Thursday, March 31, 2011


Any effort to tackle the so called "access to justice problem" in the Ontario justice system must begin with a clear definition on what is meant by the term "access to justice problem." For the purpose of this commentary the "access to justice problem" in Ontario speaks to the lamentable circumstance which sees ordinary Ontarians unable to access legal services on account of its prohibitive costs. The manifestation of this very serious problem is evidenced by the steadily increasing number of self-represented litigants coupled with the increasing amount of time it takes to bring a case to resolution. In this commentary I will attempt to identify some of the impediments to access to justice and suggest a few policy prescriptions to tackle the problem.


A few years ago I assisted a friend in trying to retain a family lawyer. My friend was a a single woman earning a bit over $40,000 per year with a mortgage free home worth roughly $225,000. All the lawyers I approached on her behalf except for one stated matter of factly, "she can't afford me." The one lawyer who agreed to take the case quickly devised a plan which called for her to move into an appartment and sell her house. It was crystal clear to my friend that what this lawyer was saying to her was that she would pay his fees with the proceeds of her house. This experience caused me to think seriously about this issue. I realized that if this single woman who was earning $40,000 a year could not afford a lawyer and the average family income in Ontario is in the area of $60,000 per year then who can ? As the evidence is beginning to reveal there is a significant number of individuals in Ontario who can not afford lawyers fees.

Policy makers who are serious about accesss to justice need to bring all the stakeholders together to look into the question of how can we make the cost of legal services accessible to average citizens. As unpalatable as it is this may require a review of how legal servicces are billed.

Insurance coverage of
defence costs only:

Some years ago I was involved in a case against Women's College Hospital. I was representing a poor woman who asserted that she was fired from her employment because she asserted her right to overtime pay under the Employment Standards Act. In the course of this litigation I came to learn that the hospital's legal defence was fully covered under an insurance policy which provided for their full defence costs but not for liability. I was made to understand that any liability payment would come from hospital revenues and not the insurer. I was many years younger then but I understood that this type of insurance coverage was very problematic to the efficient operation of a civil litigation system because there is no insentive for the hospital to settle and certainly an incentive for counsel representing the hospital to litigate the case rather than settle the case.

Policy makers who are serious about access to justice need to look into the impact that this type of insurance coverage has on acting as an impediment to the quick and efficient resolution of disputes.

Costs on interlocutory
motions and trials:

The conventional wisdom thinking that all litigants must be treated the same when it comes to the adjudication of the issue of costs in civil litigation has been in my personal experience one of the most significant impediments to access to justice in Ontario. The reason is simple. A costs award against GM in a proceeding against RBC is a mere cost of doing business which will have very little impact on their viability. A cost award against a poor litigant who was beat up by the police and is unable to work is clearly a very different matter. The costs award against the poor litigant can and too often slams the doors of justice in their faces. Costs awards on both interlocutory motions and trials are all too often creating an impediment to access to justice.

Policy makers who are serious about access to justice need to reevaluate this practice. The principle that costs ought not to deprive a poor litigant access to the courts to have their case heard on it merits likely requires some sort of statutory amendment in the Rules of Civil Procedure or Courts of Justice Act to that effect. The current practice of leaving this to the court's discretion is not working very well it would seem. Readers who are interested in this point should review Justice Dennis Lane's costs decision in Walsh v. Regenscheit where he said that the people pay for the courts and they ought not to be denied entry because of the fear of losing their case and the devastating financial consequences that may flow from that. Justice Lane is a wise man.

NOTE: This piece is written for the sole purpose of exchanging ideas on an issue of publice importance. Democracy and the rule of law work better with the free exchange of ideas.

Tuesday, March 22, 2011

McKay v. Toronto Police Services Board ruling highlights inconsistencies in HRTO adjudicative process

The Ontario Human Rights Tribunal's recent decision in McKay v. Toronto Police Services Board et al 2011 HRTO 499 provides a splendid example of the apparent struggle that this adjudicative body is having in developing a consistent and logical legal framework for its decisions. This recent ruling finding that a Toronto Police Service officer racially profiled an Aboriginal complainant stands in stark contradiction to the Tribunal's decision in Clennon v. Toronto East General Hospital 2009 HRTO 1242 - an allegation of age discrimination in the firing of a long-term obstetrical nursing manager who was fired "without cause" and denied common law severance unless she signed a release acknowledging that her rights under the Code were not violated by the employer.

