Friday, March 30, 2012

Guelph Freeman not so Free

In October, I posted a "Stranger than Fiction" entry about the "Sovereign Man" hoax, whereby a number of people have taken to referring to themselves as sovereign persons, or freemen on the land.  The essential basis of the theory is that they believe the person who is subject to the law is a legal fiction created by the government, and that by separating themselves from this legal fiction they can live as sovereigns without needing to recognize the government's authority.

It's interesting and disturbing how these folks pick and choose what aspects of the law they respect - the entire principle is based on pseudo-legal reasoning, pretending to be rooted in interpretations of the common law, yet the end result is that they don't feel that the 'flesh and blood person' needs to pay any heed to the law.

One of the cases I discussed in the October entry involved a fellow who was jailed for 5 days for contempt of Court after failing to obey an order to return a Mercedes he hadn't paid for.  (Evidently, enjoying the car was supposedly a right of the 'flesh and blood person', whereas paying for it was an obligation limited to the 'straw man' fictional person.)  The car was then returned.

This demonstrates an important feature of our society and legal system:  The rule of law remains, when all is said in done, rooted in force.  Most people obey the law, more or less.  Yeah, you do a few things that you think you'll get away with, driving a bit over the speed limit, etc., but when somebody in a position of lawful authority directly tells you to do something, you usually do it.  It's that respect for authority that is essential on a large scale to have a civil society.  But when somebody refuses to participate in civil society, refuses to acknowledge authority within our society, and refuses to be bound by society's laws, society retains the ability to subjugate that person by force.

I also referred to a YouTube video, involving a fellow in a Guelph courtroom challenging a JP, and refusing to acknowledge his own identity.  News coverage on the topic suggested that the person was in Court fighting by-law infractions, and that after himself declaring the case dismissed (after the JP had walked out) he was convicted of the offences and fined.  (The Crown considered laying charges in connection with the unlawful video recording of Court proceedings, but apparently never did so.)

This particular individual has been back in the news lately.  His name is Wilfred Keith Thompson (though he rejects that name), and he's spent most of the last month in jail.  My understanding of the case is pretty much entirely from coverage in the Guelph Mercury, but they've run several stories about this matter.  From the coverage, it appears that his bank took possession of his home in February.  (I can only speculate as to the events leading up to this, but it suggests a default on his mortgage...perhaps akin to the Mercedes case?  In the ordinary course, the bank will commence litigation and obtain a "writ of possession" to take possession of the property so that they can exercise a Power of Sale to recover the amount of the mortgage.  If necessary, the sheriff can enforce the writ by evicting the occupants and changing the locks.)

On March 3, Thompson and two others were charged when they were allegedly found on the property unlawfully.  (Charges against the other two were later dropped.)  He was denied bail.  Considering the nature of the offence, this should be surprising - it's usually relatively easy to get bail, unless there's reason to think that you're a flight risk or a danger to the public.  All you really need to do is promise to behave yourself, and perhaps avoid other things connected to the alleged offence (so in an assault case, you might need to agree not to contact or approach the complainant, for example), and sometimes get a surety who is able to keep an eye on you and put up a bond.

But given the antagonism that freeman adherents have towards authority, it isn't the least bit surprising that one might not be prepared to provide a recognizance to the Court, and end up getting denied bail as a consequence.  In some of his Court appearances, Thompson has reportedly protested that he's been kidnapped and that the whole affair is dishonourable.  In the most recent appearance, according to the Mercury, he requested an adjournment so that he could get assistance in Court from someone who is apparently a non-lawyer.

From the sounds of it, the whole thing is a bit of a gong show.  Between Thompson (and his former co-defendants') obfuscation of their identities, protests regarding the Court's process, refusals to recognize the Court's jurisdiction, and a significant number of spectators, many of whom apparently subscribe to the freeman philosophy (with the result that they don't necessarily recognize the Court's jurisdiction either), there's a lot of posturing and other nonsense going on.  One of the Mercury's stories indicated that the courthouse implemented additional security checks for weapons (and cameras, perhaps?).

It's prudent to be cautious.  I've seen YouTube videos of mobs of 'freemen' creating significant disruption, including physical interference with officials carrying out their duties.

To be fair, I've not seen any instances of freemen going out and committing violent crimes out of the blue and claiming to be exempt to prosecution.  In general, it looks like they are limited to trying to game the system, refusing to pay taxes, ignoring regulatory regimes such as mandatory auto insurance, incurring debts with no intention to pay them, and in one particularly bizarre case actually registering a spurious PPSA security against a financial institution and refusing to agree to discharge it unless the bank advanced them a significant line of credit.  (Suffice it to say that the bank responded with a successful Court application to discharge the registration of the security interest.)  Break and enter appears to be a bit of a new one, but under the circumstances is easy to understand.  If he doesn't recognize the authority of the Court Order giving the bank possession of his house, then it just makes sense that he would break back into the property.  (I'm not sure what the specific charges are.  Whatever they are, if a "colour of right" defence exists, this could be messy.)

These freemen are always unsuccessful in making their pseudo-legal arguments, and often end up getting jailed for contempt or other regulatory offences.  The nuisance they create, on a social level, is somewhat mitigated by the fact that these fact patterns can be pretty funny.

