Monday, January 21, 2013

Aboriginal Rights in Canada: What Are the Priorities of Idle No More?

Wuikinuxv Village, Wuikinuxv Nation, British Columbia
Photo by author
A lot of you might have been wondering about what the recent protests by Aboriginal peoples and their supporters across Canada are all about. I'm a white guy - about as white as they come since most of my extended family still lives in Scotland. I'm not speaking here for Idle No More or for any particular Aboriginal people. But I've spent a lot of the last 18 years working with Aboriginal peoples all over the country. From Vancouver Island, to Nunavut, to Newfoundland & Labrador.

I've spent a lot of time listening. And observing. And feeling very welcomed.

Thus I offer I few of my own observations as an Aboriginal lawyer who now works for Aboriginal peoples in Canada, but previously worked for many years on the Federal Government side.

I'd suggest that on one level Aboriginal people want what all other Canadians want: (1) good schooling for their children; (2) adequate health care; (3) jobs; (4) safe environments for their families.

On another level, however, Aboriginal peoples have been repeatedly recognized by Canadian courts as possessing rights other Canadians don't have. Thus they want those rights respected - full stop. The challenge lies in defining what those rights are, and in adapting modern practices to historical promises.

Some out there may rail against "special rights," but when it comes right down to it non-Aboriginal Canadians are already beneficiaries of many classes of special rights based on age, parental status, residency, health or disabilities, language, or other aspects of their lives. In many respects, Aboriginal rights are already a lot more limited than other Canadian rights, as they are not individual rights, but rather "collective rights exercisable by individuals," meaning that the collectivities control how and by whom the rights may be used.

In considering why you may not be hearing a single voice or message out of the Idle No More movement, you need to understand the diversity of Aboriginal peoples in Canada. According to the Assembly of First Nations (AFN) there are at least 630 "First Nations" in Canada, but even the AFN only represents (according to its Charter ): "The Chiefs of the Indian First Nations in Canada" together with their people. Some of those First Nations are comprised of thousands of members, while others are only comprised of a few dozen members.

You also need to understand that the term First Nation usually doesn't include the Inuit people of the Northwest Territories, Nunavut, Northern Quebec and Labrador. Nor the Métis people who are spread throughout Canada, but particularly concentrated in Northern Ontario and the prairies. Nor sometimes the numerous off-reserve, non-status Aboriginal people - many of whom live in Canada's cities.

Some of these Aboriginal peoples have historic treaty rights embodied in short historic documents, while others are beneficiaries of modern treaty rights contained in exceedingly detailed and lengthy documents. And some have non-treaty Aboriginal rights like hunting and fishing rights.

Although the AFN doesn't represent everyone, it remains the most representative and largest of Aboriginal organizations, and so in considering Aboriginal change priorities its worth looking at an important document the AFN issued on 11 January 2013 entitled "Fundamental Change, Remedies and Actions Required For First Nations Immediately." This document sets out 8 brief points and is quite instructive in the consensus it shows, and the way it goes into a lot more detail than what more general Idle No More movement principles may reflect.

In summary, the eight AFN principles call for:
1. establishment of a working process for implementation and enforcement of Treaties on a Treaty by Treaty basis; 
2. reformation of the land claims process through reform of the comprehensive claims policy based on recognition of inherent rights rather than extinguishment of rights; 
3. resource benefit, equity and revenue sharing; 
4. that all new Canadian legislation should be consistent with existing Canadian constitutional and international human rights protections of Aboriginal peoples; 
5. transformation of the fiscal relationship between the Crown and First Nations;  
6. establishment of a national public commission of inquiry on violence against indigenous women and girls; 
7. a guarantee of schools in every First Nation that reflect First Nation language and culture and provide a safe and supportive place to learn; 
8. establishment of a secretariat within the Privy Council Office of the Government of Canada responsible for First Nation-Crown relations. 
It is, to be sure, a diverse list. But you need to understand that it's reflective of the diversity of Aboriginal peoples in Canada. As well as being reflective of the stark social and economic realities faced every day by many of those peoples.

