Conflict of Interest: An Often Misunderstood Concept

Posted on by Michael A. Chambers

There has been much in the media over the past several months, both here and south of the border, regarding allegations of, and denials of, conflicts of interest.  Over the years I have found this one of the most difficult, and awkward, policies to actually see applied in the boardroom.

There are many various definitions of a conflict of interest but they all essentially boil down to this: a conflict of interest arises in a situation where private interests or personal considerations, be those one’s own or a family member’s, or a friend’s, or a business associate’s, affect or may affect an individual’s ability to act in the best interests of the institution or organization to which the individual in question owes such a duty.

It is no answer in the face of such a conflict of interest to say, “Oh no, I don’t have a conflict because I won’t allow this conflict to affect my actions or decision making.”  The conflict remains.  Time and time again people refuse to acknowledge an obvious conflict because they convince themselves that there is no conflict based on their belief that because they won’t allow themselves to be “conflicted.”  Not the case.  There is still a conflict even if one in all good faith believes that his or her decision making will not be affected by it.

There are unfortunately some, particularly in the not-for-profit sector, who believe that the presence of a board member finding himself or herself in a conflict of interest prevents the board from then acting on the matter.  Not the case.  All that needs to be done is that the board member in question declare his or her conflict of interest, abstain from the discussion and vote on the issue (and better still, leave the meeting room during the discussion and vote on the issue), and the board may then proceed to deal with the matter at hand, absent the involvement of the conflicted board member.

To avoid these and other conflict of interest problems it is far and away best that every institution and organization have a thorough and robust Conflict of Interest Policy in place.  Every board member should be familiar with the Policy and ensure that it is applied as and when a conflict arises.  When in doubt, best practice is to assume a conflict, declare it, act in accordance with the requirements of the Conflict of Interest Policy and move on with the business of the institution or organization accordingly.  An easy rule to apply: if it feels like a conflict of interest, it probably is one.  Always err on the side of disclosure.  A board member owes that to himself or herself, and owes it equally to the institution or organization.

An appropriate understanding and appreciation of the concept of conflicts of interest will go a long way to keeping any institution or organization and its board and board members out of trouble.  Seeking advice in this regard from a knowledgeable legal counsel will ensure that such will be the case.

Can they really say that?! Advertising self-regulation in Canada – Part 5

Posted on by Mary G. Griffith

In my last blog (Advertising self-regulation Part 4) I discussed the Advertiser Dispute procedure under Advertising Standards Canada (ASC).  But what happens if you, as an advertiser, bring a complaint against one of your competitors and the Dispute Panel, after hearing the arguments on both sides, reaches a decision that you feel is clearly wrong?  What recourse do you have?

Appeal

Either party to the Dispute Procedure can request leave to appeal on the basis that the Panel erred in its interpretation of the evidence or of the provisions of the Code, however there are specific and quite short timelines to be followed to request an appeal and file the applicable fee.  If the defendant advertiser is appealing a decision, it may do so ONLY if it gives a written undertaking to withdraw the advertising in question.  What is interesting about this requirement is that while an advertiser may disagree with a decision, it may be more advantageous to them NOT to appeal as a Panel Decision frequently gives several months for amendments/withdrawal to be made by the unsuccessful party, which is a much more attractive business result than immediate withdrawal and payment of further fees.

Review of the request to appeal is heard by a three (3) member panel, two industry sector representatives and one public representative.  If the review panel determines that the request for appeal has valid basis, the appeal is granted and it is heard by an Appeal Panel of five (5), made up in the same manner as the original Panel.  The Appeal Panel Hearing will be conducted in the same manner as the original Panel Hearing, and a written decision will be sent to both parties within five (5) working days of the Hearing.

