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. It’s a summary of all appeals and leaves to appeal granted, so you know what the S.C.C. will soon be dealing with (October 15 – November 11, 2016 inclusive).


Civil Procedure: Contempt
Morasse v. Nadeau-Dubois, 2016 SCC 44 (36351)

In Québec, the power to find someone guilty of contempt of court is an exceptional one; courts have consistently discouraged its routine use to get compliance with court orders, and it’s an enforcement power of last resort. Formalities must be strictly complied with, and the elements proved beyond a reasonable doubt.

Class Actions: Pan-Canadian Settlements
Endean v. British Columbia, 2016 SCC 42 (35843) (36456)

Superior court judges in Ontario and B.C. have the discretionary statutory power under their class action legislation to sit outside their home provinces. A broad interpretation of these statutory powers, confirming the inherent authority of judges to control procedure, helps fulfil the purpose of class actions and ensure procedural innovations in accessing justice will not be held up by unduly technical or time-bound understandings of the scope of class action judges’ authority.

Criminal Law: Plea Bargains
R. v. Anthony-Cook, 2016 SCC 43 (36410)

Joint submissions on sentence are not sacrosanct and trial judges can depart from them. The proper test is not a “fitness of sentence” test, but rather whether the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest.

Criminal Law: Search & Seizure; Weapon & Cocaine Possession
R. v. Diamond, 2016 SCC 46 (36816)

The full judgment of the Supreme Court, per Karakatsanis J. is: “The majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of Harrington J.A., 2015 NLCA 60, 371 Nfld. & P.E.I.R. 200, at paras. 22-26. Gascon and Côté JJ., dissenting, would have allowed the appeal, substantially for the reasons of White J.A., at paras. 44-48. The appeal is accordingly dismissed.”

Municipal Law: Assessment Value; Standard of Review
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (36403)

The standard of review for an assessment board’s decision is reasonableness, and it was reasonable here for the board to find it had the power to increase the assessment.

Torts/Medmal: Causation; Adverse Inferences
Benhaim v. St‑Germain, 2016 SCC 48 (36291)

Standard of review: correctness, questions of law; palpable and overriding error, findings of fact and inferences of fact. Adverse inferences of causation can discharge plaintiffs’ burden of proving causation. Whether an inference of causation is warranted, and how it is to be weighed against the evidence, are for the trier of fact. Courts of Appeal should generally not interfere with trial judges’ decisions not to draw inferences from general statistics to particular cases.

Oral Judgments

Contracts: Arbitration
Urban Communications Inc. v. BCNET Networking Society, 2016 SCC 45 (36639) Judgment rendered Nov. 3, 2016

The Chief Justice: “We are all of the view that the appeal should be dismissed substantially for the reasons of the Court of Appeal of British Columbia.”

Criminal Law: Driving Offences; Arbitrary Detention; Right to Counsel
R. v. Rowson, 2016 SCC 40 (36777) Judgment rendered Oct. 17, 2016

Justice Abella: “A majority of this panel is of the view that the appeal should be dismissed substantially for the reasons of Justice O’Ferrall [Charter-infringing police conduct not serious, impact on Charter-protected interest minimal, not established admission of breath sample evidence would bring the administration of justice in disrepute]. Justice Côté and I would allow the appeal primarily on the basis that the cumulative effect of the multiple breaches warranted the exclusion of the breathalyzer evidence.”

Criminal Law: Sexual Offences
R. v. C.K-D., 2016 SCC 41 (36877) Judgment rendered Oct. 18, 2016

Justice Wagner: “The trial judge’s charge to the jury as a whole conveyed the correct instruction to the jury on the proper approach [as to how a young person’s evidence is to be considered] to assessing A.Y.’s evidence and credibility. On this basis, the appeal should be allowed and the convictions restored.”

Leaves to Appeal

Civil Procedure: Document Retention/Preservation
Fontaine et al. v. Canada (Attorney General), 2016 ONCA 241 (37037)

In the context of Indian residential schools litigation/process, what documents are to be kept, and for how long.

Civil Procedure: Striking Out; Self-Reps
Pintea v. Johns, 2016 ABCA 99 (37109)

Should the action herein be struck.

Competition: (Alleged) Price-Fixing
Canada (Attorney General) v. Thouin, 2015 QCCA 2159 (36869)

There is a sealing order in this case, in the context of alleged gasoline price-fixing in Québec.

Criminal Law: Status of Tipline Callers
Durham Regional Crime Stoppers Inc. v. R., 2016 ONSC (37052)

There is a publication ban in this case, as well as a sealing order in the context of whether tipline callers are entitled to informer privilege. The S.C.C. also ordered other safeguarding procedures, including redaction.

Labour Law: Federal Justice Lawyers
Canada (Attorney General) v. Association of Justice Counsel, 2016 FCA 92 (37014)

Can a policy grievance re mandatory “standby duty” proceed.

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