Saturday, December 27, 2014

Review of my more important, challenging and interesting cases in 2014

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on December 27, 2014
Updated on December 29, 2014

This is a review of my year of litigation. In 2014 my journey through litigation took my through several practice areas including education law, human rights, police law, criminal law, civil litigation, administrative, constitutional and public law. I won some, I lost some, I resolved some and other cases were litigated on principles so that whether lost or won, the important issue was the principle and standing up for justice.

Constitutional and Public law

I was involved as co-counsel at the Ontario Court of Appeal in McAteer v. Canada (Attorney General), 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 242 A.C.W.S. (3d) 772, 27 Imm. L.R. (4th) 216, 376 D.L.R. (4th) 258 affirming McAteer, Topey, Dror-Natan v. Canada (Attorney General)  2013 CarswellOnt 13165, 290 C.R.R. (2d) 332, 20 Imm. L.R. (4th) 121, 117 O.R. (3d) 353, 2013 ONSC 5895, E.M. Morgan J. (Ont. S.C.J.). See also Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 3521 (ON S.C.). 
Leave to Appeal has been sought at the Supreme Court of Canada. The applicants' position are the Oath to the Queen in the Citizenship Act violates sections 2(a) and (b) Charter of Rights and Freedoms and cannot be saved by section 1. 

Leave to Appeal was granted by the Ontario Court of Appeal in the case of  Taylor-Baptiste v. Ontario Public Service Employees Union, 2014 ONSC 2169 (Div. Ct.) and Taylor-Baptiste v. Ontario Public Service Employees Union et al, 2014 ONSC 5218 (costs). Counsel at the Court of Appeal and Divisional Court are Ranjan Agarwal and Amanda McLaughlin of Bennet Jones. At the Human Rights Tribunal I represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO.

Human Rights Law

On October 16, 2014, Mr. Justice Wagner of the Supreme Court of Canada granted the Center for Research-Action on Race Relations leave to intervene in Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (Quebec) (Civil) (By Leave). This case has interesting parallels to Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695. I am co-counsel with a Quebec Lawyer Aymar Missikala. In our written arguments we take the position that: 
18 . Since the Ontario Court of Appeal in Pieters expressly repudiates the unacceptable notion of a "causal nexus" in proving discrimination and profiling, CRARR submits that the Supreme Court has a historic opportunity, with this appeal, to end the more formalistic and restrictive civilist "causal link" test as retained by the Court of Appeal of Quebec that directly reverts to the rejected and rigid intent-based conception of discrimination.
19. The objective is not to set in motion a collision between the Quebec Civil Code and Quebec's civilist tradition with the constantly evolving dimensions of the Canadian Charter of Rights and Freedoms and the common-Iaw tradition on equality in particular, but rather to create a more perfect harmony between the two dominant legal cultures in Canada in order to provide more effective and equal protection to victims of race and other discrimination, be they in Quebec or in the rest of Canada, and be they French-speaking or English-speaking.  
Oral arguments are being heard on January 23, 2015.

Another significant case litigated in 2014 was an employment discrimination case Patterson v. Toronto District School Board. This was an application that alleged discrimination in employment on the basis of age, race, ancestry, colour and association with a person identified by a Code ground. The applicant has also alleged that he experienced reprisal or the threat of reprisal. The case generated several reported decisions including:
  • Patterson v. Toronto District School Board, 2014 HRTO 635 (Series of events)
  • Patterson v. Toronto District School Board, 2014 CarswellOnt 713 (Recording hearing)
  • Patterson v. Toronto District School Board, 2014 CarswellOnt 454, 2014 HRTO 66 (Productions - Disclosure of documents)
  • Patterson v. Toronto District School Board, 2014 CarswellOnt 446 (further - disclosure)
  • Patterson v. Toronto District School Board, 2014 CarswellOnt 238 (the Request sought statistical data: with respect to the racial makeup of the senior management levels of the respondent Board; the number of Black Principals in the Qualified Applicant Pool and the racial makeup of the “Senior Team”. In addition the applicant seeks particulars of some element of the respondents’ response.)
  • Patterson v. Toronto District School Board, 2014 CarswellOnt 83 - (witnesses - will-say)
I have completed hearings on the merits in Lewis v. Toronto Transit Commission. Mr. Lewis, an African-Canadian male, filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment because of race, colour, place of origin and reprisal. The decision is reserved.

