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 (March 30 to May 11, 2018 inclusive).


Charter: Equality; Pay Equity
Québec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (37347)

A Québec Act to amend the Pay Equity Act replaced the ongoing obligation to maintain pay equity with a system of mandatory audits every five years in which the employer was only required to rectify the wages going forward. Under s. 76.5, adjustments in compensation apply from the date of the posting of the results of the audit process. Section 76.3 provided no requirement that the audit posting include the date on which any pay inequity emerged. Under s. 103.1 para. 2, no compensation adjustments could be assessed by the Pay Equity Commission prior to the date of the audit posting. The trial judge held that ss. 76.3 and 76.5 breached s. 15. The declaration of invalidity was suspended for one year. The Court of Appeal upheld the trial judge’s finding that ss. 76.3 and 76.5 breached s. 15 of the Charter. In addition, it concluded that s. 103.1 para. 2 violated s. 15. The S.C.C. (6:3) dismissed the appeal and cross appeal; ss. 76.3, 76.5 and 103.1 para. 2 of the Pay Equity Act are unconstitutional.

Charter: Equality; Delay in Access
Centrale des syndicats du Québec v. Québec (Attorney General), 2018 SCC 18 (37002)

At the time a Québec Pay Equity Act came into force in 1997, there was no methodology for assessing pay equity adjustments where there was no male comparator. Regulatory authority was given to the Pay Equity Commission to conduct the necessary research and to establish a methodology for identifying the appropriate male comparators. A regulation could not be passed until workplaces with male comparators had completed their first pay equity exercise on or before November 21, 2001. The Pay Equity Commission did not settle on a methodology until 2003 and the Regulation was not promulgated until May 5, 2005. The two year grace period provided by s. 38 further postponed pay equity for workplaces without male comparators until May 5, 2007. Section 38 is constitutional.

Criminal Law: Homicide; Unlawful Confinement
R. v. Magoon, 2018 SCC 14 (37416) (37479)

Sections 691(1) and 691(2) of the Criminal Code set out the routes of appeal to the Supreme Court of Canada available to an accused. Section 691(1) applies where a conviction has been affirmed by the court of appeal; s. 691(2) applies where an acquittal has been set aside by the court of appeal. Here both sections apply. Sections 691(1) and 691(2) must be read and interpreted harmoniously, as each provision confers different rights on an appellant, depending on the circumstances, must be kept separate and distinct, and an appellant cannot challenge a decision of a court by appealing a different decision. Although the legal standard for proving unlawful confinement is technically the same for children as for adults, the parent-child context is relevant to both parts of the unlawful confinement analysis: children are easier to confine and, in the case of young children, are regularly confined for health and safety reasons, or as a disciplinary measure; there are lawful justifications for confinement in the parent-child context that do not exist in other contexts. A finding of confinement does not require evidence of a child being physically bound or locked up; it can just as easily result from evidence of controlling conduct. Disciplining a child by restricting his or her ability to move about freely (by physical or psychological means), contrary to the child’s wishes, which exceeds the outer bounds of punishment that a parent or guardian could lawfully administer, constitutes unlawful confinement.

Constitutional Law: Interprovincial Trade
R. v. Comeau, 2018 SCC 15 (37398)

S. 134(b) of the N.B. Liquor Control Act makes it an offence to “have or keep liquor” in an amount that exceeds a prescribed threshold purchased from any Canadian source other than the New Brunswick Liquor Corporation. Mr. Comeau challenged an importing liquor charge on the basis s. 121 of the Constitution Act, 1867 — which provides that all articles of manufacture from any province shall be “admitted free” into each of the other provinces — renders s. 134(b) unconstitutional. The S.C.C. held the impediment to trade posed by s. 134(b) is an incidental effect of a regulatory scheme that does not, as its primary purpose, thwart interprovincial trade, and so does not infringe s. 121.

Family Law: International Child Abduction
Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (37250)

A finding that the children here were habitually resident in Germany at the time of the alleged wrongful retention is a requirement for a return order under the Hague Convention. The S.C.C. adopted the hybrid approach to determining habitual residence under Article 3 of the Hague Convention, and a non-technical approach to considering a child’s objection to removal under Article 13(2).

Torts 101: Negligence; Duty of Care; Foreseeability
Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 (37323) May 11

Here the plaintiff did not provide sufficient evidence to support the establishment of a duty of care, so while the risk of theft was reasonably foreseeable, the evidence did not establish it was foreseeable someone could be injured by the stolen vehicle. There was no evidence to support the inference the vehicle might be operated unsafely, causing injury, and when considering the security of storage at the garage, there was no reason for the defendant garage owner to foresee the risk of injury.

Leaves to Appeal

Broadcasting: CRTC Jurisdiction
Bell Canada v. Canada (Attorney General), 2017 FCA 249 (37896)

What is: CRTC jurisdiction, standard of review.

Broadcasting: CRTC Jurisdiction
National Football League, et al. v. Canada (Attorney General), 2017 FCA 249 (37897)

Similar summary to that immediately above.

Citizenship: Children of Diplomats Born in Canada
Canada (Citizenship and Immigration) v. Vavilov, 2017 FCA 132 (37748)

Issues include: status of children of diplomats born in Canada; standard of review.

Criminal Law: 90-Day Bail Reviews
C.L.J.M. v. R., 2017 BCSC 1717 (37869)

There is a publication ban in this case in the context of a 90-day bail review.

Immigration & Refugees: Habeas Corpus
Canada (Public Safety & Emergency Preparedness) v. Chhina, 2017 ABCA 248 (37770)

To appeal refugee status, does one apply for habeas corpus or the statutory regime.

Labour Law: Definition of “Work Place”
Canada Post Corporation v. Canadian Union of Postal Workers, 2017 FCA 153 (37787)

What does “work place” include/exclude.

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