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 (October 10 – November 20, 2020 inclusive).

Oral Judgments

Criminal Law: Jury Challenges
R. v. Chouhan, 2020 ONCA 40; 2020 SCC (39062)

The Chief Justice: “A majority of the Court is of the view that the statutory change is constitutional and purely procedural and therefore has retrospective application. Accordingly, the appeal is allowed, the cross-appeal is dismissed and the conviction is restored. Reasons to follow.”

Criminal Law: Jury Selection
R. v. Esseghaier, et al., 2019 ONCA 672; 2020 SCC(38861)

The Chief Justice: “The Court is of the view that the curative proviso at s. 686(1) (b)(iv) of the Criminal Code applies. The appeal is allowed. The matter is remitted to the Court of Appeal to address the remaining grounds of appeal. Reasons to follow.”

Criminal Law: Bail
R. v. Reilly, 2019 ABCA 212; 2020 SCC 27 (38785)

Brown J.: “In these circumstances, which include the trial judge’s finding at para. 63 of her reasons (2018 ABPC 85, 411 C.R.R. (2d) 10) that the breach of s. 503 of the Criminal Code was an instance of a systemic and ongoing problem that was not being satisfactorily addressed, we are all of the view that there was no basis for the Court of Appeal to interfere with the trial judge’s exercise of discretion: see R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 41. The appeal is allowed and the stay restored.”

Criminal Law: Vetrovec Warning
R. v. Riley, 2019 NSCA 94; 2020 SCC 31 (39006)

Convictions quashed; new trial, re Vetrovec warning.

Criminal Law: Sexual Assault
R. v. Langan, 2019 BCCA 467; 2020 SCC 33 (39019)

Abella J.: “A majority is of the view to allow the appeal for the reasons of Chief Justice Bauman. Justices Côté and Brown would dismiss substantially for the reasons of Justice Stromberg-Stein.” Appeal allowed (3:2) re text messages, prior consistent statements, R. v. W.(D.). Pub. ban.

Criminal Law: Sexual Exploitation
R. v. Slatter, 2019 ONCA 807; 2020 SCC 36 (38870)

Moldaver J.: “We are all of the view that the appeal must be allowed, for the reasons of Justice Pepall, with which we agree. We would simply underline that when assessing the credibility and reliability of testimony given by an individual who has an intellectual or developmental disability, courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence. Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice. Accordingly, we would allow the appeal and restore the conviction.”

Criminal Law: Sexual Assault
R. v. Kishayinew, 2019 SKCA 127; 2020 SCC 34 (38962)

Moldaver J.: “A majority of the Court is of the view that, when read in context, the trial judge’s reasons make it clear that he was satisfied, beyond a reasonable doubt, that the complainant did not subjectively consent to any sexual activity with Mr. Kishayinew. On this point, we are in agreement with the reasons of Justice Tholl in dissent, at paras. 52-78 of his judgment. The trial judge correctly recognized that, as a result of the complainant’s memory blackouts, the only evidence available on the issue of subjective consent was the circumstantial evidence ─ that the complainant was crying and disoriented, that she did not want to go with Mr. Kishayinew, that she did not consent to his attempts to kiss or touch her, that she attempted to leave the house several times, and that, upon recovering from her blackout, she felt frightened, “weird down below”, and wanted to escape. In our view, as the trial judge’s reasons at paras. 94, 96 and 97 (2017 SKQB 177 (CanLII)) make apparent, this evidence reasonably permits only one inference: that the complainant did not consent to any touching from Mr. Kishayinew. This finding is sufficient to support the conviction for sexual assault. Justice Côté, dissenting, would have dismissed the appeal, substantially for the reasons of the majority of the Saskatchewan Court of Appeal. Accordingly, in the result, we would allow the appeal, restore the conviction for sexual assault, and remand the sentence appeal back to the Court of Appeal.”

Appeals

Charter/Corporate: s.12; “cruel and unusual”
Québec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 (38613)

Does s. 12 of the Charter protect corporations from cruel and unusual treatment or punishment. It does not, because corporations lie beyond s. 12 ’s protective scope. Simply put, the text “cruel and unusual” denotes protection that “only human beings can enjoy”: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 1004. The protective scope of s. 12 is thus limited to human beings.

