The Contracts Nobody Reads

Devouring Phone Contract. Illustration: Valérie DesrochersNobody reads those “end user license agreements” that pop up on your phone or computer, right? We’ve all seen probably thousands of these things. We all just click “Agree”. Who has the time?

So if nobody reads them, do they matter? And if you do read them, what should you know?

Peter Kissick, the course designer for Law 204/704, Corporate Law, dropped by to answer those questions and more. He knows contracts, and we get into the details of all the documents nobody actually reads.

 

Transcript:

00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd, and I’ve never read one of those end-user license agreements. Who has? We’ve all seen probably thousands of these things, we all just click agree. Who’s got the time? So if nobody reads them, do they matter? And if you do read them, what should you know? Peter Kissick, the course designer for Law 204/704: Corporate Law, dropped by to answer these questions and more. He knows contracts, and we get into the details of all the documents nobody actually reads. This podcast is brought to you by the Queen’s Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

00:53 MS: I have probably read thousands or seen, never read. I’ve probably seen but never read thousands of these license agreements in my time. I’ve been using computers for a long time so these little screens have been popping up, and I’ve been agreeing for a long time. Peter, what’s going on with these? [chuckle] What are they? What am I looking at?

01:11 Peter Kissick: We refer to these things as broadly standard form contracts or contracts of adhesion because they actually pre-date computer licenses. And you can think back to a simple agreement when you park a car and there’s a sign that says, “By parking your car, you agree that we, the owner of the parking lot, is not responsible for any damage to your car.” That’s one of the original standard form contracts or contracts of adhesion. And we see them a lot in the consumer context. For instance, your utilities bill, or if you sign up for a cell phone or something like that, there’ll always be, probably pre-printed, a standard form contract like this.

01:54 PK: But I think what you’re referring to is E-U-L-A or EULA, end-user license agreement, that we often see as a pop-up whenever we want to put, oh, I don’t know, say, you could do iOS or something like that or put some operating system onto our computer or a new app or something to that effect. And I’m assuming that’s what you’re talking about, and you probably agreed to them. As you say, you started off by saying you’ve read a thousand of them. I’m betting that you are like 99.9% of the rest of the world and you’ve never actually read one or you don’t read them as you go.

02:32 MS: Sometimes I’ve sort of scrolled through real quick and thought, “Hmm. That’s interesting,” but I haven’t… No, I’ve never actually… Until the other day, for this, I actually printed out and sat down and read one. They’re legal, like they have force in law.

02:44 PK: No… And in fact, I’ve often had, I’ve had students come to me and say, “Well, I click on it, it doesn’t mean anything, right?” Well, to which I answered, “Well, why did you click something that said, ‘I agree’ or ‘I accept’?” Ontario law, in fact, is not inconsistent with the law of the rest of the world that says, “Simply by clicking, ‘I agree,’ whether you read it or not, you are bound by those terms.” So the simple click of a, a mouse click on an icon or some sort of box on your computer screen is going to be synonymous with a signature.

03:20 MS: Right.

03:20 PK: So read it or not, you’re bound.

03:23 MS: And people have done some pretty hilarious things with the fact that people don’t read these.

03:28 PK: Yeah. It is one of those ironies, right? People don’t think they’re bound but they are. Probably many users of these, the people who create these license agreements or consumer contracts probably count on the fact [chuckle] that people don’t read them. But it’s created sort of an interesting sort of a cottage industry of strange and somewhat bizarre and hilarious examples of what has been buried in these agreements. There’s one example, PC Pitstop I think was the name of the company, that buried in its EULA a provision that said, “The first person to get back to us will receive a prize of a thousand dollars.” It was buried in the midst of all the terms, and it took them five months to actually give away the thousand dollars because nobody bothered to read it.

04:27 PK: There was another company, I believe it was an antivirus software company, that on April Fool’s Day changed their license agreement terms and again buried in the midst of all the verbiage was a provision that said, “By agreeing to this license you agree that we have a claim against your immortal soul.” 2500 people apparently signed up for that service and signed away their soul. Fortunately, they amended their agreement on April 2nd to take that away. Yes, it’s… Yes. I guess one of… And sort of a slightly different and somewhat humorous and very celebrated example of this was Van Halen’s performance contract. The rock band Van Halen had a provision in their contract that said or sort of a rider to their standard production contract when they are going to have a concert. It said that the promoter shall provide certain things in their dressing room, and they included a provision that said they shall have a bowl of M&Ms in their dressing room with the brown M&Ms taken out.

05:36 PK: You’d think that’s just the eccentricity and vanity of rock stars. Well, actually it had a true purpose. They said, “We wanna make sure that the promoter actually has read our standard form contract, because if they didn’t see that provision, maybe they didn’t read closely the provision that we need in terms of our setup requirements, stress on floors, lighting, that kind of thing, because that had happened before, where they had actually had a stage collapse on them, so they wanted to use their standard form agreement to catch promoters out.

06:09 MS: Right. So if they see brown M&Ms in the bowl, they know someone’s not paying attention and it’s time to check everything out.

06:14 PK: That’s correct.

06:15 MS: ‘Cause there’s pyrotechnics involved to the Van Halen show.

06:17 PK: Absolutely. Absolutely.

06:18 MS: You wanna be really careful.

06:19 PK: So I think when that did happen, I think David Lee Roth, the singer from Van Halen wrote that when that would happen, then they would do an extra long sound check and double check everything and then they would build a promoter for that.

06:34 MS: Right. Right. So in the realm of the more serious contract, not to say that the aforementioned aren’t serious, but I own an iPhone and so I know I have clicked off on dozens of these over time, so I actually printed out an iPhone end-user license agreement. I don’t have the URL in front of me, but we’ll post it on the blog, when this podcast goes by, it is about, I would say 20 pages long, if that. It’s surprisingly readable. Like I read through it and I thought, you know, this is not… After studying the law in some of these certificate programs, one of the things I noticed about legal writing is that, generally fake legal writing seems more legal than real legal writing a lot of the time. [chuckle] When I read these things, and I read judgments, I’m like, “Oh, this is actually pretty accessible stuff,” and it wasn’t an easy read. It’s long and it’s pretty dull, but it’s a readable contract. You can go through it and understand pretty much what’s going on in here.

07:34 PK: Fair enough, fair enough. I think so. I think if anybody took their time, they would have a pretty good sense of what was in there. It’s pretty dense. There’s a lot behind all of the words, let’s just say, it’s not as long as we might think, although I’m sure it’s longer than anyone who simply wants to get on with playing with their iPhone really wants to go through. But still it’s not as long as you might think, but as I say, what’s behind all of those words? There’s been a fair bit of industry practice plus common law decisions and the like behind what’s written in there.

08:09 MS: Right. And as you go through it, there’s kind of… I’ve noticed there’s themes. It sort of breaks down, and everything kind of… There’s a lot of broad categories, and this won’t be exhaustive, but the first one that leapt out at me is, there’s a number of clauses in here that basically seem to say, there’s stuff that you can do with this phone but we don’t want you to do it and we’re not responsible if you do. So this is kind of like a copyright violation, falls in the category of things that you could do with this phone but you shouldn’t do them. But they don’t have any… Basically, they’re just sort of saying this isn’t our fault. And is that to keep third-parties from kind of… If you use the iPhone to steal music, then Sony can’t come after Apple and say, this is your fault, ’cause they said it’s not their fault in this contract that I had to read.

08:57 PK: That’s very well put. Yeah, that’s exactly right. I think the standard form agreements, it’s a relationship between the individual consumer or user and Apple, in this particular case, but Apple is trying to use this contract to minimize their legal exposure, not only to the consumer but to anybody else out there, including other service providers, other IP providers, intellectual property providers, and governments. So please don’t do that illegal activity ’cause we really don’t want to have to have any criminal exposure, let alone civil exposure. Please don’t use this to steal somebody else’s copyright because we don’t want that person suing us indirectly or facilitating that. So it’s a method of protection, absolutely.

09:50 MS: So this is like a contract between me and Apple, but there’s also they’re considering a lot of third parties when they do all the writing to craft this. Another broad category…

10:00 PK: Actually, before you move on, Matt, if you don’t mind…

10:02 MS: No, absolutely.

10:04 PK: Odds are, Apple has considered who they’re most likely to be sued by, and it’s probably not you, Matt. It’s probably to be Google or somebody of that level of substance, who probably have damages sufficient that it would merit a lawsuit. So, as much as they’re worried about you, or they may not be worried about you, to be honest with you, they are probably more worried about these third parties.

10:32 MS: Right. So they’re protecting themselves from the third parties through the mechanism of the contract.

10:38 PK: Yes. That’s correct.

10:38 MS: Because I can’t do things that will take those third parties off, or if I do, it’s clearly not Apple that did it.

10:43 PK: That’s right.

10:43 MS: It’s me as an individual acting like a jury.

10:45 PK: That’s right. For the record, that is not absolutely fail safe. Because Google is not a party to this contract. If you go ahead and do something that would violate their intellectual property, there is nothing to stop Google from suing Apple. Now Apple could say, “Hey, that wasn’t our fault. Look at this agreement, we said it was Matt’s problem.” And that may or may not be successful, but nothing could stop Google from still suing Apple because they’re not a party to the agreement.

11:15 MS: Okay, the next broad category is something that I’m calling, this might happen, but you can’t blame us if it does.

