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 March 15 – May 15, 2024 inclusive.

Appeals

Aboriginal Law: Treaty Rights; Limitation Periods; Constitutional Declarations
Shot Both Sides v. Canada, 2022 FCA 20; 2024 SCC 12 (40153)

This appeal concerned whether the Blood Tribe’s TLE (treaty land entitlement) claim is barred by the six-year limitation period in Alberta’s Limitation of Actions Act. This inquiry turned on a narrow question: whether the breach of the TLE was actionable in Canadian courts prior to the coming into force of s. 35(1) of the Constitution Act, 1982. The Blood Tribe argued their claim cannot be statute-barred under Alberta’s Limitation of Actions Act and the Federal Courts Act prior to there being a recognized action in law, which they allege was not the case for breach of treaty claims until the coming into force of s. 35(1). The constitutional applicability and operability of Alberta’s Limitation of Actions Act, as incorporated into federal law by s. 39(1) of the Federal Courts Act, is not at issue. The S.C.C. allowed the appeal in part. The Federal Court of Appeal correctly held that the coming into force of s. 35(1) of the Constitution Act, 1982 did not alter the commencement of the limitation period applicable to the Blood Tribe’s TLE claim. Treaty rights flow from the treaty, not the Constitution. It is well established in Canadian caselaw that treaties are enforceable upon execution and give rise to actionable duties under the common law. As the Federal Court of Appeal concluded, the Blood Tribe’s claim is thus statute-barred. However, declaratory relief is warranted given the longevity and magnitude of the Crown’s dishonourable conduct towards the Blood Tribe. The Blood Tribe is entitled to the following declaration: under the treaty land entitlement provisions of Treaty No. 7, the Tribe was entitled to a reserve equal to 710 square miles in area; the current reserve is 162.5 square miles smaller in area than what was promised in Treaty No. 7; and Canada, having provided the Tribe with a reserve of 547.5 square miles in area, dishonourably breached the treaty land entitlement provisions of Treaty No. 7. The appellants get their costs throughout.

Banks: Letters of Credit; Fraud
Eurobank Ergasias S.A. v. Bombardier inc., 2022 QCCA 802; 2024 SCC 11 (40350)

At the heart of this dispute is a Letter of Counter-Guarantee governed by Québec law. This letter of credit was issued by the National Bank of Canada at the behest of its customer, Bombardier inc., in favour of a Greek bank, Eurobank Ergasias S.A. By arranging the issuance of this letter of credit, Bombardier sought to facilitate a complex transaction for the supply of aircraft to the Hellenic Ministry of Defense, or “HMOD”. Eurobank issued a distinct Letter of Guarantee in favour of HMOD, again at Bombardier’s request, that is subject to Greek law. The plan for the interlocking letters of credit was straightforward: should HMOD call on Eurobank to honour the Greek Letter of Guarantee, Eurobank would be entitled to call on the National Bank to reimburse it under the Québec Letter of Counter-Guarantee. When HMOD demanded payment under the Greek letter of credit, Bombardier sought an injunction before the Québec Superior Court to stop the National Bank from honouring a subsequent demand for payment by Eurobank as beneficiary under the Québec Letter of Counter-Guarantee. Bombardier has alleged that HMOD — a third party to the Québec letter — committed fraud under that instrument and that, by reason of Eurobank’s knowledge and participation in that fraud, the National Bank should be prevented from honouring Eurobank’s demand for payment based on the fraud exception. In a word, Eurobank was not “innocent” because it was aware of the third-party fraud and participated in it. Like the majority judges in the Court of Appeal, the S.C.C. saw no reviewable errors in these findings nor in the trial judge’s ultimate conclusion: HMOD’s fraud is attributable to Eurobank as its own and Eurobank cannot, as beneficiary under the Québec letter, demand payment. The National Bank is therefore enjoined from honouring Eurobank’s demand for payment under the fraud exception recognized in Angelica-Whitewear. In the circumstances, the court found it unnecessary to decide whether the letters of credit are null.