In McKay the Tribunal subjects the evidence to a level of scrutiny that is commensurate with the quasi-contitutional nature of these statutory rights. Vice Chair Edna Chadha clearly states in her reasons the fundamental part that credibility plays in the adjudication of these claims. She cites and applies established legal authorities such as Faryna v. Chorney [1952 2 DLR 354 and applies the principles articulated therein to the facts. She recognizes and articulates the key concepts for evaluating and scrutenizing evidence - namely - credibility and reliability. She points out that they are distinct concepts. Credibility she indicates refers to the honesty and sincerity of the witness while reliability deals with the accuracy and faliability. She states in her reasons and therefore recognizes that a tribunal is entitled to accept or reject some, all or none of a witness' evidence. In this case the Tribunal actually evaluates and weighs all of the evidence - viva voce and documentary.

In Clennon the Tribunal employs a radically different approach. Here the Tribunal ruled that the employer fired Mrs. Clennon for a non-discriminatory motive, namely, poor performance. This was based on her supervisor reciting a litany of unproven allegations of poor performance which she claimed to rely upon in making her decision to terminate. The Tribunal received this evidence characterizing it as non-hearsay - holding that it went to the supervisors state of mind and establishing that she did not rely on age to terminate. In this case the Tribunal did not assess credibility and reliability of the evidence even though the Tribunal made significant credibility findings against the supervisor who testified. The Tribunal found against her on three crucial evidentiary points in the case. The first two focussed on two statements she made to Mrs. Clennon suggesting that she ought to take early retirement and the other was that she told Mrs. Clennon that she was dismissed from her previous position at Humber River Regional Hospital. These adverse credibility findings are further compounded by the Tribunal's finding that none of the alleged incidents relied upon as poor performance were brought to Mrs. Clennon's attention as performance issues and were very poorly documented. The Tribunal even found that the supervisor who effected the dismissal did not speak truthfully to the vice-president who authorized it.


The claim that the Tribunal possesses expertise in the areas within its jurisdiction is a very hallow one in light of the above. Labour relations and securities regulations are clearly areas that require some special knowledge for the proper adjducation of rights in those areas. I question whether the same is true for human rights. At the end of the day the proper adjudication of a human rights case boils down to the assessemnt and evaluation of the evidence. It is generally a he said she said inquiry. Tribunals of this nature do not hold any monopoly on the skill and legal wisdom needed to assess and evaluate evidence in accordance with law. There is no expertise there that the courts ought to defer to.

NOTE: This piece is written for the sole purpose of encouraging debate on a matter of social importance - namely - the proper adjudication of human rights in the Province of Ontario.

Sunday, March 20, 2011

Was police and other misconduct responsible for Wilton Smith's conviction ?

How does a criminal prosecution go from the judge at the preliminary inquiry candidly telling the prosecutor moving for committal on a charge of first degree murder on August 10, 1992 - "there is no evidence linking this man to this crime" - to that man, Wilton Smith, ending up being found guilty of first degree murder on April 29th, 1994 by a jury of his peers ? The answer to this key question is the key to Wilton Smith's liberty. In this post I will outline some of the facts and circumstances in the prosecution of this case which lend support to a theory that police and other misconduct/negligence may have contributed to yet another innocent man being found guilty of a crime he maintains he did not commit.

Linkage evidence:

The statement made by the preliminary inquiry judge - thankfully those statements are captured in the portion of the transcript that is still available is the starting point to this inquiry. This statement must have been made for a reason. I will suggest that it was made because up until that point in the preliminary inquiry there was in fact no evidence linking Wilton Smith to the crime. What the exact nature of the 'forensice evidence" is that was presented subsequent to that statement is we will never know since those transcripts were either "lost or destroyed." However, because the matter went on to trial it is safe to conclude that the evidence adduced at trial ought to have mirrored or was similar to that evidence.

Blood on clothing ?

The Crown led evidence at the trial suggesting that blood from the deceased was found on the clothing that Wilton Smith was wearing when he was arrested. Wilton Smith was photographed wearing the clothes which he was arrested in and those clothes were seized by police constable Bockus. Those photopraphs were not presented as evidence at the trial or the preliminary inquiry. Officer Bockus seized the clothing and submitted them to the Centre of Forensic Sciences for testing. If indeed photographs were taken of Mr. Smith wearing these clothes on arrest - why were these photographs not presented as evidence at trial or the preliminary inquiry ? What happened to these photographs ?

Weak linkage evidence ?

The key to both committal and conviction in this case was linkage evidence. Here a woman was found by her live-in friend who claims to have found her dead in the living room and the friend did not see or hear anything. No murder weapon was recovered either. Clearly, it is not an understatement to suggest that the evidence adduced after the preliminary inquiry judge's bold statement that there was "no evidence linking this man to this crime" was crucial to Wilton Smith both making full answer and defence at trial and in subsequently addducing evidence to show that his conviction was a miscarriage of justice.