However, they're also dangerous, because they have convinced themselves and each other that they are right with such vigourous enthusiasm that they believe that the efforts of authorities to enforce laws against them are unjustified interferences with their rights.  So they gather in mobs, absolutely convinced that they're being unlawfully accosted, all the while forcing the legal system to resort to its fundamental basis in forceful coercion.  It is not difficult to imagine such an affair turning violent.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Tuesday, March 27, 2012

Constructively Dismissed Bank Manager Didn't Fail to Mitigate

I've posted before about constructive dismissal, and about the application of the mitigation principle to the doctrine.  In addition to having to prove that the employer effectively repudiated the employment contract, a constructively dismissed employee must often meet the additional challenge of establishing that it was reasonable not to continue in the job anyways.

The idea is this:  When a contract has been breached, an innocent party can sue for the damages which flow from the breach, but is obligated to take reasonable steps to limit those damages - you can't recover for avoided losses, or for losses which should have been avoided through reasonable diligence.  Normally, in wrongful dismissal, that simply requires a plaintiff to take reasonable steps to find a new job.

However, in constructive dismissal, the Courts ask whether or not reasonable mitigation would have entailed staying with the old employer despite the constructive dismissal.

This isn't going to be the case where the constructive dismissal is generated by ongoing harassment or a poisoned work environment, and the clearest case where there may be a failure to mitigate is one where an employee is substantially demoted but without a pay cut and where the demotion is not a reflection of performance.  (Imagine that I'm the manager of a facility with a large number of employees, and my employer decides to restructure and close the facility due to changing economic conditions, and finds another place for me with a much lower level of responsibility, but maintains my compensation structure intact.  It's a big step down for me in terms of responsibility, but I'm still making the same money.  So if I quit, foregoing the remunerative employment still being offered by my employer, the Court's conclusion may be "Yes, you were constructively dismissed, but the reasonable thing to do under the circumstances is stay in the job until you find something better.")

I've been fairly critical of this doctrine.   I think there's something dissonant about saying that the employer is not entitled to implement a particular change, but is nonetheless entitled to expect the employee to accept it.  But that's the way the law has fallen, and that doctrine has been applied to the detriment of a number of employees.  But the doctrine is starting to get fleshed out a little bit more, including the limitations on the doctrine.

The Court of Appeal released a decision today in Chandran v. National Bank of Canada, upholding the trial court's decision that Chandran's choice to treat his employment relationship as being at an end was not a failure to mitigate.

Chandran was employed by the bank for 18 years, and was a senior manager at the bank's Commercial Banking Centre in Vaughan.  He had moved up the corporate ladder pretty smoothly, and received excellent performance reviews.  He reported to the Vice-President of Ontario Commercial Banking, Mr. Flowers, who was tasked with improving the substandard performance at the Commercial Banking Centre.  Flowers asked the HR Manager to embark upon an employee satisfaction survey.  The result was that 9 of 11 employees alleged bullying behaviour of Mr. Chandran.  Flowers concluded that it was necessary to remove Chandran's supervisory responsibilities; he issued a disciplinary warning to Chandran which relieved him of his duties as and presented him with two alternative postings of comparable remuneration and prestige, but without supervisory duties.  (The salary and benefits would have remained the same for the relevant period of time, though his target bonus would have been reduced from 17% to 15%.)

The discipline was an important factor in this case.  Even though the changes to his remuneration were relatively minor, the reassignments were still a demotion, and combined with the discipline could actually hinder his ability to find a new job equivalent to his old position; accordingly, it was reasonable for him to decline to take either of the offered positions in mitigation.

The Court of Appeal dismissed the employer's appeal relatively summarily, concluding that this was a finding of fact entitled to substantial deference, and that there was no palpable and overriding error warranting appellate intervention.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Wednesday, March 21, 2012

Ontario Court of Appeal Rejects Restrictive Covenants

An interesting new case from the Ontario Court of Appeal was just released:  Veolia ES Industrial Services Inc. v. Brule.

Brule founded Veolia, a company which engages in "inspecting, cleaning and rehabilitating sewers".  In 1999, he sold it, and agreed as part of the sale to continue as Veolia's president for five years.  This included a non-competition clause which carried for five years beyond the end of the contract.  Four years in, they renegotiated the contract, and agreed to a new three year contract term starting January 1, 2004, with new restrictive covenants to become effective for two years starting January 1, 2007.  (The new contract completely and expressly superceded the terms of the old contract.)

The contract also included early termination language, permitting Brule to quit on 180 days' notice.  He did so, giving notice in July 2004, ending January 2005.

Brule went on to start a new company, Clean Water Works, originally intended to rehabilitate water mains (which did not compete with Veolia).  However, in fall 2005, Clean Water Works needed more business, and so tendered for sewer work with the City of Ottawa.  Clean Water Works won the tender process; Veolia was the next lowest bid.

Veolia brought an action seeking damages for breach of the non-comp clause and breach of fiduciary duties.

There was a problem with the language of the clause, however:  The clause specified that it became effective January 1, 2007.  The trial judge concluded that the intention of the parties was obviously to have a non-competition clause effective for two years following the end of employment, and interpreted the contract accordingly, finding that Brule breached it.

The Court of Appeal disagreed.

The specified 2007 date was not accidental - the evidence was clear that the intention was that, if the employment relationship extended beyond the anticipated three years, the non-comp would still not extend beyond December 31, 2008.  Veolia's own representative acknowledged that Brule would not have signed the contract otherwise.

In other words, the trial judge's interpretation of the contract was one that the parties had quite expressly drafted to avoid, and was therefore an error.  The Court of Appeal found that the language of the contract had to be left as it was, that the trial judge's "blue pencil" severance of the 2007 date was wrong, and that the language of the restrictive covenant was therefore unreasonable under the circumstances (and in any event wouldn't have barred Brule from competing in 2005).

