ex parte application for custody of the children, which process led to the 2019 trial. In the interim, the children’s uncle had access with the children every second weekend from Friday after school to Sunday drop-off.

In rejecting the father’s appeal the Court canvassed the applicable law relying on Chapman v. Chapman 2001 Canlii 24015 ONCA where Justice Abella noted that parents’ decisions regarding their children ought to be respected, however, a parent’s decision-making authority is not untrammelled, particularly where the parental decision is coloured by emotions that do not serve the best interests of the children.

The trial judge found that the children’s father was providing excellent care, but that his animosity and hatred for the uncle had clouded his judgment to the detriment of the children’s best interests.

The trial judge ruled:

“This means, however, that if the respondent is given the right to decide whether access will take place, it is highly unlikely that it will occur. While the respondent has testified that he is willing to allow visits to occur, I think it is highly unlikely that they will, or at least there is a serious risk that they will not occur…In the absence of an order requiring access, I am afraid that it may well be cut off.”

Lawdiva aka Georgialee Lang

Inadequate Reasons Grounds for Family Arbitration Appeal

GeorgiaLeeLang100The parties in Nolin v. Ramirez 2019 BCSC 934 engaged in family law arbitration over a period of several days over several months. In the first days of the arbitration the issues included argument regarding the bonafides of the parties’ divorce several years previously, and whether the divorce was legitimate or contrived; and a myriad of financial issues, including division of property, excluded property, corporate property, and child and spousal support.

The parties signed an Agreement to Participate in Family Law Arbitration and each was represented by counsel. The agreement to arbitrate provided that the arbitrator would only provide Summary Reasons, unless prior to the commencement of the arbitrator’s preparation of reasons one of the parties requested fuller reasons.

Apparently neither party had reason to believe that the arbitrator’s Summary Reasons would not suffice and neither party initially requested more comprehensive reasons. That changed, however, after the arbitrator released his Summary Reasons and Mr. Nolin wished to appeal portions of the arbitrator’s award.

Mr. Nolin took the position that the arbitrator’s Summary Reasons were not sufficient to ascertain the rationale of the arbitrator’s decision and requested more expansive reasons. Unfortunately, having spent a large sum on a lengthy arbitration, including a later arbitration that focused on parenting issues, the arbitrator’s request for an additional retainer was beyond his means.

Mr. Nolin filed an appeal by Petition of certain aspects of the arbitrator’s award to the British Columbia Supreme Court in accordance with the provisions of the Arbitration Act.

One of his central grounds of appeal was that in respect of the arbitrator’s valuation of certain chattels, including vehicles and other recreational chattels, and his award of lump sum spousal support, the arbitrator’s Summary Reasons were inadequate.

Relying on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 he argued that adequate reasons foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. Reasons also allow parties to see that the applicable issues have been carefully considered and are invaluable if a decision is to be appealed or questioned.

Because family law arbitration is a relatively new concept in British Columbia, Mr. Nolin argued that standards of practice are relatively undeveloped at this juncture but submitted that explanatory reasons for an Award are necessary and ought to be mandatory. An Award is incomplete if the Arbitrator does not provide a reasoned written decision.

He also said that it was appropriate to recognize that, in certain circumstances, including when the decision has important significance for the individual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision. Comprehensive reasons are required given the profound importance of the arbitration award to those affected.

Finally, he submitted that reasons also relate to the fairness of the process. Particularly in a difficult case where hard choices have to be made, they may provide a modicum of comfort, especially to the losing party, that the process operated fairly, in the sense that the arbitrator properly considered the relevant issues, applied the appropriate principles, and addressed the key points of evidence and argument submitted.

With respect to the value of the chattels, the arbitrator’s reasons were as follows:

“47. Evidence as to the value of the vehicles was problematic.

48. I was not prepared to accept the values attributed by [Mr. Nolin] as they were patently lower than reasonable. The photographs depicted vehicles in excellent shape.

49. As well, I was not prepared to accept that the ski boat had been beneficially owned by [Mr. Nolin’s] mother and inherited by [Mr. Nolin]. It, too, showed well in the photographs and videos.

50. Doing the best I could with the evidence, I estimated the value of all his vehicles, recreational vehicles and equipment to be $150,000.

51. I estimated the value of [Ms. Ramirez’s] vehicle in a similar fashion and have concluded that it should be valued at $15,000.”

