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Constitutional Law


Appellant was not person “charged with an offence” and not entitled to protections under s. 11 of Charter

Section 163.2 of Income Tax Act imposes monetary penalties on every person who makes false statement that could be used by another person for purpose of act. Appellant was assessed substantial penalties under s. 163.2(4) in respect of false statements made by her in donation receipts issued by her on behalf of charity. Minister of National Revenue claimed appellant knew or would reasonably be expected to have known statements could be used by taxpayers to claim unwarranted tax credit. Appellant argued she was person “charged with an offence” because penalty imposed under s. 163.2(4) is criminal. She claimed she was therefore entitled to procedural safeguards provided for in s. 11 of Canadian Charter of Rights and Freedoms. Her appeal of Minister’s assessment to Tax Court of Canada was allowed despite fact she did not raise any Charter issue in her notice of appeal nor did she provide notice of constitutional question to attorneys general as required by s. 19.2 of act. Federal Court of Appeal set aside Tax Court’s decision and restored assessment. Appellant’s appeal dismissed. This court has narrow discretion to address merits of constitutional issue when it receives proper notice of constitutional questions even though issue was not properly raised in courts below. Discretion ought to be exercised in this case. Proceedings under s. 163.2 of act are not criminal in nature and do not lead to imposition of true penal consequences. Appellant was not person “charged with an offence” and not entitled to protections under s. 11 of Charter. Proceedings under s. 163.2 are of administrative nature. Process does not bear traditional hallmarks of criminal proceeding. True penal consequence is imprisonment or fine. Monetary penalty may be true penal consequence when it is, in purpose or effect, punitive. Penalties assessed against appellant, however, reflect objective of deterring conduct of type she engaged in. In signing charitable tax receipts, she chose to rely on her own legal opinion which she knew to be incomplete. Tax Court found her conduct was indicative either of complete disregard of law or of wilful blindness.
Guindon v. R. (Jul. 31, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35519) Decision at 228 A.C.W.S. (3d) 94 was affirmed.  256 A.C.W.S. (3d) 78.

Human Rights Legislation


It was not open to tribunal to conclude that refusal to train pilot constituted prima facie discrimination under Quebec Charter of human rights and freedoms

Bombardier operates training facilities for licensed pilots in Montreal and Dallas. Appellant, Canadian citizen born in Pakistan and holding Canadian and U.S. licences, registered for training in Dallas. Request for security clearance from U.S. authorities was denied and appellant unable to receive training in Dallas.
Bombardier also refused to train appellant in Montreal under Canadian licence. Appellant filed complaint with Commission des droits de la personne et des droits de la jeunesse (Commission), claiming that Bombardier’s refusal constituted discrimination. Commission instituted proceedings in Human Rights Tribunal alleging Bombardier impaired appellant’s right to avail himself of services ordinarily offered to public and his right to safeguard of his dignity and reputation without discrimination based on ethnic or national origin, contrary to Quebec Charter of Human Rights and Freedoms. Tribunal ordered Bombardier to pay damages and to cease applying or considering standards and decisions of U.S. authorities in national security matters when dealing with applications for training pilots under Canadian pilot’s licences.
Court of Appeal set aside tribunal’s decision, finding that tribunal could not find that Bombardier discriminated without proof that U.S. authorities’ decision was itself based on ground prohibited under charter. Appellant’s appeal dismissed. Complaint under charter involves two-step process. First, plaintiff must prove, on balance of probabilities: (1) distinction, exclusion or preference; (2) based on one of grounds listed; and (3) which has effect of nullifying or impairing right to full and equal recognition and exercise of human right or freedom. If these elements are established, there is prima facie discrimination. Quebec charter does not protect right to equality per se; right to non-discrimination must necessarily be attached to another human right or freedom recognized by law. Second, defendant can justify decision or conduct on basis of exemptions provided for in applicable human rights legislation or those developed by courts. Tribunal’s decision was not supported by evidence; it was unreasonable and had to be set aside. Commission did not demonstrate that appellant’s ethnic or national origin played any role in U.S. authorities’ unfavourable reply to his security screening request. Rather, Bombardier’s decision to deny appellant’s request for training was based solely on U.S. authorities’ refusal to issue him a security clearance. It was not open to Tribunal to conclude that Bombardier’s decision constituted prima facie discrimination under the charter.
Québec (Commission des droits de la personne et des droits de la jeunesse) c. Bombardier Inc. (Jul. 23, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Côté J., File No. 35625) Decision at 237 A.C.W.S. (3d) 181 was affirmed.  255 A.C.W.S. (3d) 79.



