News
1. Chris Mosher
In October, I reported that the Canadian Union of Public Employees (CUPE) had asked the Nova Scotia Supreme Court for a judicial review of the city’s agreement with former cop Chris Mosher. The background:
After he was charged with sexual assault and then for repeatedly violating the conditions of his release, Halifax cop Chris Mosher was fired last year by the Halifax police department.
But Mosher has successfully appealed his firing, and has received a cash payout from the city and a new job working with either the city’s Parks & Recreation Department or the Transportation & Public Works Department.
Mosher received the cash and job as part of a confidential settlement agreement between Mosher, the city, and the police union. The settlement agreement was signed on August 21, 2018, and was approved by the Nova Scotia Police Review Board on August 31.
But CUPE objects to being forced to bring Mosher into the union:
“The Police Review Board committed a reviewable error by not providing CUPE with notice of the proceeding [that is, the Board’s approval of the settlement agreement, which made Mosher a member of the union] despite CUPE having a direct and interest in the matter,” writes Jason Edwards, CUPE’s lawyer, in the court application.
CUPE is asking the court to set aside the Police Review Board’s approval of the settlement agreement and to order the Board to reconsider the matter.
The union’s application to the court is moving forward, and I expect there will be a hearing on that matter some time in the new year.
However, in the meanwhile, Mosher has applied for a publication ban on the matter. This morning, at 9:30, the court will consider that application.
I will contest Mosher’s request for a publication ban.
Mosher’s application is offensive. It flies in the face of the open courts principle.
This is a matter of great public interest and involves important aspects of public policy. There are issues related to employment law and the functioning of the Police Review Board. Moreover, there has been an extraordinary expenditure of public money in the rehiring of Mosher.
It is my job to report to you readers about every aspect of this case, and if issued, the publication ban will prevent me from doing so.
I’m not sure how today’s hearing will unfold. My recollection with previous applications for publication bans is that the judge will ask the courtroom if anyone contests the proposed ban, and I’ll stand up and say I object to it. Then a hearing will be set for my objection, and I’ll have a few weeks to confer with my lawyer about how to proceed; we’ll decide if my objection to the public ban has merit, and if it does, if the Examiner can afford to fight it. (We don’t have the kind of financial resources the CBC or the Herald has, so if they show up to object as well, I’ll let them take it up. We’ve already spent a ton of money on lawyers this year.)
But perhaps the judge will decide then and there, today, on whether to issue the publication ban. If so, I’ll state my objections as best I can without a lawyer. We’ll see.
In any event, today’s Morning File is very short because I have to run off to court.
2. Cape Breton lawyer threatens to sue councillor
“The [Cape Breton] Spectator has learned that Regional Solicitor Demetri Kachafanas threatened legal action against District 11 Councilor Kendra Coombes ‘and all Council’ after a radio interview Coombes gave the CBC on 27 November 2018,” reports Mary Campbell:
The interview (which I can no longer find online) was about the four in camera meetings during which CBRM Council discussed its own remuneration (an article based on the interview is still available on the CBC website).
The CBC’s Tom Ayers broke the story on November 8, reporting that council had met in closed-door sessions on 7 December 2016, 8 May 2017, 24 October 2017 and 26 June 2018 to discuss raising mayor and councilors’ pay to compensate for the federal government’s decision to abolish the one-third tax-free provision for municipal officials.
Although the Municipal Government Act (MGA) allows municipal councils to go in camera to discuss personnel issues, elected officials are not personnel.
In the online version of the interview, Coombes told Ayers she was still not confident CBRM’s closed-door meetings follow the rules.
Following the interview, she received an email from Kachafanas (addressed to her but sent to all councilors). Coombes, who was clearly taken aback that the email had been leaked, confirmed its contents for the Spectator on Monday.
Kachafanas wrote that he had listened to Coombes’ November 27 radio interview “with surprise and displeasure” as she had publicly implied:
…that I as Solicitor for the CBRM gave a legal interpretation that said meetings about Council remuneration could be held in camera, a statement which you know or ought to know is not true.
Please consider this formal notice to yourself and all Council that if you continue to make false public statements of that nature I will take legal action against you for slander/libel.
You should know that your position of Councillor does not afford you immunity from making false or misleading statements inside or outside of the Council chambers.
Coombes told the Spectator she’d had no intention of going public with the email, but that in the unlikely event the solicitor had taken her to court, she would simply have played the video from the November 20 council meeting, during which council discussed the in camera meetings based on an Issue Paper presented by Kachafanas.
Click here to read “CBRM Solicitor Threatens Council With Legal Action.”
As with the Examiner, the Cape Breton Spectator is subscriber supported, and so this article is behind the Spectator’s paywall. Click here to purchase a subscription to the Spectator, or click on the photo below to get a joint subscription to both the Spectator and the Examiner.
