Ottawa provides $7.1 million for LAO refugee services

Ottawa provides $7.1 million for LAO refugee services
Robert Blanshay says more needs to be done to make sure LAO is not in the same situation next year.

While the federal government has committed additional funding to keep Legal Aid Ontario’s immigrant and refugee services open past November, lawyers say more needs to be done to address the problems that led to a possible shut down.

The federal government has pledged $7.1 million to LAO after the agency requested $11.7 million to help fill a budget gap following a $26-million deficit last December.

LAO officials largely blamed the deficit on an increase in demand for immigration and refugee services and threatened to suspend such services from November until the end of the fiscal year if the federal government did not come through with the funding.

Robert Blanshay, the chairman of the Ontario Bar Association’s citizenship and immigration law executive, applauds the federal government for providing the funding, but says more needs to be done to make sure LAO is not in the same situation next year.

“I don’t think there’s any cause for jumping for joy here,” says Blanshay. “I think we’ve still got a global issue and problem.”

He says that while there is no one solution, LAO, governments and stakeholders will need to figure out how to maintain sustainable and consistent funding for the agency’s services over years to come.

Jawad Kassab, the executive lead for LAO’s refugee and immigration program says LAO is looking into a number of internal initiatives to make its services more cost efficient, such as creating standard research packages and centralizing translation services.

He adds that all stakeholders will need to work together to make sure services are as cost effective and efficient as they can be as there is no way of knowing what demand will be.

“As you can imagine, we don’t know what is coming across the border next,” he says. “We don’t know whether we’re going have another surge given the situation in the United States.”

This summer, LAO considered suspending immigration services in July, but instead chose to stretch all services out to the end of October using $6 million in “deficit funds.”

While the $7.1 million LAO will receive is less than the $11.7 million the agency requested, Kassab says it will be enough to continue providing services through till the end of the fiscal year.

He says LAO will be able to make up the difference using some of a $13 million bump the agency received from the Law Foundation of Ontario that he says resulted from recent interest rate increases.

“We’ve had some very good luck in many ways,” he says. “The interest rate changes [were] not good for our mortgages, but very good for the law foundation revenues that legal aid gets.”

The cost of LAO’s refugee and immigration services grew to $27 million in 2016-2017 from $20 million in past years and is expected to reach $33.6 million in 2017-2018.

If the funding hadn’t come through, it would have meant 3,000 to 5,000 refugees and immigrants would have gone unrepresented in the province’s tribunals and courts, LAO officials say.

About 80 per cent of the lawyers that appear at the board are funded through legal aid. So it also would have increased delays at the Immigration and Refugee Board of Canada, which is already struggling with the demand on its own resources, lawyers say.

“It really would have thrown the system into chaos to be honest,” says Kassab.

Blanshay says that while the funding came through in the end, it is a “bitter-sweet victory.” He says the issue is going to need a global solution to what is now a decades-old problem of not having enough funding for legal aid, and making sure the right people are receiving it.

“Hopefully we haven’t shuttled the problem over to July 2018 or Nov. 2018,” he says.

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Legal news roundup – Oct. 13, 2017


Quebec health minister’s son arrested after hit and run involving cyclist, Canadian Press

Saskatchewan NDP reviewing sex assault allegation against former candidate, Canadian Press

Lindhout’s mother says accused kidnapper feared ‘he was being set up’, Canadian Press


United States

Trump cuts off health-care subsidies to the poor, Reuters

FAA orders A380 engine inspections after Air France incident, Reuters


EU to ban business ties with Pyongyang over nuclear tests, Reuters

Allies press Catalan leader to declare full independence, ignore Madrid deadlines, Reuters

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ACC supports SCC appeal in Suncor privilege case

ACC supports SCC appeal in Suncor privilege case
Lorne O’Reilly of the ACC Alberta chapter says there is uncertainty in the question of litigation privilege.

The Association of Corporate Counsel as thrown its support behind an Alberta energy company after the Alberta Court of Appeal ordered it to disclose certain witness statements and other documents to the government pursuant to an internal investigation into a fatal job site injury.

In Alberta v. Suncor Energy Inc., 2017 ABCA 221, the Court of Appeal’s decision “raises the question of whether the litigation privilege can cover ‘the entirety’ of an internal investigation file,” the ACC wrote in a recent letter to Suncor Energy Inc.’s external counsel, Osler Hoskin & Harcourt LLP in Calgary.

The letter was written in support of Suncor’s request for such, “understanding that this letter may be appended to Suncor’s leave for appeal to the Supreme Court of Canada.”