Charter/Aboriginal Law: Residency Requirements
Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5; 2024 SCC 10 (39856)

In 1993, the Vuntut Gwitchin First Nation (“VGFN”) a self governing Indigenous community in the Yukon, concluded with the federal and Yukon governments a land claim agreement and a self government agreement, both of which were approved and given effect by federal and territorial legislation. As contemplated by the self government agreement, the VGFN adopted its own constitution, which provided for certain rights and freedoms for its citizens, rules for the organization of its government, and electoral rules and standards. Among other things, the VGFN Constitution included a residency requirement stating that all Chief and Councillors must reside on the VGFN’s settlement land, in the village of Old Crow in the traditional territory of the Vuntut Gwitchin, or relocate there within 14 days of their election. The appellant, a Canadian citizen and a citizen of the VGFN, lived in Whitehorse about 800 kilometers south of Old Crow; she wished to stand for election as a VGFN Councillor but said she cannot move to Old Crow if elected, largely because her son requires access to medical care unavailable there. She challenged the residency requirement, asserting that it unjustifiably infringes her right to equality under s. 15(1) of the Charter. The S.C.C. held: the Charter applies to the VGFN and to its citizens, principally, but not only, because the VGFN is a government by nature; the circumstances here show that for Indigenous communities, s. 32(1) and s. 25 are intimately connected; it is true that the application of individual Charter rights to a self governing Indigenous community may be thought to inhibit the pursuit of rules designed to protect minority Indigenous rights and interests; but s. 25, by providing protection for collective Indigenous interests as a social and constitutional good for all Canadians, acts as a counterweight; properly understood, s. 25 allows for the assertion of individual Charter rights except where they conflict with Aboriginal rights, treaty rights, or “other rights or freedoms” that are shown to protect Indigenous difference. Tied to ancient practices of government that connect leadership of the VGFN community to the settlement land, the residency requirement protects Indigenous difference and, pursuant to s. 25, cannot be abrogated or derogated from by Ms. Dickson’s individual Charter right with which it is in irreconcilable conflict.

Criminal Law: Language Rights
R. v. Tayo Tompouba, 2022 BCCA 177; 2024 SCC 16 (40332)

This appeal is an opportunity to establish the analytical framework that applies where an accused appeals their conviction and raises, for the first time, a breach of s. 530(3) when no decision on the accused’s language rights was made at first instance. A breach of s. 530(3) is an error of law warranting appellate intervention under s. 686(1)(a). According to the jurisprudence, an error of law under s. 686(1)(a)(ii) is any error in the application of a legal rule, through a decision or an improper omission, as long as the error is related to the proceedings leading to the conviction and was made by a judge. A breach of s. 530(3) involves a failure by a judge to comply with a legal rule, and this omission is related to the proceedings leading to the conviction. A breach, once established, has the effect of tainting the trial court’s judgment. It gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was violated, which opens the door to appellate intervention. The Crown can then rebut this presumption for the purposes of the analysis under the curative proviso in s. 686(1)(b)(iv). A first appearance judge who fails to actively ensure that the accused has been informed of their fundamental right and of how it is to be exercised, or who fails to ensure, where the circumstances so require, that the accused is informed thereof, contravenes the judge’s informational duty. Such a failure by the judge constitutes a breach of s. 530(3). and violates the accused’s right.

Insurance/Administrative Law: SABS; Standard of Review
Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446; 2024 SCC 8 (40348)

Ms. Yatar contested the denial of her insurance benefits, following an accident in 2010. After having her application dismissed by the Ont. Licence Appeal Tribunal (“LAT”) in 2019, due to the matter being time-barred, Ms. Yatar requested reconsideration of this decision, which was dismissed. Then, she simultaneously appealed the decision before the Divisional Court of Ontario, and applied for judicial review. Section 11(6) of the Licence Appeal Tribunal Act (“LAT Act”) provides that an appeal from a decision of the LAT relating to a matter under the Insurance Act may be made on a question of law only. As per Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. In this case, despite the statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. It is then a matter of discretion whether to undertake judicial review, having regard to the framework for analysis set out in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713. The Divisional Court erred when it concluded that only in “exceptional circumstances” would judicial review be available where there is a limited right of appeal; this ignored Strickland. The Ont. C.A. also erred when it held that only in “rare cases” judicial review would be exercised. Properly applying Strickland, the Divisional Court should have exercised its discretion to undertake judicial review for issues not dealt with under the statutory right of appeal. As to the LAT adjudicator’s reconsideration decision, it is unreasonable, as he failed to consider the effects of the reinstatement of benefits on the limitation period, and he did not have regard to jurisprudence relevant to the matter. Once it is determined that it is appropriate to undertake judicial review in this case, the issue arises whether the LAT adjudicator’s reconsideration decision was reasonable. Per Vavilov, there is “a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions” (para. 16). That presumption is not rebutted here. While there is discretion to hear the application on the merits and deny relief, this discretion does not extend to decline to consider the application for judicial review.

