Administrative Law

Refugees and the Federal Government According to Professor Morton

Posted in: "All, Administrative Law by Admin | No Comments Sunday, August 15, 2010

Recently a freighter loaded with Tamil refugees from Sri Lanka docked on the B.C. coast and stirred up controversies across the nation. More ships are on the way.

Whether the claimants will be granted refugee status will be determined by our established system. I hope the claimants will be dealt with fairly. Nonetheless, many fear that the arrival of the freighter will open a floodgate to refugee claimants. What can the federal government do?

According to Prof. James Morton, surprisingly little.

In Prof. Morton’s blog “Refugee Claimants — As a Legal Matter, What Can the Federal Government Do?” Prof. Morton explained that Canada is obliged under international treaties to accept all refugee claimants. Upon the claimants’ arrival, the Charter is triggered and the claimants may not be detained without a hearing unless they are a danger to the public or unlikely to attend an immigration hearing.

(Other countries such as the U.S. and Australia have adopted considerably different approaches to the rights of refugee claimants. For example, in Australia the claimants are detained at an off-shore facility before they are processed.)

Therefore, under the international treaties and our Constitution, there is very little that the federal government can do on this matter. According to Prof. Morton:

Boats carrying refugees could be seized and kept as Crown property — but as such boats are usually close to scrap metal and the profits from smuggling are so huge that such seizure will do little — the Sun Sea, for example, was worth perhaps one million dollars while the profits from the human smuggling were ten to twenty times that. The crew of the boats could be subject to criminal charges — but if the crew claim to be refugees themselves the criminality would not apply. If someone has a right to seek status, they cannot be held criminally responsible for seeking that right. Crews made up of refugee claimants are hardly a new development — look to Cuban refugees of the last fifty years.

Another option is for the federal government to legislate laws invoking the “notwithstanding clause.” However, there is great doubt whether our constitutional tradition would allow such a piece of legislation, not to mention the potential political fallout.

James Morton, B.Sc. (Western), LLB (Osgoode), LLM (Leicester), is a partner at Steinberg Morton Hope and Israel LLP.  Mr. Morton practises in litigation with a focus on civil litigation matters.  He is certified as a specialist in civil litigation and has practised and lectured in the litigation area exclusively since 1990. Visit his blog at Morton’s Musings at jmortonmusings.blogspot.com.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.



Ontario’s controversial “Eco Fee” Scrapped

Posted in: "All, Administrative Law by Admin | No Comments Wednesday, July 21, 2010

A week after my blog on the “eco fee” in Ontario (see “Ontario’s ‘Eco Fee’ Woes,” July 13, 2010), the Ontario government announced yesterday  that the “eco fees” are coming to a halt.

The day before the Environment Minister’s announcement, retail giant Canadian Tire declared that it would stop charging the eco fees on some 8,700 items, saying the structure was too confusing.

The Minister said that the province is halting the program, and will take three months to re-evaluate it. It’s unclear whether consumers will end up paying the eco fees under another name down the road.

The Minister suggested that the government expected producers to bear the responsibility of diverting hazardous materials. For the moment, Ontario taxpayers will foot the $5-million bill to keep the program running.

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Ontario’s “Eco Fee” Woes

Posted in: "All, Administrative Law, Business Development by Admin | No Comments Tuesday, July 13, 2010

July 1, 2010, marked the introduction of the Harmonized Sales Tax in Ontario. At the same time, Ontario consumers were slapped with another, less-publicized, charge, the new “eco fee.” Diligent consumers noticed an additional charge on their bill after purchasing certain goods, including batteries, soap, and shower cleaners.

The Ontario government insists that the new “eco fee” is neither a tax nor a mandatory charge. The additional amount appearing on the bill actually comes from the fees charged by Stewardship Ontario, an industry organization mandated by the government and regulated under the Waste Diversion Act, 2002* to safely recycle hazardous materials and divert waste from the landfill.

Under the law, Stewardship Ontario is entitled to charge fees to cover the cost of developing, implementing, and operating the waste diversion program and no more. In fact, Stewardship Ontario published the fees on their website <http://www.stewardshipontario.ca/sites/default/files/StewardFees.pdf>.

For example, Stewardship Ontario charges $0.06 to recycle or dispose of an aerosol can, while one litre of insect repellent costs $0.23 to recycle.

However, some retailers are evidently overcharging consumers. According to the Toronto Star, a consumer paid some $4.03 for her $10.00 one-litre drive way cleaner. Surely the cost of recycling or disposing can’t account over 40% of the product retail price?