The case is an important one for in-house counsel, who rely on litigation privilege as well as solicitor-client privilege in conducting and relying on internal investigations on behalf of their employers, says Lorne O’Reilly, senior counsel for Dow Canada in Calgary, and president of the ACC Alberta.

“There is uncertainty now in the question of litigation privilege,” O’Reilly told Legal Feeds. “In this circumstance, there is conflicting law. We believe as in-house counsel that this is a matter of national importance.”

In the Suncor case, information sought by government occupational health and safety officers followed a workplace accident near Fort McMurray in April 2014, in which a Suncor employee died. Suncor’s legal counsel directed its investigation team to segregate any investigation documents, and to mark all those materials as privileged and confidential.

A Court of Queen’s Bench judge held that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation, and therefore all material “created and/or collected” during that investigation was subject to legal privilege. The judge ordered Suncor to meet with a court-appointed referee, who would assess the claims of privilege and provide recommendations to the Court.

The Alberta Court of Appeal, however, disagreed with the chambers judge’s view that Suncor had sufficiently described its documents and the grounds for asserting privilege in its list of bundled records.

To determine whether a document is covered by litigation privilege, Alberta’s appellate court found, a court must look at the purpose for which each document was created, not the purpose for which it may have been collected or put to use. It ordered Suncor to provide the refused information to the referee, and to identify the records, information and communications it claimed as covered by litigation privilege or solicitor-client privilege.

In its letter to Osler in support of Suncor, the ACC raised three concerns. First, it said, “the Court of Appeal’s decision raises the question of whether the litigation privilege can cover ‘the entirety’ of an internal investigation file. …  The Court of Appeal’s muddled holding on this point puts at risk the confidentiality of the thoughts and impressions of in-house counsel and those who assist them in preparing their companies for potential litigation.”

Second, it said, the “decision muddies the waters regarding the extent to which a company can claim litigation privilege over materials created or gathered during an internal investigation when an investigation may also be mandated by a regulatory obligation.”

And third, the “decision creates a burdensome framework for examination of litigation privilege claims by suggesting that courts must undertake a document-by-document analysis of whether the privilege applies.”

O’Reilly sees a distinction in the manner in which in-house and external counsel are treated when claiming privilege over such materials. The Alberta Court of Appeal decision “begs the question of whether this would have been an issue if external counsel had handled” the internal investigation into the fatal worksite incident,” he says. “All too often,” and notably in European jurisdictions, “certain activities by in-house counsel have come into question.”

Yet it’s the job of in-house counsel to investigate, assess and attempt to mitigate the risks of quasi-criminal charges, among others.

“When you bring in-house counsel in, we should have the ability to ascertain whether there is liability for the company, and prepare for litigation,” O’Reilly says, knowing that a claim may come, and that information gathered will be subject to privilege. Be it a potential privacy breach or an anti-corruption claim, “you want to ensure and identify what has actually happened, so the [in-house counsel’s] organization best knows, one, how to best prepare for potential liability, and two, to ensure it doesn’t happen again.”

While the regulator has an obligation and a duty to identify what took place in order to protect the public, says O’Reilly, “if you want specific reports or documents, you ask for them; you don’t short-circuit the investigation by asking for all records to be prepared.”

An internal investigation may be conducted “for any number of matters,” including in responding to a regulator, as in this case. Whether for fraud or anti-corruption or other potential charges, “you have a duty to protect your client: thorough investigation, and the ability to protect your investigation process.”

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Legal news roundup – Oct. 12, 2017


Canadian-American family held captive by Taliban-linked group released, Canadian Press

Poor security controls led to camera breach at Nova Scotia school: report, Canadian Press

Several crew members injured in training accident on board Labrador ferry, Canadian Press

United States

Trump health-care order could face strong legal objections, Reuters

Trump points to Congress on Puerto Rico assistance, Reuters


Facebook committed to helping investigators release Russia ads: Sandberg, Reuters

Italian government wins latest confidence vote on electoral law, Reuters

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Legal news roundup – Oct. 11, 2017


Man and 15-year-old boy charged in 10 Toronto bank robberies, Canadian Press

Judge questions merits of charge against former top Wynne staffer, Canadian Press

Coroner’s service says three bodies were found after fire in Nanaimo, B.C., Canadian Press


United States

U.S. House panel approves US$36.5 billion for hurricane, wildfire relief, Reuters

Major U.S. rail customers to air complaints over CSX at hearing, Reuters

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Sears employees face no severance, loss of benefits

Sears employees face no severance, loss of benefits
Keith Murray, partner at Mathews Dinsdale & Clark LLP, says employees being laid off have a slim chance of getting any severance pay or extended benefits but if they did it would be ‘pennies on the dollar.’

