More on adjournments and open courts
Also links of interest, plus 2 new features: tip of the week and appointment opportunities watch
It was another busy week of funding drive activity for CKCU FM in Ottawa - three straight hours in-studio. During the long evening of US election reporting, this sign caught my attention.
Tip of the week
This is a new feature for this newsletter - a tip for effective case management or decision writing. If you have a tip you’d like to share, please send it along and I will post it (with proper credit)! The tip this week comes from a new book by Leonard Cassuto - Academic Writing as if Readers Matter. I’m only about halfway through and already I can see how many of his suggestions on academic writing can apply to decision writing. Stay tuned for a review of the book either in this newsletter or in an upcoming Slaw column.
To help you understand the reader's point of view, read your work aloud, either alone or to a peer. Read it slowly and expressively, with a pen at hand to take notes.
Listen to the sound of your writing. If you have trouble reading a sentence out loud, your reader will likely have trouble with it on the page.
Listen for the sense of your writing. Do you hear the argument unfurling? If you can sense yourself getting lost, there's a good chance that your reader will get lost, too.
Cases of note
Adjournment and “out of the country”
In Kizemchuk v. 60 Montclair Limited, 2024 ONSC 6140, a husband and wife were self-represented in an eviction application. The husband requested an adjournment on two grounds:
He did not receive the Notice of Hearing until 12 days prior to the hearing; and
By that time his wife was out of the country and unable to attend from her location.
The Landlord and Tenant Board (LTB) member denied the adjournment request for these reasons:
The husband and wife had “ample time” to prepare for the hearing; and
The wife could have arranged to attend the virtual hearing from her location outside the country.
The tenants argued that the denial of the adjournment was wrong because it was inconsistent with the Board’s Interpretation Guidelines on how the phrase “not reasonably able to participate” has been interpreted. Interpretation Guideline 8 provides examples of circumstances in which the Board has found that a party was “not reasonably able to participate.” One example is when the “requestor was out of the country.” Another example is when the Notice of Hearing was “received late or not at all.”
The court held:
A decision to grant or deny an adjournment request is a discretionary decision: Riddell v. Huynh, 2019 ONSC 2620 at paras. 43-44 (Div. Ct.). The fact that the Board has granted an adjournment in other cases because a party was out of the country or because the Notice of Hearing was delivered late does not mean it was a legal error for Member James to deny an adjournment in this case. The exercise of discretion is fact specific. Mr. Kizemchuk had an opportunity to fully explain why he was requesting an adjournment. Member James considered his submissions and decided, in the circumstances of this case, an adjournment was not warranted. Mr. and Mrs. Kizemchuk have not identified a legal error in Member James’s decision.
The tenants also argued that the denial of the adjournment was inconsistent with the accommodation they had previously been granted and was inconsistent with the Board’s obligations under the Human Rights Code.
The tenants requested an in-person hearing based on (a) their age and their lack of computer skills to manage a virtual hearing, (b) the volume of anticipated evidence, and (c) the disruption that was likely to be caused by noisy construction going on in their building. The Board did not accept the first two grounds, and authorized the use of a “public access terminal” at the Board’s office to address the noise issue.
The court noted that the authorization to use the Board’s public access terminal was not an accommodation under the Human Rights Code, but instead was an accommodation to allow them to participate in a virtual hearing without noise interference. At the second hearing, the husband was able to participate through the public access terminal and the wife could have arranged to participate from a location without noise.
The court also held that the Board member made no error in finding that the wife was reasonably able to participate in the hearing:
[40] … Of course, the phrase “reasonably able to participate” is to be interpreted broadly. Where a party had a genuine intent to participate but was prevented from doing so, a re-hearing should be held to give them an opportunity to participate: Abdalla et. Al. v. Koirala, 2023 ONSC 7106 at para. 17. However, there is a difference between being prevented from attending and failing to make reasonable efforts to attend. A party must demonstrate that they exercised diligence in their effort to attend the original hearing. If a party is not diligent in dealing with legal proceedings, they cannot expect the Board to hold a second hearing: Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 at para. 8. It was open to Member James to find that Mrs. Kizemchuk could have, through the exercise of diligence, participated in the hearing and Member Morris made no error in dismissing the request for review on this ground.
Open court and commercial agreements
In Miller & Smith Foods Incorporated v. Citadelle, Coopérative de Producteurs de Sirop Dérable, 2024 ONSC 6133, the court applied the revised test for sealing orders set out in Sherman Estate v. Donovan, 2021 SCC 25. At least for agreements in the commercial setting, Sherman has not changed the approach set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, at para. 55: to justify a sealing order, an important commercial interest cannot be specific to the party requesting the order, but must be one which can be expressed in terms of a public interest in confidentiality.
