When contracting parties do not honor a contract; controlling the dispute by controlling your evidence

I have been practicing law since I graduated from the Faculty of Law at the University of Alberta in 1992.  During these years I have seen many contractual agreements result in a dispute between the contracting parties.  Most of my clients would say that this is unavoidable.  No matter how tight your contract is some contracting parties will try and find a way to avoid honoring their contractual obligation.  This blog is about some sensible business practice which will help position you as a contracting party to deal with a defaulting contracting party.

The most important thing is to ensure that ALL of your contractual relationships are reduced to writing.  Without them being in writing you are implicitly inviting the worst behavior in persons to be displayed.  As an example, the DSM V, a tool used by the psychiatric community, describes a person who suffers from antisocial personality disorder as possessing, without limitation, the following personality traits:

Pathological personality traits in the following domains:
1.  Antagonism, characterized by:
a.  Manipulativeness: Frequent use of subterfuge to influence or control others; use of seduction, charm, glibness, or ingratiation to achieve one‘s ends.
b.  Deceitfulness: Dishonesty and fraudulence; misrepresentation of self; embellishment or fabrication when relating events.
c.  Callousness: Lack of concern for feelings or problems of others; lack of guilt or remorse about the negative or harmful effects of one‘s actions on others; aggression; sadism.
d.  Hostility: Persistent or frequent angry feelings; anger or irritability in response to minor slights and insults; mean, nasty, or vengeful behavior.

When placed in context of a contractual dispute with a party or person with these traits, and perhaps possessing little or nothing economically (hence having nothing to lose), you may find it difficult to manage the dispute because a disputing contracting party with these traits may act in a manipulative and deceitful manner.  Prudent business persons can guard against this by, among other things, drafting a robust written contract.  This written contract should contain, amongst many other things, an entire agreement clause and waiver and amendment clause.  For example the following:

Entire Agreement Clause:

"This agreement constitutes and expresses the whole agreement of the parties hereto with reference to the relationship between the parties and with reference to any of the matters or things herein provided for or here before discussed or mentioned.  All promises, representations and undertakings made prior to the signing of the agreement by the parties are merged herein and all  parties hereto agree that they may not subsequent to the signing of this agreement assert or allege that any statement made prior to the signing of this agreement induced the party to enter into this agreement."

Waiver and Amendment:

"The parties hereto agree that no amendments to this agreement shall be valid or binding unless they are set forth in writing and duly executed by both of the parties hereto.  Moreover the parties hereto agree that no waiver of any breach of any term or provision of this agreement shall be effective or binding unless such waiver is made in writing and signed by the party purporting to make such waiver and, unless otherwise provided in the written waiver, such waiver shall be limited to the specific breach waived."

The point here is: he/she who has the paper is more likely to win in a Court proceeding.  A contracting party does not ever want to be in a position whereby they have a dispute with a person who suffers from this type of personality disorder or exhibits these traits without a written agreement.  Any dispute which ends up in Court will be best received by the Court if a contracting party has a well crafted and drafted written agreement.  In this regard, one of the core principals of interpretation is that "the document speaks for itself" and that a disputing contracting party is generally not permitted to make reference to evidence outside of the written agreement.  This should prevent most manipulation and deceitfulness from entering the dispute.  But this is only 1/2 of the picture; the other 1/2 occurs after the contract is written and the dispute is developing or has developed.

A person who exhibits these traits may continue to be manipulative and deceitful as the dispute emereges and after the dispute and Court proceedings have commenced.  There is a saying which is applicable in this regard: "fool my once, shame on you; fool me twice, shame on me".  This is applicable because the decision to enter into a contract was when you were fooled once.  You do not want to allow the disputing contracting party to be able to suceed in the dispute by being manipulative and deceitful.  Some persons with these attributes are very charming and you may have a moment of weakness where you think that you can work out a fair deal with the disputing contracting party.  From my experience this is not the case.  What you think you have negotiated may then be manipulated in a deceitful manner by the disputing contract party.  Your reaction will be that this was not what was agreed to but it may be to late and you will have been fooled twice.  The shame will be on you unless you act proactively to protect against this type of conduct.