As to the alleged breach of fiduciary duty, Brule had a common law duty not to compete unfairly.  However, the only unfairness of the competition that Veolia could point to was that Brule had retained a binder of Veolia's public tenders...but the evidence was that this binder was not used in the Ottawa tender, and therefore could not have made the competition unfair.  Besides, the tenders themselves were public record.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Friday, March 16, 2012

Court of Appeal Rules on Shaw v. Phipps

The Phipps case has made some waves in the Human Rights world, and has now reached the Ontario Court of Appeal.  It would not surprise me at all if the Supreme Court agrees to hear it, though, due to the size of those waves.

The Facts

Mr. Shaw is a police officer.  Mr. Phipps is a Canada Post employee, and happens to be black.  Shaw was patrolling an affluent neighbourhood with an officer trainee.  Shaw regularly patrolled that neighbourhood.  Phipps was delivering mail in the area, but this was not his regular route.

Shaw recognized that Phipps was not the ordinary mail carrier for the area, and began observing him, and became particularly suspicious when he saw Phipps knock on the door of one house and converse with a homeowner; Shaw then sent the officer trainee to the door afterward to inquire about the conversation, and the homeowner said that Phipps had been inquiring about misdelivered mail.  Shaw was doubtful, and was concerned that the postal uniform might just be a ruse.

Accordingly, he stopped Phipps, questioned him, and ran his name through a criminal records search.  Nothing adverse came up, so he allowed Phipps to continue delivering the mail, but continued making inquiries, including asking another postal carrier in the area about Phipps' identity.

Phipps brought an application against the police for discrimination.

The Human Rights Tribunal Decision

The hearing was bifurcated.  In the Tribunal's decision on liability, the Tribunal determined that race - an African Canadian being present in an affluent neighbourhood - at least contributed to Shaw's actions, whether consciously or subconsciously.

In the decision on remedy, the Tribunal ordered the Respondents to pay Mr. Phipps $10,000.

The Divisional Court

Applications were made to the Divisional Court for judicial review of the decision.  There were a number of grounds, but it seems to me that the best one for discussion is that of the 'prima facie case'.  Essentially, in a case of this nature, an applicant has to lead evidence capable of supporting a conclusion that unlawful discrimination occurred, and then the onus falls upon the respondent to rebut the evidence, in part by establishing non-discriminatory reasons for the actions in question.

The Tribunal jumped awfully quickly to concluding that a prima facie case had been established, and went to sorting through the non-discriminatory explanations to show why they were not credible.  It is concerning. I recognize the unpleasant reality of racial profiling, but I feel that it is no more desireable to presume that every interaction between police and racial minorities are motivated by race.

The majority of the Divisional Court found that that the Tribunal's conclusions were entitled to deference, and dismissed the applications.  However, a compelling dissent by Justice Nordheimer drew out the problems with the Tribunal's analysis, including on the absence of a clear prima facie case, but also on flaws in the Tribunal's reasoning for rejecting the non-discriminatory explanations.

Shaw identified several reasons that he found Phipps suspicious, engaging in behaviours which he thought strange of a legitimate postal carrier.  He knew that criminals occasionally posed in uniforms to prepare for criminal activities, and was concerned that this was a possibility.  There were rational explanations for these purportedly strange behaviours, but the Tribunal's decision sometimes blurred the line between the existence of these explanations and Shaw's awareness of them.  The question is not whether Phipps was planning to burgle a house - we can be reasonably confident that this wasn't going on.  The question is why Shaw suspected this as a possibility, and to that extent a reasonable explanation beyond his knowledge at the time cannot inform the analysis.  For example, Phipps knocked on a door to ask about misdelivered mail...and the homeowner told Mr. Phipps that she had received misdelivered mail the previous day, but had taken the mail to the correct address.  That makes the 'misdelivered mail' explanation seem pretty credible.  But the trouble is that Shaw didn't know that much.  The officer trainee, Constable Noto, knocked on the door, and was told that Phipps had been inquiring about misdelivered mail.  Noto then returned to Shaw and told Shaw that.  And only that.  But the Tribunal rejected Shaw's explanation of this reason for being suspicious because of the other information of which he was not aware.  This is of concern to Justice Nordheimer.

The Court of Appeal

The Court of Appeal recently released this decision, upholding the decision of the majority of the Divisional Court.

The argument, again, goes that the adjudicator failed to properly assess the question of whether or not the prima facie case was properly made, and whether or not the onus was improperly reversed.

The Court of Appeal noted that there were three facts contributing to the prima facie case:  Shaw questioned Phipps despite the fact that Phipps did not fit the description of persons suspected of criminal activity in the area; Shaw did not question other white contractors/service providers in the same neighbourhood; Shaw subsequently asked a white letter carrier about Phipps.

The Court of Appeal then notes that the Tribunal is entitled to deference in terms of the conclusions it draws from those facts.

Of course, there are problems with those facts - only the second one is even capable of supporting an inference of racial discrimination, and that's pretty tenuous unless you can draw direct comparisons.  If a police officer sees something he thinks is suspicious in an affluent neighbourhood, we don't expect him to think, "Well, that's not the burglar we're looking for, so let's ignore him."  There are plenty of reasons why you might suspect one person and not another, and race ought to be pretty far down the list for any half-decent police officer.  And if you doubt the bona fides of a person in a Canada Post uniform, it kind of makes sense to ask the next Canada Post person you see about it.  Now, if there were evidence that Shaw had passed other racial minority postal workers until he found a white one, that would be something.  But that's not the evidence.

