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 July 26 – August 15, 2024 inclusive.

Appeals

Aboriginal Law: Treaties; Standard of Review; Fiduciary Duties
Ontario (Attorney General) v. Restoule, 2021 ONCA 779; 2024 SCC 27 (40024)

Although a trial judge’s findings of historical fact attract deference, the interpretation of historic Crown-Indigenous treaties is reviewable for correctness. Applying this standard of review, along with the treaty interpretation principles articulated by the S.C.C. the Crown has a duty to consider, from time to time, whether it can increase the annuities without incurring loss. If the Crown can increase the annuities without incurring loss, it must exercise its discretion and decide whether to increase the annuities and, if so, by how much. The Crown must increase the annuity under the Robinson Treaties beyond $4 per person retrospectively, from 1875 to the present. The plaintiffs’ breach of treaty claims are not statute-barred by Ontario’s limitations legislation. The Crown’s ongoing breach of its augmentation promise, in the circumstances, is also a breach of the treaties themselves. Findings of fact, inferences of fact, and questions of mixed fact and law (which involve applying a legal standard to the facts) are, absent an extricable error of law, all reviewable for palpable and overriding error. While the trial judge’s factual findings, including her findings of historical fact, attract deference, her interpretations of the treaty rights do not. The Crown is not subject to an ad hoc or sui generis fiduciary duty in respect of the augmentation promise in the Robinson Treaties. However, the Crown is subject to a duty to diligently implement or fulfill that promise, and its failure to do so is a breach of treaty. The Crown’s breach of the augmentation promise is both a breach of the duty of diligent fulfillment and a breach of the treaty itself. In principle, the full range of remedies — declaratory and coercive — is available. A declaration is an appropriate remedy in that it will offer a definitive statement of the rights and obligations to guide the parties in negotiating compensation for past breaches and to encourage the renewal of the treaty relationship moving forward. In these circumstances, a simple declaration would not adequately repair the treaty relationship or restore the honour of the Crown. It would not sufficiently vindicate the treaty rights or meaningfully advance reconciliation. A court-calculated compensation award for past breaches in relation to the Superior plaintiffs is not yet an appropriate recourse. A narrow, time-bound window for negotiation is directed, after which the Crown is (failing a settlement) required to exercise its discretion honourably in a manner consistent with these reasons and determine an amount of compensation.

Bankruptcy & Insolvency: Breach of Securities Legislation
Poonian v. British Columbia (Securities Commission), 2022 BCCA 274; 2024 SCC 28 (40396)

The Commission found that the Poonians had contravened s. 57(a) (now s. 57(1)(a)) of the Securities Act. It ordered the payment of administrative penalties by both Mr. Poonian ($10 million) and Ms. Poonian ($3.5 million). The Commission also issued orders pursuant to s. 161(1)(g) of the Securities Act requiring Mr. Poonian to disgorge $1,319,167 as well as $1,126,260 jointly and severally with another participant, and requiring Ms. Poonian to disgorge $3,149,935. The disgorgement orders represent the amounts the Poonians obtained as a result of the market manipulation scheme. Relying on the exceptions set out in s. 178(1) of the BIA, the Commission applied for a declaration that the amounts owed to it by the Poonians not be released by any order of discharge. The administrative penalties imposed by the Commission do not fall within the exceptions set out in either s. 178(1)(a) or (e) and therefore do not survive a discharge from bankruptcy on those bases. The disgorgement orders imposed by the Commission do not fall within the s. 178(1)(a) exception and do not survive a discharge from bankruptcy on that basis. However, they are captured by s. 178(1)(e) and therefore will not be released by any possible future order of discharge.

Leaves to Appeal Granted

Criminal Law: DUI
Larocque v. R., 2024 NBCA 4 (41155) Aug. 15, 2024

DUI issues.

Criminal Law: DUI
Rousselle v. R., 2024 NBCA 3 (41153) Aug. 15, 2024

DUI issues.

Criminal Law: Sexual Offences; Sentencing
R. v. Sheppard, 2023 ABCA 381 (41126) Aug. 8, 2024

Sentencing issues re sexual offences.

Real Property/Aboriginal Law: Prescription; Seizure Exemption
Mohawk Council of Kanesatake v. Louis-Victor Sylvestre, et al., 2023 QCCA 1603 (41131) Aug. 15, 2024

Prescription issues in context of seizure of aboriginal property.