Ms. Ramirez argued that the reasons were sufficient and could not be a stand-alone basis for quashing a decision. Mr. Justice Grauer disagreed saying:

“In my view, the arbitrator’s reasons, even as summary reasons, are not sufficient. This is because they set out no explanation whatsoever of why, on the evidence, the arbitrator concluded that an appropriate value was $150,000, as opposed to $70,000 (the amount for which Mr. Nolin contends). The number is found nowhere in the evidence, either as a specified amount or as part of an estimated range, and appears to have been plucked out of thin air (see Schenker v Scott, 2014 BCCA 203 at paras 54–57, concerning the importance of relating findings of fact to the assessment of damages). Mr. Nolin is left without a clue as to how and why the arbitrator arrived at that conclusion, other than the knowledge that his own evidence was not accepted.”

Mr. Justice Grauer reviewed the evidence before the arbitrator with respect to spousal support noting that neither party had advanced arguments in favour of lump sum support but the arbitrator determined that this was a case that “cried out for lump sum support”.

Mr. Justice Grauer held:

“In our case, we are dealing not with a trial judge but with an arbitrator providing summary reasons for his award. Nevertheless, where the arbitrator is departing from what was, consistent with the parties’ expectations, the default position, some explanation was required. All the arbitrator said was that the case “cries out for lump sum spousal support”. But why? What was it about the case that made it so? In my view, it was incumbent upon the arbitrator to give a brief description of the factors that inspired him to come to his conclusion. As it is, the parties (and particularly Mr. Nolin) are in the dark as what factors were weighed by the arbitrator in arriving at his decision, and are unable to evaluate how he exercised his discretion. The exercise of discretion is not, after all, an arbitrary exercise.”

Referring to section 31(4) of the Arbitration Act, the Supreme Court concluded that the appropriate remedy was to set aside the findings on the value of chattels and lump sum support and remit the two matters to the arbitrator for reconsideration and further award, based upon reasons that comply with the principles referred to.

Lawdiva aka Georgialee Lang

Lying Litigants Wasted Valuable Court Time

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Litigants are expected to come to court and tell the truth and mostly they do, but in the case of Sidhu v. Sidhu 2019 BCSC 946 the trial judge found that “Neither party came to trial intending to tell the truth.”

After a 2018 trial, Reasons were handed down in March 2019, and were followed by an application by the respondent wife for costs, including double costs, stemming from a settlement offer made before the trial.

In considering the costs application, Mr.Justice Funt noted that in advance of the trial each party swore a false Form 8 Financial Statement. He remarked that a Form 8 is an “important document tantamount to a pleading.”

With respect to the claim for double costs on the basis that the offer she made to her husband should have been accepted by him, the judge remarked that when an offer is made based on a fraudulent Form 8 it cannot be said to be an offer that should be accepted under the Supreme Court Family Rules. Validating such an offer would be condoning lies and improper financial disclosure. The judge also found that documents submitted by the wife at trial were fabrications.

However, the husband’s conduct was no better. He also came to court with lies and “sham” documents, but he was smart enough not to ask for costs.

The Court expressed its dismay with the parties’ “evidentiary concoctions” meant to “hoodwink” the Court.

As a result, while the judge granted the parties’ divorce, all other relief sought was dismissed, as were costs. The husband was, however, awarded special costs of the wife’s costs application.

Strict Requirements for Terms of “Agreement to Arbitrate” Not Optional

As family law arbitration becomes commonplace, issues will undoubtedly arise that can only be resolved by the Court. One such example is the case of Horowitz v Nightingale, 2017 ONSC 2168 where the parties entered into Minutes of Settlement that included the following provision:

“The parties agree to submit the issues outlined in paragraph 6 … to Arbitration with Stephen Grant on four of the following dates (subject to confirmation from Mr. Grant’s office and the parties regarding the appropriate amount of time for the hearing): July 27, 28, 29, August 2, 3, 15, 16 and 18. Provided that the arbitration proceeds, Murray will not proceed with a motion to reduce the support and will withdraw his current motion re same without costs. The Settlement Conference date will be vacated.”

Ultimately, the arbitration referred to in the Minutes of Settlement did not take place, which prompted the respondent, Mr. Nightingale, to bring an application to the Court to stay court proceedings, based on his position that the parties had agreed to arbitrate.