11:23 PK: That’s right, and this is now, we’re worried about Matt you suing Apple. So if for some reason, you use your phone in a specific way, whether it’s something that was authorized by Apple or not, maybe it’s a completely legitimate use for your phone and you somehow suffer some liability. Still can’t sue us. So, Apple could have done nothing wrong, you can’t sue them. Apple could have done something entirely wrong in the creation of the phone, the creation of the software or installation of software on that, and you still can’t sue them. You’re gonna say, how was that fair? Apple has done something that’s caused me injury, why can’t I sue them? We’re gonna say, well, if we don’t have that provision in all of our agreements, what’s to stop Matt from launching a lawsuit over any small thing? And since we sell millions of iPhones throughout the world, think of all those potential lawsuits. So we’re simply gonna say, “Look, in order to keep the costs of this iPhone down, we’re gonna say no one can sue us if anything bad happens. And if we didn’t have that, and we were subject to that civil exposure, the cost of an iPhone would actually rise.”

12:35 MS: But I mean, they still are to an extent, like I can only imagine if iPhones started exploding and taking people’s heads off, then that clause wouldn’t protect them.

12:45 PK: That’s correct. There are limits on how far some of these provisions can go, these disclaimer clauses for instance or waiver of liability clauses, more precise. How far can they go? Do they actually have any bearing? And the courts will give effect to them, but they will not give effect to something that would be unconscionable. So if it goes to the very heart of what an iPhone should do, and no one should actually suffer third-degree burns by putting a phone to their ear in their ordinary course of business, it’s unlikely that Apple will be able to escape liability.

13:22 MS: Okay, so something like, there’s some clauses in here about distracted driving. Does that fit more into the first case or the second case of, you can do this, but please don’t, or if you undergo harm while doing this, we can’t be blamed for it.

13:38 PK: Yeah, I think it goes a little of both to be perfectly honest with you, but they’re probably more worried about the first case than the second case. They don’t want… Because you’re driving along, texting or using your phone and not paying attention, and you hit some third party, Apple’s probably more worried about that third party coming back against them, yeah.

13:58 MS: Okay, and data overages is another one, where if this happens, this is on you, it’s not on us.

14:04 PK: That’s right, that’s right. And in that sort of situation, they’re saying that’s truly beyond our control, so we absolutely don’t wanna have that. What Apple is trying to do here is, you could say that there are legal justifications behind a lot of things. A lot of these things are business justifications, they are trying to get cost certainty. So they wanna know that when they sell you that iPhone, they know what their costs were in building that iPhone and they don’t want any contingencies going forward.

14:32 MS: Right.

14:33 PK: Yeah.

14:33 MS: And while law suits are definitely a contingency you can’t plan for, so they’re trying to hedge those bets as much as they can contractually.

14:40 PK: That’s right. Right, and which is no different actually than when you think about sort of the waivers that you see or the warnings that you see on any product. A product manufacturer is worried about product’s liability lawsuits. This is sort of the cell phone equivalent of that.

14:55 MS: Okay.

14:55 PK: Yeah.

14:56 MS: And the third broad category that I saw all over the place had a lot to do with data collection. So it’s basically just saying, we are gonna be gathering data from you for a variety of purposes like maps is one where they’re saying, we need your data to provide the service, so we’re gonna go ahead and take your data to provide this service. And there’s a lot, there’s a ton of sort of data use clauses scattered throughout here.

15:22 PK: Absolutely, absolutely. And those fall into a number of different laws. If we set the United States aside for the moment. And for the record, the Apple agreement is probably going to be unique by jurisdiction, they’re probably gonna revise it slightly, jurisdiction by jurisdiction. In Canada, we have private data collection laws, Personal Information Protection and Electronic Documents Act or PIPEDA, actually regulates when someone can collect data. So this is complying with the Canadian statute. That’s true in the European Union, which whose laws are even stronger. The United States doesn’t have such a statute, but they certainly have Tort Law that will apply when someone has some, for instance, could sue for invasion of privacy or something to the equivalent of that effect. And we have a variant of that in Canada as well. So there’s common law reasons for this, but there’s a lot of statutory regulation that Apple’s complying with.

16:21 MS: Right. And the other big piece of language I see in here, it’s mainly sort of licensing stuff. It’s, we use this but it’s a license of that, we use this and it’s a license of this other thing. And I guess they just kind of have to put that in for, well, legal reasons.

16:36 PK: Well, yeah, they are doing it for legal reasons. Again, their iPhone is based on other, to some degree is based on other people’s intellectual property they’ve entered into agreements, as well as there’s some statutory language that protects copyrights, trademarks, that sort of thing, of third parties and are saying, some third-party supplier provides something that is integral to an iPhone, part of the agreement that licenses that material to Apple is gonna say, and you must, we grant you this license and you must tell everybody that you have a license that that’s not proprietary or owned by Apple. And so they’re checking off a box in their contractual obligations really. It doesn’t really impact on you whatsoever and you probably don’t really care, but they are simply making sure that people realize that this is not all owned by Apple.

17:34 MS: So, there is a massive section of this that’s in all caps. Why suddenly the shift from [chuckle] regular case typing to there’s like about, well I would say three pages in total in here where suddenly just shift, is this to denote that this is the most important part of the contract?

17:52 PK: It’s very interesting that you point out that it’s three pages long, it’s supposed to point out the most unusual or most onerous terms [chuckle] in the standard form contract. But yeah, as you say, it’s about 30% of the agreement [chuckle] seems to be in caps. Some of it is not just in caps, but it’s in bold as well. I guess they really want you to notice that. And that’s literally what the law is. The old English law that’s been adopted in common law Canada is that in any standard form contract, the courts will accept that. But usually standard form contracts are one-sided, they are there to protect the service provider, the Apple, Rogers or Bell or somebody to that effect and not you, the consumer. Again, the point being that we’re trying to keep our costs down.

18:36 PK: The courts will enforce those, because you clicked, “I agree.” But there are some things that tick off the courts and say, “We’re not gonna enforce that, we’ve already mentioned the unconscionable clauses.” But the other point under the old Anglo-Canadian law is that you’ve gotta give notice of terms that would be unusual or unexpected by the consumer where the consumer to actually read them or they would be onerous. And, by onerous, we mean we’re flipping the onus. We’re flipping the protection from the, what would typically be borne by the service provider onto you, you’re accepting the risk yourself, so a waiver of any liability.

19:19 PK: A disclaimer saying, “Hey, we Apple, don’t promise that this iPhone will actually do what it says it does and you can’t sue us.” Those things where ordinarily that would be their obligation, those are the provisions that are typically put in capital letters or in bold. Because they’re supposed to be providing notice to you, “Hey, look at this, it’s in bold and caps and sort of, our texts speak now, we put it all in caps, they’re yelling at you.” And that’s the standard form contract equivalent of that. And if they don’t do that, the courts have said, “Well, we’re not gonna enforce that.”

19:54 MS: So, onerousness is kind of a comeback to these contracts, or is it?

20:00 PK: In a sense that they are… From a consumer’s perspective?

20:03 MS: From my consumer’s perspective, they’ve had to do this. Because if they didn’t do this, a court could theoretically say, “No, this contract isn’t relevant because you’ve buried some very important language.” You haven’t made it easy to read and you haven’t made it obvious. Is it possible of contracts that they’re just too big for someone to read?

20:22 PK: It’s interesting that our laws have gone down this road and then they seemed to have stopped. People have made the complaint that some service providers who aren’t as considerate as Apple is here. As you point out, this actually does read grammatically well. There are others who have contracts that are two or three times the length of this and legally, how could you ever actually find this language and is buried. And the courts still seem to have accepted them. I think the courts are probably waiting for governments to come along and say, “In the interest of consumer protection, you must have these particular terms. You must write them in a certain way.” And our federal government has gone down that road a little bit with cell phone contracts now.

21:14 MS: Right.

21:15 PK: Right.

21:15 MS: They have to be, to some extent, understandable to the lay person.

21:19 PK: Correct.

21:19 MS: It’s been kind of weirdly rewarding to read this. [chuckle] I’m glad I did it. I don’t think I’m ever gonna do this again. So, how much does this map, like if I have read Apple’s terms and conditions, can I sort of say that I get the gist of most of these, or are they unique enough that really, I should sit down with my Rogers internet provider contract and read it as well? Or is it just gonna be kind of the same stuff in a different order?

21:45 PK: They are broadly the same. We covered certain categories that you’re certainly gonna see in virtually every standard form contract, a waiver of liability. Even if you somehow manage to successfully sue us, our liability is capped at a certain amount of money. These third-party obligations… You’re gonna see all of those things. I think one of the key things here to take away is where there’s gonna be a variation is what they’re disclaiming from contract to contract and what a cell phone provider is gonna disclaim is gonna be different than what Apple is gonna be disclaiming for instance.

22:27 PK: So, I still think it’s worthwhile. Especially when you’re signing a contract and you’re clicking on terms, or looking at a standard form contract for something where somebody’s providing a service to you. Apple’s providing you with a phone, Bell or Rogers are providing you with a cell phone. Look and see what is in fact disclaimed and what is not. I think that’s quite valuable to you. But otherwise, yes. They’re broadly similar.

22:50 MS: Right. And broadly speaking, I should be able to go through and look for capital letters and bolding to see what’s the most onerous in terms of… What’s the highest burden on me as a consumer should be apparent.

23:00 PK: Interestingly, the burden on you as a consumer is extremely high. You’re deemed to have read these terms and understood these terms simply by clicking, “I agree.” So, the onus is in fact, on you. But you’re right, if you look through and read the bold print and the capital letters, those are going to be the most, shall we say, injurious provisions for you.

23:24 MS: Okay.

23:25 PK: Okay?

23:25 MS: Well, this has been really helpful. Thank you, Peter.

23:27 PK: It’s not often anyone is struck so fancifully by standard form contracts till I get a chance to talk about it. So, thank you, Matt.

