This special year-end review is a complete legal snapshot of all the law from the Supreme Court of Canada in 2024, and includes:
Each section is arranged in alphabetical order by area of law so you can more easily find the decisions relevant to your practice. We have also included direct quotes from judgments or headnotes in some cases if they provide a useful summary for the reader.
For Leaves to Appeal granted, a hyperlink to the C.A. being appealed is also included.
Appeals
Aboriginal Law/Constitutional Law: Division of Powers
Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185; 2024 SCC 5 (40061)
In an order in council made on December 18, 2019, the Government of Québec gave the province’s Attorney General a mandate to challenge, through a reference to the Court of Appeal, the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“Act”), on the ground that it exceeds the jurisdiction of the Parliament of Canada. Stating that the federal statute [translation] “raises fundamental constitutional issues with regard particularly to the division of legislative powers and the constitutional architecture of Canada”. Nothing prevents Parliament from affirming, as it does in s. 18(1) of the Act, that Indigenous peoples have jurisdiction to make laws in relation to child and family services. This “affirmation”, through which Parliament declares that the inherent right of self government recognized and affirmed by s. 35 of the Constitution Act, 1982 includes “legislative authority” in relation to Indigenous child and family services, certainly represents a legislative commitment that Parliament must honour in its conduct toward Indigenous peoples. Furthermore, nothing prevents Parliament from declaring, as it does in s. 7, that this commitment, like the others made toward Indigenous peoples in the Act for the protection of children, “is binding” on His Majesty. This is of significant importance, because no enactment is binding on His Majesty or affects His Majesty or His Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment, as is the case with s. 7. It is equally open to Parliament to affirm that the laws of Indigenous groups, communities or peoples will prevail over other laws in the event of a conflict. Moreover, it is clear that issues relating to the scope of s. 35 and to the application of the doctrine of federal paramountcy are ultimately matters for the courts under Canadian law, not the legislative branch, since they raise questions of constitutional interpretation. Plainly, Parliament may not, by enacting an ordinary statute, amend the Constitution, including the rights protected by s. 35, or alter the division of powers in the Constitution Act, 1867. That being said, Parliament’s jurisdiction under s. 91(24) of the Constitution Act, 1867 is a sound basis for enacting federal legislation that contains such affirmations and imposes such obligations on His Majesty, just as it is a sound basis for imposing national standards for child and family services for Indigenous children (s. 8b)). Contrary to what the Attorney General of Québec argues, this in no way undermines the “constitutional architecture” of Canada. A law’s preamble and purpose clauses can be considered to determine the purpose of the law in question. s. 8 sets out the three elements of the Act’s purpose, which the Act’s preamble assists in interpreting. Taken as a whole, the intrinsic evidence suggests that the purpose of the Act is to protect the well being of Indigenous children, youth and families. This overarching purpose has three elements: affirming Indigenous communities’ jurisdiction in relation to child and family services; establishing national standards applicable across Canada; and implementing aspects of the UNDRIP in Canadian law. The legal effect of the Act is to establish a uniform scheme for protecting the well being of Indigenous children, youth and families through the affirmation of Indigenous legislative authority, through national standards and through concrete implementation measures. Practically speaking, the Act may reasonably be expected to protect the well being of Indigenous children, youth and families and to advance reconciliation with Indigenous peoples. The pith and substance of the Act flows from the examination of these aims and effects. It is constitutionally open to Parliament to use anticipatory incorporation by reference as a legislative drafting technique. Through s. 21, Parliament has validly incorporated by reference the laws, as amended from time to time, of Indigenous groups, communities or peoples in relation to child and family services. As a result, s. 21 does not alter the architecture of the Constitution. Under the doctrine of federal paramountcy, the provisions of a valid federal law prevail over conflicting or inconsistent provisions of a provincial law. Although paramountcy is a judicial doctrine whose scope and application are matters for the courts rather than Parliament or the legislatures this does not prevent Parliament or a legislature from declaring its understanding of federal paramountcy “[f]or greater certainty”, as Parliament has done in s. 22(3), where these words precede its explanation. But it is ultimately for the courts to adjudicate any alleged conflict between federal law and provincial law and to make any necessary declaration of paramountcy.
Aboriginal Law: Police Services; Good Faith; Honour of the Crown
Québec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2023 FC 267; 2024 SCC 39 (40619)
Although the two main grounds relied upon — good faith and the honour of the Crown — are both principles of public order that may not be derogated from by contract, they cannot be conflated because of the distinct bases, in private law and public law, respectively, on which they rest. Firstly, Québec’s intransigent behaviour despite the precarious situation of its counterparty constituted an abuse of right having regard to its right to seek the renewal of the agreement, notably through the extension clause. In other words, Québec’s conduct did not constitute a reasonable exercise of its right “as expressed by reference to the conduct of a prudent and diligent individual” (Houle v. Canadian National Bank, [1990] 3 S.C.R. 122, at p. 164; see arts. 6 and 7 C.C.Q.). Québec’s actions therefore give rise to civil liability under the ordinary rules of contract set out in Book Five of the Civil Code. Secondly, the honour of the Crown is a public law principle originating in the special relationship with Indigenous peoples and that it applies to the performance of Québec’s contractual undertakings in this case. While art. 1376 C.C.Q. provides that the private law of obligations applies to the State, it also specifies that this is “subject to any other rules of law which may be applicable to [it]”. In the circumstances of this case, Québec and Canada, as contracting parties, have an obligation to act with honour and integrity toward Pekuakamiulnuatsh Takuhikan in the performance of the tripartite agreements. These agreements are intended to advance reconciliation through the establishment and maintenance of an Indigenous police force that offers culturally appropriate services whose quality is in line with the applicable standard for such services, and for which administrative responsibility is entrusted to an Indigenous entity. Québec’s obstinate refusal to genuinely renegotiate the contract’s funding terms is not only a breach of the requirements of good faith but also a breach of the obligation to act in a manner consistent with the honour of the Crown, a principle of public law based on a higher standard than the one relating to the obligation of good faith under private law. These are two distinct bases. The breach of an obligation flowing from the honour of the Crown alone, independently of the breach of the requirements of good faith, justifies holding Québec liable. In the end, the flexibility inherent in the assessment of damages in this public law context is both relied on and upheld. The grounds to find a breach by Québec and to uphold the award made against it by the Court of Appeal suffice to identify Québec’s dishonourable conduct and to provide the parties with guidance for the future.
Aboriginal Law: Treaties; Standard of Review; Fiduciary Duties
Ontario (Attorney General) v. Restoule, 2021 ONCA 779; 2024 SCC 27 (40024)
Although a trial judge’s findings of historical fact attract deference, the interpretation of historic Crown-Indigenous treaties is reviewable for correctness. Applying this standard of review, along with the treaty interpretation principles articulated by the S.C.C. the Crown has a duty to consider, from time to time, whether it can increase the annuities without incurring loss. If the Crown can increase the annuities without incurring loss, it must exercise its discretion and decide whether to increase the annuities and, if so, by how much. This discretion is not unfettered; it is to be exercised liberally, justly, and in accordance with the honour of the Crown. The frequency with which the Crown must consider whether it can increase the annuities must also be consistent with the honour of the Crown. The Crown must increase the annuity under the Robinson Treaties beyond $4 per person retrospectively, from 1875 to the present. The plaintiffs’ breach of treaty claims are not statute-barred by Ontario’s limitations legislation. The Crown’s ongoing breach of its augmentation promise, in the circumstances, is also a breach of the treaties themselves. Findings of fact, inferences of fact, and questions of mixed fact and law (which involve applying a legal standard to the facts) are, absent an extricable error of law, all reviewable for palpable and overriding error (Housen, at para. 26; Southam, at para. 26). While the trial judge’s factual findings, including her findings of historical fact, attract deference, her interpretations of the treaty rights do not. The Crown is not subject to an ad hoc or sui generis fiduciary duty in respect of the augmentation promise in the Robinson Treaties. However, the Crown is subject to a duty to diligently implement or fulfill that promise, and its failure to do so is a breach of treaty. The Crown’s breach of the augmentation promise is both a breach of the duty of diligent fulfillment and a breach of the treaty itself. In principle, the full range of remedies — declaratory and coercive — is available. A declaration is an appropriate remedy in that it will offer a definitive statement of the rights and obligations to guide the parties in negotiating compensation for past breaches and to encourage the renewal of the treaty relationship moving forward. In these circumstances, a simple declaration would not adequately repair the treaty relationship or restore the honour of the Crown. It would not sufficiently vindicate the treaty rights or meaningfully advance reconciliation. A court-calculated compensation award for past breaches in relation to the Superior plaintiffs is not yet an appropriate recourse. A narrow, time-bound window for negotiation is directed, after which the Crown is (failing a settlement) required to exercise its discretion honourably in a manner consistent with these reasons and determine an amount of compensation.
Aboriginal Law: Treaty Rights; Limitation Periods; Constitutional Declarations
Shot Both Sides v. Canada, 2022 FCA 20; 2024 SCC 12 (40153)
This appeal concerned whether the Blood Tribe’s TLE (treaty land entitlement) claim is barred by the six-year limitation period in Alberta’s Limitation of Actions Act. This inquiry turned on a narrow question: whether the breach of the TLE was actionable in Canadian courts prior to the coming into force of s. 35(1) of the Constitution Act, 1982. The Blood Tribe argued their claim cannot be statute-barred under Alberta’s Limitation of Actions Act and the Federal Courts Act prior to there being a recognized action in law, which they allege was not the case for breach of treaty claims until the coming into force of s. 35(1). The constitutional applicability and operability of Alberta’s Limitation of Actions Act, as incorporated into federal law by s. 39(1) of the Federal Courts Act, is not at issue. The S.C.C. allowed the appeal in part. The Federal Court of Appeal correctly held that the coming into force of s. 35(1) did not alter the commencement of the limitation period applicable to the Blood Tribe’s TLE claim. Treaty rights flow from the treaty, not the Constitution. It is well established in Canadian caselaw that treaties are enforceable upon execution and give rise to actionable duties under the common law. As the Federal Court of Appeal concluded, the Blood Tribe’s claim is thus statute-barred. However, declaratory relief is warranted given the longevity and magnitude of the Crown’s dishonourable conduct towards the Blood Tribe. Declaratory relief in this context will promote reconciliation and help to restore the nation-to-nation relationship between the Blood Tribe and the Crown. In Aboriginal and treaty rights claims, declaratory relief can assist in providing a clear statement on the legal rights of Indigenous parties, the duties placed on the Crown, and the Crown’s conduct in relation to those sacred promises. Clarity on these rights, duties, and conduct can help to uphold the honour of the Crown, guide the parties in the reconciliation process mandated by s. 35(1), and assist with efforts to restore the nation-to-nation relationship. The dispute between the Crown and the Blood Tribe is real and not academic. The Crown has opposed the declaration being sought by the Blood Tribe at almost every stage of this litigation. The dispute is grounded in an extensive and contested factual matrix regarding the Crown’s commitments under Treaty No. 7 and the size of the TLE. The Crown contested that it breached its obligations under Treaty No. 7 when the action was commenced in 1980. This issue remained in dispute for decades, resulting in a lengthy and complex trial before the Federal Court and a holding that Canada breached its treaty commitments. The Blood Tribe is entitled to the following declaration: under the treaty land entitlement provisions of Treaty No. 7, the Blood Tribe was entitled to a reserve equal to 710 square miles in area; the current reserve is 162.5 square miles smaller in area than what was promised in Treaty No. 7; and Canada, having provided the Blood Tribe with a reserve of 547.5 square miles in area, dishonourably breached the treaty land entitlement provisions of Treaty No. 7. The appellants get their costs throughout.
Access to Information: Cabinet Records; Mandate Letters
Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74; 2024 SCC 4 (40078)
A CBC journalist requested access to 23 mandate letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018. The letters set out the Premier’s views on policy priorities for the government’s term in office. Cabinet Office declined the journalist’s request, claiming the letters were exempt from disclosure under the Cabinet records exemption in s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act (“FIPPA”), which protects, in its opening words, the confidentiality of records that would reveal the “substance of deliberations” of Cabinet or its committees. The CBC appealed to the Information and Privacy Commissioner of Ontario (“IPC or Commissioner”), who found that the letters were not exempt and ordered their disclosure. The IPC’s decision was unreasonable. The Commissioner paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality. His reasons were intelligible and transparent. But he did not engage meaningfully with the legal and factual context against which s. 12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process. Cabinet confidentiality creates conditions necessary to ensure an effective government. The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process. His failure to grapple with the broader constitutional dimension of Cabinet confidentiality led him to an overly narrow interpretation of s. 12(1). He excluded “outcomes” of the deliberative process, without regard for the impact that premature disclosure of policy priorities at an early stage of the process may have on the efficient workings of government. Moreover, even on the Commissioner’s interpretation of s. 12(1), his application of the standard to the Letters was unreasonable. The IPC’s characterization of the Letters as containing only non-exempt “topics” or final “outcomes” of the Premier’s deliberative process did not account for the broader context of the Cabinet’s deliberative process. For one, as head of Cabinet, the Premier’s deliberations cannot be artificially segmented from those of Cabinet. And far from being mere “topics” like items on an agenda, the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet. The Letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does. Finally, the IPC concluded that the Letters were not exempt because even the priorities that would return to Cabinet in the future constituted mere “topics” or subject matters of potential future deliberations. This conclusion, too, was tainted by a failure to evaluate the Letters in context. The IPC stated that topics or subject matters of Cabinet deliberations will not be protected under s. 12(1) unless their disclosure would permit accurate inferences to be drawn as to the substance of those deliberations (paras. 99-101). However, the IPC did not consider the broader context in discerning whether the Letters met this test. In sum, the IPC failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality, the role of the Premier, and the fluid, dynamic nature of the Cabinet decision-making process. The IPC’s lack of appreciation for the contextual constraints bearing upon its decision led him to unreasonable interpretive approaches and conclusions. He characterized the Letters as outcomes of the Premier’s deliberative process; found they were mere topics that did not permit accurate inferences as to Cabinet deliberations; and required evidence from Cabinet Office to show that disclosure of the Letters would permit accurate inferences to be drawn as to “actual Cabinet deliberations at a specific Cabinet meeting” (para. 100; see also paras. 116-17). As a result, the IPC’s narrow interpretation of the “substance of deliberations” was unreasonable. And even on his understanding of the provision, his application of the provision to the Letters was unreasonable. The Letters, along with the representations of Cabinet Office, were clearly sufficient to establish the Letters fell within s. 12(1). The IPC’s decision ordering disclosure must be set aside.
