NATURE OF ASSIGNMENT
You are to complete one Case Analysis. Four possible cases are described. Select only one (1) of the four available cases. The format is the student’s choice. The subject Assignment should have approximately 1500 words. If you are to reference any specific articles, decided cases, or other materials, then you should appropriately reference the same. It is recommended that you provide a bibliography as part of the completed Assignment. The bibliography or reference list should identify the source materials that you have reviewed as part of the completion of the Case Analysis. Answer the questions proposed for the Case Analysis you have selected.
GENERAL DESCRIPTION OF THE CASES
Case No. 1
The Charter – Professional Discipline
Description of Case:
This case concerns a finding of professional misconduct made by a professional nursing body against one of its members for words expressed in opposition to the activities of a Planned Parenthood organization. It raises constitutional law issues pertaining to freedom of expression in the administrative law context.
Whatcott was a member of the Saskatchewan Association of Licensed Practical Nurses (“SALPN”). In 2002, he picketed in front of the office of Planned Parenthood Regina (“PPR”). As a result of a complaint made by PPR to the SALPN, two charges of professional misconduct were levelled against him.
In relation to the first charge, Whatcott admitted:
(a) he carried signs with pictures of foetuses and captions saying “Planned Parenthood Aborts Babies”;
(b) he shouted such phrases as “Planned Parenthood will give you Aids,” This place is the world’s biggest baby killer,” “Don’t let Planned Parenthood corrupt you,” and “Planned Parenthood murders innocent babies;” and
(c) he stated that “fornicators will not inherit the kingdom of heaven.”
In relation to the second charge, Whatcott admitted:
(a) he demonstrated in front of PPR on the eve of his August 27, 2003 discipline hearing;
(b) he carried signs with words “Planned Parenthood refers for abortions,” “God’s gift of life” and “choice is abortion.”
(c) he said “Planned Parenthood corrupts young women” and “Planned Parenthood kills babies with chemicals” or words to that effect.
He testified that the notion he intended to convey, by the last statement, was that Planned Parenthood aborts babies through chemicals. He also testified that he was drawing a distinction between the national body and the local body, by sometimes referring to PPR and sometimes referring to Planned Parenthood.
The Discipline Committee of SALPN found Mr. Whatcott guilty of professional misconduct on both charges and fined him. It also suspended his membership in the SALPN until such time as his fines were paid. The Discipline Committee did not address the extent to which Mr. Whatcott’s activities were protected by the Canadian Charter of Rights and Freedoms.
(a) Discuss any Charter rights or principles applicable to this cause.
(b) Whatcott appeals the decision to a Court. Will he be successful? Why, or why not?
Case No. 2
Partnership Law
Description of Case:
Sam, Henry, Paul, and Allen are all students enrolled at Trent University. They all take history as their major. Each is interested in archaeology and have discovered, as part of their studies, that there may be some ships located in Georgian Bay which would conceivably have some treasure. They agree to engage in further research. All joined together to participate in the research and after One Hundred hours of research each, they identify a specific geographic area within Georgian Bay for a treasure search. All of them are good scuba divers. They proceed to rent a boat and use their own scuba gear to engage in a treasure search within the identified area.
All four participate equally in the context of payment of boat rental together with other associated costs for the subject search. For weekends 1, 2, 3, and 4 they all participate within the context of the search for a ship or treasure within the designated area. They undertake the dive together. On week number 5, the said Sam and Henry indicate that they have other commitments and cannot engage in the dive. The remaining two engage in the search. The same story is provided for weeks 6, 7, and 8. On weekend number 9 it is only Allen who engages in the search. He has to obtain a friend who will act as a buddy within the context of his dive because he is precluded, (due to diving safety requirements), from proceeding on his own. On that weekend, they discover a treasure. The treasure is not claimed by any level of Government. The value of the treasure turns out to be equivalent to Twenty Million Dollars.
Questions:
1. Are the four Trent University students engaged in a Partnership?
2. What are the basic provisions of the Partnership and where would you go in order to find out what the rights and obligations of the parties are incidental to the Partnership (if one exists)?
3. What else might be taken into account by a Judge in determining the rights and the obligations of the respective parties?
4. If there is a claim for entitlement to the Twenty Million Dollars, then who should receive what in terms of a specific quantum? Should Allen be entitled to the entire amount?
5. Should the friend who participated as the buddy at the time of the discovery also be recognized as a partner? Please provide reasons in terms of your response.
6. How would you decide this particular legal contest between the four and how would you divide the Twenty Million Dollars between the respective parties? Provide reasons and justification for your answer.
Case No. 3
Contract, Tort & Privacy
Description of Case:
Assume that this case recently occurred in Ontario:
The Plaintiff entered into a contract with the Defendant, Look International Enterprises (LIS), to have a hairpiece surgically attached to his scalp. Under the terms of that contract, LIS was allowed to videotape the procedure for instructional purposes only. Seven years later, without the Plaintiff’s knowledge, LIS allowed a television station to use the videotape during a news feature on hair grafts. When the station’s reporter asked if the patient had consented to such use, LIS wrongly said “yes”. The Plaintiff suffered great embarrassment as a result of the broadcast. He sued both LIS and the television station.
(a) Discuss the liability (if any) of the Defendant, Look International Enterprises(LIS);
(b) Discuss the liability (if any) of the Television Company;
(c) Include discussion/references as to the degree to which (if any) there is any “protection of privacy” applicable in Ontario;
(d) How would a Judge assess monetary damages for “embarrassment”?
(e) What criteria/factors should determine the amount awarded for “embarrassment”?
Case No. 4
Human Rights – Disability – Duty to Accommodate
Description of Case:
Datt had worked for McAdams restaurant for 23 years (taking orders, cleaning) when in 2007 she came down with a skin condition on her hands that was made worse by frequent hand washing. She took several short-term disability leaves but her condition always worsened after she returned to work. McAdams said that frequent hand washing was necessary to maintain acceptable sanitary conditions, to meet both government regulations and its own hygiene policies. For example, the restaurant has a times system where a timer sounds each hour, and all crew members and the manager must wash their hands. Datt’s doctor reported that she could not perform any job requiring frequent hand washing but there were duties she could perform, including cash, some food preparation, and some cleaning. However, in August 2009 the benefits provider told Datt she would not be able to return to work because “restaurant work was not good for her” and offered her a three-month job search program. In November 2009, McAdams terminated her employment. Datt filed a human rights application to the Ontario Human Rights Commission/Tribunal pursuant to Ontario law.
Please address the following issues in reviewing the merits of the human rights application:
Questions:
1. Did Datt have a disability? How is a “disability” defined pursuant to the Ontario Human Rights Code?
2. Was this a case of discrimination? Why or why not?
3. Did the employer have a duty to accommodate Datt and if so, did it fulfill that duty up to the point of undue hardship? Explain your answer.
4. If you were a member of the Tribunal, how would you decide this particular case?