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A recent decision by the Ontario Court of Appeal (the “Court”) in Sagharian (Litigation guardian of) v. Ontario (Minister of Education),  O.J. No. 2009 at 1 (C.A.) [hereinafter Sagharian] focused on how children with autism and their parents pleaded claims in their class action suit. The Court’s decision is not fatal to all of the claims of children with autism and their parents. However, the Court was clear that future claims must be pleaded more precisely, and with more factual basis, for a chance of success.
On May 23, 2008, the Court released its unanimous decision. The appeal was from a decision regarding a motion to strike the appellants’ statement of claim in a proposed class proceeding that challenged the provision of autism and education services to children with autism. There was also a cross-appeal from the decision of the motion judge before the Court.
The appellants were autistic children and their parents. There were two different respondents in the case. One respondent was Her Majesty the Queen in Right of Ontario as represented by the Minister of Education and the Minister of Children and Youth Services (“Ontario”). The other respondents were a group of seven named school boards, including York Region District School Board, York Catholic District School Board, Peel District School Board, Dufferin-Peel Catholic District School Board, Toronto District School Board, Toronto Catholic District School Board, and Durham District School Board (the “school boards”). Because Ontario cross-appealed the decision of the motion judge, the appellants on the appeal (children with autism and their parents) were also respondents on the cross-appeal, and the respondents on the appeal (Ontario and the school boards) were also appellants on the cross-appeal.
The court allowed the appeal and cross-appeal in part.
The originating action was a statement of claim filed by autistic children and their parents and issued under the Class Proceedings Act, on April 5, 2005. The plaintiffs (the appellants in Sagharian) sought to represent a class of similarly situated persons. The statement of claim was amended on April 25, 2006 and again on August 8, 2006, after decisions from other cases brought by autistic children and their families were released.
Ontario requested an order striking the plaintiffs’ statement of claim and dismissing the action against Ontario, and the school boards moved to strike seven paragraphs of the statement of claim.
Only specific aspects of the appellants’ claims and the motion judge’s decision were before the Court of Appeal.
A brief synopsis of the grounds for the appeal and cross-appeal, and of the Court’s decision on the appeal and cross-appeal will provide a framework for understanding the different issues the Court considered and determined.
The motion judge struck a number of the appellants’ causes of action. However, the appellants did not appeal all aspects of the motion judge’s decision. Specifically, they appealed the motion judge’s decision to strike their claims for negligence, breach of fiduciary duty, breach of s. 7 of the Charter (Right to Life, Liberty and Security of the Person), and the claim for Charter damages.
The appellants also argued that their claims against the school boards should not have been struck because on the motion, the school boards did not seek to have the claims against them struck in their entirety. Rather, the school boards only sought to strike certain paragraphs in the statement of claim.
Ontario cross-appealed the motion judge’s refusal to strike the appellants’ s. 15(1)Charter claims (Equality Rights) of discrimination on the bases of age and disability. The school boards did not file a separate cross-appeal from Ontario’s cross-appeal.
The appeal was dismissed in part. The Court upheld the motion judge’s decision that there were no causes of action for negligence, breach of fiduciary duty, or for a s. 7 Charter breach (Right to Life, Liberty and Security of the Person).
The Court varied the motion judge’s order and struck, without leave to amend, the appellant’s s. 15(1) (Equality Rights) Charter claim based on age discrimination. The Court struck in its entirety, with leave to amend, the appellants’ s. 15(1) (Equality Rights) Charter claim based on disability discrimination. In conjunction with its decision on the s. 15(1) claim related to disability discrimination, the Court also struck the appellants’ s. 1 Charter claim (Reasonable and Justifiable Limits) with leave to amend.
The claim for Charter damages based on government negligence was struck with leave to amend to plead concisely the basis for the remedy sought, and the Court granted the appellants leave to amend their claim in negligence against the school boards regarding the operation of programs.
The cross-appeal was allowed in part. The Court struck the age-based discrimination claim from the statement of claim without leave to amend. As indicated above, the disability-based discrimination claims were also struck, but with leave to amend.
“Three acronyms are used to describe autism-directed services. Applied Behaviour Analysis (ABA), which is the broadest of the terms, is an autism treatment based on behaviour modification. It includes Intensive Behavioural Intervention (IBI). The Intensive Early Intervention Program (IEIP) is a program that reflects IBI treatment, but it is specifically designed by Ontario for two to five-year-old children. While the appellants’ statement of claim addresses the IEIP, it also refers to ABA and IBI. This makes it difficult to know what the appellants are actually seeking.
The task faced by the motion judge was further complicated by the content and structure of the appellants’ statement of claim. In part, the motion judge attributed the difficulties with the pleading to its layered amendments, which attempted to respond to the release of decisions from this court such as Wynberg v. Ontario (2006), 82 O.R. (3d) 561, leave to appeal refused,  S.C.C.A. No. 441, Eliopoulos v. Ontario (2006), 82 O.R. (3d) 321, leave to appeal refused,  S.C.C.A. No. 514, and A.L. v. Ontario (2006), 83 O.R. (3d) 512, leave to appeal refused,  S.C.C.A. No. 36. However, the motion judge accurately observed at para. 7 that the amended amended statement of claim amounted to an ‘attempt to simultaneously bombard all targets from all angles with every available piece of ammunition.’ The problem is exacerbated on appeal because the appellants advised that they would further amend the pleading to delete all paragraphs relevant to the public misfeasance claim that was struck by the motion judge. Since they have not yet done so, it continues to be difficult to correlate the appellants’ allegations of fact with their proposed causes of action. This was, and remains, a major problem affecting any determination of the viability of the appellants’ claims.
The Court noted that the motion judge’s decision to strike out some claims and to allow others was based primarily on his interpretation of the Wynberg case, which had been decided by the Court of Appeal in 2006. The motion judge had to determine whether the decision in Wynberg disposed of the issues in the appellants’ statement of claim.
· the IEIP program for younger children was a targeted ameliorative program that did not demean the human dignity of the older children.
The appellants claimed discrimination under s. 15(1) on the basis of age and on the basis of disability.
As pointed out earlier, the appellants’ statement of claim was challenged on the pleadings motion for being too vague and lacking in precision. The motion judge noted that “essentially the same alleged breach based on age discrimination was in issue in Wynberg except that the focus of the complaints was confined to access to IEIP exclusively, rather than to IEIP as a form of ABA.” Ultimately, the motion judge did not strike this claim from the statement of claim.
On appeal, the Court based its decision on this issue on the fact that it had already determined in Wynberg that the government did not violate the s. 15(1) equality rights of children with autism on the basis of age. The Court disagreed with the motion judge’s finding that the appellants’ statement of claim contained facts that were sufficiently different from the facts in Wynberg to support a different finding than Wynberg.
The Court relied on two other factors. First, that in Wynberg, the Court had held that any s. 15(1) age discrimination was justified under s. 1 of the Charter(Reasonable and Justifiable Limits). And secondly, that the age limit had been removed in 2005, so the issue of age-discrimination was moot.
For these reasons, the Court held that the age-discrimination claim had no chance of success and should have been struck in its entirety from the appellants’ statement of claim without leave to amend.
In addition to different facts, another difference from Wynberg was that the appellants based the disability aspect of their equality claim on the respondents’ duty to accommodate rather than on a statutory duty to provide service, which was alleged in Wynberg. In addition, the case before the Court was also different from Wynberg because the appellants named the School Boards as parties.
The Court found that “the motion judge read the appellants’ statement of claim extremely generously” and noted that “it is far from clear that the appellants can plead a disability claim that is compellingly different from that already determined in Wynberg.” However, (and this is important), the Court did find that it was possible for the appellants to base a claim on the respondents’ duty, and subsequent failure, to accommodate children with autism. The Court noted that the appropriate comparator group for this claim would be other children with disabilities in the communication category, including children who are deaf, blind or deaf/blind.
In the end, the Court struck in its entirety, with leave to amend, the section 15(1)Charter claim (Equality Rights) alleging discrimination on the basis of disability.
The appellants’ s. 1 Charter claim alleged that the respondents’ s. 15(1) Charterbreaches are not reasonable and justifiable limits of the appellants’ equality rights. Specifically, the appellants alleged that “there are no pressing and substantial objectives that are rationally connected to the chosen limits, and that the breaches are broad and arbitrary and not proportional or minimal in their harmful effects.” The motion judge found that the appellants’ s. 1 Charter claim was material and sufficient, and did not strike the claim. However, on appeal, the Court held that the appellants’ s. 1 claim may need to be restructured in accordance with any amendments to their s. 15(1) claim related to disability discrimination. As a result, the Court struck the s. 1 claim, with leave to amend.
On appeal, the Court struck the claim for Charter damages based on government negligence, with leave to amend to plead concisely the basis for the remedy sought.
The Court upheld the motion judge’s decision that there was no cause of action for negligence, breach of fiduciary duty or a s. 7 (Right to Life, Liberty and Security of the Person) Charter breach. However, the Court did give the appellants leave to amend their claim in negligence against the school boards regarding the operation of programs.
On September 2, 2008, the Ontario Human Rights Tribunal (the “Tribunal”) released an interim decision on a preliminary objection raised by the Toronto District School Board (the “Board”) in the human rights case, Campbell v.Toronto District School Board,  O.H.R.T.D. No. 60, 2008 HRTO 62 [Campbell cited to O.H.R.T.D.] (“Campbell”). As this was only an interim decision, Campbell is still before the Tribunal.