At issue in this case were supply agreements between the defendant and Coca-Cola (not a party to the proceeding). The court noted that disclosure of the agreements would lead to a breach of a confidentiality agreement. In Sierra Club, the Supreme Court recognized that a breach of a confidentiality agreement “can be characterized more broadly as the general commercial interest of preserving confidential information.” At paragraph 60, the Supreme Court stated that the applicant for a protective order must demonstrate that:
the information in question has been treated at all relevant times as confidential;
on a balance of probabilities its proprietary, commercial and scientific interests could reasonably be harmed by disclosure of the information;
the information in question must be of a confidential nature in that hit has been accumulated with a reasonable expectation of it being kept confidential.
In this case, the court concluded that the documents at issue satisfied all the criteria:
[18] The information in this case satisfies all of these criteria. It has always been treated as confidential, as evidenced by the confidentiality clauses and the clear labelling of the agreements as confidential. ...
[19] The information in question includes confidential and commercially sensitive information about Citadelle’s business. It includes information about Citadelle’s exclusive technology, proprietary information, financial information, and performance criteria. It is reasonable to conclude that disclosure could harm Citadelle’s commercial interests, not least because of its need to remain a trusted party in its commercial relationship with Coca-Cola. In addition, competitors could use the information to undercut Citadelle in future negotiations with Coca-Cola.
[20] The information also includes confidential and commercially sensitive information about Coca-Cola’s business. For example,it includes standard terms and provisions that Coca-Cola uses in its supplier agreements. It is reasonable to conclude that disclosure of the information could harm the commercial interests of the non-party, Coca-Cola, in that it could be used to undermine Coca-Cola’s supplier relationships.
[21] The information in question has been accumulated with a reasonable expectation of being kept confidential, as is apparent from the confidentiality clauses that apply to [the agreements].
[22] I conclude that the principle of court openness in this case poses a serious risk to an important public interest, that is, the general commercial interest of preserving confidential information.
The court concluded that the requested order was sufficiently narrow and since the confidential information was “peppered throughout” redaction was not a practical solution. The court also concluded that the benefits of the order outweigh any negative effects.
[25] … The confidentiality order sought is narrowly tailored. The order would protect information confidential to not only the defendant, but a non-party, Coca-Cola. At the same time, the public does not have a strong interest in accessing [the agreements], apart from the general public interest in being fully informed of what transpires during the judicial process, which is only mildly impaired by the narrow order proposed.
Links of interest
Supreme Court sued over its refusal to translate decisions before 1970 into French
Côté’s group points to a 1985 Supreme Court ruling that required the government of Manitoba to translate all of the province’s laws passed since 1867, regardless of the cost. Etienne-Alexis Boucher, executive director of the group, says he doesn’t understand the high court’s refusal to translate its historical documents when it has forced other federal institutions to translate theirs.
Canadian Human Rights Tribunal releases guidance on AI
Adjudication is a human responsibility. Tribunal members hear cases and make decisions based on the evidence and submissions. They do not use AI to write decisions or analyze evidence. Tribunal members are fully accountable for their decision-making.
The Breakdown of Trust: How Delays in Canada’s Justice System Foster Vigilantism
Vigilantism, though sometimes fueled by understandable frustration, ultimately poses significant dangers by undermining the rule of law and escalating violence. It risks wrongful accusations and harm to innocent individuals, while further eroding public trust in legal institutions. The public’s resort to vigilantism and other extra-legal methods in Canada highlights a critical issue — the delays and inefficiencies within the justice system have serious consequences. There are several important steps that advocates believe will rectify this issue:
Reform the justice system to reduce backlogs, streamline processes, and ensure access to justice.
Enhance transparency and communication to rebuild public trust, explaining the complexities and efforts undertaken to deliver justice.
Foster partnerships between law enforcement and communities to address specific concerns, improving responsiveness and collaboration.
Tackle underlying issues such as social inequality, mental health, and addiction.
Iceland embraced a shorter work week. Here’s how it turned out
The trials involved 2,500 people — more than 1% of Iceland’s working population at the time — and were aimed at maintaining or increasing productivity while improving work-life balance. Researchers found that productivity stayed the same or improved in most workplaces, while workers’ wellbeing increased “dramatically” on a range of measures, from perceived stress and burnout to health and work-life balance.
Appointment opportunities watch
Another new feature in the newsletter - opportunities for tribunal positions across the country. This will not be a comprehensive directory but rather postings of opportunities that come to my attention. If you know of any interesting opportunities send me a message and I can include them. In a future newsletter I will have a piece about job searching for tribunal members and those wanting to become tribunal members.
British Columbia Labour Relations Board - 2 full-time Vice-Chair positions
Closing date: December 15
Ontario Labour Relations Board - 1 full-time Vice-Chair Position
Closing date: November 14
Consent and Capacity Board - full-time Chair (Ontario)
Closing date: November 22