Allen / McMillan argues at Supreme Court of Canada

On November 6, 2019, AMLC’s Wes McMillan and Greg Allen appeared in the Supreme Court of Canada to make submissions on behalf of the Community Legal Assistance Society of British Columbia (“CLAS”) who was granted leave to intervene in the case Heller v. Uber.

The appeal raises important issues concerning arbitration, particularly in the context of employment-like relationships in the modern “gig” economy. 

The online contract to which Uber drivers are required to click “I Agree” provided that any disputes between a driver and Uber must be arbitrated under the law of The Netherlands.  Mr. Heller, an Uber driver, worked exclusively in Ontario.   In order to commence an arbitration, Mr. Heller would be required to pay upfront administrative costs of $14,500 USD.

Mr. Heller commenced a class action proceeding in Ontario for an order that he, and other Uber drivers, are employees under the Ontario Employment Standards Act and for payment of amounts he would have been owed as an employee.

Uber brought an application staying the proceeding in favour of arbitration.  Uber was successful at first instance, but that decision was overturned on appeal to the Ontario Court of Appeal.  Uber appealed that decision to the Supreme Court of Canada.

One of the issues in the case is whether the mandatory arbitration provision is unconscionable and therefore invalid.

CLAS argued that the four-part test for unconscionability needs to be reformulated to reflect modern commercial and employment reality.  The four-part test requires a finding that the weaker party seeking to strike the clause as unconscionable show that the stronger party knowing took advantage of the weaker party’s disability or unique vulnerability.

CLAS argued that this requirement ignores the modern reality that online contracts are agreed to as a matter of course for a number of legitimate reasons that have nothing to do with a disability or vulnerability.  Furthermore, in this context, from the perspective of the stronger party the weaker party is nothing more than an IP address.  Thus, one could never marshal evidence to who the larger party knowingly took advantage of the weaker party.

CLAS argued that the test for unconscionability should return to its historic roots; the weaker party need only show a significant inequality of bargaining power and a grossly improvident bargain. 

AMLC is proud to undertake advocacy work on behalf of organizations like CLAS and is eagerly awaiting the Supreme Court of Canada’s decision on this important issue. We will provide a further update on this case when the decision is released.

Greg Allen and Jorie Les win 14 day trial

On October 2, 2019, the British Columbia Supreme Court released its decision in Pink et al v 0957765 BC Ltd et al. This case was heard over a 14 day period in April and May 2019, with Greg Allen and Jorie Les representing the defendants.

In the case, Allen / McMillan’s client owned a piece of real estate in downtown Vancouver which was subject to a purchase agreement in the amount of $39 million. The transaction did not close, but the real estate agents on the transaction nevertheless sought payment of $1.3 million in commission. The trial judge held that the real estate agents themselves contributed to the collapse of the transaction, and rejected the real estate agents’ claim to a commission in its entirety. Costs of the trial were awarded to Allen / McMillan’s client.

Read the decision of the trial judge here: https://www.bccourts.ca/jdb-txt/sc/19/16/2019BCSC1684.htm

Allen / McMillan's submissions at the Supreme Court of Canada

On March 20, 2019, AMLC’s Greg Allen and Jorie Les appeared in the Supreme Court of Canada to make submissions on behalf of the Ending Violence Association of Canada (“EVA Canada”) who was granted leave to intervene in the appeal of a criminal case, R. v. R.V.

The appeal arose from an Ontario Court of Appeal decision that addressed the application of section 276 of the Criminal Code, often referred to as the “rape shield provision.” This section of the Criminal Code places certain limitations on an accused’s ability to adduce evidence regarding the complainant’s sexual history. The provision was enacted to combat myths and stereotypes that are often invoked in an effort to discredit sexual assault survivors.

Generally, the role of intervenors is to assist the Court by providing important and relevant contextual information which may not be raised by the parties to an appeal. Intervenors help the Court ensure that their decisions take into consideration relevant societal concerns, in addition to the applicable legal issues.

In this case, EVA Canada relied on its decades of experience providing various services to survivors of sexual assault to offer the Supreme Court of Canada information regarding the impacts that cross-examination on sexual history and other processes within the criminal justice system have on survivors of sexual assault. 