When was the further evidence
transcripts destroyed or lost ?

The key questioon is when did the Ministry of the Attorney General lose or destroy the crucial evidence contained in the transcripts of the preliminary inquiry following the August 10th, 1992 proncouncement of "no evidence linking this man to this crime" ? I would surmise that there are two scenarios. Scenario one would be that the destruction took place pursuant to a retention policy that required them to be kept for a reasonable period of time. It would stand to reason that this reasonable period of time would not be prior to the conclusion of the trial - namely - April 29th, 1994. One good reason for this policy of keeping the preliminary transcripts available for trial is because it is often used to challenge the trial evidence. What is said at the preliminary inquiry and what is said at trial ofen differs. Did defence counsel encounter any problems securing this vital evidence ? The second scenario is that this crucial evidence was lost or destroyed prior to Wilton Smith's trial. If this is the case then it begs the question why ? The answer to this question only the custodian of these documents can answer.

The I.D. Witness Joseph Pryce:

The lawyer for the prosecution(crown attorney)led evidence from one Joseph Pryce to the effect that Mr. Pryce saw Wilton Smith come into his shop to sharpen a machete. The crucial question of when and whether in fact this witness made his observations of Wilton Smith have been the subject of prior postings on this blog. For the purpose of this posting the key point is this. Joseph Pryce did not testify at the preliminary inquiry. He could not have. He could not have have because Detective Scott Bronson testified that he only met with him on January 25th, 1993 when he attended at Mr. Pryce's place of work and showed him some photographs and Mr. Pryce picked out Wilton Smith. In addition, it appears that Mr. Pryce did not call the police to report his observations prior to their attendance at his place of work on January 25th, 1993. This conclusion is supported by the following excerpt from the trial transcript involving the prosecution lawyer - Mr. McDermott, the trial judge(Justice Ewaschuck) and defence lawyer - Karen McArthur:

Mr. McDermott: "My lord, the only - the only issue on the
other side of that though is it's quite
clear from the evidence, abundantly clear,
that Joseph Pryce didn't go to the police
with the information. The police came to
him. So that channel didn't start with
Jospeph Pryce in any way."

Justice Ewaschuck: Did you get out of him that he didn't call ?

Mr. McDermott: Yes, I said, did you have any idea that the police
were going to show up on that day or anything
about this case ? Nothing, he said, nothing.
He put it out of his mind he said.

Ms. McArthur: But what Mr. McDermott didn't lead from Mr.
Pryce is how the police did connect to Mr.

Justice Ewaschuck: Right. There is no evidence in the case as
to how the police came to know that Joseph
Pryce may have known something relevant
about this case. The only evidence is that
Detective Bronson found Joseph Pryce.
Joseph Pryce did not call the police. He
was surprised at their arrival. Is that
harmful at all ?

Ms. McArthur: I don't think it accurately reflects the
state of the facts as Mr. McDermott even
knows, my lord.

Mr. McDermott: I just as soon Ms. McArthur not impugn
anything to me in her submission, my

Justice Ewaschuck: I agree. It will go to the jury.

Later on the jury is brought in and they are told the following on this point by the trial judge:

"Three, this is your question, "if possible
how Joseph Pryce's testimony came to be found ?
Number three, this is the response - there
is no evidence in the case as to how the
police came to know that Jospeh Pryce may
have had - may have known something
relevant about the case. The only evidence
is that Detective Bronson found Joseph Pryce.

Commentary and analysis:

The evidence linking Wilton Smith to the murder of Patricia Innis is not only weak but its probative value is seriously circumspect for the following reasons:

1. Assuming Smith had blood stains linking him to the murder
on clothes seized by members of the Toronto Police Service -
why would they waite until a judge tells them there is no
evidence linking him to the murder - after the prosecution moved
for commital to put it into evidence ?

2. Where are the photos taken of Wilton Smith in the clothes he
was arrested in ?

3. When was the preliminary inquiry transcripts post August 10,
1992 lost or destroyed ?

4. Why is it that not all of the transcripts from the prelimnary
inquiry were destroyed if it was destroyed pursuant to a
retention policy ?

5. Who is this man said to be Joseph Pryce ?

6. Where is this man Joseph Pryce ?

7. How did Detective Bronson know to just attend at Pryce's
place of work one day fully armed with a photo-line-up kit ?

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance - namely - the propriety of Mr. Smith's conviction for first degree murder. Anyone having any information which can shed light on the questions raised in this publication are asked to contact the writer.