It should be noted that the Appeal Procedure is basically a “do-over” of the initial Dispute Panel.  The Appeal Panel will re-hear the complaint; not simply focus on specific areas of the original decision that have been disputed.  As a result, it may be a risk to appeal a decision because the Appeal Panel may decide differently with regard to ANY of the allegations contained in the original Complaint and an Advertiser may actually lose ground that was previously won.

Assuming that both parties comply with the decision of the Panel the entire proceeding, from the initial filing of the complaint to final resolution, is confidential.

Confidentiality

This confidentiality can be a benefit to both the complainant and to the defendant.  It does, however, make it impossible to review the type of complaints submitted to the Dispute Procedure for determination or ascertain the Panel’s interpretation of the Code in relation to those complaints.  This can make it particularly challenging for parties to assess the types of evidence that would be most persuasive to include in its submissions, or to assess its chances of success based on prior decisions.

Another drawback to the confidentiality of the proceedings, at least to the successful party, is that the results cannot be made part of any future marketing efforts, nor can they be used as evidence if a challenge on the same, or a similar, issue in other proceedings.  These drawbacks are of course a benefit to the party who is not successful.

In addition, as the individuals in the Panel will change from time to time, and the prior Hearings are confidential, there is no benefit of precedent for parties or Panel members, nor can previous decisions be looked to for consistency in interpretation and application.  This can introduce a level of uncertainty to the proceedings, which does not exist with some other alternate options for addressing challenges to a competitor’s advertising.

In my final blog on ASC, I will review the enforcement, timing and cost issues related to filing complaints and suggest where this dispute procedure may fit among the options that are available to challenge advertising in Canada.

Computation of Time (Rule 5) in the Supreme Court of Canada

Posted on by Gordon B. Greenwood

At any level of Court, service and filing deadlines loom.  Calculating those deadlines is one of the most important and sometimes one of the most confusing tasks to be completed.  Include the day of the first event but exclude the day of the second event…or is it the other way around?  At the Supreme Court of Canada calculating deadlines is just as important and perhaps just as befuddling.

Missing a deadline for filing an Application for Leave to Appeal to the Supreme Court of Canada, or any document throughout the appeal process itself, doesn’t mean you have lost your chance to file; it does mean preparing motion materials, additional costs, and reliance on the Court to allow you to file late.  Calculating service and filing deadlines correctly ensures you avoid the additional cost and headache of filing late.

Let’s take a look at Rule 5 of the Supreme Court of Canada Rules which governs the computation of time.  Much of it is common sense and if you have any experience calculating filing deadlines in lower level Courts you will see that similar rules apply in the Supreme Court of Canada.

Rule 5(1.1) deals with calculating deadlines when filing must take place within a specified number of weeks, e.g. on appeal, the Appellant must file its Factum, Record and Book of Authorities within 8 weeks of the filing of the Notice of Appeal.  To calculate the deadline, you would exclude the day the Notice of Appeal was filed and include the last day of the last seven day period.

Rule 5(2) excludes holidays when calculating periods of less than 6 days.

Specific to calculating deadlines in the Supreme Court of Canada is the exclusion of the month of July (Rule 5(3)) and the period beginning on December 21st in any year and ending January 7th in the following year (Rule 5.1).  These are general rules and there are of course some exceptions.  The month of July continues to count for calculating the time for filing records, factums and books of authorities on appeal (Rules 35-37), motions for leave to intervene (Rule 56(b)) and when calculating the time for service of a notice of constitutional question (Rule 61(2)).  The period from December 21st to January 7th continues to count for calculating the deadline for service and filing of a motion to state a constitutional question (rule 60(1)) and if otherwise directed by the Court, a judge or the Registrar.

You’ve read the Rules and are still unsure whether you’ve calculated your deadline for service and filing correctly?  Speak to your Supreme Court of Canada Agent early to confirm you have calculated your deadline correctly and avoid the hassle of filing late.