Administrative/Labour Law: Standard of Review; Grievance Arbitration
York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2022 ONCA 476; 2024 SCC 22 (40360)
This appeal provides an opportunity for the S.C.C. to determine the applicability of the Charter to Ontario public school boards. The private communications of two teachers, recorded on their personal, password-protected log, were read and captured by screenshots taken by their school principal. These communications then formed the basis for the school board to issue written reprimands. The teachers’ union grieved the discipline, claiming that the search violated the teachers’ right to privacy at work. No Charter breach was alleged. A labour arbitrator, appointed pursuant to the collective agreement, dismissed the grievance. Applying the arbitral “balancing of interests” framework, the arbitrator found there was no breach of the teachers’ reasonable expectation of privacy when balanced against the school board’s interest in managing the workplace, set out in s. 265 of the Education Act. Teachers are protected by s. 8 of the Charter in the workplace, as Ontario public school boards are inherently governmental for the purposes of s. 32 of the Charter. Consequently, the grievance at issue implicated an alleged violation of a Charter right, and s. 8 was a legal constraint bearing on the arbitrator’s analysis. The arbitrator erred by limiting her inquiry to the arbitral framework without regard for the legal framework under s. 8 that, as a matter of law, she was required to respect. The effect is not to displace existing arbitral jurisprudence, but to supplement it in order to ensure the protection of constitutional rights in the workplace. The s. 8 framework being contextual, it must be adapted to account for the circumstances in which the Charter right is asserted. The correctness standard applies to the determination of whether the Charter applies to school boards pursuant to s. 32(1) of the Charter as this is a constitutional question that requires a final and determinate answer by the courts (Vavilov, at para. 55), one that will apply generally and is not dependent on the particular circumstances of the case. The correctness standard also applies to review the arbitrator’s decision. The award is quashed, because the arbitrator erred in failing to appreciate that a Charter right arose from the facts before her. The issue of constitutionality on judicial review — of whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis — is a “constitutional questio[n]” that requires “a final and determinate answer from the courts” (Vavilov, at paras. 53 and 55).
Administrative Law/Tax: Subordinate Legislation; Standard of Review
TransAlta Generation Partnership v. Alberta, 2022 ABCA 381; 2024 SCC 37 (40570)
In the companion case, Auer v. Auer, 2024 SCC 36, the S.C.C. held, as established in Vavilov, the reasonableness standard presumptively applies when reviewing the vires of subordinate legislation. Given that no exception to that presumption applies here, this appeal provides an opportunity to illustrate how the reasonableness standard of review applies to a vires review of subordinate legislation when the challenger invokes the common law rule against administrative discrimination. The Linear Guidelines discriminate against TransAlta and other parties to off‑coal agreements by depriving them of the ability to claim additional depreciation reflecting the reduced lifespan of their coal‑fired facilities. However, that discrimination is statutorily authorized by necessary implication. To ensure that the assessment of TransAlta’s coal‑fired facilities was “current, correct, fair and equitable” it falls within a reasonable interpretation of the Minister’s statutory grant of power to conclude that same was authorized to deprive TransAlta of the ability to claim additional depreciation. Having regard to the governing statutory scheme, the principles of statutory interpretation, and the common law rule against administrative discrimination, the Linear Guidelines are intra vires the Minister.
Bankruptcy & Insolvency: Breach of Securities Legislation
Poonian v. British Columbia (Securities Commission), 2022 BCCA 274; 2024 SCC 28 (40396)
The Commission found that the Poonians had contravened s. 57(a) (now s. 57(1)(a)) of the Securities Act. It ordered the payment of administrative penalties by both Mr. Poonian ($10 million) and Ms. Poonian ($3.5 million). The Commission also issued orders pursuant to s. 161(1)(g) requiring Mr. Poonian to disgorge $1,319,167 as well as $1,126,260 jointly and severally with another participant, and requiring Ms. Poonian to disgorge $3,149,935. The disgorgement orders represent the amounts the Poonians obtained as a result of the market manipulation scheme. Relying on the exceptions set out in s. 178(1) of the BIA, the Commission applied for a declaration that the amounts owed to it by the Poonians not be released by any order of discharge. The administrative penalties imposed by the Commission do not fall within the exceptions set out in either s. 178(1)(a) or (e) and therefore do not survive a discharge from bankruptcy on those bases. The disgorgement orders imposed by the Commission do not fall within the s. 178(1)(a) exception and do not survive a discharge from bankruptcy on that basis. However, they are captured by s. 178(1)(e) and therefore will not be released by any possible future order of discharge.
Bankruptcy & Insolvency: Corporate Attribution; Fraud & No Benefit Exceptions
Aquino v. Bondfield Construction Co., 2022 ONCA 202; 2024 SCC 31 (40166)
The S.C.C. already established that the corporate attribution doctrine is not a “standalone” principle (Livent, at para. 97); there is no one-size-fits-all approach. The corporate attribution doctrine must be applied purposively, contextually, and pragmatically to give effect to the policy goals of the law under which a party seeks to attribute to a corporation the actions, knowledge, state of mind, or intent of its directing mind. Rules of attribution that may be appropriate in one context for one purpose may be inappropriate in another context for another purpose. When the rules of attribution undermine the purpose of the law under which attribution is sought, the court should adapt the attribution rules to promote the purpose of the relevant law. The fraud and no benefit exceptions to corporate attribution do not apply in the context of a transfer at undervalue under s. 96 of the BIA. These exceptions would undermine rather than promote the purpose of this statutory provision. The purpose of s. 96 is to protect creditors from harmful actions by a debtor that would diminish the assets available for recovery. That purpose is served by attributing the actions, knowledge, state of mind, or intent of the corporation’s directing mind to the corporation, even if the directing mind acted in fraud of the corporation, and even if the corporation did not benefit from the actions of the directing mind. By contrast, applying the fraud and no benefit exceptions would deny third-party creditors a statutory remedy that Parliament intended would be available to protect them. Because it is often difficult to adduce evidence of a debtor’s subjective intent, the intent requirement is often proved through the evidentiary shortcut of badges of fraud. Badges of fraud are suspicious circumstances from which a court may infer the debtor’s intent to defraud, defeat, or delay a creditor. Case law has recognized the following non-exhaustive examples of badges of fraud: (a) the debtor had few remaining assets after the transfer; (b) the transfer was made to a non-arm’s length party; (c) the debtor was facing actual or potential liabilities, was insolvent, or was about to enter a risky undertaking; (d) the consideration for the transaction was grossly inadequate; (e) the debtor remained in possession of the property for their own use after the transfer; (f) the deed of transfer had a self-serving and unusual provision; (g) the transfer was secret; (h) the transfer was made with unusual haste; and (i) the transaction was made despite an outstanding judgment against the debtor. A badge of fraud must be considered in the context of the surrounding circumstances and in relation to the question of the debtor’s intention at the time of the transfer. A court must avoid analyzing the debtor’s actions with the benefit of hindsight; it “must resist the temptation to inject back into the circumstances surrounding the impugned transaction knowledge about how events unfolded after that time” (Montor Business Corp. (Trustee of) v. Goldfinger, 2013 ONSC 6635 at para. 272, aff’d 2016 ONCA 406). The presence of one or more badges of fraud does not require the court to infer an intent to defraud, defeat, or delay a creditor, nor does the absence of a particular badge of fraud prevent the court from inferring this intent.
Bankruptcy & Insolvency: Corporate Attribution; One-Person Corporations
Scott v. Golden Oaks Enterprises Inc., 2022 ONCA 509; 2024 SCC 32 (40399)
The main question raised by this appeal is how the common law doctrine of corporate attribution should be applied to a “one-person” corporation controlled by its sole officer, shareholder, and directing mind. This question arises in the context of determining whether actions commenced by a trustee in bankruptcy to recover funds that a corporation paid out under a Ponzi scheme are statute-barred under the Ontario Limitations Act, 2002. This appeal also raises questions as to whether: (i) the appellants can rely on the principles of equitable set-off under s. 97(3) of the Bankruptcy and Insolvency Act to set off the interest payments they owe the estate against the loan principal owed to them; (ii) the referral agreements are illegal contracts at common law; and (iii) one appellant, Lorne Scott, was dealing at arm’s length from Golden Oaks under s. 95(1)(b) of the BIA. The S.C.C. dismissed the appeal. As this Court noted in Aquino at para. 1, the corporate attribution doctrine “provides guiding principles for when the actions, knowledge, state of mind, or intent of the directing mind of a corporation may be attributed or imputed to the corporation”. The attribution doctrine must be applied purposively, contextually, and pragmatically to give effect to the policy of the law under which attribution is sought (paras. 56, 64, and 82). The same principles apply to one-person corporations. In this case, the Court of Appeal properly exercised its discretion to decline to attribute Mr. Lacasse’s knowledge to Golden Oaks because attribution of that knowledge would undermine the purposes of the limitations and bankruptcy provisions at issue. Attribution would create an injustice by precluding the trustee’s claims to recover the unlawful payments before the trustee was even able to assert them. It would also allow the appellants to retain the proceeds of their wrongful conduct of entering into illegal agreements and reduce the value of the debtor’s assets available to the other creditors in bankruptcy. The remaining grounds of appeal were dismissed.
Banks: Letters of Credit; Fraud
Eurobank Ergasias S.A. v. Bombardier inc., 2022 QCCA 802; 2024 SCC 11 (40350)
At the heart of this dispute is a Letter of Counter-Guarantee governed by Québec law. This letter of credit was issued by the National Bank of Canada at the behest of its customer, Bombardier inc., in favour of a Greek bank, Eurobank Ergasias S.A. By arranging the issuance of this letter of credit, Bombardier sought to facilitate a complex transaction for the supply of aircraft to the Hellenic Ministry of Defense, or “HMOD”. Eurobank issued a distinct Letter of Guarantee in favour of HMOD, again at Bombardier’s request, that is subject to Greek law. The plan for the interlocking letters of credit was straightforward: should HMOD call on Eurobank to honour the Greek Letter of Guarantee, Eurobank would be entitled to call on the National Bank to reimburse it under the Québec Letter of Counter-Guarantee. When HMOD demanded payment under the Greek letter of credit, Bombardier sought an injunction before the Québec Superior Court to stop the National Bank from honouring a subsequent demand for payment by Eurobank as beneficiary under the Québec Letter of Counter-Guarantee. Bombardier alleged that HMOD — a third party to the Québec letter — committed fraud under that instrument and that, by reason of Eurobank’s knowledge and participation in that fraud, the National Bank should be prevented from honouring Eurobank’s demand for payment based on the fraud exception. If the credit was honoured by the National Bank, Bombardier would of course be liable to its bank for that amount. That is unfair, says Bombardier, because an arbitration tribunal to which the parties had submitted their differences decided that Bombardier did not owe the relevant funds to HMOD. The narrow question on appeal is whether fraud committed by HMOD under the Greek letter of credit can be attributed to Eurobank as its own as beneficiary of the Québec letter of credit. In that event, says Bombardier, the fraud exception to the autonomous character of letters of credit should apply to Eurobank. This would mean that the National Bank must refuse the beneficiary’s demand for payment under the Québec letter as fraudulent. In an alternative argument, Bombardier takes the view that because the underlying contract is null, so too are the letters of credit connected to it, notwithstanding the principle of autonomy that governs such letters. To answer whether the National Bank must refuse payment to Eurobank under the fraud exception, the S.C.C. need not opine on the validity of the Letter of Guarantee under Greek law nor measure HMOD’s conduct under Greek law. These questions are the proper province of the Greek courts and cannot decide the matter before this Court that turns on whether the fraud exception applies to the Letter of Counter-Guarantee, governed as it is by Québec law. Where fraud by a third party is established on the facts and a beneficiary under a letter of credit governed by Québec law knows of that fraud and participates in it, the fraud becomes the beneficiary’s own. The fraud exception then applies, and the issuer must be stopped from paying the beneficiary. Here, the trial judge decided, as a matter of fact, that HMOD acted fraudulently. He found too that Eurobank knew of HMOD’s fraud and nevertheless demanded payment under the Québec Letter of Counter-Guarantee. In a word, Eurobank was not “innocent” because it was aware of the third-party fraud and participated in it. Like the majority judges in the Court of Appeal, the S.C.C. saw no reviewable errors in these findings nor in the trial judge’s ultimate conclusion: HMOD’s fraud is attributable to Eurobank as its own and Eurobank cannot, as beneficiary under the Québec letter, demand payment. The National Bank is therefore enjoined from honouring Eurobank’s demand for payment under the fraud exception recognized in Angelica-Whitewear. In the circumstances, the court found it unnecessary to decide whether the letters of credit are null.
