Selwyn Pieters Litigation Year in Review 2019

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)
Pieters Law Office
Created December 25, 2019

Remembering 2019:  This was an interesting litigation year with highs, lows, speed bumps, pot holes (pun intended) and in-betweens. 

I litigated in at least 10 practice areas, delved into a new area of Securities Litigation and was an Expert in two international law matters originating from Guyana. The truth of the matter is that the cases litigated are mostly test case and fundamentally impacts society. Significantly, some of them were done pro-bono, particularly since Legal Aid or other funding were hard to come by, and some litigants cannot afford the costs of hiring a lawyer and the fees and disbursements associated with challenging the actions or omissions of public authorities particularly the police.

Overall it was a very busy year, with some significant victories. 2020 will mark my 15^th year since I was called to the Ontario Bar.

Constitutional and Public law

Langenfeld v. Toronto Police Services Board et al., 2019 CarswellOnt 14511, 2019 ONCA 716, 309 A.C.W.S. (3d) 506, 437 D.L.R. (4th) 614, 55 Admin. L.R. (6th) 322, 58 C.C.L.T. (4th) 27 (ONCA). This application involves the right of individuals to attend public meetings of the Toronto Police Services Board (“TPSB”), held in the second floor auditorium of Police Headquarters in Toronto, without submitting to a search carried out with neither a warrant nor reasonable and probable grounds. The Ontario Superior Court of Justice declared that the practice of searching visitors to Police Headquarters prior to entry in the absence of a warrant or reasonable and probable grounds, as it applies to individuals wishing to attend public meetings of the TPSB, infringes s. 2(b) of the Charter and is not justified under s. 1 of the Charter because the infringement is not prescribed by law. The Court of Appeal agreed with the Superior Court that a search as a condition of entry to Police Headquarters infringed the s.2 (b) rights of individuals wishing to attend the TPSB meetings. On the s. 1 analysis, it held that the infringement was justified, as it was prescribed by law and was a reasonable limit on the s. 2(b) right. Therefore, it allowed the appeal of the Chief of Police, set aside the application judge’s order, and dismissed Mr. Langenfeld’s application. An application for leave to appeal was filed in the Supreme Court of Canada. As an aside, the reach of the Langenfeld decsions was recently explained in Canadian Broadcasting Corporation v. Ferrier 2019 ONCA 1025

I was co-counsel for Rocco Achampong in Toronto (City) v. Ontario (Attorney General) (C65861) where Justice Edward Belobaba of Ontario Superior Court of Justice overturned Bill 5, Better Local Government Act that dramatically changed the composition of City Counsel mid-way through the 2018 municipal elections. See, City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 stay granted Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761. The appeal was heard on the merit by a five member panel of the Court of Appeal and the Court in a majority decision overturned the decision of the Superior Court and restored the status quo in favor of cutting City Council. See,Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732. Mr. Achampong did not participate in the appeal. The City of Toronto has applied for leave to appeal to the Supreme Court. It is likely that we will intervene if leave is granted.

I provided an expert affidavit in Reid v. Speaker  Charrandass and AG which was cited by the Chief Justice of Guyana in her decision, that was upheld by the Caribbean Court of Justice in CharrandasPersaud v Compton Herbert Reid, Dr Barton Scotland, The Attorney General,Bharrat Jagdeo, Joseph Harmon & Guyana Elections Commission [2019] CCJ 10 (AJ). See also, High Court asked to quash no-confidence motion; says Charrandas Persaud was Canadian since 1998 - Demerara Waves Online News Guyana, January 04, 2019

Education Law/ Civil Litigation

Lam v. The University of Western Ontario Board of Governors et al., 2019 ONCA 82, 2019 CarswellOnt 1562 (ONCA) cost order Lam v. The University of Western Ontario Board of Governors et al., 2019 ONCA 185, 2019 CarswellOnt 3247 (ONCA) leave to appeal denied University of Western Ontario Board of Governors v. Simon Lam, 2019 CanLII 64826 (SCC). In this case the Court of Appeal determined that a University Student can sue for a breach of contract. The Court looked at what was signed when the student agreed to attend that university, which would contain the terms of the contract arguably and the graduate student handbook, and determined that there was an arguable case to litigate. This matter now proceeds to a trial. Another of my colleagues is handling the trial.