Police Law (hybrid Human Rights)

In Afzal v. Regional Municipality of Peel Police Services Board 2014 CarswellOnt 10803, 2014 HRTO 1200, [2014] O.H.R.T.D. No. 1210.  The applicant who was self-represented filed an Application under s. 34 of the Human Rights Code, alleging discrimination with respect to employment because of race, colour, place or origin, ethnic origin. He leter retained counsel to assist him with the process. At that point better pleading were drafted and amendments were opposed by the organizational and personal respondents. The Tribunal Ruled that "
[15] Having considered these factors, I grant the applicant’s request to amend the Application but only in part. At the outset, I note that the applicant’s request to amend his Application was made at an early stage of proceedings. Although the respondents have each filed Responses, no hearing has been scheduled and no disclosure has yet been made. This factor would generally weigh in favour of granting the applicant’s amendment request." I was able to provide better pleadings for a police officer who alleged that he has been subjected to discrimination and/or retaliation by Supervisors. See also, Afzal and Peel (Regional Municipality) Police Services Board, Re 2014 CarswellOnt 9011. 

Emms v. Waterloo Police Services Board - Tribunal File: 2013-14928-I - This was an application where a police officer alleged discrimination against her in employment on the basis of sex and disability contrary to sections 5(1), 7(2), 7(3)(a), (b), and 9 of the Human Rights Code. The application also alleged that the employer took retaliatory action against her in contravention of section 8 of the Code.

I also had the opportunity to litigate Clarke, Clarke and McDonald v HMQ (CSCS) - Tribunal File Nos. 2013-15247-I, 2013-15248-I, 2013-15496-I. This was an application alleging racial profiling in the provision of services by the Ontario Provincial Police.

I appeared before the Toronto Police Services Board in two cases: The first involved a recommendation by the Chief of Police to revoke the Special Constable Status of a Toronto Community Housing Corporation Officer. I was successful in having the Board reject the recommendation of the Chief of Police. The second involved representing a probationary constable who the Chief of Police recommended that his appointment be terminated. The Board accepted the recommendation of the Chief of Police.

Criminal Law

I am involved in drugs, guns and gang case "Project Rx". In that case over 70 persons were arrested by police officers in a joint forces operation. It is still in the early stages of its movement through the Courts.

I represented a young person in a reported matter: R. v. C.(K.) 2014 CarswellOnt 11887, 2014 ONCJ 445, [2014] O.J. No. 4183, 115 W.C.B. (2d) 418 this is a case where a Youth Court justice crafted a unique remedy to a case in which a young person plea guilty to robbery. The headnote from westlaw reads: "Accused young person was currently 19 years old and had no criminal record — Accused young person and two males entered washroom at party where some people had gathered, then brandished gun and demanded that everyone turn over their belongings, including watches, purses, and i-Phones — Accused approached complainant, searched his pockets, took his wallet and keys, then shoved and taunted him, and repeatedly punched him in face — Accused young person pleaded guilty plea to armed robbery — Trial judge sentenced accused young person to five months’ probation, then four months open custody, and two months community supervision — Trial judge also ordered ten-year weapons prohibition and made DNA order — Presumption of diminished moral blameworthiness was not rebutted — Although accused did not possess or brandish weapon, he was not only party to its use, he was active participant in robbery — Accused’s actions resulted in physical and psychological harm to victim, and his use of physical violence was gratuitous — Accused had significant and long-standing issues that had been identified, but not addressed — While accused was open to change in his behaviour, any conclusion as to his ability and willingness to pursue his own rehabilitation remained speculative — Accused was at moderate risk of re-offending and was willing to attend counselling — Accused was required to serve probation order first, then appear before court for review at beginning of custodial portion of sentencing — If circumstances were appropriate to do so, period of custody and supervision would be converted to period of six months probation."