After checking her receipt, the shopper went back to the store and asked about the fee. She was rewarded with an apology and a refund.

Although the eco fee is not calculated as a percentage of the retail price, nor there is a standard fee for specific products, amidst the confusion evidently some retailers are overcharging their customers. CTV reported that at least one retailer charged $0.13 on a bottle of supposedly environmental friendly cleaner, greatly exceeding what Stewardship Ontario charges the retailer.

There’s definitely a lack of clarity in the program.

Today the provincial government sent out a stern message to Stewardship Ontario. Environment Minister John Gerretsen expressed his “serious concerns” with the overcharging of fees and the availability of accurate information related to the program. The minister also threatened to eliminate Stewardship Ontario’s ability to charge eco fees all together.

Let’s hope that further confusion will be limited during this transition period.

If you have questions regarding the eco fees payable on certain products, inquire with your retailers or contact Stewardship Ontario at 416-323-0101 or toll-free at 1-888-288-3360 during business hours.

*S.O. 2002, c. 6

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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Legal Aid Ontario Reduces Coverage on Civil Matters

Posted in: "All, Administrative Law, Legal Aid Ontario by Admin | No Comments Tuesday, June 1, 2010

Legal Aid Ontario is in the process of implementing structural changes. Recently it has reduced certificate coverage on civil litigation matters.

Cases that are no longer covered by Legal Aid certificates include but are not limited to the following:

  • wrongful dismissal matters
  • civil fraud
  • mortgage or real estate actions
  • personal injury matters
  • medical malpractice matters
  • defamation claims against lawyers
  • claims against Legal Aid Ontario

Notably, this change doesn’t affect administrative law matters, including Ontario Disability Support Program (ODSP) and Ontario Works (OW) appeals before the Social Benefits Tribunal and tenant applications before the Landlord and Tenant Board.

For more information, please contact Legal Aid Ontario directly at 1-800-668-8258 toll-free (or 416-979-1446 in Toronto) to get legal aid help in over 120 languages.

PSWLaw gladly accepts Legal Aid Ontario certificates on family law and administrative law matters.

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Can’t Afford Your Medication? The Ontario Trillium Drug Program May Be Able to Help

Posted in: "All, Administrative Law by Admin | No Comments Friday, May 21, 2010

Can’t afford your medication? The Trillium Drug Program (TDP) may be able to help.

The TDP is intended for Ontario residents with OHIP coverage who have high prescription drug costs. It provides coverage for prescription drug products listed on the Formulary. Drugs not listed on the Formulary may be covered on a case-by-case basis.

To be eligible for the TDP, you must meet the following criteria:

  1. You are a resident of Ontario with a valid health card;
  2. You are not eligible for drug coverage under the Ontario Drug Benefit Program tied in with other social assistance benefits, such as the Ontario Disability Support Program or the Ontario Works;
  3. You don’t have private insurance coverage or if your private insurance doesn’t cover 100% of your prescription drug costs.

The TDP isn’t a free-for-all program: a “deductible” (see below) applies in proportion to your income. The program runs from August 1 to July 31 of the following year. Before you will receive coverage, your household must pay for a certain amount of your prescription drug purchases, otherwise known as the “deductible.” The deductible is paid in quarterly and is calculated based on net household income and household size.

For more information, contact the TDP at the following address:


P.O. Box 337, Station D
Etobicoke, Ontario
M9A 4X3
Tel : 416-642-3038
Fax : 416-642-3034
Toll-Free : 1-800-575-5386
E-mail : trillium@resolve.com

Alternatively, visit their website at: www.health.gov.on.ca/english/public/pub/drugs/trillium.html

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Withdrawing Your Support Order from the Family Responsibility Office (FRO)

Posted in: "All, Administrative Law, Family Law by Admin | No Comments Friday, May 7, 2010

Orders issued by the family law courts in Ontario typically come with mandatory provision for the Family Responsibility Office (FRO) to enforce the support payments. The enforcement clause looks like this:

Support Deduction Order to Issue. Unless this order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to the recipient. Where sufficient deductions are not being made by support deduction order, payment may be remitted to the Director, Family Responsibility Office.

In some cases. the support payor and the recipient prefer to arrange for support payments to take place privately without the FRO’s involvement. This can be done by withdrawing the support order from the FRO.