The Campbell complaint alleges that the Board discriminated against a student with autism spectrum disorder on the basis of disability by failing to provide appropriate accommodations in the delivery of education services to the student.
The Identification, Placement and Review Committee (the “IPRC”) had identified the student’s exceptionalities as autism and developmental disability, and had determined that the student’s placement should be a special education class. The student’s parent appealed to the Special Education Tribunal (“SET”) the IPRC’s decision regarding placement. The parent also filed a complaint with the Human Rights Commission (the “Commission”).
Over six days in May-July, 2006, the SET held a hearing to determine the appeal. On September 5, 2006, the SET’s decision confirmed the student’s placement in a self-contained special education class and directed specific measures to be included as part of the placement.
The Tribunal based its decision primarily on the abuse of process doctrine and held it would not be fair to permit the re-litigation of issues that had been determined by the SET. The Tribunal found that section 45.1 of the Code was “an additional basis for precluding the Commission and the complainant from re-litigating issues that were the subject of findings by the SET” (para. 70).
The Tribunal held that the abuse of process doctrine applied to the facts in the present case and pointed out the Tribunal has a duty to ensure the integrity of the adjudicative process.
“I am satisfied that the general question before the SET is the same as that before this Tribunal: what accommodations are required in order for the complainant to have access to education services. Further, I am satisfied that the mandate of the SET is not limited to a decision about whether to place a student in a regular class or special education class, but includes a consideration of the programs and services required to achieve appropriate accommodation. In fulfilling this mandate, the SET is making decisions about matters addressed by the Code. Further, on my review of the statutory scheme of special education and decisions of the SET, I see no reason to view its directions as non-binding, insofar as it makes directions about specific programs and services.” (para. 48).
The Tribunal also relied on the Supreme Court’s decision in Eaton v. Brant County Board of Education, 1997 CanLII 366, to find that the SET’s analysis regarding placement and appropriate accommodation is based on the standard of “best interests of the child”, and is consistent with the equality rights of special education students under section 15(1) of the Canadian Charter of Rights and Freedoms.
The Tribunal concluded that relitigation of the facts would be unfair and would place the Tribunal in the position of being an appellate body with respect to the decision of a different expert Tribunal.
The Tribunal noted that section 45.1 of the Code expresses a legislative intent to avoid duplication of proceedings and held that section 45.1 of the Code applied to the present case.
As a result of the Tribunal’s findings, it struck a number of paragraphs from the Commission’s pleadings. The remainder of the Commission and complainant’s allegations against the Board are still before the Tribunal at this time.
The British Columbia Supreme Court recently reviewed the decision of the British Columbia Human Rights Tribunal in Moore (Moore v. B.C. Ministry of Education, 2nd School District No. 44,  BCHRT 580).
The Tribunal found that both the Ministry of Education and the School District had discriminated in the provision of programs and services to Moore, who suffers from dyslexia. The Supreme Court quashed the decision as against the Ministry as well as the School District.
The decision was reviewed on the basis of correctness with respect to legal issues and issues of mixed fact and law.
The Court noted that the Tribunal’s failure to properly define the subject matter of the claim led to a failure to identify an appropriate comparator group and conduct a proper analysis.
The Tribunal had identified the subject matter of the claim to be education services, while the Court found the proper subject matter of the claim to be special education services provided to special needs students.
The Tribunal also failed to identify a comparator group, finding that it was not required in the circumstances, because the case was regarding access to a benefit. The Tribunal, however, added that, if a comparator group analysis was required, the issue was the quality of the services provided, not whether or not a service had been provided. The Court disagreed with this approach.
The Court commented that the approach the Tribunal had taken was to consider whether or not the services provided to Moore were appropriate in comparison to the level and quality of services that academic experts identified as appropriate for Moore.
The Court found that a comparator was necessary and identified the appropriate comparator group as other students of the District with special needs. However, as a result of the approach taken by the Tribunal, there was little or no evidence of what other students with special needs received, as such there were insufficient facts on the record to conduct the analysis.
The Court also found that there was insufficient evidence to proceed with a systemic discrimination claim against both the Ministry of Education and the District, stating “Similarly, there is a paucity of evidence to support systemic discrimination on a comparative analysis to be able to conclude that SLD [severely learning disabled] students were disproportionately impacted”.
It should be noted that in Ontario the Education Act requires that an “appropriate” educational program be provided to exceptional pupils. Therefore, in a discrimination case an analysis of the programs and services provided to a student would include the quality of those programs and services, as compared to the quality of a comparator group, perhaps another student at a different school or even school board.
Although not noted by the Court explicitly, as it was not relevant given the other findings, there were many problematic findings of fact made by the Tribunal, which consisted of comparisons between the services provided to the Complainant, Moore, between the years 1992-1995 (the dates of the alleged discrimination) and the methods and approaches for addressing the needs of student’s with learning disabilities that were either accepted by the professional literature after the period of alleged discrimination, or never fully adopted by educators in the province.
The case before the Tribunal was also problematic as a result of the lapse of time between the alleged discrimination and the date of the decision. The decision of the Tribunal was released in December of 2005. Significant changes in education would have taken place in the intervening time frame, which might have given rise to issues regarding the appropriateness of implementing the decision, if it had not been quashed by the Court. Such issues of delay were also a concern in Ontario until recently. It is hoped that the recent changes to Ontario’s Human Rights adjudication will assist in ensuring that cases are heard in a timely fashion.
In Saskatchewan (Human Rights Commission) v. Prince Albert Roman Catholic School Division No. 6,  S.J. No. 434, the Saskatchewan Court of Queen’s Bench upheld a decision of the province’s Human Rights Tribunal that dismissed a complaint of discrimination on the basis of disability in the context of a school suspension. The Human Rights Commission (“the Commission”) appealed on the grounds that the Tribunal erred in law in its determination that the Commission had failed to establish a prima facie case of discrimination in regard to the suspension of Travis Mahussier and that it had also erred in law in its finding that it was unnecessary to examine the School Division’s duty to accommodate Travis.
In May 2000, Travis Mahussier, a student at the WFA Turgeon Community School (“the school”), was suspended for using profane language. Travis, born in 1988, had Williams Syndrome. Williams Syndrome is a genetic disorder that affects cognitive development and Travis’ abilities at the time of his suspension were similar to those of a child of pre-school age. As part of his Williams Syndrome, Travis also experienced anxiety and verbal communication delays.
The school provided Travis with his own educational assistant and a time-out room dedicated exclusively to his use. In addition, the school made a special education consultant available to advise and assist in meeting his needs.
At the time of Travis’ suspension in May, disagreement existed between his parents and the school with respect to his personal pupil program.
Prior to the May 2000 suspension, Travis had been suspended on two occasions, both in February of 2000. The first suspension was for hitting a vice-principal and the second for using profanity. Throughout February and March of 2000, Travis spent very little time at school and on days he did attend, he was frequently picked up early by his mother. That Travis’ educational program was not working was not in dispute by the parties.
Under s. 32(1) of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, a statutory right of appeal to the Court of Queen’s Bench is available to a party to a proceeding before a human rights tribunal on a question of law.
Upon Travis’ suspension in May 2000, his parents argued that the suspension was discriminatory because Travis was being disciplined for behaviour that was a product of his Williams Syndrome disability. The Commission had the onus of establishing prima facie discrimination on the balance of probabilities. This required the Commission to prove that Travis had a disability and that his disability was a factor in the school suspension. The Court upheld the Tribunal’s assessment that the Commission had not established prima facie discrimination.
While it was clear that Travis had a disability, there was no evidence to indicate that using profane language was a symptom of that disability. Rather, the profanity was likely the result of learned behaviour to gain attention or to express frustration. The Court found that children without Williams Syndrome might use profanity for the same reasons.
Suspension was recognized by the Court as a legitimate, even if not ideal, method for the school to address this inappropriate behaviour. Evidence given by the school’s principal indicated that he had previously suspended a student for swearing when addressing a teacher. The Court found that the school suspended Travis as it would have any other student who used profanity.
The Commission argued that Travis’ suspension was discriminatory because it limited Travis’ access to his educational program. The Court was not persuaded by this argument, finding that it was a criticism of suspensions generally.
The lack of evidence that use of profanity was a characteristic of Travis’ disability, the power of schools to use suspensions in response to inappropriate behaviour, and the evidence that suspensions were not used in a discriminatory manner, led the Court to conclude that no prima facie case of discrimination had been made out by the Commission. As it found no prima facie case of discrimination, the Court declined to address whether the School fulfilled its duty to accommodate Travis.
In Ontario the assessment of the Tribunal and the Court would also include the mitigating and other factors, which might be found to mitigate discipline in similar circumstances.
The importance of procedural fairness in school closure cases was reiterated by the Saskatchewan Court of Queen’s Bench in Christianson v. Chinook School Division, No. 211,  S.J. No. 403. The judgment emphasized the requirement that school boards comply with both statutory obligations and the common law duty of procedural fairness when making the decision to close a school. The Education Act, 1995 in Saskatchewan contained specific provisions outlining procedures for boards to follow when making school closure determinations, which were subsequently amended and came into force the day the decision was issued.
The Applicants in Christianson were parents of children attending the Climax School in the small community of Climax, located in south western Saskatchewan. The Climax School was part of the Chinook School Division (“the Board”). The Applicants were seeking four remedies: a declaration that the Board breached it duty of procedural fairness; an interlocutory injunction preventing the Board from closing the Climax school; an order quashing the Board’s decision to close the school; and an order of mandamus directing the Board to review the viability of the school and its decision.
