⚖️ Billions

To: Hearsay Readers

TODAY’S DOCKET

  • Historic settlement puts a dent in Canada’s wallet

  • Fake legal services in exchange for real housekeeping

  • Administrative tribunal doesn’t quite get the message

  • Ontario introducing stronger consumer protection laws

HUMAN RIGHTS

$23-billion settlement approved between federal government and First Nations families

Yesterday, a Federal Court judge approved a $23-billion settlement — the largest in Canadian history. Canada is paying for its historic underfunding of First Nations child welfare services, which the Canadian Human Rights Commission found discriminatory in 2016. The settlement puts an end to the human rights complaint and two related class action lawsuits.

Both sides initially agreed to a $20-billion settlement, but the Human Rights Commission rejected that number last year. The Commission said the amount wasn’t enough to cover everyone entitled to compensation: 300,000 children, plus their parents and grandparents.

Now, the Commission and the Federal Court have each signed off on the larger $23-billion settlement. Canada is also committing a further $20 billion to improve on-reserve child welfare and family services going forward.

One outstanding issue is the legal costs, which Canada is contesting. The law firms representing the First Nations parties are asking for $80 million in fees. Canada says that’s excessive. But what’s another $80 million on $23 billion?

HEARSAY ROUNDUP

Canadiana

🏙 A New Brunswick judge who owns an apartment complex decided a case involving provincial rent regulation rules. There’s mixed views on whether that raises an appearance of bias.

🤔 After Ontario flip-flopped on its decision to remove land from the Greenbelt, the government tabled legislation to reverse the change. Nestled among the amendments is a provision that will terminate a property owner’s six-year-old lawsuit against the government — even though the lawsuit is unrelated to the latest policy change.

🥸 The Law Society of BC says a woman has been posing as a lawyer and taking payment in the form of domestic services.

Beyond the border

🎯 Michael Cohen testified in Donald Trump’s civil fraud trial yesterday and substantiated allegations that Trump artificially inflated the value of his assets. Cohen said he “was tasked by Mr. Trump to increase the total assets, based upon a number that [Trump] arbitrarily elected.”

🤳 33 US states are suing Meta for knowingly making Facebook and Instagram addictive to children.

JUDICIAL REVIEW

Federal Court tells refugee tribunal to consider the same case a fourth time

How many members of the Refugee Appeal Division does it take to properly consider a refugee claim? Hopefully no more than four, but we won’t know until the fourth one gives it a shot. In a recent decision, the Federal Court criticized the tribunal for ignoring the Court’s previous rulings in the same case.

Background: Yaochun Zhang claimed refugee status. He says he’s afraid of forced sterilization under China’s Family Planning Policy, but the Refugee Protection Division wasn’t buying it and dismissed his claim.

Zhang appealed to the Refugee Appeal Division. The Appeal Division accepted that forced sterilization still happens in China but said there was no real risk of forced sterilization happening to Zhang.

That was in 2018. Here’s what’s happened since:

  • The Federal Court said the Appeal Division failed to engage with the evidence of forced sterilization and sent the case back.

  • A different member of the Appeal Division said forced sterilization doesn’t happen in Shanghai specifically.

  • The Federal Court said that conclusion was “a leap” not based on the evidence. The Court also said (wink wink, nudge nudge), that the evidence showed “vague terms like ‘remedial measures’ in [Chinese] government notices and documents were a euphemism for coercive birth control practices like forced abortions and sterilizations.”

  • A third member of the Appeal Division said the terms used in the government documents were not euphemisms for forced sterilization.

On judicial review: In the latest decision, the Federal Court removed any remaining subtlety. In the Court’s words, the Appeal Division went wrong:

[W]hen it concluded that the references in the notices to “forcible measures” were not a euphemism for forced sterilization, and failed to explain why it departed from the Court’s previous finding to the contrary.

2023 FC 1352, para 34

Hopefully that’s enough to send the fourth Appeal Division member down the right track. Or maybe we need to implement a baseball system — three strikes before the Court just makes the decision itself?

Decision report card:

◻️◻️🙂◻️◻️ Factual interest

◻️😐◻️◻️◻️ Legal interest

🙉◻️◻️◻️◻️ Following directions

LEGISLATION

Ontario beefing up consumer protection laws

Good news for the little folks of Ontario — the government is introducing stronger protections for consumers. If timeshare regrets are keeping you up at night, the proposed amendments to the Consumer Protection Act might have the cure.

Here are some of the more significant changes.

Added unfair practices. The Consumer Protection Act gives consumers recourse against unfair practices, including the right to walk away from a contract for up to one year after signing. Under the new amendments, the following practices are considered unfair:

  • Inaccurately suggesting that a consumer business is approved or licensed by any level of government

  • Marketing goods as new that are reconditioned or reclaimed

  • Giving a misleading opinion if it would hurt the consumer to rely on that opinion

  • Misrepresenting the reason a business is contacting the consumer (for example, by suggesting the consumer won a prize or is eligible to win a prize)

Punishing unfair practices. The current law only cares about unfair practices that impact a consumer — practices that occur during the contracting process and lead to a completed agreement. Under the proposed amendments, “[a]n unfair practice may occur before, during or after a consumer contract is entered into and is an unfair practice even if no consumer contract is entered into.” With that change, businesses can be charged with an offence and face penalties for unfair practices, even if the unfair practice doesn’t end up impacting a consumer.

No squashing reviews. Businesses won’t be allowed to use contracts that prohibit negative reviews. Liberated consumers can dust off their keyboards and storm the gates of Yelp.

Cracking down on notorious types of contracts. The new rules also target specific classes of contracts that have caused significant consumer headaches:

  • There’s new limits on long-term rental contracts, like the ones used for furnaces, hot water heaters, and other HVAC appliances. Some businesses charge exorbitant fees to cancel these contracts and register security interests against consumers’ homes to use as leverage. Both of those practices will be curtailed.

  • Timeshare owners will be able to cancel their agreement after 25 years. That applies to both new and existing timeshare contracts.

  • The government also says it will stop businesses from putting unnecessary barriers in the way of cancelling subscription or membership-based products, but those regulations haven’t been drafted yet.