White space
3. Too stupid to write about
I thought about writing about a kid who got kicked out of the Dal dorms for busting up a bathroom and other assorted destruction, and his daddy is asking the court to reverse the whole thing, but it’s just too stupid all the way around.
— Tim Bousquet (@Tim_Bousquet) December 19, 2018
Government
No public meetings.
On campus
Dalhousie
Thursday
Annual Dalhousie Carol Sing (Thursday, 12pm, Sculpture Court, Dalhousie Arts Centre) — President Richard Florizone and Jacqueline Warwick, the director of the School of Performing Arts, will lead “spirited renditions” of Christmas carols, Hanukkah songs and so forth.
In the harbour
05:00: YM Essence, container ship, arrives at Fairview Cove from New York
06:00: RHL Agilitas, container ship, arrives at Pier 42 from New York
06:30: Nolhanava, ro-ro cargo, arrives at Pier 36 from Saint-Pierre
07:00: AlgoNorth, oil tanker, arrives at anchorage from Come By Chance, Newfoundland
10:00: CMA CGM Fidelio, container ship, sails from Pier 41 for New York
11:00: JPO Aries, container ship, arrives at Pier 41 from Lisbon, Portugal
12:00: Horizon Star, offshore supply ship, sails from Pier 9 for the offshore
15:00: Brotonne Bridge, container ship, arrives at Fairview Cove from Fos Sur Mer, France
15:30: Morning Conductor, car carrier, arrives at Autoport from Southampton, England
15:30: RHL Agilitas sails for sea
21:00: YM Essence sails for Rotterdam
21:00: JPO Aries sails for New York
23:00: Brotonne Bridge sails for New York
Footnotes
Busy, busy day.
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Are you allowed to report that the publication ban passes if it does or would that be considered violating the ban itself?
The fact of a publication ban can be published. Just the subject matter can’t be.
The judges in Nova Scotia courts actually ask if anyone in the room opposes the ban? How civilized. In New Brunswick, they don’t do that, and cook it up on agreement between counsel without anything served or filed as to why there should be a ban.
And for bans under s,486.5 of the Criminal Code, the courts simply ignore the requirements of the statutory section and grant the ban if asked. None of the things required in the section are ever served and filed — I mean, literally, never, ever. (If anyone in New Brunswick can tell me of a instance where the section was complied with in full, let me know.) The lawyers are too lazy to file such documents, and the judges let them get away with it. They are content to do nothing until someone formally challenges the ban.
The first question a judge should ask on any request for a publication ban or order sealing documents is “what is my authority to do that?” A judge should always demand statutory citations and case law, particularly since it seems that few New Brunswick judges know much about the appellate law governing open courts and publication bans.
As to illegally closed council meetings, my view is that any time councillors meet to discuss public business, it is a council meeting, and it is up to them to justify going in camera under one of the statutory exceptions. The problem is it is hard to challenge them because you don’t know exactly what was discussed, and minutes aren’t taken at in camera meetings. Unlike Ontario, which has a process with teeth for complaining about such things, here in NB you have few options.
I have tried an indirect attack, doing an access to information request for the documents used in such meetings, including any notes taken by the councillors themselves, and arguing to the Commissioner that since the meeting was held illegally, the documents should be produced. But the access to information process is broken here in NB, with the commissioner giving himself 90 business days to complete an appeal, at which time of course the matter is usually long out of the news cycle.
Good luck today, Tim!
HRM hires a person as a clerk. The position is listed in the contract between the union and HRM. The person does not like unions and does not want to be forced into the union. The new hire loses the argument and is forced to join the union and pay the union dues.
CUPE cannot have it both ways.
(Good to see your appearance in court has resulted in a positive outcome.)
CUPE is not asking to have it both ways. They are simply asking to have it one way: their way. They are asking for recognition of their right to decide who they want in their union. They DO WANT all workers in any bargaining unit receiving the benefits of a bargained contract; they DO NOT WANT sex offenders, or one would imagine, other reprehensible individuals such as, pedophiles, terrorists, satanists, white supremacists, gay bashers etc. and so on. This is the same right to limit membership rightly claimed by every church congregation, Canadian Legion, boy scout group, Kiwanis Club, Women’s Institute, garden club and every other group of Canadian citizens who freely choose to group together for any purpose important to them. It comes with the right to free association guaranteed in our Charter of Rights and Freedoms.
It is not the same right.
If you are offered work in HRM almost all positions are in a unionised situation.
The organisations you list are not employers. CUPE will lose and they are posturing, knowing that they will lose.
Oh, I totally want to hear about the kid at Dal, that just sounds like fun for the holidays.