Sears Canada announced its intention to apply to the Ontario Superior Court of Justice for approval to begin liquidating its remaining 130 stores and assets, potentially as soon as Oct. 19.

The Oct. 10 announcement impacts approximately 12,000 employees, who will join the ranks of the 3,000 others laid off earlier in the year. Liquidation sales are predicted to last 10 to 14 weeks.

Sears Canada — which has been in court-approved creditor protection since June 22 — had received court approval for a sale and investment solicitation process, but, “following exhaustive efforts, no viable transaction for the company to continue as a going concern was received,” according to a news release.

None of the laid-off employees will receive severance pay or extended benefits, which Keith Murray, partner at Mathews Dinsdale & Clark LLP’s Vancouver office, says is a typical outcome when a company goes into receivership or bankruptcy.

The chances of employees getting anything “are very slim — even if they got anything it would be pennies on the dollar.

“Employees are secured creditors for any wages that are owing for time they have actually worked, but for any severance pay, whether its statutory severance pay under employment standards or whether it’s common law notice, they are unsecured creditors,” Murray says.

Being designated unsecured creditors puts them in a difficult situation, he adds, noting they’d “have to stand in line behind the secured creditors.” People will lose their extended benefits whether already retired or not because the company “simply won’t be continuing to fund that obligation.”

The company has already closed 58 stores and laid off almost 3,000 employees. In July, Sears offered $9.2 million in retention bonuses to top managers despite employees receiving nothing. Ursel Phillips Fellows Hopkinson, the law firm representing Sears employees, argued for a hardship fund, and Sears set it up in August.

Murray says the fund, which entitles eligible recipients to amounts up to $1,200 a week for eight weeks, is unusual and it’s not clear to him whether or not it will continue to exist “with the current situation; hopefully, it will.”

Originally, Sears executive chairman Brandon Stranzi said he would donate the fund’s full $500,000. So far, $300,000 has been contributed and 22 people have applied for the fund.

Any money from the hardship fund, however, must be claimed as income, which means any employment insurance benefits former Sears employees are getting are reduced. Ursel Phillips Fellows Hopkinson is reportedly in talks with Service Canada to have the hardship fund money designated as a relief grant, which is exempt from being declared as income.

Eighteen-thousand Sears Canada retirees and their beneficiaries are facing a possible reduction in pension payouts due to the retail chain’s insolvency. Murray says the company’s situation “certainly has the prospect of affecting or reducing their pension entitlements.”

Pensioners are fighting in court for payouts, but, “given the receivership or bankruptcy, the company is not going to have the ability to top up the pension,” Murray adds. The Sears Canada Plan is currently underfunded by about $270 million, and Ontario Superior Court Justice Glenn Hainey has ordered that no other creditors in the company’s insolvency are to be paid until the issue is addressed.

Ontario is the only province Murray knows of that offers a Pension Benefits Guarantee Fund, which the Ontario government has reported will help mitigate the shortfall for Sears employees.

Though hesitant to call it a positive point, Murray says what helps the situation a little is the fact that most of the employees at Sears aren’t full-time workers.

“It’s still going to have a significant impact on people . . . but not as great as someone who’s worked there full time for many years.”

Previous motion materials are available on Monitor, FTI Consulting Inc.’s website and will be updated with the new application once it’s been made.

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B.C. lawyer to conduct review of gaming industry in Lower Mainland

Lawyer Peter German, a former deputy commissioner of both the RCMP and Correctional Service Canada, has been appointed by B.C. Attorney General David Eby to carry out a review of the gaming industry, with the focus on the Lower Mainland casinos.

German is charged with making recommendations, if necessary, for reforms that can counter money laundering. As part of the review, German will meet with government departments and corporations such as the Gaming Policy and Enforcement Branch, the British Columbia Lottery Corporation, the Joint Illegal Gaming Investigation Team within B.C.’s Combined Forces Special Enforcement Unit, casino service providers and employee organizations at any identified facilities.

The appointment comes on the heels of the New Democratic Party releasing a Liberal government-commissioned report by MNP LLP in Calgary that looked at suspicious money transactions at one of B.C.’s casinos. The 2016 report, which is labelled private and confidential, was never released to the public and is more than 400 pages long. Eby’s ministry released a 25-page redacted version of its findings and recommendations in late September. While the summary underscores many of the problems encountered in the gaming industry, it cautions relating them to the specific casino studied as that casino may have changed its procedures and rules since the report was issued.

