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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Constitutional Law


Federal government retains jurisdiction to destroy data collected

Federal government repealed its long-gun registry. Act repealing registry provided for destruction of all data collected. Quebec applied for order that destruction of data was unconstitutional and requiring federal government to turn over data. Application judge granted requested order. Court of Appeal allowed federal government’s appeal. Quebec’s appeal dismissed. Repeal of valid criminal legislation falls under federal government’s criminal law power. Federal government retains jurisdiction to destroy data collected under criminal law power. Principle of cooperative federalism cannot serve to limit valid exercise of federal legislative authority.
Quebec (Attorney General) v. Canada (Attorney General) (Mar. 27, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35448) Decision at 108 W.C.B. (2d) 714 was affirmed.  121 W.C.B. (2d) 130.

Charter of Rights


Minimum sentence legislation did not minimally impair rights

Accused convicted of carrying loaded prohibited firearms. Crown proceeded by indictment. Accused N subject to three-year minimum sentence. Accused C subject to five-year minimum sentence as repeat offender. N and C challenged constitutionality of the minimum sentences. Court of Appeal held that minimum sentences under s. 95(2) of Criminal Code violated s. 12 of Charter. Crown appeals dismissed. Section 95 covers wide spectrum of conduct including minor violations of gun licences. Minimum sentences will impose grossly disproportionate punishment in reasonably imaginable situations. Legislation does not minimally impair rights. Parliament could have drafted minimum sentence capturing only offences with significant moral blameworthiness.
R. v. Nur (Apr. 14, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35678, 35684) Decisions at 110 W.C.B. (2d) 264 and 110 W.C.B. (2d) 479 were affirmed.  121 W.C.B. (2d) 117.

Constitutional Law


Section 241(b) of Criminal Code (Can.) is constitutionally invalid

Plaintiffs challenged constitutional validity of s. 241(b) of Criminal Code (Can.). Supreme Court of Canada had upheld section 19 years earlier by finding any Canadian Charter of Rights and Freedoms violations were saved pursuant to s. 1 .Plaintiffs suffering from fatal diseases sought ability to access physician-assisted suicide when life became unbearable. Trial judge declared s. 241(b) of no force and effect. Trial judge held that Supreme Court of Canada’s conclusion could be reconsidered in view of new principles of fundamental justice recognized after the decision and new factual record. Majority of Court of Appeal found that trial judge erred in holding she was not bound by earlier decision and reversed trial judge’s decision. Appeal allowed and declaration of invalidity restored. Trial judge was entitled to revisit earlier judgment in view of new evidence and jurisprudential changes. Absolute prohibition on assisted suicide impaired plaintiffs’ liberty and security of the person. Legislation was overbroad and not in accordance with the principles of fundamental justice. Legislation failed to minimally impair plaintiffs’ rights.
Carter v. Canada (Attorney General) (Feb. 6, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35591) Decision at 244 A.C.W.S. (3d) 600 was reversed.  252 A.C.W.S. (3d) 74.

Constitutional Law


Malice does not provide useful liability threshold for Charter breach based on failure to disclose in criminal proceedings