Friday, January 11, 2013


Photo credit: Natalie Rowe

Okay, so bees aren't perhaps at the top of everyone's list of pets, but bees from the right species and with the right housing could be considered domesticated animals. If you keep them (or horses or dogs or kittens), are you liable for everything your animals do? Nothing worse than a kitten with cattitude, you know!

In common law jurisdictions like the U.S. (outside of Louisiana), Canada (outside of Quebec) and the U.K. (outside of Scotland), liability usually flows either generally from common law jurisprudence developed through court decisions of the past hundreds of years, or from statute law created by politicians in our legislatures.

For general common law liability principles, I offer you the reasons for judgment in Pittman v. Morin, 2010 NSSM 56, a fairly recent decision of the Small Claims Court of Nova Scotia (and no, I'm not making this one up):

This matter involved damages caused to the claimant's car by a goat of the defendant … At a time when the defendant was away on vacation his goat was being “goatsat” by another person, at 6:30 in the early morning … the claimant was driving her child to daycare and when that child exited the car the goat appeared and went after the child.   
The child’s screaming alerted the mother and older siblings who were also in the car at the time. The child tried to get away from the goat however the goat continued to try to jump on the child. Running around the car the child eventually managed to get back in the car however the goat proceeded to go after the child ramming into the car and causing damage. An older sibling who was in the car tried to get the goat away from everyone but was unsuccessful and the goat eventually jumped onto the car causing further damage.

The owner of the goat, the defendant in this case explained to the court that the goat was a very friendly goat and that it likes “kids”… He said that it was a well behaved goat and he showed the court pictures of his goat which appeared in a CBC news article under the caption of "Billy goat too gruff: neighbors" … the consensus of those that spoke in the news article indicated that the goat had a propensity  to attack and cause a general disturbance with respect to the neighbors and their property ... the law imposes a very high duty on the owner to prevent any kind of injury from such animals even if the owner believes in his own mind that the animal is harmless ...
The owner of such animals that fall within this strict liability category might escape liability if they can show ... consent of the person who is injured ... contributory negligence ... an act over which the person has no control ... an act of God ... In each of these cases ... the owner must show they used due diligence to ensure the damage did not happen ... 
For all these reasons the defendant is liable for damages caused by his goat. 

Statutory liability which modifies common law principles is sometimes stated in quite general terms, like in Manitoba's The Animal Liability Act, which defines animal as "any creature that is not human" and stipulates that "the owner of an animal is liable for damages resulting from the harm that the animal causes to a person or property, but ... the court shall reduce the damages awarded in proportion to the degree which the fault or negligence of the plaintiff caused or contributed to the harm." An exception is only provided for "livestock" where the Act states there is a defence to claims for their damage when "control of the livestock was in accordance with generally accepted agricultural practice; or ... the livestock was at large due to an act of God or the act or default of [another person]."

But what if a wind storm blows down a fence that wasn't adequately maintained?

Some statute law gets very specific, like Ontario's Dog Owner's Liability Act which was already limited to only one species of animal, and which then was recently extensively amended in an attempt to ban pit bulls on the dubious assumption that such a ban would dramatically cut down on the number of serious dog bite incidents in the province.

That Ontario law states that: "The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal" and that "The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages." However, "Where a person is on premises with the intention of committing, or in the commission of, a criminal act on the premises and incurs damage caused by being bitten or attacked by a dog, the owner is not liable ... unless the keeping of the dog on the premises was unreasonable ...."

As you can see, pet owners are held to a very high standard of care when it comes to preventing their animals from injuring people or property. For non-farm animals like dogs, liability may in fact be absolute such that even a defence of due diligence will fail. I have one lawyer friend who told me that dog bite law suit cases used to be a sure fire winning part of this plaintiff practice, producing significant recovery for plaintiffs (and fees for him). You've been warned. And especially beware of goats!