Nevertheless, the suppressed report has been troubling to the NDP. “I received a series of briefings that caused me to believe that our province could do more to combat money laundering at B.C. casinos,” Eby said in a government statement when the report, available on the government’s website, was released.

The report was prepared for GPEB’s director of operations, Dave Boychuk. According to the report’s background statement, the investigation was triggered when GPEB’s Compliance Division compiled a document that identified $13.5 million in $20 bills was accepted at a Richmond casino during July 2015. The cash, believed to be connected to individuals involved in crime, was dropped off at the casino or just off casino property to patrons, usually late at night.

“The majority of this cash is being presented by a person commonly referred to as high roller Asian VIP clients,” the report said, adding that the casino had accepted single cash buy-ins in excess of $500,000 with no known source of funds. (The common practice for money laundering at casinos is to convert large amounts of cash to playing chips, then cash in the chips for a cashier’s cheque, which can then be taken to a Canadian bank account. Or funds may come in offshore to a player’s casino account.)

The report findings point to problem areas within the B.C. gaming industry such as difficulty in tracking funds as there is an inconsistency in documentation and understanding of when casinos and regulatory bodies need to report large sums to the Financial Transactions and Reports Analysis Centre. There is also a high staff turnover at casinos, which leads to difficulty in spotting suspicious or high-risk players. Casinos by nature are also revenue driven rather than enforcement driven, the report findings conclude.

Language was another barrier as the report found that casino employees in high-stakes rooms spoke mainly Cantonese or Mandarin, while training on money laundering by BCLC, which manages the gaming industry, is presented in English.  

Casinos only report large cash transactions after they have accepted the cash as they are required to do. “The GPEB should consider implementing a policy requirement that service providers (casinos) refuse unsourced cash deposits exceeding an established threshold and time period, until the source of the cash can be determined and validated,” the report said.

It also wanted GPEB to look at alternatives for casinos accepting cash.

While the BCLC follows federal requirements for assessing risky patrons who might be gambling with proceeds of crime or laundering money, the report said the process could be enhanced from both a risk-management and revenue-generation perspective.

“This may include confirmation of or verification of key customer data including source of wealth, source of cash and occupation by the service provider (casino) or BCLC for higher risk patrons,” the report said.

“The BCLC should consider whether its risk assessment process adequately reflects current thinking around money laundering and terrorist financing risk,” it said, adding that rather than drawing geographical areas where risk might exist, risk should be related to specific casinos.

The report says that the “Know Your Player” rule goes beyond simply when that individual frequents the casino. “It is about understanding the potential money laundering risk the patron poses to the facility and managing that risk accordingly,” it said.

The report looked at the BCLC’s two lists of individuals that required enhanced due diligence in terms of monitoring. The first list was comprised of the Top 100 players by dollar volume while the second list relates to known associates of a high-risk player who have been identified by law enforcement to be involved in the provision of large volumes of unsourced bulk cash to individuals that casinos deem as VIP or high-roller players. The lists have overlap, the report said, with 36 individuals on the second list appearing on the Top 100 list.

The 2016 report also pointed to VIP players using an “underground” banking system, especially Asian players who were not able to send money from China because of currency restrictions. Gamblers interviewed for the report said they were provided with a contact in Vancouver, either locally or prior to arriving in Vancouver. The contact person delivers the money locally.

“The funds are later repaid through cash holdings in China,” it said, with the result that the unsourced B.C. funds flowed into the casino system.

The report pointed out the need to evaluate the resourcing and function of existing investigative units. “Effective multi-agency units would promote the sharing of information and resources.”

German has been asked to assess money laundering activities in casinos and recommendations need to prevent it. He has also been asked to provide advice to Eby about connections between identified issues and other areas of the economy or provincial laws or policies that may require attention as a result of the information he gathers.

The review will be completed by the end of March 2018, but German has been asked to make recommendations as soon as issues are identified so remedial actions can be implemented rather than waiting for a final report.

German is the author of Proceeds of Crime and Money Laundering (Thomson Reuters), a textbook on anti-money laundering laws.

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Legal news roundup – Oct. 10, 2017


Canadian special-forces team hunts down and dismantles chemical weapons in Iraq, Globe and Mail

Trudeau heads to U.S. as trade tensions mount, Globe and Mail

Montreal university teaching students about consent with mandatory program, CTV News


United States

U.S. Supreme Court declines to review computer hacking cases, Reuters

Trump calls for tax law changes for NFL over protests: Twitter post, Reuters

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SCC rules residential school survivors’ testimony should be kept private

SCC rules residential school survivors’ testimony should be kept private
The Supreme Court of Canada ruled testimony of residential school survivors must be kept private.