W.H. v. Toronto School of Theology The Student sought to appeal the termination of his registration in the Doctor of Theology Program (Program). Minutes of Settlement waived Student’s appeal rights. The Chair asked for written submissions from the parties as to whether the Academic Appeals Committee (AAC) had jurisdiction to hear the appeal. University of Toronto Academic Appeal Tribunal dismissed case holding that it has no jurisdiction.

Police Law (hybrid Human Rights)

Stanley v. Chief of Police of the Toronto Police Service, 2019 ONSC 180, 2019 CarswellOnt 65 (S.C.J.) stay of judgement pending appeal Stanley v. Office of the Independent Police Review Director 2019 CarswellOnt 13600 (ONCA). I have completed the appeal on the merits of Stanley v. OIPRD at the Ontario Court of Appeal. The decision is reserved. Essentially the Divisional Court rejected the proposition that OIPRD and a police service can have backroom conversations on substantive matters without the complainant being notified and held that “[28] As is emphasized by the name of the decision-maker, the Director of the Office of Independent Police Review was obliged to conduct an independent investigation and reach an independent decision. This independence is central to the OIPRD’s role in providing a public complaints system against police officers in Ontario: Nobody v. Ontario Civilian Police Commission, 2016 ONSC 5824 (CanLII) (Div. Ct.), at para. 49. Here, in circumstances which belie the independence of the OIPRD, the Director had undisclosed discussions with the TPS about changing his decision and, ultimately, he did change his decision.  These undisclosed communications give rise, at least, to an appearance of unfairness and compromise the independence of the Director.”

Aiken v. Ottawa Police Services Board 2019 CarswellOnt 9212, 2019 HRTO 934 (HRTO). In this case the parties sought a determination of the “data collection question” of the public interest remedy contained in the Consent and Agreement dated July 23, 2010.  The agreement was reached between the Parties and the Human Rights Commission (the “Commission”) by way of a settlement of the underlying complaint. The Commission is no longer a party to the proceedings.  The Applicant, Chad Aiken, sought an interpretation that reflects his right (and that of other persons in Ottawa) to equal treatment with respect to policing by the Ottawa Police Services (the “OPS”) without discrimination based on race.  In seeking this interpretation, the Applicant maintains its position that the data collection should be sufficiently encompassing to determine whether there is an overrepresentation of Afro-Canadians in police scrutiny. The Tribunal opined on the “critical secondary work” that is needed when data reveals a problem. It urged that “data collection is just a first step, albeit a significant one, in addressing racial disproportionalities arising from policing practices.” The HRTO strongly urged the police service to take the next steps in the process – “to identify to the best of its ability what is causing or contributing to these disparities through conducting further research, and then based on the research findings, to develop and implement specific strategies to reduce and hopefully eliminate these disparities.” paras 130, 132. The Tribunal felt that Ottawa Police went way beyond what was called for in the 2012 Memorandum of Settlement and agreement.

I currently sit on four technical tables convened by the Ministry of the Solicitor General to create standards for the implementation of the Comprehensive Ontario Police Services Act, 2019, S.O. 2019, c. 1.

I also attended community meetings in Regent Park on collecting statistics and the roll out of the new neighborhood policing model. 