Charter/Aboriginal Law: Residency Requirements
Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5; 2024 SCC 10 (39856)
In 1993, the Vuntut Gwitchin First Nation (“VGFN”) a self governing Indigenous community in the Yukon, concluded with the federal and Yukon governments a land claim agreement and a self government agreement, both of which were approved and given effect by federal and territorial legislation. As contemplated by the self government agreement, the VGFN adopted its own constitution, which provided for certain rights and freedoms for its citizens, rules for the organization of its government, and electoral rules and standards. Among other things, the VGFN Constitution included a residency requirement stating that all Chief and Councillors must reside on the VGFN’s settlement land, in the village of Old Crow in the traditional territory of the Vuntut Gwitchin, or relocate there within 14 days of their election. The appellant, a Canadian citizen and a citizen of the VGFN, lived in Whitehorse about 800 kilometers south of Old Crow; she wished to stand for election as a VGFN Councillor but said she cannot move to Old Crow if elected, largely because her son requires access to medical care unavailable there. She challenged the residency requirement, asserting that it unjustifiably infringes her right to equality under s. 15(1) of the Charter. The court held: the Charter applies to the VGFN and to its citizens, principally, but not only, because the VGFN is a government by nature; the circumstances here show that for Indigenous communities, s. 32(1) and s. 25 are intimately connected; it is true that the application of individual Charter rights to a self governing Indigenous community may be thought to inhibit the pursuit of rules designed to protect minority Indigenous rights and interests; but s. 25, by providing protection for collective Indigenous interests as a social and constitutional good for all Canadians, acts as a counterweight; properly understood, s. 25 allows for the assertion of individual Charter rights except where they conflict with Aboriginal rights, treaty rights, or “other rights or freedoms” that are shown to protect Indigenous difference. Tied to ancient practices of government that connect leadership of the VGFN community to the settlement land, the residency requirement protects Indigenous difference and, pursuant to s. 25, cannot be abrogated or derogated from by Ms. Dickson’s individual Charter right with which it is in irreconcilable conflict. To summarize, the Charter applies broadly to the legislative, executive, and administrative branches of government. The Charter applies to Parliament, the provincial legislatures, and the federal, provincial, and territorial governments in respect of all matters within the legislative authority of Parliament and the provinces, which includes entities not specifically listed under s. 32(1). Entities subject to the Charter cannot avoid their Charter obligations by conferring certain of their legislative responsibilities or powers on other entities that are not ordinarily subject to the Charter. An entity may be subject to the Charter in one of two ways. An entity may be government by its very nature or because the federal or a provincial government exercises substantial control over it, in which case all the entity’s activities are subject to the Charter. Alternatively, even if an entity is not part of government, it will be subject to the Charter in respect of governmental activities it performs.
Constitutional Law/Class Actions: Division of Powers/Extraterritoriality; National Class Actions
Sanis Health Inc. v. British Columbia, 2023 BCCA 306; 2024 SCC 40 (40864)
The ultimate question raised in this appeal is this: can multiple Canadian governments join in a single class action, in one province, before one province’s superior court, without unconstitutionally sacrificing their autonomy or sovereignty? The answer is yes. The appellants’ position that the legislation deals with substantive, rather than procedural, rights is not accepted. The purpose and effect of the challenged provision is to create a procedural mechanism to promote litigation efficiency by joining the claims of consenting Canadian Crowns into a single proceeding, while ensuring that each Crown’s claims will be decided in accordance with their own substantive law. Section 11 of the Act falls within the Province’s authority over the “Administration of Justice” under s. 92(14) of the Constitution Act, 1867. Section 11 also properly respects the territorial limits under s. 92(14), which requires that the Province’s legislative powers be exercised “in the Province”. It is meaningfully connected to B.C. by providing a procedural tool that only applies to one proceeding before B.C.’s courts and affects foreign Crowns only if they consent to have their common issues resolved together. Each of the other Crowns’ substantive claims remain under the control of their own legislatures; their legislative sovereignty is respected. In multi-Crown class actions, this choice means that the government of the day may bind its successors to the choice of ceding some of its litigation rights. Does this force an unconstitutional sacrifice of substantive rights on foreign Crowns? No. While participation in a class action involves some sacrifice of litigation autonomy, this does not mean that s. 11 is a substantive provision, or that it effects an unconstitutional sacrifice of substantive rights. In sum, the purpose and effect of s. 11 deal with the promotion of litigation efficiency by joining the claims of consenting Crowns into the single proceeding already before the courts of B.C., so their individual claims can benefit from the efficiency and consistency that class actions and the Act provide.
Contracts: Sale of Goods; Exclusion Clauses; Standard of Review
Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2022 ONCA 265; 2024 SCC 20 (40197)
The principles in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, and Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, apply to the contracts, subject to the Sales of Goods Act. These recent restatements of contract law principles give priority to the parties’ intentions in a manner that modifies and relaxes some of the stricter and more technical approaches which found expression in certain prior cases. As stated in Sattva, “the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine ‘the intent of the parties and the scope of their understanding’” (para. 47, citing Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, at para. 27). All contract terms, including exclusion clauses, “should be given their natural and true construction so that the meaning and effect of the exclusion clause the parties agreed to at the time the contract was entered into is fully understood and appreciated” (Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426, at p. 510). Ultimately, when courts are faced with applying a combination of s. 53, the principles of contractual interpretation and the law concerning exclusion clauses, it is the objective intention of the parties that must be the paramount consideration. The trial judge made no error of law with respect to the exclusion clauses at issue in the case at bar. In the commercial circumstances of this case, the objective meaning of the parties’ express agreement is that the buyer accepted the risk that the soil would not meet the previously supplied compositional specifications if it failed to test what it knew was an organic and changing substance. The appeal is allowed and Earthco has no liability to Pine Valley. Some confusion has arisen about what it means for an agreement to be “express” under s. 53. Some think “express” speaks to specific language that must be used to remove the parties from the SGA. That is not the correct approach. The term “express” qualifies the word “agreement” and is directed to how that agreement must be made. Express does not define what the agreement must say or the required level of clarity of specific contractual clauses. Because s. 53 requires an “express agreement”, and not the use of “express language”, it does not constitute, let alone call for, a qualitative requirement about the specificity of language that is needed to vary or negative an otherwise applicable legal liability. While s. 53 insists that the agreement must be express, it imposes no prerequisite about the precision of the words used to manifest such an agreement. The common law pertaining to agreements, contractual interpretation and exclusion clauses does not serve to “fill gaps” in the statute but, instead, is better viewed as being purposefully incorporated into the SGA. No improper conflation between the interpretative approaches to legislation or contracts arises when, as here, the statute calls for reliance upon governing common law principles. Such principles include the modern approach to contractual interpretation and, if the parties intended to exclude or negative something like an implied statutory condition, the three-step approach to exclusion clauses in Tercon will also apply. In conclusion, because s. 53 requires an express agreement and s. 57(1) confirms the applicability of the common law as it exists from time to time, the principles from Sattva and Tercon extend to contracts for the sale of goods. While recognizing the need to balance protections for parties, freedom of contract and commercial certainty, exclusion clauses in sales contracts are not categorically distinct or subject to different or stricter rules of construction. The SGA must be read as a whole and while the legislature wanted to provide presumptive protections to parties, it also expressly allowed parties to opt out entirely from the implied statutory conditions. The “express agreement” contemplated by s. 53 of the SGA is to be interpreted and applied accordingly.
Criminal Law/Charter: Search & Seizure; IP Addresses
R. v. Bykovets, 2022 ABCA 208; 2024 SCC 6 (40269)
This appeal asks whether an IP address itself attracts a reasonable expectation of privacy. The answer is yes. An IP address is a unique identification number. IP addresses identify Internet-connected activity and enable the transfer of information from one source to another. They are necessary to access the Internet. An IP address identifies the source of every online activity and connects that activity (through a modem) to a specific location. And an Internet Service Provider (ISP) keeps track of the subscriber information that attaches to each IP address. Informational privacy is particularly critical — and particularly challenging. Jurisprudence recognizes that computers are unique and present privacy risks that differ from s. 8’s traditional objects. Thus, the Court has determined that s. 8 generally prevents police from seizing a computer without a warrant — even though the device itself provides no information without judicial permission to search its contents — because seizing the computer gives the state the means through which to access its content (R. v. Reeves, 2018 SCC 56, at para. 34). IP addresses are not just meaningless numbers. Rather, as the link that connects Internet activity to a specific location, IP addresses may betray deeply personal information — including the identity of the device’s user — without ever triggering a warrant requirement. The specific online activity associated with the state’s search can itself tend to reveal highly private information. Correlated with other online information associated with that IP address, such as that volunteered by private companies or otherwise collected by the state, an IP address can reveal a range of highly personal online activity. And when associated with the profiles created and maintained by private third parties, the privacy risks associated with IP addresses rise exponentially. The information collected, aggregated and analyzed by these third parties lets them catalogue people’s intimate biographical information. Viewed normatively and in context, an IP address is the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity. It may betray personal information long before a Spencer warrant is sought. On balance, the burden imposed on the state by recognizing a reasonable expectation of privacy in IP addresses is not onerous. This recognition adds another step to criminal investigations by requiring that the state show grounds to intrude on privacy online. But in the age of telewarrants, this hurdle is easily overcome where the police seek the IP address in the investigation of a criminal offence. Section 8 protection would let police pursue the Internet activity related to their law enforcement goals while barring them from freely seeking the IP address associated with online activity not related to the investigation. Judicial oversight would also remove the decision of whether to reveal information — and how much to reveal — from private corporations and return it to the purview of the Charter.
Criminal Law: Crown Immunity
Canada (Attorney General) v. Power, 2022 NBCA 14; 2024 SCC 26 (40241)
The state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights. Rather, as the S.C.C. held in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, the state enjoys a limited immunity in the exercise of its law-making power. Accordingly, damages may be awarded under s. 24(1) for the enactment of legislation that breaches a Charter right. However, the defence of immunity will be available to the state unless it is established that the law was clearly unconstitutional, or that its enactment was in bad faith or an abuse of power. This is a high threshold. But it is not insurmountable. The following three points can be distilled from Mackin. First, Mackin concerned only the enactment of legislation. The state’s actions under the law was not at issue: it was the legislation itself that abolished the supernumerary judicial status, thereby depriving the judges of their status and income — and thus, their independence. Accordingly, the S.C.C. does not accept Canada’s argument that Mackin never contemplated a claim for damages against the state for the enactment of unconstitutional legislation. The Mackin principle of limited immunity was plainly set out in the context of the “enactment” of law, and as applying to “legislative bodies” (para. 78). Second, the S.C.C. did not deny the judges’ claim because the state enjoyed an absolute immunity for the enactment of legislation, but because the threshold was not satisfied. Gonthier J. found that there was no evidence to suggest the government of New Brunswick acted in bad faith or abused its power. He explained that the government could not have known of later developments in the law concerning judicial independence at the time the statute was enacted. In reaching this conclusion, Gonthier J. looked to the state’s motives, knowledge and conduct during the legislative process. He found the state had a “perfectly legitimate purpose” when it passed the invalid law: “efficiency, flexibility and cost savings” (para. 70). He also found that there was no evidence the state acted with “wilful blindness with respect to its constitutional obligations” (para. 82), nor that the state enacted the law with “knowledge” of its unconstitutionality, nor for an “ulterior motiv[e]” (para. 83). Third, the threshold for liability established in Mackin was expressly designed to reconcile competing constitutional principles. Gonthier J. explained that the “limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government” (para. 79). To award damages merely because legislation was unconstitutional would fail to strike the right balance because it would not give effect to the need for effective government. Yet, at the same time, he recognized that “the government and its representatives are required to exercise their powers in good faith and to respect the ‘established and indisputable’ laws that define the constitutional rights of individuals” (ibid.). Limited immunity ends at the point where it no longer strikes a justifiable constitutional balance. If the state enacts legislation that is subsequently declared invalid and that is clearly unconstitutional, in bad faith or in an abuse of power, good governance concerns can no longer justify shielding the government from liability for violating Charter rights. Damages may instead “promote good governance” by supporting the “foundational principle of good governance” that state action must comply with the Constitution (Ward, at para. 38). If the Mackin threshold is not met, the balance of constitutional principles tilts in favour of state immunity. In such cases, the constitutional imperative that the government be afforded the autonomy to govern effectively will defeat the claim to damages.
Criminal Law: Driving Prohibitions
R. v. Wolfe, 2022 SKCA 132; 2024 SCC 34 (40558)
The driving prohibitions imposed here were unlawful. Criminal negligence offences are no longer listed under s. 320.24(4) as offences that can attract a driving prohibition. The Crown’s proposed interpretation depends on the proposition that, following the enactment of Bill C-46, Parliament’s use of the term “found guilty” permits punishment to be imposed by implication and indirectly, rather than expressly and directly. This interpretation is implausible; it conflicts with the text of s. 320.24(4), sits in tension with the surrounding statutory context and purpose, and fails to fully accord with criminal law principles. Parliament has broadly signalled through Bill C-46 that resorting to specific driving-related offences is preferable to general criminal negligence offences in driving cases. The changes to the availability of discretionary driving prohibitions reflect a logical and deliberate choice to limit driving-specific punishments to driving-specific offences. This is a choice Parliament was free to make. In short, criminal negligence offences are not listed as offences that can attract a discretionary driving prohibition. They used to be listed, but are no longer. Parliament has expressed a strong legislative signal by repealing the provision that listed such criminal negligence offences and enacting another section that excludes them.
Criminal Law: Homicide; Party Liability
R. v. Lozada, 2023 ONCA 221; 2024 SCC 18 (40701)(40709)
The S.C.C. is in agreement with the majority of the Court of Appeal below that, on a reading of the jury instructions and the trial judge’s answers to the jury’s questions as a whole, the jury was accurately instructed on the issue of causation. The instructions conveyed the proper test for causation: whether the particular appellant’s conduct was a significant contributing cause of death. Moreover, on the particular facts of this case, the trial judge properly equipped the jury with appropriate analytical tools described in R. v. Maybin to assist the jury in determining whether the stabbing could be considered to be an intervening act that would absolve the appellants of legal responsibility for manslaughter. The functional approach to appellate review of jury instructions requires that the charge be read as a whole (Abdullahi, at para. 35). In sum, the trial judge’s legal causation instructions conveyed the correct overall test and focused the jury’s attention on each appellant’s contribution to Mr. Khalid’s death. The trial judge’s two statements that it “may be enough” to establish legal causation if the continuation of assaults on Mr. Khalid was reasonably foreseeable should be understood in the context of the full instructions. The jury would not have found this factor to be adequate to establish legal causation without also accepting that the continuation of assaults was of the same general nature as the stabbing, or that the stabbing flowed reasonably from the appellants’ conduct. The causation inquiry is case-specific and fact-driven. There is no single test or measure for determining whether a particular act has broken the chain of causation. The issue in considering joint liability as co-principals under s. 21(1)(a) is whether the unlawful acts of the accused were a significant contributing cause of the victim’s death (Maybin, at paras. 18-29). Strathdee leaves open the prospect of an instruction addressing “a discrete or intervening event” even in the case of co-participants in a group assault.
