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.

Season 6 Winners & Recap

The release of Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 marks the end of season 6! We’re expecting a steady flow of decisions to be released over the next few months, making it a good time to check out our winners and reset the prediction streaks. Season 7 kicks off this week with Toronto v. Ontario – see the preview below the recap.

Season 6 had 19 appeals to predict (with three of those being the carbon tax appeals dealt with in a single decision). The SCC had dissents in 11 of their 17 decisions making it difficult to keep those prediction streaks intact. In six of those split decisions, there were three or more sets of reasons. That didn’t stop one of our players, Scott M., from amassing an impressive 14 decision prediction streak. Following him, we had a six-way tie for second for place who all had nine correctly predicted in a row (Lindsay Frame, Adil Abdulla, Austin Gaghadar, Christian Cormier, Peter Hamiwka and Nottawa).

The season saw a strong start, with many players getting the first five correct, which included the carbon tax appeals. The first challenging case was Ontario (Attorney General) v. Clark, 2021 SCC 18 in which only 36% correctly predicted that it would be allowed. The SCC ruled police officers cannot sue Crown prosecutors for decisions they make about how to conduct a criminal case.

The next hurdle was midway through the season with MediaQMI inc. v. Kamel, 2021 SCC 23, which saw the Court split 5:4. Only 22% correctly predicted the appeal would be dismissed. The majority ruled that a media company could not access court documents that had been filed, and then removed, from a civil lawsuit once proceedings ended.

The decision that most players got wrong was Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, which featured a 4:3 split. Only 4% correctly predicted the appeal would be dismissed. In a result that seemed to go against access to justice concerns, the majority ruled that it was unconstitutional to raise the monetary value of cases that can be heard by the Court of Québec.

Congrats to the winners, and thank you to everyone for playing. Our top 3 (Scott M., Lindsay Frame and Adil Abdulla) will receive Amazon gift cards.

This Week at the SCC

On Friday, October 1, 2021, the Supreme Court of Canada is releasing its decision in City of Toronto v. Ontario (Attorney General) and Toronto District School Board. At issue is the constitutionality of legislation that reduced the number of wards and councillors on City Council from 47 to 25.

On May 1, 2018, elections began for Toronto City Council and for trustees of the Toronto District School Board. After nomination periods closed and during the course of the election, the Legislative Assembly of Ontario enacted Better Local Government Act. This disrupted election campaigns. The City of Toronto and two groups of private individuals applied to the Ontario Superior Court of Justice seeking orders restoring the 47-ward structure and challenging the constitutionality of the Act. Toronto District School Board was added as an intervening party and challenged changes to Regulations under the Education Act. On September 10, 2018, the Ontario Superior Court of Justice issued an order declaring that the legislative changes infringed s. 2(b) of Charter and were of no force and effect. On September 19, 2018, the Court of Appeal for Ontario issued an interim stay of the Ontario Superior Court of Justice’s decision. The elections proceeded based on 25 wards with the revised boundaries. On September 19, 2019, the Court of Appeal, in a 3:2 split, allowed the appeal and set aside the Ontario Superior Court of Justice’s decision.

Given the mixed results in the courts below, this decision is a tough one to predict and a great way to start season 7. I’m leaning towards appeal allowed with the Court leaning on some unwritten constitutional principles and having particular concern about the timing of the changes to the wards and number of councillors.

Last SCC Decision

  • On Sept. 24, 2021, the SCC released its decision in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33.
  • In an 8:1 split, with Justice Abella dissenting, the Court allowed the appeal regarding the jurisdiction issue and remanded the matter back to the Court of Appeal to consider CBC’s motion to have the publication ban set aside.
  • Courts of appeal have the authority to lift their own publication bans after cases are closed.
  • Even when a court has lost jurisdiction over the merits of a matter as a result of having entered its formal judgment, it retains jurisdiction to control its court record with respect to proceedings generally understood to be an ancillary but independent matter.
  • This decision was a bit anticlimactic, and we’ll have to wait to find out the circumstances in which court “openness poses a serious risk to an aspect of privacy that evinces an important public interest”. We might see this one back at the SCC in a couple of years.

-Tom Slade