Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

After a seven-week hiatus, the Supreme Court of Canada is back with a new decision: R v CBC on Friday, September 24, 2021. We’ll use this decision to end the current season, and wipe the slate clean for the next one.

At issue in this case is the open court principle and discretionary publication bans over judicial proceedings. The Manitoba Court of Appeal was considering a wrongful conviction. The parties had sought to file fresh affidavit evidence, and the Court issued a sealing order. The Court ultimately determined that a miscarriage of justice had taken place and then proceeded to consider remedy. At this stage, the Court declined to admit the fresh affidavit evidence on the basis it was irrelevant to remedy and ordered a publication ban.

The CBC brought a motion to set aside the restrictions in order to gain access to the affidavit. The Court denied the motion on the basis that it lacked jurisdiction to rehear or interpret the publication ban according to its Rules.

If this sounds familiar, it might be because the SCC released a decision in June in Sherman Estate v. Donovan, 2021 SCC 25, dealing with similar issues. In a unanimous decision in Sherman, the Court dismissed the appeal and upheld a finding that the sealing orders on the estate files of Toronto couple Barry and Honey Sherman were unjustified.

I expect the SCC to dismiss this appeal. In Sherman, the Court rejected privacy arguments. I believe the R v CBC case will provide an opportunity for the Court to show when privacy concerns can displace the public interest in court openness.

Last SCC Decisions

The SCC released a batch of three decisions at the end of July:

  • In Canada v. Canada North Group Inc., 2021 SCC 30, the Court addressed the priority of priming charges over a deemed trust in favour of the Crown for unremitted source deductions under the Income Tax Act. The Court held that the business in CCAA proceedings could pay expenses necessary to its restructuring process before money owed to the Canada Revenue Agency. The Court was split 5:4 and there were four sets of reasons.
  • In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, the Court found that the Province of New Brunswick had missed the limitation period to commence a $50 million claim against an auditor. In a unanimous decision, the Court confirmed the existing state of the law regarding discoverability. The degree of knowledge needed to discover a claim is more than mere suspicion or speculation but not so high as to require certainty of liability or perfect knowledge. A plausible inference of liability is enough.
  • In York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32, a unanimous decision authored by Justice Abella, the Court dismissed Access Copyright’s appeal finding that a copyright tariff was not enforceable against York University. The Copyright Act does not allow Access Copyright to enforce royalties against York University for any tariffs, interim or final, because it chose not to be bound by the agreement.

Next Season

Hopefully, this decision marks the beginning of a steady flow of decisions from the SCC, and we can get our new season underway shortly. Streaks will be reset at that point and you will have another chance to show your skills at predicting how the Supreme Court of Canada will rule.

-Tom Slade