⚖️ Travel plans

Two appeals headed to the SCC. Plus Steven Galloway's lawsuit over sexual assault allegations, a police coverup, the hefty jail sentence sought for a former intelligence officer, and Facebook's privacy settlement offer.

Happy Friday everyone. Hopefully this (admittedly dated) tweet doesn’t resonate with you today:

Have a great weekend.

— Dylan Gibbs

TODAY'S DOCKET

8 min read

  • SCC grants two leave applications

  • Steven Galloway (mostly) wins anti-SLAPP appeal related to sex assault allegations

  • Roundup: No room for JDR at ABKB, Crown wants almost 30 years for secret leaker, jail officers cover-up excessive force, and Meta offers $51-million privacy settlement

SCC

If a water taxi crashes in Venice, do Canadian courts care?

Water taxi crashing into a wooden pole in an open body of water

After a bit of a sleepy 2023 at the Supreme Court, 2024 is off to a hot start. The Court granted two leave to appeal applications yesterday — one about private international law and the other about human rights in the prison discipline context.

It’s a tale as old as international vacations. A person injured while travelling wants to hold foreigners responsible for their injuries — while suing from the comfort of home. When is there a strong enough connection between Canada and a foreign defendant for Canadian courts to get involved?

What happened: A travelling couple booked their Venice vacation using an Amex credit card. Through Amex, they arranged transportation from the airport to their hotel on a water taxi. Amex contacted another company, which contacted a taxi dispatch company, which contacted Venice Limousine, which sent a driver to pick up the travellers. Then the water taxi crashed into a wooden pole.

Venice Limousine and the boat driver have no connection whatsoever to Ontario. But the travellers argued they could sue in Ontario because their Amex credit card agreement is an Ontario contract. The motion judge agreed, but the Court of Appeal reversed that decision.

At issue on appeal: According to the Supreme Court, Canadian courts can take jurisdiction over a foreign defendant if there’s a domestic contract “connected with the dispute” — even if the defendant being sued isn’t a party to that contract.

The rule has created a bit of a mess — if a vaguely related contract is all it takes, who can’t Canadians sue at home? The Court of Appeal grappled wtih that, unanimously agreeing on the result but taking two different routes to get there.

  • The majority said the Amex agreement didn’t qualify as a contract connected to the dispute because the Venetian defendants were too far removed. They also said that — even if they were to treat the contract as “connected” — it was so tenuously connected that Ontario courts should refuse jurisdiction anyway.

  • Justice Harvison Young accused the majority of skating around binding Supreme Court precedent. She concluded the Amex contract qualified as a contract connected to the dispute, but she agreed the connection was tenuous enough to refuse jurisdiction.

2 cents: The SCC doesn’t have the best track record on this issue — hopefully this case serves to draw a clearer line.

Prison discipline has big consequences — in Saskatchewan, inmates found guilty of breaking prison rules can be sent to segregation for up to 10 days and lose up to 15 days of earned remission (i.e., early release credit).

Given the stakes, provincial inmates argue they have a Charter right to be presumed innocent unless prison officials can prove a disciplinary offence beyond a reasonable doubt. The Corrections and Conditional Release Act already gives that benefit to federal inmates, but the same rules don’t apply in provincial jails. In Saskatchewan, inmates are disciplined if it’s more likely than not they committed an offence.

At the Court of Appeal: The inmates lost. The Saskatchewan Court of Appeal sided with the province:

The presumption of innocence requiring proof beyond a reasonable doubt – does not apply [to] the inmate discipline regime.

Discipline isn’t so bad? To get there, the Court said the potential punishments for disciplinary offences aren’t as bad as they seem at first blush.

  • “Segregation” in Saskatchewan isn’t the same as solitary confinement. It includes some exercise time and the punishment is capped at 10 days.

  • The whole point of earned remission is to give inmates an incentive to behave and rehabilitate while incarcerated. Taking the credit away isn’t the same as increasing the length of someone’s sentence.

