dicta recordings: Recent Episodes
dicta
Audio recordings of topical Canadian judicial decisions. Available on most major podcasting platforms.
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Motions for Leave to Intervene at the Court of Appeal: More Onerous Test
Supreme Advocacy's Court of Appeal Decision of the Week Blog is available on their website.
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Civil Procedure — Parties — Intervention
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Boilerplate in visa applications, duty to consult
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(00:00:38) Kashefi v Canada (Citizenship and Immigration), 2024 FC 856 (June 6, 2024)
(00:04:10) Innu Nation Inc v Canada (Crown-Indigenous Relations), 2024 FC 896 (June 12, 2024)
(00:08:35) Way v Nunatsiavut Government, 2024 FC 886 (June 11, 2024)
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Torts: Spectator Injuries; Hockey Puck-related Damages.
Supreme Advocacy's Court of Appeal Decision of the Week Blog is available on their website.
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Civil law — Personal injury — Quantum of damages
(00:00:25) Summary
(00:01:05) Reasons for Judgment of the Honourable Madam Justice Horsman
(00:01:10) I. Overview – 1
(00:03:29) II. Background – 8
(00:03:30) A. The respondent’s pre-Accident work history and personal circumstances – 8
(00:06:41) B. The Accident and its aftermath – 14
(00:08:26) III. The trial – 17
(00:08:27) A. The evidence – 17
(00:08:29) (1) The respondent’s evidence – 17
(00:14:02) (2) The appellants’ evidence – 23
(00:15:54) B. Closing addresses to the jury – 26
(00:18:32) C. The jury verdict – 30
(00:18:54) IV. On appeal – 31
(00:19:22) V. Standard of review – 32
(00:20:46) VI. Analysis – 35
(00:20:48) A. Issue (a): Is the award for loss of past income capacity wholly disproportionate and shockingly unreasonable? – 35
(00:27:43) B. Issue (b): Is the award for non-pecuniary loss wholly disproportionate as compared to judge-made awards? – 44
(00:34:18) VII. Disposition – 50
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Courthouse closings and Charter values, appeals/JR
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(00:00:36) Forum des maires de la Péninsule acadienne Incorporated v Minister of Justice and Public Safety, 2024 NBKB 58 (March 28, 2024)
(00:12:02) Utano v Canada (Public Safety), 2024 FC 805 (May 28, 2024)
(00:14:41) Payne v Saskatoon Housing Authority, 2024 SKKB 92 (May 22, 2024)
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Criminal law — Informer privilege — Open court principle
(00:00:35) Summary
(00:00:37) Facts and Procedural History
(00:03:33) Disposition
(00:03:36) The judgment of the Court
(00:13:13) Reasons for Judgment: The Court – 1
(00:13:17) I. Overview – 1
(00:17:48) II. Procedural and Judicial History – 7
(00:18:58) A. Judgment at Trial Dismissing the Motion for a Stay of Proceedings – 9
(00:19:52) B. Judgment of the Quebec Court of Appeal of March 23, 2022, Entering a Stay of Proceedings for Abuse of Process, 2022 QCCA 406, 424 C.C.C. (3d) 322 (Bich, Vauclair and Healy JJ.A.) – 11
(00:24:56) C. Judgment of the Quebec Court of Appeal of July 20, 2022, Dismissing the Motions for Review of the Confidentiality Orders, 2022 QCCA 984 (Bich, Vauclair and Healy JJ.A.) – 17
(00:29:39) III. Issues – 22
(00:31:43) IV. Analysis – 26
(00:31:52) A. Court Openness: A Pillar of Our Free and Democratic Society – 27
(00:36:08) B. Informer Privilege – 33
(00:36:44) (1) Rationale for Informer Privilege – 35
(00:38:29) (2) The Interests Protected by the Open Court Principle Yield to Those Protected by Informer Privilege – 37
(00:43:16) (3) Scope of Informer Privilege – 43
(00:45:59) C. Procedure Proposed in Vancouver Sun – 47
(00:53:01) (1) Judges Must Retain the Discretion to Issue a Notice to Interested Third Parties – 55
(00:57:37) (2) The Disclosure of Privileged Information to Interested Third Parties or Their Representatives Would Unduly Expand the Circle of Privilege – 60
(01:01:47) D. Review of How the Guiding Rule From Vancouver Sun Should Be Applied When Proceeding In Camera – 66
(01:02:27) (1) Named Person Was Not Convicted Following a Secret Proceeding – 67
(01:06:05) (2) How the Guiding Rule From Vancouver Sun Should Be Applied – 71
(01:16:14) E. Confidentiality Orders Made by the Court of Appeal – 84
(01:20:18) V. Conclusion – 89
(01:23:04) VI. Disposition – 93
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Criminal law — Informer privilege — Open court principle
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Contracts: Do Contracting Parties “Create Their Own Dictionary”?
Supreme Advocacy's Court of Appeal Decision of the Week Blog is available on their website.
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Contract law – Employment law – Income Tax Act
(00:00:37) I. Introduction – 1
(00:02:33) II. Facts – 7
(00:08:22) III. The Chambers Decision – 20
(00:14:34) IV. Issues – 24
(00:15:02) V. Analysis – 26
(00:15:04) A. The RCA Contract and standard of review – 26
(00:16:04) B. The Chambers judge did not err in his interpretation of the RCA Contract – 28
(00:16:58) VI. Conclusion – 52
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Sale of goods — Contracts — Interpretation — Exclusion clauses
(00:00:36) Summary
(00:00:37) Facts and Procedural History
(00:03:50) Held (Côté J. dissenting)
(00:03:57) Per Wagner C.J. and Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
(00:12:23) Per Côté J. (dissenting)
(00:19:00) Reasons for Judgment: Martin J. (Wagner C.J. and Rowe, Kasirer, Jamal and O’Bonsawin JJ. concurring)
(00:19:10) I. Introduction – 1
(00:22:32) II. Factual Background – 4
(00:29:32) III. Judicial History – 13
(00:29:34) A. Ontario Superior Court of Justice, 2020 ONSC 601 – 13
(00:36:08) B. Court of Appeal for Ontario, 2022 ONCA 265, 161 O.R. (3d) 103 – 22
(00:39:24) IV. Issues – 26
(00:39:34) V. Analysis – 27
(00:39:36) A. The Applicable Standard of Review – 27
(00:46:02) B. The Sale of Goods Act – 34
(00:55:09) C. Section 53 and Express Agreements – 45
(00:58:29) (1) Section 53 of the Sale of Goods Act – 50
(01:07:08) (2) The Modern Principles of Contractual Interpretation – 61
(01:10:25) (3) The Legal Treatment of Exclusion Clauses – 66
(01:15:52) (4) Explicit, Clear and Direct Language as Applied to Statutory Conditions and Identity – 74
(01:31:24) D. Summary of the Proper Approach to Interpreting Exclusion Clauses Under Section 53 of the Sale of Goods Act – 93
(01:37:03) E. Clauses 6 and 7 Exempt Earthco From Liability Under Section 14 – 100
(01:49:13) VI. Disposition – 115
(01:49:25) Dissenting Reasons: Côté J.
(01:49:29) I. Overview – 116
(01:54:18) II. Context – 121
(01:58:58) III. Analysis – 129
(01:59:01) A. Standard of Review – 129
(01:59:35) B. The Principles of Statutory Interpretation Apply – 130
(02:03:02) C. The Legal Standard for Ousting an Implied Condition Under the SGA – 134
(02:03:07) (1) Terms Arising Under Contracts for the Sale of Goods by Implication of Law – 134
(02:07:11) (2) Section 53 of the SGA – 139
(02:10:38) (3) The Meaning of “Express Agreement” – 143
(02:11:15) (a) Clear and Direct Language – 144
(02:18:50) (b) Language Inconsistent With the Terms the Legislature Sought To Imply – 152
(02:24:22) D. The Role of Modern Principles of Contractual Interpretation – 158
(02:33:02) IV. Application – 167
(02:48:37) V. Conclusion – 184
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Sale of goods — Contracts — Interpretation — Exclusion clauses
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Construction Dispute Interim Adjudications: Does the Court of Appeal or Divisional Court have Jurisdiction?
Supreme Advocacy's Court of Appeal Decision of the Week Blog is available on their website.
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Appeals — Jurisdiction — Construction Act
(00:00:39) Judgment of Harrison Young J.A.
(00:01:39) I. Facts – 4
(00:04:46) II. Issues – 13
(00:08:48) III. Analysis – 22
(00:16:58) IV. Disposition – 37
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Psilocybin and the Charter; joint JR’s and appeals.
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:00:52) Lance v Canada (Attorney General), 2024 FC 787 (May 24, 2024)
(0:08:05) Casa Loma Residents Association v 555 Davenport Holdings Ltd, 2024 ONSC 2297 (April 18, 2024)
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Criminal law — Evidence — Admissibility — Complainant’s sexual activity
(00:00:48) Summary
(00:00:48) Facts and Procedural History
(00:03:25) Held (Côté and Moreau JJ. dissenting on the appeal)
(00:03:33) Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
(00:13:24) Per Côté and Moreau JJ. (dissenting on the appeal)
(00:18:12) Reasons for Judgment: O’Bonsawin J. (Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ. concurring)
(00:18:23) I. Overview – 1
(00:21:30) II. Facts – 6
(00:22:36) III. Procedural History – 9
(00:25:13) A. Oral Ruling on Voir Dire, 2021 BCSC 270 (Jenkins J.) – 9
(00:22:38) B. British Columbia Court of Appeal, 2022 BCCA 312, 418 C.C.C. (3d) 169 (Newbury and Fitch JJ.A., Frankel J.A. Dissenting) – 14
(00:27:14) IV. Issues – 17
(00:28:07) V. Analysis – 19
(00:28:09) A. The Standard of Review of Section 276 Decisions – 19
(00:32:35) B. The Use of Other Sexual Activity Evidence for Credibility and Context – 24
(00:35:16) (1) Witness Credibility, Context, and the Permissible Uses of Other Sexual Activity Evidence – 27
(00:41:33) (2) Application to This Case – 37
(00:48:47) (3) Reconsideration of the Pre-trial Ruling – 45
(00:55:30) C. Limitations on Court Openness on Appeals of Section 276 Determinations – 55
(00:59:38) (1) History and Purpose of Section 278.95 – 59
(01:04:10) (2) Text and Legislative Scheme of Section 278.95 – 63
(01:09:12) (3) The Court Has Implied Jurisdiction To Make Orders Limiting Court Openness – 68
(01:11:56) (4) Limiting Court Openness in This Case – 71
(01:19:29) VI. Disposition – 81
(01:20:31) Joint Dissenting Reasons: Côté and Moreau JJ.
(01:20:36) I. Introduction – 83
(01:22:32) II. Evolution of the Evidence and the Record – 87
(01:22:36) A. The Evolution of the Complainant’s Evidence – 87
(01:25:18) B. Discussions at Trial – 93
(01:26:09) III. Standard of Review – 95
(01:28:17) IV. The Trial Judge’s Ability To Revisit a Pre‑trial Ruling – 98
(01:36:57) V. Jurisdiction – 111
(01:41:59) VI. Application – 118
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Criminal law — Evidence — Admissibility — Complainant’s sexual activity
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Applications to Vary: Extensions of Time; Authenticity of Court Order.
Supreme Advocacy's Court of Appeal Decision of the Week Blog is available on their website.
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Civil law — Appeals — Chambers orders
(00:00:48) Summary
(00:01:18) Reasons for Judgment of the Honourable Justice Griffin
(00:01:54) I. Background and Procedural History – 4
(00:07:54) II. The Underlying Order under Review – 21
(00:08:53) III. Analysis – 24
(00:10:47) IV. Formalizing Court Orders – 30
(00:16:11) V. Disposition – 42
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Happy Long Weekend to all SEAR readers. This week features cases on correctness review, election financing, and new evidence on judicial review.
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(00:00:55) Canadian Energy Services LP v Canada (Commissioner of Patents), 2024 FC 742 (May 14, 2024)
(00:04:17) Liberal Party of Canada v The Complainants, 2024 BCSC 814 (May 14, 2024)
(00:07:46) Rockcliffe Park Residents Association v City of Ottawa, 2024 ONSC 2690 (May 13, 2024)
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Criminal law — Charge to jury — Co‑principal liability — Group assault
(00:00:47) Summary
(00:00:47) Facts and Procedural History
(00:01:39) Held (Rowe and Jamal JJ dissenting)
(00:01:45) Per Karakatsanis, Martin and Moreau JJ.
(00:06:02) Per Rowe and Jamal JJ. (dissenting)
(00:09:27) Reasons for Judgment: Moreau J. (Karakatsanis and Martin JJ. concurring)
(00:09:34) I. Overview – 1
(00:13:07) II. The Trial Judge’s Instructions on Causation – 7
(00:17:25) III. The Accuracy of the Jury Instructions – 14
(00:17:28) A. Relevant Legal Principles – 14
(00:20:04) B. Application to This Case – 18
(00:26:36) IV. Intervening Acts and Group Assaults – 26
(00:29:08) V. Conclusion – 31
(00:29:13) Dissenting Reasons: Jamal J. (Rowe J. concurring)
(00:29:59) I. The Trial Judge’s Intervening Act Instruction Did Not Properly Instruct the Jury on Legal Causation – 34
(00:38:50) II. The Curative Proviso Does Not Apply – 46
(00:41:15) III. Disposition – 51
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Criminal law — Charge to jury — Co‑principal liability — Group assault
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The Tort of Conversion: Dude, Where’s My Backhoe, Dump Truck, and Asphalt Roller?
Supreme Advocacy's Court of Appeal Decision of the Week Blog is available on their website.