Criminal Law: Homicide; Self-Defence
R. v. Hodgson, 2022 NUCA 9; 2024 SCC 25 (40498) Judgment Feb. 15, 2024; Reasons July 12, 2024
Any slippage from the high bar of subjective intent required for murder must be avoided. The accused’s actions are not to be measured against the objective standard of a reasonable person in the same circumstances. The mens rea for murder requires more than an intention to cause bodily harm that the accused knew was dangerous; an accused must have intended to cause bodily harm that they knew was likely to cause death. Thus, the proposition that a chokehold is always an inherently dangerous act runs the risk of inappropriately injecting an objective element into the mens rea analysis for murder. This is because the subjective foresight required for murder is focused solely on what the accused intended, and the analysis cannot consider what the accused ought to have known about the inherent dangerousness of a chokehold. The trial judge’s reasons make clear that she correctly assessed whether Mr. Hodgson’s actions were reasonable in the circumstances under s. 34(1)(c) and that she did not inappropriately focus on what Mr. Hodgson himself thought at the time of the impugned conduct. Accordingly, there are no grounds for concluding that the trial judge erred in law in her analysis or in her application of the law on self-defence.
Criminal Law: Informer Privilege; Open Court Principle
Canadian Broadcasting Corp. v. Named Person, 2022 QCCA 984; 2024 SCC 21 (40371)
Recognition of the non-discretionary and thus virtually absolute nature of informer privilege means that the interests protected by the open court principle yield to those protected by informer privilege. This is a difficult societal choice in the sense that it may, in some circumstances, prevail over other very important public interest objectives — for example, promoting the accountability of the judiciary through open justice, favouring adversarial proceedings and ensuring the pursuit of truth — but it is a choice that is essential in guaranteeing the effectiveness of police investigations, the maintenance of public order and the protection of the Canadian public. The Court was not convinced that there is any reason to depart from the current state of the law, under which as much information as possible should be disclosed to interested third parties, but never any information that might compromise the police informer’s anonymity. Parties may consider this rule imperfect or insufficient, insofar as the submissions made by interested third parties might be even more relevant if they had access to more information, but it is a rule that must be reiterated because it has the advantage of ensuring that the dual objectives underlying the informer privilege rule are achieved while at the same time maximizing the helpfulness of the submissions made by interested third parties. “Named Person” was not convicted following a secret criminal proceeding. The controversy that arose after the release in March 2022 of the Court of Appeal’s judgment in which it denounced the holding of a “secret trial” is unfortunate and could have been avoided. First and foremost, it could have been avoided if the trial judge had proceeded in camera by creating a parallel proceeding completely separate from the criminal proceeding in which Named Person had been appearing publicly until that time. The magnitude of the controversy could also have been limited if the Court of Appeal had not used the expression “secret trial” to describe what were actually in camera hearings held in a proceeding that began and initially moved forward publicly. In addition to being inaccurate, this expression is needlessly alarming and has no basis in Canadian law. Moreover, the Court reiterates the relevance of the Vancouver Sun procedure and the importance of rigorously applying its guiding rule requiring a court to protect informer privilege while minimizing, as much as possible, any impairment of the open court principle. For this purpose, the courts must be flexible and creative. What is in issue is the maintenance of public confidence in the administration of justice and respect for the rule of law. The S.C.C. allowed the appeals in part and remanded the case to the Quebec Court of Appeal so that it can make public a redacted version of the trial judgment included in the appeal record, after consulting the respondents on a proposal for partial unsealing and redaction.
Criminal Law: Language Rights
R. v. Tayo Tompouba, 2022 BCCA 177; 2024 SCC 16 (40332)
This appeal is an opportunity to establish the analytical framework that applies where an accused appeals their conviction and raises, for the first time, a breach of s. 530(3) when no decision on the accused’s language rights was made at first instance. A breach of s. 530(3) is an error of law warranting appellate intervention under s. 686(1)(a). According to the jurisprudence, an error of law under s. 686(1)(a)(ii) is any error in the application of a legal rule, through a decision or an improper omission, as long as the error is related to the proceedings leading to the conviction and was made by a judge. A breach of s. 530(3) involves a failure by a judge to comply with a legal rule, and this omission is related to the proceedings leading to the conviction. A breach, once established, has the effect of tainting the trial court’s judgment. It gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was violated, which opens the door to appellate intervention. The Crown can then rebut this presumption for the purposes of the analysis under the curative proviso in s. 686(1)(b)(iv). A first appearance judge who fails to actively ensure that the accused has been informed of their fundamental right and of how it is to be exercised, or who fails to ensure, where the circumstances so require, that the accused is informed thereof, contravenes the judge’s informational duty. Such a failure by the judge constitutes a breach of s. 530(3) and violates the accused’s right.
Criminal Law: Out-of-Court Statements; Hearsay
R. v. Charles, 2022 QCCA 1013; 2024 SCC 29 (40319)
The trial judge here erred in admitting a witness’s statement in writing into evidence at trial. The results of the search subsequently conducted at the witness’s residence do not meet the Bradshaw criteria for corroborative evidence. Because the Crown sought to use the statement to establish the appellant’s role in the events, it was required to show that the search results confirmed that aspect of the statement. As for the circumstances surrounding the statement, they do not support a finding that threshold reliability is established. Moreover, the majority of the Court of Appeal should not have relied on the complainant’s testimony, tendered outside of the voir dire, to establish threshold reliability. On appeal, the appropriate mechanism for considering the complainant’s testimony is the curative proviso in s. 686(1)(b)(iii). However, that provision cannot be applied in this case. It is therefore unnecessary to decide the discrete question of the self contained nature of the voir dire at the trial stage, especially since the trial judge expressly declined to consider evidence not tendered in the voir dire, by agreement of the parties. The admissibility of hearsay evidence is a question of law. However, an appellate court must accord deference to the findings of fact underlying an admissibility ruling. It must also be borne in mind that “a trial judge is well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them” (R. v. Youvarajah, 2013 SCC 41, at para. 31). Thus, “absent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference” (para. 31). In the criminal context, “the threshold reliability analysis has a constitutional dimension because the difficulties of testing hearsay evidence can threaten the accused’s right to a fair trial” (Bradshaw, at para. 24). By ensuring that only hearsay that is necessary and reliable is admitted, “the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth seeking process” (para. 24). The standard articulated in Bradshaw is the product of a line of jurisprudence that fluctuated between various ways of dealing with corroborative evidence at the threshold reliability stage. At one point, this Court had even banned the use of such evidence (see R. v. Starr, 2000 SCC 40, at paras. 215 and 217), before holding in 2006 that it can be part of the analysis “in appropriate cases” (see Khelawon, at para. 4). Care must therefore be taken to preserve the balance struck by Bradshaw between the flexibility required by the principled exception and protection against the risks posed by corroborative evidence.
Criminal Law: Preliminary Inquiries
R. v. Archambault, 2022 QCCA 1170; 2024 SCC 35 (40428)
This appeal raised the question of the temporal application of a legislative amendment through which the right of accused persons to a preliminary inquiry in s. 535 of the Criminal Code is limited to the most serious cases, as well as the question of how the amended provision should be interpreted going forward. The amendment made to s. 535 is procedural in nature but affects a substantive right, that is, an accused’s right under s. 548(1)(b) to be discharged of any charge if, on the whole of the evidence adduced during the preliminary inquiry, no sufficient case is made out to put the accused on trial on the charge. The Court of Appeal erred in holding that the right to a preliminary inquiry is governed by the law in force at the time the offence was committed. Here the Respondents had a vested right to a preliminary inquiry. The right to a preliminary inquiry crystallizes at the time charges are laid. In the absence of a transitional provision, such an interpretation is the one most consistent with both the text of s. 535 and the presumption that Parliament does not intend to interfere with the vested rights or privileges of accused persons. This interpretation is also anchored in the notion that criminal trials do not all proceed in the same purely linear fashion and that they each have their own particular features. Finding that the right vests when charges are laid, a stage common to all cases, better acknowledges the flexibility of criminal procedure and the delays that may be caused by the Crown or the delays inherent in the justice system. Such an interpretation has the advantage of preserving fairness and legal certainty in addition to allowing for the uniform application of the new legislative provision across the country.
Criminal Law: Search and Seizure; Reasonable Expectation of Privacy
Campbell v. R., 2022 ONCA 666; 2024 SCC 42 (40465)
Police lawfully seized a cellphone during a search incident to the arrest of a known drug dealer. A few minutes after the arrest, four text messages were received, appearing to offer to sell drugs. Over the next 2 hours and 15 minutes, the police, without a warrant, replied to the texts by impersonating the dealer and encouraged the sender to come to the dealer’s home for delivery. When the accused came that evening, he was arrested and found in possession of heroin laced with fentanyl and was charged with drug trafficking and possession offences. The accused claimed that he did not send the first four texts and that someone had given him the phone to arrange the delivery of the drugs. However, the accused did acknowledge that he sent and received the later texts about the drug delivery. The S.C.C. agreed with the Court of Appeal that there was a reasonable expectation of privacy in his text message conversation. The police conducted a “search” of that conversation and hence there was standing to challenge the search under s. 8 of the Charter. Nevertheless, the search was not an “interception” of electronic communications under Part VI of the Criminal Code, nor was it incidental to the lawful arrest. Even so, the warrantless search of Mr. Campbell’s text message conversation was justified by exigent circumstances under s. 11(7) of the CDSA. The trial judge found that the police reasonably believed that they faced an urgent situation calling for their immediate intervention to protect public safety based on two considerations. First, the police reasonably believed that the drugs being sold were heroin laced with fentanyl, an especially deadly mix that has killed many vulnerable individuals struggling with drug abuse across the country. Second, the police also reasonably believed that, if they did not intervene immediately, these drugs would be sold imminently to vulnerable individuals in the community and hence posed a grave risk to public safety. These findings cumulatively established the exigent circumstances in this case and made it impracticable to obtain a warrant. The trial judge was entitled to make these findings based on the evidence before him and correctly concluded that they met the legal standard for a warrantless search under s. 11(7) of the CDSA.
Criminal Law: Sexual Assault
R. v. T.W.W., 2022 BCCA 312; 2024 SCC 19 (40406)
The appellant argued that the trial judge erred in refusing to admit the evidence for context and credibility purposes. The S.C.C. disagreed. The appellant failed to sufficiently identify a specific use for the evidence that did not invoke twin-myth reasoning and that was essential to his ability to make full answer and defence. Before a trial judge may grant an application for an admissibility hearing, they must be satisfied that the application “set[s] out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial” (Criminal Code, s. 278.93(2)). As the majority noted on appeal below, “[s]pecificity is required so judges can apply the scheme in a way that protects the rights of the complainant and ensures trial fairness” (para. 97, quoting Goldfinch, at para. 53). The applicant need not include so many details that the witness’s privacy is unnecessarily intruded upon, but there must be a sufficient factual and evidentiary basis for the trial judge to properly consider and weigh the factors set out in s. 276.
Criminal Law: Sexual Assault; Ungrounded Common Sense Assumptions
R. v. Kruk, 2022 BCCA 18; 2022 BCCA 345; 2024 SCC 7 (40095) (40447)
These appeals in two sexual assault matters concern the standard for appellate intervention with respect to a trial judge’s credibility and reliability findings in a criminal trial and the appropriate role of common sense when assessing the evidence of witnesses. The S.C.C. was asked to recognize a novel rule referred to as the “rule against ungrounded common-sense assumptions”. A breach of this proposed rule would provide a new, stand-alone basis for correctness review of credibility and reliability assessments whenever an appellate court determines that a trial judge has relied on a common-sense assumption that was not grounded in the evidence. This significant departure from established standards of review in respect of credibility and reliability assessments in criminal cases has been applied by some appellate courts — often in sexual assault cases that turn on the competing accounts of the accused and the complainant. No such change to the law is warranted; the S.C.C. declined to recognize the rule against ungrounded common-sense assumptions as giving rise to an error of law. The current standards under which appellate courts review trial judgments are well-designed, long-established, and promote the fair assessment of testimony. There is no need to fashion a new rule of law against any assumption not supported by particular evidence in the record to strive for what existing rules already accomplish. Furthermore, the proposed rule is not a coherent extension of existing errors of law pertaining to myths and stereotypes against sexual assault complainants. Adopting it would undercut the functional and flexible approach to appellate intervention and create mischief across the entire criminal law. The faulty use of common-sense assumptions in criminal trials will continue to be controlled by existing standards of review and rules of evidence. In some cases, a trial judge’s use of common sense will be vulnerable to appellate review because it discloses recognized errors of law. Otherwise, like with other factual findings, credibility and reliability assessments — and any reliance on the common-sense assumptions inherent within them — will be reviewable only for palpable and overriding error.
Criminal Law: Stays; ss.10(b) & 7; s. 24(1) Standing
R. v. Brunelle, 2021 QCCA 1317; 2024 SCC 3 (39917)
All of the appellants have standing to apply for a remedy under s. 24(1) of the Charter even though some of them were not the victims of any of the infringements constituting the alleged abuse of process or of any breach of trial fairness. However, the Court of Appeal is agreed with that the Québec Superior Court had to determine whether each appellant’s right under s. 10(b) had been infringed and that it failed to do so, thereby committing a reviewable error. In light of the appellants’ arguments, that determination had to be made in order to decide whether the infringements as a whole met the threshold for abuse of process in the residual category. This is therefore a situation in which the frameworks for ss. 8 and 10(b) are complementary to the s. 7 framework. The Superior Court also erred in entering a stay of proceedings for all of the appellants without first considering less drastic remedies that could have fully redressed the prejudice to the integrity of the justice system that it thought it had identified. These errors justify holding new trials, including new hearings on the appellants’ motion for a stay of proceedings and for the exclusion of evidence. However, this does not mean that every accused will have standing to apply for a remedy under s. 24(1) on the basis of any abusive state conduct, no matter what the causal connection between that conduct and the proceedings against them. To have standing, the accused must allege that the abusive conduct tainted the police investigation or operation targeting them or the court proceedings against them. In this case, each of the appellants meets this requirement, since all of them assert that they were directly targeted by the police investigation and operation that resulted in the alleged abusive conduct.