Saturday, March 5, 2011

Clennon v. Toronto East General Hospital: Non-hearsay they say ?

In Clennon v. Toronto East General Hospital HRTO 1242 the Ontario Human Rights Tribunal ruled that the respondent employer violated Mrs. Clennon's right to be free from discrimination based on her age. Ordinarily, one would welcome such a finding. However, such was not the case here. The reason for this follows from the limited and bizare nature of the Code violation which the Tribunal found. The Tribunal ruled that Toronto East General Hospital violated Mrs. Clennon's righs under the Code not by virtue of her termination "without cause" and to replace her with a "younger and cheaper worker" as she alleged in her compliant but because they failed to allow her an opportunity to improve her performance pursuant to their polices before terminating her employment of some 24 years.

Shockingly, the Tribunal came to its conclusion that Mrs. Clennon's performance was wanting not from hearing from witnesses with actual knowledge of the various performance issues raised by the hospital in defence but instead as relayed by the then Director, Ms. Natalie Cournoyea. The Tribunal came to this conclusion in the face of the following findings of fact:

1. Despite her denials Natalie Cournoyea stated to Mrs. Clennon,

(i) "Why don't your retire;

(ii) "Why don't you consider retiring ? your husband is retired
and it would be good to be retired with him".

2. Toronto East General Hospital fired Mrs. Clennon "without cause"
after 24 years of service as an obstetrial nurse and for roughly
three of those years as Manager of the Birth Centre by denying
her common law severence unless she signed a release in their favour
acknowledging that they did not violate her rights under the
Ontario Human Rights Code;

3. The worker who replaced Mrs. Clennon, one Claudette Manhue, was
some 16 years younger than Mrs. Clennon and Mrs. Clennon had won
the competiton for the same position some three years prior
against the same worker;

4. The Tribunal expressly found that:

"I have found that none of the specific incidents
relied upon to support the applicant's termination
were specifically raised with her as performance
issues. The Director admittedly never brought home
to the applicant that her failure to address
performance deficiencies could jeopardizde her
continued employment at the hospital."

Non-hearsay ?

In response to the Mrs. Clennon's application for reconsideration of this decision she alleged, amongst other errors, that the non-discriminatory motive - namely - the alleged poor performance to justify her dismissal relied on inadmissable hearsay. This is what the Tribunal ruled in response on the reconsideration application:(see 2010 HRTO 1693)

"I also do not agree with the characterization of
the 360-degree assessment and the performance-related
information from e -mails, letters and notes as "hearsay
evidence." Evidence is hearsay evidence when a third party
relates what was told to her in an attempt to assert the
truth of the statement made. In the instant case, the respondent
was not proferring the 360-degree assessment and other
performance-related information in order to establish the truth
of the statement made therin. Rather, this information was put
in support of the Director's evidence that she relied on these
performance-related issues as the explanation for her termination
decision, and that the applicant's age was not a factor. The
relevant issue for me was why did the Director make the decision
to terminate the applicant's employment and was her age a factor
in that decision, and the Director provided direct evidence on
that issue."

The classic danger of hearsay
illustrated by Tribunal decision:

Notwithstanding the pronouncement quoted above regarding the purpose for which Toronto East General Hospital adduced the alleged poor-performance evidence, the Tribunal's ruling on remedy (2010 HRTO 506) clearly reveals that the Tribunal relied on this evidence for its truth. This is what the Tribunal wrote on this point:

"In making my determination, I am instructed by the adage that
in order to solve a problem, a person first must recognize that
there is a problem. I did not see this from the applicant. As
a result, in my view, it is more likely than not that, even had
a performance management plan been implemented, the applicant is
unlikely to have been willing to accept and acknowledge her
performance deficiencies as a first step to correcting them.
Accordingly, I find that even if a performance managment plan had
been implemented, the applicant's employment as Manager still would
have been terminated by the respondent. In terms of the timing of
the termination, I find that a period of over one year for
implementation of a performance management plan is not unreasonable,
with the result that I find that the applicant's employment as
Manager would have been terminated on July 5, 2005 in any event."

Human Rights Tribuanl
Code of Conduct:

Article 43 of the Code of Conduct applicable to members of the Tribunal stipulates that -

"A member shall make each decision on the true merits and justice
of the case, based on law and on the evidence led before him or her."

Article 44 stipulates that -

"A member shall apply the law to the evidence in good faith and to the
best of her/her ability"...

