The Lawyers Weekly - September 3, 2010

Provincial government claims law ‘remains in effect’ despite ruling

DONALEE MOULTON HALIFAX

Late last month the Provincial Court of Nova Scotia ruled the province’s ban on one store displaying tobacco products was unconstitutional under subs. 2(b) of the Charter. Within hours of that decision being issued, the province issued a release of its own.

“Provincial tobacco legisla-
tion,” it proclaimed, “is still in
effect.”
At this point, said Edward
Gores, senior counsel with the
Department of Justice in Hali-
fax, “there are really no implica-
tions from an operating per-
spective. The law remains in
effect.”
That message is making its
way across Canada where simi-
lar legislation exists in every
province and territory. “No chill
has been sent as a result,” said
Rob Cunningham, senior policy
analyst with the Canadian Can-
cer Society in Ottawa.

After an unsafe working conditions
complaint filed with the province by
Crown prosecutors was upheld, Nova
Scotia announced Aug. 25 it is step-
ping up security at one of its busiest
court houses.
A permanent walkthrough metal
detector will be installed at
Dartmouth Provincial Court, scene of
a recent post-sentencing “mini-riot.”
At least two additional deputy sheriffs
will be hired to operate the metal
detector. According to Nova Scotia’s
Justice Department, deputy sheriffs
at all provincial courts do daily threat
risk assessments and provide security
tailored for that day. But the depart-
ment says that recent threat risk
assessments at the Dartmouth court
have that shown portable metal
detectors need to be used more fre-
quently. The volume of hearings has
doubled at that court since 2005.

Foreign worker restrictions
CONTENTS
NEWS
ONTARIO’S TOP judge calls for
judges to expand their role as
mediators .....................................1
APPEAL RULINGS clear the path
for franchise class actions.......... 12
WHY LITIGATORS shouldn’t
overlook the duty of good faith .. 12
EXPLOSIVE ALLEGATIONS
emerge in the Quebec inquiry on
judicial nominations......................1
Biotechnology Law
REACHING FOR the “biosimilar”
brass ring ................................... 14
A TOBACCO ad ban violates the
Charter, says a Nova Scotia trial
court ............................................2
SCC CLARIFIES areas of challenge
for selection patents .................. 14
STRESS AND fatigue are “stock in
trade” of Bench work, says
Ontario’s Chief Justice ................. 3
BUSINESS & CAREERS
GREENING THE law office......... 20
LAWYER SPINS her wheels — for
her community............................. 4
VIRTUAL LAW offices gaining
popularity in Internet age ........... 21
OPINION
BENJAMIN GOOLD ................... 5
FOCUS
Civil Litigation
COURT DEBATES whether
privilege should extend to
accountants ................................. 9
DEPARTMENTS
WAIVER OF tort proceeds as
common issue in class action .... 10
Careers . . . . . . . . . . . . . . . . . 21
Classified Ads . . . . . . . . . . . . 19
Lawddities. . . . . . . . . . . . . . . 10
Legal Briefs. . . . . . . . . . . . . . .2
Letters to the Editor. . . . . . . . . 7
Names in the News. . . . . . . . . 4
Weekly Digest. . . . . . . . . . . . 16

hibits vendors from advertising and prominently displaying tobacco products behind store counters. The owner successfully contested the charge under subs. 2(b).

“I find that the display and storage of cigarettes is expressive activity that comes within the sphere of conduct that is protected by s. 2(b); further, the purpose of s. 9AA of the Tobacco Access Act is to restrict freedom of expression,” Judge Claudine MacDonald wrote in her 23-page decision.

The conclusion did not, surprisingly, surprise the Crown. “It’s a pretty straightforward case in terms of how the constitution goes,” said Gores.

“The position we advanced was that this kind of act is covered because it just doesn’t merit constitutional protection. The court did not buy that argument,” he added.

The court agreed with the
defence position, which con-
tended that Robert Gee’s free-
dom of expression and his abil-
ity to communicate with
customers was infringed. “The
case law made it clear this could
be won,” said Palmer. “At this
stage of the process, there has to
be a liberal and wide interpreta-
tion.”
In determining whether an
infringement occurred the court
first had to determine whether
the impugned activity fell
within the sphere of conduct
protected by subs. 2(b). For that
it relied on Irwin Toy Ltd. v.
Québec (Attorney General),
[1989] 1 S.C.R. 927.
There are three underlying
principles spelled out in Irwin
Toy. One of these is that “the
diversity in forms of individual
self-fulfillment and human
flourishing ought to be culti-
vated in an essentially tolerant,
indeed welcoming, environ-
ment not only for the sake of
those who convey a meaning,
but also for the sake of those to
whom it is conveyed.”
“In the context of freedom of
expression an attempt on the
part of the government to
restrict freedom of expression

“I find that the display
and storage of
cigarettes is
expressive activity
that comes within
the sphere of conduct
that is protected by
s. 2(b)…

The federal government published
amendments to the Immigration and
Refugee Protection Regulations Aug.
4, which will impact businesses who
employ temporary foreign workers via
more government scrutiny, larger
penalties for regulation violations, and
shorter work permits.
“Businesses in Canada need to
understand the impact of these new
regulations in order to maintain
access to the global labour market,”
immigration lawyer Jonathan Leebosh
of Egan LLP says. “These changes
affect all temporary foreign workers in
Canada, from general labourers to
executives, and current and future
employees.”

LSUC names treasurer

“The evidence will be overwhelming in favour of showing that if there is a violation of subs. 2(b), it will be justifiable under s. 1,” said Gores.

Palmer is also optimistic. “It bodes well for round two,” he said. “The onus is on the Crown. They’re going to need to establish there is a public good served by this law. I don’t believe there is evidence this is the case.” 

LIMITATION PERIODS curb delay, not
rights, in Charter claims.................. 11

IN HOUSE COUNSEL

RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS

PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D. BRAN T LATHAM, B.A.SC. B. SC. (CHEM. ENG.), LL. B. DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B.

JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B. BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.

Call for details
905-415-5805
or 1-800-668-6481 Ext. 805

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TELEPHONE: (416) 961-5000

FAX: (416) 961-5081

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Law Society of Upper Canada
(LSUC) benchers have elected
Toronto lawyer Julian Falconer to fill
the vacancy created by the election
of Laurie Pawlitza
as the law soci-
ety’s 63rd treas-
urer.
A partner in
Toronto’s
Falconer Charney
LLP, Falconer has
frequently been
involved in
Charter litigation and human rights
advocacy and has recently called for
a full public inquiry into police conduct
during the G20 summit in Toronto. His
practice also includes plaintiff’s per-
sonal-injury and commercial litigation
as well as criminal law.
Following the shooting death of
14-year-old Jordan Manners in his
Toronto high school, Falconer was
appointed by the Toronto District
School Board to chair an independent
inquiry into the safety of students in
the school system. The School Safety
Panel’s work resulted in a five-volume
report that formed the most compre-
hensive review of youth and safety
issues in Ontario schools.