Sunday, January 6, 2013

Animal Law 101 Part I: Estate Planning for Your Pet

Photo credit: Natalie Rowe. 
Though lots of us don't like contemplating our mortality, you need to do so at least once in your life (and preferably every ten years or so as your personal circumstances change) in order to draw up a will which will tell your executor and the world at large what you want done with your estate.

If you're an animal lover like me, there's a good chance that one of the pieces of property (legally there's no arguing with their "property" status) you will leave behind will be a pet of some sort. Maybe many pets. Regardless of whether it's a short-lived gerbil, or a long-lived parrot, you need to make advance arrangements for who will care for the pet, and how that pet will be materially supported once you're gone.

People always make arrangements for their children in their wills, but they often omit their pets. The thinking when drafting the will might be, "oh, I'll definitely outlast Fluffy" with no thought given to the fact that there may in the future be a Fluffy II, Fluffy III and Fluffy IV, or that death does occasionally visit the young(er) through accident and disease.

Alternatively, the testator (the person making the will) might erroneously believe that all of her beneficiaries will be fighting over the chance to give Fluffy - an ill-tempered beast at the best of times, who recently sent a grandchild to the ER after he got a little too lively during play-time - a luxurious home for life.

In contemplating your pets when drafting your will, you need to figure out three things:

1. what pets might you have when you pass on?

2. who might be best placed to care for all or some of them?

3. how might they be financially provided for?

Just like it's not a great idea to make your prized grandfather clock your only bequest in your will to your most beloved grandchild, because that clock may no longer be around when you pass due to downsizing when you moved into the nursing home (a less specific monetary gift, or percentage of your estate is a better choice), it's likewise not ideal to name all your pets in your will. They may have changed in name, shape or size by the time the will becomes active, and your tastes in pets may have also changed from fluffy kittens to not so fluffy pythons. Instead, think of numbers of pets and/or types, when you are thinking of who might be able to care for them, and how much such care would cost.

The who to care for them question can be quite tricky if some of the people you name in your will are no longer capable of caring for pets when that care is really needed. A good choice can be to name a specific person, an alternate to that person, and then give your executor a residual discretion to find someone. Often, just leaving it to your executor to choose appropriate homes may be the way to go, but offering some hints in a separate note as to who might be open to the idea of taking the pets could be a lot of help to the executor. It's usually not a good idea to will them to an animal shelter, as that shelter may have not ability to take them in at the needed time.

Financially providing for pets can be the most confusing area for people drafting wills. Some will try to leave money directly to the pets - and have the gift fail, because pets ARE property, they can't OWN property. Others will try to set up a trust for the pets, and likewise have that gift fail because (in Canada) pets cannot be the beneficiaries of trusts. Even in the U.S. where pet trusts are legal in many states, you need to think about just how much of your estate will be consumed in establishing and operating the trust - trusts aren't cheap.

The best option in providing for pets after death is often to specify that a sum of money be paid to the person or persons who permanently take the pets, to be used for the care, feeding and medical expenses of the pet. For instance, you could say: "To the person who takes permanent custody of my dogs, I leave a bequest of $5,000 per dog which that person takes." So if there are four dogs, and one person takes all four, then they would get $20,000. Take only two of the four dogs, and receive only $10,000. You could also name a number for cats or other pets, or not be species specific, but in case you recently picked up some goldfish just before your death, you might not want the person taking your three goldfish getting $15,000 and the person taking your dog only getting $5,000.

These kinds of monetary bequests are based on your or your executor's trust of the person taking the animal. Unlike a formal "trust" which is ultimately court supervised, simply leaving money in a will to accompany an animal to its new home does not guarantee the person receiving the money will only use the money to support the pet. But the technique is probably the best compromise available which both finds a suitable home and provides financial support.

Giving a percentage of the residue of your estate to a person taking a pet is also possible, rather than a fixed cash gift. The advantage of giving a percentage is that you don't need to worry if you die so poor that there won't be anything left for anyone else after the set sum of pet money is paid; the disadvantage of percentages is that a small percentage may generate a minute amount for pet care, whereas a large percentage could lead to the pet custodian receiving far more than is needed for the care of the animal. Plus most importantly, it's hard to know how much money you'll have when you die.