Criminal Law: Trafficking in Persons; Evidence
R. v. T.J.F., 2023 NSCA 28; 2024 SCC 38 (40749)
The trial judge considered all the evidence. The fact that he did not discuss in greater detail the influence that specific evidence had on his reasoning is not an error of law. The trial judge was not required to “set out every finding or conclusion in the process of arriving at the verdict”, nor did he have to detail his finding on each piece of evidence before him (R.E.M., at paras. 18 and 20). The object of s. 279.01(1) is to comprehensively respond to all forms of trafficking in persons with a focus on women and children, who are more commonly affected. This means criminalizing a wide range of conduct carried out with the purpose of exploiting or facilitating the exploitation of one or many victims. Undoubtedly, regular violence and threats of violence by an accused towards a victim and, more generally, a violent relationship with a victim, can be the means of perpetuating such conduct. The text, context, and purpose of s. 279.01 all support the position that the Crown can adduce evidence showing an accused’s violent relationship with a victim, or regular violence and threats of violence against the victim, in an effort to establish the actus reus of the trafficking in persons offence. Such conduct can amount to exercising control, direction, or influence over their movements during a period of time, provided that the effect of that violence is that the victim’s movements have been effectively controlled, directed, or influenced during that time. In sum, exploitation occurs when the accused engages in any conduct, including regular violence and threats of violence, that both causes the victim to provide (or offer to provide) labour or a service and could be reasonably expected to cause the victim to believe that their safety (or the safety of a person known to them) would be threatened if they failed to provide that labour or service. The latter must be assessed using an objective test, having regard to all the circumstances, including the victim’s vulnerabilities. However, the trial judge committed an error of law when he held that the evidence of regular violence and threats of violence by the accused against the complainant provided by the other witnesses was evidence of past discreditable conduct. To the contrary, this evidence could have been relevant to the essential elements of the offence and could have formed the basis of a finding that the accused controlled, directed, or influenced the movements of the complainant during the time period specified in the indictment. It could also have been found to be a contributing cause of the complainant’s provision of sexual services. The Crown has established that the trial judge’s reasonable doubts could have been resolved had the error of law not occurred. The trial judge assessed the evidence of regular violence and threats of violence by the accused towards the complainant and, more generally, their violent relationship, based on a wrong legal principle. Having done so, the trial judge could not assess that evidence as conduct by the accused relevant to the essential elements of the offence and the definition of exploitation. The fact that he nevertheless admitted the evidence could not and did not cure that error.
Criminal Law: Vetrovec Warnings
R. v. Stevenson, 2024 SKCA 40; 2024 SCC 41 (41269) Judgment Nov. 8, 2024; Reasons Dec. 5, 2024
The accused here was convicted at trial of robbery and having his face masked with the intent to commit an indictable offence. The robbery was recorded on a security camera video and revealed two participants, both of whom had their faces fully masked. The Crown’s case hinged on the recognition evidence of a former gang associate of the accused, who identified him as a participant in the robbery. The trial judge found evidence to be both credible and reliable and found the accused guilty. The Court of Appeal dismissed the appeal from conviction. The sole issue at trial was the appellant’s identity. Two things. First, the trial judge did not view the evidence as more worthy of belief on the basis there was no motive to falsely implicate the appellant. Having self-instructed on the dangers associated with that evidence and applied to it the requisite scrutiny, the trial judge was entitled to accept that evidence without corroboration because she was satisfied that it was true. Second, the trial judge did not engage in circular reasoning by finding that the evidence was more credible because it was consistent with the contents of a security camera video. The trial judge simply found the evidence provided contextual details based on his personal knowledge and experience of the appellant, which supported the truthfulness of his testimony. The trial judge was best positioned to make this credibility determination. Lastly, the trial judge did apply the requisite scrutiny to the reliability of the recognition evidence. The trial judge understood and correctly applied the relevant legal principles bearing on reliability. Her factual determinations on reliability were entitled to deference.
Family Law: Child Support Guidelines; Standard of Review
Auer v. Auer, 2022 ABCA 375; 2024 SCC 36 (40582)
The reasonableness standard as set out in Vavilov presumptively applies when reviewing the vires of subordinate legislation. Some of the principles from Katz Group continue to inform such reasonableness review: (1) subordinate legislation must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object; (2) subordinate legislation benefits from a presumption of validity; (3) the challenged subordinate legislation and the enabling statute should be interpreted using a broad and purposive approach to statutory interpretation; and (4) a vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is necessary, wise, or effective in practice. However, for subordinate legislation to be found ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be “irrelevant”, “extraneous” or “completely unrelated” to that statutory purpose. Continuing to maintain this threshold from Katz Group would be inconsistent with the robust reasonableness review detailed in Vavilov and would undermine Vavilov’s promise of simplicity, predictability and coherence. The Child Support Guidelines are intra vires. They fall within a reasonable interpretation of the scope of s. 26.1 of the Divorce Act, having regard to the relevant constraints. Section 26.1(1) grants extremely broad authority to establish guidelines respecting child support. This authority is constrained by s. 26.1(2) which requires that the guidelines be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute. The Child Support Guidelines respect this constraint.
Family Law: Children at Risk
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A., 2022 QCCA 1653; 2024 SCC 43 (40602)
The power of the Court of Québec Youth Division (“tribunal”) to intervene derives from s. 91 para. 4 of the Youth Protection Act, which states where “the tribunal concludes the rights of a child in difficulty have been wronged by persons, bodies or institutions, it may order the situation to be corrected”. The legislature intended to confer on the tribunal the corrective powers needed to ensure the fullest protection of the interests and rights of the child before it. In practical terms, this means the tribunal may order corrective measures whose purpose is: (1) to put an end to the situation of encroachment where it is still encroaching upon the child’s rights; (2) to remedy the psychological or physical consequences for the child resulting from the encroachment upon rights; and (3) to prevent the recurrence of the situation of encroachment for the child. It is not necessary for corrective measures to specifically mention the child’s name in order for the measures to be related to the protection of the child’s interests and rights. Moreover, depending on the circumstances and the evidence adduced, it is possible for a broad corrective measure — that corrects, for example, an institutional factor at the source of the situation of encroachment — to be a measure related to the protection of the child’s interests and rights. Such corrective measures will generally have the advantage of protecting the interests and rights of many other children in an indirect and incidental manner. The tribunal can deal with the situation of only one child at a time. Moreover, there is nothing to suggest that the legislature intended to authorize the tribunal to order corrective measures that would apply to children whose situations have not been referred to it but who may find themselves in the same situation of encroachment as the child before it. The tribunal may order corrective measures with the following purposes: (1) to put an end to the situation of encroachment where it is still encroaching upon the child’s rights; (2) to remedy the psychological or physical consequences for the child resulting from the encroachment upon rights; and (3) to prevent the recurrence of the situation of encroachment for the child. The tribunal can thus order a wide range of corrective measures so as to render justice in a flexible and creative manner in each case. The magnitude of the budgetary impact of the corrective measure is not in itself a criterion for the validity of the order.
Insurance/Administrative Law: SABS; Standard of Review
Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446; 2024 SCC 8 (40348)
Ms. Yatar contested the denial of her insurance benefits, following an accident in 2010. After having her application dismissed by the Ont. Licence Appeal Tribunal (“LAT”) in 2019, due to the matter being time-barred, Ms. Yatar requested reconsideration of this decision, which was dismissed. Then, she simultaneously appealed the decision to the Divisional Court of Ontario, and applied for judicial review. Section 11(6) of the Licence Appeal Tribunal Act provides that an appeal from a decision of the LAT relating to a matter under the Insurance Act may be made on a question of law only. As per Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. In this case, despite the statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. It is then a matter of discretion whether to undertake judicial review, having regard to the framework for analysis set out in Strickland v. Canada (Attorney General), 2015 SCC 37. The Divisional Court erred when it concluded that only in “exceptional circumstances” would judicial review be available where there is a limited right of appeal; this ignored Strickland. The Ont. C.A. also erred when it held that only in “rare cases” judicial review would be exercised. Both courts sought to apply Strickland, but erred in principle in doing so. They did so by relying on a statutory right of appeal for questions of law as indicative of legislative intent to restrict access to judicial review for questions of fact and mixed fact and law. No such inference is warranted. Properly applying Strickland, the Divisional Court should have exercised its discretion to undertake judicial review for issues not dealt with under the statutory right of appeal. As to the LAT adjudicator’s reconsideration decision, it is unreasonable, as he failed to consider the effects of the reinstatement of benefits on the limitation period, and he did not have regard to jurisprudence relevant to the matter. Once it is determined that it is appropriate to undertake judicial review in this case, the issue arises whether the LAT adjudicator’s reconsideration decision was reasonable. Per Vavilov, there is “a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions” (para. 16). That presumption is not rebutted here. While there is discretion to hear the application on the merits and deny relief, this discretion does not extend to decline to consider the application for judicial review.
Labour Law: Freedom of Association; Standard of Review
Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2022 QCCA 180; 2024 SCC 13 (40123)
These appeals addressed whether the statutory exclusion of managers from the labour relations regime of the Québec Labour Code infringed the guarantee of freedom of association under s. 2 of the Charter and s. 3 of the Québec Charter of human rights and freedoms. The impugned statutory provision, s. 1(l)(1) of the Labour Code, defines an “employee” broadly, as “a person who works for an employer and for remuneration”, but expressly excludes a person who is employed as a “manager, superintendent, foreman or representative of the employer in his relations with his employees”. The provision does not infringe the freedom of association guaranteed by s. 2(d) of the Charter or s. 3 of the Québec Charter. To sum up, the S.C.C.’s s. 2(d) jurisprudence consistently applied a two-part framework that examines whether activities fall within the scope of s. 2(d) and whether government action has substantially interfered with those activities, in purpose or effect; its s. 2(d) jurisprudence since Dunmore should be viewed as a consistent body of case law. The frameworks under ss. 2(b) and 2(d) have evolved differently. This helps explain why the distinction between positive freedoms and negative rights is not relevant in determining the applicable framework for s. 2(d) claims, even though it has been recently affirmed in the s. 2(b) context. Applying the two-part substantial interference test that applies to all s. 2(d) claims, the Appellant has not shown that the legislative exclusion of first-level managers from Québec’s general collective labour relations regime infringes its members’ freedom of association.
Military Law: Judges
R. v. Edwards, 2024 SCC 15 (39820)(39822)(40046)(40065)(40103)
The accused challenged the statutory requirement that the military judges presiding over their courts martial be officers, alleging that it violates their right to a hearing by an independent and impartial tribunal under s. 11(d) of the Charter. The Court Martial Appeal Court held that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that military judges meet the minimum constitutional norms of impartiality and independence, and therefore that the accused’s s. 11(d) rights were not infringed. To protect the constitutional imperative of judicial independence, military judges are not ordinary military officers. They are properly insulated, by law, from the chain of command in their work as judges so that the persons who come before them charged with service offences benefit from constitutionally guaranteed judicial independence. It is true that, like all judges in Canada, military judges are subject to the criminal law and, as military officers, they are subject to military law. Military judges, as officers, are members of the executive and themselves subject to the CSD. But the law protects them from interference from their superiors in the chain of command in their judicial work. While they continue to hold rank and remain part of the military hierarchy, “they are first and foremost judges” (quoting Respondent’s condensed book, tab 1). The hallmarks of military judges’ independence are plainly present notwithstanding their status as officers: the military justice system guarantees their security of tenure, financial security and administrative independence. In sum, s. 11(d) of the Charter does not dictate a particular model of military justice nor does it require that only civilian judges preside over trials for service offences such as the offences relevant to these appeals. The Constitution allows Parliament a measure of choice in the design of justice before courts martial and does not require that military justice be exactly identical to its civilian counterpart. The requirement that military judges be officers pursuant to ss. 165.21 and 165.24(2) of the NDA does not fall afoul of s. 11(d). The appeals are dismissed.
Municipal Law: Constructive Expropriation
St. John’s (City) v. Lynch, 2022 NLCA 29; 2024 SCC 17 (40302)
The starting point for assessing compensation for expropriation is determining the property’s market value. It is well established that land use restrictions impact market value and they are normally taken into account when fixing compensation. The jurisprudence reveals an exception: changes in value resulting from the expropriation scheme itself are to be ignored in the compensation assessment. This principle has been incorporated into many jurisdictions’ expropriation statutes, including s. 27(1)(a) of Newfoundland and Labrador’s Expropriation Act, which is at the centre of this case. In this case, the City of St. John’s constructively expropriated the Respondents’ property when it refused to permit any development on it. The City deprived the Respondents of all reasonable uses of the property and was found to have acquired a beneficial interest in the form of the right to a continuous flow of uncontaminated groundwater downstream to the City’s water facilities. At the time of the expropriation, a zoning regulation limited the property to discretionary agriculture, forestry, and public utility uses — a measure that no doubt diminished the market value of the property compared to the Respondents’ desired residential development use and, therefore, the compensation owed for the expropriation. The application judge concluded that the zoning regulation was an “independent enactment” and not part of the expropriation scheme; this meant that it could operate to influence the market value of the expropriated property and was not to be ignored for the purpose of fixing compensation. The Court of Appeal disagreed, concluding that compensation should be determined without reference to the zoning regulation; however, the S.C.C. saw no basis to interfere with the application judge’s conclusion, which was entitled to deference. In the constructive expropriation context, it is not until all reasonable uses of the property have been removed that a de facto taking occurs (Annapolis, at para. 19). In assessing compensation once constructive expropriation is found to have occurred, distinguishing enactments on the basis of both their purposes and effects ensures the property owner receives “fair compensation but not more than fair compensation” (Waters, at para. 61). And, bad faith is not a prerequisite to a finding that an enactment was made with a view to expropriation.
Tax: Jurisdiction; GST
Iris Technologies Inc. v. Canada (Attorney General), 2022 FCA 101; 2024 SCC 24 (40346)
This appeal, like the appeal in Dow Chemical Canada ULC v. Canada, 2024 SCC 23, which was heard by the S.C.C. on the same day, highlights the shared statutory jurisdiction in tax matters of the Tax Court of Canada and the Federal Court of Canada. The Federal Court of Appeal’s reasoning herein is entirely well founded, including its statement that the Tax Court does not have jurisdiction where the true purpose of an application for judicial review is to “seek practical relief against the exercise of a discretion” by the Minister of National Revenue. As Rennie J.A. observed, in the circumstance of ministerial discretion, the statutory rule ousting Federal Court jurisdiction in judicial review in favour of the Tax Court does not apply. The Federal Court of Appeal herein confirmed its decision in the partner case of Dow in which it recognized the exclusive jurisdiction of the Federal Court over a ministerial discretionary decision provided for by the ITA. In this case, the Federal Court of Appeal recognized the exclusive jurisdiction of the Tax Court in appeals of the assessments where no such ministerial discretion was involved.