Charter: s.15
Fraser v. Canada (Attorney General), 2020 SCC 28 (38505)

Full-time RCMP members who job‑share sacrifice pension benefits because of a temporary reduction in working hours, which has a disproportionate impact on women and perpetuates historical disadvantage. Is a violation of their right to equality under s. 15(1). To prove discrimination under s. 15(1), claimants must show a law or policy creates a distinction based on a protected ground, and that the law perpetuates, reinforces or exacerbates disadvantage, but does not require revision in adverse effects cases. A clear account is needed re how to identify adverse effects discrimination, because the impugned law will not, on its face, include any distinctions based on prohibited grounds. Any such distinctions must be discerned by examining the impact (emphasis in original) of the law. Two types of evidence is helpful to prove a law has a disproportionate impact on members of a protected group: evidence about the situation of the claimant group; evidence about the results of the law. The methodology for facilitating the buy‑back of pension credit is for government to develop, but any remedial measures it takes should be in accordance with this decision. And also have retroactive effect to give the claimants in this case and others in their position a meaningful remedy.

Class Actions in Québec: Financial Institutions
Desjardins Financial Services Firm Inc. v. Asselin, 2020 SCC 30 (37898)

The S.C.C. agreed with the Court of Appeal’s decision to authorize the class action proposed by the respondent, both against Desjardins Financial Services Firm Inc. and against Desjardins Global Asset Management Inc. The Superior Court judge erred in dismissing the amended and particularized motion for authorization and to obtain the status of representative, against the appellants. In performing her screening function, the motion judge trenched upon the work of the trial judge, and as the Court of Appeal correctly pointed out, this is an error that, under the established standards, provides a basis for appellate review of the judge’s decision. In fairness to the motion judge, the parties did not make life easy for her. The respondent’s motion ─ amended thoroughly along the way, including with respect to the initial position put forward ─ is not the most elegant of its kind. The judge’s task was also complicated by the procedural initiatives of all kinds undertaken by the appellants ─ examinations, production of documents, motions for particulars. The increasing complexity of the proceedings and the excessive volume of evidence may have prompted the authorization judge to take on, perhaps reluctantly, but no less inappropriately, the role of ultimate arbiter of the facts rather than limiting herself to analyzing the proposed legal syllogism.

Contracts/Condos: “Air Space Parcels”; Parking; Pre & Post‑Incorporation Contracts
Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29 (38741)

An otherwise valid and effective post-incorporation contract is not unenforceable simply because its terms affect interests in land. An “outward manifestation of assent by each party such as to induce a reasonable expectation in the other” is required in order to find that a binding post-incorporation contract exists, quoting Waddams; and the test is objective. The pre-incorporation contract is merely one aspect of the objective circumstances that can be used to interpret the parties’ conduct and from which the terms of a post-incorporation contract may be inferred. The ultimate question, whether the S.C.C. should recognize the existence of a narrow principle of benefit and burden, is left for another day. The conclusion that Strata Co. is bound by a post-incorporation contract with CSPC on the terms set out in s. 7.5 of the ASP Agreement is sufficient to dismiss the appeal. It is therefore unnecessary to consider the merits of alternative means of binding a subsequent owner.

Criminal Law/Charter: s.15; Sex Offender Registries
Ontario (Attorney General) v. G, 2020 SCC 38 (38585) appeal from 2019 ONCA 264

“Christopher’s Law” draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter, and cannot be justified in a free and democratic society. An absolute discharge is granted, and suspending the declaration of invalidity for 12 months.

Real Property in Québec: Easements/Servitudes; Electrical Transmission Lines
Hydro-Québec v. Matta, 2020 SCC 37 (38254)

The disagreement between the courts below with regard to the characterization of the servitudes at issue essentially rests on the characterization of the post‑expropriation agreements. The characterization of the agreements at issue is so intimately linked to the assessment of the facts that this is more as a question of mixed fact and law than a pure question of law. The Court of Appeal erred in interfering with the trial judge’s conclusions in the absence of a palpable and overriding error; there is no such error in the conclusion, which is perfectly justifiable in light of the evidence. The trial judge was correct in concluding the agreements are servitude agreements. Servitude agreements are subject to the rules applicable to the interpretation of contracts. If their words are clear, effect must be given to the clearly expressed intention of the parties; but if the agreements, read as a whole, are vague, ambiguous or incomplete, the common intention of the parties must be sought.