23:37 MS: Thanks to Peter Kissick, the designer of our corporate law course. If you’re interested in contracts and business law, you should take a look at Law 204/704: Corporate Law at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen’s Law. You can find out more about our music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valerie Desrochers. You can see them at takelaw.ca. And visit Valerie’s portfolio at vdesrochers.com. Thanks for listening.

Click Yes to Agree: EULA and You

With more and more of our interactions happening online you have probably clicked yes to hundreds of terms of service agreements. It is a running joke that no one ever reads these—recently many commenters made jokes in the wake of President Donald Trump’s summit with North Korea that the Apple Terms of Service prohibit using their products for the “development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons”. For many of us the question becomes: what have we agreed to, and more importantly, are we bound by clicking yes on a Terms of Service contract?

These kinds of contracts are known in contract law as “standard form contracts”—the offeror provides the offer in the form of the final contract and those who wish to accept it are put to what the Supreme Court of Canada describes as a “take‑it‑or‑leave‑it proposition”. You either accept the terms and sign the contract, or you do not, and you try to find similar services by another offeror.

These types of contracts aren’t just found in terms of service; they often take the form of liability waivers, insurance contracts, rental contracts and many others where the person accepting the offer has no ability to negotiate terms.

Because of this factual matrix and the differences in bargaining powers, the courts have recognized exceptions to the general rules of contract when looking at the enforcement of standard form contracts. For example, the general rule is that where a person has signed a contract, it is “immaterial” to their liability under that contract whether or not they have read it—the other party is entitled to rely on their acceptance. There are exceptions to this general rule for standard form contracts, the most important of which are where the signature was induced by fraud or misrepresentation, and where the other party knew or had reason to know that the person accepting the contract was mistaken as to its terms. In those circumstances, a party will not be bound by their acceptance of the standard form contract.

Another important rule is that a party offering a standard form contract does not have to take positive steps to ensure that the accepting party has read or understands the agreement or its terms. The exception to this general rule is that, in circumstances where a reasonable person should have known that the party signing was not consenting to the terms in question, the offering party must take reasonable steps to apprise the accepting party of the contract’s onerous terms and ensure that they read and understand them. This rule is why you may see onerous terms in a terms of service agreement bolded, or you might be required to scroll through the entire agreement before you can click accept. The courts have held that these kinds of procedures can ensure that those offering standard form contracts can rely on your acceptance of them because they have the effect of bringing onerous terms to your attention, and (at least in theory) force you to read the entire agreement.

In reality, most of us (even law students) do not read terms of service agreements. However, even if you don’t read these contracts, it is important to understand the extent to which you will be bound by them and the basic rules that govern their use and enforcement.

– Isabelle Crew

Art: Valérie Desrochers

 

#metoo and Harassment in Ontario: OHSA and the Law — Fundamentals of Canadian Law 012

OHSA has been updated, with stronger definitions of harassment. Illustration by Valérie Desrochers (vdesrochers.com)

#metoo has been changing how we see and react to harassment for some time now — but what is the definition of harassment? Let’s take a look at the Ontario Health & Safety Act with Workplace Law instructor Colleen Dempsey, and explore what conduct is legally harassing, how it affects workers in the province, and what implications it might have moving forward.

Fundamentals of Canadian Law is brought to you by the Queen’s Certificate in Law; to find out more about our workplace law course and how to get the only certificate in law offered by a law faculty in Canada, visit us at takelaw.ca.

TRANSCRIPT:

[music]

00:04 Speaker 1: Welcome to Fundamentals of Canadian Law. For over a year now, we’ve been watching the Me Too movement and a seismic shift in public perception and consequences around harassment. But Me Too has been very Hollywood-centric. We’ve been seeing some news and changes on the Canadian side, but as something that’s rooted in the definition of harassment, we wanted to get a better understanding of where the law actually stands. Fortunately, Colleen Dempsey can explain it all. She is the instructor of Law 203/703, Workplace Law, and she’s gonna walk us through recent changes to the Ontario Health and Safety Act. It wasn’t changed in response to Me Too, but the timing couldn’t be more pertinent to the cultural conversation around harassment happening right now. This podcast is brought to you by the Queen’s Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.

[music]

01:09 S1: Why has the province updated the Occupational Health and Safety Legislation?

01:14 Colleen Dempsey: The province had experienced through the complaint process a number of concerns over a period of time that involved unwanted advances, unwanted comments, unwanted touching, things that constitute harassment. They also updated it with respect to violence and then under a subset of harassment was sexual harassment. So they had a number of people, hundreds of people, thousands of people who made complaints under the Act, but there was no mechanism for these things to be dealt with until they actually amended the Act.

01:45 S1: Under the Act as it is now, following the amendments, what is the definition of harassment in Ontario?

01:51 CD: The Occupational Health and Safety Act defines harassment, workplace harassment as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or reasonably known to be unwelcome. And when they say “Vexatious,” what they mean in law is that its sole purpose is to cause annoyance, frustration, or harassment to the intended victim.

02:11 S1: So, there’s kind of two elements there. One is that it’s annoying or frustrating or harassing and the other is you have to mean to do it.

02:19 CD: Right. So always, when we’re dealing with this type of Act, it’s called mens rea, you have to have a guilty mind. And it doesn’t matter that you might think it’s innocent or you think you’re just playing. The fact of the matter is, you would probably get that it’s unwelcome because of the way in which the recipient responds to it, or for that matter doesn’t respond to it.

02:39 S1: So is there an element of persistence then to it as well? If something is, like, “That’s unwelcome. Don’t do it again?” Or is it kind of the first time you do it, that can in itself be problematic?

02:49 CD: Well, typically, the comment or conduct occurs more than once. It can in fact be only once. It could be so egregious that it’s a single instance. However, it can occur over relatively short periods of time. For instance, during the course of one day, or a longer period like weeks, days, months, what have you. And when the situation is a single instance, an example of this would be unwanted sexual solicitation or an advancement on the person from a supervisor or manager that constitutes workplace sexual harassment where there is particularly a power imbalance.

03:22 S1: And we’ve mentioned the word unwelcome a few times. I think unwelcome is fairly self-explanatory, but the fact that we’re saying unwelcome now is actually a step forward with the law itself, right?

03:34 CD: Absolutely. For a long time, people took the position that it was in good fun; that it was okay for people to make comments about other people’s appearance, their sexual desirability, the color of their skin, the length of their hair, did they smile, did they not smile, did they have hair, are they skinny, are they not skinny, do they have a prominent behind, do they have prominent breasts? And people felt absolutely free to make comments. Typically, the comments, and we’re speaking in a heteronormative sense, were from straight men to straight women, but that doesn’t mean that it didn’t occur from women to men and/or it didn’t occur from men to gay men or to lesbians and in an attempt to intimidate or to isolate an individual.

04:20 S1: So this law obviously applies equally to everyone.

04:23 CD: Absolutely. Anyone who’s classified as a worker under the Act.

04:26 S1: But the use of the word unwelcome is actually… It’s a different word now.

04:30 CD: Yes.

04:30 S1: And it used to be sort of deemed offensive, or…

04:34 CD: So it had to be it was from the perspective of the reasonable person that it was objectively offensive and what not. But the point now, it’s in fact from the recipient. From the perspective of the recipient, is this an unwelcome intrusion into their life? And they give examples such as making remarks, jokes, or innuendos that demean, ridicule, intimidate, or offend a person, displaying or circulating offensive photographs or material in print or electronic form, bullying someone, repeated offensive or intimidating phone calls, emails, unwanted touching, unwanted sexual harassment, even brushing up against someone if you do so in a deliberate fashion and you touched their behind, you go… Rubbing someone’s forehead. Like there are things that people should just not do and people have done in the past and there came a point where the government realized enough was enough.

05:28 S1: Right. And everything you mention, some of these things, I have seen myself in workplaces I’ve been in the past. I should stress that I’ve seen none [chuckle] of these things in the workplace where I am right now…

05:38 CD: Go Queen’s Law.

05:39 S1: Exactly. But I either have seen or can easily imagine all of these behaviors and I can also kind of squint and see how if I think back to when I was a kid, or when slightly older listeners might have been kind of young professionals, how all of this did use to be sort of hand waved away.

05:58 CD: Mm-hmm.

05:58 S1: So this is a stronger stance legislatively against stuff that we just used to not take as seriously, I guess.

06:06 CD: Well, absolutely. This certainly predates the #Metoo movement. This was a recognition of a past that in many respects, we as a society have moved forward as we have evolved the manner in which we have structured our Human Rights Legislation. As time goes on, we expand that which is protected grounds. To prevent discrimination or harassment you are prohibited to harass someone on the basis of race, ancestry, their place of origin, their color, their ethnic origin, their citizenship, their creed, which is a more archaic way of saying religion, sex, including pregnancy, their sexual orientation, their gender identity, their gender expression, their age, be it over or under 18 or 16, marital status, family status, disability, whether or not they’re in receipt of public assistance, that is, of course, an accommodation, and the record of offenses in employment. So we expand the specific grounds, and we also have what’s known as analogous grounds. If we say individuals who are not specifically set out in the Human Rights Code or in the Occupational Health and Safety Act but we recognize that they represent a discreet and vulnerable group in our society, so we will protect them as well. And we also say, as a society, it is inappropriate to discriminate or harass people in areas of employment, housing, services, and education.

07:32 S1: And this is all pretty central to Workplace Law. This is essential things that people need to know if they’re going to be in or going to be managing a workplace.