Tax: Jurisdiction; Standard of Review; Transfer Pricing
Dow Chemical Canada ULC v. Canada, 2022 FCA 70; 2024 SCC 23 (40276)
This appeal concerns the jurisdiction of the Tax Court of Canada, sitting in appeal of a taxpayer’s assessment, to review the Minister of National Revenue’s decisions under s. 247(10) of the Income Tax Act. Parliament has conferred on the Minister discretionary authority to decide whether “the circumstances are such that it would be appropriate” to make a downward transfer pricing adjustment; a downward adjustment can only be made in accordance with the ITA where the Minister has come to the opinion that it is appropriate. When the taxpayer seeks to challenge the Minister’s discretionary decision, should that challenge be brought by an appeal to the Tax Court, pursuant to that court’s exclusive statutory jurisdiction to decide on the correctness of the taxpayer’s income tax assessment? Or should the taxpayer’s challenge be brought instead before the Federal Court of Canada, pursuant to that court’s exclusive statutory jurisdiction over judicial review, proceeding on the presumptively applicable standard of reasonableness? Ousting the Federal Court’s jurisdiction in the absence of express direction by statute and enlarging the Tax Court’s review function would prompt new controversy over jurisdictional boundaries, all in service of supposed benefits for access to justice that are largely illusory. Parliament plainly did not intend for the Tax Court to serve as an exclusive forum for taxation matters; it expressly granted by statute some jurisdiction over taxation matters to the Federal Court, some to the Tax Court, and even some original jurisdiction in taxation matters to the Federal Court of Appeal.
Transportation: Air; Passenger Compensation; Standard of Review
International Air Transport Association v. Canada (Transportation Agency), 2022 FCA 211; 2024 SCC 30 (40614)
Section 41(1) of the CTA provides for a statutory appeal from the Agency to the Federal Court of Appeal, with leave of that court, on questions of law or a question of jurisdiction (Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, at paras. 7 and 11). A statutory right of appeal indicates Parliament’s intention for appellate standards of review to apply. As the challenge to the Regulations is on a question of law, the correctness standard applies (Housen v. Nikolaisen, 2002 SCC 33, at para. 8). That said, findings of fact by the Court of Appeal, including those related to questions of foreign law, are reviewable on the standard of palpable and overriding error (Housen, at paras. 10, 19 and 26-37). The disposition of this appeal turns on the vires question, which is answered in the negative. Because the Regulations do not provide for an “action for damages”, they do not fall within the scope of the Montreal Convention’s exclusivity principle. Instead, the Regulations are better understood as creating a consumer protection scheme that operates in parallel with the Montreal Convention, without trenching on its liability limitation provisions. Because the Regulations do not conflict with the Montreal Convention as implemented by the CAA, there is no basis to conclude that they are ultra vires the CTA. For that reason, it is not necessary to consider the alternative arguments by the Attorney General and the Agency regarding: first, whether denial of boarding and cancellation qualify as “delays” for the purposes of Article 19; and, second, whether Parliament has directed the Agency to regulate in a manner that is inconsistent with Canada’s obligations under the Montreal Convention. Because the Regulations fall outside the scope of Article 29, no conflict exists between the Regulations and the Montreal Convention (as implemented by the CAA). As a result the Regulations are not ultra vires the CTA.
Oral Judgments
Criminal Law: Fraud/Attempted Fraud
R. v. Landry, 2022 QCCA 1186; 2024 SCC 2 (40394) Judgment rendered Jan. 17, 2024
Karakatsanis J.: “This is an appeal as of right from a judgment that was the subject of dissent on a question of law. In this case, the majority of the Québec Court of Appeal upheld the fraud conviction and the dissenting judge would have substituted a verdict of attempted fraud for that verdict. There is therefore a “disagreement which affects the result” within the meaning of R. v. D’Amico, 2019 SCC 23, at para. 3. The majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of the majority of the Court of Appeal. Côté J., for her part, would have allowed the appeal in part to substitute an attempted fraud conviction for the fraud conviction, substantially for the reasons of Cotnam J.A., and would have remitted the matter to the trial court for sentencing. Therefore, the appeal is dismissed.”
Criminal Law: Illogical/Irrational Judicial Reasoning
R. v. Boudreau, 2023 QCCA 358; 2024 SCC 9 (40810) Judgment rendered March 20, 2024
Côté J.: “Having examined the trial judge’s reasons, delivered orally, to determine whether the verdict was vitiated by illogical or irrational reasoning within the meaning of R. v. Beaudry, 2007 SCC 5, and R. v. Sinclair, 2011 SCC 40, we would dismiss the appeal. With respect, even though the judge could have expressed herself more clearly at times, the appellant has not shown a reviewable error, because the judge’s inference was based on the whole of the evidence. In particular, there is no reviewable error with regard to the complainant’s testimony about the position of her car at the time of the collision. As a result, and substantially for the reasons of the majority of the Court of Appeal, we unanimously dismiss the appeal.”
Criminal Law: Possession of Stolen Property
R. v. Sabiston, 2023 SKCA 105; 2024 SCC 33 (40937) Judgment rendered October 11, 2024
Côté J.: “A majority of the Court is of the view to allow the appeal, substantially for the reasons of Tholl J.A. of the Court of Appeal for Saskatchewan. As a result, the conviction is restored and the file is remanded to the Court of Appeal to address the sentence appeal. Justice Moreau is dissenting.” Moreau J.: “I am in substantial agreement with the reasons of the majority of the Court of Appeal. As this Court stated in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59: The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence [para. 34]. There was no clear nexus between the respondent and the particular crime, namely possession of stolen property (see C.A. reasons, at para. 39). The majority of the Court of Appeal did not err in excluding the firearm from evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. In the absence of a reasonable suspicion, the firearm would not have been discoverable. I would dismiss the appeal.”
Criminal Law: Sexual Offences
R. v. D.F., 2023 ONCA 584; 2024 SCC 14 (40941) Judgment rendered April 22, 2024
The Chief Justice: “For the reasons of Hourigan J.A., dissenting at the Ontario Court of Appeal, a majority of this Court would allow the appeal. Justice Rowe, dissenting, would have dismissed the appeal, relying on paras. 50 and 52 of the reasons of Monahan J.A. relating to the legal error of failure by the trial judge to provide sufficient reasons. Therefore, the appeal is allowed, and the convictions for sexual interference and sexual assault are restored.”
Military Law: Sexual Assault
R. v. Vu, 2023 CMAC 2; 2024 SCC 1 (40655) Judgment rendered Jan. 16, 2024
The Chief Justice: “The respondent was acquitted of sexual assault before the Court Martial. The Crown appealed, arguing that the military judge failed to consider all of the evidence cumulatively and assessed the evidence on the wrong legal principles. A majority of the Court Martial Appeal Court dismissed the Crown’s appeal. Justice McVeigh, in dissent, would have allowed the appeal and ordered a new trial. The Crown appeals to this Court as of right. A majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of the majority of the Court Martial Appeal Court. The military judge’s assessment of the evidence was thorough and cumulative. Reading the judgment as a whole, the military judge did not adopt a piecemeal or narrow approach to the evidence. In addition, we are not persuaded that the military judge applied the wrong legal principles. While we agree with all of the justices of the Court Martial Appeal Court that the military judge engaged in some improper speculation, we share the majority’s view that these comments did not undermine the military judge’s fundamental findings. For her part, Justice O’Bonsawin would allow the appeal for the reasons of Justice McVeigh, at paras. 39-90 and 119-26 (CanLII). Therefore, the appeal is dismissed.”
Leaves to Appeal Granted
Charter: Mobility Rights
Canadian Civil Liberties Association, et al. v. R. in Right of Newfoundland and Labrador, et al., 2023 NLCA 22 (40952) Apr. 25, 2024
In 2020 the Chief Medical Officer of Health for Newfoundland and Labrador, in an effort to curtail the spread of COVID-19, issued certain orders under the Public Health Protection and Promotion Act. These orders restricted travel, by limiting the circumstances in which non-residents were permitted to enter the province. Applicant Kimberley Taylor resided in Nova Scotia. Her mother, a resident of Newfoundland and Labrador, passed away suddenly in 2020. Ms. Taylor sought an exemption from the travel restrictions to attend her mother’s funeral. Her request was denied. Ms. Taylor brought an application seeking a declaration that the travel restriction orders, and the provision of the Act under which they were issued, were beyond the legislative authority of the province and of no force and effect. Ms. Taylor also argued that the travel restrictions violated her rights under the Charter. The Supreme Court of Newfoundland and Labrador dismissed the application. The application judge held that the legislation at issue was constitutional, but that the right to remain in Canada in s. 6(1) included a right of mobility simpliciter within Canada. The decision to deny Ms. Taylor entry into the province infringed her s. 6(1) right to mobility, but the infringement was justified under s. 1. By the time the appeal and cross-appeal from that judgment came before the N.L.C.A., the travel restrictions were no longer in effect. The N.L.C.A. declined to hear the appeal and cross-appeal on the basis that they were moot.
Class Actions: Statutory Causes of Action; Material Change in Business
Lundin Mining Corporation, et al. v. Dov Markowich, 2023 ONCA 359 (40853) Mar. 28, 2024
The Respondent, Dov Markowich, sought leave under s. 138.8, of Ontario’s Securities Act, to bring a statutory cause of action against the Applicant, Lundin Mining Corporation (“Lundin”) and its officers and directors for Lundin’s alleged failure to disclose forthwith a material change in its business, operations or capital, as required under the Securities Act. He also sought certification of the cause of action as a class action. The material changes Mr. Markowich alleged Lundin had an obligation to disclose in a timely manner were pit wall instability detected in part of Lundin’s Candelaria mine in Chile, and a subsequent rockslide at the mine. The motion judge dismissed Mr. Markowich’s motions. He concluded that there was no reasonable possibility that there had been a change to Lundin’s business, operations or capital. He did, however, conclude that if the matters had constituted a change, the change was material. The Ont. C.A. allowed Mr. Markowich’s appeal. It concluded the motion judge interpreted the words “change in the business, operations or capital” too narrowly. Adopting and applying a more generous interpretation to the words, the Ont. C.A. granted leave to proceed with the statutory cause of action.
Constitutional Law: Division of Powers
Opsis Airport Services Inc. v. Attorney General of Québec, et al., 2023 QCCA 506 (40786) Mar. 28, 2024
The Applicant, Opsis Airport Services Inc., is a federal company that operates the emergency call dispatch centre at Pierre Elliot Trudeau International Airport. The Respondent Director of Criminal and Penal Prosecutions charged Opsis with operating an enterprise that carried on private security activities without holding an agency licence of the appropriate class, contrary to ss. 4 and 114 of the Private Security Act. Opsis admitted that, without holding an agency licence, it was carrying on activities related to electronic security systems, which are normally subject to the PSA. However, it challenged the PSA’s constitutional applicability, relying on the doctrine of interjurisdictional immunity. The Court of Québec held that the PSA applied to Opsis and therefore accepted the guilty pleas, convicted Opsis of the offences as charged and imposed fines on it. The court found that the PSA did not intrude on the core of a federal head of power because the PSA had no impact or only a very small impact on Opsis’s operations. The Québec Superior Court allowed Opsis’s appeal, declared the PSA inapplicable to Opsis’s activities related to the operation of the emergency call centre pursuant to the doctrine of interjurisdictional immunity, quashed the convictions and acquitted Opsis of the offences charged. The judge held that the PSA intruded on the core of the federal aeronautics power, which included airport security, and that the intrusion constituted an impairment of the core of the federal power. A majority of the Qué. C.A. allowed the appeal, set aside the Superior Court’s judgment and affirmed the convictions entered by the Court of Québec. Although Opsis’s activities fell within the core of Parliament’s aeronautics power, the application of the PSA did not cause any actual impairment. A purely speculative or hypothetical impairment did not suffice. Ruel J.A., dissenting, would have dismissed the appeal and affirmed the Superior Court’s judgment. He was of the view that if the PSA was applicable to Opsis’s operations, the provisions would impair the core of federal jurisdiction over aeronautics safety and security.
Constitutional Law: Division of Powers
Quebec Maritime Services Inc., et al. v. Attorney General of Quebec, et al., 2023 QCCA 325 (40791) Mar. 28, 2024
There is a sealing order in this case, certain information not available to the public, in the context of the Québec Private Security Act re interjurisdictional immunity and federal paramountcy.
Constitutional Law: Public Interest Standing
Alford v. Canada (Attorney General), 2024 ONCA 306 (41336) Nov. 28, 2024
The National Security and Intelligence Committee of Parliamentarians Act created a committee of Parliamentarians (“the Committee”) appointed by the Governor-in-Council who are given the authority to access classified information pertaining to matters of national security and intelligence. The Committee is charged with the responsibility of preparing reports for the Prime Minister on the matters it inquires into. Where a proceeding is brought against a Committee member, based on the alleged improper disclosure of information obtained as a consequence of membership on the Committee, s. 12 of the Act expressly excluded any claim for parliamentary immunity. Statements made in Parliament or in committee can be the subject of a charge under the Act, or related statutory provisions, and statements made by members of the Committee in Parliament or in committee are admissible against the member to prove the alleged improper disclosure. Applicant Ryan Alford, a law professor, sought and was granted public interest standing to bring a challenge to the constitutionality of s. 12. He brought an application seeking a declaration s. 12 was ultra vires Parliament. A judge of Ontario’s Superior Court of Justice granted the application and declared s. 12 ultra vires the Parliament of Canada and constitutionally invalid. The Ont. C.A. allowed Canada’s appeal.
Criminal Law: Arrest
R. v. D.C., 2024 QCCA 86 (41186) Oct. 10, 2024
There is a publication ban in this case, in the context of a police officer’s right to arrest.
Criminal Law: Attempted Murder; Jury Instructions
R., et al. v. B.F., et al., 2024 ONCA 511 (41420) Nov. 28, 2024
There is a publication ban in this case, in the context of attempted murder of a child by administration of a noxious substance.