Labour Law: Freedom of Association; Standard of Review
Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2022 QCCA 180; 2024 SCC 13 (40123)

These appeals addressed whether the statutory exclusion of managers from the labour relations regime of the Québec Labour Code infringed the guarantee of freedom of association under s. 2 of the Charter and s. 3 of the Québec Charter of human rights and freedoms. The impugned statutory provision, s. 1(l)(1) of the Labour Code, defines an “employee” broadly, as “a person who works for an employer and for remuneration”, but expressly excludes a person who is employed as a “manager, superintendent, foreman or representative of the employer in his relations with his employees”. The provision does not infringe the freedom of association guaranteed by s. 2(d) of the Charter or s. 3 of the Québec Charter. To sum up, the S.C.C.’s s. 2(d) jurisprudence consistently applied a two-part framework that examines whether activities fall within the scope of s. 2(d) and whether government action has substantially interfered with those activities, in purpose or effect; its s. 2(d) jurisprudence since Dunmore should be viewed as a consistent body of case law. The frameworks under ss. 2(b) and 2(d) have evolved differently. This helps explain why the distinction between positive freedoms and negative rights is not relevant in determining the applicable framework for s. 2(d) claims, even though it has been recently affirmed in the s. 2(b) context. Applying the two-part substantial interference test that applies to all s. 2(d) claims, the Appellant has not shown that the legislative exclusion of first-level managers from Québec’s general collective labour relations regime infringes its members’ freedom of association.

Military Law: Judges
R. v. Edwards, 2024 SCC 15 (39820)(39822)(40046)(40065)(40103)

The accused challenged the statutory requirement that the military judges presiding over their courts martial be officers, alleging that it violates their right to a hearing by an independent and impartial tribunal under s. 11(d) of the Charter. The Court Martial Appeal Court held that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that military judges meet the minimum constitutional norms of impartiality and independence, and therefore that the accused’s s. 11(d) rights were not infringed. To protect the constitutional imperative of judicial independence, military judges are not ordinary military officers. They are properly insulated, by law, from the chain of command in their work as judges so that the persons who come before them charged with service offences benefit from constitutionally guaranteed judicial independence. It is true that, like all judges in Canada, military judges are subject to the criminal law and, as military officers, they are subject to military law. Military judges, as officers, are members of the executive and themselves subject to the CSD. But the law protects them from interference from their superiors in the chain of command in their judicial work. While they continue to hold rank and remain part of the military hierarchy, “they are first and foremost judges” (quoting respondent’s condensed book, tab 1). The hallmarks of military judges’ independence are plainly present notwithstanding their status as officers: the military justice system guarantees their security of tenure, financial security and administrative independence. In sum, s. 11(d) of the Charter does not dictate a particular model of military justice nor does it require that only civilian judges preside over trials for service offences such as the offences relevant to these appeals. The Constitution allows Parliament a measure of choice in the design of justice before courts martial and does not require that military justice be exactly identical to its civilian counterpart. The requirement that military judges be officers pursuant to ss. 165.21 and 165.24(2) of the NDA does not fall afoul of s. 11(d). The appeals are dismissed.