07:40 CD: Absolutely. There is now and there didn’t used to be, a positive duty on employers to create anti-harassment policies. And the onus is on them to provide this information to new employees so they understand what their rights are and, frankly, what their obligations are. So if one is, unfortunately, the recipient of harassment you can’t just, or you shouldn’t just sit there and say to yourself, “Okay, it’ll go away. It’ll go away.” You have a positive duty to say something. We all have a role in this in our workplaces to prevent this from going further. So if someone harasses you or you are a witness to harassment of a colleague, it is incumbent upon you to go to the person who is the HR, the supervisor, and say, “I have seen X, Y and Z occur,” and then it’s incumbent on them to address it. And there are reporting obligations through the Occupational Health and Safety Act and whether or not you call the Ministry of Labor, but you must take that first step.

08:40 S1: So this idea of it being incumbent on you, that’s what’s meant by a positive duty?

08:44 CD: Yes, a positive duty that… We all have a role to play, and the only way that we can prevent workplace harassment and workplace sexual harassment is if we all recognize our duties. And certainly, now employers have this obligation to investigate complaints. Previously, people would go and say, “Oh, so-and-so is causing a problem. He or she is making inappropriate comments about someone’s attire or their national dress,” or what have you, and they would… Employers would go and say, “Hey, please don’t do this.” Now you have to fill out reports. You have to acknowledge. And if there’s a pattern of conduct, then this constitutes an opportunity to terminate someone’s employment so that they are no longer in a position to offend.

09:28 S1: When we started looking at types of conduct, when you were reading the definition of harassment and we unpacked it into certain areas. There seem to be two large areas in there. One is things that can happen peer-to-peer, but the other is this idea of an imbalance of power. That this can play out in a way that… The law is supposed to prevent people who are at a higher level or have more power from literally abusing the people who are underneath them.

09:54 CD: Right and taking advantage of them. So there is a recognition throughout our legal system that where there is an imbalance of power, be it an employer, an employee… And it used to be called the master-servant relationship in recognition that the person who holds the purse strings ultimately they can prevent you from advancing. They can prevent you from getting raises. They can, in fact, prevent you from doing your job. It can cause mental health issues. It can cause physical health issues. A person in position to confer or grant you a benefit or somehow an advancement in your workplace, they must not solicit you for sex, for sexual favors, or they must not harass you. People have, unfortunately, been victimized by inappropriate images of a racial nature or a sexual nature. I, myself, when I was [chuckle] a general counsel, on the highest legal officer in a corporation, I had a male employee send me a photograph that was pornographic in nature, and he thought it was hysterical. He could not understand what it was I didn’t like about this photograph. And, in fact, we had to sit him down with a sensitivity counselor for him to understand that in no shape, way, or form was I interested in receiving this from anyone, let alone somebody I had spoken two words to.

11:10 S1: Right.

11:11 CD: And he took it as I had no sense of humor, whereas he had to understand he was inappropriate. It was unwelcome.

11:20 S1: Right.

11:21 CD: And that is now the change. The person who’s the recipient no longer has the onus to say, “Well, this is why it’s… I’m not a sensitive person. Other people would be disturbed by this as well.” We can no longer accept workplaces where individuals are treated in that fashion.

11:41 S1: Broadly speaking, this legislation represents a shift to an environment where the law is moving kind of with society.

11:49 CD: Right.

11:50 S1: This is something that comes up fairly often in this space is that the law is a living document.

11:55 CD: Absolutely.

11:56 S1: It’s evolving with us, so it feels like as a society we’re saying things that we used to accept we no longer accept and the law has now kind of… I don’t know if it’s catching up. It sounds like, from your example it catches up in some places and it sort of forces people forward in others.

12:12 CD: Well, if you look at the law, in general, in Canada, and in fact, if you consider the person’s case that recognized women were people under the law, the language in there, in fact, the law is a living tree that we recognize as our society evolves, and groups and individuals that were previously considered to be less than are welcomed into the tent of our society and are valued members of our society. And if we look, by contrast, to other jurisdictions, we can see that people are not so welcoming. In fact, when I was in law school, that was when the legislation went through to recognize same-sex partners, providing spousal benefits, and eventually the right to marry. And these are issues of rights and Canadians have a strong belief, and this is demonstrated through survey after survey that Canadians are not comfortable with the idea of restricting rights. We are more an inclusive view of rights as opposed to an exclusive list of rights. So that’s why we have analogous grounds. So if you don’t fit within the 17 categories, but you can demonstrate that analogy to those categories, then the law says, “We will protect you.”

13:22 CD: And over time we recognize that the past treatment of individuals and asking people to accept what is truly unwelcome and unacceptable behavior. And I would emphasize that it’s not that every person in every workplace was experiencing this. What it was was very often a single person in a workplace was engaging this conduct over a course of time to many, many people. And so, you have one person who, through a desire to intimidate or to hassle and what have you, made the work experience of so many people uncomfortable. We’re talking about invading people’s personal space, demanding hugs, and this is course of a sexual nature, verbally abusing people, or making gender-related comments about physical characteristics, the mannerisms, saying to a man, if he was considered to be an effeminate man or a woman who was considered to be butch. None of these things have anything to do with someone’s job and how in fact they do their job. But people did feel free to comment on, down to you didn’t smile today. “What’s a nice girl like you… Why wouldn’t you smile?” Maybe that person doesn’t wanna smile. Maybe they’re not feeling like smiling.

14:40 CD: So we… And we want to also take a stand against violence in the workplace, because often the harassment can escalate into a position of violence where individuals are rebuffed. A good example of evolution in our society is gender identity and gender expression. So gender identity is a person’s internal and individual experience with gender and it’s their sense of being a man, a woman, both, neither, or somewhere, anywhere in between on the gender spectrum. And the manner which they express that is their choice. And gender expression is how they publicly express this. For a long time people felt that you are either a man or a woman. And in fact, one of my dear friends, a well known professor, a legal professor, transitioned from a man to a woman at the age of 69. That would have been unheard of 20 years ago. Even in a progressive profession like the law, this person would have been looked at askance. But now people go, “Oh, I understand.”

15:50 S1: Yeah. And, so the law’s sort of evolving with us.

15:54 CD: Absolutely.

15:54 S1: And as we move forward. What you were talking about, people who are gender fluid, that’s a situation that was once analogous and is now text.

16:04 CD: Correct.

16:04 S1: So this is… I don’t think there’s any way to predict the future accurately but it’s interesting to think that if people are bringing up analogous grounds today, that may well become the text of tomorrow.

16:16 CD: This in fact is how our laws work. If you consider disability, for a very long time employers were not required, if someone had a hearing difficulty or if they had a visual difficulty, the employer was like, “Well, you can’t do the job.” But now, we’ve reached the point where we’re saying, “No, no, no. Is hearing or sight a bonafide occupational requirement? And if you’re gonna say that it is, you better be able to demonstrate that both objectively and subjectively.”

16:43 S1: Right.

16:43 CD: And now employers have a duty to accommodate people to the point of undue hardship. And this is something that was not the case. I, myself, having two children, one of whom is legally blind and the other has a hearing impairment, had my children been born say 25 years ago, they would face very different workplaces and they will when they are adults and they won’t be adults for a good 10 years. So I have great hope for what the workplace will look like for them, particularly as they are young girls.

17:14 S1: Right.

17:15 CD: And I fully recognize that men and race and gender and gender fluidity are also vulnerable groups. If you think about that.

17:29 S1: So it feels like kind of at the end of the day, and Workplace Law is complicated. This is why we have an entire course about it. [chuckle] And well done, you, for taking us through this course.

17:37 CD: Thank you.

17:40 S1: It feels like, though, at the end of the day, if there’s just one nugget, if there’s a golden rule, it’s if it doesn’t have anything to do with the actual job that’s being done, leave it out.

17:49 CD: Absolutely. Of course we don’t wanna create workplaces where people have no human interaction. But as you say, if it is nothing to do with the job, err on the side of caution, simply because someone might find it unwelcome, and they may not feel in a position where they can express their discomfort. And I’m thinking in the future where I do think the law will continue to evolve is under the definition of who a worker is because there are certain restrictions both under the Employment Standards Act and the Occupational Health and Safety Act of what constitutes a worker, and so this causes problems for people who are in precarious employment situations, and the law does not provide them with the same coverage that it does for people who are in traditional employment relationships. So I think the law will then expand the definition of who is covered.

18:40 S1: I think that’s probably an interesting second conversation actually.

18:45 CD: Well, hopefully we will have it.

18:46 S1: Yeah, thank you very much.

18:47 CD: Thank you for having me.

[music]

18:51 S1: Thanks to Colleen Dempsey. If you have employees, plan to hire employees or are an employee, you should work into our course on Workplace Law, Law 203/703. Find out more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton and original illustrations for this podcast available at takelaw.ca are by Valérie Desrochers. Thanks for listening.

[music]

Federal/Provincial Power and Pot: how Constitutional distribution of power affects deregulation

Federalism and the Division of Powers

Federal and Provincial Division of Powers

The Canadian Constitution divides powers around many issues of national scope — like marijuana — between the federal government and the provinces. Art: Valérie Desrochers, vdesrochers.com

Canada has a federal system of government. What this means is that the ability to enact laws is divided among different governments. There are three main types of governments in Canada; Indigenous peoples exercising self-governance rights, the federal government and provincial governments.

The Canadian constitution explicitly sets out and distributes the powers held by the federal parliament and the provincial legislatures. Territorial governments exercise powers delegated by the federal parliament, and municipal governments exercise powers delegated by the provincial or territorial legislatures. These government’s authority to make laws is therefore either derived directly from the Constitution Act, 1867, or is delegated to it from a government that received its authority from the Constitution.

What laws can each level of government make? The subjects of the laws that a government can make are limited.

Section 91 of the Constitution sets out the subject matter of laws that the federal parliament can make.

Section 92 sets out the subject matter of laws that provincial legislatures can make.