Criminal Law: Child Sexual Abuse Material; Mandatory Minimums
Attorney General of Québec, et al. v. Senneville, et al., 2023 QCCA (40882) Apr. 25, 2024
The Applicants, the Attorney General of Quebec and His Majesty the King, seek leave to appeal to the Supreme Court from the declaration of unconstitutionality made by the Qué. C.A. pursuant to s. 52(1) of the Charter with respect to the mandatory minimum sentences of 12 months’ imprisonment provided for in s. 163.1(4)(a) and (4.1)(a) of the Criminal Code. According to the majority of the Court of Appeal, these provisions violate s. 12 of the Charter, namely, the guarantee provided against cruel and unusual punishment, and cannot be justified in a free and democratic society under s. 1. That declaration of unconstitutionality resulted from appeals filed notably in respect of two decisions rendered by the Court of Québec regarding the sentences to be imposed on the Respondents, Mr. Naud and Mr. Senneville. Mr. Naud was convicted of two counts relating to possession and distribution of child pornography. Sentences of 9 months’ imprisonment for possession and 11 months’ imprisonment for distribution pursuant to s. 163.1(4)(a) and (3) were imposed along with various consequential orders. Mr. Senneville was convicted of two counts relating to possessing and accessing child pornography. Sentences of 90 days’ imprisonment to be served intermittently for possession and 90 days’ imprisonment to be served intermittently for accessing child pornography pursuant to s. 163.1(4)(a) and (4.1)(a) were imposed, also along with various consequential orders. The Court of Québec judge declared the minimum sentences provided for in s. 163.1(4)(a) (possession of child pornography) and (4.1)(a) (accessing child pornography) of no force or effect in regard to the accused, unconstitutional under s. 12 and not justifiable under s. 1.
Criminal Law: Delay
R. v. Jacques-Taylor, 2024 ONCA 458 (41430) Dec. 19, 2024
Mr. Jacques-Taylor and three co-accused were charged with firearms offences. A joint trial was scheduled to commence 22 months and 2 weeks after the laying of charges. On a motion to stay proceedings for unreasonable delay, net delay applying the framework set out in R. v. Jordan, 2016 SCC 27, was calculated to be 18 months and 2 weeks. Some delay in trial scheduling arose because counsel for co-accused were not available for an offered trial date, even though Mr. Jacques-Taylor’s counsel and Crown counsel were available. This delay was not treated as defence delay in calculating the net delay of 18 months and 2 weeks. The trial judge granted the motion to stay the proceedings for delay. The Ont. C.A. dismissed the appeal.
Criminal Law: Disclosure
Chief of the Edmonton Police Service v. McKee, et al., 2023 ABKB 698 (41110) Nov. 7, 2024
A finding of misconduct was made against an Edmonton Police Service detective, and was recorded in a document entitled “Decision of Hearing”. The EPS provided the Respondent, His Majesty the King in Right of the Attorney General of Canada (hereafter, the “Crown”), with a copy of the Decision of Hearing in July 2015 (in relation to an earlier prosecution that is unrelated to this application). The Crown redacted the Decision of Hearing to remove irrelevant and personal information, and retained the redacted version. The finding of misconduct to which the Decision of Hearing relates was removed from the detective’s record of discipline and destroyed by operation of s. 22 of the Police Service Regulation sometime prior to January 6, 2022. By June 9, 2022, Respondent John McKee had been charged with drug and weapons offences, following an investigation in which the detective had been involved. In July 2023, the Crown advised Mr. McKee’s counsel the Crown possessed disciplinary records regarding the detective. The records related to misconduct which may be relevant and subject to disclosure, as the details of the misconduct were serious and had a realistic bearing on the detective’s credibility. The Crown further advised the EPS opposed disclosure of the records but the Crown would consent to an application for disclosure if Mr. McKee should choose to bring one. Mr. McKee brought an application for disclosure in the Court of King’s Bench of Alberta. The application judge held the information of misconduct in the Decision of Hearing was relevant and disclosable by the Crown as first-party information. The application was granted.
Criminal Law: DUI
Larocque v. R., 2024 NBCA 4 (41155) Aug. 15, 2024
Mr. Larocque was stopped by police. The police suspected he was impaired and he was arrested and failed a breathalyzer test at a police station. The officer acting as the qualified technician administering the breathalyzer test provided a Certificate of Qualified Technician which was admitted into evidence at trial. Mr. Larocque was convicted of having or exceeding 80 mg/100 mL blood alcohol concentration within two hours after ceasing to operate motor vehicle. A summary conviction appeal was dismissed. The N.B.C.A. dismissed the appeal.
Criminal Law: DUI
Rousselle v. R., 2024 NBCA 3 (41153) Aug. 15, 2024
After being stopped while driving, Mr. Rousselle was required to provide breath samples which were found to contain 100 mg of alcohol in 100 mL of blood. He was charged with having operated a motor vehicle with a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours of ceasing to operate the motor vehicle. The Certificate of Qualified Technician provided by the officer acting as the qualified technician administering the breathalyzer test was received in evidence at trial. The trial judge acquitted. A summary conviction appeal was allowed and he was convicted. The N.B.C.A. dismissed the appeal.
Criminal Law: Driveway DUI
R. v. Singer, 2023 SKCA 123 (41090) June 27, 2024
Police officers investigating an impaired driver tip approached a vehicle parked in a residential driveway that matched the vehicle described in the tip. After entering onto the driveway, they observed someone in the driver’s seat of the vehicle. They knocked on the driver’s window, opened the vehicle’s doors and shook the driver awake. They smelled alcohol. The driver, Mr. Singer, resided at the residence. He failed a roadside breath test and refused to provide a breath sample at a police station. He was convicted at trial for failing to provide a breath sample. The Sask. C.A. held that the officers breached s. 8 of the Charter and excluded the evidence. It allowed the appeal and entered an acquittal.
Criminal Law: Evidence Exclusion
R. v. Wilson, 2023 SKCA 106 (40990) Feb. 22, 2024
Mr. Wilson was present at the scene of an overdose when police responded to a 911 call. Attending police officers detained and then arrested Mr. Wilson and two others for possession of a controlled substance even though their presence at the scene was due to the medical emergency. The police searched a truck and discovered identification, firearms and ammunition. Mr. Wilson was charged with firearms and false identity offences. He applied for a declaration that the evidence should be excluded for breaches of ss. 8 and 9 of the Charter. The trial judge admitted the evidence and convicted Mr. Wilson of firearms offences. The Court of Appeal held the evidence should be excluded, allowed the appeal, and entered an acquittal.
Criminal Law: Prior Convictions
A.H. v. R., 2023 ONCA 253 (41015) Mar. 7, 2024
Mr. Hussein was charged with the second degree murder of Mr. Boucher, fatally stabbed at a party. Mr. Hussein testified at his trial. Defence counsel brought a Corbett application to prevent or restrict the Crown from cross-examining him on his criminal record. The trial judge dismissed the application and Crown counsel cross-examined Mr. Hussein on his criminal record. The trial judge instructed the jury on the use it could make of Mr. Hussein’s criminal record; the jury convicted Mr. Hussein of second degree murder. The Ont. C.A. dismissed the appeal.
Criminal Law: Prison Reclassification
Dorsey and Salah v. Canada (Attorney General), 2023 ONCA 843 (41132) Aug. 29, 2024
Mr. Dorsey and Mr. Salah each applied for transfer to minimum security institutions. Mr. Dorsey’s case management team, Manager of Assessment and Intervention, and Warden all agreed he met the criteria for reclassification but, because of his dangerous offender status, his transfer request had to be approved by the Regional Deputy Commissioner and then the Assistant Commissioner of Correctional Operations and Programs. The Regional Deputy Commissioner assessed his public safety rating as moderate and denied his request. Mr. Salah’s case management team, parole officer and Manager of Assessment and Intervention recommended reclassification and transfer to minimum security, but a new Manager of Assessment and Intervention and Intervention was assigned to his file and assessed him as a moderate escape risk. The Warden then denied his transfer request. Mr. Dorsey and Mr. Salah each applied under the Habeas Corpus Act for writs of habeas corpus ad subjiciendum with certiorari in aid. On consent, the applications were joined to determine a common threshold legal issue: whether the Applicants could resort to habeas corpus to challenge the denials of their applications for transfer to lower security prisons. The applications were dismissed on the grounds habeas corpus was not available for denials of reclassification, which were not deprivations of residual liberty. After the application judge’s decision, Mr. Dorsey was reclassified and transferred to a minimum security institution, but he continued his appeal. The appeal was dismissed.
Criminal Law: Prosecutor Agreements
R. v. Di Paola, 2023 QCCA 750 (40777) May 23, 2024
The Respondent is a construction contractor committed for trial on four charges related to a corruption and fraud matter involving an official with whom he was doing business and with whom he had a friendship. The day before his trial, Mr. Di Paola entered into a negotiated agreement with the prosecutor to plead guilty to a charge of having conferred a benefit on an official while having dealings with the government and without the written consent of the official’s superior (s. 121(1)(b)), and the prosecutor dropped the more serious charges. The prosecutor amended the indictment in accordance with the agreement. Following the guilty plea, the Superior Court imposed a 15-month conditional sentence of imprisonment on Mr. Di Paola. The judge accepted as one of the aggravating factors the fact that Mr. Di Paola had conferred advantages and benefits on the official in consideration of the awarding of lucrative contracts by the official. The Qué. C.A. reduced the length of the conditional sentence of imprisonment imposed on Mr. Di Paola from 15 months to 6 months, finding that the trial judge had erred in principle in accepting aggravating facts associated with another charge that had previously been laid and that had not been carried over in accordance with the agreement entered into between the parties.
Criminal Law: Sentencing
J.W. v. R., 2023 ONCA 552 (40956) Feb. 15, 2024
There is a publication ban in this case, certain information not available to the public, in the context of sentencing re: rehabilitative programming; repeated abandonment of guilty pleas; enhanced credit for pre-sentence custody.
Criminal Law: Sexual Assault
K. v. R., 2023 BCCA 337 (40964) Feb. 15, 2024
There is a publication ban in this case, certain information not available to the public, in the context of social media communications.
Criminal Law: Sexual Offences; Sentencing
R. v. Sheppard, 2023 ABCA 381 (41126) Aug. 8, 2024
The complainant was at that time a grade 7 student at an all-male boarding school in Alberta. The Respondent was a teacher at the school. After a trial by judge and jury, the Respondent was found guilty of sexual interference (count 1), invitation to sexual touching (count 2), and sexual assault (count 3) of a person under the age of 14 years. The offences occurred in 1993 and 1994. In view of the multiple incidents in this case, the sentencing judge was satisfied that it was appropriate to sentence the Respondent on counts 1 and 2. Convictions were entered on counts 1 and 2. The charge of sexual assault was stayed in accordance with Kienapple. The Respondent was sentenced to a six year prison term with the counts to be served concurrently. A majority of the Alta. C.A. allowed the Respondent’s sentence appeal, reducing the sentence to 47 months.
Elections: Loss of Chance
Resler v. Anglin, 2024 ABCA 113 (41298) Nov. 14, 2024
Mr. Anglin was a member of the Legislative Assembly of Alberta from 2012 until 2015, when he was unsuccessful in his re-election bid. He accepted the result of the election, but alleged the Chief Electoral Officer interfered with the fairness of the election and, by doing so, injured his chances of being elected. He sought damages for the alleged loss of the chance to be elected. During the election, the Chief Electoral Officer, Mr. Resler, investigated problems with Mr. Anglin’s election signs and his handling of the list of electors. After the election, the Chief Electoral Officer assessed two administrative penalties against Mr. Anglin, who appealed both penalties. One penalty was overturned due to the Chief Electoral Officer’s failure to provide Mr. Anglin with the investigation report, but the basis for assessing the fine was not found to be problematic. Mr. Anglin then commenced an action against the Chief Electoral Officer and others alleging that the Chief Electoral Officer should not have commenced the investigations and he should have known his actions would injure Mr. Anglin. The Chief Electoral Officer denied the factual allegations and invoked ss. 5.1 of the Election Act which provided a general immunity when the Chief Electoral Officer acts in good faith, and s. 134(5), which authorizes the Chief Electoral Officer to remove non-compliant signs. Later, he applied to strike the claim for failure to disclose a cause of action or for abuse of process, with an alternative request for summary judgment due to lack of merit. Finding the claim was a collateral attack on the validity of the election, the chambers judge struck the entire statement of claim for failure to disclose a reasonable cause of action or as an abuse of process. The Alta. C.A. allowed the appeal in part, reinstated the claim other than the allegations of malicious prosecution, and remitted the Chief Electoral Officer’s claim for summary judgment application to a trial court.
Family Law: Jurisdiction
Dunmore v. Mehralian, 2023 ONCA 806 (41108) June 13, 2024. Appeal heard and judgment rendered (Appeal dismissed), reasons to follow; Dec. 9, 2024
The parties were married in June 2015. They have lived in Japan, the United Arab Emirates and Oman. In March 2020, they travelled to Ontario for a number of reasons, including to visit the Applicant’s parents. They had planned to return to Oman in early April 2020, however the pandemic precluded them from doing so and they stayed with the Applicant’s parents in Ontario until January 2021. In the meantime, the Respondent became pregnant and their son M was born in Ontario in December 2020. The parties and M returned to Oman in January 2021 but came back to Ontario in April 2021. The parties then separated in May 2021. The Applicant moved to the United Arab Emirates and later Oman, while the Respondent remained in Ontario with M. The Respondent commenced proceedings in Ontario in June 2021, seeking a divorce, corollary relief and equalization of property. At the same time, the Applicant commenced a court proceeding in Oman seeking a divorce and joint custody. The Respondent contested the jurisdiction of the Omani courts, but in March 2022, the Omani C.A. found that Oman had jurisdiction. In subsequent litigation in which both parties participated, an Omani lower court as well as the Omani C.A. found that the parties had been validly divorced in accordance with Omani law and awarded primary custody of M to the Respondent. The Applicant brought a motion in the Ontario Superior Court seeking an order recognizing the validity of the Omani divorce in Ontario and an order returning M to Oman. The two issues were heard separately by two different judges. One judge found that the Omani divorce should be recognized in Ontario. The second judge found that M should not be ordered returned to Oman. The Respondent appealed the first order and the Applicant appealed the second. Both appeals were dismissed.
