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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 and leaves to appeal granted, so you know what the S.C.C. will soon be dealing with (August 26 – October 14, 2016 inclusive).

Appeals

Aboriginal/Municipal Law: Assessment
Musqueam Indian Band v. Musqueam Indian Band (Board of Review), 2016 SCC 36 (36478)

A use restriction under a lease can be considered in determining the value of land for tax assessment purposes – the plain wording of the relevant provisions, read in light of their purpose and context, grants discretion to consider the use restriction in establishing value.

Constitutional Law/Charter: Judicial Independence; Financial Security
Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39 (36165)

Committee review of remuneration (in this case, Justices of the Peace) is required for any new judicial office, can be done retroactively within a reasonable time after the appointments, and is so even where those appointed to the new judicial office are transferred from a previous judicial office. The committee must review all proposed changes to remuneration, which cannot be “reduced, increased, or frozen” without prior recourse to a committee, and is to review overall remuneration – salary, pensions, and other benefits are part of that. The committee’s recommendations are not binding, and government may depart from the committee’s recommendations provided it gives “rational reasons”. And, there is nothing here that would meet the high threshold of s. 1 jursidiction.

Contracts/Insurance: Interpretation; Exclusion/Exception Clauses; Standard of Review
Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (36452)

All-risk property insurance, variably referred to as “builders’ risk”, “contractors’ risk”, “all risks”, “multi-risk” or “course of construction” insurance covers physical damage on construction sites and is usually issued to the property owner and general contractor, coverage for them as well as for contractors and subcontractors. The exclusion clause here is a standard form one denying coverage for the “cost of making good faulty workmanship” but, as an exception to that exclusion, nonetheless covers “physical damage” that “results” from the faulty workmanship. The appropriate standard of review is correctness. As to the appropriate interpretation of the faulty workmanship exclusion, only the cost of redoing the faulty work is excluded. This interpretation: is dictated by the general rules of contractual interpretation; best represents the parties’ reasonable expectations, as informed by the purpose of builders’ risk policies; aligns with commercial reality; and is consistent with the jurisprudence.

Customs & Excise: Tariff Clarification
Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 (36258)

The decision of the Canadian International Trade Tribunal, that certain imported blockers and catchers were each classifiable as a “glove, mitten or mitt”, is restored and upheld. And reasonableness is the applicable standard of review here ̶ the questions of law at issue are of “a very technical nature” which the CITT will often be better equipped than a reviewing court to answer. While in some respects the CITT’s reasons lack perfect clarity, a reasonableness review does not require perfection.

Leaves to Appeal

Aboriginal Law: Specific Claims Tribunal; Fiduciary & Other Duties
Canada v. Williams Lake Indian Band, 2016 FCA 63 (36983)

Is the province and/or the federal government liable for alleged breaches of pre- and post-Confederation duties.

Professions in Québec: Legal Documents by Non-Lawyers
Québec (Procureure générale) v. E.D., 2016 QCCA 536 (37034)

Can legal documents (here, motions for an administrative tribunal) be prepared by non-lawyers.

Human Rights: Tribunal Jurisdiction; Discrimination
Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146 (37041)

Does a human rights Tribunal have jurisdiction here.

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