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Torts — Conversion — Possessory interest
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FC jurisdiction and Indigenous customary law, professional colleges
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(00:00:53) Bellegarde v Carry the Kettle First Nation, 2024 FC 699 (May 7, 2024)
(00:07:41) Gill v Health Professions Appeal and Review Board, 2024 ONSC 2588 (May 7, 2024)
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Expropriation — Constructive expropriation — Compensation
(00:00:50) Summary
(00:00:52) Facts and Procedural History
(00:04:18) Disposition
(00:04:24) The Judgment of the Court
(00:09:26) Reasons for Judgment: Martin J. (Karakatsanis, Côté, Rowe, Kasirer, Jamal and O’Bonsawin JJ. concurring)
(00:09:30) I. Overview – 1
(00:11:46) II. Factual Background – 5
(00:11:49) A. The Lynch Property – 5
(00:15:47) B. Development Inquiries – 10
(00:18:11) C. The Constructive Expropriation Claim – 13
(00:21:13) III. Procedural History – 16
(00:21:15) A. Board of Commissioners of Public Utilities – 16
(00:22:03) B. Supreme Court of Newfoundland and Labrador, 2020 NLSC 92, 2 M.P.L.R. (6th) 241 (Chaytor J.) – 17
(00:26:16) C. Court of Appeal of Newfoundland and Labrador, 2022 NLCA 29, 470 D.L.R. (4th) 679 (Green, Butler and White JJ.A.) – 23
(00:28:47) IV. Issue on Appeal – 25
(00:29:25) V. Analysis – 27
(00:29:27) A. Compensation for Expropriation – 27
(00:34:58) B. The Pointe Gourde Principle – 35
(00:38:29) C. The Scope of the Scheme to be Ignored – 39
(00:39:40) (1) Compensation Jurisprudence – 41
(00:45:25) (2) Determining the Scope of the Expropriation Scheme – 46
(00:46:29) (a) The Inquiry Involves Examining the Purposes and Effects of the Enactment – 48
(00:49:06) (b) Causation Does Not Drive the Inquiry – 50
(00:53:52) (c) Guidance for Conducting the Assessment – 55
(00:56:14) D. Application – 58
(01:02:51) VI. Conclusion – 66
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Expropriation — Constructive expropriation — Compensation
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Summary Judgment Appeals: When Does the Court of Appeal Have Jurisdiction?
Supreme Advocacy's Court of Appeal Decision of the Week Blog is available on their website.
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Correctness review and Indigenous park management
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:01:10) LifeLabs LP v Information and Privacy Commr. (Ontario), 2024 ONSC 2194 (April 30, 2024)
(0:04:52) Trophy Lodge NWT Ltd. v Canada (Attorney General), 2024 FC 618
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Criminal law — Trial — Language of accused
(00:00:58) Summary
(00:01:00) Facts and Procedural History
(00:01:58) Held (Karakatsanis and Martin JJ. dissenting)
(00:02:08) Per Wagner C.J. and Côté, Rowe, Kasirer and O’Bonsawin JJ.
(00:13:43) Per Karakatsanis and Martin JJ. (dissenting)
(00:22:30) Reasons for Judgment: Wagner C.J. (Côté, Rowe, Kasirer and O’Bonsawin JJ. concurring) – 1
(00:22:40) I. Overview – 1
(00:27:47) II. Procedural and Judicial History – 9
(00:28:54) A. Decisions of the Supreme Court of British Columbia (Marchand J.) – 11
(00:28:59) (1) Voir Dire Decision, 2019 BCSC 2442 – 11
(00:30:15) (2) Decision on Guilt, 2019 BCSC 1529 – 13
(00:31:00) B. Decision of the British Columbia Court of Appeal, 2022 BCCA 177 (Dickson, Griffin and Voith JJ.A.) – 15
(00:35:40) III. Issues – 21
(00:36:57) IV. Analysis – 23
(00:37:13) A. Language Rights: Purpose, Nature and Interpretation – 24
(00:37:18) (1) Purpose and Nature – 24
(00:38:43) (2) Interpretation – 27
(00:39:05) B. Institutional Judicial Bilingualism: An Essential Component of the Preservation and Development of Linguistic Minorities – 28
(00:43:24) C. Language Rights Guaranteed by Section 530 Cr. C. – 36
(00:47:17) (1) Fundamental Right To Be Tried in the Official Language of One’s Choice – 37
(00:52:44) (2) Right To Be Advised of This Fundamental Right – 43
(01:01:58) D. Powers of a Court of Appeal Hearing an Appeal Against a Conviction – 53
(01:03:36) (1) Principle Underlying Any Intervention by a Court of Appeal Under Section 686(1)(a) Cr. C. – 54
(01:05:43) (2) Importance of Distinguishing Errors of Law From the Other Two Types of Errors Referred to in Section 686(1)(a) Cr. C. – 57
(01:07:40) (a) Error of Law (Section 686(1)(a)(ii) Cr. C.) – 60
(01:08:20) (i) Error in the Application of a Legal Rule – 61
(01:11:33) (ii) Related to the Proceedings Leading to the Conviction – 66
(01:12:00) (iii) Made by a Judge – 67
(01:17:33) (b) Miscarriage of Justice (Section 686(1)(a)(iii) Cr. C.) – 72
(01:18:47) (3) Curative Provisos in Section 686(1)(b) Cr. C. – 74
(01:21:22) E. Framework That Applies Where a Breach of Section 530(3) Cr. C. Is Raised for the First Time on Appeal – 78
(01:21:49) (1) What the Accused Must Show to Justify Appellate Intervention – 79
(01:27:27) (2) What the Crown Can Show to Have the Appeal Dismissed Nonetheless – 88
(01:32:16) (3) This Framework Helps Prevent the Risk of Instrumentalization – 94
(01:38:38) F. Application to This Case – 102
(01:39:12) (1) The Curative Proviso Can Apply – 103
(01:43:12) (2) The Crown Has Failed to Show That Mr. Tayo Tompouba’s Fundamental Right Was in Fact Respected – 110
(01:44:36) (a) Inconclusiveness of the Evidence – 113
(01:44:39) (i) Impact of a Breach of Section 530(3) Cr. C. on the Choice of Official Language – 113
(01:47:41) (ii) Timely Knowledge Otherwise Than Through Notice Under Section 530(3) Cr. C. – 118
(01:53:32) (b) The Inconclusiveness of the Evidence Must Benefit Mr. Tayo Tompouba – 125
(01:55:25) (3) Conclusion – 128
(01:56:37) V. Disposition – 129
(01:56:47) Joint Dissenting Reasons: Karakatsanis and Martin JJ.
(01:56:53) I. Overview – 130
(02:03:16) II. Analysis – 138
(02:03:56) A. Section 530 of the Criminal Code – 139
(02:09:17) B. Section 686 of the Criminal Code – 146
(02:26:21) C. Characterizing the Right in Section 530(3) – 167
(02:30:21) D. Characterizing Non-Compliance With Section 530(3) – 172
(02:35:42) E. The Evidentiary Burden on the Appellant – 177
(02:46:16) III. Application – 189
(02:50:46) IV. The Trial Judge’s Duty Under Section 530(4) – 196
(02:53:41) V. Disposition – 201
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Criminal law — Trial — Language of accused
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Landlord/Tenant: Non-Payment of Rent.
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Civil procedure — Stay pending appeal — Security for costs
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Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:01:07) Canadian Natural Resources Limited v Fishing Lake Metis Settlement, 2024 ABCA 131 (April 22, 2024)
(0:06:37) Mowatt v British Columbia (Attorney General), 2024 BCCA 157 (April 26, 2024)
(0:10:11) Humberplex Developments Inc v Ontario (AG), 2024 ONSC 2335 (April 24, 2024)
Constitutional law — Charter of Rights — Independent and impartial tribunal
(00:00:58) Summary
(00:01:07) Facts and Procedural History
(00:03:27) Disposition
(00:03:32) Per Wagner C.J. and Côté, Rowe, Kasirer, Jamal and O’Bonsawin JJ.
(00:14:43) Per Karakatsanis J. (dissenting)
(00:22:26) Reasons for Judgment: Kasirer J. (Wagner C.J. and Côté, Rowe, Jamal and O’Bonsawin JJ. concurring)
(00:22:35) I. Overview – 1
(00:35:39) II. Background – 16
(00:41:09) III. Judicial History – 31
(00:41:11) A. Courts Martial – 31
(00:41:13) (1) R. v. Edwards, 2020 CM; R. v. Crépeau, 2020 CM; R. v. Fontaine, 2020 CM; and R. v. Iredale, 2020 CM – 31
(00:42:53) (2) R. v. Christmas, 2020 CM; and R. v. Proulx, 2020 CM – 33
(00:43:27) (3) R. v. Cloutier, 2020 CM; and R. v. Brown, 2021 CM – 34
(00:44:07) (4) R. v. Thibault, 2020 CM – 35
(00:44:21) B. Court Martial Appeal Court of Canada – 36
(00:44:24) (1) R. v. Edwards; R. v. Crépeau; R. v. Fontaine; R. v. Iredale, 2021 CMAC (“Edwards et al.”) – 36
(00:49:37) (2) R. v. Proulx; R. v. Cloutier, 2021 CMAC (“Proulx et al.”) – 45
(00:50:20) (3) R. v. Christmas, 2022 CMAC; R. v. Brown, 2022 CMAC; and R. v. Thibault, 2022 CMAC – 46
(00:51:05) IV. Issues and Submissions of the Parties – 47
(00:55:47) V. Relevant Constitutional and Statutory Provisions – 54
(01:06:09) VI. Analysis – 64
(01:06:11) A. Implications of Généreux – 64
(01:21:50) B. Do the Requirements in Sections 165.21 and 165.24(2) Meet the Standards of Judicial Independence and Impartiality Under Section 11(d) of the Charter? – 84
(01:22:05) (1) The Framework for Assessing the Independence of Military Judges – 84
(01:24:32) (2) The Three Essential Conditions of Judicial Independence Are Met Through Provisions of the NDA – 87
(01:32:53) (a) Security of Tenure – 99
(01:33:58) (i) The Concerns Identified in Généreux Have Been Addressed – 101
(01:35:33) (ii) Security Against Removal From Office Except for Cause – 103
(01:43:24) (b) Financial Security – 113
(01:44:39) (c) Administrative Independence – 115
(01:46:05) (3) Arguments Advanced by the Appellants That Impugn the Institutional Impartiality of Military Judges – 118
(02:09:43) VII. Conclusion – 149
(02:10:16) Dissenting Reasons: Karakatsanis J.
(02:10:21) I. Introduction – 150
(02:14:01) II. Background – 155
(02:16:01) III. Analysis – 160
(02:17:08) A. Legal Principles – 162
(02:23:26) B. The Disciplinary Framework Applicable to Military Judges – 174
(02:29:03) C. A Reasonable and Informed Person Would Apprehend Bias – 185
(02:33:36) D. The Existing Safeguards Are Insufficient – 194
(02:34:22) (1) The Oath of Office – 195
(02:35:56) (2) The Removal Process Through the MJIC – 199
(02:37:40) (3) The Presumption of Independence by Prosecution – 203
(02:40:50) IV. Conclusion – 208
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Constitutional law — Charter of Rights — Independent and impartial tribunal
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When is “Administrative Discrimination” Authorized by Law?
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An SCC case, mandamus in the FC, freedom of information in Alberta
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:00:15) Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13 (April 19, 2024)
(0:02:38) Westjet v Lareau, 2024 FCA 77 (April 19, 2024)
(0:06:14) Saravanabavanathan v Canada (Citizenship and Immigration) (April 10, 2024)
(0:08:12) Alberta Energy v Alberta (Information and Privacy Commissioner), 2024 ABKB 198 (April 12, 2024)
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Constitutional law — Charter of Rights — Freedom of association
Administrative law — Judicial review — Standard of review
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Constitutional law — Charter of Rights — Freedom of association
Administrative law — Judicial review — Standard of review
(00:00:12) Summary
(00:00:13) Facts and Procedural History
(00:02:12) Disposition
(00:02:15) Per Karakatsanis, Kasirer, Jamal and O’Bonsawin JJ.
(00:08:31) Per Per Wagner C.J. and Côté J.
(00:18:45) Per Rowe J.
(00:21:59) Reasons for Judgment: Jamal J. (Karakatsanis, Kasirer and O’Bonsawin JJ. concurring)
(00:22:06) I. Overview – 1
(00:27:19) II. Background – 10
(00:30:42) III. Analysis – 15
(00:31:25) A. The Framework for Applying Section 2(d) of the Charter – 17
(00:34:11) (1) A Review of This Court’s Jurisprudence – 21
(00:34:15) (a) Dunmore (2001) – 21
(00:36:45) (b) Health Services (2007) – 24
(00:38:03) (c) Fraser (2011) – 25
(00:41:51) (d) Mounted Police (2015) – 30
(00:43:08) (d) Mounted Police (2015) – 31
(00:43:35) (f) Saskatchewan Federation of Labour (2015) – 32
(00:43:56) (g) Summary – 33
(00:47:06) (2) Section 2(b) and Section 2(d) of the Charter Have Different Frameworks – 38
(00:50:19) B. Application – 45
(00:50:40) (1) The Association’s Claim Involves Activities Protected Under Section 2(d) – 46
(00:53:14) (2) The Legislative Exclusion Does Not Substantially Interfere With the Members of the Association’s Section 2(d) Activities – 50
(00:58:33) IV. Conclusion – 58
(00:59:10) Concurring Reasons: Côté J. (Wagner C.J. concurring)
(00:59:17) I. Introduction – 59
(01:02:00) II. Background – 64
(01:06:02) III. Judicial History – 71
(01:06:04) A. Administrative Labour Tribunal, 2016 QCTAT 6870 (Administrative Judge Zaïkoff) – 71
(01:11:27) B. Quebec Superior Court, 2018 QCCS 4781 (Lamarche J.) – 79
(01:14:04) C. Quebec Court of Appeal, 2022 QCCA 180 (Gagnon, Hogue and Beaupré JJ.A.) – 85
(01:16:17) IV. Issues – 91
(01:17:02) V. Analysis – 92
(01:17:04) A. Applicable Standard of Review – 92
(01:20:08) B. Content of Freedom of Association – 98
(01:33:46) C. The Association Is Seeking Positive State Action – 122
(01:39:28) D. Section 2(d) Framework – 133
(01:55:26) E. Does the Exclusion of the Association’s Members From the L.C. Regime Infringe Freedom of Association? – 154
(01:55:33) (1) The Association and Its Members Are Seeking Access to a Particular Labour Relations Regime, the L.C. – 154
(01:59:21) (2) The Exclusion in Section 1(l)(1) L.C. Does Not Have the Purpose or Effect of Substantially Interfering With the Freedom of Association of the Association’s Members – 160
(01:59:54) (a) The Purpose of the Exclusion in Section 1(l)(1) L.C. Is Not To Substantially Interfere With the Freedom of Association of the OSs as First‑Level Managers – 161
(02:08:06) (b) The Legislative Exclusion Does Not Have the Effect of Substantially Interfering With Freedom of Association – 172
(02:15:49) (3) On the Assumption That There Is Substantial Interference, the State Cannot Be Held Accountable for the Interference at the Third Step of the Dunmore Framework – 186
(02:24:18) VI. Disposition – 198
(02:24:40) Concurring Reasons: Rowe J.