Civil Litigation

Bogiatzis v. Davis 2014 CarswellOnt 16643 has been restored to the normal process of litigation. This is a civil proceedings that followed a criminal matter where proceedings were stayed based on the misconduct of an officer R. v. Bogiatzis 2003 CarswellOnt 3272, [2003] O.J. No. 3335, [2003] O.T.C. 785, 108 C.R.R. (2d) 294, 59 W.C.B. (2d) 545. The Westlaw headnote sets out part of the conduct at issue: [Criminal law --- Charter of Rights and Freedoms — Charter remedies — Exclusion of evidence Applicants were charged with membership in criminal organization and multiple conspiracies related to narcotics and weapons following lengthy investigation into their alleged activities as supplier of drugs to well-known motorcycle gang — Intercepted communications were crucial to Crown’s case against each accused — Investigation conducted by wiretap rested on cumulative affidavit of senior police officer — Officer prepared affidavit based on five bankers boxes of documents provided by various investigative police services involved in investigation — Officer returned documents he considered non-relevant, made use of relevant documents for purposes of affidavit, then destroyed documents by shredding them — Officer did not keep list of shredded documents — Authorizations based on affidavit were granted in sequence over 11-month period with last five authorizations relying on first affidavit — Upon commencement of trial in response to application to compel disclosure of bankers boxes, Crown attempted to reassemble documents by copying originals — Application was brought for stay of all charges on basis that officer’s intentional destruction of documents and consequent non-disclosure seriously prejudiced right to make full answer and defence — At hearing on applications officer testified that in first affidavit he knowingly swore to falsehood regarding informant which was repeated by incorporation in each of five subsequent affidavits — Officer further testified to additional falsehoods in particular later affidavits to support interception of communications of accused as he considered them key targets of investigation — Accused took position that officer’s evidence was so misleading that no reliable evidence existed upon which wiretap authorizations could have been granted — All wiretap evidence was ruled inadmissible — Applications for stay dismissed — Despite non-conscriptive nature of evidence seriousness of breach in obtaining evidence was such that admission of evidence would diminish justice — Officer’s misconduct was flagrant in that he generated wiretap evidence to introduce at trial against targeted persons by deceiving judge authorizing wiretap with false and misleading sworn statements in affidavit — Exclusion of evidence was required to protect integrity of wiretap authorization process.]

Education Law

I am representing former Toronto District School Board (TDSB) Director Christopher "Chris" Spence before the University of Toronto Tribunal in respect to plagiarism allegation in respect to his PhD Thesis. Dr. Spence has filed an abuse of process motion that is to be argued on a date and time to be determined by the University of Toronto Tribunal Chaired by lawyer Paul Morrisson. Various preliminary issues are being dealt with: See, University of Toronto and Spence, Re 2014 CarswellOnt 12490.

In April 2014, I successfully resolved a suspension appeal and an all-schools exclusion appeal pursuant to section 265(1)(m) of the Education Act at Dufferin-Peel Catholic District School Board involving allegations of bullying.

In March 2014, I successfully resolved suspension appeal at Halton District School Board involving allegations of bullying and sexual assault.

Commission of Inquiry

In 2014, I was retained to represent its interest of the Guyana Trades Union Congress (GTUC) at the Walter Rodney Commission of Inquiry. I am currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

The Commissioners are Sir. Richard L. Cheltenham, K.A., Q.C., Ph.D – Chairman (Barbados); Mrs. Jacqueline Samuels-Brown, Q.C. (Jamaica) and Mr. Seenath Jairam, S.C. (Trinidad). The Commission’s mandate established by its terms of reference are:-
(i) To examine the facts and circumstances immediately prior, at the time of, and subsequent to, the death of Dr. Walter Rodney in order to determine, as far as possible, who or what was responsible for the explosion resulting in the death of Dr. Walter Rodney;
(ii) To inquire into the cause of the explosion in which Dr. Walter Rodney died, whether it was an act of terrorism, and if so, who were the perpetrators;
(iii) To specifically examine the role, if any, which the late Gregory Smith, Sergeant of the Guyana Defence Force, played in the death of Dr. Walter Rodney and if so, to inquire into who may have counselled, procured, aided and or abetted him to do so, including facilitating his departure from Guyana after Dr. Walter Rodney’s death;
(iv) To examine and report on the actions and activities of the State, such as, the Guyana Police Force, the Guyana Defence Force, the Guyana National Service, the Guyana People’s Militia and those who were in command and superintendence of these agencies, to determine whether they were tasked with the surveillance of and the carrying out of actions, and whether they did execute those tasks and carried out those actions against the Political Opposition, for the period 1st January, 1978 to 31st December, 1980;
(v) To examine, review and report on earlier investigations and enquiries done on and into the death of Dr. Walter Rodney.

The hearings have been adjourned sine die. The main witness Donald Rodney has not provided evidence to date. Dr. Roopnarine has not given his oral evidence. Norman McLean has not yet testified. Cecil Skip Roberts have not yet testified. My client Lincoln Lewis has not provided his evidence as yet.

The life of the Commission expires again at the end of January 2015. Parliament in Guyana has been prorogued and the President announced that elections are to be called on a date to be fixed in early 2015. 

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