A way in which a contracting party can protect against being fooled twice is to not conduct conversations or communication with the disputing contracting party unless the disputing contracting party agrees in writing that any conversations or communication are personal and confidential and without prejudice to the larger dispute.  Moreover, it must be made clear in writing that any settlement/resolution of the dispute which is negotiated will be conditional upon your lawyer confirming that the settlement/resolution of the dispute is agreeable in that lawyer's sole and unfettored discretion.  Moreover, after obtaining written confirmation from the disputing contracting party in writing that any conversations or communication are personal and confidential and without prejudice to the larger dispute you should not engage in a one-on-one conversation either on the telephone or in person with the disputing contracting party.  Consider meeting with the disputing contracting party in the presence of your lawyer or at least meet face-to-face with a witness.  This will then give you the best evidientiary basis from which to defend against the disputing contracting party.

By following these suggestions a prudent business person will minimize the negative interactions which can result and avoid the concomitant frustration which may result in dealing with persons who possess these types of traits or who suffer from this type of personality disorder.

Condominium Complexes are Private; a Defense Against the creeping expansion of the Alberta Human Rights Commission

The distinction in law between "public" and "private" is a dynamic thing.  It is among many other legal concepts open to interpretation and some would say manipulation.  Where the line is drawn is significant for many reasons least of all the extent to which government can impose itself on the ordinary and private lives of our country's denizens.

Even if one does not critique the history and political philosophy of human rights legislation the incessant expansion of Human Rights Commissions in Canada is worthy of comment.  Particularly in this regard, it is important for those in condominium communities in Alberta to recognize that the Alberta Human Rights Commission (the "Commission") and many who support the shrinking of any societal space considered historically to be "private" hold the view that condominium corporations are bound by the Alberta Human Rights Act (the "AHRA").  The position articulated by the Commission is, notwithstanding the absence of any Court of Queen's Bench authority which supports the Commission's position, that section 4 of the AHRA applies to condominium corporations and prohibits discrimination against any person or class of person in respect of "accommodation or facilities" that are "customarily available to the public".

This position of the Commission is without support in law in Alberta; in this regard reference should be made to Condominium Plan No. 931 0520 v. Smith and the more recent Condominium Plan No. 9910225 v. Davis, both Court of Queen's Bench decisions.  Notwithstanding this clear enunciation of the law, an academic lawyer at the University of Calgary, Jennifer Koshan, has recently suggested that these decisions are wrongly decided.  The basis upon which Ms Koshan asserts this position is imaginative but is unfortunately illogical and lacks grounding in reality.  Ms Koshan's argument is based on a 1993 decision of the Supreme Court of Canada (the "SCC") in University of British Columbia v. Berg.  
Without wallowing in the details, the facts in Berg dealt with the failure of a student to receive a rating sheet and key from the University.  The SCC indicated that the focus of their legal inquiry at pages 373-74 would be in respect of the scope of the terms  "accommodations, services or facilities" and "public" (my emphasis):

"The courts below assumed, and the School conceded, that the key and rating sheet were "services" within the meaning of the Act.  The real issue between the parties was whether such services were, on the correct interpretation of s. 3 and the evidence, customarily available to the public.  This in turn entails two inquiries:  first, whether the student body of a university (or a faculty within the university) is the "public", and if so, second, whether the services in this case were, as a matter of law and fact, customarily available to that public."

The SCC concluded that the term public means more than its ordinary meaning.  The unusual conclusion made by the SCC in Berg is found at page 383:

"Therefore, I would reject any definition of "public" which refuses to recognize that any accommodation, service or facility will only ever be available to a subset of the public.  Students admitted to a university or school within the university, or people who enter into contracts of insurance with a public insurer, or people who open accounts with financial institutions, become the "public" for that service.  Every service has its own public, and once that "public" has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public."

