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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

COURTS

‘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.

Competition Law

MERGERS

No more than marginal efficiency gains required for efficiencies defence to apply

Oil and gas operations in northeastern B.C. produce hazardous waste, generally disposed of in secure landfill. Four permits for dedicated landfill operations issued; two held by Tervita, which operates two landfills, one for Peejay site, not yet constructed, and one for Babkirk site. BLS, owner of Babkirk, retained firm to prepare documentation to apply for secure landfill permit. At same time, individual respondents (Vendors) negotiated agreement to purchase shares of BLS. Shortly prior to issuance of Environmental Assessment Certificate for Babkirk secure landfill, Vendors acquired shares of BLS through Complete Environmental. Vendors, intending to operate Babkirk site primarily as bioremediation facility, subsequently sold shares in Complete to Tervita. Commissioner applied to Tribunal pursuant to s. 92 of Competition Tribunal Act (Can.), for order that transaction be dissolved on ground it was likely to prevent competition. Tribunal found that quantified anti-competitive effects of merger exceeded quantified gains in efficiency and ordered Tervita to divest itself of BLS shares. Appeal by Tervita, Complete and BLS to Federal Court of Appeal dismissed but further appeal allowed. There was sufficient evidence upon which Tribunal could find that merger would be likely to substantially prevent competition. In order for Tribunal to make most objective assessment possible in efficiencies analysis, Tribunal should consider all available quantitative and qualitative evidence. Commissioner failed to meet s. 96 of Act burden to quantify quantifiable anti-competitive effects; possible range of deadweight loss resulting from merger was unknown due to lack of price elasticity information. Those quantifiable anti-competitive effects, therefore, should be assigned zero weight. Federal Court erred by allowing for subjective judgment to overtake analysis in setting weight of these effects at undetermined. Also unfair to require merging parties to demonstrate that efficiency gains exceed and offset undetermined amount. Section 96 of Act does not require more than marginal efficiency gains for efficiencies defence to apply. Federal Court of Appeal erred in finding that anti-competitive merger could not be approved under s. 96 of Act if only marginal or insignificant gains in efficiency result from that merger. Weight given to quantifiable effects is zero and there were no proven qualitative effects. Tervita made out efficiencies defence by establishing overhead efficiency gains resulting from BLS obtaining access to Tervita’s administrative and operating functions.
Commissioner of Competition v. CCS Corp. (Jan. 22, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35314) Decision at 226 A.C.W.S. (3d) 719 was reversed.  248 A.C.W.S. (3d) 811.

Interception of Private Communications

PRODUCTION OF EVIDENCE

Application judge appropriately limited scope of order to protect privacy interests

Competition Bureau obtained judicial authorizations to intercept private communications in price-fixing investigation. Respondents filed class action lawsuit relating to alleged price-fixing. Application judge ordered disclosure of intercepted communications to respondents. Application judge ordered screening of communications before disclosure to protect privacy of third parties. Court of Appeal dismissed application for leave to appeal. Appeal dismissed. Neither Competition Act nor Criminal Code precluded disclosure of intercepted communications in civil proceedings. Application judge appropriately limited scope of order to protect privacy interests.
Jacques c. Pétroles Irving inc. (Oct. 17, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Wagner J., File No. 35226, 35231) Decision at 110 W.C.B. (2d) 184 was affirmed.  116 W.C.B. (2d) 618.

Charter of Rights

ENFORCEMENT OF RIGHTS

Tenuous cause connection between breach and confession undermined significance of relationship

Evidence obtained in manner violating Charter. Accused charged with first degree murder. Accused confessed to undercover police officers that he killed deceased and burned his body. During undercover operation police obtained wiretap authorization and intercepted accused’s phone calls. At trial Crown conceded that interceptions violated accused’s s. 8 right. Accused sought to exclude confessions on basis that undercover operation was closely linked to s. 8 breach. Trial judge found that confessions were not obtained in manner violating Charter. Court of Appeal dismissed accused’s appeal from conviction. Appeal dismissed. Tenuous causal connection between breach and confessions undermined significance of their temporal relationship.
R. v. Mack (Sep. 26, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35093) Decision at 99 W.C.B. (2d) 863 was affirmed.  116 W.C.B. (2d) 461.

Sentence

PREVENTIVE DETENTION

Robbery with threats of violence against person was serious personal injury offence

Accused convicted of robbery. Accused robbed drugstore by saying that he had gun. No evidence that accused actually had gun or used any force. Crown applied for dangerous offender assessment. Trial judge dismissed application on basis that offence was not serious personal injury offence. Court of Appeal dismissed Crown’s appeal. Appeal allowed. Definition of “violence” in s. 752 incorporates harm caused, attempted, or threatened. Robbery with threats of violence against person was serious personal injury offence within meaning of section.
R. v. Steele (Oct. 9, 2014, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35364) Decision at 105 W.C.B. (2d) 641 was reversed.  116 W.C.B. (2d) 427.

Evidence

CROSS-EXAMINATION

Improper cross-examination had no bearing on outcome of voir dire

Accused charged with possession of cocaine for purpose of trafficking and possession of proceeds of crime. Defence counsel applied to exclude evidence pursuant to s. 24 of Canadian Charter of Rights and Freedoms. Counsel asked one police witness on voir dire to comment on veracity of other officers. Trial judge excluded evidence seized from accused for violations of his Charter rights and acquitted him. Court of Appeal allowed Crown’s appeal on basis that defence counsel’s cross-examination was improper. Appeal allowed and acquittal restored. Improper cross-examination had no bearing on outcome of voir dire.
R. v. Mian (Sep. 12, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35132) Decision at 104 W.C.B. (2d) 276 was reversed.  116 W.C.B. (2d) 334.
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Law Times reports that lawyers are expressing concerns over the timing of the rollout of extensive draft regulations by the provincial government to amend the Condominium Act. Do you feel this will leave little time to bring clients up to speed?
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