Regardless, is that enough to satisfy an adjudicator, on a balance of probabilities, that Shaw's intentions were discriminatory?  This is a tricky part.  The appellants argued that that the adjudicator should have had to find that the prima facie case had been met before calling upon Shaw to present his case, and that requiring him to present a non-discriminatory explanation without so finding is a reversal of the onus.

The Court of Appeal sidesteps this.  Procedurally, there's no reason for the adjudicator to have to rule twice on the same question.  That's probably true, though in most settings it's possible to move for non-suit or summary judgment if the party bearing the onus has failed to meet it, without prejudicing your ability to present your own case.  (It seldom happens in civil proceedings, because if a prima facie case can't be met, the case should never get to a trial.)  Then, when ruling at the end of the hearing, the question for the Tribunal to answer is whether or not it's more likely than not that Shaw's actions were motivated in whole or in part by Phipps' race.

I'm concerned about that analysis, because it really does look like an end-run around the burden of proof.  It forces respondents to make a strategic decision:  Do we decline to lead evidence, let the applicant's evidence go uncontradicted, and simply argue that the applicant hasn't met its burden?  Or do we lead our evidence, and risk allowing the applicant to satisfy deficiencies in its case through cross-examination?

That doesn't support a just process, for a couple of reasons.  First of all, it encourages applications with a marginal chance of success, by suggesting that an applicant may not have to prove his case to succeed.  Secondly, it will result in more cases being decided differently based on strategy rather than on evidentiary merits in accordance with legal principles.

A party bearing the burden of proof should never be able to go on a fishing expedition at the hearing.  (In civil trial processes, fishing expeditions are frowned upon even at the discovery stages.  You need to make provable allegations supporting your cause of action.  You're entitled to documentary disclosure, but this doesn't entitle a party to make broad allegations to seek evidence of wrongdoing they don't already know about.)

If this sort of question arose in a Court proceeding (in theory; this couldn't happen exactly as it is, for jurisdictional reasons), here's what would happen:  I would allege that you discriminated against me; we would exchange documents and attend at examinations for discovery.  You would explain your non-discriminatory bases for your conduct, and though they might not be credible, they wouldn't stand as admissions of wrongdoing.  I would explain my basis for believing that you discriminated against me - you didn't question that guy, and he isn't of the same race as me.  You would then bring a motion for summary judgment dismissing my action, on the basis that I can't prove my case.  And you'd likely succeed.

The other ground of appeal, also rejected by the Court of Appeal, is that the adjudicator failed to properly consider Shaw's evidence in light of his position as a police officer, and that a degree of deference should be afforded to police officers to use discretion in carrying out their duties.

This is why the decision is concerning:  It means that every exercise of police discretion will be open to review by the Human Rights Tribunal.  Every time a police officer decides to investigate this person but not that person, to charge this person but not that person, to question this person but not that person, the officer will have to provide and articulate sufficient reasons for exercising discretion in such a manner that the Tribunal can be completely satisfied that prohibited grounds of discrimination did not factor into the decision-making process.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Thursday, March 15, 2012

Fixed Term Employment Contracts

It's an increasingly common practice these days to hire employees for a fixed term only.  There seems to be a conception that it provides an employer with more flexibility and protection against significant liabilities.

I think that, in most contexts, there are better ways for an employer to protect its interests, which are more reliable and more certain, because fixed term contracts have shortcomings.

Here's the basic principle:  You hire Joe for a one year term.  At the end of the year, if you haven't renewed the contract, the contract expires and he is no longer employed.  No need for any notice of termination, severance, etc.  Pretty nice, right?  Well, for a public sector or charitable organization with uncertain long term funding, it makes sense.  For an employer with a specific time-limited task to be completed, it makes sense.  You want the employee to go away once the funding runs dry or the task is completed.  Or if you're filling the position of a person on parental leave, that's eminently reasonable.

But what if you're not in that situation?  Increasing numbers of employers have a position which needs filling on a permanent/indefinite basis, but will hire on a fixed term contractual basis.  The logic seems to be quasi-probationary - if you're not happy with Joe's performance at the end of the first year, you can let his contract expire and hire someone new.  And if you do renew for a second year, and a third, and a fourth, then you continue to keep your options open to refuse to renew at any given time.

There are a few problems with this approach:  Firstly, it doesn't always work.  The case law is clear that a fixed term contract is created only by "unequivocal and explicit language", and there is case law where language contemplating renewals undermines its clarity.  In the Ontario Court of Appeal's 2001 decision in Ceccol v. Ontario Gymnastics Federation, Justice MacPherson made the following observation:
It seems to me that a court should be particularly vigilant when an employee works for several years under a series of allegedly fixed term contracts.  Employers should not be able to evade the traditional protections of the ESA and the common law by resorting to the label of 'fixed term contract' when the underlying reality of the employment relationship is something quite different, namely, continuous service by the employee for many years coupled with verbal representations and conduct on the part of the employer that clearly signal an indefinite term relationship.
Thus, the Courts frown upon the 'perpetually renew a fixed term contract until we don't' approach.

Secondly, it can actually limit an employer's flexibility.  It requires regular attention to an employee's contract, and prevents the contract discussions from being, for example, delayed to accommodate a busy period.  If the 'fixed term' arrangement is to be anything other than a farce, it must be strictly adhered to.

