BLG Monthly Update - January 2013

The BLG Monthly Update is a digest of recent developments in the law which Neil Guthrie, our National Director of Research, thinks you will find interesting or relevant – or both.

ADMINISTRATIVE

Bong hits for judicial review

On the night before graduation from Appleby College, a private high school near Toronto, Gautam Setia went back to a chum's dorm room to smoke the rest of the pot they had started somewhere off-campus. The director of residence burst in, discovered boys and bong, and promptly filed a 'serious incident report'. Setia was expelled for violating Appleby's code of conduct, which reserved the right of the school to apply 'a full range of sanctions, including expulsion' for infractions. He was also denied his diploma.

Setia challenged the school's decision, on the grounds that natural justice had been violated: Setia v Appleby College, 2012 ONSC 5369. First, though, a jurisdictional question: was this a decision which was subject to judicial review or a private contractual matter? The Ontario Divisional Court concluded that it had jurisdiction to hear the case because the college was established by a special Act of the legislature; the disciplinary powers of its principal are statutory not contractual in nature, and thus subject to judicial review. The majority of the court agreed with Setia that natural justice had been flouted: the young man had not been given notice of the specific infraction (the allegations against him appeared to conflate a violation of the fire safety code with a violation of the substance abuse policy), had not been given a right to be heard and was subjected to an unreasonably harsh penalty. On the last point, the evidence showed that Setia had not been the lighter of the bong, or the owner of either the bong or the stash. The other boy had said at the time the director of residence turned up that Setia had not been involved, and there was no evidence that he had actually lit anything (although he had inhaled). Appleby treated the incident as a 'zero tolerance' fire issue, when it should have assessed it as a drugs infraction that did not need to attract such a harsh penalty. In any event, Setia was not given the opportunity to make submissions on the appropriate sanction. The court declined to order Appleby to award the diploma, but the new head of school was invited to reconsider that decision in light of the court's reasons. Chapnik J, dissenting, agreed on the jurisdiction issue but did not think there had been a failure of procedural fairness or natural justice.

Marty Sclisizzi and Margot Finlay of the Toronto office of BLG acted for Appleby College, which will be seeking leave to appeal the jurisdictional point.

[Link available here].

ART LAW

Shaking down the sheikh

The venerable London numismatic auction house of AH Baldwin & Sons, with two other dealers, recently obtained a worldwide freeze on the assets of Sheikh Saud bin Muhammad Al Thani, a cousin of the Emir of Qatar and one of the world's biggest collectors -- as well as one of its most controversial. A £1-billion shopping spree on behalf of Qatar's national museum resulted in the sheikh's detention back home in 2005 for alleged falsification of sales receipts. Last month, he stiffed Baldwin's and the other two dealers to the tune of US$20 million after a sale of ancient Greek coins in New York: hence the freezing order. The ruling from Haddon-Cave J indicates that the Qatari collector also owes the Bonhams auction firm the princely sum of £4.3 million and a further US$42 million to Sotheby's. The latter's securities filings disclose that as of September 2012 a single unnamed customer (presumably the sheikh) owed the auction house US $56.1 million; he has pledged a number of 'purchases' to Sotheby's Financial Services, including a US$5.5-million Fabergé egg.

[Link available here, here, here and here].

CIVIL PROCEDURE/PRIVACY

UK Supreme Court restates Norwich Pharmacal test

The United Kingdom Supreme Court has restated the test required to obtain information from a person who 'gets mixed up in the tortious acts of others' and who thereby comes under a duty to assist the person who has been wronged, in The Rugby Football Union v Consolidated Information Services Ltd, [2012] UKSC 55. The Rugby Football Union (RFU) has a mandate to promote rugby which includes not selling tickets for profit. RFU was therefore concerned when it found out about the activities of Viagogo Ltd (now Consolidated Information Services), which was facilitating the resale of tickets for matches at Twickenham stadium at a profit (which under the RFU's terms and conditions would render the tickets null and void). RFU sought a Norwich Pharmacal order requiring Viagogo to disclose the names of those who had been involved in ticket reselling, so it could take action against them. Viagogo resisted, ultimately relying on article 8 of the European Charter of Fundamental Rights, which protects personal data. Both the trial judge and the English Court of Appeal found that any interference with personal privacy was proportionate to the RFU's legitimate objective in going after wrongdoers. The UKSC agreed.

In doing so, the Supreme Court reiterated the law as set out in Norwich Pharmacal Co v Customs & Excise Commissioners, [1974] AC 133, and as developed since. (Notably, subsequent cases have held that any form of redress, not just legal action, will suffice as the basis of a Norwich order.) Whether a Norwich Pharmacal order would be 'a necessary and proportionate' response to wrongdoing depends on a range of relevant (and interdependent) factors: (i) the strength of the applicant's possible cause of action, (ii) the strength of the public interest in allowing the applicant to vindicate that right, (iii) whether an order would help to deter similar wrongdoing, (iv) whether the information sought could be obtained from another source, (v) whether the respondent knew or...