Summaries Sunday: Supreme Advocacy

On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe.

Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with) (Jan. 7 – Feb. 11, 2015 inclusive).


Competition: Mergers; “Prevention”; Efficiencies Defence; Balancing Test
Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 (35314)
The “prevention” wording of s. 92 generally supports the analysis and conclusions of the Tribunal and the Fed. C.A. To get the benefit of the s. 96 “efficiencies” defence, the Tribunal must be satisfied that the merger or proposed merger has brought about or is likely to bring about gains in efficiency, and the gains in efficiency would not likely be attained if a s. 92 order were made. In addition, and despite the paramountcy given to economic efficiencies in s. 96, s. 96(3) prohibits the Tribunal from considering a “redistribution of income between two or more persons” as an offsetting efficiency gain. The limitation in s. 96(3) demonstrates Parliament did not intend for all efficiency gains, however arising, to be taken into account under s. 96.

Criminal Law/ Constitutional Law/Charter: Doctor-Assisted Dying
Carter v. Canada (Attorney General), 2015 SCC 5 (35591)
The prohibition on doctor-assisted dying is void where (1) a competent adult affected clearly consents to the termination of life; and (2) they have a grievous and irremediable medical condition (including illness, disease or disability) causing enduring intolerable suffering. Declaration of invalidity suspended 12 months.

Labour Law: Freedom of Association; Police Unions
Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (34948)
The current RCMP labour relations regime denies a meaningful process of collective bargaining, and imposes a scheme that does not permit them to identify and advance their workplace concerns free from management’s influence. Excluding RCMP members from collective bargaining under para. (d) of the definition of “employee” in s. 2(1) of the Public Service Labour Relations Act infringes s. 2 (d) of the Charter, and is not justified under s. 1

Labour Law: (federal) Expenditure Restraint Act
Meredith v. Canada (Attorney General), 2015 SCC 2 (35424)
Despite deficiencies in the “Pay Council process”, it nonetheless constitutes associational activity that attracts Charter protection. The Expenditure Restraint Act does not amount to substantial interference with that activity despite its constitutional deficiencies.

Labour Law: Essential Services; Right to Strike; Freedom of Association
Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (35423)
The prohibition against strikes in the Public Service Essential Services Act substantially interferes with a meaningful process of collective bargaining and therefore violates s. 2 (d) of the Charter; infringement is not justified under s. 1; declaration of invalidity suspended one year; appeal with respect to Trade Union Amendment Act 2008 dismissed.

Leaves to Appeal Granted

Criminal Law: Bail; Pre-Sentence Custody
R. v. Safarzadeh-Markhali2014 ONCA 627 (36162)
Do ss. 719(3) and 719(3.1), as applied in this case, breach s. 7 of the Charter.

Criminal Law/National Security: Foreign Wiretaps
X (Re), 2014 FCA 249  (36107)
Sealing order in this case. Can CSIS and for Communications Security Establishment request foreign partner agencies for assistance in targeting (phone) communications of Canadians travelling abroad.

Criminal Law: Sexual Offences
R. v. W.,2014 ONCA 598(36112)
Publication ban in the context of (alleged) delay re (alleged) historic sexual abuse.

Municipal Law/Telecommunications in Québec: Expropriation
White v. City of Châteauguay (Ville de), 2014 QCCA 1121 (36027)
Is the (municipal) expropriation for a cellphone tower here valid.

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