Saturday, March 9, 2019

Why SNC-LAVALIN's Judicial Review of the Decision Denying them a Remediation Agreement Failed

   Yesterday Justice Kane of the Federal Court of Canada allowed the Director of Public Prosecution's motion quashing a Notice of Application for Judicial Review brought by SNC-Lavalin.  SNC-Lavalin sought an order setting aside the Director of Public Prosecutions of Canada's(DPP) decision not to issue them an invitation to negotiate a remediation agreement. In addition, the embattled company also sought an order by way of Mandamus to direct the DPP to issue an invitation to negotiate a remediation agreement in good faith.

What is a "Remediation Agreement" ?

 [3]   Part XXIL.1 of the Criminal Code (sections 715.3-715.4) governs remediation agreements, which are also referred to, particularly in other jurisdictions, as deferred prosecution agreements.  A remediation agreement would be an alternative to pursuing the criminal prosecution and possible conviction of an organization accused of a criminal offence.  The provisions were enacted as part of the Budget Implementation Act, 2018, No 1, SC 2018 c 12 [BLA 2018] and were proclaimed into force on September 21, 2018 

   SNC Lavalin made an application to the DPP seeking a remediation agreement under the legislation.  In a letter dated October 9, 2018 the DPP advised them that it would not issue an invitation to negotiate a remediation agreement and that crown counsel would continue with the prosecution of the case in the normal course.

SNC-Lavalin's Position:

  The thrust of SNC Lavalin's argument was that the DPP's refusal to issue them an invitation to negotiate a remediation agreement was unlawful because although the DPP had a discretion as to whether or not to issue them an invitation that discretion was fettered in that it was not exercised reasonably and in accordance with the statutory objectives and factors.  SNC Lavalin's challenge was founded on the basis that the DPP's decision was an administrative decision and therefore fell within section 2 of the Federal Court Act as a decision of a "federal board, commission or tribunal."

DPP's Position:

   The DPP moved to strike their Notice of Application for Judicial Review under Rule 359 of the Federal Court Rules arguing that their application had no chance of success on two fundamental grounds:

1.  The DPP's determination not to invite SNC Lavalin to enter into a remediation agreement is purely an exercise of prosecutorial discretion in the context of a criminal proceeding. Prosecutorial discretion is not subject to judicial review except where there is an abuse of process;

2.  Their prosecutorial discretion comes from the common law and not from a federal statute and as a result the DPP is not a "federal board, commission or other tribunal within the meaning of the Federal Court Act, RSC 1985.


   Justice Kane proceeded to grant the DPP's motion quashing the application for judicial review.  The following quotes in her reasons provide clear rationale for her decision:

[72]   The jurisprudence firmly establishes that the independence of the Attorney General is essential and fundamental the criminal justice system and that the decisions made by and on behalf of the Attorney General in the exercise of prosecutorial discretion are not subject to judicial review.  The jurisprudence provides the rationale and also provides many examples of what is encompassed within prosecutorial discretion.

[73]   In Krieger, the Supreme Court of Canada described prosecutorial discretion in para 43 stating:

"Prosecutorial discretion" is a term of art.  It does not simply refer to any discretionary decision made by a Crown prosecutor.  Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.

The author:  E.J. Guiste is a Toronto-Area based lawyer who practices administrative law, criminal and civil litigation. 

Friday, March 1, 2019

ONCA Upholds Half Million Costs Award For 11 Day Trial

   Ontario's Court of Appeal recently upheld a trial judge's award of $546,684.73 for
an 11 day wrongful dismissal trial in the Superior Court of Justice. In its ruling in
Ruston   v. Keddco MFG 2019 ONCA 125 a panel consisting of Peppall J.A.,
Trotter J.A. and Harvison Young J.A. concluded, "While we recognize that this costs
award was unusually high, the appellant has not satisfied us that the costs award was
not fair and reasonable in the circumstances of this case. The case involved the
termination of a senior employee with eleven years of service who was 54 years of
age at the time of the dismissal for alleged cause and had a grade 12 level education.

   Litigation is a very expensive dispute resolution process.  If we break down the costs award by the duration of the trial this works out to roughly $50,000 per day of trial. However, those of us who actually litigate cases know all too well that the vast majority of litigation time is spent in the lead up and preparation for trial - fact-gathering, investigation, legal research, preliminary motions, discovery etc. etc.

E.J. Guiste is a Toronto based trial and appeal lawyer who litigates cases in the areas of employment, human rights, professional discipline and criminal law.