So You Want to Appeal… (Part 3): Appealing a decision from Small Claims Court

Posted on by Megan E. Fife

In Part 2 of this series, I began my discussion of the rules and procedures of appealing a decision from the Ontario Small Claims Court (“Small Claims”).  I will continue that discussion here, complete it in Part 4, and delve into appeals from other Ontario courts in later posts.

In Part 2 of this series, I discussed the documents required to begin an appeal (the Notice of Appeal and Appellant’s Certificate Respecting Evidence), the time deadlines associated with them, and began describing what it means to “perfect” your appeal.  To perfect your appeal, you will need to create an appeal book and compendium (see Rule 61.10), an exhibit book (see Rule 61.10.1), a printed copy AND electronic copy of the transcripts (if applicable), an appellant’s factum, a book of authorities and a certificate of perfection.  These make up the body of your argument and supporting evidence, and are the basis upon which the respondent will reply to your appeal and the Divisional Court judge(s) will evaluate your claim.

Appeal Book and Compendium – Rule 61.10 of the Rules of Civil Procedure clearly describe the requirements of the Appeal Book and Compendium, what should be included and in what order.  Be sure to follow these rules closely and ensure that all copies are legible; the registrar may refuse to accept your appeal book and compendium if they are not.  Note also, as per Rule 4.07(3) of the Rules of Civil Procedure, this is to be bound, front and back, in buff covers

Exhibit Book – Rule 61.10.1 of the Rules of Civil Procedure clearly describe the requirements of the Exhibit Book.  As with the Appeal Book and Compendium, be sure to follow these rules closely.

Transcripts – If the inclusion of transcripts is applicable to your case, note that Rule 4.07(4) of the Rules of Civil Procedure dictates that these are to be bound, front and back, in red covers.

Appellant’s Factum – Rules 61.11 of the Rules of Civil Procedure clearly describe the requirements of the Appellant’s Factum and the different parts and Schedules it should contain.  Overall, a factum should be a “concise summary” of fact and law.  It is generally held that 30 pages or less is acceptable.  If you believe that more than 30 pages will be necessary, an appointment with a judge should be arranged, through the Registrar of the Court, before filing.  Note also, as per Rule 4.07(5) of the Rules of Civil Procedure, this is to be bound, front and back, in white covers

Book of Authorities – This is a collection of the authorities that you intend to refer to at the hearing, with the relevant passages clearly marked within the cases.  There should be an index, and a separate tab for each case.  Counsel for both the Appellant and the Respondent should consult on this document as well: while each may wish to provide their own Book of Authorities, there should be no duplication between them.

Certificate of Perfection – Rule 61.09 of the Rules of Civil Procedure outline the procedure for Perfecting Appeals.  Specifically, rules 61.09(3)(c) and 68.05(1) set out what is to be included in the Certificate of Perfection   Once this document has been filed, the court will place the application on a list for hearing, and all parties  (and anyone else named in the Certificate of Perfection) will receive a notice of listing for hearing (Form 65B) in the mail.

If you are the Respondent in an appeal from Small Claims to Divisional Court, you will have your own set of documents that must be completed, served and filed, in response to the Appellant’s documents.  As a Respondent, you will also need to determine if a cross-appeal is appropriate in your case, and be aware of the additional documentation required if it is.  I will go into more detail on the requirements of a Respondent, in Part 4 of this series, as well as complete my discussion of the rules and procedures of appealing a decision from the Ontario Small Claims Court (“Small Claims”) to the Divisional Court.

As a reminder, here are some helpful references to note:

  • Rule 61 of the Rules of Civil Procedure
  • the Ministry of the Attorney General’s “Guide to Appeals in Divisional Court” http://www.attorneygeneral.jus.gov.on.ca/english/courts/divisional/Guide_to_Appeals_in_Divisional_Court_EN.html; and
  • the Court of Appeal for Ontario’s informative website (http://www.ontariocourts.ca/coa/en/).

These resources should all be used in combination with the advice of a litigation lawyer, if you are considering an appeal from Small Claims.