For example, section 91 gives the federal parliament the authority to make laws regarding such matters as criminal law, unemployment insurance, trade and commerce, currency, copyrights and patents, and the census. The federal government also has some general power to enact laws that are of national importance to “peace, order and good governance” in Canada. In contrast, section 92 gives the provincial legislatures the authority to make laws regarding the establishment and management of hospitals, the administration of the courts, property and civil rights in the province, provincial lands, and generally any other all matters of a “merely local or private nature” in the province, among others.

However, in practice the law that is needed to regulate an activity often does not fall neatly into one category. Federal and provincial laws often work together. Consider, for example, the recent case of marijuana legalization.

The federal government has the jurisdiction to make criminal laws. Therefore, federal parliament that had to pass the Cannabis Act, which amends many other federal acts to make cannabis legal but sets out new laws related to the possession by and distribution to persons under 18 years of age and criminalized certain types of advertisement and sale of cannabis products, among others.

However, the provincial governments have jurisdiction over property and civil rights in the province. These powers are expansive and encompass the law not just of real and personal property, contract, and tort, but also of labour relations, workplace standards, human rights, environmental protection, insurance, the regulation of trades and professions, consumer protection, social assistance and welfare benefits, wills and estates, and zoning and land-use planning—among many other areas.  The provinces therefore have jurisdiction over how to regulate the production, distribution and retail sale of cannabis within their own province.

While all Canadians will be subject to the same criminal laws with respect to cannabis, how you purchase cannabis will likely vary widely based on the province you are in. For example, Alberta’s legislation provides that cannabis products can be purchased at privately-run retail stores and government-operated online sales, while in Ontario purchases will have to be made through government-operated storefronts and online sales. British Columbia sees a mix of both models, with sales being available at both government and privately-run storefronts and online sales.

There is more complex case law, where matters do not clearly fall within any of the enumerated subject matters allocated either to Parliament or the provinces, or where a law may touch on multiple heads of power. But this brief summary should help provide a basic understanding of the division of power in the Canadian legislative landscape.

Rolling with SOLUS: registering for Certificate courses at Queen’s

Arrow goes through maze

Cut through registration confusion with our SOLUS guide!

Queen’s has a number of standalone learning sites: you’ll be taking your courses in OnQ, for instance, and registering for the Certificate and its courses through our own course manager, SOLUS.

SOLUS is a powerful tool – and can be a little daunting for the first-time user. Here’s a quick primer on how to find and enroll in the courses you want to take:

1. Be enrolled at Queen’s!

We strongly encourage you to enroll in the Certificate program before taking Certificate courses. That being said, if you’re not already a Queen’s student, you will need to enroll at Queen’s in some capacity before SOLUS is available to you. If you’re not a registered student at the university, none of the below steps will work.

2. Login to the SOLUS Student Centre

Once you’ve enrolled at Queen’s, you’ll have your NetID and password. You’ll need those to log into the SOLUS Student Centre.

a. Visit https://my.queensu.ca and log in using your NetID and password.
b. Click the “SOLUS” banner on the upper right of the page.

SOLUS tab

 

 

 

3. Check your “Enrollment Appointment” to see when you can enroll in classes

Enrollment AppointmentAlmost as important as enrolling in classes is knowing when you can enroll in classes. Queen’s lets students get a “sneak preview” of when enrollment opens up for them. Here’s how it works:
In SOLUS, a window will appear on the right side of your screen telling you when you can start adding courses to your SOLUS shopping cart, and when you can enroll.
This window traditionally appears on the second Monday of July for fall and winter courses, and the first Monday of February for summer courses.
Make a note of when your shopping cart will open and when you can formally enroll for classes.

4. Choose your classes

Adding classes to your “shopping cart” can be done before you formally enrol. Either way, the process is the same:
a. In the “Academics” section of your SOLUS page, click “Enroll.”
b. Choose the right term that you want to take classes in. “Fall” classes start in September; “Winter” classes start in January; “Summer” classes start in May.
c. The easiest way to find Certificate courses is to search for them: click “Class Search” and the “Search” button. Then select “Law Studies” under “Subject”, keep “Undergraduate” as the Course Career if you are a full-time current Queen’s Student and “Undergraduate Online” if you are an external student, and select “Online” as your Mode of Instruction.
d. From the search results, click the blue class name for the class you’re interested in. Confirm it’s the right class in the Class Detail page, then click “Select Class” at the bottom of the page.
e. Confirm all the class information, then click NEXT to view your shopping cart, and finally enroll.
This PDF walks through every step of the process with screenshots.

5. Tracking Your Fees

If you’d like to see all the activity associated with your account, select “Account Activity” in the dropdown under “Finances” in the SOLUS Student Centre.

6. Enjoy Your Classes!

SOLUS can be hard to navigate for the first-timer. If you’d like even more information on how it works, you can visit the SOLUS help page at the Queen’s University registrar site — it has more, and more detailed, instructions on our course registration system.

Unpacking pipeline challenges: Fundamentals of Canadian Law Episode 11

Oil Pipeline

The Kinder Morgan / Government of Canada pipeline is being challenged by both provinces and Indigenous groups. What laws pertain to these challenges?

There’s a lot to unpack when it comes to the Kinder Morgan — soon, Government of Canada — pipeline.British Columbia has challenged it, as have several Indigenous groups. But what laws govern their ability to challenge this national project? We explore first the distinction between federal and provincial powers with Associate Dean Cherie Metcalf, teacher of the Constitutional Law module in our Introduction to Canadian Law course… and then dive into Indigenous and Aboriginal law, chiefly the “duty to consult,” with the creator and instructor of our Aboriginal Law course, Hugo Choquette.

Curious about the cases Hugo cites in his portion? Here are the links:

Haida Nation: http://canlii.ca/t/1j4tq

Chippewas of the Thames v Enbridge: http://canlii.ca/t/h51gx

Tsilhqot’in: http://canlii.ca/t/g7mt9

Tsleil-Waututh Nation Assessment of the Trans-Mountain Pipeline: https://cdn2.hubspot.net/hubfs/2551008/TWN%20Assessment%20Report%2011×17.pdf

 

TRANSCRIPT:

[music]

00:03 Speaker 1: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd, and this is our first ever two-parter. There’s been a lot of conversation about pipelines in Canada lately. This episode of our podcast actually bridges a recent change. Part 1 was recorded before the federal government announced it was going to purchase a transnational oil pipeline from Kinder Morgan, and part 2 was recorded after that announcement. The facts discussed in our first half aren’t really changed by this purchase. In fact, it streamlines the conversation, but we just wanted to make that clear off the bat. Federal priorities and trade law, provincial laws, Aboriginal and indigenous law, it’s all being discussed right now in the context of the Kinder Morgan pipeline, soon to be the Government of Canada pipeline. The pipeline is being championed by the federal government. It’s being challenged by a number of groups. So we wanted to unpack the legal premise and some of the details of these challenges.

01:03 S1: In our first part, we’ll be talking to Associate Dean Cherie Metcalf, the Instructor for the Constitutional Law module of Law 201/701: Introduction to Canadian Law. We’ll be discussing the division of powers between the federal government and the provinces and how BC can challenge the pipeline in some ways, but not in others. In our second half, we’ll be joined by Hugo Choquette, the Course Designer and Instructor for Law 202/702: Aboriginal Law. We’ll be talking about the pipeline from an indigenous and Aboriginal law perspective, the rights of various Aboriginal groups to mount challenges and what the legal structures around those challenges are. This podcast is brought to you by the Queen’s Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.

01:58 S1: So, Kinder Morgan is running a pipeline across Canada carrying bitumen, and BC essentially has some legislation on deck, which is going to prevent that theoretically?

02:11 Speaker 2: Yeah. BC is actually, they’re bringing this referenced case to their own Provincial Court of Appeal to see whether or not they can impose certain kinds of environmental restrictions. So what makes it tricky constitutionally is the possibility that these environmental controls could actually mean that you could stop transportation of bitumen through BC unless you meet the criteria that they’ve set environmentally. That’s the thing that makes it seem like it could hold up the pipeline project.

02:46 S1: Right. And that’s illustrative of the division of federal and provincial power in that the province doesn’t have the power to basically just forbid something outright, but it has the power to regulate things as long as those are regulations that are pertinent to power that the province itself holds. I don’t know if I’m saying that very clearly but you see what I’m getting at.

03:07 S2: Yeah, yeah, yeah. Yeah, powers are divided between the federal and provincial governments, and the ability to regulate something like the Kinder Morgan Pipeline as a… There’s a federal power to do that for things like federal… They’re called federal undertakings. So something like a federal transportation network that’s intended to allow shipment of goods to international markets. That is the kind of thing that we recognize the federal government’s got the power to regulate because it’s important for the national interest and there’s a long history there. So railways are another good example of this kind of federal undertaking.

03:49 S1: And even if the undertaking questions for a private enterprise, it’s still a federal undertaking that the federal government legislates.

03:57 S2: Right, it’s the… Even if there’s a company that’s involved, it’s the power to regulate that federally that really is an issue. Is it the federal government that actually who gets to set the constraints that that company is gonna have to follow? Or what role is there for provinces to set up additional constraints? So this is something that has come up in the past because provinces do have an ability to actually regulate what goes on within their borders, so they do have the ability to legitimately set up things like environmental protection statutes because we’re worried about, as people living in BC, what happens to the water and the air and the environmental conditions in BC.

04:46 S2: So where it gets tricky is where we try to figure out, well, what’s the impact on this federal kind of enterprise from the BC legislation? And it’s totally fair for BC to have legislation and it can even have an effect on federal undertakings, but what the courts have said in the past is, “Well, I can’t go so far as to sort of impair or fundamentally interfere with the federal government’s ability to actually regulate these things.” So there’s some kind of a boundary in there between what the provinces can do and how they can regulate things within the province and when they’re gonna go too far and essentially interfere with, or stop, or prevent these federal undertakings from being able to operate.