Provincial superior courts have jurisdiction to address validity of child support guidelines where doing so is necessary step in resolving case otherwise properly before them

Appellants brought judicial review application in federal court seeking declaration that federal child support guidelines unlawful as not authorized by s. 26.1(2) of Divorce Act. Application judge held that given minor role Federal Court plays in issues under act and breadth of jurisdiction and expertise of provincial superior courts in matters related to divorce and child support, Federal Court was not appropriate forum in which to address validity of guidelines. Federal Court upheld application judge’s decision and appellants’ further appeal dismissed. Provincial superior courts can determine whether guidelines ultra vires and can decline to apply them if doing so is necessary step in resolving matters before them. Judicial review is discretionary; even if applicant makes out case for review on merits, reviewing court retains overriding discretion to refuse relief. Declarations of rights are similarly discretionary. Federal Court judges’ discretion in determining whether judicial review should be undertaken entitled to deference. One of discretionary grounds for refusing to undertake judicial review is that there is adequate alternative. Court should consider suitability and appropriateness of judicial review. Federal Court has discretion to rule on legality of guidelines but it declined to exercise that discretion. Alternative does not need to provide identical procedures or relief to be adequate. Determination of whether guidelines are based, as required to be, on s. 26.1(2) of act, will engage family law expertise in relation to, inter alia, nature and extent of obligation to maintain children and how relative abilities of parents to do so should be assessed, an area of law entrusted to provincial superior courts. It would be curious if legality of central aspect of regime were determined by federal courts which have virtually no jurisdiction with respect to family law matters. In addition, ruling in Federal Court would not be binding on provincial superior courts. Judicial review proceedings exclude direct adversarial participation; adjudicating issue in context of act or child support proceedings would ensure full participation of parties. Judicial review in Federal Court is manifestly inappropriate; provincial superior courts have jurisdiction to address validity of guidelines where doing so is necessary step in resolving case otherwise properly before them.
Strickland v. Canada (Attorney General) (Jul. 9, 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. 35808) Decision at 244 A.C.W.S. (3d) 341 was affirmed. 254 A.C.W.S. (3d) 838.

Sale of Land


No agreement to sell immovable was concluded, brokerage enterprise not entitled to commission

Sellers signed standard form exclusive brokerage contract giving brokerage enterprise a mandate to sell their immovable. Contract provided that obligation to pay brokerage enterprise’s commission would be triggered, inter alia, when “agreement to sell the immovable” was concluded during term of contract or if “the seller voluntarily prevents the free performance of the contract”. Promise to purchase initially accepted by sellers gave buyer a right to withdraw promise if not completely satisfied with due diligence results. When it was discovered that immovable might be affected by environmental contamination, buyer attempted to impose condition that sellers decontaminate immovable at their expense. Sellers refused and sale did not go through. Sellers refused to pay commission to brokerage enterprise. Superior Court dismissed brokerage enterprise’s action but Court of Appeal allowed brokerage enterprise’s appeal. Sellers appealed. Appeal allowed. Promise to purchase is binding on parties as soon as it is concluded but until it is possible for one party to bring action to compel transfer of title, there is no “agreement to sell the immovable” within meaning of brokerage contract. Once environmental assessment disclosed that soil was contaminated, buyer clearly expressed intention not to conclude sale until property decontaminated at sellers’ expense. Buyer therefore repudiated initial promise and submitted new offer to purchase. No agreement to sell immovable was concluded and brokerage enterprise not entitled to commission. Nor was payment of commission triggered by sellers voluntarily preventing free performance of brokerage contract. Under contract, sellers did not have obligation to decontaminate property or renegotiate terms of initial promise to purchase. Although brokerage contract contained sellers’ declaration that immovable was in accordance with environmental protection laws and regulations, declaration could not, on its own and in absence of bad faith, serve as basis to argue that sellers voluntarily prevented free performance of contract. Accepted promise to purchase is not a sale and does not produce any of effects of a sale. Sellers committed no fault in relation to obligations under promise to purchase or brokerage contract.
Société en commandite Place Mullins c. Services immobiliers Diane Bisson inc. (Mar. 18, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Wagner J., Gascon J., and Côté J., File No. 35461) Decision at 236 A.C.W.S. (3d) 779 was reversed.  254 A.C.W.S. (3d) 87.