Securities Law / Quasi Criminal

R. v. W. W. 2019 CarswellOnt 18822 (O.C.J.) - On January 21, 2019, Mr. W. pleaded guilty to one count of trading in securities while prohibited contrary to s. 122(1)(c) of the Ontario Securities Act. The OSC Prosecutors were seeking 12 months as a joint position, 15 to 16 months as an open position, 2 years less a day on conviction after trial, and two years probation, in any event, on terms that would prohibit Mr. W. from working in securities or any related businesses. Justice Malcolm McLeod of the Ontario Court of Justice was not convinced that a higher sentence was required as there was no fraud involved, it was not a boiler room scam and neither was there any investor losses. Reviewing existing caselaw, Justice McLeod found that harsher sentences were usually reserved for offenders facing similar charges in cases involving boiler room scams and significant investor losses. The court made it clear that no such factors were present in Mr. Weber’s case and such absence of ordinarily aggravating factors cannot be used to drive up the sentence. Taking guidance from existing precedents, Justice McLeod refused to accept the OSC’s arguments for a higher sentence in the range of 15-18 months. Mr. W. was sentenced to a 90-days intermittent sentence to be served on weekends and two years probation. OSC has appealed the sentence and a hearing of the appeal has been set for May 25, 2020.

R. v. W.W. 2019 CarswellOnt 14097 (O.C.J.) Mr. W. brought an application to strike his guilty plea on the basis that it was not voluntary, informed and unequivocal. The motion to strike the guilty plea was dismissed. The matter thereafter proceeded to the sentencing phase.

Criminal Law

R. v. M.B. 2019 CarswellOnt 10207 (O.C.J.). M.B. was a residential support worker employed at children’s residence that housed individuals with developmental, emotional, psychiatric and behavioural challenges. She was alleged to have assaulted 11-year old complainant on six occasions.  A third-party record application was filed. Records were produced for review by judge, who concluded that some of records were likely relevant. Copies of were produced. Record was not to be used in any other proceeding except with authorization of court order. M.B. matter proceeded to trial and she was acquitted of all charges.

R. v. B.L. (O.C.J.). Mr. L. was charged with six counts of assault, one count of assault with a weapon and one count of utter threat to cause death. He pled guilty to two counts of assault and was given a conditional discharge with probation. The Crown sought a DNA Order for this secondary designated offence. Submissions were made that the state’s interest in obtaining the offender’s DNA profile is premised on the serious nature of both primary and secondary designated offences making the order one that will advance the state’s objectives of:[1]

a)     deterring potential repeat offenders (i.e. specific deterrence);

b)     promoting the safety of the community;

c)     detecting/identifying/prosecuting the offence upon re-offending;

d)     assisting in the solving of "cold" crimes;

e)     streamline investigations; and

f)      protecting the innocent by eliminating suspects and exonerating the wrongfully convicted.

Mr. Justice Stephen Brown accepted and adopted my written submissions: "I have read Mr. Pieters' very thorough written submissions on this matter and they are set out in paragraph 28 to 39 on his written submissions which I am going to file…. And I adopt them in their entirety.". The Crown’s request for an Order to collect Mr. B.L. DNA was denied.

Human Rights Law

Khan v. Ontario (Community Safety and Correctional Services) 2019 HRTO 357, 2019 CarswellOnt 2769 (HRTO). In this case, the applicant filed an Application alleging discrimination because of race, colour, ancestry, ethnic origin, disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, among other things the applicant alleges that the respondents have discriminated and reprised against her in how hours at the workplace have been scheduled.   In addition to filing this Application, the applicant filed a grievance with her union regarding the way in which hours are scheduled. The grievance alleges that there is favouritism in the awarding of overtime hours. She seeks “full redress”. The Tribunal deferred the matter. The applicant subsequently withdrew her grievances and the matter is proceeding through the HRTO processes.