The idead of "a public" (rather than "the public") within a "private" setting and the application of the principal of "eligibility criteria" in this regard may make sense in context of large institutions like universities, insurance companies and financial institutions frequented by many persons in society.  However, this principal of "a public" and the application of "eligibility criteria" cannot be applied to all circumstances; curiously the SCC was silent on the issue of limitation.  Moreover, and I suggest critical in this regard, the SCC's conclusion and Ms. Koshan's reliance on this conclusion from the Berg decision overlooks the limitations based on ordinary meaning which had been determined by the SCC in respect of the scope of these same terms in the Gay Alliance Toward Equality v. Vancouver Sun decision.    With all due respect, this earlier decision does not strain the ordinary meaning of these terms.  It is worthy to note that this case was referred to by the SCC in the Berg decision; the SCC quoted from the Gay Alliance case at page 374:

"After briefly discussing the nature of freedom of the press in Canada, Martland J. wrote (at pp. 454-55):

In my opinion the general purpose of s. 3 was to prevent discrimination against individuals or groups of individuals in respect of the provision of certain things available generally to the public.  The items dealt with are similar to those covered by legislation in the United States, both federal and state.  "Accommodation" refers to such matters as accommodation in hotels, inns and motels.  "Service" refers to such matters as restaurants, bars, taverns, service stations, public transportation and public utilities.  "Facility" refers to such matters as public parks and recreational facilities.  These are all items "customarily available to the public".  It is matters such as these which have been dealt with in American case law on the subject of civil rights."

The SCC had also earlier in the decision at page 366 made reference to an important comment in the decision of the Honourable Justice Legg of the British Columbia Court of Appeal and which was subject of the Appeal to the SCC (my emphasis):

"Legg J.A. assumed, in his decision for the court, that the provision of a rating sheet or a key to the building was an "accommodation, service or facility", noting that the word "service" was to be interpreted broadly, he did not agree that it constituted a service "customarily available to the public" within the meaning of s. 3 of the Act.  In reaching that conclusion, he referred to decisions of this Court stating that human rights legislation should be interpreted so as to advance the broad policy consideration underlying it, but he also argued that this did not mean that the ordinary meaning of words should be strained."

I suggest, with all due respect, that the decision of the SCC does "strain" the ordinary meaning of these terms.  Ms. Koshan is now attempting to suggest that the AHRA should apply to a private condominium communities based on the unusual principal of "eligibility criteria".  Universities are facilities created by statute and funded partly via public funds.  All students with sufficiently high grades and the financial wherewithal may attend at a university.  Perhaps in this context the determination of the SCC that the failure to provide a rating form and a key was discriminatory.  However, condominium corporations are created by registration of a Plan of Subdivision at the Land Titles Office and are simply a means of dividing a parcel of land into smaller parcels all which are capable of being owned privately.  There is nothing public about a condominium corporation.  Only invitees are permitted to come onto either the common property or any particular unit.  It embraces incredulity to suggest that a condominium corporation in this regard is anything remotely like a university or in any manner is public.  Moreover, a condominium corporation does not provide services nor accommodation or facilities.

Those who support the shrinking of societal spaces historically considered to be "private" will suggest that the availability for sale of a condominium units in a particular condominium project is the "eligibility criteria" and upon units being purchased the owners in a condominium become the "public" which the AHRA would apply to.  This is nonsense and illogical.  This faulty logic is revealed by applying the "eligibility criteria" to single detached residences on individual lots.  It is nonsensical to suggest that once an owner purchases a single detached residence they now belong to the "public".  Moving across the continuum it is also nonsensical to apply this to bare land condominiums with single detached residences on it.  It is equally as nonsensical to apply the principal of "eligibility criteria" to duplexes and townhouses not part of condominium projects; by extension this should also make it nonsensical to duplexes and townhouses in condominium complexes.  Though novel and imaginative the application of the principal of "eligibility criteria" to condominiums fails by reductio ad absurdum.   Regardless of the unusual and in some ways illogical conclusion of the SCC in Berg it is suggested that the AHRA will continue to not apply to condominium corporations in Alberta.