Mr. Nightingale relied on s. 7 of Ontario’s Arbitration Act which provides that if a party to an arbitration agreement applies to Court in respect of the matters to be arbitrated, the court matter shall be stayed. He argued that the arbitration provision in the Minutes of Settlement constituted an “agreement to arbitrate” pursuant to the definition in s. 1 of the Arbitration Act. He also maintained that the additional formalities found in most agreements to arbitrate need not be strictly observed.

Ms. Horowitz advanced the position that other requirements such as clauses identifying choice of law, the appeal process, confirmation of violence screening, and independent legal advice, are not optional.

To overcome these shortfalls, Mr. Nightingale posited that the Court could simply imply terms to reflect the parties’ intentions, but the Court distinguished the cases he cited saying:

“While courts cannot take an active role by ordering parties to arbitrate, a court may make an order on consent once parties have themselves chosen that process. To overcome formal deficiencies, however, a court should not imply or engraft terms upon what is essentially a consensual process chosen by the parties.”

The respondent also cited Haas v. Gunasekaram, 2016 ONCA 744 (CanLII), where the Court of Appeal states that “the law favours giving effect to arbitration agreements”, a principle endorsed by the hearing judge, however, he also found that the term in the Minutes of Settlement could not be characterized as an “agreement to arbitrate” absent the statutory terms required by the Arbitration Act.

Referring to Parker v. Pal, 2014 ONSC 7035, the Court agreed with the importance of holding parties to their agreement, affording a high degree of deference, but distinguished the case:

“It is to be noted in this case that the parties had already signed a valid arbitration agreement and the arbitrator had already made an interim (temporary) ruling. The aggrieved party was moving against the arbitration process by claiming bias. Once again, the court points out the mandatory nature of section 7.(1) of the Arbitration Ac to grant a stay. In Parker v. Pal, a valid arbitration was not at issue as it is here.”

The Court also considered McFarland v. McFarland, 2015 ONSC 2355 (CanLII), where Justice Minnema in dealing with Minutes of Settlement that set out the fact there would be a consent order for secondary arbitration stated:

“The Minutes of Settlement indicate: “The parties shall execute an Agreement in the form and manner acceptable to the Parenting Coordinator, and which shall conform with the provisions of the Arbitration Act and the Family Law Act, and the regulations thereunder.” Can the court order parties to agree? Can the court order the parties to sign a document dictated by a third person before they have seen it?”

The Court reluctantly dismissed the respondent’s application, noting that options such as arbitration and med/arb are desirable alternatives to the litigation process, however, the absence of formal requirements mandated by the Arbitration Act was fatal to the application’s success.

Lawdiva aka Georgialee Lang

Ontario Lawyer Steals $2 Million Dollars

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Ontario lawyer, John Findlay, stole almost $2 million dollars from his clients, but decided not to show up for the Law Society hearing to determine the circumstances and his punishment. Somehow, I am not surprised…

Findlay was called to the bar almost 40 years ago, in 1980, and practised civil litigation. Also not surprising, was that he was disbarred for two years in the early 2000’s for misappropriating client monies.

Findlay acted in a class action suit on behalf of property owners and businesses in Caledonia, Ontario, against several parties including the Ontario Provincial Police and the Government of Ontario. The law suit was settled for $20 million dollars, which Findlay was charged to distribute to the successful litigants. He was also ordered to retain $1.5 million dollars in trust, which eventually grew to $2 million dollars, to be held for two years.

Findlay held the funds in a GIC, but began stealing from this fund in a systematic way between March of 2012 and October of 2014, all the while deceiving the beneficiaries of the fund and the Court to believe the fund was intact. Apparently he hoped that the fund would generate sufficient interest allow him to pay back the fund the monies he had used.

Ontario’s Lawyer Compensation Fund received claims from 195 claimants in respect of the missing funds, totalling approximately $1.8 million.

On several occasions Mr. Findlay advised authorities that the funds were held in an interest-bearing trust account, reports that were false.

John Findlay was disbarred and ordered to pay the Compensation Fund approximately $1.750 million and costs of $51,500. The Law Society tribunal did not indicate whether Findlay
has funds to repay the trust funds.

Sadly, the Law Society tribunal noted that the litigants in the class action had previously suffered damages and economic loss. Findlay’s deceit and this fiasco will certainly not increase their confidence in the administration of justice.

Lawdiva aka Georgialee Lang