Administrative Law

Refugees and the Federal Government According to Professor Morton

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

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

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

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)

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?

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

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.

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

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

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

Ontario Court of Appeal Upholds Province’s “Stunt Driving” Law

Questions about the constitutionality of the amended Highway Traffic Act* broke out last year when a judge of the Ontario Superior Court ruled the “stunt driving” provision unconstitutional. It appears that the legal controversy over this provision has finally been resolved: it’s constitutional, for now.

The provision under contest is reproduced below:

No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

The regulation defines “stunt” as “driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.”

Accordingly, drivers who exceed the speed limit by 50 km/h or more are subjected to fine or imprisonment or both, while drivers who exceed the speed limit by 49 km/h or less are subjected to a fine and the suspension of their driver’s licence.

The Court of Appeal upheld the provision addressed in its decision R. v. Raham,^ released earlier this month. Because of the potential punishment of imprisonment under the provision, its constitutionality depends on whether the defence of due diligence is available to the accused. If not, the provision would be unconstitutional because it violates the principles of fundamental justice as the legislature cannot imprison without fault.

Although the offence of speeding has been long established by the courts as one of absolute liability, meaning the intent to harm (mens reas) is not required, in the present case the Court of Appeal, having considered the potential punishment of imprisonment, declared that the defence of due diligence is available under the provision. Therefore, the law is constitutional.

*R.S.O. 1990 c. H8, s. 172

^[2010] ONCA 206

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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Your Rights in Your Language: Multi-languge Legal Information to Aid New Comers

As a communityThe Community Legal Education Ontario announced that legal information on eight high-need topics have now been made available in languages other than English and French. They include Arabic, Chinese, Somali, Spanish, Tamil, and Urdu.

The topics include as follows:

CLEO has published the information as an effort in educating the community. Accordingly, it has granted liberal licensing rights to community organizations. People may make as many copy as needed.

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