  • If the support payments are up-to-date and there are no amounts owing in arrears, both parties must consent in writing to withdraw from the program by completing a Notice of Withdrawal. Once the Director is informed of the withdrawal, the FRO will stop all enforcement and close the file.
  • If there are amounts owing in arrears, the support recipient may withdraw from the program unilaterally by completing a Notice by Support Recipient of Unilateral Withdrawal. Once the Director receives the completed form, the FRO will stop all enforcement on the case.
  • If the support order is assigned to Ontario Works or the Ontario Disability Support Program, the appropriate social services provider must consent before the FRO can allow the parties’ withdrawal.

Re-registering a case

If the support payor and the support recipient decide to re-register a case with the FRO, a administrative fee will be charged to both parties. Either party may request to re-register the case.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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What If They Don’t Show Up at the Hearing?

Posted in: "All, Administrative Law, Family Law by Admin | No Comments Tuesday, May 4, 2010

I often encounter this question during consultations: “What if they don’t show up at the hearing?”

The answer depends on the nature of the proceeding.

In civil and family law proceedings, the matters are before the court. The court, bound by the fundamental principles of justice, must determine whether procedural fairness is observed.

If the court is of the opinion that the absent party has received proper notice and there’s no legitimate excuse for their absence, the court may instruct the other party to proceed on an unopposed basis. They then must convince the court that on the balance of probability, the present party is entitled to the relief sought.

On the other hand, if the court is not convinced that the absent party has received proper notice, or believes they have legitimate excuses, the court may decide to adjourn the proceeding to a future date. The attending party, however, may be entitled to costs for their attendance.

However, rules are quite different in administrative law proceedings, such as matters before the Landlord and Tenant Board and the Social Benefits Tribunal.

At the Landlord and Tenant Board, if one of the parties doesn’t attend, the matter may proceed in that party’s absence. If the applicant party doesn’t show, the matter may be dismissed outright. If the responding party doesn’t attend, the Board will inquire whether proper notice has been given to them.

Only after the Board is satisfied that procedural fairness has been observed will the Member will proceed to receive evidence from the attending party. It’s important to note that a decision in favour of the attending party isn’t guaranteed. If the Member isn’t satisfied with the evidence presented, the case may be nonetheless dismissed. I’ve seen this happen on several occasions.

At the Social Benefits Tribunal, the parties may rely on written submission rather than presenting in person. In fact, the Director of the Ontario Disability Support Program (ODSP) does so on a regular basis. The Appellant nonetheless has to prove to the Tribunal that the Director’s decision was wrong. Without compelling evidence, the Member of the Social Benefits Tribunal may nonetheless side with the Director and  dismiss the appeal. In other words, if the Appellant doesn’t attend the hearing, the appeal will likely be dismissed.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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A Brief Note on Participating in a Telephone Hearing

Posted in: "All, "Brief Note" Series, Administrative Law by Admin | No Comments Tuesday, April 20, 2010

In administrative law, hearing before most administrative tribunals (such as the Landlord and Tenant Board, the Social Benefits Tribunal, and the Human Rights Tribunal, just to name a few,) can take place by telephone if requested by one of the parties. The tribunals generally are willing to grant such a request if a party has a disability that requires accommodation.

Telephone hearings proceed as regular hearings do. After the preliminary issues are dealt with, the witnesses are sworn in to give evidence. After the witness has given evidence, the opposing party has the opportunity to cross-examine the witness to test the accuracy of the testimony given. When the witnesses finish testifying, the parties make submissions to the tribunal before a decision is rendered.

I generally advise against requesting a telephone hearing unless it’s absolutely necessary. For example, it may be reasonable to request a telephone hearing if the disabled person is confined to a bed, while an in-person hearing is preferred if the party in question is able to walk with a cane.

From a lawyer’s perspective, telephone hearings have a few shortcomings.

First and foremost, the adjudicator cannot observe the demeanor of the witnesses. Therefore, credibility is difficult to establish.

Second, there are practical difficulties in presenting evidence. All evidence, be it documents or photographs, would have to be coordinated by the parties in advance. The question of admissibility of certain evidence will likely arise.

Third, in complicated matters, it may be difficult to keep track of the proceeding while excluding witnesses from hearing other witnesses’ testimony.

Fourth, participants calling from their cellular phones create static noise, which can greatly frustrate the progress of the hearings. Calls from cellular phones can even drop unexpectedly, causing undue delays of the hearing.

Therefore, if you can make it to the tribunal, it’s best to participate in person.

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Chilling LGBT Elder Abuse: Greene v. County of Sonoma et al.