2015-20752-I; 2015-20753-I; 2015-20754-I Stanley v. Toronto Police Services Board.  The applicant filed three Applications, one on behalf of each of her three sons (the “claimants”). In the Applications, she alleged that the respondents discriminated against the claimants because of race, colour, ancestry, place of origin, ethnic origin and age contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). The Application arose out of a raid of the applicant’s home carried out by Toronto Police officers in April 2014. The Applicant alleged that the officers’ conduct was fuelled by stereotypical assumptions about young black males and their propensity to commit criminal offences and to act violently. In addition to filing the Applications, the applicant filed a complaint to the OIPRD alleging misconduct on the part of the police officers involved in the raid. See, above section on Police law. This Human Rights matter came before the Tribunal in 2019 and has now been completed.

HRTO File 2019-37512-I - S.A. by litigation guardian A. A. v TPSB, et al. This case revolves around the encounter between a group of racialized youths in Regent Park and Toronto Police Officers who followed them over several blocks and then pretextually ticketed them at a traffic light (crossing on a red light) to collect intelligence in 51 Division. A human Rights complaint was filed in June 2019 This case will be a test on how far the Human Rights Tribunal is willing to go to make orders dealing with Walking Whilst Black situations. A youtube video of part of the encounter is available.

HRTO File 2018-33829-I JC v The Regional Municipality of Peel Police Services Board et al involves a complaint filed by a Black youth concerning his experience with Peel Police. On August 25, 2017, in Brampton, Ontario, J.C. was arrested by Peel Police and criminally charged for assaulting a police officer.  Those criminal charges were later withdrawn.  At the time of his arrest, J.C. was a young person under the Youth Criminal Justice Act, S.C. 2002, C.1 (“YCJA”).  He subsequently commenced an application (“Human Rights Application”) before the Human Rights Tribunal of Ontario (“HRTO”) alleging that the Peel Regional Police Services Board, Jennifer Evans, David Oxley, Jarrett Curtis, Alexander Scott-Krawczyk and Gary Mackin (collectively, “Peel Police”) discriminated against J.C. on numerous grounds including race.  A Judge of the Ontario Court of Justice recently granted an Order with respect to the use the parties can make of the file in the criminal proceedings. The matter is likely to be heavily litigated in 2020.

Harrower v. Ontario 2019 CarswellOnt 14680 (HRTO) – The applicant suffers from Arthrogryposis Multiplex Congenita (AMC), a congenital joint contracture condition, as well as several other conditions including Chronic Obstructive Pulmonary Disorder (COPD) and Celiac Disease. In addition to his disabilities and illnesses, of which he needs immediate and urgent relief of his symptoms, Ken has limited funds making the OCS system unreasonable and flawed. As a result of his COPD condition, Ken is unable to smoke cannabis and must either eat cannabis in edible form or eat raw cannabis itself. Given his disabilities, he is unable to work full-time, making him reliant on the Ontario Disability Support Program where he receives very limited funds that do not adequately cover his day-to-day expenses. Ken has a prescription for medical cannabis under Access to Cannabis for Medical Purposes Regulation. Ken filed a Human Rights challenge against The Attorney General of Ontario, The Office of the Premier of Ontario and The Toronto Police Service citing that the current cannabis retail system launched by the Government of Ontario –  the Ontario Cannabis Store (OCS) – is flawed and discriminatory against people with disabilities and limited financial means.  Tribunal directed combined summary/preliminary hearing.  Tribunal would determine whether complaint had reasonable prospect of succeeding. Parties could make submissions regarding whether complaint should be dismissed on basis medical cannabis was unconnected to jurisdiction of Ontario.

2017-28096-I Walkes v. Reids Heritage Homes the Tribunal heard evidence on whether an expert affidavit from J David Hulchanski, PhD will be accepted into evidence and the expert qualified to provide evidence in this housing discrimination case. Dr. Hulchanski posited that “Given that the Black population of the region Fergus is part of is 526,000 (5.8% of the GGH, Table 1) researchers are correct to wonder what are the odds of an exceptionally small Black population of Fergus occurring and maintaining itself ‘naturally,’ and for so long (as of 2016), given the extensive ethnocultural diversity of the Toronto region, and much of Ontario and Canada? How is it that Fergus with 20,400 people, 8,150 households, in a county that has 3,300 Black residents, has a Black population of 100? These facts, given that they are from 2016, would alert most researchers to consider residential discrimination, in the form of racial steering and racial exclusion, as part of the explanation.” The decision in respect to this discrete issue is reserved.