Perhaps more to the point, if the relationship has not developed to the point that the employee has an expectation of renewal (thus raising in full measure Justice MacPherson's concerns in Ceccol), a prudent employee will begin seeking new employment months before the expiration of the contract.  That's not something an employer usually wants, and to head it off the employer will have to decide relatively early whether or not the contract will be renewed.  Which kind of defeats the point, given the alternatives.

Thirdly, there are better ways.  ESA minimums are generally fairly modest.  A contractual clause limiting an employee's entitlements to the ESA minimums will provide the same flexibility and usually more.  If I hire somebody for a one year fixed term contract, he'll be looking for a new job after 9 or 10 months if I haven't renewed.  If I want to keep him, I have to make a new offer at that point - I have to decide then whether I want to be tied in with this guy until the end of two years.  A good termination clause, on the other hand, means that I have until one week before the end of his first year to decide whether or not I want to keep him past the end of the year...but more to the point the end of the first year has very little significance.  If I don't make my decision by then, but decide after 13 months that it isn't working out, I can give him two weeks' notice.  On the other hand, if I do decide after only 6 months that I want to be rid of him, again, I can send him off with one week's notice.

Fourthly, a fixed term contract displaces the common law implied term of 'reasonable notice', and this can be a bad thing under certain circumstances.  With your standard 'indefinite term' contract, even without termination language, the common law implies an entitlement upon the employer to terminate the relationship upon provision of "reasonable notice".  But in a true fixed term contract, that entitlement doesn't exist.  In other words, let's suppose you hire a person for a relatively low-level position in a one year fixed term contract, and decide after 6 months that you don't want them anymore.  If it's an indefinite term contract with termination language, you'll owe as little as a week.  If it's an indefinite term contract without termination language, you might owe a few weeks, give or take, depending on the specific facts.  In a fixed term contract without termination language, you may have to pay out the remainder of the contract - six months - subject only to the employee's duty to mitigate.

You want flexibility?  Forget fixed term contracts; go with a good termination clause.

Much of the jurisprudence regarding fixed term contracts involves an employer trying to enforce it - you let the term expire, sent Joe on his way without notice, then Joe came back and sued for 'reasonable notice'.  But there are also cases where an employer wanted out of the contract before the end of the term, where they didn't put in another termination clause, and they think they can fire on modest notice because it's a short-service employee, and they run into the fourth problem above.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

Thursday, March 8, 2012

Robocalls: Electoral Fraud and Partisan Bickering

This has been a political scandal for the last few weeks, and I've been following it fairly closely.  It's getting a pretty significant response in the grassroots, with very highly charged responses at the partisan political level.

But there are a lot of misconceptions about what's going on, especially by partisans, judging from commentary on the news sites.  These fuel each other, and heat up the debate.  When a Liberal or NDP partisan supporter accuses Stephen Harper of stealing the election, for example, then Conservative partisan supporters will respond that there's no proof that Harper was involved nor that the election was actually stolen.  Which is true. This gets simplified, however, to "no proof", which then gets overapplied to become denials that there *was* electoral fraud in the first place, at which point the Liberal and NDP supporters stab back that the Conservatives are ignoring the abundant evidence to the contrary.

So let's clear this up a little bit, shall we?

What Happened?

The scope of what happened is still in question, as is exactly what happened where.  There are reports of misleading calls on or before election day, with both personal callers and 'robocalls' - i.e. automated messages - in many ridings nationwide.  The best-documented case is Guelph.

The Guelph Robocalls

In Guelph, large numbers of people received automated calls claiming to be from Elections Canada, and advising that their polling station had changed.  Because these calls were automated, the message often ended up on voicemail.  Some people have systems that forward voicemail to email, making it easy to archive, so while we have a great many reports of people *receiving* these calls, we also have established cases in which we even have the full recordings.  This allows confirmation of several things:  The caller did indeed purport to be from Elections Canada, and did indeed provide an address for a polling station quite unambiguously which was not only not the correct polling station, but not even a polling station.  Combined with Elections Canada's confirmation that they don't make calls at all (and in fact don't have voters' phone numbers), it becomes quite evident that whomever was behind these calls had nefarious intent.  Falsely purporting to be from Elections Canada makes this clearly criminal, and clearly a voter suppression tactic.

It appears that it was non-Conservative supporters who were targeted by these calls, which permits an inference that the motives of the guilty person or persons was to assist the Conservative candidate, Marty Burke.

Elections Canada has been investigating this case, and has come a long way.  The calls have been traced to an Edmonton based automated call centre called Racknine.  Racknine is an automated operation which permits people to upload their own messages and call lists, and calls large numbers of people quite inexpensively.  It is also known to be used frequently by Conservatives, and apparently none of the other parties.  (Indeed, there is currently more controversy about Racknine:  We know that Racknine made other calls on behalf of the Marty Burke, but Elections Canada noted that this candidate's election financing declarations did not indicate any payments at all made to Racknine.  The campaign manager recently explained that he has a Racknine account, that he paid for the calls himself and was compensated by the campaign via an honorarium.)

Whomever called Racknine did so from a disposable cell phone, with an account registered to "Pierre Poutine" who lives on "Separatist Street" in Joliette, Quebec.  Interestingly, there is a restaurant called "Pierre's Poutine" in Guelph.

The water is further muddied by the fact that, right after the scandal broke, Michael Sona immediately resigned from his job as assistant to Conservative MP Eve Adams.  Sona was part of Burke's campaign staff, and was accused during the campaign of 'grabbing' a ballot box at an advance polling station, declaring that the poll itself was 'illegal'.  (It was true that the Returning Officer hadn't dotted all his i's and crossed his t's in respect of getting approval for the poll, but Elections Canada later concluded that this didn't ultimately affect the validity of the poll.)  However, notwithstanding his timely resignation and Conservative intimations of the prospect of a lone 'rogue' supporter, Sona maintains that he had nothing to do with the robocalls.