(02:24:43) I. Introduction – 199
(02:26:43) II. The Distinction Between Positive and Negative Claims Under Section 2(d) – 203
(02:29:16) III. Reasons Why the Dunmore Framework Must Be Maintained – 208
(02:29:21) A. Nature of the Fundamental Freedoms – 208
(02:31:21) B. Absence of Direct State Action – 212
(02:35:37) C. Separation of Powers – 218
(02:37:04) IV. Conclusion – 220
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Habeas Corpus: What Is the Scope of the Peiroo Exception?
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Administrative law — Judicial review — Habeas corpus
(00:01:11) I. INTRODUCTION – 1
(00:02:04) II. BACKGROUND – 3
(00:04:29) III. COURT OF KING’S BENCH DECISION – 7
(00:09:36) IV. ISSUES – 9
(00:10:17) V. RELEVANT LEGISLATION – 11
(00:19:06) VI. ANALYSIS – 12
(00:19:08) A. Standard of review – 12
(00:19:16) B. The Peiroo exception – 13
(00:23:35) C. The constitutional issue – 19
(00:25:20) D. Case law – 22
(00:27:17) (1) Saskatchewan – 24
(00:36:50) (2) Ontario – 32
(00:42:08) (3) Quebec – 35
(00:43:33) (4) British Columbia – 37
(00:49:54) (5) Nova Scotia – 41
(00:53:40) (6) Alberta – 43
(01:04:05) (7) Supreme Court of Canada – 52
(01:14:11) E. A complete, comprehensive and expert procedure – 59
(01:26:52) VII. CONCLUSION – 71
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Duty to consult, mandamus in the Federal Court
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:00:11) First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2024 YKCA 5 (April, 14, 2024)
(0:02:57) Knezevic v British Columbia (Assessor of Area #01-Capital), 2024 BCSC 561 (April 8, 2024)
(0:05:30) Bedard v Canada (Attorney General), 2024 FC 570 (April 10, 2024)
(0:08:34) Ulrich v Ontario (CEO of FSRA), 2024 CanLII 30557 (ONFST) (April 11, 2024)
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Aboriginal law — Treaty rights — Indian reserves — Breach
Constitutional law — Aboriginal peoples — Treaty rights
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Aboriginal law — Treaty rights — Indian reserves — Breach
Constitutional law — Aboriginal peoples — Treaty rights
(00:00:08) Summary
(00:00:09) Facts and Procedural History
(00:02:30) Disposition
(00:02:35) The judgment of the Court
(00:08:32) Reasons for Judgment: O’Bonsawin J. (Wagner C.J. and Côté, Rowe, Martin, Kasirer and Jamal JJ. concurring) – 1
(00:08:37) I. Overview – 1
(00:12:28) II. Facts – 6
(00:13:01) A. The Blood Tribe and Blood Tribe Reserve Number 148 – 7
(00:13:38) B. Treaty Number 7 and the Creation of Blood Tribe Reserve Number 148 – 9
(00:14:15) C. Locating and Surveying Blood Tribe Reserve Number 148 – 11
(00:16:16) D. Negotiations and Initial Legal Action – 15
(00:18:37) III. Procedural History – 20
(00:18:39) A. Federal Court – 20
(00:21:16) B. Federal Court of Appeal – 25
(00:23:44) IV. Issues – 29
(00:24:41) V. Analysis – 31
(00:26:00) A. The Scope of This Appeal – 33
(00:28:22) B. Was a Breach of the TLE Actionable in Canadian Courts Prior to the Coming Into Force of Section 35(1) of the Constitution Act, 1982? – 36
(00:29:05) (1) The Enforceability of Treaty Number 7 at Common Law – 37
(00:31:41) (a) Caselaw Demonstrates That Breach of Treaty Claims Were Actionable Pre-1982 – 41
(00:39:38) (b) Treaty Number 7 Was Enforceable and Actionable at Common Law – 51
(00:40:21) (2) The Impact of Section 35(1) of the Constitution Act, 1982 – 52
(00:45:19) C. Were the Limitation Periods in Alberta’s Limitation of Actions Act Effective to Bar the Blood Tribe’s TLE Claim Prior to the Coming Into Force of Section 35(1) of the Constitution Act, 1982? – 58
(00:47:55) D. The Availability and Scope of Declaratory Relief – 62
(00:49:26) (1) The Discretionary Nature of Declaratory Relief – 65
(00:52:19) (2) The Value of Declaratory Relief in Breach of Treaty Cases – 70
(00:55:05) (3) Declaratory Relief Is Warranted for the Blood Tribe – 75
(01:01:35) VI. Disposition – 84
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Civil Litigation: Appellate Review of Civil Juries
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Civil trials – Standard of Review – Jury Verdict
(0:00:09) Reasons for Judgment
(0:00:12) I. Overview
(0:00:55) II. Mr. Henry's medical history
(0:10:44) III. The trial of the action
(0:13:56) IV. The grounds of appeal
(0:14:41) A. Was the jury's verdict that the appellant breached the standard of care plainly unreasonable and unjust?
(0:14:47) (1) The standard of review of civil jury verdicts
(0:16:10) (2) The jury's finding that the appellant breached the standard of care in this case i snot plainly unreasonable and unjust
(0:25:30) B. Do the jury's answers reveal that it did not act judicially?
(0:25:53) (1) The principles applicable to review of a jury's answers
(0:28:09) (2) The jury's answers, read contextually and generously, show that it acted judicially
(0:41:16) C. The jury's award for future income loss should not be set aside
(0:46:18) V. Disposition
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HRTO/labour jurisdiction, reasons.
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:00:11) London District Catholic School Board v Weilgosh, 2023 ONSC 3857 (March 13, 2024)
(0:04:49) Eloufy v The Association of Professional Engineers And Geoscientists of Saskatchewan, 2024 SKKB 45 (March 14, 2024)
(0:07:19) Mitanidis v Ontario (Minister of Transportation), 2024 ONSC 1838 (March 27, 2024)
Financial institutions — Banks — Letters of credit
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Financial institutions — Banks — Letters of credit
(00:01:05) Summary
(00:01:15) - Facts and Procedural History
(00:05:16) - Disposition
(00:05:21) - Per Wagner C.J. and Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
(00:12:43) - Per Karakatsanis and Côté JJ. (dissenting)
(00:22:45) Reasons for Judgment: Kasirer J. (Wagner C.J. and Rowe, Martin, Jamal, O’Bonsawin and Moreau JJ. concurring)
(00:22:54) I. Overview – 1
(00:30:09) II. Background – 14
(00:30:19) A. The Relevant Actors – 15
(00:31:54) B. The Underlying Contracts – 19
(00:32:56) C. The Letters of Credit – 21
(00:34:51) D. The Initial Dispute – 24
(00:36:24) E. Applications for Interim Relief – 28
(00:38:16) F. HMOD’s Final Demand for Payment – 31
(00:40:47) G. The Final ICC Arbitral Award and Subsequent Proceedings – 36
(00:44:48) III. Judicial History – 44
(00:44:50) A. Quebec Superior Court – 44
(00:47:04) B. Quebec Court of Appeal – 49
(00:47:06) (1) Mainville JA, Baudouin JA Concurring – 49
(00:50:46) (2) Hamilton JA, Dissenting – 55
(00:53:23) IV. Issues and Grounds of Appeal – 62
(00:55:40) V. Analysis – 67
(00:55:42) A. The Law Relating to Letters of Credit in Canada – 67
(00:59:59) (1) Autonomy and Strict Compliance – 73
(01:00:08) (a) Autonomy of the Letter of Credit – 74
(01:02:12) (b) Strict Compliance – 77
(01:03:54) (2) The Fraud Exception to the Autonomy of Letters of Credit – 80
(01:09:17) B. Application – 88
(01:25:04) (1) HMOD Engaged in Fraud as a Third Party to the Letter of Counter-Guarantee – 112
(01:35:44) (2) HMOD’s Fraud Became Eurobank’s Own – 127
(01:47:49) (3) Conclusion on the Fraud Exception – 143
(01:48:32) VI. Impact of the Nullity of the Offsets Contract on the Letter of Counter-Guarantee – 144
(01:51:57) VII. Disposition – 151
(01:52:11) Dissenting Reasons: Côté J. (Karakatsanis J. concurring)
(01:52:16) I. Overview – 152
(01:55:08) II. Factual and Legal Context – 158
(01:55:11) A. The Relevant Contractual Arrangements – 158
(01:56:51) B. Chronology of Events – 161
(02:07:06) III. Procedural History – 198
(02:07:09) A. Quebec Superior Court – 198
(02:08:39) B. Quebec Court of Appeal – 202
(02:09:45) (1) Mainville JA, Baudouin JA Concurring – 202
(02:11:48) (2) Hamilton JA, Dissenting – 204
(02:11:53) IV. Issues – 210
(02:12:13) V. Analysis – 211
(02:13:40) A. Demand Guarantees Are Autonomous – 214
(02:17:37) B. The Fraud Exception to the Principle of Autonomy – 219
(02:19:00) (1) Fraud Is a High Bar – 221
(02:22:17) (2) Clear or Obvious Knowledge of Fraud – 224
(02:26:25) (3) Third‑Party Fraud in the Context of Counter‑Guarantees – 230
(02:27:24) VI. Application – 232
(02:27:58) A. The Impact of the Judgments of the Greek Courts for the Purposes of the Letter of Counter‑Guarantee – 233
(02:46:51) B. HMOD’s Demand for Payment Was Neither Fraudulent Nor Tantamount to Fraud – 252
(02:47:13) (1) HMOD’s Written Undertaking – 253
(02:53:58) (2) HMOD’s Breach of the Provisional Orders – 262
(02:58:20) (3) The Timing of HMOD’s Demand for Payment – 269
(03:03:51) C. Even if HMOD’s Conduct Was Fraudulent or Tantamount to Fraud, Eurobank Was Innocent of That Fraud – 276
(03:04:57) (1) Eurobank’s Knowledge – 277
(03:10:43) (2) Eurobank’s Alleged Participation – 285
(03:14:52) (3) The Apportionment of Risk Between the Parties – 291
(03:17:46) D. Impact of the Declaration of Nullity of the Offsets Contract on the Letters of Guarantee and Counter‑Guarantee – 295
(03:20:32) VII. Conclusion – 299
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Multiple matters, same judges – When is judicial impartiality displaced?
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Courts – Judges – Reasonable apprehension of bias
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Courts – Judges – Reasonable apprehension of bias
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Licensed under CC BY-SA 4.0 LEGAL CODE; originally published at Verfassungsblog.
Constitutional law — Charter of Rights — Application — Aboriginal Peoples
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Constitutional law — Charter of Rights — Application — Right to equality
(0:00:53) Facts and Procedural History
(0:03:17) Disposition
(0:03:26) Per Wagner C.J. and Côté, Kasirer and Jamal JJ.