In its factum and submissions at the hearing, EVA Canada urged the Court to apply section 276 in a manner that prioritizes the personal dignity, privacy and safety of sexual assault survivors.  

Although progress has been made in recognizing the rights of survivors in the prosecution of sexual assaults, myths and stereotypes about sexual assault survivors are still prevalent today. EVA Canada is hopeful that its submissions in this case will serve to further protect the rights of survivors going forward.

AMLC is proud to undertake advocacy work on behalf of organizations like EVA Canada and is eagerly awaiting the Supreme Court of Canada’s decision on this important issue. We will provide a further update on this case when the decision is released.

Off to Ottawa!

On March 20, 2019, the Supreme Court of Canada will hear an appeal in R v RV, a case involving section 276 of the Criminal Code. Section 276 sets out the circumstances in which it is appropriate to cross-examine a sexual assault survivor at trial on his or her sexual history.  

We are proud to be representing the Ending Violence Association of Canada (“EVA Canada”), which is intervening in the appeal.  EVA Canada is a leading national voice against gender-based violence and a consistent advocate for sexual assault survivors.

At the hearing of the appeal, we will be advocating on behalf of EVA Canada for an approach to section 276 which prioritizes the personal dignity, integrity, safety and privacy of sexual assault survivors and does not re-victimize survivors who have reported their assaults and sought justice. 

For more information on Allen / McMillan’s appellate advocacy and advisory practice, call us at (604) 569-2652 or email info@amlc.ca.  

Allen / McMillan at the Supreme Court of Canada – R v Boudreault

On December 14, the Supreme Court of Canada released R v Boudreault, a landmark decision in the area of mandatory victim surcharges. Victim surcharges are fines imposed on offenders which are used to fund victim services. The Criminal Code does not permit a judge any discretion to waive or reduce the surcharge, and surcharges are imposed on each count, often resulting in offenders receiving thousands of dollars in surcharges. Offenders who cannot pay are at risk of further incarceration. 

In R v Boudreault, Greg Allen appeared as counsel on behalf of the British Columbia Civil Liberties Association, and argued that mandatory victim surcharges are unconstitutional as a violation of the protection against cruel and unusual punishment. The Supreme Court of Canada held that mandatory victim surcharges are, in fact, unconstitutional on this basis, and cannot be justified as a reasonable limitation of this right. As a result, the Court declared that the section of the Criminal Code requiring judges to impose victim surcharges on offenders is invalid.

For more information on Allen / McMillan’s appellate advocacy and advisory practice, call us at (604) 569-2652 or email info@amlc.ca.

Wes McMillan Successfully Protects Real Estate Licensee

Wes was recently successful in protecting a real estate licensee from a procedurally unfair attempt by the Superintendent of Real Estate to force the licensee into a discipline hearing after the Real Estate Council had closed a complaint against the licensee without a hearing and without disciplining the licensee.

In early 2018, the Superintendent of Real Estate had made news when he directed the Real Estate Council to issue a notice of discipline hearing to Wes’ client and then sued the Real Estate Council for refusing to issue the notice of discipline hearing after it had closed the complaint file.

The Superintendent purported to exercise new powers that were provided to him in a recent regulatory overhaul of the real estate industry. The Real Estate Council refused to follow the Superintendent’s directive on the basis that it had already decided the matter (in legal parlance, it was functus officio).

The Superintendent sued Real Estate Council without bothering to make the licensee a party to the lawsuit. Wes ensured the licensee was made a party to the proceeding and had an opportunity to put his own position before the court.

The court rejected the Real Estate Council’s position that it was functus officio. However, the court agreed with Wes that the Superintendent’s process (or lack thereof) was flawed and unfair and, as a result, refused to order that the Real Estate Council follow the Superintendent’s directive.

This case is important in that it ensures the Superintendent is held in check in the exercise of his new powers and reminds the Superintendent and others with similar powers that regulatory authority must be exercised in a manner that is fair to those who are regulated.

Superintendent of Real Estate v. Real Estate Council of B.C., 2018 BCSC 1500