05:35 S1: So BC has the power to have its own, as you said it, it has the power to have its own environmental regulation so they can say, “Hey, well, we will only let people take these environmentally hazardous things through BC if they have the appropriate permits.” And that’s a measure of control they can exert over this pipeline. That’s how they can do it constitutionally but when people are deciding whether or not this is legitimate, whether or not it goes too far, do they take motive into account?

06:07 S2: So when in [06:08] ____… The people that will be trying to decide whether it goes too far or not, it’s essentially the courts where they’re gonna bring this and ask judges to review it in light of all the previous cases. So, what they’ll really be trying to do is they’ll be looking at the legislation and where motive sometimes can come in is through things like the legislative history and looking at the legislation itself. So they’ll be trying to figure out, “Well, is this something that in pith and substance really is a genuine regulatory program that fits within BC’s jurisdiction?” One possibility could be… Well, actually the real point here is to try and essentially stop interprovincial trade. If that was really the pith and substance of what the scheme was they were going to enact, that’s not a power that the province has. It could be related in that sense, but the court will look beyond headlines in the newspaper. So they’ll look at all kinds of components, they’ll look at the legislation itself and they’ll look at it as part of the larger scheme.

07:13 S1: Right. I guess because the question in my head when I hear about this, and this may not be a fair question is, is this being done out of a legitimate concern for the environment? Or is this, “Hey, we’ve got a thing here that’ll let us stop this pipeline so let’s use this thing, and the environment’s a bit of a fig leaf, that lets them do the one thing they can do.”

07:35 S2: Yeah. In this case, I think that BC, part of the reason they possibly wanna stop the pipeline is because they have a legitimate environmental concerns, right? [chuckle]

07:48 S1: Right.

07:51 S2: They’re related things. If you look at the proposed legislation that they referred to the court, it does really focus on things like the risk of a spill and possible harm to the environment and they talk about implementing the ‘polluters pays’ principle so they wanna have assurances that whoever’s gonna be in possession of this diluted bitumen is actually going to have the resources to deal with any spills and that they’ve got a plan and all these kinds of things.

08:20 S1: So it’s not on its face a fig leaf, it’s legitimate?

08:22 S2: Yeah. No, no, no. But I think that there are genuine concerns about it. And so part of the constitutional tug of war here is, “Well, at what point do those local concerns, do they ever allow a province to trump the interest in an interprovincial or a national priority?”

08:44 S1: Right.

08:45 S2: So the federal power allows the federal government to essentially declare something to be a federal undertaking or to regulate something in the interest of trade. Like I say, so there is sort of this historic power to, in narrow ways, it doesn’t allow the… Certainly, it restricts the federal government, but it does allow them to regulate these kinds of enterprises in a way that can mean provinces don’t get to say no.

09:15 S1: Right.

09:15 S2: And so that’s why this case is actually… Like I say, it’s a little bit of a difficult tug of war because I think British Columbia views itself as having legitimate reasons for concern when it comes to having the pipeline traverse its territory.

09:31 S1: But when the courts look at this, too, it’s not just a pipeline and it’s not just an environmental concern, it’s a precedent for all provinces and the federal government?

09:40 S2: That’s right. It is a constitutional precedent that looks at, “Well, what is the federal power to actually regulate in the national interest?” And given that we’ve recognized that in the past, historically, provincial laws are not able to be applicable constitutionally if the effect there would be to really impair the federal regulatory power.

10:09 S1: Right.

10:09 S2: So that suggests that British Columbia, even though they have some legitimate provincial interests, if they try to use them or try to regulate in a way that would actually allow them to stop the pipeline from being effective by essentially being able to say, “Well, you can’t ship unless you comply with our regulatory standards.” That could really be potentially problematic in terms of precedent and the ability of the federal government to actually regulate important things that are recognized as national needs and national priorities.

10:46 S1: So a court decision may not be entirely based on just this one instance, it’ll be based on what this instance means moving forward?

10:53 S2: Yeah, generally. Generally speaking, that’s usually how court cases [chuckle] are decided.

10:58 S1: Right.

10:58 S2: You hope that’s what it’s gonna look like?

11:00 S1: Yes.

11:00 S2: Yeah, yeah.

11:00 S1: That’s literally what precedent means.

[laughter]

11:02 S2: It’s literally what precedent means.

11:02 S1: And that’s the foundation of our system of justice.

11:03 S2: Exactly.

11:05 S1: Right.

11:05 S2: Yeah, exactly. Yeah, and then precedent is very important in constitutional cases as well.

11:10 S1: Right. And I guess the point I’m trying to make is, even if the decision doesn’t go BC’s way, it doesn’t necessarily mean there isn’t a commitment to environmental values on the courts.

11:17 S2: Oh, no.

11:18 S1: It’s about this much broader issue.

11:19 S2: Yeah. And it may be that there are certain things that they can do within their own legitimate regulatory power without reaching the stage of actually impairing the federal pipeline operations.

11:35 S1: Right. I feel like this tension must be fairly constant in Canada too, is the federal provincial issue that we’re unpacking a bit here ’cause it’s just come to such a sharp point.

11:47 S2: Yeah, that’s right. There’s the balance between provincial power and federal power has come up lots of times in the past and actually the recent Comeau case.

12:06 S1: Right.

12:06 S2: So this is the one about moving goods interprovincially that talked about whether or not you could bring beer across the provincial boundary.

12:12 S1: Yeah.

12:14 S2: In some ways that’s another case where this federal versus provincial autonomy is at issue.

12:20 S1: Right. Because federally you could transport goods from province to province.

12:23 S2: Federally.

12:24 S1: But province has the right to legislate its own.

12:25 S2: Well, the federal government is the government that’s actually got the power to regulate interprovincial trade.

12:31 S1: Right.

12:31 S2: So provinces can’t enact laws that directly aim at regulating the flow of goods across provinces. So that’s why BC, they can’t enact an environmental law that’s really about trying to prevent movement of goods across borders.

12:47 S1: Right.

12:48 S2: If it’s really about that and not about its own domestic environmental stuff, it can’t do that.

12:54 S1: But they can legitimately say we have environmental concerns and we’re gonna legislate this right now.

12:56 S2: Exactly. But they can legitimately, and there can even be sort of an incidental or secondary effect.

13:03 S1: Right.

13:03 S2: So that’s where you get into these. And that’s essentially what the court found in the Comeau case is that there was a permissible secondary effect of trying to regulate the control over the liquor supply within the province that had an effect on whether or not you could bring goods in, but it wasn’t directly about trying to control that trade as its main focus.

13:28 S1: I don’t know if this is an answerable question but will the Comeau decision have a direct bearing on any BC decision?

13:36 S2: The Comeau decision is really, it’s more directly about the interpretation of Section 121, which is about sort of a… It’s a common market clause. And the BC decision I think will more likely be about the federal power to regulate federal undertakings versus provincial power to regulate internally within their own division of powers. So I think it’s not directly applicable, but some of the themes around recognizing provincial autonomy and leaving enough space for provinces to have legitimate ability to regulate things that are of concern in the province, I think that sentiment will probably be relevant to the Kinder Morgan reference.

14:27 S1: Right. Well, I feel like I understand so much more now. Thank you, Cherie.

14:29 S2: Good. Great. Thanks, Matt.

[music]

00:00 Matt Shepherd: So Hugo, I thought maybe in the context of the pipeline, we could just talk about what are some of the aboriginal law issues just surrounding the whole situation, the whole thing.

00:10 Hugo Choquette: Right. And it’s interesting because these issues go to the heart of Aboriginal law, which as we’d discussed in a previous podcast, is that law of the Canadian state which applies to Aboriginal peoples. And the lawsuits had been brought by some of the First Nations in this particular instance argue that the First Nations were not properly consulted. So it’s important to understand where there’s duty to consult on behalf of the federal government and provincial governments comes from and why it’s such an important right for the First Nations, but also a duty on the Crown. And the other thing I wanna say, though, just from the outset is it’s also important to remember that there’s several First Nations who are supporting the project. There’s actually 43 First Nations that have actually signed deals previously with Kinder Morgan that are now going to have to decide what the impact of the federal government’s purchasing the pipeline is going to be.

01:05 HC: So it’s not the case that this is universally opposed by First Nations groups. I think it’s important to remember that even though there are several groups, seven in fact that are actually opposing it. So in terms of the duty to consult, the main thing is to understand how Aboriginal rights really function in our law. And I think to understand that, you have to ask a very strange question, which is… The question behind all of Aboriginal law is, “What rights do people have in the territories that they have inhabited for millenia?” And that seems like a very odd question, and that’s because it is. But the bottom line is that, that’s what Aboriginal law, which is part of Canadian law, tries to figure out is, “What rights do people have on their traditional territories that they’ve lived on for many millenia?” And what’s important to understand about that is that when the British Crown, in this case, claimed sovereignty over the land, so once we had some discovery and settlers, so-called discovery and settlement, the British Crown at one point claimed sovereignty over all of what is now Canada, at different time periods of course.

02:15 HC: What happens at that magical moment in Canadian law is that not only does the Crown gained sovereignty, but it also gains the underlying title to all of that land. And I think you may have actually explored this in another podcast that the Crown actually or technically owns all the land in Canada, and that’s the common way we do it in the common law system.

02:33 MS: Yeah, we talked about that with Dean Flanagan a few weeks ago, that the fact that I own a house doesn’t actually mean I own the property. I have rights to the property.