(0:25:53) Per Martin and O’Bonsawin JJ. (dissenting on the appeal)
(0:42:28) Per Rowe J. (dissenting on the cross‑appeal)
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Constitutional law — Charter of Rights — Application — Aboriginal Peoples
(00:00:53) Reasons Dissenting in Part: Rowe J. – 417
(00:00:56) I. Overview – 417
(00:06:00) II. The Applicability of the Charter Is Determined Under Section 32(1) – 426
(00:08:26) III. The Charter Applies to the Federal and Provincial Governments and Entities or Activities With a Significant Connection to Those Governments – 431
(00:11:01) A. Text of Section 32(1) – 434
(00:12:32) B. Section 32(1)’s History and Place Within the Structure of the Constitution Act, 1982 – 437
(00:13:06) (1) The Charter Was Designed by the Federal and Provincial Governments, for the Federal and Provincial Governments – 438
(00:16:10) (2) Indigenous Peoples Were Addressed Separately Within the Constitution Act, 1982 – 442
(00:23:42) C. Jurisprudence on the Purpose and Scope of Section 32(1) – 454
(00:28:54) (1) The Nature of the Entity – 459
(00:35:18) (2) The Nature of the Activity – 466
(00:37:11) D. Summary – 469
(00:37:44) IV. The VGFN Arrangements Do Not Establish a Significant Connection to Either the Federal or the Yukon Government – 470
(00:40:30) A. The Nature of the VGFN – 474
(00:53:43) B. The Nature of the Residency Requirement – 491
(00:58:10) C. Summary – 496
(00:58:51) V. A Proper Application of Section 32(1) Promotes the Objective of Reconciliation – 497
(01:07:30) VI. The VGFN Agreed to the Enactment of Its Own Rights Protections, Rather Than the Application of Charter Protections – 508
(01:08:10) A. The VGFN Arrangements Do Not Contain an Agreement as to the Applicability of the Charter – 509
(01:15:14) B. The VGFN Has Enacted Its Own Rights Protections – 517
(01:19:13) VII. Conclusion – 522
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Constitutional law — Charter of Rights — Application — Aboriginal Peoples
(00:00:54) Joint Reasons Dissenting in Part: Martin and O’Bonsawin JJ. – 232
(00:00:59) I. Overview – 232
(00:05:52) II. Section 32(1) of the Charter – 239
(00:09:54) A. The Charter Is Directed at the Relationship Between the Governed and Those Who Govern – 246
(00:09:59) (1) Determining the Scope of Section 32(1) – 246
(00:17:09) (2) The Eldridge Framework for Identifying Charter Applicability – 256
(00:18:55) (3) The Eldridge Framework and Indigenous Governments – 260
(00:24:37) (4) The Charter Applies to Governmental Action in Respect of “Matters Within the Authority” of Parliament and the Provincial Legislatures – 268
(00:28:14) B. Application of Section 32(1) to the VGFN – 273
(00:28:18) (1) Delegation Does Not Accurately Describe the Relationship Between the Crown and Self-Governing Indigenous Nations – 273
(00:30:41) (2) The VGFN Is a Government by Its Very Nature – 277
(00:33:23) C. Conclusion on Section 32(1) – 281
(00:34:29) III. Section 25 of the Charter – 283
(00:37:32) A. How Does Section 25 Operate? – 286
(00:38:41) (1) A Purposive Interpretation – 288
(00:40:04) (2) The Text – 290
(00:42:17) (3) The Purpose and History of Section 25 – 294
(00:54:40) (4) Jurisprudence on the Interpretation of Constitutional Rights – 309
(00:56:32) (5) Post-1982 Constitutional Engagement – 312
(01:01:11) (6) International Sources – 317
(01:02:53) (7) Conclusion on the Operation of Section 25 – 320
(01:06:21) B. Rights Within the Scope of Section 25 – 325
(01:16:14) C. Summary of the Operation and Scope of Section 25 – 338
(01:19:49) IV. Application of Sections 15(1) and 25 to This Case – 344
(01:20:06) A. Is There a Section 15(1) Infringement? – 345
(01:21:27) (1) Step One — Establishing a Distinction Based on a Protected Ground – 348
(01:23:46) (a) Application – 352
(01:23:48) (i) The Residency Requirement Creates a Distinction – 352
(01:24:06) (ii) The Aboriginality-Residence Ground Applies – 353
(01:31:39) (2) Step Two — Establishing Discrimination – 364
(01:32:51) (a) Role of Legislative Context – 367
(01:35:26) (b) Application – 370
(01:35:28) (i) The Distinction Denies a Benefit – 370
(01:36:17) (ii) The Benefit Is Denied in a Discriminatory Manner – 372
(01:46:29) B. Does the Residency Requirement Fall Within the Scope of Section 25? – 385
(01:49:56) C. In the Alternative, Does Section 25 Operate to Protect the Residency Requirement? – 392
(01:51:50) V. Section 1 of the Charter – 396
(01:53:23) A. Pressing and Substantial Objective – 398
(01:53:58) B. Proportionality – 399
(01:54:00) (1) Rational Connection – 399
(01:55:41) (2) Minimal Impairment – 402
(01:59:29) (3) Salutary and Deleterious Effects – 410
(02:01:23) VI. Conclusion – 414
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Constitutional law — Charter of Rights — Application — Aboriginal Peoples
(00:00:45) Joint Reasons for Judgment: Kasirer and Jamal JJ. (Wagner C.J. and Côté J. concurring) – 1
(00:01:01) I. Overview – 1
(00:05:39) II. Background – 7
(00:05:41) A. The Parties – 7
(00:06:58) B. Ms. Dickson’s Constitutional Challenge – 10
(00:08:22) C. Legal Framework for VGFN Self‑Government and the Residency Requirement – 12
(00:09:21) (1) The Umbrella Agreement – 14
(00:11:12) (2) The VGFN Final Agreement – 17
(00:13:09) (3) The VGFN Self‑Government Agreement, the Self‑Government Legislation, and the VGFN Constitution – 19
(00:13:16) (a) The VGFN’s Self‑Government Agreement – 19
(00:15:04) (b) The Self‑Government Legislation – 23
(00:17:13) (c) The VGFN Constitution – 24
(00:19:13) III. Judicial History – 28
(00:19:15) A. Supreme Court of Yukon – 28
(00:22:37) B. Court of Appeal of Yukon – 33
(00:26:14) IV. Relevant Constitutional Provisions – 38
(00:28:55) V. Issues – 39
(00:29:44) VI. Analysis – 40
(00:29:46) A. Does the Charter Apply to the VGFN’s Residency Requirement? – 40
(00:29:51) (1) Section 32 sub 1 of the Charter — General Principles – 40
(00:32:48) (2) Indigenous Self-Government and the Charter – 46
(00:34:28) (a) The Charlottetown Accord of 1992 – 48
(00:35:40) (b) Federal Government Policy Since 1995 – 49
(00:38:03) (c) The Legal Policy Debate About Applying the Charter to Indigenous Governments – 51
(00:41:52) (d) Courts Have Consistently Applied the Charter to Indigenous Governments – 57
(00:42:28) (3) The Eldridge Framework for Applying Section 32(1) of the Charter – 60
(00:43:32) (a) First Branch — Government “by Nature” or “Control” – 63
(00:46:31) (b) Second Branch — “Governmental Activity” – 65
(00:49:10) (c) Summary – 69
(00:50:08) (4) Application of Section 32(1) to This Case – 71
(00:52:28) (a) The Charter Applies to the Residency Requirement Because the VGFN Is “Government” by Nature – 76
(01:07:57) (b) The Charter Also Applies to the Residency Requirement as a “Government Activity” – 94
(01:09:25) (c) Other Arguments for Applying the Charter – 97
(01:11:41) (d) Conclusion – 101
(01:12:18) B. Sections 15, 25, and 1 of the Charter – 102
(01:12:23) (1) Overview – 102
(01:21:22) (2) Purpose of Section 25 – 113
(01:25:45) (a) Text of Section 25 – 119
(01:35:06) (b) Character and Larger Objects of the Charter – 130
(01:36:39) (c) Historical Origins, Meaning and Purpose of Aboriginal and Treaty Rights – 132
(01:41:05) (d) Extrinsic Evidence – 140
(01:42:50) (e) Conclusion on the Purpose of Section 25 – 143
(01:43:35) (3) Rights Within the Scope of Section 25 – 144
(01:48:36) (4) Operation of Section 25 – 152
(01:49:16) (a) The Effect of Section 25 – 153
(02:03:22) (b) The Order of Analysis – 174
(02:06:32) (5) Summary of the Section 25 Framework – 178
(02:08:12) (6) Application of Sections 15(1) and 25 to This Case – 184
(02:09:27) (a) Section 15(1) of the Charter Is Prima Facie Breached – 188
(02:21:42) (b) The Residency Requirement Falls Within the Scope of Section 25 as an “Other” Right – 204
(02:26:19) (c) The Residency Requirement Protects and Recognizes Interests Associated With Indigenous Difference – 210
(02:32:47) (d) The VGFN Has Established That the Conflict Between the Two Rights Is Irreconcilable – 219
(02:36:40) (e) No Other Limits Apply – 227
(02:37:37) VII. Conclusion and Disposition – 229
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When can a Crown (or other Public Servant) seek elected office?
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Elections — Remedies — Mootness
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Standard of review for procedural fairness.
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:00:46) Sran v University of Saskatchewan Academic Misconduct Appeal Board, 2024 SKCA 32 (March 20, 2024)
(0:04:21) Association of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Ministry of the Attorney General), 2024 ONSC 1555 (March 18, 2024)
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Civil Litigation/Class Actions: Real and Substantial Connection; Standard of Review
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Jurisdiction — Territorial competence — Real and substantial connection
(0:00:21) Summary
(0:01:14) Reasons for Judgment
(0:01:18) I. Overview
(0:03:44) II. Background
(0:03:46) A. The Notice of Civil Claim
(0:07:29) B. Altria's Jurisdictional Application
(0:07:48) C. Altria's Evidence
(0:10:58) D. The Respondents' Evidence
(0:13:42) E. The Chambers Judgment
(0:16:19) (1) Stage 1 of the Jurisdictional Analysis
(0:19:54) (2) Stage 2 of the Jurisdictional Analysis
(0:21:39) III. On Appeal
(0:22:42) IV. Standard of Review
(0:23:25) V. Analysis
(0:23:27) A. Issue 1: Did the Judge Fail to Consider Materially Relevant Evidence?
(0:24:10) (1) Were the Judge's Reasons Insufficient?
(0:26:26) (2) Did the Judge Ignore or Misconceive Material Evidence?
(0:30:43) B. Issue 2: Did the Judge Incorrectly Apply the Ewert Framework?
(0:30:47) (1) Did the Judge Reverse the Onus at Stage 1?
(0:36:50) (2) Did the Judge Fail to Address the Different Considerations at Stage 2?
(0:40:08) VI. Disposition
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The latest major SCC decision.
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:00:46) Yatar v TD Insurance Meloche Monnex, 2024 SCC 8(March 15, 2024)
(0:12:16) GSI Global Shelters Developments Ltd v RuralMunicipality of Last Mountain Valley Number 250, 2024 SKCA 30 (March 13,2024)
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Administrative law — Judicial review — Limited statutory right of appeal on questions of law
(00:00:21) Facts and Procedural History
(00:02:43) Disposition
(00:02:49) Judgment of the Court
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Administrative law — Judicial review — Limited statutory right of appeal on questions of law
(00:00:27) I. Overview – 1
(00:02:58) II. Factual Context – 6
(00:03:00) A. The Underlying Insurance Claim – 6
(00:03:43) B. Denial of Requested Benefits and Subsequent Proceedings – 7
(00:06:20) III. Judicial History – 11
(00:06:22) A. Licence Appeal Tribunal – 11
(00:08:56) B. Ontario Superior Court of Justice (Divisional Court) – 17
(00:10:58) C. Court of Appeal for Ontario – 23
(00:13:13) IV. Issues on Appeal – 30
(00:13:42) V. Submissions of the Parties – 31
(00:13:45) A. Ms. Yatar – 31
(00:15:00) B. TD Insurance and Licence Appeal Tribunal – 34
(00:17:20) VI. Analysis – 41
(00:17:22) A. Standard of Review – 41
(00:18:12) B. The Existence of a Circumscribed Right of Appeal Does Not, on Its Own, Preclude Applications for Judicial Review – 43
(00:21:50) C. The Exercise of Discretion To Grant Relief on Judicial Review – 51
(00:30:11) D. The LAT Adjudicator’s Decision Was Unreasonable – 68
(00:33:39) VII. Conclusion – 77
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International Commercial Arbitration: Re-litigating; Abuse of Process
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International commercial arbitration — Abuse of process — Re-litigating
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Parties submissions are very important.
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:00:00) Front Matter
(0:00:43) Halton (Regional Municipality) v Canada (Environment), 2024 FC 348 (March 1, 2024)
(0:05:28) Rameau c Canada (Procureur général), 2024 CAF 40 (March 7, 2024)
(0:08:30) Penate v Martoglio, 2024 ONCA 166 (March 1, 2024)
(0:10:04) United Food and Commercial Workers Union Canada, Local 864 v. Sproule Lumber, 2024 NSCA 27 (March 7, 2024)
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Criminal law — Appeals — Standard for appellate intervention — Credibility and reliability assessment
(0:00:00) Front Matter
(0:00:20) Facts & Procedural History
(0:01:39) Disposition
(0:01:43) Per Wagner C.J. and Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.
(0:11:31) Per Rowe J.
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Criminal law — Appeals — Standard for appellate intervention — Credibility and reliability assessment
(00:00:20) Reasons for Judgment: Martin J. (Wagner C.J. and Côté, Kasirer, Jamal and O’Bonsawin JJ.)
(00:00:28) I. Introduction – 1
(00:03:13) II. Background – 5
(00:03:14) A. Mr. Kruk – 5
(00:04:15) (1) Trial Decision – 7
(00:06:02) (2) British Columbia Court of Appeal Decision – 9
(00:07:03) B. Mr. Tsang – 10
(00:08:34) (1) Trial Decision – 13
(00:10:04) (2) British Columbia Court of Appeal Decision – 15
(00:10:57) III. Analysis – 16
(00:12:28) A. The Proposed Rule Against Ungrounded Common-Sense Assumptions – 19
(00:19:15) B. The Proposed Rule Against Ungrounded Common-Sense Assumptions Should Not Be Adopted – 27
(00:19:55) (1) The Proposed Rule Is Not a Logical Extension of the Prohibition Against Myths and Stereotypes About Sexual Assault Complainants – 29
(00:21:04) (a) The History of Myths and Stereotypes Against Complainants – 31
(00:31:47) (b) The Proposed Rule Should Not Be Adopted as a Corollary to the Prohibition Against Myths and Stereotypes – 45
(00:32:17) (i) The Proposed Rule Disregards the Distinct Character of Myths and Stereotypes – 46
(00:43:38) (ii) The Accused’s Rights Remain Protected – 58
(00:50:04) (iii) The Difference Between Factual and Legal Speculation – 67
(00:51:38) (2) The Proposed Rule Runs Contrary to Established Standards of Review and Is Counterproductive to Proper Testimonial Assessment – 69
(00:52:55) (a) The Role of Common Sense in Evaluating a Witness’s Testimony – 71
(01:01:22) (b) Established Standards of Review for Credibility and Reliability Assessments – 80
(01:11:16) (3) Summary – 92
(01:17:03) IV. Application – 100
(01:18:13) A. Mr. Kruk – 102
(01:25:17) B. Mr. Tsang – 110
(01:37:26) V. Disposition – 127
(01:37:35) Concurring Reasons: Rowe J.
(01:37:38) I. Overview – 128
(01:42:02) II. Jurisprudential Background – 134
(01:46:02) III. Principles of the Fact-Finding Process – 141
(01:46:38) A. Foundational Concepts – 142
(01:52:20) B. Generalized Expectations in the Fact-Finding Process – 151
(01:58:31) IV. Framework for Appellate Review of the Use of Generalized Expectations in the Fact-Finding Process – 160
(02:01:09) A. Did the Trial Judge Rely on a Generalized Expectation in Their Reasoning Process? – 165
(02:05:17) (1) Materiality and the Curative Proviso – 171
(02:11:56) B. If the Trial Judge Relied on a Generalized Expectation, Was the Expectation Reasonable? – 181
(02:18:54) (1) Question of Law or Fact? – 190
(02:30:59) (2) The “Rules” in JC – 209
(02:34:49) C. Did the Trial Judge Rely on a Generalized Expectation as Itself a Conclusive and Indisputable Fact? – 214
(02:39:23) V. Application to These Appeals – 220
(02:39:36) A. Mr. Kruk – 221
(02:46:57) B. Mr. Tsang – 233
(02:48:52) (1) A Person Would Not Ask To Be Spanked While Engaging in Sexual Foreplay “Out of the Blue” – 236
(02:51:38) (2) A Controlling Person Would Not Refrain From Engaging in Vaginal Intercourse Because of the Absence of a Condom – 240
(02:55:17) (3) A Person Would Not Abruptly and Unceremoniously Leave Another With Whom He Had Engaged in Consensual Sex – 245
(02:58:33) VI. Conclusion – 249
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Medical Malpractice: Removing Jury; Providing Adequate Reasons
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Jury trial — Removing jury — Adequacy of reasons
(00:00:20) A. Overview – 1
(00:02:09) B. Factual Background – 6
(00:04:17) C. Procedural History & Trial Decisions – 11
(00:07:10) D. Analysis – 17
(00:07:35) (1) The Law on Discharging the Jury and Providing Adequate Reasons – 18
(00:11:24) (2) The Reasons for Discharging the Jury were Inadequate – 25
(00:17:24) (3) A New Trial is Necessary – 35
(00:18:47) E. Conclusion – 38
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Aftermath of SCC Mandate Letters Case
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:00:00) Front Matter
(0:00:42) British Columbia (Minister of Public Safety) v British Columbia (Information and Privacy Commissioner), 2024 BCSC 345 (February 29, 2024)
(0:04:56) Akbari et al v Blenkinsop et al, 2024 ONSC 1184 (February 27, 2024)
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Constitutional law — Charter of Rights — Search and seizure
(0:00:20) Facts
(0:01:33) Disposition
(0:01:41) Per Karakatsanis, Martin, Kasirer, Jamal and Moreau JJ.
