BenchPress - Vol 43-1 - LawNow Magazine

BenchPress – Vol 43-1

  1. Judges are Human Too

This case involved sexual interference by the defendant against a young person. The offender had pled guilty to sexual interference of an 8 year old girl, and the mother presented an emotional and moving victim impact statement. The defendant’s lawyer applied to request that the Judge, the Honourable M.F. McParland, to recuse or remove herself from the sentencing hearing, for reasons including allegedly crying while being presented with the victim impact statement.

In the decision, the Judge noted that she did not cry, but had “briefly dabbed a tear from her eye with a tissue”. The Judge also disagreed with defence counsel who alleged that she had scoffed or laughed at the defence’s position. The Judge denied several other allegations made by defence.

The judge refused to recuse herself from the case. In doing so, the Judge discussed the test established by the Supreme Court of Canada which requires the applicant, the defence in this case, to prove that there was a reasonable apprehension of bias on the part of the judge. In this test, an informed person, viewing the matter realistically and practically, and having thought through the matter, would have to conclude that the judge would not be able to decide fairly. In her decision, the judge stated: “[t]here is therefore nothing wrong with the Court showing emotion. Just because a judge demonstrates human compassion, it does not amount to judicial bias.”

R. v. Carlson, 2018 BCPC 209

  1. Healthcare Privacy Protected by the Supreme Court of Canada

The province of British Columbia has an ongoing claim against Philip Morris International and other tobacco manufacturers. Tobacco manufacturers are being sued to recover the cost of health care benefits related to treating disease caused or contributed to by exposure to a tobacco product. In this case, Philip Morris requested that it be given access to health care databases with information that the province intends to use to prove its case.

At trial, the judge found that the databases should be provided to Philip Morris because the information could be anonymized. According to the trial judge, if the data could be anonymized, it did not have to follow provisions in the Tobacco Damages and Health Care Costs Recovery Act which prevent health care information from being released, where the Government pursues a claim against a manufacturer. The Province of British Columbia appealed, but the British Columbia Court of Appeal agreed with the trial judge and dismissed the appeal.

The Supreme Court of Canada, however, reversed the decision of the lower courts and found that the Province of British Columbia does not have to provide Philip Morris access to the databases. Regardless of anonymization or how relevant the records are to the case, the legislation did not allow the records to be released.

British Columbia v. Philip Morris International, Inc., 2018 SCC 36

  1. Manitoba Farmers Unhappy with Canadian Wheat Board Deal

Farmers from Manitoba recently won a case to continue their class action against the former Canadian Wheat Board and the Attorney General of Canada.

The Canadian Wheat Board was a crown corporation that, at one time, was one of the world’s largest exporters of wheat, durum and barley. Canadian farmers could only sell these products through the Canadian Wheat Board through various “pools” and had grain handling companies to act as agents to supply the grain.

In 2011, the Government of Canada, under former Prime Minister Stephen Harper, sold the Canadian Wheat Board (CWB) to foreign entities.

In this deal, CWB gave a majority stake (50.1%) of its shares to G3 Global Group Limited (G3). G3 is owned by Bunge Limited (legal domicile is Bermuda) and the Saudi Agricultural and Livestock Investment Company.

The remainder 49.9% of the shares went to CWB Famers Equity Trust (Farmers), shares of which G3 has a right to purchase after 7 years.

In this case, the plaintiff Farmers take issue with how the contingency fund in the CWB was treated. The contingency fund amounted to $145,248,000. The Farmers allege that this fund should have been paid to them on account of grain sold, other debts in the pool, and costs to privatize transition costs.

Instead, the Government of Canada passed temporary regulations/laws to increase the amount that could be put into contingency funds and then diverted funds from the pool account to the contingency fund. These contingency fund amounts were never paid to the Farmers. The Farmers argue that these funds were given to the buyers.

The Farmers claim that the Government passed these regulations in bad faith which amounted to “misfeasance in public office.” If so, the Government of Canada would never have had authority to make these changes. The Farmers argue that the Government of Canada took these steps for an improper or unauthorized purpose:

  • To make the CWB a more attractive asset to potential private purchases; and
  • The Government of Canada flowed funds into the contingency funds to serve as “seed money” for the purchaser.

Should the Farmers win the class action, there may be a chance that the foreign buyers may be at least partially liable for the damages.

Dennis v Canada (A.G.) et al, 2018 MBQB 88


Aaida Peerani
Aaida Peerani is Staff Lawyer and Editor for LawNow Magazine at the Centre for Public Legal Education Alberta.

A Publication of CPLEA