In 1983, H convicted of 10 sexual offences, declared dangerous offender and sentenced to indefinite incarceration. H remained incarcerated until 2009. Convictions subsequently quashed. H sought damages, pleading causes of action in negligence, malicious prosecution and breach of Charter rights. Province applied to strike out certain paragraphs of claim and dismiss claims grounded in negligence and Charter breach. Claim in negligence dismissed but Charter claim allowed to proceed since it was based on allegations of malicious conduct. Court noted that if H intended to pursue Charter damages claim for conduct falling short of malice, he required leave to amend pleadings. H applied to amend pleadings to particularize circumstances in which Province could be liable for Charter breach for non-malicious conduct. Judge granted application, finding that threshold lower than malice should apply and that s. 24(1) damages justified if Crown’s conduct constitutes marked and unacceptable departure from reasonable standards expected of prosecutors. Province’s appeal allowed but H’s further appeal allowed. Cause of action will lie where Crown, in breach of constitutional obligations, causes harm to accused by intentionally withholding information when it knows, or would reasonably be expected to know, the information is material to the defence and that failure to disclose will likely impinge on accused’s ability to make full answer and defence. Threshold high but lower than malice. Claimant must demonstrate that state has breached his Charter rights and that award of damages would serve compensation, vindication or deterrence function. Once that burden met, onus shifts to state to rebut claimant’s case. Malice requires more than recklessness or gross negligence; it requires claimant to demonstrate willful and intentional effort to abuse or distort proper role within criminal justice system. Malice not providing useful liability threshold. Malice requires determination of whether prosecutor motivated by improper purpose, an inquiry relevant to highly discretionary decisions. Decision to disclose relevant information not discretionary; it is constitutional obligation. Compelling good governance concerns raised in malicious prosecution jurisprudence remains relevant, mandating high threshold that substantially limits scope of liability. H alleged very serious instances of wrongful non-disclosure that demonstrated shocking disregard for Charter rights. H may seek to amend pleadings to include claim for Charter damages grounded in wrongful non-disclosure.
Henry v. British Columbia (Attorney General) (May. 1, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35745) Decision at 237 A.C.W.S. (3d) 360 was reversed.  251 A.C.W.S. (3d) 590.



Applying established ‘nexus’ test, first insurance company to receive completed SABS application was obliged to pay while disputing coverage

Pursuant to Statutory Accident Benefits regulatory scheme, first insurer to receive application for statutory accident benefits (SABS) following accident pays them, provided there is some connection between claimant and insurer. If insurer takes position another insurer is responsible for SABS, it must give notice within 90 days; insurers then follow statutory scheme of arbitration to determine which insurer should pay. SS rented vehicle from “Wheels 4 Rent” insured pursuant to motor vehicle liability policy issued by Zurich. Chubb issued accident policy to Wheels 4 Rent which provided optional death and dismemberment insurance to Wheels 4 Rent customers, but contained no coverage for motor vehicle accident liability. SS did not purchase Chubb’s optional coverage. Following single vehicle motor vehicle accident, she submitted SABS claim to Chubb, having received pamphlet from Wheels 4 Rent. Chubb refused to pay. Zurich paid SABS and insurers submitted dispute to arbitration, agreeing that liability depended on whether Chubb was insurer within meaning of s. 268 of Insurance Act (Ont.). Arbitrator held Chubb not “insurer” for purposes of priority dispute settlement statutory regime as insufficient nexus between Chubb and SS since Chubb never issued motor vehicle liability policy to either Wheels 4 Rent or SS. Zurich’s appeal allowed, but Chubb’s appeal to Ontario Court of Appeal also allowed. Majority of Court of Appeal held application judge erred in concluding Chubb policy was motor vehicle liability policy as no element of that policy insured against liability to others arising out of damage or injury caused by automobile or use or operation thereof. Justice Juriansz in dissent, held that applying established “nexus” test, Chubb, as first insurance company to receive completed SABS application, was obliged to pay while disputing coverage. Legislature could not have intended regulation would apply to insurers that do not offer motor vehicle liability policies to public but Chubb regularly writes motor vehicle liability policies and not “non-motor vehicle liability insurer” in broad sense. SS’s choice to send application to Chubb not random or arbitrary. Public policy to provide timely delivery of benefits would be seriously eroded by allowing insurance company that writes motor vehicle liability policies to argue, in case in which nexus test satisfied, that it is non-motor vehicle liability insurer. Zurich’s appeal to Supreme Court of Canada allowed. Supreme Court of Canada agreed with dissenting reasons of Justice Juriansz.
Zurich Insurance Co. v. Chubb Insurance Co. of Canada (Apr. 17, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 36002) Decision at 239 A.C.W.S. (3d) 997 was reversed.  251 A.C.W.S. (3d) 488.

