Significant Cases
Access to abortion services and the ‘no protest’ zone
Disclosure of Documents in civil cases
Right to Safe and Unimpeded Access to Abortion Services
Sexual Harassment Complaints
2006
Watson v. R; Spratt v. R
Access to abortion services and the ‘no protest’ zone
This case is being heard at the BC Court of Appeal in late April/May. At issue is the Abortion Services Act requirement that there be no protesting within a certain area surrounding abortion clinics. The Court of Appeal has allowed the appeal on the basis that the issue is whether the limitations on freedom of expression are acceptable under Section 1 of the Charter.
West Coast LEAF’s role: West Coast LEAF is managing this intervention. We are intervening as part of a coalition. The disbursement costs are being shared by coalition members. We expect this case to put the Lewis/Demers issues to rest regarding the issue.
Nitya Iyer of Heenan Blaikie is counsel. The Hearing of the applications to intervene was heard on Thursday, April 27th. Madame Justice.
2003
Smith v Funk; Amos v. Virk
Disclosure of Documents in civil cases
West Coast LEAF applied to intervene in this case in coalition with the Trial Lawyers Association of BC and the BC Coalition of People with Disabilities. West Coast LEAF and the BCCPD were granted leave to intervene, but the Trial Lawyers Association was not. The Appeal from the BC Supreme Court addressed the disclosure of documents in civil cases.
ICBC represented the defendants (Funk and Virk) and were seeking direct production of the plaintiff's records from a third party. In Smith, ICBC wants copies of all the records of Smith’s history of receiving financial assistance from the Ministry of Human Resources. In Amos, ICBC sought medical records from third parties. In both cases the judges made orders allowing the Plaintiffs to remove embarrassing or irrelevant material from them before disclosing the documents to ICBC. ICBC appealed those decisions to the Court of Appeal.
This case provided an important opportunity to address the meaning of relevance and privacy in the disclosure of documents from third parties. The case is of particular interest because of the impact that the disclosure application has on women, particularly poor and/or disabled women who have disproportionate interactions with the Ministry of Social Services, other government officials and social service agencies. If ICBC won, poor women could be forced to disclose all kinds of embarrassing and irrelevant information to ICBC and other institutional and individual defendants in civil cases.
The issue has elements of intersectionality - gender and poverty and disability. It is also of particular relevance to women's equality and access to justice for a variety of reasons, including the fear that an ICBC adjuster can read about a woman’s therapeutic abortion or sexual assault history, which may in turn prevent women from seeking damages in personal injury matters. It is essentially the civil side of L.C. v. Mills, [1999] 3 S.C.R. 668.
Counsel for the case was Susan Griffin of Fraser Milne and Casgrain.
West Coast LEAF’s role: West Coast LEAF identified, managed and covered some of the costs of this case (The Trial Lawyer’s Association provided financial support as well). A representative from the National Legal Committee was on the subcommittee, but it was fully advanced through West Coast LEAF and her coalition partners.
R. v. Demers
Right to Safe and Unimpeded Access to Abortion Services
West Coast LEAF intervened in this case, as a member of a coalition, and argued that freedom of expression should be contained in order to guarantee the right to unimpeded access to abortion services. LEAF also argued that the Court should decline to decide whether a fetus has the right to life under Section 7 of the Charter, as argued by Demers, as the Act does not deal with the legality of abortion. The Court ruled that a fetus is not a legal person, and does not have a right to life under Section 7 of the Charter. Given that this argument was Demers’ focus, the Court found it unnecessary to address the freedom of speech arguments.
West Coast LEAF’s role: West Coast LEAF managed and supported this case, working directly with coalition partners and covering all disbursement costs involved.
Nitya Iyer and Andrea Zwack of Heenan Blaikie acted as counsel for the Coalition.
2001
Blencoe v. Andrea Willis and The British Columbia Human Rights Commission et al.
Sexual Harassment Complaints
In Blencoe v. Andrea Willis and The British Columbia Human Rights Commission et al., the Court ordered that the sexual harassment complaints against former BC Cabinet Minister Robin Blencoe must proceed. The British Columbia Court of Appeal previously stayed the complaints, agreeing that the Tribunal had lost jurisdiction to hear the complaints.
In a unanimous decision, the SCC held that the stay of the proceedings was improper and the complaints should proceed. Five justices, led by Michel Bastarache, considered and analyzed the role of Section 7 of the Charter. They concluded that neither Blencoe’s right to “life” nor “security of the person” was affected by the delay that had occurred. The remaining four justices dealt with the case based on administrative law principles.
LEAF intervened in the case because of its importance for the rights of women, who make up 95 percent of sexual harassment victims. It argued that access to the human rights process for sexual harassment victims is essential to the right of women to equal treatment in employment and to be free from sexual harassment. As for the delay, it argued that the Court must also consider the equality and security rights of complainants.
“Notwithstanding that the Court approached this case in different ways, this is a positive decision,” said LEAF Counsel Jennifer Conkie. “The partial dissent acknowledges that complainants have a serious interest in the expeditious processing of human rights complaints and must be considered when fashioning a remedy. In this way, the dissent, as well as the majority, addresses the imbalance at the Court of Appeal, which ignored the complainants and allowed the respondent’s interests to trump the process.”
“It is also significant that the Court awarded costs against the Human Rights Commission to both the complainants and the respondent. This shows how seriously the Court viewed the Commission’s handling of this matter,” continued Ms. Conkie.
“We do regret that the Court did not explicitly address the context of sexual harassment, including its impact on women,” said Ms. Mathen.
“Nonetheless, we are encouraged that the majority declined to equate sexual harassment in the human rights context with sexual assault in the criminal context. This could have seriously hampered the ability of human rights commissions to process these complaints. Fortunately, the Court recognized and distinguished the important differences between each system.”
West Coast LEAF’s role: West Coast LEAF managed this intervention including covering costs, facilitating the subcommittee and providing admin and staff support.