The applicants acknowledged that the Board had complied with the statutory requirements set out in s. 87 (Powers of the Board) of the Education Act, but argued that the duty of procedural fairness required the Board to engage in ongoing consultations with the applicants throughout the 2007/2008 academic year. In its judgment, the Court described the wider context in which the school closure decision was made and analyzed the steps taken by the Board to ensure that its process was fair. In the result, the Court dismissed the Application and found that the Board had acted in a procedurally fair manner throughout the school closure determination process.
In January 2006, Saskatchewan’s restructuring of its school divisions came into effect, which resulted in the creation of the geographically large Chinook School Division. The new Board developed policies and procedures that were to be applied to school discontinuance (i.e. of specific grades within schools) and closures. These policies were developed after consultation with the public during the spring of 2006 and extensive staff research into the circumstances of each school. The Board developed a Draft Classification Plan, which proposed the use of 15 criteria, including: geography; enrolment; facility usage; and cost per student, to classify schools. From the Classification Plan, the Board developed a School Viability Policy. In December of 2006, the Board heard from individuals in the community, including representatives from Climax.
In January of 2007, the Board applied the Classification Plan and Viability Policy to its schools. Schools classified as “under review” could be subject to grade discontinuance or closure. A motion by the Board to proceed with either option would then activate the statutory obligations of the Board pursuant to s. 87 of theEducation Act.
The application of the Classification Plan and the Viability Policy led the Board to put Climax School under review. As a result, in January of 2007 the Board decided that it would close Climax School, but no earlier than August of 2007. Community meetings were held in March and April of 2007 and the Climax community was given the opportunity to make representations to the Board. Low enrolment was a significant factor in the decision to close the school, but members of the community argued that enrolment might increase in the near future. A doctor with 5 children was contemplating moving to Climax and Sun Tech Energy was considering establishing a plant in the community. As a result of the public meetings, the Board decided that it would close the school no earlier than June 2008, thereby providing a window of time to see if enrolment would increase, thus making it viable to keep the school open.
Enrolment did not increase and the Board reconsidered the Climax School closure in April of 2008. The decision to close the school sometime after August 2008 was upheld.
In contemplating whether or not the Board had acted in a procedurally fair manner, the Court outlined the various steps taken by the Board to consult with the public, as well as the requirements of s. 87 of the Education Act and the common law duty of procedural fairness as outlined in the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), S.C.J. No. 39. In Baker, the Supreme Court listed a variety of factors to be considered when making a determination regarding the requirements of the common law duty of procedural fairness, in a particular circumstance. The factors to be considered include: the nature of the decision; the nature of the statutory scheme; the importance of the decision to the individual affected; the legitimate expectations of the party challenging the decision; and the nature of deference to be accorded to the deciding body.
After considering all of these elements, the Court found that procedural fairness was accorded pursuant to s. 87 of the Act and the principles set out in Baker. Further, the Court held that the Board demonstrated its open mind when it deferred its decision for one (1) year in order to evaluate any changes to the circumstances of the Climax community and its school.
On the day the Court rendered its judgment in Christianson, amendments to s. 87 of the Education Act came into effect. While the s. 87 provisions under which the Court made its decision mandated notice to and consultation with the school community, the new provisions provide more detailed legislative requirements. The new provisions outline specific notice periods (s.87.2(1)), require the establishment of school review committees for schools being considered for discontinuance and/or closure (s. 87(4)), and mandate a meeting of electors regarding the consideration of the school closure or discontinuance (s. 87.5(1)). Thus, while the common law duty of procedural fairness remains unchanged for Saskatchewan’s future school closure cases, the more stringent statutory requirements require increased diligence on the part of the province’s boards in making closure determinations.
Interestingly, the revisions to the school closure process in Saskatchewan are similar to those mandated by the Ministry of Education in Ontario.
The decision of the Minister of Education of New Brunswick to phase out an Early French Immersion program for Anglophone elementary students was the subject of a recent judicial review in Small v. New Brunswick (Minister of Education),  N.B.J. No. 208.
The application, brought by a number of Anglophone parents of children registered to attend the Early French Immersion (“EFI”) program in September 2008, alleged that the Minister’s decision infringed their s. 16 (Official Languages), s. 16.1 (English and French Linguistic Communities in New Brunswick) and s. 23 (Minority Language Educational Rights) rights under theCanadian Charter of Rights and Freedoms and was contrary to their rights to natural justice and procedural fairness. The Applicants submitted that they had legitimate expectations that the EFI program would not be cancelled before they had a reasonable opportunity to make representations.
The Province responded claiming that its decision to phase out the EFI program was one based on policy and was therefore within the Minister’s legislative authority and not subject to the rule of legitimate expectation and could not be judicially reviewed. Further, the Province argued that if the rule of legitimate expectation did apply, the Applicants had been provided a sufficient opportunity to express their views to the commissioners and the Minister.
Finding no legal grounds to challenge the decision based on Charter rights, the Court focused its decision on the common law right to natural justice and procedural fairness.
In July 2007, commissioners were appointed to conduct a review of French second-language programming in the province of New Brunswick and to release recommendations in a final report. The Minister of Education issued a statement informing the public that it would respond to the commissioners’ recommendations within two months of the report’s release, and would “allow for a full debate and cabinet response” prior to making any changes in September 2008.
The report was released to the public on February 27, 2008, together with a news release with an invitation for public comment. The invitation for comment requested feedback regarding the review of French second-language programs within the Anglophone school system and the findings and recommendations contained in the commissioners’ report. The news release, however, did not identify the two week timeline before the Minister would be making a decision regarding the recommendation to phase-out the EFI program.
A second news release was issued two days later, highlighting the improvements being made to French second-language programs and services, but it also failed to inform the public of the timeline and decision being made by the Minister regarding the EFI program.
On March 14, 2008, two weeks after the first public invitation for comment, the Minister decided to accept and implement the recommendations in the report, including the recommendation to phase out the Early French Immersion program.
The Court affirmed the importance of fairness in public decision-making. The Minister’s decision in March 2008 was found to be in contravention of the Minister’s representation in July 2007 that the decision-making process would “allow for a full debate”. The Court concluded that the Minister’s invitations for public comment did not satisfy the requirements of consultation reflected by his representation nor did they provide sufficient opportunity for debate. The Court noted that the decision was made in approximately two weeks, one of which was the March break school vacation. Finding the decision-making process unfair and unreasonable, the decision was quashed and remitted to the Minister of Education for reconsideration with a direction that any further decision affecting the EFI program should be made in accordance with the principles of fairness and an opportunity for interested citizens to be heard.
The extension of the duty of procedural fairness to policy decisions of the Ministry of Education in New Brunswick is consistent with the approach of Ontario Courts which have consistently held that decisions by school boards effecting rights and privileges of their students will require the school board to provide those effected with the right to be heard before any decision is made.
In Nova Scotia v. Nova Scotia (Minister of Education),  N.S.J. No. 285, the Nova Scotia Court of Appeal upheld the decision of the Minister of Education of Nova Scotia to remove the members of the Halifax Regional School Board (“Board”) and to replace them with an appointed one-person Board.
Throughout 2005 and 2006, a series of problems plagued the Halifax Regional School Board ultimately resulting in the removal of its thirteen members by the Minister of Education. Issues of conflicts of interest, loss of quorum, breaches of the Board’s Code of Ethics and open hostility amongst the members identified a dysfunctional Board.
In response to the considerable negative public feedback, the Minister of Education issued ministerial directives requiring the Board members to participate in training, mediation, and an affirmation of their Code of Ethics. The Minister clarified that the new directives were to be considered part of their performance standards, and that he would exercise his ministerial discretion, including removing their authority, if necessary, to ensure their compliance.
Although it appeared that the directives had inspired the Board to work cooperatively, further instances of dysfunction occurred. In response, the Minister removed the authority of all of the members and assigned one person to replace the Board, citing the reasons for the removal of the members as the Board’s inability to meet its performance standards pursuant to the Education Act.
A group of the deposed members applied for judicial review of the Minister’s decision. The lower court found no breach of procedural fairness on the Minister’s part. The court granted the Minister’s decision considerable deference and found that it was not unreasonable in the circumstances. The court rejected the Board’s argument that the Minister’s decision violated their rights to free speech because the Code of Ethics was applied to comments made outside of Board meetings. The Court found that the Board’s Code of Ethics was expansive and should be applied broadly to the members’ actions.
The Applicants appealed to the Court of Appeal arguing that the Minister had breached the duty of fairness owed to the Board members; the Code of Ethics could not be applied to conduct outside Board meetings to support their dismissal; and the actions of some Board members could not justify dismissal of the entire Board.
The Court of Appeal reframed the issues focusing primarily on procedural fairness, and the application of the right to free speech protected by s. 2(b) (Freedom of Expression) of the Charter of Rights and Freedoms.
With respect to procedural fairness, the Court acknowledged that the Minister owed the appellants a duty to proceed fairly, and held that the lower court correctly determined that the Minister’s actions were procedurally fair.
Section 64 of the Education Act (Nova Scotia) provides that the Board is accountable to the Minister for the control and management of public schools within its jurisdiction and that it must meet the service and performance standards established by the Minister.
The Court found that the Minister provided fair warning that if the standards were not met, he would invoke his discretionary power, pursuant to s. 68 of the Act, to remove their authority. The Board members were asked to affirm their Code of Ethics, which they did, but some Board members breached their duties shortly thereafter.