In the international law arena, I was engaged as a local expert for the World Bank Group’s Women, Business and the Law project in their Violence against Women survey for Guyana. My contribution was reported in the Law Times, Canadian lawyer helps with World Bank project on women and the law, October 21, 2019. 

Licencing / Professional Regulation

11724 v. Director, Child, Youth and Family Services Act 2019 CarswellOnt 2389, 2019 CanLII 29112 (ON LAT). The appellant operated a children’s residence in Ottawa, Ontario. It appealed the respondent’s Proposal to Revoke a Licence (the Proposal) pursuant to s. 236(1) and s. 264(2) of the Child, Youth and Family Services Act, 2017. This decision dealt with a request to seal part of the hearing and its records. The Tribunal considered the openness principle as set out in Toronto Star v. AG Ontario, 2018 ONSC 2586 (ONSC). The appellants voluntarily surrendered their licence. Two days of evidence was heard in Ottawa.

Inquests

Ekamba, Re 2019 CarswellOnt 9640. Mr. Ekamba was fatally shot by Peel Regional Police officers who were responding to a complaint. During the incident, a stray police bullet struck Ms. Susan Zreik, who had not been involved and was in her apartment. Ms. Zreik was transported to hospital, underwent surgery for the bullet wound, and survived the injury. Mr. Ekamba’s death was investigated by the Special Investigations Unit. At the conclusion of its investigation, the SIU did not lay criminal charges against the involved officers. One of the main issues in the inquest is the intersection of race and mental health and what role it had in this case. The Inquest has been scheduled for three weeks commencing May 11, 2020. I will be counsel for Black Action Defence Committee.

Cannabis Law

This was a busy year litigating cannabis cases on many fronts. The advocacy was in the Courts and on the streets. Toronto Police Services conducted major operations resulting in the arrest and prosecution of hundreds of young bud tenders.

Toronto Police Service Drug Squad launched Project Buffet in which charges were laid of conspire to commit an indictable offence: to wit, distribution of cannabis, contrary to subsection 10(1) of the Cannabis Act, thereby committing an offence contrary to subsection 465(1)(c) of the Criminal Code and Possession of property obtained by crime: to wit, currency derived from drug trafficking, contrary to section 354(1) of the Criminal Code against numerous persons. On some days I was running bail hearing for 15 persons held for show cause hearings. These matters are making their way through the Courts.

Sale or distribution by non-authorized cannabis retailer or permitted by landlord (ss.6, 7, 13 and 23 of the CCA). For charges od sale of cannabis under s. 6 of the CCA, Ontario Attorney General disposed of over 100 cases with the use of fines of $500.00 and stays of some of the charges. The City of Toronto prosecution asked for $1000.00 and one-year probation, for the budtenders.

Concrete blocks were used to shutter dispensaries. In one instance which prompted a hasty change in the law, I forced the City of Toronto By-law enforcement to re-open a location in which a tenant was locked out of his unit.

The law was amended to remove the provision where a building remained open if residential tenants resided on the property. We litigated the change of the legislation in Brodie v. Attorney General of Ontario, 2019 ONSC 5735. Unfortunately, the application judge did not allow interim access to the premises pending the determination of the constitutional issues.

Law enforcement inclusive of the police engaged in aggressive enforcement in relation to cannabis under the governing federal and provincial statutes, namely, the Criminal Code, Cannabis Act and the Cannabis Control Act, 2017 (CCA) which came into force on October 17, 2018 in Ontario.

