Summaries Sunday: Supreme Advocacy

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 (May 12 – June 21, 2018 inclusive).


Administrative/Aboriginal Law: Discrimination; Standard of Review
Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 (37208)

Well-established presumption, where an administrative body interprets its home statute, reasonableness standard applies. Presumption may be rebutted and the correctness standard applied where: issues re constitutional division of powers; true questions of vires; competing jurisdiction between tribunals; questions of central importance to the legal system and outside the expertise of the decision maker. Exceptionally, the presumption may also be rebutted where a contextual inquiry shows a clear legislative intent that the correctness standard be applied. In applying the standard of review analysis, there is no principled difference between a human rights tribunal and any other decision maker interpreting its home statute, and human rights tribunals are equally entitled to deference where they apply their home statute. As the presumption of reasonableness is not rebutted, the Tribunal’s decisions here reviewed on a reasonableness standard. Here the Tribunal reviewed all of the complaints in carefully considered, thorough and logical decisions that fell within the range of possible, acceptable outcomes; both decisions were reasonable and upheld.

Criminal Law: Withdrawal of Guilty Pleas; Collateral/Immigration Consequences
R. v. Wong, 2018 SCC 25 (37367)

Whether a guilty plea can be withdrawn where the accused is unaware of a collateral consequence: establish subjective prejudice (that they were unaware of legally relevant consequences at the time of the plea); to assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim.

Charter/Professions: Freedom of Religion; Standard of Review
Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (37318)
Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (37209)

The Law Societies’ decision not to recognize TWU’s proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives governing the Law Society; the decision was therefore reasonable. The limitation on religious freedom must be understood in light of the reality that conflict between statutory objectives and individual freedoms may be inevitable.

Civil Procedure/Defamation: Jurisdiction v. Goldhar, 2018 SCC 28 (37202)

Israel is a clearly more appropriate forum for this claim to be heard, and the action in Ontario stayed.

Corrections: Indigenous Offenders
Ewert v. Canada, 2018 SCC 30 (37233)

Corrections Canada breached the obligation in s. 24(1) of the Corrections and Conditional Release Act: they were aware of long-standing concerns as to whether impugned tools were valid when applied to Indigenous offenders, yet continued to rely on the results in making decisions about offenders without inquiring into their validity.

Professions: Civility
Groia v. Law Society of Upper Canada, 2018 SCC 27 (37112)

A lawyer’s duty to act exists in concert with a series of professional obligations that both constrain and compel lawyers’ behaviour; care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are “not sacrificed at the altar of civility.” The Law Society Appeal Panel’s finding of professional misconduct against Mr. Groia was not reasonable in the circumstances; standards of civility must be articulated with a reasonable degree of precision; an overly vague or open-ended test for incivility risks eroding resolute advocacy; prudent lawyers will steer clear of a blurry boundary to avoid a potential misconduct finding for advancing arguments that may rightly be critical of other justice system participants; a standard that is reasonably ascertainable gives lawyers a workable definition they can use to guide behaviour; it also guides law society disciplinary tribunals in determining whether behaviour amounts to professional misconduct.

Québec Civil Law: Apportionment of Liability
Montréal (Ville) v. Lonardi, 2018 SCC 29 (37184)

The S.C.C. agreed with the Court of Appeal and the Court of Québec that the facts here do not support the application of the Civil Code that provide for “solidarity” in cases of extracontractual fault; the evidence is such that it is possible to determine what specific damage to the victim’s property was caused by each of the identified rioters, so this legislative scheme cannot be circumvented by imposing liability “in solidum” in this context.

Religious Rights: Judicial Review; Justiciability; Jurisdiction
Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (37273)

Courts are not to decide matters of religious dogma; they have neither legitimacy nor institutional capacity to deal with such issues. The Charter does not apply to private litigation; s. 32 specifies it applies to the legislative, executive and administrative branches of government. The Charter does not directly apply here as no state action is being challenged, although the Charter may inform the development of the common law. Religious groups are free to determine their own membership and rules.

Workers’ Comp: Independent Contractors
West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (37423)

Workers’ Comp has jurisdiction re a work incident (here, fatal) involving an employee of an independent contractor.

Oral Judgment

Criminal Law: Sexual Assault; Prior Consistent Statements
R. v. Cain, 2017 NSCA 96; 2018 SCC 20 (37926)

There is a publication ban in this case (oral judgment released from the bench on May 14, 2018), where the S.C.C. (4:1) dismissed the appeal from a sexual assault conviction.

Criminal Law: Failure to Provide Necessities of Life
R. v. Stephan, 2017 ABCA 380; 2018 SCC 21 (37845)(37846)

Justice Moldaver: “We are in essential agreement with the reasons of Justice O’Ferrall. In particular, we agree that the learned trial judge conflated the actus reus and mens rea of the offence and did not sufficiently explain the concept of marked departure in a way that the jury could understand and apply it. Accordingly, we would allow the appeal, quash the conviction and order a new trial.”

Criminal Law: Sexual Assault
R. v. Colling, 2017 ABCA 286; 2018 SCC 23 (37905)

Justice Abella: “The trial judge’s conduct in intervening in the manner in which he did, by stepping into the shoes of counsel, raises serious concerns and ought not to be repeated. Overall, however, we are not persuaded that a miscarriage of justice has been shown. We are therefore of the view that a new trial is not warranted. The appeal is dismissed.”

Criminal Law: Assault & Sexual Assault
R. v. Gulliver, 2017 ABCA 223; 2018 SCC 24 (37917)

Justice Rowe: “We all agree that, read fairly, the trial judge’s reasons make clear that the alibi evidence was neither credible nor reliable. We are also of the view that the trial judge’s reasons were sufficient. Accordingly, we are all of the view that the appeal should be dismissed.”

Leaves to Appeal Granted

Civil Procedure/Torts: Jurisdiction
Nevsun Resources LTD v. Araya, 2017 BCCA 401 (37919)

What jurisdiction is forum conveniens.

Copyright: Federal or Provincial
Keatley Surveying LTD. v. Teranet Inc., 2017 ONCA 748 (37863)

Are survey documents a federal or provincial copyright jurisdiction.

Criminal Law: Official Languages
Bessette v. British Columbia (Attorney General), 2017 BCCA 264 (37790)

French in B.C. courts.

Franchises in Québec: Employee v. Independent Contractor
Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, 2017 QCCA 1237 (37813)

Sealing order, in context of franchise dispute & employee v. independent contractor status.

Class Actions: Certification
Pioneer Corporation, et al. v. Godfrey, 2017 BCCA 302 (37809)

Should this Competition Act class action be certified.

Class Actions: Certification
Sony Corporation, et al. v. Godfrey, 2017 BCCA 302 (37810)

Should this Competition Act class action be certified.

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)