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.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.

Latest News

  1. 💰 The SCC will release its judgment in City of St. John’s v. Wallace Lynch on Friday, May 10, 2024. At issue is how compensation for constructive expropriation should be assessed in a case where city boundaries expanded and properties became subject to more restrictive zoning.
  2. 🥐 On May 3, 2024, the SCC released its decision in R. v. Tayo Tompouba, 2024 SCC 16. The Court allowed the appeal, quashed the sexual assault conviction, and ordered a new trial in French. The first judge the accused appeared before failed to ensure he was advised of his right to be tried in French.
  3. 🔮 67% of players correctly predicted the outcome.

Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the cases below.

Case to Predict: Compensation for Constructive Expropriation

Appeal by leave from Lynch v St. John’s (City), 2022 NLCA 29

SCC factums and webcast

What Happened?

Background: The boundaries of St. John’s, Newfoundland were expanded and a new planning process was adopted. This resulted in the Respondents’ property being rezoned as “watershed”. The Respondents applied to develop a ten-lot residential subdivision. The City Manager rejected their application and any other development on the basis of the watershed zoning. However, even under watershed zoning, the City could have approved forestry, agriculture and public utility uses.

Earlier proceedings: The Court of Appeal previously held that the City Manager’s decision to prevent any development in any manner constituted constructive expropriation and remitted the issue of compensation to the Board of Commissioners of Public Utilities.

Board & Application Judge: The Board referred a question to Superior Court about whether the Respondents’ compensation should be “assessed based on the uses permitted by the existing zoning, which are agriculture, forestry and public utility uses, or whether the existing zoning should be ignored and the value determined as if residential development were permissible.” The Application Judge granted compensation for constructive expropriation of property based on existing watershed zoning.

Court of Appeal: The Court of Appeal allowed the appeal in part, ordering that compensation be determined without reference to watershed zoning. It remitted the matter of valuation to the Board.

What Was Argued at the SCC?

Appellant: The City argued that if there were no restrictions, then the highest and best use of the property would be for residential development. The Court of Appeal decision leads to the absurd result that the compensation payable will vastly exceed
the value that the land would have had if the City had simply permitted development in accordance with the existing zoning, which only permitted forestry, agriculture and public utility uses, and there had been no constructive taking.

Respondents: The Respondents argued that the Court of Appeal properly applied what’s called the Pointe Gourde principle, which requires that the effect of the ‘scheme’ of the expropriation on the subject property is to be ignored. Here that would mean the Board has to ignore the negative impact of the watershed zoning regulation in its computation of the Respondents’ property value.

What Else Should You Know Before Making a Prediction?

The Court seemed perplexed with this appeal and had tough questions for both sides. The crux was that there were uses available for the property, but the City exercised its discretion to not permit any of these uses. I’m leaning towards appeal dismissed, but wouldn’t be surprised if it was allowed and compensation was determined at a slightly lower value than the Court of Appeal had found.

Previous Prediction: Right to Trial in Language of Choice

On May 3, 2024, the SCC released its decision in R. v. Tayo Tompouba, 2024 SCC 16.

Held (5:2): Appeal allowed, conviction quashed, new trial in French ordered. Judge must inform accused of right to be tried in official language of their choice.

Key Points:

  • Section 530 goes beyond the constitutional right to speak in the official language of one’s choice. It also gives every accused the right to choose the official language they wish to speak and in which they wish to be understood by the judge or the judge and jury, without the use of interpretation or translation services.
  • A breach of s. 530 taints the trial court’s judgment and gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was violated.
  • The Crown can rebut this presumption for the purposes of the analysis under the curative proviso in s. 686(1)(b)(iv), which requires that there was no prejudice caused to the accused by the error.
  • In most cases, however, a violation of this fundamental right constitutes significant prejudice for which the appropriate remedy is normally a new trial. The presumption may be rebutted where the Crown can show that language rights are being used improperly for tactical purposes.

Predictions: 67% of players correctly predicted that the appeal would be allowed.

-Tom Slade

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