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, Oral Judgments and Leaves to Appeal granted from June 18 – July 16, 2021 inclusive.


Aboriginal Law: Flooding; Equitable Compensation
Southwind v. Canada, 2021 SCC 28 (38795)

The trial judge here valued flooded land based on its value in 1929, with 10 percent valued as waterfront land and 90 percent valued as bushland. He determined that because Canada was authorized to expropriate the land for a public work under the Indian Act provisions in force at the time, the land should be valued based upon an expropriation in 1929. Thus, the trial judge concluded that the First Nation was not entitled to be compensated for any value that the land provided to the hydroelectricity project itself. This approach to equitable compensation for breach of fiduciary duty is flawed. By looking solely at the amount the LSFN would have received if Canada had complied with the general law relating to expropriation, the trial judge gave no effect to the unique obligations imposed by the fiduciary duty. The trial judge improperly focused on what Canada would likely have done, as opposed to what Canada ought to have done as a fiduciary. The fiduciary duty imposes heavy obligations on Canada. The duty does not melt away when Canada has competing priorities. Canada was under an obligation to preserve and protect the LSFN’s interest in the Reserve. This included an obligation to negotiate compensation for the LSFN on the basis of the value of the land to the hydroelectricity project. Compensation must be assessed on that basis. The case is remitted back to the Federal Court for reassessment of the equitable compensation to include the value of the flooded land to the hydroelectricity project.

Criminal Law: Jury Selection
R. v. Chouhan, 2021 SCC 26 (39062)

Parliament, in abolishing peremptory challenges, sought to give greater effect to provincial initiatives to increase jury representativeness, which in turn should enhance the diversity of jury composition. Provinces are free and even encouraged to act to increase the diversity of those who appear for jury duty, including by pursuing the measures identified in the Iacobucci Report (see also Kokopenace, at paras. 126 27). In all cases, however, the provinces’ constitutional obligation requires them to make “reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross section of society, and (2) deliver jury notices to those who have been randomly selected” (Kokopenace, at para. 61).

Courts: Jurisdiction
Reference re Code of Civil Procedure (Qué.), art. 35, 2021 SCC 27 (38837)

Factors to be looked at: scope of the jurisdiction granted by art. 35 para. 1 C.C.P., exclusivity of the grant, high monetary limit, available appeal mechanisms, absence of a societal objective capable of justifying the legislation. The weighing of the relevant factors means the grant to the Court of Québec of exclusive jurisdiction over civil disputes concerning contractual and extracontractual obligations up to a value of less than $85,000 unduly compromises the position of s. 96 courts and is unconstitutional. The scope of the jurisdiction granted by art. 35 para. 1 C.C.P., combined with the various features of the institutional context in which that jurisdiction is exercised, transforms the Court of Québec into a prohibited parallel court and impermissibly infringes on the core jurisdiction of the Superior Court. This necessarily undermines the crucial role the Québec Superior Court plays in the Canadian judicial system.

Leaves to Appeal Granted

Criminal Law: Sentencing Above Crown’s Proposal
N. v. R., 2021 BCCA 13 (39599)

Sentencing above the Crown’s proposed sentence.

Family Law: Child Protection; Custody
B.J.T., et al. v. J.D, 2020 PECA 14 (39558)

Child protection and custody (publication ban).

Family Law: Custody; Relocation; Support
Kreke v. Alansari, 2020 SKCA 122 (39567)

Custody, relocation and support issues.

Municipal Law: Expropriation
Annapolis Group Inc. v. Halifax Regional Municipality, 2021 NSCA 3 (39594)

De facto” expropriation.

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