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 (July 11 – August 14, 2020 inclusive).


Class Actions: Certification; Gaming
Atlantic Lottery Corp. Inc. v. Babstock2020 SCC 19 (38521)

“Waiver of tort” is confusing, and should be abandoned. Disgorgement for breach of contract is exceptional relief; it is not available at the plaintiff’s election to obviate matters of proof. There is nothing exceptional about the breach of contract the plaintiffs allege. The claim is simply that they paid to play a gambling game and did not get exactly what they paid for. The plaintiffs cannot be said to have a legitimate interest in the defendant’s profit‑making activity. It follows that the claim has no reasonable chance of achieving disgorgement damages for breach of contract. As the S.C.C. explained in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, not every contract imposes actionable good faith obligations on contracting parties. While good faith is an organizing principle of Canadian contract law, it manifests itself in specific circumstances. In particular, its application is generally confined to existing categories of contracts and obligations, and the alleged contract here does not fit within any of the established good faith categories. Nor did the plaintiffs advance any argument for expanding those recognized categories. And whether the plaintiffs’ claim should survive as a hollow cause of action that does not support any of the remedies they seek, it should not.

Constitutional Law: Judicial Independence/Remuneration; Disclosure of Cabinet Documents
British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20 (38381)

Public interest immunity requires a careful balancing between the competing public interests in confidentiality and disclosure. Here, the Provincial Court Judges’ Association did not meet the threshold necessary to compel production of a confidential Cabinet document for judicial inspection. While this is not a high bar, it is not met simply by showing that the government considered the Cabinet document before making its response. To summarize, the object of Bodner review is the government’s response to the commission’s recommendations, which will generally consist of the government’s decision to depart from the commission’s recommendations and the reasons given for that decision. The submissions to the commission, the commission’s recommendations, and the government’s response accordingly form the core of the record on Bodner review. Certain forms of additional evidence are admissible if they are relevant to determining whether any part of the Bodner test has been met, including whether the government’s response is grounded in an improper or colourable purpose. A party must first establish some basis to believe the document may contain evidence which tends to show the government failed to meet a requirement described in Bodner. Only then will the reviewing court examine the document in private to determine whether it, in fact, provides some evidence tending to show the government failed to meet its constitutional obligations. If the document does, the court must then determine whether any other rule of evidence, such as public interest immunity, bars production.

Constitutional Law: Judicial Independence/Remuneration; Disclosure of Cabinet Documents
Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21 (38459)

Only components of the Attorney General’s report — the discussion of government-wide implications and the communications plan — should be produced as part of the evidence on Bodner review. That said, these excerpts are merely some evidence for the Nova Scotia court to consider in deciding the merits of the judicial review of the government’s response. The public interest in disclosure outweighs the public interest in remaining confidential.

Criminal Law: Delay
R. v. Thanabalasingham,2020 SCC 18 (37984)

The delay here far exceeds the 30-month presumptive ceiling established in Jordan. With respect to the transitional exceptional circumstance, we cannot say that the trial judge erred in concluding that the Crown failed to establish that the exception applied. As said in Cody, the Crown will “rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework” if the case would have warranted a stay under R. v. Morin, [1992] 1 S.C.R. 771 (para. 74). This case would certainly have qualified for a stay under the previous framework. The trial judge read Williamson in the manner cautioned against in Cody. However, given the circumstances here, this error was inconsequential. Even if the trial judge had not made this error, he would have arrived at the same result. The S.C.C. hence does not interfere with his determination that a stay of proceedings was warranted.

Leaves to Appeal Granted

Civil Procedure: Limitation Periods; Discoverability
Grant Thornton v. Province of New Brunswick2020 NBCA 18 (39182)

When does the limitation period here begin to run.

Criminal Law: Self-Defence
R. v. Khill, 2020 ONCA 151 (39112)

Is there self-defence here.

Criminal Law: Sexual Offences
R. v. J.J., 2020 BCSC 349 (39133)

Is the seven-day notice requirement in s. 278.93(4) constitutional.

Family Law in Québec: Confidential Mediation Settlements
Bisaillon v. Bouvier, 2020 QCCA 115 (39155)

Applicability of confidential mediation settlements.

Human Rights in Québec: Discrimination
Ward v. Commission des droits de la personne et des droits de la jeunesse (Gabriel et autres), 2019 QCCA 2042 (39041)

Freedom of expression v. discrimination.

Insurance: Releases
City of Corner Brook v. Bailey2020 NLCA 3 (39122)

Validity of releases in the insurance context.

Tax: Treaties; GAAR
Canada v. Alta Energy Luxembourg S.A.R.L., 2020 FCA 43 (39113)

Interpretation of tax treaty re capital gains and GAAR.

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