Posted in: "All, Administrative Law, Family Law by Admin | No Comments Sunday, April 18, 2010

When I was in law school, I worked at an estate litigation firm that also took on elder law files relating to capacity issues. I came across lawsuits against nursing homes, live-in caretakers, hospitals, and psychiatric institutions. It’s not unheard of for the (usually wealthy) elderly to be manipulated by individuals who were supposed to take care of them. However, I’ve never come across a case as appalling as this one.

As a human being, I am outraged by the deplorableconducts of the County of Sonoma, California.

As a lawyer, I feel ashamed that a constitutional democracy has allowed this misfortune to take place at all.

Thank you, court-appointed attorney Anne Dennis of Santa Rosa for speaking out on behalf of the elderly men who couldn’t themselves!

Via nclrights.org [National Center for Lesbian Rights]

Clay and his partner of 20 years, Harold, lived in California. Clay and Harold made diligent efforts to protect their legal rights, and had their legal paperwork in place—wills, powers of attorney, and medical directives, all naming each other. Harold was 88 years old and in frail medical condition, but still living at home with Clay, 77, who was in good health.

One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold’s care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital. The county then ultimately went one step further by isolating the couple from each other, placing the men in separate nursing homes.

Ignoring Clay’s significant role in Harold’s life, the county continued to treat Harold like he had no family and went to court seeking the power to make financial decisions on his behalf. Outrageously, the county represented to the judge that Clay was merely Harold’s “roommate.” The court denied their efforts, but did grant the county limited access to one of Harold’s bank accounts to pay for his care.

What happened next is even more chilling: without authority, without determining the value of Clay and Harold’s possessions accumulated over the course of their 20 years together or making any effort to determine which items belonged to whom, the county took everything Harold and Clay owned and auctioned off all of their belongings. Adding further insult to grave injury, the county removed Clay from his home and confined him to a nursing home against his will. The county workers then terminated Clay and Harold’s lease and surrendered the home they had shared for many years to the landlord.

Three months after he was hospitalized, Harold died in the nursing home. Because of the county’s actions, Clay missed the final months he should have had with his partner of 20 years. Compounding this tragedy, Clay has literally nothing left of the home he had shared with Harold or the life he was living up until the day that Harold fell, because he has been unable to recover any of his property. The only memento Clay has is a photo album that Harold painstakingly put together for Clay during the last three months of his life.

With the help of a dedicated and persistent court-appointed attorney, Anne Dennis of Santa Rosa, Clay was finally released from the nursing home. Ms. Dennis, along with Stephen O’Neill and Margaret Flynn of Tarkington, O’Neill, Barrack & Chong, now represent Clay in a lawsuit against the county, the auction company, and the nursing home, with technical assistance from NCLR. A trial date has been set for July 16, 2010 in the Superior Court for the County of Sonoma.

May 1, 2010 is NCLR’s 33rd Anniversary. Celebrate with NCLR!

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Toronto Debates Restriction on Store Hours

Posted in: "All, Administrative Law, Business Development by Admin | No Comments Wednesday, April 14, 2010

When the City of Toronto Act* came into force in 2006, the Province relinquished the power to restrict store operating hours in the city on statutory holidays. Newly empowered in this area, city council at the time deferred to the status quo, allowing only a handful of disctricts to open on the holidays, namely the Eaton Centre, the Yonge Street strip, Harbourfront, and the Distillery District. Two additional malls, Vaughan Mills and Sherway Gardens, were later granted exemption.

However, it appears that the restrictions have not been enforced against business operators outside the exempted districts. Earlier this week, the Toronto Star reported that non-enforcement of the rules has resulted in confusion among store owners.^ The malls following the rules have lost business to exempted operators as well as to those who simply have not complied.

The current rules require mandatory closure on statutory holidays including New Year’s Day, Family Day, Good Friday, Easter Sunday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day and Christmas Day. Three out of the dates, Good Friday, Easter Sunday, and Christmas Day, have Christian roots, while the rest of the holidays are civil in nature.

In the 1980s, mandatory closure on Christian holidays was ruled unconstitutional.** After the legislature removed the religious references in the mandatory closure rules, the court found civil purposes and essentially approved these rules.

Given Toronto’s diversity in population, “one size fits all” rules have their shortcomings. The popular opinion seems to be that the operating hours of stores should be decided by the individual owners, not the government.

It remains to be seen whether the debate will gather enough momentum to result in real changes.

*S.O. 2006, c. 11, Sch. A

^Paul Monoley, “Let Us Open on Holidays” Toronto Star (April 13, 2010)

**See e.g. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295

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