(0:09:08) Per Wagner C.J. and Côté, Rowe and O’Bonsawin JJ. (dissenting)
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Constitutional law — Charter of Rights — Search and seizure
(00:00:19) Reasons for Judgment: Karakatsanis J. (Martin, Kasirer, Jamal and Moreau JJ. concurring) – 1
(00:00:26) I. Introduction – 1
(00:08:47) II. Background – 15
(00:11:58) III. Decisions Below – 23
(00:12:01) A. Court of Queen’s Bench of Alberta – 23
(00:13:00) B. Court of Appeal of Alberta – 25
(00:14:24) IV. Analysis – 28
(00:15:45) A. Legal Framework – 29
(00:17:36) B. The Subject Matter of the Search – 34
(00:22:52) C. Was the Expectation of Privacy Reasonable? – 44
(00:23:30) (1) Control Over the Subject Matter – 46
(00:24:43) (2) The Place of the Search – 49
(00:25:29) (3) The Private Nature of the Subject Matter – 51
(00:37:47) (4) Does the Balance Weigh in Favour of a Reasonable Expectation of Privacy? – 71
(00:49:50) V. Disposition – 92
(00:50:02) Dissenting Reasons: Côté J. (Wagner C.J. and Rowe and O’Bonsawin JJ. concurring) – 93
(00:50:08) I. Introduction – 93
(00:51:31) II. Facts – 96
(00:55:11) III. Judicial History – 104
(00:55:13) A. Court of Queen’s Bench of Alberta – 104
(00:57:08) B. Court of Appeal of Alberta – 108
(00:57:10) (1) Majority (Schutz and Crighton JJA) – 108
(00:58:45) (2) Dissent – 110
(01:01:27) IV. Issue – 116
(01:01:40) V. Analysis – 117
(01:04:24) A. Subject Matter of the Search – 122
(01:17:40) B. Objective Reasonableness of the Expectation of Privacy – 141
(01:20:10) (1) Private Nature of the Subject Matter – 147
(01:22:20) (2) Control Over the Subject Matter – 152
(01:24:05) (3) Place of the Search – 156
(01:25:10) (4) Conclusion on Reasonable Expectation of Privacy – 158
(01:29:45) VI. Conclusion – 165
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Class Actions: Standing to Appeal; Motions to Quash
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Class Actions: Standing to Appeal; Motions to Quash
(0:00:22) Summary
(0:00:45) Reasons for Judgment
(0:00:49) I. Introduction
(0:03:47) II. Background
(0:03:49) A. The Litigation
(0:05:04) B. The Purdue Canada Settlement
(0:06:28) C. The Bankruptcy Proceedings
(0:09:52) D. The Settlement Approval Hearing
(0:12:44) E. Reasons for Judgment
(0:12:56) (1) Intervention Application
(0:17:13) (2) Settlement Approval
(0:19:38) F. The Application
(0:20:09) G. Sequencing Decisions
(0:21:40) H. Positions on Application to Quash the Appeals
(0:23:34) III. Discussion
(0:23:35) A. Should the applications to quash proceed in advance of the appeals?
(0:23:40) (1) Statutory Framework
(0:24:39) (2) Submissions of Lac La Ronge
(0:27:45) (3) Analysis
(0:30:12) B. Does this court have jurisdiction to hear the appeals? If so, should they be quashed in any event?
(0:30:17) (1) Governing Principles
(0:36:26) (2) Submissions of Lac La Ronge
(0:41:06) (3) Analysis
(0:45:41) C. Should this court award costs in favour of the Province and Purdue Canada?
(0:46:27) IV. Conclusion
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Charter values (another one), reasonableness review
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
(0:00:00) Front Matter
(0:00:44) New Blue Ontario Fund v Ontario (Chief Electoral Officer), 2024 ONSC 1048 (February 2, 2022)
(0:07:05) Canada (Public Safety and Emergency Preparedness) v Abdi, 2024 FC 279 (February 16, 2024)
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Family law: Jurisdiction
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Family law — Jurisdiction — Divorce Act, RSC 1985
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(0:00:00) Front Matter
(0:00:47) Pepa v Canada (Citizenship and Immigration), 2023 FCA 102
(0:07:15) Karl Wilson v Attorney General of New Brunswick, 2024 NBKB 27
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Single judge applications: Permission to appeal; Extensions of time
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Permission to appeal — Extensions of time
(0:00:21) Reasons for Decision of Ho J
(0:00:35) I. Background
(0:01:33) II. The Costs Award
(0:03:09) III. Proposed Grounds of Appeal
(0:04:20) IV. Test for Extension of Time
(0:05:11) V. Test for Permission to Appeal Under Rule 14.5(1)
(0:06:57) VI. Analysis
(0:11:03) VII. Conclusion
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Mark Mancini's Sunday Evening Administrative Review is available on Substack.
Statutory interpretation cases
(0:00:00) Front Matter
(0:00:22) Western Canada Wilderness Committee v. Canada (Environment and Climate Change), 2024 FC 167 (February 1, 2024)
(0:04:39) Vancouver (City) v. Pender Lodge Holdings Limited, 2024 BCCA 37 (February 2, 2023)
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Constitutional law — Division of powers — Aboriginal peoples — Child and family services
(0:00:00) Front Matter
(0:00:24) Facts
(0:02:37) The Court
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Constitutional law — Division of powers — Aboriginal peoples — Child and family services
(00:00:00) Front Matter
(00:00:24) Judgment of the Court
(00:00:27) I. Introduction – 1
(00:11:02) II. Context – 10
(00:17:43) III. Overview of the Act – 19
(00:25:37) IV. The Reference Question – 28
(00:26:22) V. Opinion of the Quebec Court of Appeal (2022 QCCA 185) – 30
(00:29:18) VI. Appeals – 36
(00:30:11) VII. Analysis – 37
(00:30:50) A. Characterization — What Is the Pith and Substance of the Act? – 39
(00:30:54) (1) Analytical Framework – 39
(00:31:57) (2) Pith and Substance of the Act – 41
(00:32:19) (a) Purpose of the Act – 42
(00:32:21) (i) Intrinsic Evidence – 42
(00:36:15) (ii) Extrinsic Evidence – 48
(00:40:50) (b) Effects of the Act – 54
(00:40:52) (i) Legal Effects – 54
(00:54:06) (ii) Practical Effects – 75
(01:03:27) (c) Conclusion on the Pith and Substance of the Act – 91
(01:04:45) B. Classification Under Section 91(24) of the Constitution Act, 1867 – 93
(01:05:43) (1) Sections 1 to 17 of the Act Need Not Be Classified Under Section 92 of the Constitution Act, 1867 – 96
(01:10:52) (2) Sections 8(a) and 18(1) and the Associated Provisions Do Not Purport to Amend the Constitution – 104
(01:23:27) (3) The Incorporation Provisions in Section 21 Do Not Alter the Architecture of the Constitution – 119
(01:31:29) (4) The Section 22(3) Paramountcy Provision Does Not Alter the Architecture of the Constitution – 131
(01:33:14) VIII. Conclusion – 134
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A new SCC case, general questions of central importance
(00:00:00) Front Matter
(00:00:47) Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2024 SCC 4 (February 2, 2024)
(00:10:19) Anderson v Strathcona (Regional District), 2024 BCCA 23 (January 24, 2023)
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Access to information — Exemptions — Cabinet records — Mandate letters
(00:00:12) Front Matter
(00:00:23) Facts
(00:01:18) Disposition
(00:01:23) Per Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O’Bonsawin JJ.
(00:07:37) Per Côté J.
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Access to information — Exemptions — Cabinet records — Mandate letters
(00:00:12) Front Matter
(00:00:23) Facts
(00:01:18) Disposition
(00:01:23) Per Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O’Bonsawin JJ.
(00:07:37) Per Côté J.
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Mark Mancini's Sunday Evening Administrative Review is available on Substack.
Emergencies Act ruling
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Charter of Rights — Stay of proceedings — Abuse of process — Infringement of right to counsel
(0:00:20) Facts
(0:02:14) Disposition
(0:02:17) Per Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ.
(0:11:33) Per Rowe J.
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Charter of Rights — Stay of proceedings — Abuse of process — Infringement of right to counsel
(0:00:19) Reasons for Judgment: O’Bonsawin J. (Wagner C.J. and Karakatsanis, Martin, Kasirer and Jamal JJ. concurring)
(0:00:29) I. Overview – 1
(0:04:10) II. Factual Background – 6
(0:09:26) III. Judicial History – 16
(0:09:28) A. Quebec Superior Court, 2018 QCCS 6155 (Dumas J) – 16
(0:12:06) B. Quebec Superior Court, 2019 QCCS 6006 (Dumas J) – 21
(0:13:01) C. Quebec Court of Appeal, 2021 QCCA 1317 (Thibault, Hogue and Beaupré JJA) – 23
(0:14:37) IV. Issues – 26
(0:15:17) V. Analysis – 27
(0:20:25) A. Did the Appellants All Have Standing to Apply for a Remedy Under Section 24(1) of the Charter? – 36
(0:23:53) (1) Confusion Between “Intérêt Pour Agir” and “Qualité Pour Agir” – 41
(0:25:04) (2) Standing Under Section 24(1) of the Charter Is Accorded to Accused Persons Alleging That Their Own Rights Have Been Infringed – 43
(0:29:05) (3) Section 7 of the Charter Protects Accused Persons From State Conduct That Undermines the Integrity of the Justice System, Regardless of Whether There Is Personal Prejudice – 50
(0:31:32) (4) The Proceedings Against the Accused Must Have Been Tainted by the Abusive State Conduct – 55
(0:37:55) (5) Application to the Facts – 64
(0:39:15) B. Did the Superior Court Judge Err in Finding That There Had Been an Abuse of Process in the Residual Category? – 66
(0:39:21) (1) The Analytical Framework That Applies Where Abuse of Process in the Residual Category Results From the Infringement of Other Charter Rights – 66
(0:44:01) (2) The Framework Applicable in This Case – 74
(0:46:37) (3) Application to the Facts – 78
(0:47:49) (a) Right to Retain and Instruct Counsel Without Delay – 80
(0:47:53) (i) Applicable Law – 80
(0:50:03) (ii) Application to the Facts – 85
(1:01:58) (b) Conclusion – 109
(1:03:19) C. Did the Superior Court Judge Err in Entering a Stay of Proceedings for All of the Appellants? – 112
(1:05:58) D. Could the Crown Raise, Before the Court of Appeal, the Superior Court Judge’s Failure to Consider the Particular Circumstances of the Arrest of Each Appellant in Groups 2, 3 and 4 After Consenting to Judgment? – 119
(1:10:06) VI. Conclusion – 124
(1:10:19) Concurring Reasons: Rowe J.
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Two British Columbia cases
(0:00:00) Front Matter
(0:00:46) City of Richmond v British Columbia Utilities Commission, 2024 BCCA 16 (January 17, 2023)
(0:04:19) British Columbia (Police Complaint Commissioner) v Sandhu, 2024 BCCA 17 (January 19, 2023)
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Administrative Law – Remedies – Charter Values
Stratas JA (Laskin and Goyette JJA concurring)
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More Charter values, "coaching", and credibility.
(0:00:00) Front Matter
(0:00:47) Sullivan v Canada (Attorney General), 2024 FCA 7 (January 11, 2024)
(0:05:54) McNeil v Elizabeth Fry Society of Greater Vancouver, 2024 BCCA 2 (January 5, 2024)
(0:07:41) Patel v Canada (Citizenship and Immigration), 2024 FC 28 (January 9, 2024)
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Espionage, good and bad reasonableness review, constitutional guarantee
(0:00:00) Front Matter
(0:00:49) Li v Canada (Citizenship and Immigration), 2023 FC 1753
(0:06:03) Thales DIS Canada Inc v Ontario (Transportation), 2023 ONCA 866
(0:09:01) Stoney Nakoda Nations v Alberta, 2023 AKKB 700
(0:12:19) 9255-2504 Québec Inc c Canada (Procureur général), 2023 FC 1719
Administrative Law Wrapped 2023 – A year in review
Mark Mancini's Sunday Evening Administrative Review is available on Substack.
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Metastasis of Charter vibes, again
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Administrative law — Judicial review — Discretionary administrative decisions engaging Charter protections — Charter values
Constitutional law — Charter of Rights — Minority language educational rights
Facts – (0:00:16)
Disposition – (0:01:51)
Reasons for Judgment: Côté J. (Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ. concurring) (0:01:54)
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Administrative law — Judicial review — Discretionary administrative decisions engaging Charter protections — Charter values
Constitutional law — Charter of Rights — Minority language educational rights
(00:00:16) Reasons for Judgment: Côté J. (Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ. concurring)
(00:00:21) I. Overview – 1
(00:05:28) II. Background – 10
(00:12:34) A. Situation of the Appellant Parents – 23
(00:12:37) (1) A.B. (Mother of Child W.) – 23
(00:16:14) (2) F.A. (Mother of Child A.) – 29
(00:18:59) (3) T.B. (Father of Child V.) – 35
(00:20:44) (4) E.S. (Mother of Child E.) – 38
(00:21:40) (5) J.J. (Father of Children T. and N.) – 40
(00:23:28) III. Judicial History – 44
(00:23:31) A. Supreme Court of the Northwest Territories – 44
(00:24:55) B. Supreme Court of the Northwest Territories – 46
(00:26:53) C. Court of Appeal for the Northwest Territories – 50
(00:27:18) (1) Majority Reasons – 52
(00:28:39) (2) Concurring Reasons – 55
(00:29:43) IV. Issues – 58
(00:30:21) V. Analysis – 59
(00:30:52) A. Doré Framework – 60
(00:39:13) B. The Decisions Engage the Protections of Section 23 – 75
(00:39:17) (1) The Values Underlying Section 23 Are Relevant to the Exercise of the Minister’s Discretion – 75
(00:45:25) (2) The Minister’s Decisions Have the Effect of Limiting the Values Underlying Section 23 – 84
(00:50:23) C. The Minister Did Not Proportionately Balance the Values Underlying Section 23 With the Government’s Interests – 92
(00:59:27) D. It Is Neither Necessary nor Appropriate for This Court To Rule on the Allegation That the Right To Use French or the Right To Be Heard Was Infringed – 104
(01:05:14) VI. Disposition
LSO Exam Scandal, Hastings Block, and more
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Constitutional law — Charter of Rights — Search and seizure
(00:00:09) Facts
(00:01:51) Disposition
(00:01:57) Per Rowe and O'Bonsawin JJ
(00:08:33) Per Côté J
(00:11:52) Per Martin and Kasirer JJ
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Constitutional law — Charter of Rights — Search and seizure
(00:00:09) Joint Reasons: Rowe and O’Bonsawin JJ.