02:41 HC: That’s right. And the problem when it comes to indigenous peoples is that they actually were here first obviously, and they had their own laws, their own ways of organizing property rights before all this happened. And for many of them, they didn’t see a European or a British settler until many, many years after this supposed assertion of sovereignty. But nonetheless, that is the way in which Canadian law views it, is that the Crown has underlying title to all of the land in Canada. And so where does that leave the indigenous peoples who have lived on their traditional territories for so many years? Well, it leaves them in the position of having to prove that they have rights to those territories. And so whether it’s what we call Aboriginal Title which is a property right, very similar to the highest form of property ownership in the common law system, which is fee simple. It has some differences from fee simple but it’s very close to it. Or Aboriginal usage rights such as hunting, fishing, other kinds of rights. These will have to be proven in court.

03:40 HC: No indigenous people can assume that they have these rights, or at least they won’t be recognized in Canadian law until they’ve been proven in court, which is a very strange thing if you think about it that we require people who have lived a particular way and done these things for millenia, we’re now saying, “Well, we’ll recognize your right to do so, but only if you prove it in court.” And so what happens is, it takes a long time and a lot of resources to do that. One of the famous cases that proved Aboriginal Title was the Tsilhqot’in case, which the Supreme Court decision on that came through in 2014. And just to give you an example, in that particular case there were 339 days of trial which lasted over five years. So you can imagine the number of resources that are expended on proving these claims. So, where does this bring in the duty to consult? Well, the question then becomes, well, until these claims are proven, they are not really fully recognized legal claims as far as the governments are concerned.

04:40 HC: So does that mean the government can do anything it wants and just run roughshod over all of these claims? And that question came up specifically in a case called Haida Nation in 2004. And the judgment, which was written by Chief Justice McLachlin at the time, clearly said, “No, that can’t be the way it is, largely because of this thing we call the Honor of the Crown.” And so the Crown is deemed to be honourable, it’s deemed to not do things in a way that is dishonourable. And clearly it would not be honourable for the Crown to simply ignore these very strong claims in many cases that are made to these traditional territories and say, “Well, we know you’re making a claim here but we’re not gonna bother with that because you haven’t proven anything in court yet. So we’re just gonna do whatever we want anyway.” So what then is the situation? Well, then what we have is a duty to consult, which is placed on the Crown. And the Crown in this case has been clarified, it means both the provincial and federal governments depending on what the situation is.

05:39 HC: Most public lands in the province will be owned by the provincial Crown, so in that case, it would be, partly the provincial government would have a duty. But also we know that the federal government has a specific mandate through the Constitution Act 1867 to look after what was termed then “Indians and lands reserved for Indians,” which we know now includes all indigenous peoples in Canada, so all Aboriginal peoples. And so both levels of Crown might have a duty to consult, and the duty to consult… The question then becomes, “Well, what does that mean?” [chuckle]

06:11 MS: Right.

06:13 HC: And we’re not quite sure what it means, but it means different things in different contexts. The court was very clear in Haida Nation and in subsequent case law that there’s a spectrum. On one end of the spectrum you would have a situation where an indigenous group has a claim, but it’s not particularly strong, for whatever reason, maybe there’s conflicting claims, maybe another group has a claim to the same area, maybe this group hasn’t occupied that area for a long time, and that’s a known fact. For whatever reason, the claim isn’t very strong. And at that point then you would have a lower duty than you would, for example, if… So in the Haida case for example, the Haida have inhabited the islands that used to be known as the Queen Charlotte Islands, they’re now called Haida Gwaii, and they’ve lived there without any opposing or conflicting claim for millenia. It’s a very strong claim that they have to that area. And so, in that particular case, then it would require a much higher level of consultation and possibly accommodation of their interests.

07:15 HC: The other factor on the sliding scale is the government, the proposed action that would interfere with the rights. At one end of the spectrum, you’d have something that’s gonna have a very minor impact on the rights and that would require less consultation, but on the other end you might have something, for example, in the Haida Nation case, you had a permit to clear cut some areas of the forest there. So that would obviously have a great impact on the rights involved or the rights claimed at least. And so that would then result in a higher level of consultation needed. And so the key in a lot of the cases that have been coming through is whether, what level of consultation is required and how do we determine whether it’s been adequate or not? The other important element is that, and this is tricky again, but the duty is always on the Crown, so it’s always the Crown that has a duty to consult. Nobody else has a duty to consult, but while the ultimate responsibility is always with the Crown, the duty itself can actually be delegated for procedural purposes, which means that in other words, other parties can engage in negotiations that will fulfill the duty. It doesn’t mean that the government has to be at the table at all times.

08:23 MS: So the Crown could appoint an arbitrator?

08:25 HC: That’s right, it could. Even a third party could be part of the negotiation as it has been the case in the past, and as was the case here with Kinder Morgan being part of the negotiations. The Crown doesn’t have to be itself at the table, but ultimately if there’s inadequate consultation then it is the Crown’s duty so the Crown will have to answer for that.

08:45 MS: So that raises a couple of questions. The first one was, 72 hours ago, I would have been asking you, “So how does that apply to a private company like Kinder Morgan that’s establishing a pipeline?” Now the federal government’s taking that question off the table.

09:00 HC: That’s right.

09:00 MS: The first thing, they’re gonna buy the whole thing outright. But had they not done that would the federal government be just saying, “Okay, Kinder Morgan, we authorize you to carry out these consultations”?

09:13 HC: Yeah, in a way. I mean, it doesn’t even have to be formal, it can just be assumed that Kinder Morgan will be negotiating. The ultimate best outcome of course, is agreement. So, it’s where you obtain the consent of the group involved to the activity that you’re proposing. And in that case of course, there won’t be any review of whether the duty to consult was met. Where it becomes an issue is where you have that third party, for example, Kinder Morgan engaging in negotiations, and then there’s a question as to the adequacy of that consultation because, again, the duty remains with the Crown. So ultimately, it’s the Crown that has to answer for that and has to ultimately ensure that the consultation happens, and happens in an adequate manner.

09:54 HC: For example, in this case as well, one of the questions that came up in a case that was released late last year, which was known as Clyde River and a companion case involving the Enbridge pipeline was whether the process of the National Energy Board, so the hearings that the National Energy Board conducts before they can grant a permit for the pipeline, whether those were sufficient to involve adequate consultation of First Nations groups. And the courts have said, “Yes, provided there is a meaningful opportunity for the Aboriginal group involved to present their point of view and the process there is adequate, that will satisfy the duty to consult.” It can be a regulatory agency, such as the NEB which is involved in this case, which is actually carrying out the consultation, even though the duty remains on the Crown at all times.

10:44 MS: Right. And this duty to consult, obviously, it’s incumbent on the Crown, but that has to be done with each community individually.

10:53 HC: That’s right, yes.

10:54 MS: Off the top, you mentioned that there is a large number of indigenous communities that are on board, they’ve been consulted and they’ve reached in a point of agreement, but there’s still a smaller group, but still substantial of communities that have issues and these are all individual sets of consultations.

11:12 HC: That’s right. Now, some of them may have common issues, and so they may be dealt with together. Certainly the lawsuits have been joined by other First Nations, so they’ve grouped together. But it’s important, again, to clarify that it’s not just… So when we talk about First Nations and communities, it’s important to clarify that it’s not just the reserves. Reserve land is obviously encompassed within that, but it’s much broader than that because it involves traditional territories, so territories which may now be either Crown land or under private ownership that were traditional territories of these nations and which they have a claim to. And so, those are the territories that are involved, so it can actually be much wider in scope than just the immediate vicinity of the First Nations community itself. And that’s part of the complexity of this as well.

11:55 MS: So does the transition, if the government follows through with the purchase of the pipeline from Kinder Morgan, will that simplify the overall portrait here?

12:04 HC: Well, it could or it could have little effects. On one hand, it simplifies things in that it takes a player out of the issue, the third party, Kinder Morgan. So that now it becomes clear that this is really between the federal government or the federal Crown and also still keeping in mind that the provincial Crown has some responsibilities here, but it really becomes between the Crown and the First Nations groups. On the other hand, the real question now is whether the process that’s already been gone through with the National Energy Board and negotiation with Kinder Morgan, whether it’s adequate.

12:33 HC: And there’s a lawsuit currently pending in the Federal Court of Appeal that is reviewing that largely because of new information that came to light that, apparently according to some sources, there were officials in the federal government who at the same time as they were telling the First Nations, “Well, we haven’t made a decision yet, this is an ongoing negotiation,” were telling their officials who were working on this to find a way to approve it. So it seems, if those allegations are proven that the Crown wasn’t negotiating in good faith, which is always part of the… For consultation to be adequate, it would seem that it would have to be in good faith. And so if the court accepts that version of things, then the whole process would be deemed inadequate and we might be back to square one in terms of consultations.

13:22 MS: So is there an outcome here, where if the duty to consult is not met, the pipeline can stop? Period.

13:29 HC: Yeah, if the court finds that the duty to consult was not adequately engaged in, then absolutely, the court can stop the process because this is a constitutional right, so the duty to consult is part of the Section 35 rights of Aboriginal peoples of Canada. And so it would be essentially acting unconstitutionally on behalf of the Crown. So yes, it would absolutely stop things.

13:51 MS: So this is an absolutely vital part of the pipeline process?

13:53 HC: It is, yes. And so, obviously at this point, it’s unclear whether the court will agree or not. There have been other challenges that have been rejected. And reading the jurisprudence, looking at the Enbridge case for example, that came out, it seems like the courts are willing, in many cases, to give some leeway to regulatory agencies like the National Energy Board. And the courts tend to focus on the process more so than the results, and the process would involve things like, “Were the groups given a fair opportunity to present their views? Was there an attempt to respond to some of the concerns? Was there a hearing held that allowed them to air their views?” Those kinds of procedural things are more at the heart of the duty than the actual outcome. The courts tend to shy away from expressing their views on the particular outcome.

