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Wednesday, October 20, 2004

Blame the law, not the lawyer

[originally posted to Daimnation!]

We lawyers don't have the best reputation, and this probably isn't going to help matters:

A 26-year-old recent law school graduate may have cost the City of Toronto millions of dollars. He's persuaded a court to throw out a traffic ticket because the road sign was not in both official languages.

If the decision stands up, hundreds of thousands of road signs across the city will have to be replaced, at a cost of $200 each.

The sign in dispute has an image that says no left turn, "7 a.m.-7 p.m. Mon to Fri."

Jennifer Myers was handed a traffic ticket after a police officer caught her violating the sign's warning.

Myers, a lawyer at Toronto firm Pinkofskys, turned the citation over to Daniel Brown, an articling student who'd been with her firm for just two months. She thought it would give him some courtroom experience.

Not only did Brown get the ticket thrown out, he convinced justice of the peace Alice Napier that all of the city's traffic signs were in contravention of a clause in the Ontario's French Language Services Act. The clause appears to require a number of the province's cities, including Toronto, to display traffic signs in both English and French.
Myers admitted to CFTO that she speaks very little French. Nevertheless, she argues "this defence was there to be argued." Brown says if the sign is illegal, it is invalid.

"It was clear from the legislation that French and English signs were required and it is unfair to hold someone accountable to a sign that is not a lawful sign," he explained.

The city says it will appeal the decision. The city's lawyers say the Highway Traffic Act makes it clear that the clause in question in the French Language Services Act only applies to provincial government services.

The accused doesn't even speak French, but got her ticket tossed out because the sign wasn't in French. It seems outrageous on so many levels - and yet, I find myself wanting to congratulate Brown for coming up with this. I've been called to the bar for five years, and I certainly never would have thought of it.

If the legislation says the signs have to be bilingual but they aren't, the city is in breach of its legal obligations. You can argue that Toronto shouldn't be forced to make all its signs bilingual in the first place, and I'd probably agree - but if that is indeed the law, the city has to follow it. Period. If a government is not subject to the rule of law, well...I don't even want to think about where that could lead.

The key word here, of course, is "if". I presume Brown based his argument (and the judge, his decision) on Section 5 of Ontario's French Language Services Act, which states that a person has the right to recieve French-language services from any government listed in the Schedule, including Toronto. Do road signs count under "available services"? If so, that would appear to contradict section 14 of the Act, which gives a municipality the option of passing a by-law making "all or specified" municipal services bilingual. If section 5 automatically makes all services bilingual, what's the point of section 14?

That's the position the City of Toronto will be taking on appeal, and I think they'll be successful. But I give Daniel Brown a lot of credit for thinking up the defence. He'll go far in this business.

Posted by Damian Penny on October 20, 2004 in Municipal Politics | Permalink


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Damn stupid lawyers. Y'all should be banned like asbestos or round up like buffalo and pushed off a cliff.

Posted by: Orlande Hi | 2004-10-20 10:20:08 AM

Everybody hates a dirty rotten sumbitch lawyer.

(Until they need one.)

Posted by: Sean | 2004-10-20 10:24:06 AM

If MegaSty's appeal is unsuccessful, look for a proliferation of negligence suits based on bilingual signs being too confusing and therefore faulty human factors engineering.

Posted by: Charles MacDonald | 2004-10-20 10:29:38 AM

I haven't read the decision, but I don't see how this one slipped through. The definition of "government agency" specifically excludes municipalities. Section 5 doesn't say anything about municipal governments having to provide services in French. It says " 5. (1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule." Note that the reference is to "any other office of such agency". No municipality there. Given that section 14 is permissive rather than mandatory, I see no obligation on T.O's part to provide all services in French. Even if there were a conflict between sections 5 and 14, I think the maxim "generalia specialibus non derogant" (general enactments cannot serve to derogate special enactments) would apply. The decision also seems vulnerable on the basis of a differentiation between "services" and by-law enforcement. My three and a half cents.

Posted by: Alan | 2004-10-20 10:54:05 AM

Besides, Toronto could solve the problem by passing retroactive amending legislation.

Posted by: mungroo | 2004-10-20 11:25:47 AM

It's that fine line between clever and stupid again!

Posted by: Kathy Shaidle | 2004-10-20 11:26:59 AM


The wonder of it all, pace Alan, is not that the magistrate did or did not intepret the enactment correctly; rather it is that in their haste to provide the holy grail of bi-lingual services, the Legislature could have passed a statute which is sufficiently ambiguous for there to be even the possibility of this argument.

Mr. Brown has done the City of Toronto and the Province of Ontario a huge favour by underlining that ambiguity.

Bet he gets hired back.

Posted by: Jay Currie | 2004-10-20 12:18:26 PM

Result-oriented decision making finds ambiguity where it pleases. At first glance, I don't see it here.

Posted by: Alan | 2004-10-20 12:48:14 PM

God forbid that people should grow a moral backbone and just accept the consequences of what they know to be wrong.

A stupid man doing what he knows is wrong will always claim it was his duty.

Posted by: lrC | 2004-10-20 2:38:22 PM

Lawyers are the only ones who benefit from the huge octopus that is government, passing dumb laws and spreading its tentacles over every aspect of life.

Posted by: Michael Dabioch | 2004-10-20 2:57:56 PM

Well put Michael!

But lawyers aren't the only ones who benefit. Any well-organized special interest group will make out like bandits, as long as they make it clear that their vote is for sale. Especially when they're concentrated in a few ridings.

I don't think Franco that I have to name Ontarians any names or make Tamil it personal now, Tigers do I?

Posted by: Justzumgai | 2004-10-20 6:33:33 PM

"Lawyers are the only ones who benefit...".

As a lawyer with a permanently sunburnt nape, I'll observe that our victory is somewhat Pyrrhic. We foot the bill to feed the "octopus" and we share in its inevitable disgrace.

There's an old saying: The pigs get greedy, and the hogs get slaughtered.

Posted by: Charles MacDonald | 2004-10-20 7:23:04 PM

I love it. Tangle the state up in its own ridiculous edicts. It's as good a strategy as any to get Them to screw off.

Posted by: Jay Jardine | 2004-10-21 7:51:11 AM

Unfortunately, Jay, the state has only to tax and spend more of our money in order to untangle itself from its own edicts. What could be simpler?

Posted by: Alan | 2004-10-21 10:31:55 AM

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