In exercising royal prerogative of mercy, Minister has broad discretion

Appellant granted parole after serving third of 15-year sentence. Appellant’s three applications for mercy to federal Minister of Justice and application for pardon denied. Following investigation, Commission de police du Quebec stated it hoped Attorney General of Quebec (AGQ) would intervene. In response to fourth application for mercy, Minister stated appellant should seek relief in Quebec Court of Appeal. Quebec Court of Appeal allowed appeal but directed stay. Supreme Court of Canada acquitted appellant. Appellant commenced action against AGQ, Attorney General of Canada (AGC) and town of Mont-Laurier. Town and AGQ settled out of court and action continued against AGC. Superior Court ordered AGC to pay almost $5.8 million, finding simple fault sufficient for Crown liability. Trial judge concluded federal government committed “institutional indifference” and that sustained and extensive review would have uncovered errors. Court of Appeal reversed judgment, finding that Minister’s power of mercy protected by immunity analogous to that applying to Crown prosecutor in case of malicious prosecution. It also found that AGC’s conduct at trial amounted to abuse of process and ordered AGC to pay appellant’s legal fees even though appellant’s lawyer took case pro bono. In absence of intentional or gross fault, or even simple fault, by Minister, appellant’s action dismissed. Appellant’s appeal dismissed. Federal Crown generally subject to rules of civil liability; only true policy decisions are protected by Crown immunity. Power of mercy derives from royal prerogative of mercy. In exercising royal prerogative of mercy, Minister has broad discretion. Minister must assess and weigh public policy considerations on basis of social, political and economic factors; it is true core policy act. Inappropriate to import malice standard. In Quebec civil law, concept of bad faith is flexible, encompassing serious recklessness. At minimum, Minister must conduct meaningful review which entails duty to make decision in good faith on basis of evidence uncovered by that review. Documentary evidence negated trial judge’s inference there had been no review of appellant’s initial application. Circumstances did not support conclusion that any Ministers acted in bad faith or with serious recklessness on any applications. Even if Minister had conducted more extensive investigation, there was no evidence Minister would probably have discovered key evidence uncovered by investigator of Commission de police 20 years later. Appellant failed to prove failure to conduct meaningful review or to conduct one more expeditiously was probable cause of failure to discover miscarriage of justice.  Not appropriate to award punitive damages given that Minister’s conduct could not be equated with bad faith or serious recklessness nor could it be said he intended to harm appellant. Only abuse of process can justify awarding extrajudicial fees as damages. Trial judge erred in finding abuse of process; AGC’s conduct did not amount to abuse of process. It was reasonable and appropriate for AGC to contest action given that law on federal Crown’s liability for fault committed by Minister in exercising power of mercy was far from clear. Appellant not entitled to extrajudicial fees.
Hinse v. Canada (Attorney General) (Jun. 19, 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. 35613) 253 A.C.W.S. (3d) 822.

Constitutional Law


Education provisions in Kahkewistahaw Election Act do not violate s. 15 of Charter

In response to Royal Commission Report on Aboriginal Peoples that identified education as top priority for promoting collective and individual well-being in Aboriginal communities, Kahkewistahaw First Nation spent 13 years developing Election Code which included Grade 12 education requirement for Chief or Band Councillor candidates. LT, aged 76, had Grade 10 education and was chief for almost three decades, challenged constitutionality of Grade 12 requirement. He claimed educational requirement violated s. 15(1) of Canadian Charter of Rights and Freedoms. LT’s application for judicial review was dismissed in Federal Court, but Federal Court of Appeal allowed LT’s appeal, basing its decision on age and residence on a reserve, which were not pleaded. Appeal of Kahkewistahaw First Nation was allowed. Section 15 Charter analysis requires flexible and contextual inquiry into whether distinction has effect of perpetuating arbitrary disadvantage on claimant because of membership in enumerated or analogous group. Section 15 protects substantive equality; it is aimed at laws that draw discriminatory distinctions and have effect of perpetuating arbitrary disadvantage based on individual’s membership in enumerated or analogous group. While education requirements for employment could, in certain circumstances, have discriminatory impact in violation of s. 15, in this case there was absence of evidence linking education requirement to disparate impact on members of enumerated or analogous group. There was virtually no evidence about relationship between age, residency on reserve and education levels in Kahkewistahaw First Nation. Nor was there any evidence about effect of education provision on older community members, on community members who live on reserve or on individuals who belong to both of these groups. Court of Appeal erred in concluding that education provisions in Kahkewistahaw Election Act constitute prima facie violation of s. 15 Charter rights of community members who live on reserve. Evidence must amount to more than web of instinct; it must show prima facie breach. Education provisions in Kahkewistahaw Election Act do not violate s. 15 of Charter.
Kahkewistahaw First Nation v. Taypotat (May. 28, 2015, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35518) Decision at 230 A.C.W.S. (3d) 623 was reversed.  252 A.C.W.S. (3d) 696.

Charter of Rights


State made reasonable efforts to ensure representative jury roll

Accused charged with second-degree murder and convicted of manslaughter. Accused tendered fresh evidence demonstrating that Aboriginal people on reserves in region where trial took place were underrepresented on jury rolls. Single low-level government employee was responsible for ensuring representative jury rolls. Employee made efforts to obtain accurate lists of reserve residents but did not engage Aboriginal leaders to explore other causes of underrepresentation. Majority of Court of Appeal found breach of s. 11(d) and (f) of Charter and ordered new trial. Appeal allowed and conviction restored. State made reasonable efforts to ensure representative jury roll. Right to jury representativeness focuses on process and not ultimate composition of jury rolls.
R. v. Kokopenace (May. 21, 2015, S.C.C., McLachlin C.J.C., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35475) Decision at 108 W.C.B. (2d) 207 was reversed.  121 W.C.B. (2d) 233.
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