Commentary and analysis:

Public policy in Ontario long has recognized the paramount importance which the right to be free from discrimination and harassment based on age and other enumerated grounds plays in our society. The legislative decision to enact laws and a system of adjudication to resolve these important claims is consistent with the quasi-constitutional nature of these rights. As laudable as these steps are, they are rendered meaningless when the body adjudicating those important legal rights has inadequate safe-guards to ensure that decisions are rendered in accorance with law. The Tribunal would be wise to have reconsideration applications which raise important questions of law touching on the fairness of a case referred to either the Chair or a full-board for review. In addition, the Tribunal and or law-makers in Ontario ought to review the very lementable condition which sees litigants like Mrs. Clennon spend significant sums of money to assert what is a quasi-constitutional right - often against state actors like Toronto East General Hospital and others - who spend public funds with impunity to defeat these rights and indeed the poor litigants and are unable to recover the cost of their legal representation in these proceedings. How can this be right ?

Note: This piece is written for the sole purpose of drawing attention to a matter of public importance in the community and to encourage public discourse.

Friday, March 4, 2011


In its recent ruling in Snyder v. Phelps et al the U.S. Supreme Court once again affirmed the right of freedom of speech even if the content of the speech is offensive and even outrageous. The court upheld the decision of the U.S. Federal Court of Appeal(4th Circuit) setting aside a jury award to Mr. Snyder for intentional infliction of mental distress and other torts based on the offensive and outrageous content of the suject speech relying on a state statute.

The basic facts:

Mr. Snyder was awarded a multi-million dollar judgment by a jury in a civil action which he brought against Mr. Phelps and his followers from the Westboro Baptist Church as a result of injury he alleged he suffered as a result of their hurtful and outrageous speech and demonstration at his son's funeral held at a local Catholic church. Mr. Snyder was buring his son - a U.S. soldier who died in combat in Iraq. Members of this church are fundamentally opposed to homosexuality and especially homosexuality in the U.S. Army. Consequently, the followers of this church advocate that God hates the U.S. and make it a practice to communicate their message at the funerals of U.S. military personnel. The court record confirmed that the protesters in fact followed the applicable city ordinances with respect to their protest and their message was largly resticted to messages on picket signs. The messages included the following: "God hates fags", "Fags doom nations", "The U.S. is doomed", "Thank God for dead soldiers", "Priests rape boys" and "You're going to hell." At trial a jury found that the conduct of the protesters was outrageous and found for Mr. Snyder.

U.S. Supreme Court Analysis:

The U.S. Supreme Court begins its consideration of the constitutional issue raised in the case by clearly acknowledging the fundamental and paramount place that the First Amendment right to free speech holds in the legal system. Commensurate with this approach, the court does not merely accept the findings and conclusions of the lower court under some theory of judicial deference to the lower courts "discretion" but it reviews the entire record with a view to satisfying itself that the lower courts conclusions are sound in law. Following a review in this manner, the court determined that the speech in question involved comment on public issues and the effect of the state statutory enactment relied upon by the jury awarding damages to Mr. Snyder effectively curtained the content of the protesters speech by virtue of the award of to Mr. Snyder. The court acknowledged that the content of the speech was hurtful and outrageous. However, the court pointed out that they could not censor or punish the picketers merely becasue the content of their speech was hurtful. Chief Justice Roberts wrote:

"Speech is powerful. It can stir people to action
, move them to tears of both joy and sorrow, and as
it did here - inflict great pain. On the facts before
us, we cannot react to that pain by punishing the
speaker. As a nation we have chosen a different course -
to protect even hurtful speech on public issues to ensure
that we do not stifle public debate. That choice requires
that we shield Westboro from tort liability for its
picketting in this case."


Some observers will argue that the courts have no business second-guessing and effectively substituting their opinion for that of the democratically elected law-makers who passed the state law circumscribing the picketter's rights to free speach. These observers fail to understand and appreciate the depth, purpose and scope of the U.S. Constitution. Unlike constitutions in other "free and democratic" nations, the drafters of the U.S. Constitution appear to have intended to make a clear departure from English law. A constitution under the U.S. model is the supreme law of the land because it provides the legal framework within which the legislature remains accountable to all of the people all of the time. It is not for the state to have absolute authority to decide what speech is acceptable. This ruling is consistent with what I understand to be the rule of law - namely - the law applies to all - including the state. When the state is above the law - either by design, omission or custom individual rights are left vulnerable to the arbitrary exercise of judicial discretion and state power.

Note: This piece is written for the sole purpose of encouraging public discourse on a matter of publice importance.