Racknine is also suing NDP MP Pat Martin for his statements comparing them to GroupAction, suggesting that they were a party to the fraud.

Guelph may be the best documented, but not the only one.


This one is key.  The Liberal candidate lost to the Conservative candidate by a whopping 18 votes, so irregularities could be a very big deal in this context.

Elections Canada is now investigating reports of automated calls, similar to the ones in Guelph, which are reported to have occurred in Nipissing-Timiskaming, including people being sent 20 km out of their way.  (Remember, this is Northern Ontario:  Low population density, the riding is absolutely huge.  However, the size of the riding isn't necessarily determinative.  There are reports coming out of Winnipeg of voters being sent some distance outside of the riding they lived in.)

There are widespread reports from across the country, however, of other misleading calls, as well, including in Nipissing-Timiskaming.

Responsive Marketing Group

RMG is a Thunder Bay outgoing call centre with live operators, which is believed to have been used by the Conservative national campaign and known to have been used by at least 97 Conservative candidate campaigns.  Some former employees of RMG have gone public with statements that they were tasked with making "Get Out The Vote" ("GOTV") style calls to tell people where their polling station was, and were stunned by the consistent negative responses they received, essentially suggesting that the polling stations being identified were a long way away, and these employees began to theorize at the time that the information they were giving out was false.  It also sounds like some of these callers were identifying themselves as being from Elections Canada, but it isn't entirely clear whether this was part of the script, or an oversimplification by front-line workers trying to make their own jobs easier in light of the negative responses.

This is one of the areas where it gets muddy.  The Conservative explanation for this is that Elections Canada did make eleventh-hour changes to 127 polling stations (incidentally, I've found numbers for the 2008 election suggesting that the total number of polling stations is about 18000), and that the Tories do call people for GOTV purposes to tell them where their polling station is (apparently, contrary to Elections Canada's requests).  With Elections Canada changing some, yes, mistakes could happen.

But there are a few things that aren't clear here.  Who were they calling?  Because the complaints are coming from people who don't support the Tories, so it doesn't make sense that large numbers of them would be getting GOTV calls from Tories.  (The Conservatives have a very sophisticated database, CIMS, which they use to keep track of constituents nationwide who support them...and those who don't.)

It's also clear that some of the misleading phone calls complained of occurred in ridings in which Elections Canada made no changes, though it isn't yet clear to me whether or not there is an established connection to RMG in these cases.

So it isn't clear whether or not these calls evidence intentional voter suppression and electoral fraud.  It isn't clear how many of the calls complained of across the country came from RMG.  It isn't clear if there may be another source of misleading calls, as well.

The "Hi, I'm calling for the Liberals, how may I annoy you today?" calls

Whether or not this one qualifies as illegal is questionable, but if it isn't illegal, it's certainly right up there in terms of immorality.  There are widespread reports, which began to surface during the election campaign itself, of calls purporting to be on behalf of Liberals asking for money.  Joe Volpe's campaign started to get complaints rolling in, which perplexed them.  Repeat calls to Jewish households on the Sabbath?  Calls in the middle of the night?  What's going on here?

The calls apparently came from a North Dakota area code, but phone numbers can apparently be spoofed.  Recently, Conservative Dean Del Mastro accused the Liberals of using a North Dakota based marketing company, but it turns out that he was looking at a Canadian company with a slightly different name from one in North Dakota.

These are calls intended to alienate voters from the Liberals, and I think could be marginally criminal because of the fraudulent agency claims.  At a minimum, I would argue that the actions are tortious - in the context of an election campaign, something that would otherwise be only a tort might go further.

There are reports from 2008 in B.C. which some think may have been a Pilot Project for misleading robocalls, too.

Saanich-Gulf Islands

This riding started to get national attention in 2011 when Elizabeth May announced that she would run there, but it was a pretty close race between the Liberals and the Conservatives in 2008.  The NDP candidate in 2008, Julian West, dropped out of the race, but too late to get his name off the ballot.

The evening before the election, at dinnertime, constituents started receiving robocalls urging them to vote for Mr. West.

Sorry, what?  Who is telling voters to vote for a candidate who has withdrawn his candidacy?  Obviously not the candidate himself - why would he spend more money on his aborted campaign?  It's a vote-splitting tactic.

And it may have worked:  Mr. West, despite having withdrawn his candidacy, received 3,667 votes.  The Conservative Candidate, Gary Lunn, defeated the Liberal candidate by a margin of 2,625 votes.

So we're left with a widespread range of deceptive tactics, some criminal, some not, some which may or may not be.  Some of the latter groups are tied to the Conservatives, others are not.  The others are nonetheless widely believed to have been perpetrated by people who are at least connected to the Conservatives, or in furtherance of the Conservative agenda.

(This is also without considering other irregularities - some voters who showed up on election day and found their names scratched off the voter's list, and voters alleged to have been able to vote without showing proper identification, as is alleged in the very close riding of Etobicoke Centre.)


When Conservatives and their supporters say that there is no proof tying them to the unlawful calls, they are absolutely right.  When they criticize the Liberals and NDP for making allegations without proof, they're kind of right, too, though kind of hypocritical, because at the same time some of their number are pointing the finger squarely at the Liberals and blaming them, and in the past have not hesitated to promote unproven (and in many cases untrue) allegations against the Liberals.  (On some of the newspaper comments sections even in the last few days, I've seen Conservative supporters maligning Liberals for peddling political influence in exchange for free pizza.)