Constitutional Law


‘Courts of Quebec’ contemplated by s. 98 of Constitution Act, 1867 are Superior Court and Court of Appeal of Quebec

Governor General of Canada appointed judge to Quebec Court of Appeal. Prior to appointment, judge was member of Barreau du Quebec, judge of Federal Court and then Federal Court of Appeal Judge. Quebec solicited opinion of court on two constitutional questions: which Quebec courts are covered by s. 98 of Constitution Act, 1867, and what conditions for appointing judges to Quebec courts are required under s. 98 and, specifically, whether s. 98 permits appointment of persons who are members of federal courts. Historic context takes on particular importance in determining purpose of s. 98 in almost total absence of case law or learned commentary. Important fundamental distinction between compromise of 1867 that permitted civil law tradition to flourish in Quebec and creation of general court of appeal for Canada. In matters of constitutional interpretation, provision that embodies historic compromise must be interpreted in manner to preserve compromise. Section 3 of Judges Act (Can.) (JA), lists conditions of appointment of judiciary more detailed than those in s. 98. Section 3 requires link to Bar of province from which judge named, but addresses both advocates or barristers who performed duties and functions of judicial nature on full-time basis after admission to Bar and contemplates promotions from inferior provincial or federal courts to superior trial or appellate court. Practice of appointing judges to superior courts who are jurists with substantial degree of skill in local law, whether acquired by practice or by exercise of judicial functions, followed in Canada for almost 175 years. Section 98 is constitutional provision made subject to legislative interpretation via s. 3 of JA. Nothing in s. 3 incompatible with s. 98. “Courts of Quebec” contemplated by s. 98 are Superior Court and Court of Appeal of Quebec. Candidate for appointment to judiciary in accordance with s. 98 must belong or have belonged to Bar of Province of Quebec. Judge of federal courts who was member of Barreau du Quebec prior to becoming judge may be appointed to Court of Appeal of Quebec of Superior Court of Quebec. Appeal by AGQ, LSUC and CRC dismissed. Supreme Court of Canada agreed with reasons of Quebec Court of Appeal.
Quebec (Attorney General) v. Canada (Attorney General) (Apr. 24, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 36231) 251 A.C.W.S. (3d) 442.

Constitutional Law

Charter of Rights

Preventing school from teaching Catholicism from own perspective seriously interferes with religious freedom

Private Catholic high school, has, as part of mandatory core curriculum, required program on Ethics and Religious Culture (ERC).  ERC, with stated objectives of “recognition of others” and “pursuit of the common good,” teaches beliefs and ethics of different world religions from neutral, objective perspective. Minister of Education, Recreation and Sports may, pursuant to s. 22 of regulation respecting the application of the act respecting private education (Que.), grant exemption from ERC program if proposed alternative program deemed to be “equivalent.” School requested exemption, proposing alternative course be taught from perspective of Catholic beliefs and ethics. Minister denied request. School application for judicial review of minister’s decision granted. Superior Court held that minister’s refusal infringed school’s right to religious freedom. Quebec Court of Appeal allowed Quebec’s appeal, finding minister’s decision reasonable. School appealed, modifying its proposal by agreeing to teach doctrines and practices of other world religions neutrally but teaching about ethics of other religions from Catholic perspective. Minister’s position, that no part of program could be taught from Catholic perspective, remained same. Appeal allowed. Case required balancing between robust protection for values underlying religious freedom with values of secular state. Requiring school to speak about its own religion in terms defined by state rather than own understanding demonstrably interferes with manner in which community can teach and learn about Catholic faith and undermines liberty of those who have chosen to give effect to collective dimension of religious beliefs by participating in denominational school. Preventing school from teaching and discussing Catholicism from own perspective does little to further ERC program’s objectives, but seriously interferes with religious freedom. Engagement with individual’s own religion on own terms cannot be presumed to impair respect for others. It is not breach of religious freedom to require school to teach about ethics of other religions from neutral perspective. Program goals of ensuring respect for different religious beliefs requires students to learn about doctrines and ethics of other world religions in neutral and respectful way. Given that minister’s decision as whole must reflect proportionate balancing of protections from Canadian Charter of Rights and Freedoms and statutory objectives, minister’s decision is unreasonable.
Loyola High School v. Quebec (Attorney General) (Mar. 19, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 35201) Decision at 234 A.C.W.S. (3d) 338 was reversed.  250 A.C.W.S. (3d) 248.
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