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 (October 14 to November 23, 2017 inclusive).


Aboriginal Law: Freedom of Religion
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (36664)

The claim here (approval of a ski resort development) does not engage the right to freedom of conscience and religion under s. 2 (a) of the Charter. Section 2 (a) protects the freedom of individuals and groups to hold and manifest religious beliefs. The claim here does not fall within the scope of s. 2 (a) because neither the freedom to hold beliefs nor freedom to manifest those beliefs is infringed by approval herein.

Banks: Cheque Fraud
Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51 (36918)

All payees of a fraudulent cheque scheme by an employee of Teva were either (1) known customers of Teva’s; or (2) companies whose names could reasonably have been mistaken for its actual customers, such that all payees existed. As a result, the defence in s. 20(5) the Bills of Exchange Act did not apply and the banks are liable for conversion.

Criminal Law/Immigration: “serious criminality”
Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 (36784)

The phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence an accused person could have received at the time of the commission of the offence. The maximum sentence that Mr. Tran here could have received at that time was seven years. Thus he was not convicted of an offence “punishable by a maximum term of imprisonment of at least 10 years”.

Criminal Law: Joint Trials
R. v. Sciascia, 2017 SCC 57 (37155)

Joint trials are both permissible and desirable where the provincial charges and the summary conviction criminal charges share a sufficient factual nexus and it is in the interests of justice to try them together. At common law, courts have broad discretion to conduct joint trials in the interests of justice. Policy considerations are in favour of this pragmatic approach. And in the absence of an express statutory prohibition, or clear legislative intent to the contrary, there is no justification to oust this discretion.

Labour Law: Management Rights; s. 7 Liberty Interests
Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55 (37014)

An adjudicator’s decision that a DoJ directive contravened the collective agreement is reasonable, and the order that the employer stop applying the directive reinstated. The directive however did not engage the lawyers’ liberty interests under s. 7, and so not engage their constitutional rights.

Professions: Non-lawyers
Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56 (37034)

It was reasonable for the Administrative Tribunal of Québec to conclude that, under the Act respecting administrative justice, a person who is not an advocate may, in certain proceedings, do everything needed for the representation of the Minister of Employment before that tribunal’s social affairs division, and this power is not in conflict with the Act respecting the Barreau du Québec.

Oral Judgments

Criminal Law: Perjury
Robinson v. R., 2017 SCC 522017 BCCA 6 (37411)

Justice Abella: “A majority would dismiss the appeal substantially for the reasons of the majority in the Court of Appeal. Justice Côté, dissenting, would order a new trial for substantially the reasons of Willcock J.A.”

Criminal Law: Perjury
Millington v. R., 2017 SCC 53; 2016 BCCA 293 (37235)

Justice Abella: “A majority would dismiss the appeal substantially for the reasons of the Court of Appeal. Justice Côté, dissenting, would have ordered a new trial on the basis that the finding of collusion was unreasonable and tainted the other findings of the trial judge.”

Criminal Law: Sexual Assault
R. v. Bourgeois, 2017 SCC 49;2017 ABCA 32 (37461)

Justice Moldaver: “This appeal comes to us as of right from the Court of Appeal of Alberta. A majority of the court concluded that there was no basis for overturning the appellant’s conviction for sexual assault. Justice Berger, dissenting, held that the verdict was unreasonable pursuant to s. 686(1) (a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 . We are not persuaded that the trial judge reached his decision by an illogical or irrational reasoning process; nor are we persuaded that his verdict was unreasonable within the meaning of s. 686(1) (a)(i). As a result, we would dismiss the appeal.”

Leaves to Appeal

Bankruptcy & Receivership/Oil & Gas: Orphan Wells
Orphan Well Association v. Grant Thornton Limited, 2017 ABCA 124 (37627)

How does the regulation and remediation of non-producing wells work in the context of bankruptcy.

Civil Procedure in Québec: Recognition of Foreign Judgments
Barer v. Knight Brothers LLC, 2017 QCCA 597 (37594)

How are foreign judgments recognized and enforced in Québec.

Civil Procedure: Official Languages
Mazraani v. Industrielle Alliance, Assurance et Services Financiers Inc., 2017 FCA 80 (37642)

Were witnesses’ language rights infringed during a Tax Court case?

Civil Procedure: Third Party Discovery Orders
Rogers Communications Inc. v. Voltage Pictures, LLC, 2017 FCA 97 (37679)

What are the procedures, and how is cost dealt with, for third party discovery orders.

Criminal Law: Victim Surcharges
Larocque v. R., 2017 ONCA 552 (37783)

Are Criminal Code victim charges constitutional.

Criminal Law: Victim Surcharges
Eckstein v. R., 2017 ONCA 552 (37782)

Similar summary to that immediately above.

Criminal Law: Victim Surcharges
Tinker v. R., 2017 ONCA 552 (37774)

Similar summary to that immediately above.

Labour Law: Capacity of Union & Directors To Be Sued
International Brotherhood of Electrical Workers v. Lawrence, 2017 ONCA 321 (37617)

When does a trade union, and directors as individuals, have the capacity to be sued.

Tax: Liability For Tax Planning
Brunette v. Legault Joly Thiffaut, 2017 QCCA 391 (37566)

When is there professional liability for tax advice.

Trusts: How Are Trust Assets Characterized
S.A. v. Metro Vancouver Housing Corporation, 2017 BCCA 2 (37551)

How are trust assets to be characterized from a property perspective.

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