"Innocent until proven guilty" is a mantra we're hearing a lot these days.  As a lawyer, it's one that I'm fully behind:  We should not punish somebody for something he hasn't been proven to have done.  At the same time, I think that those who automatically accept the Conservative denials of involvement are equally jumping to conclusions.  "Suspect until cleared" is a sound principle of investigation.  Canadian society is just playing armchair juror over this issue, as is common.

There are sound reasons to suspect that the perpetrators here are at least involved with the Conservative Party.  The motive appears to have been the promotion of the Conservative agenda, and it is difficult to imagine that somebody could have meaningfully pulled it off without access to a database like CIMS.  The connections to organizations with Tory ties suggest more than a passing familiarity with Conservative campaigning, while the widespread nature of the allegations (as well as the slight differences in MO) suggest against it being a lone rogue campaign worker.  If the national campaign wasn't directly involved, it seems probable that it was at least a common strategy somehow marketed to the local campaigns, and that there were some members of the national campaign who were at least aware of what was going on.

As John McCallum acknowledged, there's no "smoking gun" pointing to Harper, but strong inferential evidence that Conservatives are responsible.  (I've seen a quotation from Harper in context of the sponsorship scandal arguing that, regardless of his individual role in it, Chretien ought to take responsibility for the actions of people acting under his government's authority and immediately resign.  Seems kind of appropriate.)

Also of note is that, two years ago, the Manning Centre, an organization with very close Conservative ties (the President and CEO is none other than Reform Party founder Preston Manning), put on a two day clinic for campaign strategies, which is reported (reliably, including by John Fryer, and by another individual with whom I went to law school) to have included detailed strategies for voter suppression, including effective use of robocalls.

What were the consequences?

Some left wing partisans are saying that the Conservatives stole the election.  Some right wing partisans are arguing that it had absolutely no effect on the election results.  I think the truth is somewhere in the middle.

The ridings alleged to have been affected were largely 'battleground' ridings.  Some of them were very close races indeed, and small voter suppression effects could have impacted the results in these ridings.  Thus, when McCallum estimated that he thinks the Liberals may have lost 3 seats due to voter suppression tactics, that sounds plausible to me.

That isn't enough to change the overall outcome of the election.  We'd still be looking at a Conservative majority government.

So What's the Big Deal?

Aye, there's the rub.

Conservatives are arguing that the fraud, if anything, was 'isolated', and that the opposition is making a big deal out of essentially nothing.

To me, that is the absolute wrong answer.  I am prepared to presume, on the basis of "innocent until proven guilty", that the CPC and the members of their caucus have no legal responsibility for any fraudulent conduct.  That whomever perpetrated the fraud is not meaningfully connected to anyone in any position of authority.

Regardless, electoral fraud is very serious.  Even without evidence of political malfeasance or actual impact on the election results, the integrity of our electoral process is one which must be vigourously defended and safeguarded.  Any action which threatens its integrity must be dealt with seriously.

In that light, the Conservatives' Chretien-esque attempts to sweep it under the rug (even aside from being inherently suspicious) send a very specific message to such perpetrators:  Nice work; we've got your back.  To fail to treat it as the serious offence it is suggests to partisan supporters that this is an acceptable way of trying to help your party of choice win.

Sending this message is one that will generate a lasting harm to the integrity of our democracy.  If that becomes the accepted way of campaigning, then it will make our historical election campaigns, with all their mudslinging and attack ads, look like exercises of civility.

What Should We Do About It?

There are those calling for a new general election.  That's outside the realm of reasonable responses to this.

There are those calling for by-elections in affected ridings.  I think that, if we limit the by-elections to the ones in which the result may have changed, that's reasonable.  Mind you, the mechanisms for forcing such by-elections are convoluted and complicated...but I think that the winning MPs would be prudent to do so themselves in such cases.  In Nipissing-Timiskaming, for example, once MP Jay Aspin can be shown any reliable evidence of voter suppression tactics, then the only ethical action on his part would be to resign his seat to force a new by-election.  (Note well that I am not necessarily implying that he would be behind such voter suppression, but regardless of who cheated, that is simply not how any respectable competitor wants to win.  So of course he would run again, but the point is that, if he wins, he should be able to show that he won fairly.)

There are those calling for a judicial inquiry.  I don't know if we're quite at that point yet, but I definitely think that there needs to be some sort of open and transparent process to find the truth.  Elections Canada is investigating, and that's definitely a plus, but I think that our continued confidence in the integrity of both our democracy and our political parties requires more openness than is possible for an Elections Canada investigation.

It goes without saying that those who can be proven to be legally responsible must be rooted out and dealt with harshly.  But we need to recognize in broader terms that this is seriously concerning.  If party officials and politicians were actually involved, then that is alarming.  But even if they aren't, even if this is the action of a lone rogue supporter, then we should be deeply concerned about the prospect that such a lone supporter would be capable of suppressing people's votes.  Whichever is the case, we need to get to the bottom of it and figure out how to prevent it from happening in the future.

Friday, March 2, 2012

Stranger than Fiction: The Meaning of "If"

The Supreme Court just released its decision in an interesting case, Richard v. Time Inc.