I generally prefer the fixed sum cash bequest route for pets, so long as you are relatively certain that your estate will be considerably larger than the sum of all the amounts you are leaving for your pets.

The overall estate planning philosophy I recommend when it comes to pets is keep it simple, but nonetheless remember them in your will.

Wednesday, January 2, 2013


Yes, even the Wikiworld needs some effective and low cost business dispute resolution now and then
Image Credit: Wikipedia
All businesses are going to require some dispute resolution (DR) eventually, be it with clients, suppliers, government, or internally among management and/or employees. Businesses that successfully navigate the DR minefield usually employ good DR practices. Those whose operations become impaired, paralysed, or even bankrupt while trying to resolve disputes often tend towards the bad and ugly side of the DR practice world.

1. THE GOOD - Draw Up a Written Business Agreement Long Before any Dispute Arises that is Detailed Enough for Everyone to Know their Rights and Responsibilities, and Not so Detailed that No One Can Understand the Agreement.

Sticking with purely oral agreements where lots of money is at stake only invites problems in the future when the parties all have different recollections of what really was agreed to.

Such written business agreements can apply to clients, suppliers, or internally to a company organization itself. Now I know that while some degree of trust may make the business world go round, and that every aspect of business dealings can never be committed to writing (as much as the lawyers might wish it so), setting out the basic ground rules of any relationship isn't such a bad thing at the outset.

No need to get too complicated here on putting things in writing - better one page of text that is a little on the vague side but that everyone has read and understands, than 100 pages that no one will ever read or understand (other than the lawyers who drafted it, who themselves might be a little light on understanding if they couldn't agree on definitions for key terms).

2. THE BAD (maybe) - Deal with the Dispute Yourself. 

Before a disagreement turns into a dispute, I absolutely advocate dealing with it yourself. Turning a disagreement which might be easily resolved through a personal touch, a little goodwill, and a fair bit of compromise over to a third-party is a good way to guarantee it will turn into a dispute, because the third-party may not have the personal relationship, goodwill or ability to compromise which you as a business owner or manager possess.

But once you are faced with a full-blown dispute, some professional dispute resolution skills, plus a bit of objectivity, may be called for. In Ontario if the dispute goes to litigation you may legally be required to retain a lawyer to represent your corporation if you are in a court higher than Small Claims court (natural persons can represent themselves at any level of court, but not "legal" persons like corporations).

3. THE UGLY - Unilaterally Refuse to Honour Your Side of Business Agreements

Just because "the other side" (whomever that might be - client/supplier/co-owner/employee) seems to not be honouring their side of a bargain, doesn't mean that you can simply decide to not honour your side of an agreement. Even though you might feel quite morally justified in your retaliation, the courts will likely not view your actions that way. T

hat same "other side" that you felt so slighted by could, in fact, be the aggressor in court, sue you, and win because of your breach of agreement. Arguing they breached first may not save you. Whether a breach really is a breach is in the eye of the beholder, and not all breaches are created equal.

4. THE GOOD - Agree in Advance on Dispute Settlement Mechanism(s)

There's nothing wrong with anticipating disputes in advance, and committing to writing how those disputes will be solved. Be it Mediation, Arbitration (binding or non-binding), the Courts or Arm-Wrestling, the means of DR could each be rungs on a ladder ultimately leading to litigation, but by forcing to parties to first try out some DR short of full-blown litigation, the DR process may be wind up be much shorter and cheaper.

5. THE BAD (maybe) - Use Three Arbitrators, or Any Arbitrators

ADR (Alternative Dispute Resolution, sometimes more recently referred to as Appropriate Dispute Resolution) is increasingly "hot." Everyone (or at least everyone's lawyers) seems to want to throw ADR clauses into their business agreements, fully confident that ADR is a panacea to clogged, expensive and at times apparently unjust court systems. The people signing these agreements expect ADR to be fast, cheap, and always lead to justice because they get to choose the decision maker.