The broad language of the Education Act in Nova Scotia provided the Minister of Education with significant power to address the dysfunctionality of the Board. In Ontario, such broad discretion does not exist, nor does the Education Act identify that Trustees have a duty to the Ministry. The duties of Trustees in Ontario are arguably owed to their electorate, not the Ministry of Education.

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§ 200-2 Applicability; license required.
§ 200-4 Cafe area; access by pedestrians.
§ 200-5 Music; alcoholic beverages; operating hours.
§ 200-6 Cooking; illumination; signage.
§ 200-7 Temporary convenience seating.
§ 200-8 Parking areas preserved.
§ 200-9 Trash and litter.
§ 200-10 Enforcement; penalties for offenses.
Licensing — See Ch. 184.
Noise — See Ch. 196.
Building Department Administrator of the City of Glen Cove.
Charter and Code of the City of Glen Cove.
Exterior seating wholly located on private property, adjacent to and part of a lawfully permitted restaurant, provided that seating and tables are open to the elements except for awnings, umbrellas and three-foot-high partitions of a temporary or permanent nature.
Public right-of-way owned by a municipal entity for the purpose of pedestrian use.
Exterior seating adjacent to and a part of a lawfully permitted restaurant that requires the use of a portion of a City sidewalk, provided that seating and tables are not affixed to the sidewalk and are open to the elements except for awnings and umbrellas and temporary posts and rails.
Exterior seating accessory to any lawfully permitted store such as a delicatessen, takeout eatery, bakery or similar establishment, where perishable food and nonalcoholic drink are prepared on the premises as a primary use, provided that seating and tables are not affixed to the sidewalk and are open to the elements except for awnings and umbrellas and temporary posts and rails.
No sidewalk cafe, outdoor cafe or temporary convenience seating, as defined herein, shall be established or allowed to operate on the effective date of this chapter unless a license has been obtained from the City Clerk after written approval by the BDA. Each license shall be nontransferrable and shall expire one year from the date of its issuance. Once issued, each license shall be prominently displayed in a window on the premises facing a City street. The City Clerk shall establish requirements for a suitable application to ensure compliance with the provisions of this chapter.
The applicant shall be the owner of a lawfully operating business which qualifies for a license as provided herein and the landlord must signify in writing assent to said application on a notarized form to be provided by the City Clerk.
Suitable liability insurance shall be produced to the satisfaction of the City Clerk showing that the City of Glen Cove is listed as a named insured thereon in an amount not less than $500,000 per person and $1,000,000 per incident, and $250,000 in property damage.
No special use permit or other zoning permission pursuant to Chapter 280, Zoning, of the City Code shall be required so long as the license applicant complies with the provisions of this chapter and so long as all other pertinent provisions of Chapter 280 and the chapters of the City Code are met in the opinion of the BDA.
No sidewalk cafe or outdoor cafe may provide seating in excess of 25% of the lawfully permitted maximum occupancy of the indoor restaurant to which it is immediately adjacent, unless permitted by the Planning Board as a special use permit after a public hearing pursuant to Chapter 280 of the City Code.
No sidewalk cafe shall extend from the front wall of the adjacent restaurant into the sidewalk more than half way toward the curb of any City street. In no case may a sidewalk cafe reduce unimpeded access along a sidewalk to a width of less than five feet.
Seating and tables provided for an outdoor cafe shall not block any public sidewalk or private walkway open to the general public including shopping center walkways by reducing unimpeded access to a width of less than five feet.
In determining compliance with this section, the BDA shall take into consideration how much, if any, sidewalk is private property and how much sidewalk pedestrians require to safely proceed along City streets.
No sidewalk cafe or outdoor cafe shall provide amplified music, recordings or any musical sound by electronic means through loudspeakers or similar devices, except by permit. Permits shall be available annually from Memorial Day through September 30 for the following days and times only: Friday and Saturday until 10:30 p.m., and Sunday until 8:00 p.m. Permits shall be applied for as prescribed in Subsection D below. Musical instruments and singing without amplification shall be permitted so long as the same does not disturb the peace of any nearby residentially zoned neighborhood.
Alcoholic beverages may not be served at any sidewalk cafe or outdoor cafe unless expressly authorized by the New York State Liquor Authority.
No sidewalk cafe or outdoor cafe shall operate before the start of business of the restaurant to which it is accessory or after the close of business of such restaurant.
Permits for the use of amplified music, recordings, or any musical sound by electronic means through loudspeakers or similar devices may be issued to sidewalk cafes or outdoor cafes upon application to the Building Department Administrator upon forms designed and provided by the BDA. Permits shall be granted at the discretion of the Building Department Administrator in consultation with the Chief of Police and may be revoked at any time for cause at the discretion of the Mayor. There shall be a permit application fee of $50. Only one permit is required per applicant per season, but applicants and permit holders are required to notify the Building Department of each date the applicant intends to utilize the permit to provide amplified music for its patrons. This notice shall be provided to, and on the form or forms designated by, the Building Department Administrator and must be provided 48 hours in advance of the desired date. Each date is subject to approval or denial, notwithstanding the prior issuance of a permit.
No sidewalk cafe or outdoor cafe shall provide outdoor cooking or the preparation of hot food or hot drink of any kind.
No spotlights shall be permitted in outdoor area; lighting shall be indirect and minimal and shall not exceed 25 watts per fixture with no more than four fixtures except that low wattage string lights such as Christmas lights may be permitted.
Advertising signs shall only be permitted pursuant to the provisions of Chapter 228, Signs, of the City Code.
Rollup awnings may be permitted as provided in Chapter 239; permanent awnings shall not project more than 30 inches beyond the front face of a building over a City sidewalk unless the BDA shall find that such an awning does not interfere with the enjoyment of light and air, or presents a safety hazard.
Seating and tables shall only be permitted immediately adjacent to a store front and shall not occupy more than 40 square feet along any store front sidewalk or walkway whether or not on private or public property and shall not exceed three tables, each no greater than 30 inches in width or diameter, and shall not exceed six chairs.
Seating and tables shall be removed from sidewalks each night immediately after sundown; when located on private property, seating and chairs shall be removed each night immediately after the close of business. In no case may tables and chairs be placed outside before the start of business.
Seating and tables shall not project more than four feet beyond the storefront and in no case may block any public sidewalk or private walkway open to the general public including shopping center walkways by reducing unimpeded access to a width of less than five feet.
Table service, outdoor food or drink preparation, alcoholic beverages, music or entertainment shall not be permitted at any time.
Rollup awnings may be permitted as provided in Chapter 239; permanent awnings shall not project more than 30 inches beyond the front face of a building over a City sidewalk.
No outdoor cafe, sidewalk cafe or temporary convenience seating shall be permitted in any parking space or parking lot required as off-street parking pursuant to Chapter 280 of the City Code unless permitted by the Planning Board after a public hearing pursuant to site plan review.
Every outdoor cafe, sidewalk cafe and temporary convenience seating approved pursuant to this chapter shall maintain seating areas clean and free of refuse and shall collect all litter, waste and refuse during the course of the business day. Waste pails and refuse containers may not be stored outdoors or maintained on the exterior of any cafe premises or seating area. Suitable waste pails and refuse containers shall be maintained inside the subject premises.
Any offense against the provisions of this chapter shall constitute a violation and shall be punishable by a fine not exceeding $1,000 for each such day that such violation exists. Any second or subsequent conviction for a violation of this chapter within any twelve-month period may result in immediate revocation or suspension of any license issued by the City Clerk herein without the necessity of a hearing.
The Building Department Administrator and the Police Department shall enforce the provisions of this chapter.
Editor's Note: Former § 200-11, Expiration of chapter, which immediately followed this section, was repealed 6-23-1998, and this chapter was extended indefinitely.


"consider, among others, each of the following factors: the seriousness of the offense, the facts and circumstances . . . which led to the dismissal; and the impact of a reprosecution on the administration of [the Act and] of justice."
18 U.S.C. § 3162(a)(2). After respondent failed to appear for his trial on federal narcotics charges, which was scheduled to commence in the Federal District Court in Seattle one day prior to the expiration of the 70-day period, 15 days not otherwise excludable under the Act elapsed between his subsequent arrest in California and the issuance by a federal grand jury in Seattle of a superseding indictment. Respondent's return to Seattle for trial during this period was delayed for various reasons, including slow processing by the Government. The District Court granted respondent's § 3162(a)(2) motion to dismiss with prejudice, finding that, although respondent was charged with serious offenses, the Government's "lackadaisical behavior" was inexcusable, and that the administration of the Act and of justice required a stern response. The Court of Appeals affirmed, concluding that, in light of the case's "peculiar circumstances," the lower court had not abused its discretion in dismissing with prejudice in order to send a strong message to the Government that the Act must be observed.
1. The Act establishes a framework which guides district court determinations of whether to dismiss with or without prejudice, and appellate court review of such determinations. Pp. 487 U. S. 332-337.
(a) Section 3162(a)(2)'s language establishes that, in determining whether to dismiss with or without prejudice, courts must consider at least the three factors specified in the section. The Act's legislative history indicates that prejudice to the defendant should also be considered before reprosecution is barred, and that the decision to dismiss with or without prejudice is left to the district court's guided discretion, with neither remedy having priority. Pp. 487 U. S. 332-335.
clearly their effect in rendering its decision. On appeal, the reviewing court must undertake a more substantive scrutiny than would be the case absent legislatively identified standards, in order to ascertain whether the district court has properly applied the law to the facts or whether it has ignored or slighted a factor that Congress has deemed pertinent to the choice of remedy. When the statutory factors have been properly considered, and supporting factual findings are not clearly in error, the district court's judgment of how opposing considerations balance should not be lightly disturbed. Pp. 487 U. S. 335-337.