(00:00:13) I. Overview – 1
(00:01:59) II. Facts – 4
(00:06:37) III. Judicial History – 11
(00:06:39) A. Alberta Court of King’s Bench – 11
(00:08:28) B. Alberta Court of Appeal – 13
(00:10:48) IV. Issues – 18
(00:11:23) V. Analysis – 21
(00:11:26) A. New Issues on Appeal – 21
(00:14:44) B. Arrests Made as a Consequence of a Charter Breach – 26
(00:27:49) C. An Unlawful Arrest as a “Consequential” Breach in the Section 24(2) Analysis – 47
(00:29:24) (1) The Section 24(2) Grant Analysis – 51
(00:29:28) (a) The Seriousness of the Charter-Infringing State Conduct – 51
(00:32:23) (b) The Impact on the Charter-Protected Interests of the Accused – 55
(00:34:27) (c) Society’s Interest in an Adjudication on the Merits – 58
(00:34:58) (2) Summary – 59
(00:35:59) VI. Application – 60
(00:36:08) (1) The Additional Charter Breaches – 61
(00:38:28) (2) The Section 24 sub 2 Grant Analysis – 65
(00:39:15) (a) The Seriousness of the Charter-Infringing State Conduct – 66
(00:41:29) (b) The Impact on the Charter-Protected Interests of the Accused – 70
(00:43:44) (c) Society’s Interest in an Adjudication on the Merits – 74
(00:44:18) (d) Balancing – 75
(00:45:15) Concurring Reasons: Côté J. – 77
(00:45:19) I. Introduction – 77
(00:47:50) II. Analysis – 81
(00:48:35) A. Section 24(2) of the Charter – 83
(00:48:39) (1) Our Court’s Section 24(2) Jurisprudence – 83
(00:49:44) (a) Grant 2009 – 84
(00:50:31) (b) Harrison – 85
(00:51:41) (c) McColman – 86
(00:52:28) (d) Section 8 – 87
(00:53:30) (2) Sniff Searches – 89
(00:55:14) B. Storrey – 92
(00:59:26) C. Implications for the Exclusion of Evidence Under Section 24(2) – 98
(01:03:40) III. Disposition – 104
(01:04:51) Joint Dissenting Reasons: Martin and Kasirer JJ. – 106
(01:04:56) I. Overview – 106
(01:10:44) II. Analysis – 112
(01:10:46) A. The Law in Relation to Section 24(2) – 112
(01:13:49) (1) Seriousness Is Focused on the Rule of Law – 116
(01:26:50) (2) Seriousness Is Cumulative – 132
(01:29:26) B. Application of Section 24(2) – 135
(01:30:17) (1) Seriousness of the Charter-Infringing Conduct – 136
(01:34:40) (2) Impact on the Charter-Protected Interests of the Accused – 142
(01:41:08) (3) Society’s Interest in Adjudication of the Case on Its Merits – 152
(01:45:15) (4) Would the Admission of the Evidence Bring the Administration of Justice Into Disrepute? – 159
(01:46:33) III. Conclusion – 161
Housing, Doré and transit ads, Human Rights Code
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Plastics, best interests of the child, a new general question, expertise.
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Constitutional law — Extraterritoriality — Jurisdiction
(00:11) Facts
(03:40) Disposition
(03:44) Per Wagner CJ and Jamal J (Karakatsanis, Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ concurring)
(13:42) Per Côté J (dissenting)
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Constitutional law — Extraterritoriality — Jurisdiction
(00:00:10) Reasons for Judgment: Wagner CJ and Jamal J (Karakatsanis, Rowe, Martin, Kasirer and O’Bonsawin JJ concurring)
(00:00:20) I. Overview – 1
(00:07:32) II. Background – 12
(00:13:11) III. Decisions Below – 22
(00:13:14) A. Financial Markets Administrative Tribunal – 22
(00:15:10) B. Superior Court of Quebec – 24
(00:16:43) C. Court of Appeal of Quebec – 27
(00:16:46) (1) Majority – 27
(00:19:41) (2) Concurrence – 31
(00:22:14) IV. Issues – 35
(00:22:28) V. Analysis – 36
(00:22:30) A. The Standard of Review – 36
(00:24:44) B. The Relationship Between the C.C.Q. and Special Statutes – 40
(00:27:52) (1) The Preliminary Provision of the C.C.Q. – 42
(00:33:04) (2) Special Laws May Complement or Derogate From the C.C.Q. – 51
(00:35:01) (3) The Court of Appeal Erred in Its Methodology for Determining When the C.C.Q. Applies – 55
(00:48:35) C. The C.C.Q.’s General Rules for the International Jurisdiction of Quebec Authorities – 73
(00:48:42) (1) Introduction – 73
(00:49:53) (2) The C.C.Q. Does Not Give the FMAT Jurisdiction Over the Appellants – 74
(01:02:11) D. The Quebec Securities Scheme’s Special Rules for the FMAT’s Jurisdiction – 92
(01:09:08) E. The Territorial Reach of Provincial Legislation Is Interpreted in Accordance With This Court’s Decision in Unifund – 103
(01:09:15) (1) This Court’s Decision in Unifund – 103
(01:14:38) (a) The Unifund Test Concerns Constitutional Applicability, Not Constitutional Validity – 112
(01:15:47) (b) The Unifund Test Functions as a Principle of Statutory Interpretation – 113
(01:17:28) (c) The Unifund Test Relates to Prescriptive Legislative Jurisdiction – 115
(01:19:21) (d) The Unifund Test Is Part of a Family of “Real and Substantial Connection” Tests – 117
(01:24:09) (2) Interpreting the Special Jurisdictional Rules of the Quebec Securities Scheme in Light of Unifund – 124
(01:25:55) F. The Quebec Securities Scheme Applies to the Out-of-Province Appellants – 126
(01:27:01) (1) There Is a Sufficient Connection Between Quebec and the Appellants – 127
(01:29:55) (2) The Requirements of Order and Fairness Are Satisfied – 131
(01:32:41) (3) The FMAT’s Adjudicatory Jurisdiction Flows From the Province’s Prescriptive Legislative Jurisdiction – 136
(01:33:38) VI. Conclusion – 137
(01:34:12) Dissenting Reasons: Côté J.
(01:34:17) I. Overview – 139
(01:36:59) II. Facts and Procedural Context – 144
(01:40:09) III. Analysis – 149
(01:44:45) A. Distinction Between the Constitutional Applicability of Legislation and the Adjudicative Jurisdiction of a Court or Tribunal – 157
(01:53:29) B. This Dispute Concerns the FMAT’s Territorial Jurisdiction – 165
(02:00:31) C. The C.C.Q.’s Rules on the International Jurisdiction of Quebec Authorities Apply to Administrative Proceedings Before the FMAT – 176
(02:22:38) D. No Provision of the C.C.Q. Gives the FMAT Jurisdiction Over the Appellants – 200
(02:23:52) (1) Article 3134 C.C.Q. – 203
(02:24:18) (2) Article 3148 Paragraph 1(3) C.C.Q. – 204
(02:26:47) (3) Article 3136 C.C.Q. – 208
(02:28:51) IV. Conclusion – 212
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Provincial offences — Occupational health and safety — Duties of employers
(0:00:10) Facts
(0:01:42) Disposition
(0:01:50) Per Wagner CJ and Martin, Kasirer and Jamal JJ
(0:10:00) Per Karakatsanis, Rowe and O’Bonsawin JJ. (dissenting)
(0:21:36) Per Côté J (dissenting)
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Provincial offences — Occupational health and safety — Duties of employers
(0:00:09) Reasons: Martin J. (Wagner C.J. and Kasirer and Jamal JJ. concurring)
(0:00:17) I. Introduction – 1
(0:05:02) II. Analysis – 7
(0:05:26) A. Overview of the Occupational Health and Safety Act – 8
(0:08:22) B. What the Ministry is Required to Establish – 12
(0:09:52) (1) Proving the City Is an “Employer” Under Section 1(1) of the Act Does Not Require the Ministry to Prove Control – 14
(0:15:00) (2) Proving the City Breached Section 25(1)(c) of the Act – 23
(0:16:02) (a) Text – 25
(0:22:12) (b) Context – 32
(0:26:47) (c) Purpose – 38
(0:34:46) (d) The City Breached Its Duties as an Employer – 46
(0:35:38) C. The Defence’s Burden – Proving Due Diligence – 48
(0:36:24) (1) An Employer’s Control Should Be Considered Only as Part of the Due Diligence Defence – 49
(0:41:41) (2) How an Employer’s Control Informs the Due Diligence Defence – 54
(0:46:01) D. Summary – 61
(0:48:09) III. Conclusion – 62
(0:48:27) Joint Dissenting Reasons: Rowe and O’Bonsawin JJ. (Karakatsanis J. concurring)
(0:48:34) I. Overview – 63
(0:51:35) II. Facts – 67
(0:53:48) III. Judgments Below – 70
(0:53:51) A. Ontario Court of Justice – 70
(0:55:13) B. Ontario Superior Court of Justice – 71
(0:56:12) C. Court of Appeal for Ontario – 72
(0:57:58) IV. Issues – 74
(0:59:05) V. Analysis – 76
(1:00:55) A. The Occupational Health and Safety Scheme – 78
(1:08:53) B. The Definition of “Employer” Under Section 1(1) – 88
(1:10:20) (1) The First Branch Is Focused on Traditional Employment Relationships – 90
(1:13:52) (2) The Second Branch Extends the Definition of “Employer” – 95
(1:15:52) C. The Duties of an Employer Under Section 25(1)(c) and the Regulation – 105
(1:21:22) (1) Section 25(1)(c) Requires Employers to Comply With Measures That Apply to Them
(1:26:11) (2) The Regulation Applies to an Employer’s Work Where There Is a Relationship Between the Measure and the Employer – 111
(1:26:19) (a) The Text of the Regulation – 111
(1:29:16) (b) The Structure of the Regulation and the Act – 116
(1:33:13) (c) The Act’s Division of Roles in the Construction Context – 119
(1:39:22) (d) The Purpose of the Regulation and the Act – 126
(1:49:05) (e) Absurdity and Legislative Intent – 135
(2:00:11) (3) Summary and Guidance – 150
(2:03:46) D. The Role of the Defence Provided for at Section 66(3) – 155
(2:05:10) E. Application – 157
(2:05:23) (1) Is the City an Employer Under Section 1(1)? – 158
(2:06:29) (2) Do Sections 65 and 104(3) of the Regulation Apply to the City as an Employer Through the Operation of Section 25(1)(c) of the Act? – 160
(2:08:01) VI. Conclusion – 162
(2:08:22) Dissenting Reasons: Côté J.
(2:08:26) I. Introduction – 163
(2:10:33) II. Analysis – 166
(2:13:05) A. Points of Agreement With Rowe and O’Bonsawin JJ – 170
(2:13:09) (1) Section 25(1)(c) of the Act Must Be Read in Context
(2:16:02) (2) A Project Owner Is Not the “Employer” of the Constructor or the Constructor’s Workers – 173
(2:18:06) B. The “Belt and Braces” Approach to Worker Safety Is Not Limitless – 175
(2:18:11) (1) Statutory Purpose – 175
(2:24:45) (2) Due Diligence – 184
(2:27:05) C. Application – 188
(2:27:07) (1) The City Was Not an “Employer” on the Construction Project – 188
(2:32:13) (2) Due Diligence – 194
(2:36:35) III. Summary and Disposition – 200
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Courts — Open court principle — Publication bans
(00:00:10) Facts
(00:00:35) Disposition
(00:00:38) Reasons for Judgment: The Court
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Courts — Open court principle — Publication bans
(00:00:10) Reasons for Judgment: The Court
Firearms regulation, immigration consultants.
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Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment
Criminal law — Sentencing — Considerations
(00:00:10) Facts
(00:02:55) Disposition
(00:03:03) Per Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ
(00:18:28) Per Koetay J (dissenting in part)
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Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment
Criminal law — Sentencing — Considerations
(0:00:09) Reasons for Judgment: Martin J. (Karakatsanis, Rowe, Kasirer, Jamal and O’Bonsawin JJ. concurring)
(0:00:18) I. Overview – 1
(0:04:37) II. The Luring Offence – 6
(0:12:16) III. The Appeal of Mr. Bertrand Marchand’s Sentence – 16
(0:12:49) A. Facts – 17
(0:15:08) B. Judicial History – 20
(0:18:42) C. Mr. Bertrand Marchand’s Sentence Does Not Reflect This Court’s Direction in Friesen – 26
(0:22:35) (1) The Wrongfulness of Luring – 34
(0:24:08) (2) The Separate Harm of Luring – 36
(0:30:19) (3) Parliament Has Mandated That Sentences for Luring Must Increase – 46
(0:32:41) (4) Summary – 48
(0:33:17) D. The Sentencing Judge Erred in Assigning a Five‑Month Concurrent Sentence for the Luring Offence – 49
(0:34:57) (1) The Sentencing Judge Failed to Recognize the Grooming That Occurred – 51
(0:41:51) (2) The Sentencing Judge Misconstrued the Offender’s Actions – 64
(0:46:00) E. A 12‑Month Sentence Is Appropriate – 70
(0:46:23) (1) Significant Factors to Determine a Fit Sentence – 71
(0:46:53) (a) Mitigating Factors – 72
(0:48:27) (b) Aggravating Factors – 74
(0:57:02) (c) A Fit Sentence – 88
(0:57:22) (2) Concurrent Versus Consecutive Sentences – 89
(1:02:33) (3) Totality – 99
(1:04:07) IV. The Mandatory Minimum Sentences in Section 172.1(2) of the Criminal Code Violate Section 12 of the Charter – 103
(1:08:38) A. A Fit, Proportionate Sentence – 110
(1:13:04) B. The Reasonably Foreseeable Scenarios Advanced – 114
(1:20:09) C. A Fit Sentence for the Representative Offenders – 122
(1:22:21) (1) A Fit Sentence for Luring in the First Reasonably Foreseeable Scenario – 124
(1:27:50) (2) A Fit Sentence for Luring in the Second Reasonably Foreseeable Scenario – 130
(1:30:59) D. The Mandatory Minimum Penalties Are Grossly Disproportionate to the Fit Sentences for the Representative Offenders – 134
(1:31:06) (1) Scope and Reach of the Offence – 134
(1:43:50) (2) The Effect of the Punishment on the Offenders – 147
(1:44:29) (a) The First Representative Offender – 148
(1:47:47) (b) The Second Representative Offender – 152
(1:48:30) (3) The Penalty and its Objectives – 153
(1:59:59) V. Conclusion – 168
(2:03:09) Reasons Dissenting in Part: Côté J.