In substance, the agreements grant the appellant:

• servitudes allowing it to place, replace, operate and maintain up to three electrical transmission lines;
• servitudes for tree cutting and pruning;
• servitudes of right of way; and
• servitudes of non‑construction.

They do not mention any restrictions regarding the origin or destination of the electricity. The servitudes concern the lines crossing the servient land, not the substations located at either end of those lines. There is nothing in the words of the agreements that would explicitly or implicitly prevent the appellant from redirecting one of its lines toward another substation. The right to operate electrical transmission lines clearly includes the right to make modifications such as the one that was made here.

Torts/Class Actions/Franchises: Duty of Care; Pure Economic Loss
1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35 (38187)

The current categories of pure economic loss incurred between private parties are:

(1) negligent misrepresentation or performance of a service;
(2) negligent supply of shoddy goods or structures; and
(3) relational economic loss.

A duty of care cannot be established by merely showing that a claim fits within a category of pure economic loss. It is necessary to determine whether the alleged loss represents an injury to a right that can be the subject of recovery in tort law and possesses the requisite factors to support a finding of proximity under that category. The manner in which pure economic loss is said to have occurred or how that loss has been catalogued within the categories of pure economic loss does not signify that the defendant whose negligence caused that loss owes the plaintiff a duty of care. The relevant “category” for the purpose of supporting a duty of care is that of proximity of relationship. Meaning, what is necessary to support a duty of care is that the relationship between a plaintiff and a defendant bear the requisite closeness and directness, such that it falls within a previously established category of proximity or is analogous to one. The proper inquiry is therefore not into whether the loss suffered by a particular plaintiff could have been foreseen, but whether the type of injury to a class of persons, within which the plaintiff falls, could have been foreseen. In other words, it is the intended effect of the defendant’s undertaking upon the plaintiff’s autonomy that brings the defendant into a relationship of proximity, and therefore of duty, with the plaintiff. Where that effect works to the plaintiff’s detriment, it is a wrong to the plaintiff. Having deliberately solicited the plaintiff’s reliance as a reasonable response, the defendant cannot in justice disclaim responsibility for any economic loss that the plaintiff can show was caused by such reliance. It is not enough to show that a defendant made an undertaking. An undertaking of responsibility, where it induces foreseeable and reasonable reliance, is formative of a relationship of proximity between two parties. We must therefore consider whether this undertaking, if made, was made to Mr. Sub franchisees, and for what purpose. Reliance on the part of the franchisees which falls outside the scope and purpose of that representation is neither foreseeable nor reasonable and therefore does not connote a proximate relationship. The undertaking, properly construed, was made to consumers, with the purpose of assuring them that their interests were being kept in mind, and not to commercial intermediaries such as Mr. Sub or Mr. Sub franchisees. Their business interests lie outside the scope and purpose of the undertaking. In the case of defective goods and structures, commercial parties between or among whom the product is transferred before it reaches the consumer will have had a chance to allocate risk and order their relationship via contract. And in assessing the proximity of relations among those parties ─ that is, in evaluating “expectations, representations, reliance, and the property or other interests involved” ─ courts must be careful not to disrupt the allocations of risk reflected, even if only implicitly, in relevant contractual arrangements.

Leaves to Appeal Granted

Intellectual Property/Universities: Copyright
York University v. Copyright Licensing Agency, 2020 FCA 77 (39222)

“Fair dealing” re copyright.

Bankruptcy & Insolvency: Monitors
Ville de Montréal v. Le Groupe SMI inc., et al., 2020 QCCA 438 (39186)

Who pays the CCAA monitors.

Tax: Foreign Accrual Property Income
R. v. Loblaw Financial Holdings Inc., 2020 FCA 79 (39220)

Is this “Foreign Accrual Property Income” here.

Civil Procedure: Foreign Judgments
H.M.B. Holdings Limited v. Attorney General of Antigua and Barbuda, 2020 ONCA 12 (39130)

Should this foreign judgment be recognized in Canada.

Criminal Law: Trafficking; Sentencing
Felix v. R., 2019 ABCA 458 (39227)

Concurrent v. consecutive sentences for trafficking.