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 16 – July 13, 2022 inclusive.


Administrative Law: Delay; Standard of Review
Law Society of Saskatchewan v. Abrametz, 2020 SKCA 81; 2022 SCC 29 (39340)

Jordan does not apply to administrative proceedings; it deals with the right to be tried within a reasonable time under s. 11(b). There is no constitutional right outside the criminal context to be “tried” within a reasonable time. Where delay has not affected the fairness of a hearing, the test to determine the delay amounts to an abuse of process has three steps:

  1. delay must be inordinate; determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case;
  2. delay itself must have caused significant prejudice;
  3. if these two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established; this will be so when delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute.

When an abuse of process is found, various remedies are available. In rare cases, where going ahead with the proceeding results in more harm to the public interest than if the proceedings were halted, a permanent stay of proceedings will be justified. When this threshold is not met, other remedies exist, including reduction of sanction and a variation in any award of costs.

Civil Litigation: Public Interest Standing
British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2020 BCCA 241; 2022 SCC 27 (39430)

The Court of Appeal below was wrong to conclude that the principles of legality and access to justice merit “particular weight” in the Downtown Eastside analysis. When standing is challenged at a preliminary stage, the plaintiff should not be required to provide trial evidence; that would be procedurally unfair, as it would permit the defendant to obtain evidence before discovery. Generally, however, a mere undertaking or intention to adduce evidence will not be enough to persuade a court that an evidentiary basis will be forthcoming. Some examples of considerations a court may find relevant when assessing whether a sufficiently concrete and well-developed factual setting will be produced at trial; as was the case in Downtown Eastside, for the purposes of its assessment of the “reasonable and effective means” factor, this list is not exhaustive, but illustrative: ̶ Stage of the proceedings; Pleadings; Nature of the public interest litigant; Undertakings; Actual evidence. Standing is fact- and context-specific. Rather than using the “blunt instrument” of denying standing, it is appropriate to use various litigation management tools — like the possibility of revisiting standing — to ensure that the evidence in question is in fact tendered promptly.

Criminal Law: Sexual Offences; Complainants’ Records
R. v. J.J., 2020 BCSC 349; 2022 SCC 28 (39133) (39516)

Section 278.92(2)(b) establishes that private records are only admissible if “the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”. Similarly, this admissibility threshold is one of the conditions for s. 276 evidence, codified in s. 276(2)(d) (as directed now by s. 278.92(2)(a)) and constitutionally upheld in Darrach. The right to make full answer and defence will only be violated if the accused is prevented from adducing relevant and material evidence, the probative value of which is not outweighed by its prejudicial effect. Section 278.92 does no such thing. With respect to private record applications, the admissibility threshold in s. 278.92(2)(b) and the factors in s. 278.92(3) require the judge to weigh the potential prejudice arising from the proposed evidence, including whether it is myth-based or unjustifiably intrusive on a complainant’s privacy, against the extent of its probative value. It follows that the admissibility threshold in s. 278.92(2) does not breach ss. 7 or 11(d) of the Charter. It is permissible to require screening of evidence because of the potential prejudice that could result from its admission. S. 278.93 is constitutional under ss. 7 and 11(d); the accused is not compelled to testify and, therefore, s. 11(c) is not engaged; there is no absolute rule against defence disclosure. The screening of private records is appropriate because the evidence has a high potential for prejudice; it does not constitute a disguised form of self-incrimination. Ultimately, the right to a fair trial does not guarantee “the most advantageous trial possible from the accused’s perspective” nor does it guarantee “perfect justice”. Rather, the guarantee is fundamentally fair justice, which requires consideration of the privacy interests of others involved in the justice system. The impugned provisions strike a balance that protects fundamental justice for accused persons and complainants.

Tax: Rescission; Retroactive Planning
Canada (Attorney General) v. Collins Family Trust, 2020 BCCA 196; 2022 SCC 26 (39383)

The S.C.C. previously barred access to rectification where sought to achieve retroactive tax planning (Canada (Attorney General) v. Fairmont Hotels, 2016 SCC 56, [2016] 2 S.C.R. 720, at para. 3). Taxpayers should be taxed based on what they actually agreed to do and did, and not on what they could have done or later wished they had done (Fairmont Hotels, at paras. 23‑24, citing Shell Canada Ltd. v. Canada, [1999] 3 S.C.R. 622, at para. 45). At issue in this appeal is whether taxpayers are also barred from obtaining other equitable relief ⸺ here, rescission of a series of transactions ⸺ sought to avoid unanticipated adverse tax consequences arising from the ordinary operation thereon of the Income Tax Act. Equity has no place here, there being nothing unconscionable or otherwise unfair about the operation of a tax statute on transactions freely undertaken. It follows that the prohibition against retroactive tax planning, as stated in Fairmont Hotel and Jean Coutu, should be understood broadly, precluding any equitable remedy by which it might be achieved, including rescission.

Leaves to Appeal Granted

Aboriginal Law: Treaty Rights Interpretation
Canada (Attorney General), et al. v. Restoule, et. al., 2021 ONCA 779 (40024)

Interpretation of treaty rights.

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