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 as well as leaves to appeal granted so you will know what the SCC will soon be dealing with (January 1 to February 16, 2018 inclusive).


Aboriginal Law: Pre-Confederation Fiduciary Breaches
Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 (36983)

The Tribunal reasonably found that both the Imperial Crown and the federal Crown owed, and breached, fiduciary obligations in relation to protection from pre-emption, and the pre-Confederation specific claim was valid. Treating the Crown as a continuous entity is consistent with an Indigenous perspective on ongoing fiduciary relationship between Indigenous peoples and the Crown.

Administrative Law/Human Rights: Standing; Discriminatory Practices
Delta Air Lines Inc. v. Lukács, 2018 SCC 2 (37276)

The better approach here is to send this matter back to the Canadian Transportation Agency for reconsideration in its entirety. The Agency may reasonably adapt the standing tests of civil courts in light of its statutory scheme. The statutory language indicates the legislator’s intention to give deference to the Agency’s determination of its complaints process.

Criminal Law: Publication Bans
R. v. Canadian Broadcasting Corp., 2018 SCC 5 (37360)

The decision re an interlocutory injunction is a discretionary exercise, with which an appellate court must not interfere solely because it would have exercised the discretion differently. The majority at the Court of Appeal below conceded “either position is arguable”, which was an acknowledgment that the Crown had not shown a strong prima facie case of criminal contempt.

Workers’ Comp in Québec: Duty to Accommodate
Québec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3 (36605)

The duty to accommodate requires accommodation to the point that an employer is able to demonstrate “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual”. Since a core principle of the Québec Charter is the duty to accommodate, it follows that this duty applies when interpreting and applying the provisions of Québec’s injured worker legislation.

Oral Judgment

Criminal Law: Failure to Stop
R. v. Seipp2018 SCC 1 (37513) Judgment rendered Jan. 18, 2018

“ … [the] conviction was not a miscarriage of justice. Mr. Seipp had control of a vehicle involved in an accident. He fled the scene without providing his name or address. In the absence of evidence to the contrary, this was proof of the requisite intent for the offence”.

Leave to Appeals Granted

Civil Procedure/Class Actions: Jurisdiction
J.W. and REO Law Corporation, et al. v. Attorney General of Canada, 2017 MBCA 54 (37725)

What conduct is/is not covered by the Residential Schools Settlement.



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