2. Analysis of the record within the above framework establishes that the District Court abused its discretion in deciding to bar reprosecution, and that the Court of Appeals erred in holding otherwise. The District Court did not explain how it factored in the seriousness of the offenses with which respondent was charged. Rather, the court relied heavily on its unexplained characterization of the Government conduct as "lackadaisical," while failing to consider other relevant facts and circumstances leading to dismissal. Seemingly ignored were the brevity of the delay in bringing respondent to trial and the consequential lack of prejudice to respondent, as well as respondent's own illicit contribution to the delay in failing to appear for trial. The court's desire to send a strong message to the Government that unexcused delays will not be tolerated is, by definition, implicated in almost every case under the Act, and, standing alone, does not suffice to justify barring reprosecution in light of all the other circumstances. Pp. 487 U. S. 337-343.
BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined, and in all but Part II-A of which SCALIA, J., joined. WHITE, J., filed a concurring opinion, post, p. 487 U. S. 344. SCALIA, J., filed an opinion concurring in part, post, p. 487 U. S. 344. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 487 U. S. 346.
prejudice, as a remedy for a violation of the Speedy Trial Act of 1974, as amended, 18 U.S.C. § 3161 et seq. (1982 ed. and Supp. IV).
charge based on his nonappearance at the scheduled November 19, 1984, trial.
court were not to respond sternly to the instant violation. If the government's behavior in this case were to be tacitly condoned by dismissing the indictment without prejudice, then the [Act] would become a hollow guarantee."
A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. 821 F.2d 1377 (1987). The full panel agreed with the District Court's holding that respondent's failure to appear for trial on November 19, 1984, should not restart the speedy trial clock, and confirmed the District Court's calculation of 15 nonexcludable days between respondent's flight and the issuance of the superseding indictment. Id. at 1383-1385.
"Under the peculiar circumstances of this case, we see no need to disturb that ruling on appeal. The district court acted within the bounds of its discretion."
nonexcludable under the statute -- was of such studied, deliberate, and callous nature as to justify dismissal with prejudice."
On the Government's petition, which suggested that further guidance was needed with respect to the application of the Speedy Trial Act's remedy provision, § 3162, we granted certiorari. 484 U.S. 1025 (1988).
the information or indictment shall be dismissed on motion of the defendant. . . . In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice."
As is plain from this language, courts are not free simply to exercise their equitable powers in fashioning an appropriate remedy, but, in order to proceed under the Act, must consider at least the three specified factors. Because Congress employed somewhat broad and open-ended language, we turn briefly to the legislative history of the Act for some additional indication of how the contemplated choice of remedy should be made.
if justice would be done."
The legislative history also confirms that, consistent with the language of the statute, Congress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation. Prior to the passage of the Act, the dismissal sanction generated substantial controversy in Congress, with proponents of uniformly barring reprosecution arguing that, without such a remedy, the Act would lack any real force, and opponents expressing fear that criminals would unjustly escape prosecution. See generally A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, pp. 31-33 (Federal Judicial Center 1980); United States v. Caparella, 716 F.2d at 978-979 (reviewing legislative history). Eventually, in order to obtain passage of the Act, a compromise was reached that incorporated, through amendments on the floor of the House of Representatives, the language that eventually became § 3162(a)(2).
See 120 Cong.Rec. 41774-41775, 41778, 41793-41794 (1974). The thrust of the compromise was that the decision to dismiss with or without prejudice was left to the guided discretion of the district court, and that neither remedy was given priority. [Footnote 8] See, e.g., United States v. Kramer, 827 F.2d at 1176; United States v. Salgado-Hernandez, 790 F.2d 1265, 1267 (CA5), cert. denied, 479 U.S. 964 (1986); United States v. Russo, 741 F.2d 1264, 1266-1267 (CA11 1984); United States v. Caparella, 716 F.2d at 980.
Consistent with the prevailing view, the Court of Appeals stated that it would review the dismissal with prejudice under an abuse-of-discretion standard. 821 F.2d at 1385 . See, e.g., United States v. Kramer, 827 F.2d at 1179 (reversing dismissal with prejudice as abuse of discretion); United States v. Russo, 741 F.2d at 1267-1268 (reversing dismissal without prejudice as abuse of discretion); United States v. Caparella, 716 F.2d at 980-981 (same); United States v. Salgado-Hernandez, 790 F.2d at 1267 (upholding dismissal without prejudice as within District Court's discretion). The court did not, however, articulate what that standard required.
This Court previously has recognized -- even with respect to another statute the legislative history of which indicated that courts were to have "wide discretion exercising their equitable powers," 118 Cong.Rec. 7168 (1972), quoted in Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 421 (1975) -- that "discretionary choices are not left to a court's inclination, but to its judgment; and its judgment is to be guided by sound legal principles.'" Id. at 422 U. S. 416, quoting United States v. Burr, 25 F.Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.). Thus, a decision calling for the exercise of judicial discretion "hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review." Albemarle Paper Co., 422 U.S. at 422 U. S. 416.
Whether discretion has been abused depends, of course, on the bounds of that discretion and the principles that guide its exercise. Had Congress merely committed the choice of remedy to the discretion of district courts, without specifying factors to be considered, a district court would be expected to consider "all relevant public and private interest factors," and to balance those factors reasonably. Piper Aircraft Co. v. Reyno, 454 U. S. 235, 454 U. S. 257 (1981). Appellate review of that determination necessarily would be limited, with the absence of legislatively identified standards or priorities.
In the Speedy Trial Act, however, Congress specifically and clearly instructed that courts "shall consider, among others, each of the following factors," § 3162(a)(2) (emphasis added), and thereby put in place meaningful standards to guide appellate review. Although the role of an appellate court is not to substitute its judgment for that of the trial court, review must serve to ensure that the purposes of the Act, and the legislative compromise it reflects, are given effect. Where, as here, Congress has declared that a decision will be governed by consideration of particular factors, a district court must carefully consider those factors as applied to the particular case, and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review.
Only then can an appellate court ascertain whether a district court has ignored or slighted a factor that Congress has deemed pertinent to the choice of remedy, thereby failing to act within the limits prescribed by Congress.
Factual findings of a district court are, of course, entitled to substantial deference, and will be reversed only for clear error. Anderson v. Bessemer City, 470 U. S. 564 (1985). A judgment that must be arrived at by considering and applying statutory criteria, however, constitutes the application of law to fact, and requires the reviewing court to undertake more substantive scrutiny to ensure that the judgment is supported in terms of the factors identified in the statute. Nevertheless, when the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court's judgment of how opposing considerations balance should not lightly be disturbed.
statement merely recounted the Speedy Trial Act violations, and chastised the Government for failing to make "any particular show of concern," or to "respon[d] with dispatch." Ibid. The District Court did not find that the Government acted in bad faith with respect to respondent; neither did the court discover any pattern of neglect by the local United States Attorney, or evidence of what the Court of Appeals' majority later termed "the government's apparent antipathy toward a recaptured fugitive." 821 F.2d at 1386; see also Tr. of Oral Arg. 34-35. [Footnote 10] Any such finding, suggesting something more than an isolated unwitting violation, would clearly have altered the balance. Instead, the extent of the District Court's explanation for its determination that "the second factor . . . tends strongly to support the conclusion that the dismissal must be with prejudice" was that there was "no excuse" for the Government's conduct. App. to Pet. for Cert. 30a.
speedy trial clock . See 821 F.2d at 1380-1383. [Footnote 11] That respondent's flight does not restart the clock, however, goes only to whether there has been a violation of the Act, and not to what the appropriate remedy should be. Respondent's culpable conduct and in particular his responsibility for the failure to meet the timely trial schedule in the first instance, are certainly relevant as "circumstances of the case which led to the dismissal," § 3162(a)(2), and weigh heavily in favor of permitting reprosecution. These factors, however, were considered by neither the District Court nor the Court of Appeals' majority.
"[I]nordinate delay between public charge and trial, . . . wholly aside from possible prejudice to a defense on the merits, may 'seriously interfere with the defendant's liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.'"
concurring), quoting United States v. Marion, 404 U. S. 307, 404 U. S. 320 (1971). [Footnote 12] The District Court found the Act's 70-day indictment-to-trial period here was exceeded by 14 nonexcludable days, but made no finding of prejudice. Indeed, the Court of Appeals concluded that the delay, "although not wholly insubstantial, was not so great as to mandate dismissal with prejudice." 821 F.2d at 1385. That court also found that there was no prejudice to respondent's trial preparation. Ibid. And, as respondent was being held to answer not only for the drug charges but also on a valid bench warrant issued after he did not appear, neither does there seem to have been any additional restrictions or burdens on his liberty as a result of the speedy trial violation. [Footnote 13] Thus, although the absence of prejudice is not dispositive, in this case it is another consideration in favor of permitting reprosecution.
mandating dismissal of the indictment upon violation of precise time limits and specifying criteria to consider in deciding whether to bar reprosecution. The District Court failed to consider all the factors relevant to the choice of a remedy under the Act. What factors it did rely on were unsupported by factual findings or evidence in the record. We conclude that the District Court abused its discretion under the Act, and that the Court of Appeals erred in holding otherwise. Accordingly, the judgment of the Court of Appeals is reversed.