The unlicensed cannabis market has and continue to meet a demand unmet by the current regulatory regime. In this regard, there because intense enforcement action by the City of Toronto and Toronto Police to shut down the unlicensed.

The Cannabis Retail Store Allocation Lottery became a farce and has been the subject of litigation. 104 Harbord Street, the location of a series of raids, actually won one of the spots in the lottery.

The Province recently announced that the laws will be amended to open the markets. In the meantime, hundreds of criminal matters and CCA matters are clogging up the Court’s dockets and wasting precious judicial, public and private resources because of a series of costly missteps on the part of the government and regulators.

I have won two different awards in 2019 for my work on law reform and advocacy in this area.

Cases will be litigated in 2020 on the Constitutional, human rights, criminal/quasi criminal and administrative law front on the cannabis files. It will be interesting to see how the judiciary wrestle with these matters.

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[1] R. v. F.(P.R.), 2001 CarswellOnt 4566 (C.A.),  at paras 17-18.

Contemptuous Immigration and Refugee Board of Canada

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)

Pieters Law Office

Created October 31, 2019

The Law Society Tribunal (Ontario) was forced to take the unusual step of stating a case of contempt against the non-compliant Federal Immigration and Refugee Board of Canada (IRB) to the Ontario's Divisional Court. See, Law Society of Ontario v. Odeleye, 2019 ONLSTH 135 <http://canlii.ca/t/j30nw>

The war between the two Tribunals centers around an order for the IRB to produce relevant file evidence to the Law Society for vetting and redaction so that it can determine what is to be disclosed to the parties to a misconduct proceedings. Law Society of Ontario v. Odeleye, 2019 ONLSTH 42 (CanLII), <http://canlii.ca/t/hz48z>

That process is governed by the Common Law process set out by the Supreme Court of Canada in R. v. O’Connor (1995), [1996] 2 W.W.R. 153, [1995] 4 S.C.R. 411 , 130 D.L.R. (4th) 235 (S.C.C.). If the Tribunal is satisfied that the records are likely relevant, the Tribunal should decide based on the inspection of the records, whether, and to what extent the records should be produced.

Factors to consider in determining whether to order production include the following:

a) The extent to which the record is necessary for the accused to make full answer and defence;

b) The probative value of the record in question;

c) The nature and extent of the reasonable expectation of privacy vested in that record;

d) Whether production of the record would be premised upon any discriminatory belief or bias, and,

e) The potential prejudice to the complainant’s dignity, privacy or security of the person.

The Law Society Tribunal ultimately  agreed with the Lawyer "that the IRB should produce to us complete copies of the records the IRB has already produced in part."

The IRB refused to cooperate and comply with the Tribunal's order and did not sought judicial review of the decision. It then remained silent in the face of the Tribunal's order:

"The tenor of Ms. Jennifer Harnum’s submissions and the animus that the IRB has shown for our adjudicative processes and procedures are concerning.... The IRB’s contempt for our process is surprising, coming as it does from a federal administrative tribunal that has the same or similar obligations of procedural fairness as we have. The IRB’s conduct has been as baffling to us as it has been frustrating" wrote Law Society Adjudicator Thomas G. Conway.

'In our view, the IRB’s breach of our order will have a serious deleterious effect on the fairness of the adjudication of this application if the breach is not remedied."

Adjudicator Conway concluded " For the reasons stated, we have concluded on the facts of this case that we should exercise our discretion under s. 13(1) of the SPPA by asking the Divisional Court to inquire into whether the IRB is in contempt of our orders for production of records."

I agree with the steps taken by the Law Society Tribunal in this case. Its orders must be complied with and it is remarkable and significant that a Federal Tribunal sought to ignore or otherwise not comply with the orders to produce relevant documents required to ensure that the public interest is protected. After all the Tribunal has to determine in this case whether or not the lawyer misconducted himself in three refugee proceedings. It would be an injustice to the parties if relevant evidence held by a third party is not produced.