Family Law: Tort of Domestic Violence/Coercive Control
Ahluwalia v. Ahluwalia, 2023 ONCA 476 (41061) May 16, 2024
The parties were married in 1999 in India. During their sixteen years of marriage, they had two children. The trial judge accepted the Applicant wife’s evidence the parties’ relationship was characterized by a pattern of emotional and physical abuse and financial control. The wife testified to three specific incidents of physical violence. The wife brought an action for statutory relief—divorce, child support, spousal support, and property equalization—and also claimed damages for the Respondent husband’s conduct during the marriage. The trial judge awarded $100K in compensatory and aggravated damages for the new tort of family violence. She also awarded an additional $50K in punitive damages for a total of $150K in damages. The Ont. C.A. allowed the appeal in part and reduced the damage award by $50K. The Ont. C.A. would not recognize the new torts of domestic violence or coercive control as defined in this case.
Immigration/Charter: Non-Refugee Status; Constitutionality
Attorney General of Québec v. Kanyinda, et al., 2024 QCCA 144 (41210) Oct. 3, 2024
The Respondent Ms. Cibuabua Kanyinda entered Québec on or about October 9, 2018, via Roxham Road following a stay in the U.S.; originally from the Democratic Republic of Congo, the Respondent made a claim for refugee protection under the Immigration and Refugee Protection Act when she arrived. She has three children, who accompanied her and were very young at the time the application was filed. During the waiting period for the processing of her claim for refugee status, she obtained a work permit allowing her to work in Québec and she approached childcare facilities to find subsidized spaces for the children. However, she was denied access to subsidized childcare because such childcare is reserved for those whose refugee status is formally recognized by the federal authorities, which excludes those waiting for a decision in this regard. On May 31, 2019, the Respondent filed an application for judicial review, which was amended on August 16, 2019. In the application, she challenged the legality, on the basis of an absence of valid statutory authorization, and the constitutional validity, on the basis of an infringement of certain rights guaranteed by s. 3 of the Charter, the Reduced Contribution Regulation. The Superior Court allowed the Respondent’s amended application for judicial review in part and declared that the provision at issue had been enacted without statutory authorization and was therefore ultra vires and null. The Qué. C.A. allowed the principal appeal of the Applicant, the Attorney General of Québec, in part and set aside the Superior Court’s declaration. It also allowed the Respondent’s incidental appeal in part, declaring that the provision at issue infringes s. 15 and not justified under s. 1.
Immigration: Marriage of Dependant Child
Pepa v. Minister of Citizenship and Immigration, 2023 FCA 102 (40840) Feb. 15, 2024
The Applicant Dorinela Pepa came to Canada while in possession of a permanent resident visa as an accompanying dependent child of her father. However, before she came to Canada, Ms. Pepa married. On her arrival in Canada, she advised the point of entry officer of her marriage. Because of the change in her circumstances, Ms. Pepa was admitted for further examination and was not landed. A further examination occurred in the next month, followed by two reports under s. 44 of the Immigration and Refugee Protection Act (“IRPA”). An admissibility hearing before the Immigration Division of the Immigration and Refugee Board (“ID”) commenced in September 2018 after her visa had expired earlier that month. At the conclusion of the hearing, the ID issued an exclusion order. Ms. Pepa appealed the decision to the Immigration Appeal Division (“IAD”), but the IAD concluded that she had no right to appeal under s. 63(2) of the IRPA because, when the removal order was issued, her visa had expired and so was no longer valid. Ms. Pepa’s application to the Federal Court and appeal to the Fed. C.A. were dismissed, with those courts concluding that the IAD’s decision was reasonable.
Insurance: Declaration of Death
Riddle v. Ivari, 2023 QCCA 1111 (40986) May 16, 2024
The spouse of the Applicant went missing in 2008. In 2017, the Applicant obtained a declaratory judgment of her spouse’s death pursuant to art. 92 of the Civil Code of Québec in a proceeding contested by the spouse’s life insurance company. After the spouse was declared deceased, the life insurance company applied to annul the declaration of death on the basis there was evidence he was alive in another country as late as 2018. The application was not served on the party declared to have died. The Superior Court of Québec judge granted the life insurance company’s application and annulled the declaration of death. She concluded there was no prejudice flowing from the fact the application was not served on the declared decedent. The Qué. C.A. allowed the appeal only with respect to application judge’s costs award but otherwise affirmed the Superior Court judge’s decision.
Insurance: Exclusion Clauses; GRC
Stephen Emond and Claudette Emond v. Trillium Mutual Insurance Company, 2023 ONCA 729 (41077) July 4, 2024
The Applicants, Stephen and Claudette Emond (“insureds”), lived in a home on the Ottawa River that was located in the catchment area of the Mississippi Valley Conservation Authority (“MVCA”). The insureds had purchased a standard form residential Homeowners’ Package Comprehensive Form Insurance Policy from the Respondent, Trillium Mutual Insurance Company (“insurer”). During the coverage period, the insureds’ home was severely damaged by a flood and deemed a total loss. Although the insurer acknowledged coverage for the loss under the policy, the parties could not agree on what, if any, costs of replacement of the insureds’ home were excluded from coverage under the policy. The insureds claimed that the Guaranteed Rebuilding Cost (“GRC”) coverage endorsement fully guaranteed their rebuilding costs. The insurer acknowledged that the GRC coverage applied to replace the insureds’ home, but took the position that the costs to be incurred to comply with the MVCA’s regulation policies and other by-laws and regulations enacted after the original building of the home were excluded from coverage by an exclusion in the policy. The application judge accepted the insureds’ position that the GRC coverage was intended to guarantee the costs of rebuilding their home, without any limitation of coverage resulting from the operation of any rule, regulation, by-law, or ordinance. The Ont. C.A. allowed the insurer’s appeal. It concluded that the exclusion applied to exclude coverage for increased costs to comply with any law, including by-laws and regulations such as the MVCA regulation policies.
Municipal Law: Development; By-laws; Zoning
Ville de Sainte-Julie v. Investissements Laroda Inc., 2023 QCCA 1294 (41036) June 27, 2024
In the 1990s, Promotion M.G. Larochelle inc. (Promotion M.G.) was involved in real estate development in Ville de Sainte-Julie (City), the Applicant/cross Respondent. In December 2000, the total area of Promotion M.G.’s real estate projects was 760,926.3 m2. The municipal by-law on parks and playgrounds required 76,092.63 m2, that is, 10% of that area, to be transferred free of charge to the City. However, Promotion M.G. had already transferred 3,898.27 m2 in excess to the City. In February 2001, the City and Promotion M.G. signed an Agreement regarding land transfers for the purposes of parks or playgrounds. The Agreement included an undertaking by Promotion M.G. to transfer land with an area of 45,615 m2 to the City, 50% of that area (22,807.5 m2) being applicable, along with the 3,898.27 m2 already transferred in excess, to the creation of a total [translation] “area bank” of 26,705.78 m2. The creation of that bank allowed the City to avoid having to compensate Promotion M.G. in money for the excess area transferred. In fact, the parties expressly agreed that the bank was to be applied in compensation for park fees to be paid to the City in the context of future real estate development by Promotion M.G. or companies related to it in the City. While at the time Promotion M.G. did not have any land to develop in the City, a company related to it, the Respondent/cross Applicant, Les Investissements Laroda inc. (Laroda), owned lots located in an agricultural zone that it intended to develop for real estate purposes. On two occasions in 2004 and 2008, the City filed an application with the Commission de protection du territoire agricole du Québec (CPTAQ) to have part of the sector (called “Du Moulin”) where Lorada’s lots were located excluded from the agricultural zone, and each time, the application was rejected. The Administrative Tribunal of Québec dismissed the appeal from CPTAQ’s last decision in 2011. In December 2015, Laroda, which, since 2010, had had all the rights, titles and interest that belonged to Promotion M.G., sent a letter, through its representative, Éric Larochelle, to the City’s mayor requesting that she make it a monetary offer that corresponded to the present value of the area included in the bank provided for in the Agreement. After talks broke down, Laroda filed an originating application against the City asking the court to fix a term for the Agreement and to order the City to pay damages. The Superior Court dismissed the originating application and the Qué. C.A. allowed the appeal.
Patents: Obviousness; Patentable Subject Matter
Pharmascience Inc. v. Janssen Inc., et al., 2024 FCA 23 (41209) Sept. 19, 2024
There is a sealing order in this case, certain information not available to the public, in the context of pharmaceutical patent validity/invalidity re obviousness or lack of patentable subject matter.
Prisons: Inmates
John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2022 SKCA 144 (40608) Jan 11, 2024
When an inmate is charged with a disciplinary offence in a Saskatchewan provincial correctional centre or remand centre, s. 68 of The Correctional Services Regulations requires the institutional authorities to determine, on a balance of probabilities, that the inmate committed that offence in order to find them responsible. Some of the penalties imposed may deprive inmates of their liberty as that term is used in s. 7 of the Charter. The John Howard Society of Saskatchewan sought an order declaring s. 68 of the Regulations is contrary to s. 7 as it does not require proof beyond a reasonable doubt. The Court of Queen’s Bench of Saskatchewan dismissed the application, holding s. 68 of the Regulations does not violate s. 7. The Sask. C.A. dismissed the appeal.
Real Property/Aboriginal Law: Prescription; Seizure Exemption
Mohawk Council of Kanesatake v. Louis-Victor Sylvestre, et al., 2023 QCCA 1603 (41131) Aug. 15, 2024
The Respondents are various professionals who obtained judgments against the Mohawk Council of Kanesatake (“MCK”) in 2004, to which a ten-year prescriptive period applies under art. 2924 of the Civil Code of Québec. Certain actions interrupted prescription between 2005 and 2007, after which prescription started running again. A bailiff served a notice of execution on MCK in 2016, which authorized the bailiff to seize MCK’s personal property. However, the bailiff concluded that MCK’s personal property “situated on a reserve” was exempt from seizure pursuant to s. 89 of the Indian Act. The bailiff later had discussions with MCK and was informed that there was no property outside of its land base. The bailiff did not prepare and file minutes of seizure. Subsequently, MCK informed the Respondents that it held a property outside of its land base but that it was exempt from seizure. The Respondents registered a mortgage against that property. MCK sought a declaration that the prescriptive period applicable to the judgment had expired before the Respondents registered. The trial judge concluded prescription had been interrupted in November 2016 when the Respondents served a notice of execution on MCK. The actions of the Respondents amounted to a judicial application that interrupted prescription per article 2892 C.C.Q. Although the seizure was unfruitful, it had not been dismissed or annulled by a court, in which case prescription would not have been interrupted, per art. 2894. The Qué. C.A. dismissed the appeal and affirmed the trial judge’s decision.
Real Property: Adjacent Submerged Lots
Zardev Inc. v. Dydzak, et al., 2024 QCCA 347 (41291) Dec. 19, 2024
The Respondents were owners of lots that border three lakes in Ville d’Estérel. Following the renewal of the cadastre of Ville d’Estérel in 2016, the Respondents discovered they were not owners of a submerged strip of land that goes around each of the lakes and is situated in front of their respective lots. That submerged strip of land apparently belonged to the Applicant, Zardev Inc. Through an application for a declaratory judgment, the Respondents sought a declaration confirming they are respectively owners of the submerged lots adjacent to the lands they own. The Québec Superior Court dismissed their application, finding the submerged lots are the property of the Applicant. The Qué. C.A. allowed the Respondents’ appeal in part. It found the submerged strip of land accessory to the riparian lots pursuant to the doctrine of accessory.
Real Property: Adverse Possession
Pawel Kosicki, et al. v. City of Toronto, Formerly the Corporation of the Borough of York, 2023 ONCA 450 (40908) Apr. 11, 2024
The Applicants were owners of a residential property in the City of Toronto. They sought an order for adverse possession of a parcel of City parkland that their predecessors in title had fenced off with a chain link fence and enclosed into their backyard. The City acknowledged the Applicants’ evidence satisfied the traditional test for adverse possession. The issue was whether the disputed land was nevertheless immune to a claim for adverse possession by virtue of being City land. The application judge found that a private landowner could not acquire title by encroaching on public land and fencing off portions for their private use. This decision was upheld on appeal.
Real Property: Foreclosure
Patrick Street Holdings Limited v. 11368 NL Inc., 2024 NLCA 11 (41296) Dec. 5, 2024
11368 NL Inc. defaulted on mortgages and the mortgaged property was sold under power of sale. A lien holder and a mortgagee brought an application claiming some of the proceeds of sale and the application judge provided an accounting that ranked the priority of 4 lien holders and 7 mortgagees including the two Applicants. The accounting did not include a claim by Patrick Street Holdings Limited to $4M under a collateral mortgage because it had failed to prove the amount owing under that mortgage. In its own application, 11368 NL Inc. claimed entitlement on its behalf and on behalf of an unrelated mortgagee to the remaining balance of the proceeds of the power of sale of approximately $4.2M. Patrick Street Holdings Limited continued its claim under its collateral mortgage. The applications judge granted 11368 NL Inc.’s application and held the remaining $4.2M was impressed with a trust in favour of the third party mortgagee and 11368 NL Inc. A majority of the N.L C.A. dismissed the appeal.
Torts: Jurisdiction; Accidents Abroad
Sinclair, et al. v. Venezia Turismo, Venice Limousine S.R.L, Narduzzi E Solemar S.L.R., 2023 ONCA 142 (40696) Jan. 11, 2024
The Applicants, Duncan and Michelle Sinclair, and their son were on a European holiday and were injured in an accident in Venice, Italy. They were passengers on a water taxi that crashed into a wooden structure. The Applicants were both injured. The Applicants had arranged their travels through Amex Canada Inc., operating under the name Centurion Travel Service which engages third-party travel suppliers for the provision of travel services such as car services, flights and hotel accommodations, at the request and on behalf of Centurion Card members. The day before flying to Venice, Mr. Sinclair booked transportation from the airport in Venice to their hotel, which included a water taxi ride. The water taxi was dispatched by the Respondent, Venizia Turismo, and owned by the Respondent, Venice Limousine S.R.L. After returning to Canada, the Applicants commenced an action seeking damages arising out of the accident. The Respondents moved to dismiss or stay the action against them for want of jurisdiction. The motion judge dismissed the motion. The Respondents appealed to the Ont. C.A.; a majority of the court found that there was no Ontario contract connecting the dispute to Ontario and allowed the appeal, staying the Applicants’ action.