"In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate on a complaint, the trial shall commence within seventy days from the date of such consent."
The Government's superseding indictment against respondent was issued without first dismissing the original indictment. The District Court apparently assumed that the period after April 24 was excludable because of the superseding indictment, see App. to Pet. for Cert. 29a; 821 F.2d 1377, 1383 (CA9 1987). But cf. United States v. Rojas-Contreras, 474 U. S. 231, 474 U. S. 234-235 (1985); id. at 474 U. S. 239-240 (BLACKMUN, J., concurring in judgment). Respondent has not challenged this assumption, presumably because he concluded that the period following April 24 was otherwise excludable under 18 U.S.C. § 3161(h). See Brief for Respondent 3.
"The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:"
"(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to -- "
"(D) delay resulting from trial with respect to other charges against the defendant;"
"(G) delay resulting from any proceeding relating to the transfer of a case or the removal of any defendant from another district under the Federal Rules of Criminal Procedure;"
"(H) delay resulting from transportation of any defendant from another district, . . . except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant's arrival at the destination shall be presumed to be unreasonable;"
"(3)(A) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness."
The 15 nonexcludable days included the 6 days between the end of the federal trial in San Francisco at which respondent was testifying and the date on which state charges against respondent were dropped; the 5 additional days after the state charges were dropped that it took the United States Marshals Service to bring respondent before a federal Magistrate on the federal bench warrant; and 4 days beyond the 10 days provided for by 18 U.S.C. § 3161(h)(1)(H) that the Marshals Service took to transport respondent back to Seattle. App. to Pet. for Cert. 28a-29a.
The District Court rejected respondent's motion to dismiss the failure-to-appear charge, finding that, after subtracting the various time periods held excludable, the Government had not violated the 30-day arrest-to-indictment provision of § 3161(b). See App. to Pet. for Cert. 31a-32a. Respondent eventually entered a plea of guilty to this charge, and was sentenced to five years' imprisonment.
The Government asserts that both the District Court and the Court of Appeals relied on a "now-outmoded" method of calculating speedy trial time, and that, under another now-favored method, there would have been 42 days of speedy trial time when respondent became a fugitive, and thus no speedy trial violation in this case. Brief for United States 5-6, n. 4. Inasmuch as that argument was neither raised below nor pressed here, we do not consider it.
The Government also argues that some of the time charged by the courts below as speedy trial time should have been excludable under § 3161(h)(1)(D) of the Act, see n 3, supra, and thus that only 9, instead of 15, nonexcludable days elapsed after respondent's capture. Brief for United States 24-26. Because, as is detailed below, our decision in this case does not turn on the distinction between a violation of 8 or of 14 days, we need not decide whether the District Court's application of the Act was erroneous in this respect.
Although, like JUSTICE SCALIA, we are all in favor of fostering the democratic process, we do not agree that the statutory text renders it "so obviou[s]," post at 487 U. S. 345, that the presence or absence of prejudice to the defendant is one of the "other factors" that a district court is required by the Speedy Trial Act to consider. A brief review of the floor debate, cited above, demonstrates that at least some Members of Congress were uncertain about, and repeatedly sought clarification of, precisely what they were voting for.
Because the provision at issue here was amended on the floor of the House, and that version was subsequently accepted by the Senate, we find largely unhelpful the preamendment Committee Report discussions, supporting dismissal with prejudice in all or most cases. Similarly, a House Judiciary Committee statement, made five years later and while in the process of considering and recommending a temporary suspension of the dismissal sanction, to the effect that dismissal without prejudice should be "the exception, and not the rule," H.R.Rep. No. 96-390, pp. 8-9 (1979), cannot override the contemporaneous legislative history and create a presumption that reprosecution will be barred. In light of the compromise eventually reached, we are unwilling to read such a preference into the statute, which evinces no presumptions. We are similarly disinclined to read a contrary presumption into a statute that began as a bill barring reprosecution in all cases, and was amended to provide for the current balancing test as a compromise.
Even more important, respondent had not entered a guilty plea to, or been convicted of, the drug charges. It would have been highly improper -- and we shall not presume the District Court assumed such unbridled discretion -- to sentence respondent with undue harshness on one count, on the basis of the Court's untested and unsubstantiated assumption of what the facts might have been shown to be with regard to the drug charges, see Tr. of Oral Arg. 29-30, without the sort of inquiry conducted, in another context, under Federal Rule of Criminal Procedure 32. Although we realize it could be tempting to wrap up the "equities" in a single package and, with the best of intentions, effect what could be regarded as an essentially just result, we could not condone an approach that would violate the rights of defendants and misapply the Speedy Trial Act in the hope that the errors would balance out in the end. Contrary to the dissent's suggestion, see post at 487 U. S. 348-349, we do not question here the wisdom of Congress' decision to assess different penalties for failure to appear depending on the severity of the underlying charge. What we cannot countenance is a decision to punish someone more severely than would otherwise have been considered appropriate for the charged offense, solely for the reason that other charges had been dismissed under the Act.
The third judge on the panel noted that most of the 15-day delay seemed largely attributable to a misunderstanding about who was responsible for moving respondent before the state hold was lifted and the happenstance that notification of the lifting of the state hold had come right before a weekend. See 821 F.2d at 1387.
A Department of Justice proposal to restart the 70-day period following recapture of a defendant who has fled prior to trial, see A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, pp. 120-122 (Federal Judicial Center 1980), was rejected by Congress in favor of merely excluding "[a]ny period of delay resulting from the absence or unavailability of the defendant." § 3161(h)(3)(A).
In Barker v. Wingo, the Court articulated criteria by which the constitutional right to a speedy trial was to be judged, but declined to specify a time period within which a defendant must be brought to trial, leaving that kind of legislative or rulemaking activity to others better positioned to do so. 407 U.S. at 407 U. S. 523. Congress now has taken up that responsibility, and decreed that a defendant must be tried within 70 days of indictment, § 3161(c)(1), with certain exceptions for specified delays, § 3161(h). If the Government fails to try the defendant within the statutory timeframe, the defendant is entitled to dismissal. Although Congress specified certain factors to be considered by the district court in deciding whether to bar reprosecution, it did not define a second threshold that must be crossed, whether in number of days or otherwise, before dismissal may be with prejudice. As in Barker, we decline to undertake such rulemaking. Indeed, during oral argument, the Government appeared to concede that it would be appropriate under some circumstances, as, for example, where there was a systemic problem with the procedures of a particular United States Attorney's Office, for a district court to bar reprosecution in a case involving a delay of only a few days. See Tr. of Oral Arg. 23.
We do not decide that as a matter of law there could never be any prejudice to a defendant whose speedy trial rights were violated, but who was also being held on other charges. Because "prejudice" may take many forms, such determinations must be made on a case-by-case basis, in the light of the facts.
The Speedy Trial Act also permits a district court directly to punish dilatory counsel, including a prosecutor, through a monetary fine, § 3162(b)(C), suspension from practice, § 3162(b)(D), or by filing a report with the appropriate disciplinary committee, § 3162(b)(E). That Congress expressly provided for these sanctions is further indication that the greater didactic effect of dismissal with prejudice should not, by itself, overcome what consideration of other factors would suggest is the appropriate remedy. Liberal use of direct sanctions may serve to "send a message" whenever one is warranted.
As should be evident from our discussion about the nature of a district court's discretion under the Speedy Trial Act, see supra at 487 U. S. 336-337, we do not hold today, despite the dissent's suggestion, post at 487 U. S. 350, that a district court can "best avoid reversal by adopting a consistent practice of dismissing without prejudice." Indeed, we have expressly concluded that there is no presumption in favor of either form of dismissal. See supra at 487 U. S. 335, and n. 8.
I join the Court's opinion, agreeing that, when a defendant, through deliberate misconduct, interferes with compliance with the Speedy Trial Act and a violation of the Act then occurs, dismissal with prejudice should not be ordered unless the violation is caused by Government conduct that is much more serious than is revealed by this record.
there was nothing in the legislative history except statements that harm to the defendant could not be considered at all. Would we permit that to govern, even though impairment of the accused's defense is so obviously one of the "other factors" highly relevant to whether the Government should be permitted to reinstitute the prosecution?
I think the answer to both these questions is obviously no. The text is so unambiguous on these points that it must be assumed that what the Members of the House and the Senators thought they were voting for, and what the President thought he was approving when he signed the bill, was what the text plainly said, rather than what a few Representatives, or even a Committee Report, said it said. Where we are not prepared to be governed by what the legislative history says -- to take, as it were, the bad with the good -- we should not look to the legislative history at all. This text is eminently clear, and we should leave it at that.
"Mr. DENNIS. . . ."
"I have an amendment here in my hand which could be offered, but if we can make up some legislative history which would do the same thing, I am willing to do it."
and which, if it becomes law, the people must obey. I think we have an obligation to conduct our exegesis in a fashion which fosters that democratic process.
This is the kind of case that reasonable judges may decide differently. The issues have been narrowed by the Government's abandonment of the two principal arguments that it advanced in the District Court and in the Court of Appeals. [Footnote 2/1] But even on the remaining question whether the dismissal of two of the three counts pending against respondent should have been with or without prejudice, there is room for disagreement between conscientious and reasonable judges. The question, however, is one that district judges are in a much better position to answer wisely than are appellate judges.
the limited issue faced on appeal fits within the larger factual and procedural context. I am convinced that, in this case, the District Judge made the sort of reasoned judgment that we as appellate judges would do well not to second-guess.