While a little ADR is always a good thing, as ADR can be as simple as forcing all the parties in a dispute into the same room (or at least adjoining rooms) to attempt to negotiate a mutually acceptable solution prior to enriching lots of litigation lawyers, packing business agreements with mandatory use of binding three arbitrator panels for every type of dispute can wind up being slower, more expensive, and less "just" than the courts! How so?

Because in court-based litigation, the mandatory rules of court impose strict timelines to push cases forward. Sure those rules can occasionally be abused to drag out a case, but in arbitration there are no rules other than the rules agreed to by the parties. What if one party in arbitration does everything possible to drag out the appointment of an arbitrator? Where are you going to go to insist an arbitrator gets appointed? Why, to those very courts you are trying to avoid! But the only thing your expensive visit to court will accomplish is to jump start the ADR process, rather than resolving the underlying dispute. And what if once you finally get your arbitration judgment, the other side refuses to accept it? Well, you'll be headed back to court yet again!

Most importantly from a DR costs perspective, in court you only need to pay for your lawyer, not for the judge, court staff, courtroom, and all the other myriad court support costs. In arbitration, you're stuck paying for everything yourself! And if you have decided to stick in a three arbitrator clause in your business agreement, thinking somehow that the result of three people's thinking will be fairer than one (usually because each side picks one arbitrator, and then those two arbitrators pick the third arbitrator), have you really calculated what paying for three judges is going to cost? Or how difficult even finding three well qualified judges is going to be, not to mention aligning their respective schedules, unless your business is located in Toronto? And what if you have to start paying travel fees for all of them?

So think twice before putting any form of mandatory ADR in a business agreement. Make sure you know the true implications of an ADR clause. And especially be careful about requiring three arbitrators, unless you contemplate them settling a multi-multi million dollar dispute, where their costs will be a minor component of the amount of money at issue.

6. THE GOOD - Agree in Advance on Court Jurisdiction

It's always good to agree in advance on which courts will have jurisdiction over a dispute. Don't mention jurisdiction in a business agreement, and you could wind up having to defend a civil suit launched against you in Texas. Usually the party drawing up the contract will insert the court jurisdiction for the location where its head office is located. Sometimes jurisdiction can be the subject of negotiation (you could even agree to two jurisdictions as alternatives). Within Canada, while there are significant differences between the laws of various provinces, what you most want to avoid is litigation in a foreign country, where the law will be dramatically different and your Canadian legal counsel will no use to you at all.

7. THE GOOD - Keep it in Small Claims Court

Small claims courts have quite limited jurisdiction. They are usually restricted to monetary damages or the payment of money, and their upper monetary value won't be any greater than $25,000 in Canada (and in many parts of Canada is a lot less than that). But for bang for your buck, small claims court is a whole lot cheaper and quicker than higher courts. Even if you're owed more (even way more) than 25K, it's a good idea to stick with Small Claims limits.

The most important limitation about Small Claims court is that you usually can only claim money or the return of property, not something more creative like an injunction (where you'd have to go to Superior Court).


Regardless of whether you are using an ADR or court-based dispute resolution process, narrowing down the issues in dispute will save you money.

First, try to toss out any issues that aren't "legal issues" or "justicible" - meaning no court is going to decide on them.

Second, attempt to agree with the other side on "the facts" - the majority of negotiation, mediation, arbitration or court time may be wasted while the parties disgorge dumptruck loads of evidence concerning facts that aren't really in dispute.

Third, try to identify the key legal issue(s) that will make or break the case, and get rid of the collateral issues. You can waste of lot of money paying your lawyer to prove you are legally in the right over an issue that doesn't determine the key legal issue in dispute.

In some cases the only real issue at the end of the day is whether any damages were really suffered as a result of one of the party's conduct, and how much those damages should be.