Municipal Law: Constructive Expropriation
St. John’s (City) v. Lynch, 2022 NLCA 29; 2024 SCC 17 (40302)

The starting point for assessing compensation for expropriation is determining the property’s market value. It is well established that land use restrictions impact market value and they are normally taken into account when fixing compensation. The jurisprudence reveals an exception: changes in value resulting from the expropriation scheme itself are to be ignored in the compensation assessment. This principle has been incorporated into many jurisdictions’ expropriation statutes, including s. 27(1)(a) of Newfoundland and Labrador’s Expropriation Act, which is at the centre of this case. In this case, the City of St. John’s constructively expropriated the respondents’ property when it refused to permit any development on it. The City deprived the respondents of all reasonable uses of the property and was found to have acquired a beneficial interest in the form of the right to a continuous flow of uncontaminated groundwater downstream to the City’s water facilities. At the time of the expropriation, a zoning regulation limited the property to discretionary agriculture, forestry, and public utility uses — a measure that no doubt diminished the market value of the property compared to the respondents’ desired residential development use and, therefore, the compensation owed for the expropriation. The application judge concluded that the zoning regulation was an “independent enactment” and not part of the expropriation scheme; this meant that it could operate to influence the market value of the expropriated property and was not to be ignored for the purpose of fixing compensation. The Court of Appeal disagreed, concluding that compensation should be determined without reference to the zoning regulation; however, the S.C.C. saw no basis to interfere with the application judge’s conclusion, which was entitled to deference. In the constructive expropriation context, it is not until all reasonable uses of the property have been removed that a de facto taking occurs (Annapolis, at para. 19). In assessing compensation once constructive expropriation is found to have occurred, distinguishing enactments on the basis of both their purposes and effects ensures the property owner receives “fair compensation but not more than fair compensation” (Waters, at para. 61). And, bad faith is not a prerequisite to a finding that an enactment was made with a view to expropriation.

Oral Judgments

Criminal Law: Illogical/Irrational Judicial Reasoning
R. v. Boudreau, 2023 QCCA 358; 2024 SCC 9 (40810) Judgment rendered March 20, 2024

Côté J.: “Having examined the trial judge’s reasons, delivered orally, to determine whether the verdict was vitiated by illogical or irrational reasoning within the meaning of R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, and R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, we would dismiss the appeal. With respect, even though the judge could have expressed herself more clearly at times, the appellant has not shown a reviewable error, because the judge’s inference was based on the whole of the evidence. In particular, there is no reviewable error with regard to the complainant’s testimony about the position of her car at the time of the collision. As a result, and substantially for the reasons of the majority of the Court of Appeal, we unanimously dismiss the appeal.”

Criminal Law: Sexual Offences
R. v. D.F., 2023 ONCA 584; 2024 SCC 14 (40941) Judgment rendered April 22, 2024

The Chief Justice: “For the reasons of Hourigan J.A., dissenting at the Ontario Court of Appeal, a majority of this Court would allow the appeal. Justice Rowe, dissenting, would have dismissed the appeal, relying on paras. 50 and 52 of the reasons of Monahan J.A. relating to the legal error of failure by the trial judge to provide sufficient reasons. Therefore, the appeal is allowed, and the convictions for sexual interference and sexual assault are restored.”

Leaves to Appeal Granted

Charter: Mobility Rights
Canadian Civil Liberties Association, et al. v. R. in Right of Newfoundland and Labrador, et al., 2023 NLCA 22 (40952) Leave granted: April 25, 2024

Mobility rights in Covid context.

Class Actions: Statutory Causes of Action; Material Change in Business
Lundin Mining Corporation, et al. v. Dov Markowich, 2023 ONCA 359 (40853) Leave granted: March 28, 2024

Statutory causes of action and material change in business re class actions.

Constitutional Law: Division Powers
Opsis Airport Services Inc. v. Attorney General of Québec, et al., 2023 QCCA 506 (40786) Leave granted: March 28, 2024

Division of powers re federal aeronautics jurisdiction.

Constitutional Law: Division of Powers
Québec Maritime Services Inc., et al. v. Attorney General of Québec, et al., 2023 QCCA 325 (40791) Leave granted: March 28, 2024

Division of powers issues re private security services at ports.

Criminal Law: Child Sexual Abuse Material; Mandatory Minimums
Attorney General of Québec, et al. v. Senneville, et al., 2023 QCCA (40882) Leave granted: April 25, 2024

Mandatory minimums re child sexual abuse.

Real Property: Adverse Possession
Pawel Kosicki, et al. v. City of Toronto, Formerly the Corporation of the Borough of York, 2023 ONCA 450 (40908) Leave granted: April 11, 2024

Is public land subject to an adverse possession claim.