We’ll see if the Supreme Court agrees.

HEARSAY ROUNDUP

Canadiana

👩‍⚖️ The Alberta Court of King’s Bench is so busy with trials and applications that the Court can’t offer judicial dispute resolution this spring. If you’re looking for an alternative, an excellent former judge (and Hearsay subscriber) is open for business. Take it from someone who watched Barb Veldhuis work her judicial dispute resolution magic at the Alberta Court of Appeal — she’s the best.

🤫 The Crown is seeking a 28-year sentence for Cameron Ortis, who was convicted of leaking intelligence as a senior RCMP officer. His defence team argues he’s already served an appropriate sentence while waiting for trial (he has over 5 years’ worth of credit).

🟧 The Innu Nation is suing the federal government, and the province of Newfoundland and Labrador, to recover compensation for abuses at day schools. The Nation wasn’t covered by earlier settlements dealing with similar allegations, because the Indian Act didn’t apply to its members until the early 2000s.

🎭 A Montreal puppeteer is suing for defamation because an anti-racism group called his puppet a racist blackface caricature. He insists the puppet is a caricature of himself and has nothing to do with blackface.

🤨 Gun charges against a 19-year-old were thrown out because jail guards pepper sprayed him, put him in solitary confinement for two weeks, and lied about what happened even though it was captured on video.

💰 Meta is offering $51 million to settle a class action alleging Facebook used images of Canadian users as advertisements without consent. You might remember the case from the SCC’s 2017 decision, Douez v. Facebook. The Court let the lawsuit proceed in British Columbia, even though Facebook’s contract terms said users needed to sue in California.

ANTI-SLAPP

Anti-SLAPP legislation won’t shield sexual assault allegations levied against Steven Galloway

Yung woman types angrily on a keyboard

Following his substantial victory at the BC Court of Appeal this week, Steven Galloway gets to take most of his defamation claims to trial. Galloway went viral (in a very negative way) back in 2016 after being accused of sexual assault and fired from his position as chair of UBC’s creative writing department. Now he’s suing over 20 defendants he says spread the sexual assault allegations and harmed his reputation.

Several of the defendants tried to dismiss his lawsuit, calling it a strategic lawsuit against public participation (SLAPP). They were partially successful in the BC Supreme Court and both sides appealed.

No blanket protection: The headline grabber for this case stemmed from the sweeping position taken by the defendants. They effectively argued that any commentary about an alleged sexual assault is so publicly important that it should be shielded from litigation — even if the commentary is untrue and spread with malice. The BC Supreme Court rejected that argument, and the BC Court of Appeal agreed:

It is beyond argument that there is a very significant public interest in encouraging reporting of sexual assault…

[But the] implication of the [Defendants’] submissions is essentially that any public statement [conveying] that a sexual assault was perpetrated by one person against another (in this case, that Mr. Galloway raped A.B.), and regardless of the circumstances in which the statement was published, must be protected. There would be no legal consequences of any kind attached to publicly calling someone a rapist, completely outside of any formal reporting, and no obligation ever to prove the statement was true.

2021 BCSC 2344 at paras 703 and 705.

Galloway didn’t sue over sexual assault accusations made through proper channels — he sued people who very publicly called him guilty as if the allegations had been proven. In reality, a former judge had investigated the allegations and concluded that Galloway violated school policy but didn’t do anything criminal.

Galloway showed grounds to believe his claims had substantial merit and that most of the defendants didn’t have a valid defence. He also established the defendants’ statements caused him significant harm. In that context, the courts weren’t willing to protect the defendants’ sexual assault allegations.

Limitations and anti-SLAPP: The reason Galloway appealed the BC Supreme Court decision was because the lower court held that a few of his claims were out of time. The Court of Appeal said it’s generally not appropriate to consider limitations arguments in the context of an anti-SLAPP motion and reinstated those claims.

Now Galloway can take virtually all of his claims to trial.

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