It's basically a false advertising case.  Mr. Richard, a Quebec resident, received a letter from Time which Time calls an 'invitation to participate' in a sweepstakes contest, and was left with the impression that he had already won a prize in excess of $800,000.

Remember folks, even if it comes from Time Magazine, if you receive a letter telling you you've won a contest you didn't enter, take it with a grain of salt.

The Supreme Court included depictions of the materials he received in its decision, which can be found here.  (Scroll to the bottom of the page for the images.)  It's pretty easy to see the dispute here.

There are several BIG BOLD CAPITALIZED CENTRED STATEMENTS which suggest that Mr. Richard had won the grand prize.


That's one.  There were others saying much the same thing.  We are now authorized to pay the sum.  A cheque is on its way.  You'll forfeit the entire amount if you fail to respond to this notice.  And, on the side, a list of winners and the prizes they'd won, including Mr. Richard near the top of the list with this prize.

But prior to each such statement, there's very fine print which puts context to the statements.

If you have and return the Grand Prize winning entry in time and correctly answer a skill-testing question, we'll confirm that


Read in full, it says, "If you win, we'll say 'You won'."  But the language isn't really all that clear, and it's definitely designed to give somebody the impression that he's already won.  Even when you read the fine print, it's easy to think "Oh, that's fine", because unless you specifically focus on 'have', you'll think that you're being told that you do have it.  So, okay, I can return it, I hope I can answer the skill-testing question, then I get my cash, right?

There's even a full-text paragraph in the letter highlighting that 'you probably don't believe this is really happening'..."But it's absolutely true:  Mr Jean Marc Richard is now positively guaranteed to be awarded $833,337.00 - one of the biggest single cash payments ever made to ANYONE in a sweepstakes presented by TIME - if you have and return the Grand Prize winning entry within 10 days of receipt!"

Note the inclusion of the parenthetical remark, breaking apart the "positively guaranteed" from the "if"?  Tricky, tricky, tricky.

In some cases, the pretty absolute bold statements follow on the heels of the disclaimer built into a lengthier paragraph.

Essentially, this was clearly drafted with the expectation that people would not read it carefully, and would therefore think that they had won.

The Quebec Court of Appeal had found that the document was not misleading.  The Supreme Court, by contrast, found that the document was misleading within the meaning of the applicable Quebec laws, and therefore awarded damages to Mr. Richard.

Far from the $833,337 Mr. Richard was seeking, though, he was awarded only nominal compensatory damages in the amount of $1000, and the Supreme Court further found that punitive damages were appropriate, but only in the amount of $15,000.

In other words, Mr. Richard took this matter all the way to the Supreme Court, and succeeded, but only won $16,000.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Pate v. Galway-Cavendish and Harvey Update

Last May, I posted this entry about the Court of Appeal sending Pate v. Galway-Cavendish and Harvey back for a trial on malicious prosecution and punitive damages.  To recap, Mr. Pate was the Chief Building Official for the Township of Galway and Cavendish until an amalgamation at the end of 1998.  The Chief Building Official for the resulting municipal corporation, former police officer John Beaven, investigated certain apparent 'discrepancies' involving permit fees which Pate supposedly collected but didn't remit, the implication being that Pate had been defrauding the municipality.

Less than three months after the amalgamation (in March '99), Pate was told that, if he resigned, the police wouldn't be called. He refused to resign, and was dismissed and charged criminally.  In December 2002, he was acquitted of all charges.  The discrepancies were actually innocent record-keeping issues, not indicative of fraud, and not only that but the municipality had known (and in many cases not disclosed to police) the innocent explanations for the misconduct.  For example, in one case the records were kept under a different name because the fee had been paid by the property-owner's son-in-law.  Mr. Pate noted this in his journal, but the journal was taken from him when he was dismissed and not disclosed to police.  Other records had been lost in an office move, another fact not disclosed to police.  Finally, one of the subject transactions had been inquired into years before, with the municipality concluding that Pate had not done anything wrong...another fact not disclosed to police.

In 2009, the matter first went to trial, with the trial judge making an award of pay in lieu of notice, with a Wallace bump-up (by that time somewhat controversial), and a modest award of punitive damages (finding that he could not award more than $25,000 as such), but declining to find malicious prosecution.  In April the Court of Appeal found that the judge erred in his consideration of the wrongful dismissal claim and didn't adequately explain why he limited the punitive damages to $25,000, and ordered a new trial on these issues.

A little bit of a strange feature of the Court of Appeal's decision was an offer to direct the new trial to be conducted before the same trial judge.  I didn't understand that at the time; it might be more cost-effective, but ordinarily you don't want to go back to the same judge who decided the matter wrongly in the first place.

I now understand that, however:  Mr. Pate passed away in January 2011.  He would have been in his mid fifties.  Without Mr. Pate present in person, it would have been far more complex to conduct a full trial of these issues before a new judge.

In November 2011, Justice Gunsolus released his decision on punitive damages (though with no mention of malicious prosecution), increasing the punitive damage award to $550,000.  That's a pretty big win for the estate, but again I would highlight the "Justice Delayed" aspects of this case, as I did in my last post.  He was dismissed in early 1999.  The criminal proceedings continued until late 2002.  His personal life fell apart in that time.  The wrongful dismissal case took six more years to get to trial, being heard more than a decade after the termination.  The appeal was heard in late 2010, with the decision being released in April 2011, and even with the new trial moving in quite an expedited fashion, being heard and decided in November 2011, it was still more than 12 and a half years after the dismissal.  In which time the plaintiff actually passed away, giving real meaning to the phrase "Justice delayed is justice denied."


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.