(2:03:14) I. Overview – 175
(2:07:49) II. Analysis – 182
(2:09:22) (1) The Fit and Appropriate Sentence for the Offender in the First Reasonably Foreseeable Hypothetical Scenario – 184
(2:22:46) (2) The Fit and Appropriate Sentence for the Offender in the Second Reasonably Foreseeable Hypothetical Scenario – 201
(2:29:32) (3) The Difference Between the Fit and Appropriate Sentences for the Offenders in the Reasonably Foreseeable Hypothetical Scenarios and the Minimum Term of Imprisonment Provided for in Section 172.1(2)(a) Cr. C. Is Not Grossly Disproportionate – 212
(2:29:50) (a) The Offence of Child Luring Is Broad in Scope but Always Involves Conduct With a High Degree of Moral Blameworthiness as Well as Harm or a Risk of Harm – 212
(2:36:16) (b) The Effects of the Minimum Term of Imprisonment on the Offenders in the Reasonably Foreseeable Hypothetical Scenarios Are Not Incompatible With Human Dignity – 222
(2:39:33) (c) The Minimum Term of Imprisonment Is Not Grossly Disproportionate to What Is Necessary To Achieve Parliament’s Objectives – 226
(2:42:58) III. Conclusion – 231
Refugee decision, what is an "appeal"?, Indigenous standing
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Civil liability — Obligation of loyalty — Implied contractual obligations
(00:00:11) Facts
(00:02:41) Disposition
(00:02:33) Reasons for Judgment: Kasirer J. (Wagner C.J. and Karakatsanis, Rowe, Jamal and O’Bonsawin JJ. concurring)
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Civil liability — Obligation of loyalty — Implied contractual obligations
(0:00:09) Reasons for Judgment: Kasirer J. (Wagner C.J. and Karakatsanis, Rowe, Jamal and O’Bonsawin JJ. concurring)
(0:00:16) I. Overview
(0:08:44) II. Background
(0:16:20) III. Judicial History
(0:16:22) A. Quebec Superior Court
(0:19:50) B. Quebec Court of Appeal
(0:21:48) IV. Parties’ Arguments and Issues
(0:24:01) V. Analysis
(0:24:03) A. Did the Appellants’ Non‑Disclosure of the Interest Expressed by IA Constitute a Civil Fault?
(0:25:50) (1) First Possible Basis: Obligation of Loyalty Arising From the Exercise of Powers in the Interest of Another
(0:31:44) (2) Second Possible Basis: Extracontractual Obligation to Inform in the Negotiation and Formation of a Contract
(0:35:56) (3) Third Possible Basis: Implied Contractual Obligation to Inform
(0:47:04) (4) Fourth Possible Basis: Obligation to Perform the Presidents’ Agreement in Accordance With the Requirements of Good Faith
(0:50:42) B. Basis for the Remedy and Amount Owed to the Respondents
(0:50:46) (1) Availability of Disgorgement of Profits as a Remedy
(0:59:58) (a) Disgorgement of Profits Where There Is an Obligation of Loyalty in the Exercise of a Power
(1:03:24) (b) Disgorgement of Profits Where There Is No Exercise of Power
(1:11:42) (2) Award of Damages Pursuant to the Presumption in Baxter
Standard of review on procedural fairness, rights of appeal, reasonableness.
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SCC statutory interpretation cases, rights of appeal, Chinook.
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Constitutional law — Division of powers — Environmental impact assessment
(00:00:09) Facts
(00:03:59) Disposition
(00:04:05) Per Wagner C.J. and Côté, Rowe, Martin and Kasirer JJ.
(00:17:54) Per Karakatsanis and Jamal J.J. (dissenting in part)
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Constitutional law — Division of powers — Environmental impact assessment
(00:00:09) Reasons for Judgment: Wagner C.J. (Côté, Rowe, Martin and Kasirer JJ. concurring)
(00:00:18) I. Overview
(00:05:09) II. The Evolution of Federal Environmental Assessment
(00:05:13) A. The Nature and Purpose of Environmental Assessment
(00:06:43) B. A History of Federal Environmental Assessment
(00:09:05) (1) The 1984 Guidelines Order
(00:10:45) (2) Canadian Environmental Assessment Act (1992)
(00:12:45) (3) Canadian Environmental Assessment Act, 2012
(00:16:20) (4) IAA
(00:17:15) III. The Legislative Scheme
(00:18:05) A. The “Designated Projects” Regulatory Scheme
(00:19:52) (1) The Planning Phase
(00:21:24) (2) The Impact Assessment Phase
(00:25:23) (3) The Decision-Making Phase
(00:26:21) B. Sections 81 to 91: Non-Designated Projects on Federal Lands or Outside Canada
(00:28:13) IV. The Judgment of the Court of Appeal of Alberta
(00:33:12) V. Issue on Appeal
(00:33:56) VI. Step 1: Characterization
(00:33:59) A. The Governing Principles
(00:34:02) (1) The Pith and Substance Analysis
(00:35:45) (2) Characterization Is Distinct From Classification
(00:37:36) (3) The Presumption of Constitutionality
(00:41:59) B. The Application of the Governing Principles
(00:42:58) (1) Purpose
(00:53:37) (2) Effects
(01:03:33) (3) Conclusion on Characterization
(01:04:20) VII. Step 2: Classification
(01:04:24) A. The Governing Principles
(01:04:26) (1) General Principles
(01:06:05) (2) The Environmental Context
(01:14:23) B. The Application of the Governing Principles
(01:15:22) (1) The “Designated Projects” Scheme
(02:08:39) (2) The Scheme for Non-Designated Projects on Federal Lands or Outside Canada
(02:11:08) VIII. Additional Issues
(02:12:17) IX. Conclusion
(02:13:50) Joint Reasons Dissenting in Part: Karakatsanis and Jamal JJ.
(02:13:56) I. Introduction
(02:20:09) II. Federalism and the Environment
(02:27:21) III. The Evolution of Federal Environmental Assessment Regimes
(02:31:19) IV. The Impact Assessment Act
(02:32:07) A. Designation of Projects on the Project List Based on Adverse Federal Effects
(02:35:17) B. Prohibitions
(02:36:13) C. The Planning Phase
(02:37:22) D. The Impact Assessment Phase
(02:38:13) E. The Decision-Making Phase (the Public Interest Determination)
(02:39:38) V. Analysis
(02:40:03) A. Characterization of the Impact Assessment Act Scheme
(03:13:20) B. Classification of the IAA Scheme
(03:58:18) C. Provincial Undertakings Are Not Immune From Federal Environmental Assessment Under the Doctrine of Interjurisdictional Immunity
(04:01:09) VI. Conclusion
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Criminal law — Publication bans — Matters dealt with in absence of jury
(0:00:12) Facts
(0:00:58) Disposition
(0:01:01) Reasons for Judgment: Wagner C.J. (Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ. concurring)
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Criminal law — Publication bans — Matters dealt with in absence of jury
(00:00:12) Reasons for Judgment: Wagner C.J. (Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ. concurring)
(00:00:16) I. Introduction – 1
(00:06:13) II. Judgments Below – 10
(00:06:15) A. La Presse inc. v. Silva, 2022 QCCS 881 – 10
(00:08:32) B. R. v. Coban, 2022 BCSC 880 – 14
(00:09:45) III. Jurisdiction and Mootness – 16
(00:11:19) IV. Issues in These Appeals – 19
(00:12:40) V. Analysis – 22
(00:12:43) A. Principles of Statutory Interpretation – 22
(00:14:27) B. Text – 26
(00:16:33) C. Context – 31
(00:24:12) D. Purpose – 42
(00:25:18) (1) Right to an Impartial Jury – 44
(00:29:30) (2) Interest in an Efficient System of Trial by Jury – 51
(00:32:50) (3) Conclusion – 57
(00:34:10) E. Meaning of Section 648(1) – 58
(00:38:20) VI. Determining Whether s. 645(5) Captures a Pre-Empanelment Proceeding – 64
(00:49:46) VII. Dispositions – 78
A big SCC case on reasonableness, Doré and psyilocybin mushrooms.
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Administrative law — Judicial review — Standard of review
Immigration — Judicial review — Inadmissibility and removal
(0:00:11) Facts
(0:03:06) Disposition
(0:03:18) Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
(0:12:03) Per Côté J.
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DescriptionAdministrative law — Judicial review — Standard of review
Immigration — Judicial review — Inadmissibility and removal
(00:00:11) Reasons for Judgment: Jamal J. (Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer and O’Bonsawin JJ. concurring)
(00:00:20) I. Overview – 1
(00:08:27) II. Facts – 13
(00:08:28) A. Mr. Earl Mason – 13
(00:11:30) B. Mr. Seifeslam Dleiow – 17
(00:12:49) III. Decisions Below – 19
(00:12:51) A. Immigration Division Decision (Mr. Mason) – 19
(00:13:35) B. Immigration Appeal Division Decision (Mr. Mason) – 20
(00:14:17) C. Immigration Division Decision (Mr. Dleiow) – 21
(00:15:08) D. Federal Court Decision (Mr. Mason) – 22
(00:19:30) E. Federal Court Decision (Mr. Dleiow) – 27
(00:19:55) F. Federal Court of Appeal (Mr. Mason and Mr. Dleiow) (Stratas JA, Rennie and Mactavish JJA concurring) – 28
(00:23:45) IV. Issues – 34
(00:23:58) V. Analysis – 35
(00:24:21) A. The Standard of Review – 36
(00:26:41) (1) The Standard of Review Is Presumptively Reasonableness – 39
(00:29:47) (2) No Established Exception to the Presumption Applies – 45
(00:31:52) (3) The Certified Question Regime Under the IRPA Does Not Displace the Presumption – 48
(00:36:27) (4) Conclusion – 54
(00:36:43) B. Reasonableness Review – 55
(00:37:07) (1) Vavilov’s Guidance on Reasonableness Review of Administrative Decisions – 56
(00:37:26) (a) The Purpose of Reasonableness Review – Upholding the Rule of Law While According Deference – 57
(00:38:22) (b) A “Reasons First” Approach – 58
(00:42:46) (c) Indicators of Unreasonableness – 64
(00:43:18) (i) Failures of Rationality in the Reasoning Process – 65
(00:43:52) (ii) Failures of Justification in Light of the Legal and Factual Constraints – 66
(00:52:07) (2) Methodology of Reasonableness Review in the Courts Below – 78
(00:53:53) C. Were the Administrative Decisions Reasonable? – 80
(00:55:15) (1) The IAD’s Reasons in Mr. Mason’s Case – 83
(00:58:51) (2) Failures of Justification in the IAD’s Reasons – 84
(01:00:34) (a) Failure to Address Two Significant Points of Statutory Context – 86
(01:07:18) (b) Failure to Address Potentially Broad Consequences – 98
(01:12:19) (c) Failure to Address Constraints Imposed by International Law – 104
(01:25:51) D. Conclusion and Remedy – 118
(01:29:17) VI. Disposition – 123
(01:29:43) Concurring Reasons: Côté J.
(01:29:47) I. Introduction – 124
(01:32:26) II. Analysis – 128
(01:32:28) A. The Standard of Review for Certified Questions Under the IRPA Is Undecided Post‑Vavilov – 128
(01:32:34) (1) Pre‑Vavilov Jurisprudence – 128
(01:39:40) (2) Vavilov – 138
(01:43:50) B. Certified Questions Under the IRPA Should Be Recognized as a New Category of Correctness Review – 146
(01:43:56) (1) Legislative Intent – 146
(01:51:58) (2) The Rule of Law – 158
(01:52:14) (a) The Risk of Arbitrariness Is Unacceptable in This Context – 159
(01:58:20) (b) Consequences for the Justice System as a Whole or Other Institutions of Government – 169
(02:04:21) III. Application – 176
(02:10:49) IV. Conclusion – 187
(02:12:05) V. Disposition – 189
Jurisdiction, interpretation, environmental law.
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General questions of central importance and interpretation.
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Adequate alternatives, right of appeal, fisheries.
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Vagueness challenge, visa applications.
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Doré and professional regulation, municipal decisions.
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Supplementation, treaty interpretation. Mark Mancini's Sunday Evening Administrative Review is available on Substack. Please visit our website to provide feedback on this recording and others.
Pandemic restrictions, aribitral standard, municipal decisions.
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Guest post for the 100th edition, Doray, and more. Mark Mancini's Sunday Evening Administrative Review is available on Substack. Please visit our website to provide feedback on this recording and others.
Open court principle, procedural fairness standard of review, Chinook and immigration.
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Headings and Timestamps Below(see full Table of Contents here)
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Reasons for Judgment: Karakatsanis J. (Wagner C.J. and Côté, Rowe, Martin, Kasirer and Jamal JJ. concurring)
I. – 1 – (00:00:13)
II. – 6 – (00:03:08)
A. – 13 – (00:05:43)
B. – 23 – (00:11:37)
III. – 29 – (00:14:31)
A. – 35 – (00:18:37)
B. – 40 – (00:22:18)
(1) – 40 – (00:22:22)
(2) – 43 – (00:24:05)
(3) – 48 – (00:28:10)
C. – 50 – (00:30:06)
(1) – 51 – (00:30:26)
(2) – 59 – (00:37:42)
D. – 64 – (00:40:55)
IV. – 67 – (00:43:19)
A. – 71 – (00:45:20)
Mandamus & standard of review on regulations.
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General questions, prematurity, reasonableness review.