This is not a case in which dismissal with prejudice resulted in a dangerous criminal promptly returning to society without suffering substantial punishment for his wrongs. Rather, the District Court only dismissed the charges dealing with narcotics violations, while denying the motion to dismiss the failure-to-appear charge. [Footnote 2/3] On that count, after respondent entered a guilty plea, the judge sentenced respondent to five years' imprisonment, the maximum permissible sentence. That sentence was more severe than the 3-year sentence she imposed on respondent's original codefendant, who was found guilty on charges that paralleled the two dismissed counts.
"at the time the District Court decided to dismiss the drug charges against respondent, . . . the court could not be certain that any opportunity would arise to take the drug violations into account in sentencing,"
ante at 487 U. S. 338, the judge undoubtedly could have assumed that there was a high probability that the Government could prove its case. Nor would such an assumption have interfered with the presumption of innocence. The presumption is, after all, for the benefit of the accused, and not the Government.
might well warrant the maximum sentence. In fact, the current statute now imposes four -- rather than two -- possible sentencing ranges, varying more acutely with the severity of the underlying alleged offense. See 18 U.S.C. § 3146 (1982 ed., Supp. IV).
In addition, the majority appears to assume that the District Judge intended to impose a higher sentence for the failure-to-appear charge based on her "untested and unsubstantiated assumption of what the facts might have been shown to be with regard to the drug charges." Ante at 487 U. S. 338, n. 9. Yet, there is no basis for Court's assumption that the judge planned to take into account the narcotics charge without informing the parties of her intention to do so, and without permitting them the opportunity to proffer relevant evidence. Indeed, the concern the Court expresses today did not come to fruition in this case. Not only has respondent not complained of unfair treatment, his attorney informs us that respondent requested to be sentenced "for [his] total conduct." Tr. of Oral Arg. 32. The greater risk of unfair treatment is presented by the possibility that respondent will now be sentenced twice for the same misconduct.
been transferred to state custody at any time the local authorities arrived at the San Francisco County jail with the required papers, 821 F.2d 1377, 1387 (CA9 1987), the important issue is not whether the Marshals Service was technically in contempt, but whether the Service acted carelessly or without regard for respondent's and the public's interest in seeing justice administered swiftly. This is precisely the sort of issue that is more difficult for an appellate court than for a district court to address.
On the record before us, I do not know whether I would have dismissed counts I and II with prejudice had I been confronted with the issue as a district judge. As a district judge, I would know that a dismissal without prejudice would be a rather meaningless sanction unless, of course, the statutes of limitations had run, in which event the choice between dismissal with and without prejudice would itself be meaningless. I would also know -- especially if I had foreknowledge of the opinion announced today -- that I could best avoid reversal by adopting a consistent practice of dismissing without prejudice, even though such a practice would undermine the years of labor that have gone into enacting and construing the Speedy Trial Act. I would have assumed, however, that the choice of remedy was one that was committed to my discretion, and that, if I set forth a sensible explanation for my choice, it would withstand appellate review.
return to this district, there elapsed at least fourteen days of nonexcludable time in excess of the 70-day requirement set forth in § 3161(c)(1) prior to April 24, 1985, the date on which the government filed the superseding indictment against defendant. Therefore, pursuant to § 3162(2), Counts I and II of the . . . indictment must be dismissed. The real question is whether this dismissal should be with or without prejudice. On this point, the STA, § 3162(2), provides as follows:"
" In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice."
"Regarding the first factor as applied to the instant case, there is no question that the drug violations with which the defendant is charged are serious. However, the second factor, the circumstances of the case leading to the dismissal, tends strongly to support the conclusion that the dismissal must be with prejudice. There is simply no excuse for the government's lackadaisical behavior in this case. Despite the government's insistence on the temporary nature of the federal custody from February 7 until February 28, 1985, the [United States Marshals Service (USMS)] did not return defendant to state authorities after the purported reason for that temporary custody had ended on February 22, 1985. Even more telling is the failure of the USMS to produce defendant on February 28, 1985, pursuant to a specific court order from a San Mateo County judge."
month. Nor did the order of removal issued on April 3 prompt any particular show of concern on the government's part. Instead of responding with dispatch, the government apparently placed more value on accommodating the convenience of the USMS than on complying with the plain language of the STA. Pursuant to the third factor, the court concludes that the administration of the STA and of justice would be seriously impaired if the court were not to respond sternly to the instant violation. If the government's behavior in this case were to be tacitly condoned by dismissing the indictment without prejudice, then the STA would become a hollow guarantee. Counts I and II of the . . . indictment must be dismissed with prejudice."
App. to Pet. for Cert. 29a-31a (footnote omitted).
by amendments during the floor debates. See ante at 487 U. S. 334-335. The compromise, however, was one that was intended to give district judges discretion to choose the proper remedy based on factors identified in Judge Rothstein's opinion in this case. See 120 Cong.Rec. 41777-41778 (1974) (remarks of Reps. Cohen and Dennis). If that discretion is not broad enough to sustain her decision, as the Court now concludes, the statute is surely nothing more than the "hollow guarantee" that she described.
The Government's primary submission in the lower courts was that the Speedy Trial Act's 70-day clock should have been restarted when Taylor was apprehended. See App. to Pet. for Cert. 26a-27a; 821 F.2d 1377, 1380-1383 (CA9 1987). Its second submission was that, even if the clock was not restarted, there was no violation of the Act. See App. to Pet. for Cert. 27a-29a; 821 F.2d at 1383-1385.
As the majority recognizes, see ante at 487 U. S. 338-339, the Government's attitude concerning the administration of the Speedy Trial Act is a relevant factor in determining whether to dismiss an indictment with or without prejudice.
"The district court dismissed the indictment (and with it the entire case against the defendant) with prejudice. I believe this was entirely uncalled for, and constituted an abuse of allowable discretion."
821 F.2d at 1386 (emphasis supplied). The mere possibility that the dissenting judge may have overlooked the fact that a charge remained against respondent illustrates the danger of second-guessing district courts in cases of this type.
"The Committee finds that the adoption of speedy trial legislation is necessary in order to give real meaning to that Sixth Amendment right. Thus far, neither the decisions of the Supreme Court nor the implementation of Rule 50(b) of the Federal Rules of Criminal Procedure concerning plans for achieving the prompt disposition of criminal cases provides the courts with adequate guidance on this question."
H.R.Rep. No. 931508, p. 11 (1974).
"'The position taken here is that the only effective remedy for denial of speedy trial is absolute and complete discharge. If, following undue delay in going to trial, the prosecution is free to commence prosecution again for the same offense, subject only to the running of the statute of limitations, the right to speedy trial is largely meaningless. Prosecutors who are free to commence another prosecution later have not been deterred from undue delay.'"
H.R.Rep. No. 93-1508, p. 37 (1974). As the Committee Report further notes, Judge Zirpoli, the spokesman for the Judicial Conference, also endorsed this view. See id. at 38.
"compelling evidence that the delay was caused by exceptional circumstances which the government and the court could not have foreseen or avoided,"
S. 754, 93d Cong., 2d Sess., § 101 (1974), the Senate Committee on the Judiciary agreed in principle with the position articulated by the American Bar Association, see S.Rep. No. 93-1021, p. 16 (1974). See also Speedy Trial, Hearings on S. 895 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess., 21 (1971) (statement of Sen. Hart).


Today, in a published opinion, the Fourth Circuit Court of Appeals affirmed the District Court’s decision upholding a waiver to appeal a mandatory minimum sentence based on new United States Supreme Court precedent.
Defendant committed Armed Robbery at a Family Dollar Store and Subsequently Accepted a Plea Agreement.
Security cameras at a Family Dollar store captured Defendant Sherwin Archie, armed, demanding money from the cashier. Days later, police recovered the firearm used in the robbery when they executed a search warrant on Archie’s home. Archie subsequently confessed to the Family Dollar robbery.
Taking a plea deal, Archie pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) (Count One); Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count Two); and using and carrying a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three). In exchange for the guilty plea, the state dismissed three remaining charges.
Under the terms of the plea deal, Archie knowingly and expressly waived all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the advisory Guideline range established at sentencing, and waived all rights to contest the conviction or sentence in any post-conviction proceeding. The plea agreement advised Archie of the statutory sentencing range for each charge and noted that, based on his criminal history, he could face a sentencing enhancement under the ACCA.
With regards to using and carrying a firearm in furtherance of a crime of violence, the District Court recognized that the seven-year minimum sentence applied only when the firearm was “brandished” during the crime, and the indictment did not assert brandishing as a separate element. Government counsel argued that brandishing was a sentencing factor that did not have to be specifically alleged in the indictment. Defense counsel did not object and the District Court accepted Archie’s guilty plea.
In preparation for sentencing, the United States Probation Office’s presentence investigation report (“PSR”) designated Archie an armed career criminal under the ACCA based on three prior felony convictions. The ACCA designation caused Archie’s statutory minimum sentence to increase. The PSR also included a minimum sentence for Count Three because the investigatory evidence established that Archie had brandished the firearm during the Family Dollar robbery.
Before sentencing, Archie objected to his career offender designation under the ACCA, arguing that the Government lacked adequate factual support for one of the previous convictions.
The District Court overruled Archie’s objection, concluding the records were sufficient by a preponderance of the evidence. Adopting the PSR, the District Court sentenced Archie to the mandatory minimum.
