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 (June 12 – July 10, 2020 inclusive).


Contracts: Arbitration Clauses; Unconscionability
Uber Technologies Inc. v. Heller, 2020 SCC 16 (38534)

Mr. Heller started a class proceeding against Uber in Ontario for violations of employment standards legislation. Uber brought a motion to stay the class proceeding in favour of arbitration in the Netherlands, relying on the arbitration clause in its services agreement. The Court of Appeal concluded that objections to the arbitration clause did not need to be referred to an arbitrator and could be dealt with by a court in Ontario; also finding the arbitration clause to be unconscionable, based on the inequality of bargaining power between the parties and the improvident cost of arbitration. The S.C.C. agreed.

Criminal Law: Bail; Breaking Curfew/Conditions
R. v. Zora,2020 SCC 14 (38540)

To establish breaking curfew or other bail conditions, the Crown is required to prove subjective mens rea and no lesser form of fault will suffice. Under s. 145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.

Criminal Law: Division of Powers; Genetic Non-Discrimination Act
Reference re Genetic Non-Discrimination Act, 2020 SCC 17 (38478)

Parliament criminalized compulsory genetic testing and the non-voluntary use or disclosure of genetic test results in the context of a wide range of activities. Parliament can validly use its broad criminal law power to do so.

Language Rights
Conseil scolaire francophone de la Colombie-Britannique v. British Columbia2020 SCC 13 (38332)

The alleged minority language infringements are two categories: systemic claims (among other things, the fact that the French school board in B.C. had not received an annual grant for building maintenance, the formula used to set priorities for capital projects, a lack of funding for school transportation and a lack of space for cultural activities); claims for the purpose of obtaining new schools or improvements to existing schools in 17 communities. In short, the general rule continues to be that damages can be awarded against a government where they are an appropriate and just remedy in the circumstances; however, the government may avoid such an award by raising concerns for effective governance. Government has no immunity in relation to government policies that infringe fundamental rights.

Mortgages in Québec: Foreclosure
Toronto-Dominion Bank v. Young, 2020 SCC 15 (38242)

Chief Justice Wagner (and 7 colleagues) wrote as follows (paras. 1-2): “We have carefully read the reasons of our colleague Côté J. In our view, the Court of Appeal’s reasons are complete having regard to the issues, and we are entirely in agreement with them. We would dismiss the appeal with costs.”

Oral Judgment

Criminal Law: Entrapment
R. v. Li2019 BCCA 344; 2020 SCC 12(38903) Appeal heard by video-conference 06/11/20.

Martin J.: “Mr. Li pled guilty at trial, the trial judge entered a stay of proceedings based on entrapment, and the Court of Appeal lifted the stay and remitted the matter for sentencing … We recognize that neither level of court in this appeal had the benefit of this Court’s reasons in R. v. Ahmad, 2020 SCC 11. As explained in Ahmad, when investigating a suspected dial-a-dope operation, the police must have reasonable suspicion over the individual or over the phone number or over a combination of both, before they can ask to purchase drugs from the person answering the phone. Applying this framework and considering the totality of the circumstances, the police had reasonable suspicion, before making the call, that the phone number was being used for drug dealing. The police used a Swan sheet to record what actions they took to verify this tip. The tip was that a specific phone number was being used in a dial-a-dope operation to sell cocaine, the sales took place near a particular mall, and involved a tan Honda Odyssey with a specific licence plate. In addition to the phone number, the tip provided details such as which drug was for sale, the area of operation, a vehicle description, and licence plate number. The police confirmed the assertion of illegality by connecting this car and licence plate, and five other vehicles, to a person with an extensive and recent history of suspected dial-a-dope drug dealings. Therefore, there was no entrapment. As a result, we dismiss the appeal, enter a verdict of guilty, and remit the matter for sentencing.”

Leaves to Appeal Granted

Religious Institutions: Membership
Ethiopian Orthodox Tewahedo Church of Canada v. Aga2020 ONCA 10 (39094)

Justiciability of religious organization membership.

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