Physician Assisted Suicide; Carter v. Canada (Attorney General) BCSC; the learned decision of the Honourable Justice Smith

Further Update

I am pleased to advise that the Supreme Court of Canada ("SCC") has restored the decision of the Honourable Justice Smith as she then was of the British Columbia Supreme Court:

https://www.canlii.org/en/ca/scc/doc/2015/2015scc5/2015scc5.pdf

I have done a review of the SCC decision and it can be found here:

http://bridgeland-law.blogspot.ca/2015/02/carter-v-canada-right-to-physician.html


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Update

Disappointingly the BC Court of Appeal has overturned the decision of the Honourable Justice Smith.  I have not reviewed the case thoroughly but since it is reputed that 68% of Canadians support physician assisted suicide perhaps Parliament should intervene and pass legislation in support of a well supervised and prescribed physician assisted suicide.  I understand an appeal to the SCC will be made.

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I am adopted.  My biological mother gave me up to two wonderful persons; my adoptive Mother and Father.  I think this potentially precarious manner in which my life started has motivated me to take interest in issues related to the right to life and right to cause death.  In this regard, the right to abortion has already had a storied history in Canada and lead to the Supreme Court of Canada upholding the right of women to abortion in R. v. Morgentaler.   This is a link to an excellent summary of the decision.

   

In Morgentaler, the Supreme Court of Canada held that the provision against abortion in the Criminal Code of Canada was unconstitutional because it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to security of the person.  I accept the judicial wisdom in this decision though continue to query the cut-off date when a pregnancy can be terminated.  I think that women owe a duty to prospective adopted children to terminate the pregnancy as soon as possible.  But this is not the subject of this blog.  A new right to life and right to cause death topic has seized the attention of our Courts and is currently winding its way up to the Supreme Court of Canada.  This issue has been described as an individual’s right to "Physician-Assisted Suicide".  This poses the question of if and under what circumstances is it okay to assist a person in dying.

In Carter v. Canada (Attorney General)  an encyclopedic 400 page decision  the Honourable Madam Justice Lynn Smith of the Supreme Court of British Columbia held that sections in the Criminal Code of Canada which made it a crime to assist a person to commit suicide were unconstitutional because they violated an individual's equality rights pursuant to section 15 and also violated section 7 rights to security of the person.  This case is also significant in the manner in which the learned Justice Smith applied what was described as the amended section 1 saving test which emerged from the decision in the Hutterian Brethren case.  Using the amended test Justice Smith determined that the deleterious effects of the subject criminal code sections did not limit the section 15 and 7 rights as little as possible as is now required.  Justice Smith commented about the new test at page 280:

“[994] It is true, as the defendants submit, that the Supreme Court did not enunciate a new test. However, in my view Hutterian Brethren marks a substantive change, rather than the addition of a nuance. The Court made clear that the final step in the proportionality analysis is neither redundant nor a mere summary of the first two steps, although, as Professor Hogg observed, it had come to be viewed that way. Courts are to widen their perspective at the final stage to take full account of the deleterious effects of the infringement on individuals or groups, and determine whether the benefits of the legislation are worth that cost. That is a different question than whether the legislation is rationally connected to the government’s objective or impairs the rights as little as possible.  [995] I agree with the plaintiffs that the Supreme Court of Canada, in Hutterian Brethren, put life into the final balancing step in the analysis of proffered justifications for infringements of Charter rights.

The written decision of Justice Smith is impressive.  Even if you odd not agree with the outcome, the thorough, logical and exhaustive manner in which Justice Smith took on this difficult issue is worthy of examination.  Also of note is the manner in which Justice Smith dealt with the Supreme Court of Canada's earlier decision in the Rodriguez v. British Columbia case which it was suggested had already decided these issues.