14:46 MS: Right.

14:47 HC: But in this case, there’s a huge, obviously, huge importance to this so I think the courts will take the time to really review what happened and whether there was good faith consultation here.

14:57 MS: And I imagine the issues on the indigenous end are fairly uniform in terms of what their concerns are.

15:04 HC: Yes, and in fact one of the very interesting things about this is that the one nation that’s leading the lawsuit currently in the Federal Court of Appeal, the Tsleil-Waututh Nation, they have actually carried out their own environmental assessment, an assessment of the project using the principles of their indigenous law, and they’ve actually put that out as part of their report. So, this is fascinating because it means that they are using their own law to assess the project and really making the argument that this is their land and they are situated right on Burrard Inlet, so they are right at the outlet point of the pipeline. And they’re arguing that this should be decided in accordance with their laws just as much as with Canadian law. And so that’s really an interesting assertion of sovereignty, if you will, over their territory, and to pursue that in that way is something we haven’t really seen a lot of before.

15:55 MS: Yeah. No, that is fascinating.

15:57 HC: Yeah.

15:58 MS: So obviously, it’s a developing situation. We may be discussing it again.

16:02 HC: We may be, yeah. [chuckle]

16:02 MS: In the short term or medium term.

16:04 HC: That’s right.

16:04 MS: But yeah, is there anything else you’d like to bring up in the context?

16:08 HC: No, I think, again, it’s a very interesting issue and it goes at the heart of a lot of what we look at in Aboriginal law, it’s a very fundamental issue, so I think it’s a fascinating issue for that reason.

16:20 MS: Great. Well, thanks so much, Hugo.

16:22 HC: Thank you, Matt.

[music]

16:25 Speaker 3: Thanks to Cherie Metcalf and Hugo Choquette. If you’re interested in constitutional law, Cherie is the instructor for our constitutional law module of Law 201/701, Introduction to Canadian Law, at takelaw.ca. We also go deep in an entire course on Public and Constitutional Law, Law 205/705. And if Aboriginal law is of interest to you, Hugo Choquette has designed and teaches an entire undergraduate course on the subject, Law 202/702, again at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton. You can find out more about her music at meganhamiltonmusic.wordpress.com. If you liked this podcast don’t forget to rate and review us on iTunes. Thanks for listening.

[music]

What protects workers in Ontario? Oh — it’s OHSA!

From Employers to Employees – OHSA Defines Safety in Ontario

Occupational Health and Safety

Employees in Ontario are protected by the Occupational Health and Safety Act.

If you’re at work or own a business in Ontario, odds are the Occupational Health and Safety Act is relevant to you. OHSA applies to almost every worker, supervisor, employer and workplace in the province. Under the Act, employees, supervisors, and employers have certain rights and responsibilities to ensure that employees are not hurt at work or subject to violence.
Let’s break it down by category – from bosses, to supervisors, to employees.

Employer Responsibilities

Employer responsibilities are in section 25 of the Occupational Health and Safety Act. Some of these include:

  1. Take Reasonable Precautions: Employers must take every precaution reasonable in the circumstances to protect workers.
  2. Equipment, Materials and Protective Devices: Employers must provide the required equipment, materials and protective devices, to ensure that they are in good condition, and to ensure that they are being used properly by workers.
  3. Appointing Competent Supervisors: Employers are also under a duty to make sure that site supervisors know enough and have enough experience and training to keep workers safe and healthy while they work.
  4. Create Health and Safety Policies and Procedures: Employers are also required prepare and review a written occupational health and safety policy and develop and maintain a program to implement that policy.
  5. Cooperate with the Health and Safety Committee: Employers have a duty to cooperate and assist the health and safety committee representatives.
  6. Health and Safety Training: The Ministry of Labour says that what you don’t known can hurt you. Employers are required to ensure that their employees complete a health and safety awareness training program before they start work—you have probably completed one of these programs if you have ever been employed. This training should tell the employee about both their and their employer’s duties and rights under the Act, common workplace hazards and occupational illnesses that they could be exposed to, WHMIS (Workplace Hazardous Materials Information System), and the roles of health and safety representatives, joint health and safety committees, and the Workplace Safety and Insurance Board.

Supervisor Responsibilities

The main duties of supervisors are listed under section 27 of the Occupational Health and Safety Act. These include:

  1. Take Reasonable Precautions: Like the employer, supervisors also have a duty to take every reasonable precaution for the protection of a worker.
  2. Ensure Safe Work: Supervisors have a duty to ensure that workers are working in a safe manner with protective devices, measures and procedures required by the Act and are using or wearing required equipment, protective devices or clothing.
  3. Provide Information and Instructions: Supervisors are also required to advise workers of potential or actual dangers to their health and safety and to provide them with written instructions respecting the protection measures and procedures.

Worker’s Rights and Responsibilities

Workers have the right under the Occupational Health and Safety Act, all of which relate to the right to be safe at work. The three main rights of workers are:

  1. The Right to Participate: Workers have the right to report workplace hazards and to participate in resolving health and safety concerns with their employers and their workplace’s health and safety committee.
  2. The Right to Know: Workers have the right to know about any hazards in their workplace and to receive training before beginning work on the types of hazards they may be exposed to and how to respond to those hazards.
  3. The Right to Refuse Unsafe Work: Under Part V of the Act, workers have the right to refuse or stop work where their health or safety is in danger.

Workers not only have rights under the Act, they also have responsibilities. This is to ensure that neither they, nor their co-workers are subject to hazards or violence at work. These responsibilities are listed under section 28. Some of these responsibilities include:

  1. Reporting Workplace Hazards: Under the Act, workers have a responsibility to report hazards they know of to the supervisor or employer as soon as possible so that the hazards can be investigated and remedied.
  2. Wearing Protective Equipment: Workers have a responsibility to wear or use the protective equipment that is required by the Act or by their employer. This includes a duty not to disable any protective elements on machines that the worker will be using.

This is just some of what the OHSA covers. If you’re a worker – or business owner – in Ontario, you should know what’s in it and how it applies to you! And if you’re interested in workplace issues, consider the Workplace Law course in the Queen’s Certificate in Law.

– Isabelle Crew

You Don’t Really Own “Your” Land – Fundamentals of Canadian Law 10

Bayeux tapestry - Norman invasion of England

What does William the Conqueror have to do with property law in Canada? A lot! Find out more in this podcast.

Property law is complex — fee simple, escheats, and William the Conqueror all come into play when we’re talking about ownership of property in Canada. Fortunately, the Dean of Queen’s Law, Bill Flanagan, took some time out of a busy schedule to drop by and shed some light on both the laws governing land, and the “finders keepers” principle of personal property.

Join us for a fascinating conversation about history, the Crown, property ownership, playground rhymes, and more!

What Kind of Property Rights Can I Hold?

Property as a legal concept is best understood not as an object, but as a bundle of rights that a legal person possesses. The pertinent legal question isn’t what you “own” but what you have the right to do with it. We are going to focus on “real property”, which is a type of property that is associated with land and things that are attached to it (e.g. a house). The law on this is different from “personal property”, which is property not attached to land—like your laptop.

You can have many different types of interest in real property. They are different not because the type of property is different (e.g. house versus farm), but because of what the person who holds the property has the legal right to do. There are many different rights that attach to real property interests—they are wide ranging and will vary depending on the nature of the proprietary interest.

Fee Simple

The most basic kind of proprietary interest is an interest in fee simple—this is what most people are referring to when they say they “own” a house, a cottage, or a farm.

Cottag with for sale sign

“Owning” property in Canada actually means having certain rights over it. Your grandpa’s cottage is governed by the rights your grandpa has over that property…

A fee simple estate is the highest and most complete interest in the land that can be recognized by law. The owner of the fee simple estate can exercise all rights of ownership over the land infinitely.

For example, my great-grandfather owned a cottage on a piece of land up near Algonquin Park. In legal terms, what he had was a fee simple estate.

With the fee simple estate, he had a bundle of rights. For example, he held the right to:

  • Occupy the property;
  • Exclude others from the property;
  • Sell the property;
  • Rent the property (we will discuss leaseholds and residential tenancy in another post);
  • Divide the property into smaller fee simple estates;
  • Destroy the property;
  • Use the property as security, for example, by taking out a second mortgage; and
  • Will the property to his children after he died.

Unless he granted anyone else any rights, he was the only person who held these rights. His rights under fee simple were complete and indefinite.

In 2005, he passed away. What happened to his fee simple interest in that land and cottage after that? A fee simple interest has no end date— it is indefinite, meaning that it survives even after a person dies, which means that it can be willed to another person who will possess all the same rights. Even where a fee simple estate is not willed, it still exists and descends intestate to the owner’s heirs—again, this is because it is indefinite.

My great-grandfather willed the property to my great-uncle, who decided to sell it. When he sold the property, he sold the fee simple—he didn’t just sell the cottage and the land, he sold all the rights that attached to it. Because the fee simple is absolute, it means that he no longer held any rights to the property.

This is just fee simple, we’ll look at other property rights in future posts!

— Isabelle Crew, Queen’s Law’18

The Most Expensive Comma in the World — Fundamentals of Canadian Law

Comma dreams of moneyWhat’s in a comma? A lot of zeroes, sometimes — Law 204/704 developer Peter Kissick joins us to talk about a legendary case involving a comma, utility poles and $2.1 million dollars. That’s a gateway to a broader conversation about contracts: what they are, how they work, and what most of us are getting absolutely wrong.

Comma in question

The comma in question: this piece of punctuation cost a Canadian company over $2 million.