Four months after Archie’s sentencing, the Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013). In Alleyne, the Court overruled existing precedent and held that “any fact that increases the mandatory minimum is an ‘element’that must be submitted to the jury” and found beyond a reasonable doubt. 133 S. Ct. at 2155. In Alleyne, as here, the mandatory minimum sentence was based on the court’s finding by a preponderance of the evidence at sentencing that a firearm was “brandished,” in violation of 18 U.S.C. § 924. The Supreme Court reversed and vacated the defendant’s sentence because the “[j]udge rather than the jury, found brandishing, thus violating [his] Sixth Amendment rights.” Id. at 2163-64.
Fourth Circuit Considered Whether the Defendant Waived the Right to Argue on Appeal that the District Court Improperly Enhanced His Sentence Based on Judicially Determined Facts in Violation of Alleyne v. United States.
The Fourth Circuit cited precedent to support the conclusion that when the Government seeks enforcement of an appeal waiver and there is no claim that the Government breached its obligations under the plea agreement, the waiver will be enforced to preclude a defendant from appealing a specific issue if the record establishes that the waiver is valid and the issue being appealed is within the scope of the waiver.
More narrowly, the Fourth Circuit rejected Archie’s challenge that his Alleyne claim falls outside the scope of the waiver appeal.
At the time of Archie’s sentencing, Supreme Court precedent under Harris v. United States, 536 U.S. 545, 568 (2002), stated that factors triggering mandatory minimum sentences did not need to be alleged in the indictment, submitted to the jury, or proven beyond a reasonable doubt. Thus, the District Court properly applied the law under Harris.
Despite a Change in Precedent, a Party Cannot Request to Re-Bargain the Waiver of an Appeal.
The Fourth Circuit addressed the proper scope of an appeal waiver in light of a subsequent change in the law in United States v. Blick, 408 F.3d 162 (4th Cir. 2005). In that case, the Fourth Circuit focused largely on the idea that “[p]lea bargains rest on contractual principles, and each party should receive the benefit of its bargain.” Consequently, although the law changed, the defendant’s expectations did not change. A party cannot ask to re-bargain the waiver of an appeal based on changes in the law. Here, Archie assumed the risk of accepting the plea agreement in exchange for the Government’s concessions, and he was sentenced in the manner agreed upon.
Furthermore, the Fourth Circuit refused to invalidate the waiver holding that it has previously only done so when sentencing court violated a fundamental constitutional or statutory right that was firmly established at the time of sentencing.
Fourth Circuit Considered Whether the Government Presented Sufficient Evidence to Sustain the Defendant’s Career Offender Designation Under the ACCA.
Using a Deferential Standard of Review, the Fourth Circuit held that Certain Inconsistencies are Not Enough to Overturn the Trial Court’s Findings When There is Additional Evidence Indicating That The Mistake Was Likely a Scrivener’s Error.
Reviewing the District Court’s judgment for clear error, the Fourth Circuit held that when faced with records that contain inconsistencies, such as different dates of the same offense, the court has previously concluded that certain discrepancies do not overturn the trial court’s conclusion when there is additional evidence to indicate that the mistake was likely a typographical error. Thus, as most of Archie’s arguments were based on allegations of such mistakes, the Fourth Circuit declined to disturb the District Court’s finding.
Fourth Circuit Affirmed the District Court’s Sentence.
In United States v. Groves, the Fourth Circuit affirmed that a district court has the authority to vacate a conviction without altering a defendant’s criminal sentence or ordering a new sentencing hearing, even when the court fails to acknowledge its authority to require a new sentencing hearing in its order.
Mr. Groves was previously convicted of operating a continuing criminal enterprise (21 U.S.C. § 838), using a firearm during a drug trafficking crime (18 U.S.C. § 924(c)(1)), and trading food stamps for cocaine base (7 U.S.C. § 2024(b)). As a result of these convictions he was sentenced to life in prison plus sixty months. In 2007, the Supreme Court held in Watson v. United States, 552 U.S. 74 (2007) that a person does not “use” a firearm under 18 U.S.C. § 924(c)(1) when he receives the gun in exchange for drugs. As a result, Mr. Groves filed a petition to set aside his conviction under 18 U.S.C. § 924(c)(1). The district court reviewed this charge under Watson, and ultimately vacated this conviction. Despite this change in the judgment, the district court imposed the same sentence of life in prison. On appeal, Mr. Groves contended that the district court acted erroneously by leaving intact a sentence that was imposed on the basis of a now unconstitutional mandatory sentencing scheme, and by failing to order a new sentencing hearing or to acknowledge its authority to do so.
In United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997), the Fourth Circuit made clear that a district court has “broad and flexible power to fashion an appropriate remedy in granting relief” including issuing a “new” sentence that is “the same as the original sentence.” Because Mr. Groves’s sentence under § 924(c)(1) ran concurrently with his other charges, the district court was permitted to vacate his conviction without altering the sentence. Further, the court rejected his contention that the court did not recognize it had the authority to order a new sentencing hearing. Finally, the Fourth Circuit held that there was no evidence that the failure to alter the sentence or to order a new sentencing hearing was reversible error. Although an appellate court must reverse a criminal sentence if it is not clear beyond a reasonable doubt that the court would have imposed the same sentence in the absence of a constitutional error, in this case there were “no non-speculative grounds” for concluding that under the discretionary sentencing scheme the court would have imposed a different sentence.


Are you considering buying a timeshare in South Carolina?
Did you already sign the timeshare contract and you’re now having second thoughts?
Have you stopped making payments on your timeshare in South Carolina and want to know what the consequences will be?
Regardless of the answer to the above questions, the following information has been assembled for you to help you understand your options for canceling a timeshare contract in South Carolina.
According to South Carolina timeshare laws, there are certain buyers’ protection measures in place to protect your rights.
How do I Cancel a Timeshare Contract in South Carolina?
South Carolina timeshare legislation (S.C. Code Ann. § 27-32-40) allows timeshare buyers to officially cancel the timeshare contract only if it is done so within 5 days from the date the contract was signed or the date the buyer receives the Disclosure Agreement, which ever occurs later. This does not include Sunday if that happens to be the 5th day. Of course, this Notice of Timeshare Contract Cancellation must be submitted in writing.
Another consumer protection measure available for canceling a South Carolina timeshare contract is the right to cancel a timeshare contract if and when the timeshare is rendered unavailable as specified in the original timeshare contract. Therefore, if the timeshare company does not offer you comparable accommodations to what you originally agreed to in the contract in the event of unavailability, you may cancel your timeshare contract in South Carolina (S.C. Code Ann. § 27-32-40).
Can I Get a Refund after Canceling a Timeshare Contract in South Carolina?
Yes, you are entitled to a refund if you have submitted your written Notice of Cancellation within the above timeframe. According to (S.C. Code Ann. § 27-32-60), the timeshare company is required to issue a refund for the original payment you made within 20 days after they received your Notice of Cancellation. The only stipulation is that you have not received benefits prior to submitting your cancellation notice. If you have received any benefits, the timeshare seller must refund your payment less the amount in accordance with the benefits you enjoyed within 30 days of receipt of your cancellation notice.
Is There a List of Legal Disclosures Required in the Purchase of a Timeshare?
Each timeshare buyer in the State of South Carolina has to be supplied with a Disclosure Document detailing the various Terms and Conditions of the Vacation Timeshare Program (S.C. Code Ann. § 27-32-405).
The timeshare seller’s name and address.
Short description of the timeshare property that is offered to the buyer in the timeshare program.
The conditions and terms whereby charges may be added or changed, as well as the name of the person who would be given the right to make those changes.
An explanation of how the timeshare buyer will be protected in the case of loss resulting from foreclosure incurred due to the timeshare company’s financial obligations.
Verbiage explaining that the timeshare buyer should only purchase the timeshare for personal enjoyment and usage, not for investment, resale or rental purposes.
What are the South Carolina Timeshare Sale Laws?
Because the timeshare sales sector is rife with corruption and dishonest sales tactics, South Carolina legislation (S.C. Code Ann. § 27-32-110) has been put in place to combat ruthless salespeople. Timeshare company salespeople are prohibited from putting forth misleading or false information for advertising or selling purposes.
What is the South Carolina Timeshare Foreclosure Procedure?
Those who purchase a deeded timeshare property by taking out a mortgage loan and subsequently default on their loan payments will be subject to foreclosure proceedings in the State of South Carolina. Likewise, timeshare owners are normally obligated to pay fees for maintenance, assessments, utility payments and associated taxes. Although residential foreclosure is a judicial matter in South Carolina, special laws provide for non-judicial foreclosure proceedings for timeshare mortgage loans and liens due to unpaid assessments (S.C. Code Ann. § 27-32-325).
Are there Any South Carolina Timeshare Deficiency Judgments?
When a loan provider forecloses on a timeshare mortgage, the amount of the debt owed by the timeshare owner to the lender can be more than the final price of the foreclosure sale. If there is a difference between the owed amount and the final selling price, the resulting figure is termed the “deficiency.” South Carolina timeshare law does not hold the timeshare owner/mortgage borrower is not held liable for deficiency judgment regardless of if the proceeds of the sale cover the original debt or not (S.C. Code Ann. § 27-32-320).
Too Late to Cancel a Timeshare in South Carolina?
If canceling a timeshare contract in South Carolina is no longer an option for you according to the Timeshare Laws of South Carolina, call us now for a Free Consultation. Redemption and Release, LLC can make your South Carolina timeshare cancellation exit strategy simple and cost-effective. Contact us today at 1-888-743-9051 or use our Online Contact Form to request free, no-obligation information about canceling a timeshare contract in South Carolina.