One-two punch

LOW LITERACY

Growing problem in family courts

ESTATE TAX

Beware U.S. property tax implications

PAGE 15

AGREEABLE
ETHICS

Trends change but values should not

DONALEE MOULTON

The Newfoundland and Labrador Department of Justice has had its knuckles rapped by the court of appeal for failing to hand over requested information to the provincial privacy commissioner. The DOJ claimed solicitor-client privilege prevented sharing the information. The court made it clear that argument did not hold up to legal scrutiny — a determination that is resonating across the country.

“This decision is a very important one in the area of access to information, and since there is very little jurisprudence on the point, it has bearing right across the country. I understand it has already been filed in some court cases that are currently ongoing,” said Anna Cook, a partner with Cox & Palmer in St. John’s who represented the Information and Privacy Commissioner.

“The court of appeal has con-
firmed that the information and
privacy commissioner has the
right to independently verify
claims of solicitor-client privilege
being made by public bodies,” she
added.

Not surprisingly, the decision sits well with Commissioner Ed Ring. “The Court of Appeal decision makes it clear that public bodies are required to produce any records to my office which I consider relevant to an investigation, including records which a public body claims are protected by solicitor-client privilege,” he said in a news release issued to media on the heels of the appeal court decision.

Until the judicial green light from the province’s highest court, the commissioner had been effectively prevented from fulfilling his mandate, Ring said, because his ability to review records where there was a claim of solicitor-client privilege had been removed. Last year Justice

This tight-fisted stance means knuckles rapped

See Information Page 27

BY CRISTIN SCHMITZ OTTAWA

The Supreme Court delivered two body blows in one week to the powers of human rights tribunals across the land.

In an October 27 judgment hailed by business groups and others, a five-judge majority of the court drastically reduced the discretion of human rights tribunals to rehear complaints of discrimination that have already been decided by workers’ compensation boards, or other administrative decision makers who have overlapping mandates with human rights tribunals in B.C. Workers’ Compensation Board. v. Figliola.

The decision “is going to have a
major impact across the country
because it prevents forum shop-
ping, it promotes finality, it pro-
motes territorial respect, and it also
prevents, to use the words of the
court, ‘lateral adjudicative poach-
ing,’” B.C. Workers’ Compensation
Board lawyer Scott Nielsen said.
“This case will stop [the phenom-
enon of multiple proceedings] in
its tracks,” he predicted.

Peter Gall of Vancouver’s
Heenan Blaikie, who represented
the intervener Coalition of B.C.
Businesses, said the practice of
workers taking a second kick at the
can in front of human rights tribu-
nals after their discrimination
complaints had already been dis-
missed by a labour board or other
administrative decision-maker
“was happening often enough that
it was a real problem.”
“This decision will apply to all
human rights tribunals,” Gall said.
“This was of enormous importance
to the business community, that
there would be finality, and not
duplication and the attendant
waste of resources that comes from
duplication.”
In a second Supreme Court
decision on Oct. 28, the judges
ruled 7-0 that the text, context and
purpose of the Canadian Human
Rights Act “clearly show” that the
Canadian Human Rights Tribunal
does not have the power to award
legal costs, including expert wit-
ness costs, to victims of discrimina-
tion in Canadian Human Rights
Commission & Mowat v. A.G. Can-
ada.

This will have “a profound effect” hampering the ability of human rights complainants to advance their claims, Andrew Raven of Ottawa’s Raven Cameron said.

Raven, counsel for Donna Mowat, a sexual harassment victim who had been awarded $47,000 in legal costs by the tribunal, noted that lawyers for the Canadian Human Rights Commission

from top court
rocks tribunals

See Tribunal Page 5

This case will stop
[the phenomenon of
multiple proceedings]
in its tracks.

Scott Nielsen, B.C. Workers’ Compensation Board lawyer

“

No more second kick at the can for those who feel cheated initially

THE LAWYERS WEEKLY

Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION December 6, 2002

THE LAWYERS WEEKLY

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002

PAGE 9

MAURICE FITZGERALD FOR THE LAWYERS WEEKLY

A recent Newfoundland Court of Appeal ruling will resonate across the country, says Anna Cook, a partner with Cox & Palmer in St. John’s, who represented provincial Privacy Commissioner Ed Ring.

Nice guys finish behind nastier ones

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