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Headings and Timestamps Below (see full Table of Contents here)
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Criminal law — Appeals — Charge to jury
Reasons for Judgment: Rowe J. (Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ. concurring)
Preamble – 1 – (00:00:10)
I. – 7 – (00:04:19)
II. – 22 – (00:13:13)
III. – 27 – (00:17:35)
IV. – 28 – (00:17:49)
A. – 30 – (00:19:10)
(1) – 30 – (00:19:14)
(2) – 34 – (00:22:27)
(a) – 38 – (00:25:17)
(b) – 44 – (00:27:50)
(i) – 47 – (00:28:45)
(ii) – 50 – (00:30:21)
(c) – 57 – (00:33:51)
(i) – 60 – (00:35:27)
(ii) – 63 – (00:37:10)
(iii) – 66 – (00:39:17)
(iv) – 71 – (00:43:13)
(3) – 72 – (00:43:35)
B. – 73 – (00:44:57)
(1) – 76 – (00:46:13)
(2) – 84 – (00:50:55)
C. – 87 – (00:53:32)
V. – 97 – (00:59:37)
Dissenting Reasons: Côté J.
I. – 98 – (00:59:54)
II. – 101 – (01:01:20)
A. – 102 – (01:01:44)
B. – 114 – (01:08:35)
III. – 123 – (01:14:32)
IV. – 150 – (01:31:22)
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Tribunal participation, Chinook, and more.
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Criminal law — Sentencing — Mandatory minimums
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Headings and Timestamps Below(see full Table of Contents here)
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Criminal law — Sentencing — Mandatory minimums
Reasons for Judgment: Kasirer J. (Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ. concurring)
I. – 1 – (00:00:14)
II. – 14 – (00:09:04)
III. – 19 – (00:10:57)
A. – 19 – (00:11:00)
B. – 21 – (00:12:33)
C. – 23 – (00:13:50)
IV. – 29 – (00:18:12)
V. – 30 – (00:18:33)
A. – 30 – (00:18:35)
B. – 34 – (00:22:37)
C. – 39 – (00:26:04)
(1) – 46 – (00:30:52)
(2) – 52 – (00:35:27)
(a) – 54 – (00:36:23)
(b) – 63 – (00:44:42)
(c) – 74 – (00:52:46)
D. – 77 – (00:54:39)
VI. – 78 – (00:55:53)
Prayer in private schools, reasons, delay in administrative proceedings, and more.
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Constitutional law — Charter of Rights — Right to life, liberty and security of person
Immigration — Refugee protection — Ineligibility
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Constitutional law — Charter of Rights — Right to life, liberty and security of person
Immigration — Refugee protection — Ineligibility
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Headings and Timestamps (see full Table of Contents here):
Reasons for Judgment:
I. – 1 – (00:00:16)
II. – 14 – (00:11:44)
III. – 20 – (00:17:08)
A. – 20 – (00:17:10)
B. – 26 – (00:19:49)
IV. – 30 – (00:22:17)
V. – 31 – (00:22:39)
A. – 32 – (00:23:25)
B. – 37 – (00:26:03)
(1) – 38 – (00:26:53)
(2) – 41 – (00:29:07)
(3) – 43 – (00:30:42)
VI. – 49 – (00:33:35)
VII. – 56 – (00:37:30)
A. – 59 – (00:38:57)
(1) – 62 – (00:40:52)
(2) – 79 – (00:52:18)
B. – 83 – (00:55:20)
(1) – 85 – (00:56:52)
(a) – 86 – (00:57:29)
(b) – 90 – (01:00:08)
(c) – 95 – (01:03:25)
(i) – 97 – (01:05:19)
(ii) – 103 – (01:09:34)
(d) – 108 – (01:12:58)
(2) – 109 – (01:13:51)
(a) – 112 – (01:15:40)
(b) – 113 – (01:16:24)
C. – 118 – (01:19:56)
(1) – 118 – (01:20:01)
(2) – 126 – (01:25:37)
(a) – 128 – (01:26:41)
(b) – 140 – (01:36:23)
(c) – 148 – (01:42:08)
D. – 165 – (01:56:31)
VIII. – 172 – (02:00:40)
A. – 172 – (02:02:18)
B. – 175 – (02:07:32)
IX. – 183 – (02:08:34)
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Taxation — Income tax — Tax avoidance
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Headings and Timestamps (see full Table of Contents here)
Reasons for Judgment: Rowe J.(Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ.concurring)
I. – 1 – (0:00:20)
II. – 7 – (0:05:48)
III. – 2019 – (0:17:32)
A. – 2019 – (0:17:34)
B. – 34 – (0:23:34)
IV. – 39 – (0:26:30)
V. – 40 – (0:26:55)
A. – 40 – (0:26:58)
B. – 46 – (0:30:43)
C. – 51 – (0:34:28)
(1) – 53 – (0:35:33)
(2) – 54 – (0:36:05)
(3) – 56 – (0:37:13)
(a) – 58 – (0:38:02)
(b) – 62 – (0:40:30)
(c) – 69 – (0:45:06)
(d) – 73 – (0:49:01)
VI. – 75 – (0:50:09)
A. – 75 – (0:50:11)
B. – 78 – (0:52:11)
(1) – 79 – (0:53:14)
(2) – 84 – (0:57:43)
(a) – 85 – (0:58:03)
(b) – 86 – (0:59:06)
(c) – 91 – (1:02:06)
(d) – 96 – (1:05:44)
(3) – 100 – (1:08:49)
(4) – 113 – (1:19:46)
C. – 121 – (1:25:56)
VII. – 141 – (1:40:56)
Dissenting Reasons: Côté J.– (1:41:06)
I. – 142 – (1:41:11)
II. – 146 – (1:44:10)
A. – 146 – (1:44:12)
B. – 157 – (1:52:58)
(1) – 160 – (1:55:12)
(2) – 165 – (1:59:06)
(3) – 171 – (2:04:05)
C. – 180 – (2:10:24)
(1) – 180 – (2:10:26)
(2) – 183 – (2:12:01)
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Courts — Dismissal of proceeding that limits debate — Defamation
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Headings and Timestamps (see full Table of Contents here)
Reasons for Judgment: Karakatsanis J. (WagnerC.J. and Rowe, Martin, Jamal and O’Bonsawin JJ. concurring)
I. – (0:00:20) – paras. 1 to 10
II. – (0:05:39) – paras. 11 to 37
III. – (0:21:09) – paras. 38 to 43
A. – (0:21:12) – paras. 38 to 40
B. – (0:22:28) – paras. 41 to 43
IV. – (0:24:04) – paras. 44 to 122
A. – (0:25:08) – paras. 46 to 56
B. – (0:32:50) – paras. 57 to 93
(1) – (0:37:13) – paras. 63 to 78
(a) – (0:37:31) – paras. 64 to 72
(b) – (0:42:53) – paras. 73 to 78
(2) – (0:47:30) – paras. 79 to 93
C. – (0:56:48) – paras. 94 to 120
(1) – (0:57:44) – paras. 95 to 120
(a) – (1:00:01) – paras. 99 to 107
(b) – (1:07:12) – paras. 108 to 114
(c) – (1:11:45) – paras. 115 to 119
(d) – (1:14:24) – para. 120
D. – (1:15:52) – para. 121
V. – (1:16:28) – para. 122
Dissenting Reasons: Côté J. – (1:16:57)
I. – (1:17:02) – paras. 123 to 132
II. – (1:22:18) – paras. 133 to 179
A. – (1:31:01) – paras. 144 to 157
(1) – (1:31:03) – paras. 144 to 157
B. – (1:38:55) – paras. 158 to 179
(1) – (1:38:58) – paras. 158 to 166
(2) – (1:44:06) – paras. 167 to 179
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Family law — Family assets — Domestic contracts
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Headings and Timestamps(see full Table of Contents here)
I – (0:00:14) – paras 1 to 11
II – (0:08:15) – paras 12 to 19
III – (0:14:34) – paras 20 to 53
A. – (0:17:07) – paras 25 to 38
B. – (0:27:55) – paras 39 to 53
IV. – (0:38:01) – paras 54 to 84
A. – (0:39:29) – paras 58 to 63
B. – (0:42:09) – paras 64 to 72
C. – (0:48:13) – paras 73 to 84
V. – (0:59:01) – para 85
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Charter of Rights — Criminal law — Trial delay
Charter of Rights — Criminal law — Charge to jury
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Charter of Rights — Criminal law — Trial delay
Charter of Rights — Criminal law — Charge to jury
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Criminal law — Procedure — Summary dismissal of application
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Headings and Timestamps (see full Table of Contents here)
I – (0:00:13) – paras 1 to 4
II – (0:02:41) – paras 5 to 39
A – (0:02:43) – paras 5 to 6
B – (0:04:09) – paras 7 to 13
C – (0:07:10) – paras 14 to 15
D – (0:08:08) – paras 16 to 21
E – (0:12:01) – paras 22 to 24
F – (0:13:44) – paras 25 to 27
G – (0:15:48) – paras 28 to 34
H – (0:20:17) – paras 35 to 39
III – (0:22:13) – paras 40 to 107
A – (0:23:11) – paras 43 to 61
(1) – (0:23:15) – paras 43 to 45
(2) – (0:25:49) – paras 46 to 61
(a) – (0:26:14) – paras 47 to 54
(b) – (0:31:29) – paras 55 to 59
(c) – (0:35:23) – paras 60 to 61
B – (0:37:06) – paras 62 to 98
(1) – (0:37:57) – paras 63 to 65
(2) – (0:39:47) – paras 66 to 73
(3) – (0:44:47) – paras 74 to 80
(4) – (0:49:28) – paras 81 to 89
(5) – (0:54:11) – paras 90 to 92
(6) – (0:55:27) – paras 93 to 98
C – (0:59:36) – paras 99 to 107
IV – (1:05:28) – paras 108 to 121
A – (1:06:07) – paras 109 to 114
B – (1:10:20) – paras 115 to 121
V – (1:15:35) – paras 122 to 123
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Constitutional law — Division of powers — Double aspect doctrine
Constitutional law — Division of powers — Paramountcy doctrine
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Constitutional law — Division of powers — Double aspect doctrine
Constitutional law — Division of powers — Paramountcy doctrine
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Criminal law — Impaired driving — Testing for presence of alcohol or drug
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Criminal law — Impaired driving — Testing for presence of alcohol or drug
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Charter of Rights — Arbitrary detention — Exclusion of evidence
Criminal law — Impaired driving — Random sobriety stop
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Charter of Rights — Arbitrary detention — Exclusion of evidence
Criminal law — Impaired driving — Random sobriety stop
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Criminal law — Voyeurism — Elements of offence
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Criminal law — Voyeurism — Elements of offence
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Criminal law — Appeals — Unreasonable verdict
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Criminal law — Appeals — Unreasonable verdict
Reasons for Judgment: Rowe J. (Martin and Kasirer JJ. concurring) – (0:00:23) – paras. 1 to 9
Dissenting Reasons: Côté J. (O’Bonsawin J. concurring) – (0:05:39) – paras. 10 to 26
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Charter of Rights — Search and seizure
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Charter of Rights — Search and seizure
Reasons for Judgment: Côté J. (Wagner C.J. and Moldaver, Kasirer and Jamal JJ. concurring) – (0:00:23) – paras. 1 to 45
I. – (0:00:40) – paras. 1 to 5
II. – (0:03:40) – paras. 6 to 14
III. – (0:07:59) – paras. 15 to 16
IV. – (0:08:57) – paras. 17
V. – (0:09:18) – paras. 18 to 44
A. – (0:09:20) – paras. 18 to 24
B. – (0:14:54) – paras. 25 to 44
(1) – (0:15:17) – paras. 26 to 29
(2) – (0:17:51) – paras. 30 to 34
(3) – (0:21:37) – paras. 35 to 44
VI. – (0:29:15) – paras. 45
Joint Concurring Reasons: Karakatsanis and Martin JJ. – (0:29:22) – paras. 46 to 95
I. – (0:29:27) – paras. 46 to 49
II. – (0:32:16) – paras. 50 to 55
III. – (0:36:30) – paras. 56 to 65
IV. – (0:43:26) – paras. 66 to 76
V. – (0:51:33) – paras. 77 to 82
VI. – (0:55:33) – paras. 83 to 95
Concurring Reasons: Rowe J. – (1:05:15) – paras. 96 to 115
I. – (1:10:06) – paras. 103 to 109
II. – (1:14:39) – paras. 110 to 115
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Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment
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Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment
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(0:00:00) – The judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.
(1:23:21) – The reasons of Côté J. and the reasons of Karakatsanis and Jamal JJ.
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Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment
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Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment
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(0:00:00) – The judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.
(1:52:14) – The reasons of Côté J.
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Criminal law — Sexual assault — Consent
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Criminal law — Sexual assault — Consent
Criminal law: sexual assault, consent; Jurisprudence: stare decisis.
A table of contents with a detailed breakdown of this decision’s headings and paragraph numbers and their corresponding time markers can be found here.
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Constitutional law: Charter rights, detention, right to counsel.
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Criminal law: first degree murder, unlawful confinement, elements of offence.
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Constitutional law: division of powers; peace, order, and good government; national concern.
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Constitutional law: division of powers; peace, order, and good government; national concern.
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Constitutional law: division of powers; peace, order, and good government; national concern.
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The text of the full decision can be found here.
Administrative law: standard of review, reasonableness review.
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Constitutional law: division of powers, interprovincial trade, s. 121 of the Constitution Act, 1867.
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Constitutional law: s. 2(d) of the Charter, freedom of association, right to strike, stare decisis.
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Constitutional law: s. 7 of the Charter; Criminal law: bawdy houses, living on the avails of prostitution.
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Law of professions: barristers and solicitors, duty of loyalty, conflict of interest.
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Criminal law: sentencing, Aboriginal offenders, fundamental principle of proportionality.
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Constitutional law: division of powers, criminal law, s. 7 of the Charter.
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The text of the full decision can be found here.
Constitutional law: division of powers, double aspect, ancillary powers, criminal law.
A table of contents with a detailed breakdown of this decision’s headings and paragraph numbers and their corresponding time markers can be found here.
The text of the full decision can be found here.
Constitutional law: division of powers, interjurisdictional immunity, paramountcy.
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The text of the full decision can be found here.
Aboriginal law: s. 35 of the Constitution Act, 1982, duty to consult, honour of the Crown, interlocutory injunctions.
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Administrative law: procedural fairness, immigration.
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The text of the full decision can be found here.
Statutory interpretation: the modern principle; Employment law: bankruptcy, termination and severance pay.
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The text of the full decision can be found here.
Constitutional law: ss. 1, 2(a) of the Charter.
A table of contents with a detailed breakdown of this decision’s headings and paragraph numbers and their corresponding time markers can be found here.
The text of the full decision can be found here.