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 21 – July 25, 2024 inclusive.

Appeals

Administrative/Labour Law: Standard of Review; Grievances Arbitration
York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2022 ONCA 476; 2024 SCC 22 (40360)

This appeal provides an opportunity for the S.C.C. to determine the applicability of the Charter to Ontario public school boards. The private communications of two teachers, recorded on their personal, password-protected log, were read and captured by screenshots taken by their school principal. These communications then formed the basis for the school board to issue written reprimands. The teachers’ union grieved the discipline, claiming that the search violated the teachers’ right to privacy at work. No Charter breach was alleged. A labour arbitrator, appointed pursuant to the collective agreement, dismissed the grievance. Applying the arbitral “balancing of interests” framework, the arbitrator found there was no breach of the teachers’ reasonable expectation of privacy when balanced against the school board’s interest in managing the workplace, set out in s. 265 of the Education Act. Teachers are protected by s. 8 of the Charter in the workplace, as Ontario public school boards are inherently governmental for the purposes of s. 32 of the Charter. Consequently, the grievance at issue implicated an alleged violation of a Charter right, and s. 8 was a legal constraint bearing on the arbitrator’s analysis. The arbitrator erred by limiting her inquiry to the arbitral framework without regard for the legal framework under s. 8 that, as a matter of law, she was required to respect. The s. 8 framework being contextual, it must be adapted to account for the circumstances in which the Charter right is asserted. The correctness standard applies to the determination of whether the Charter applies to school boards pursuant to s. 32(1) of the Charter as this is a constitutional question that requires a final and determinate answer by the courts (Vavilov, at para. 55), one that will apply generally and is not dependent on the particular circumstances of the case. The correctness standard also applies to review the arbitrator’s decision. The award is quashed, because the arbitrator erred in failing to appreciate that a Charter right arose from the facts before her.

Criminal Law: Crown Immunity
Canada (Attorney General) v. Power, 2022 NBCA 14, 2024 SCC 26 (40241)

The state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights. Rather, as the S.C.C. held in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, the state enjoys a limited immunity in the exercise of its law-making power. Accordingly, damages may be awarded under s. 24(1) for the enactment of legislation that breaches a Charter right. However, the defence of immunity will be available to the state unless it is established that the law was clearly unconstitutional, or that its enactment was in bad faith or an abuse of power. This is a high threshold. But it is not insurmountable.

On February 15, 2024, the Supreme Court of Canada allowed the appeal in R. v. Hodgson with reasons to follow. Below are those reasons.

Criminal Law: Homicide; Self-Defence
R. v. Hodgson, 2022 NUCA 9, 2024 SCC 25 (40498)

Any slippage from the high bar of subjective intent required for murder must be avoided. The accused’s actions are not to be measured against the objective standard of a reasonable person in the same circumstances. The mens rea for murder requires more than an intention to cause bodily harm that the accused knew was dangerous; an accused must have intended to cause bodily harm that they knew was likely to cause death. Thus, the proposition that a chokehold is always an inherently dangerous act runs the risk of inappropriately injecting an objective element into the mens rea analysis for murder. This is because the subjective foresight required for murder is focused solely on what the accused intended, and the analysis cannot consider what the accused ought to have known about the inherent dangerousness of a chokehold. The trial judge’s reasons make clear that she correctly assessed whether Mr. Hodgson’s actions were reasonable in the circumstances under s. 34(1)(c) and that she did not inappropriately focus on what Mr. Hodgson himself thought at the time of the impugned conduct. Accordingly, there are no grounds for concluding that the trial judge erred in law in her analysis or in her application of the law on self-defence.

Tax: Jurisdiction; GST
Iris Technologies Inc. v. Canada (Attorney General), 2022 FCA 101; 2024 SCC 24 (40346)

This appeal, like the appeal in Dow Chemical Canada ULC v. Canada, 2024 SCC 23, which was heard by the S.C.C. on the same day, highlights the shared statutory jurisdiction in tax matters of the Tax Court of Canada and the Federal Court of Canada. The Federal Court of Appeal’s reasoning herein is entirely well founded, including its statement that the Tax Court does not have jurisdiction where the true purpose of an application for judicial review is to “seek practical relief against the exercise of a discretion” by the Minister of National Revenue. As Rennie J.A. observed, in the circumstance of ministerial discretion, the statutory rule ousting Federal Court jurisdiction in judicial review in favour of the Tax Court does not apply. The Federal Court of Appeal herein confirmed its decision in the partner case of Dow in which it recognized the exclusive jurisdiction of the Federal Court over a ministerial discretionary decision provide for by the ITA. In this case, the Federal Court of Appeal recognized the exclusive jurisdiction of the Tax Court in appeals of the assessments where no such ministerial discretion was involved.

Tax: Jurisdiction; Standard of Review; Transfer Pricing
Dow Chemical Canada ULC v. Canada, 2022 FCA 70; 2024 SCC 23 (40276)

This appeal concerns the jurisdiction of the Tax Court of Canada, sitting in appeal of a taxpayer’s assessment, to review the Minister of National Revenue’s decisions under s. 247(10) of the Income Tax Act. Parliament has conferred on the Minister discretionary authority to decide whether “the circumstances are such that it would be appropriate” to make a downward transfer pricing adjustment; a downward adjustment can only be made in accordance with the ITA where the Minister has come to the opinion that it is appropriate. When the taxpayer seeks to challenge the Minister’s discretionary decision, should that challenge be brought by an appeal to the Tax Court, pursuant to that court’s exclusive statutory jurisdiction to decide on the correctness of the taxpayer’s income tax assessment? Or should the taxpayer’s challenge be brought instead before the Federal Court of Canada, pursuant to that court’s exclusive statutory jurisdiction over judicial review, proceeding on the presumptively applicable standard of reasonableness? Ousting the Federal Court’s jurisdiction in the absence of express direction by statute and enlarging the Tax Court’s review function would prompt new controversy over jurisdictional boundaries, all in service of supposed benefits for access to justice that strike me as largely illusory. Parliament plainly did not intend for the Tax Court to serve as an exclusive forum for taxation matters; it expressly granted by statute some jurisdiction over taxation matters to the Federal Court, some to the Tax Court, and even some original jurisdiction in taxation matters to the Federal Court of Appeal.

Leaves to Appeal Granted

Criminal Law: DUI
R. v. Singer, 2023 SKCA 123 (41090)

Issues re DUI in one’s driveway.

Insurance: Exclusion Clauses; GRC
Stephen Emond and Claudette Emond v. Trillium Mutual Insurance Company, 2023 ONCA 729 (41077)

Insurance issues re flooding and GRC (Guaranteed Rebuilding Cost).

Municipal Law: Development; By-laws; Zoning
Ville de Sainte-Julie v. Investissements Laroda Inc., 2023 QCCA 1294 (41036)

By-law and zoning issues re development.