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) (Apr. 9 – May 13, 2015 inclusive).


Criminal Law: Mandatory Minimums
R. v. Nur (R. v. Charles),2015 SCC 15 (35678)(35684)
Mandatory minimum sentences imposed by s. 95(2) (a) violate Charter s. 12.  Most cases do not constitute cruel and unusual punishment, but some reasonably foreseeable cases caught by s. 95(1) they may do so. Not saved under s. 1 of the Charter, so s. 95(2) (a) is unconstitutional as presently structured. Judges not prevented from imposing exemplary sentences emphasizing deterrence and denunciation in appropriate circumstances.

Charter: Freedom of Religion
Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (35496)
Recitation of prayer is in breach of state’s duty of neutrality and also interfered in a discriminatory manner with freedom of conscience and religion.

Civil Procedure: Mareva Injunctions; Contempt
Carey v. Laiken, 2015 SCC 17 (35597)
Civil contempt has three elements to be established beyond a reasonable doubt: order alleged to have been breached “must state clearly and unequivocally what should and should not be done”; party alleged to have breached the order must have had actual knowledge; party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.

Securities: Standard for Class Actions in Québec
Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18 (35550)
The “reasonable possibility” of success required under s. 225.4 sets out a different and higher standard than the general threshold for the authorization of a class action under art. 1003 of the C.C.P.

Language Rights/Education: School Equivalency
Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21 (35619)
In comparing equivalence (between minority and majority language schools), quality of instruction and facilities may both be strong indicators. Ultimately, focus of the assessment is substantive equivalence of educational experience.

Civil Procedure: Expert Evidence; Auditors
White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23 (35492)
Expert witnesses have a special duty to provide fair, objective and non-partisan assistance, and those unable or unwilling to comply (with this duty) are not qualified. Judges must still take concerns re independence and impartiality into account in weighing evidence at the gatekeeping stage. Relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting evidence.

Charter/Criminal Law/Civil Damages: Wrongful Convictions
Henry v. British Columbia (Attorney General), 2015 SCC 24 (35745)
Charter damages can be claimed where the Crown, in breach of constitutional obligations, causes harm (to the accused) by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material and failure to disclose will likely impinge on the ability to make full answer and defence. Proof of malice is not required.

Oral Judgments

Insurance: SABS Priorities
Zurich Insurance Co. v. Chubb Insurance Co. of Canada, 2014 ONCA 400 (36002) Judgment rendered April 17, 2015
The Court: “We are of the view that the appeal should be allowed with costs for the reasons of Juriansz J.A.”

Pharmaceuticals: Amending Pleadings
Sanofi-Aventis v. Apotex Inc., 2014 FCA 66 (35886) Judgment rendered April 20, 2015
The Chief Justice: “We are all of the view to dismiss the appeal substantially for the reasons of the majority of the Court of Appeal. The appeal is dismissed with costs.

Canada (Attorney General) v. Barnaby, 2013 QCCA 1305 (35548) Judgment rendered April 23, 2015
The Chief Justice: “We are all of the view that the appeal should be allowed. The appeal is allowed and the decision of the Minister of Justice is reinstated with reasons to follow.”

Caplin v. Canada (Minister of Justice), 2013 QCCA 1305 (35527) Judgment rendered April 23, 2015
The Chief Justice: “We are all of the view that the appeal should be dismissed. The appeal is dismissed with reasons to follow.”

Constitutional Law
Québec (Attorney General) v. Canada (Attorney General), 2014 QCCA 2365 (36231) Judgment rendered April 24, 2015
Wagner J: “We are all of the view that the appeal should be dismissed, essentially for the reasons given by the Québec Court of Appeal. The appellants have not persuaded us that the Court of Appeal erred in interpreting s. 98 of the Constitution Act, 1867. The arguments based on Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, do not stand up to analysis. As the Court of Appeal mentioned in paras. 26-36 of its opinion, this appeal concerns different constitutional and statutory provisions, and the reasoning and conclusions from that reference do not apply to it. For these reasons, the appeal is dismissed.”

Leaves to Appeal Granted

Civil Procedure/Class Actions: Jurisdiction
Trillium Motor World Ltd. v. General Motors of Canada Limited2014 ONCA 497 (36087)
Do the Ontario courts have jurisdiction here.

 Agriculture Law in Québec: Income Stabilization
Financière agricole du Québec v. Ferme Vi-ber inc., 2014 QCCA 1886 (36205)
Is this Farm Income Stabilization Insurance Program valid.

Agriculture Law in Québec: Income Stabilization
Lafortune v. Financière agricole du Québec, 2014 QCCA 1891 (36210)
Similar summary to that immediately above.

Civil Procedure/Charter: Fracking; Motions to Strike
Ernst v. Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (36167)
What gets struck out, and what gets left in, this environmental claim.

Corporations: Oppression Remedy
Mennillo v. Intramodal inc., 2014 QCCA 1515 (36124)
Is this a valid case for an oppression remedy.

Criminal Law: DNA Swabs
R. v. Saeed, 2014 ABCA 238 (36328)
When can DNA swabs be done without a warrant.

Criminal Law: Mandatory Minimums; Sentencing
R. v. Lloyd
, 2014 BCCA 224 (35982)
Is the mandatory minimum in s. 5(3) (a)(i)(D) of the Controlled Drugs and Substances Act constitutionally valid.

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