As I read this voluminous decision I did reflect on comments made to me some 20 years previous by an old law school friend that the Courts should defer to the supremacy of parliament.  That is that Judicial Activism is not appropriate in a democracy.  I did locate the following excellent paper on this issue: Platonic Guardians? Judicial Activism in Pursuit of Social Justice.  In delightful prose Justice Smith herself even alluded to this concern and interaction between ethics, the law, and the constitution at page 57:

[173] Actions may be ethical but not legal, and, conversely, may be legal but not ethical. The question in this case, in any event, is not what is ethical or legal, but whether specific provisions of the Criminal Code are constitutional. However, because the three realms (ethical, legal and constitutional) tend to converge even though they do not wholly coincide, my view is that the ethics of physician-assisted death are relevant to, although certainly not determinative of, the assessment of the constitutional issues in this case.

Justice Smith more directly addressed this issue of judicial activism at page 346 and made it clear that in her view the Court has a responsibility to ensure that laws are found to be unconstitutional if an alternative means exists which is less drastic:

“[1226] I do not accept Canada’s submission that the only question in this case is whether Parliament’s choice in enacting a blanket prohibition falls within a range of reasonable alternatives. The cases upon which Canada relies (JTI-MacDonald and Edwards Books) both preceded Hutterian Brethren. I accept the plaintiffs’ submissions that in the Hutterian Brethren case the Supreme Court laid down the general approach to be followed in s. 1 proportionality analysis, including in this case. The question is whether there is “an alternative, less drastic, means of achieving the objective in a real and substantial manner” (Hutterian Brethren at para. 55).  [1227] I do accept the defendants’ submission that considerable deference is due to Parliament. The choice whether to permit any form of physician-assisted death implicates fundamental social values. Further, complex and difficult predictions about human behaviour are inherent in weighing the possible means of preventing the inducement of vulnerable people, including grievously ill people, to commit suicide. [1228] However, recognizing the need for deference does not allow a court to down tools and end the analysis. This Court must fulfill its constitutional duty to decide whether Parliament’s choice of an absolute prohibition, which infringes constitutional rights, is justified in comparison with other possible measures which would avoid infringement.”

For those interested in a thorough section 1 analysis I recommend you read the decision of Justice Smith.  It brought back many memories of running through the old “Oakes” test while in law school.  While reading the decision of Justice Smith I was also surprised to learn that physicians may prescribe doses to un-well persons/patients even if they know such prescription will hasten death so long as the intention is to provide palliative care.  Following from this Justice Smith concluded at page 105 that there is no meaningful distinction between physician-assisted death and other end-of-life practices whose outcome is highly likely to be death.  This and other currently permissible actions were summarized by Justice Smith at page 70:

“[231] To summarize, the law in Canada is that:

(a) Patients are not required to submit to medical interventions (including artificial provision of nutrition and hydration), even where their refusal of or withdrawal from treatment will hasten their deaths, and physicians must respect their patients’ wishes about refusal of or withdrawal from treatment.

(b) Decisions about refusal or withdrawal of treatment may be made by competent patients either in the moment or by way of advance directives, and may be made by substitute decision-makers in the case of incompetent patients.

(c) Physicians may legally administer medications even though they know that the doses of medication in question may hasten death, so long as the intention is to provide palliative care by easing the patient’s pain.

(d) It is unclear whether a patient’s substituted decision-maker can require the maintenance of life-sustaining treatment against medical advice.”

In this blog I simply wanted to summarize a few of the many excellent points made by Justice Smith in her decision and share the words of Justice Smith at page 249 regarding her conclusion that alternative means which are less drastic do exist (my emphasis):

[883] My review of the evidence in this section, and in the preceding section on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.

Justice Smith’s decision has been appealed and I understand the appeal was recently heard by the British Columbia Court of Appeal.  Regardless of the outcome I am confident that the Supreme Court of Canada will hear a further appeal of the issue of the right to Physician-Assisted Suicide.  It will be interesting to see, as is the case in many other jurisdictions, if our Courts conclude that a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced is a less drastic alternative to outright prohibition of Physician-Assisted Suicide.