The Supreme Court of Canada has found that records of the sensitive testimony of residential school survivors from settlement hearings will be kept confidential.

Last year, the federal government asked the Supreme Court of Canada to consider the issue after the Ontario Court of Appeal found the records should be destroyed after 15 years unless survivors chose to have them preserved. The testimony was submitted in the Independent Assessment Process, and included information on the claimants’ medical, psychiatric, financial and incarceration history.

The Supreme Court’s decision will mean records in more than 37,000 claims will not be made public without the claimants’ consent.

“[It’s] a great relief I am sure for those survivors of the residential school tragedy who were promised that their horrific stories of physical and sexual abuse would remain private and confidential and ultimately destroyed unless it was their wish and not Canada’s that they be preserved in an archive,” says Joseph Arvay, counsel to the IAP’s chief adjudicator.

The IAP was set up to provide a second level of compensation to residential schools survivors after a 2006 settlement of a number of class action lawsuits across the country.

In order to receive compensation through the IAP, claimants submitted their harrowing accounts of the abuse they suffered in residential schools under the assurance that the proceedings would be confidential.

The Supreme Court found that the IAP could not have achieved its purpose without these assurances of confidentiality, as it otherwise would not have been possible to secure the participation of either the claimants or the alleged perpetrators. And disclosing the information gathered in IAP hearings could be “devastating” to claimants, their families, witnesses, as well as whole communities, the court found.

“Claimants have said that they would not have participated in the IAP without assurances of complete confidentiality,” Justices Russell Brown and Malcolm Rowe wrote in the unanimous 7-0 judgment in Canada (Attorney General) v. Fontaine.

“This was confirmed by the director of Settlement Agreement Operations West, who stated that claimants were often reticent to disclose all allegations due to feelings of shame and embarrassment, and that those concerns were allayed by assurances of confidentiality.”

The dispute arose when the IAP’s chief adjudicator asked the Ontario Superior Court for direction on what should happen to the records once the process concludes. A judge found they should be destroyed after 15 years unless individual claimants objected to that, and the Court of Appeal upheld that decision.

In its appeal, the federal government argued that the judge did not have jurisdiction to order the documents’ destruction as they are under the government’s control pursuant to the Access to Information Act and the Privacy Act. The government also contented that the assurances of confidentiality “cannot justify the exclusion of documents from the statutory scheme” and that IAP adjudicators were wrong to promise “that the laws of Canada would not apply”.

The Supreme Court, however, found that the agreement that came out of the settlement — the Indian Residential Schools Settlement Agreement — had given the judge supervisory jurisdiction. 

The country’s top court also ruled that the lower court decisions struck the appropriate balance.

“The supervising judge’s order, as modified by the majority of the Court of Appeal, charts an appropriate course between the Scylla of potentially unwanted destruction and the Charybdis of potentially injurious preservation,” the decision said.

Lawyers representing some of the respondents say the case was about ensuring that survivors retained control of sensitive testimony given in a private setting rather than the destruction of historical documents. It was important that it be confirmed that the survivors are the only ones with the right to decide whether their testimony is disclosed, says Hugo Prud’homme, who was counsel for Inuit Representatives.

The Supreme Court recognized that the order might be inconsistent with the wishes of claimants who have died and who will not have the choice of whether to preserve their own records. But the court found that a “perfect outcome” in the circumstances was “simply not possible.”

“In our view, however, the destruction of records that some claimants would have preferred to have preserved works a lesser injustice than the disclosure of records that most expected never to be shared,” the decision said.

Moira Dillon, who was the Ottawa agent for counsel representing the Assembly of First Nations, independent counsel and Inuit Representatives, says the decision was reasonable and consistent with the expectations of the residential school survivors who had been assured the process would be confidential.

“I think today’s decision reaches a fair balance between the need for confidentiality and the interests of the Crown in preserving these records, while at the same time ensuring that individual survivors have a role in deciding how the record of their personal stories will be treated,” says Dillon, a lawyer with Supreme Law Group.

“A settlement process of this nature would be completely ineffective if abuse victims were unable to rely on assurances of confidentiality. It’s a question of trust.”

The Department of Justice referred questions about the Supreme Court’s decision to the Indigenous and Northern Affairs Canada, which did not provide comment before deadline.

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