The Supreme Court of Canada released one judgment this week of
significant interest to the legal profession.
In Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, a 6-1 majority ruled that the
appointment of the Honourable Marc Nadon and his swearing-in as a
judge of the Supreme Court of Canada were void ab initio,
and that he remains a judge of the Federal Court of Appeal. The
Court clarified that s. 6 of the Supreme Court Act, which
requires that three of its nine judges be appointed "from
among the judges of the Court of Appeal or of the Superior Court of
the Province of Quebec or from among the advocates of that
Province", does not permit the appointment of persons who are
not current members of the Quebec courts or Barreau du
Québec at the time of their appointment, even if they
previously occupied that position.
More importantly, the majority also held that the Supreme Court
of Canada "gained constitutional status as a result of its
evolution into the final general court of appeal for
Canada", and that this status was confirmed by ss. 41 and 42
of the Constitution Act, 1982. As a result, Parliament now
lacks the constitutional authority to unilaterally modify the
"composition" of the Court, which includes it continued
existence. Such amendments instead require the unanimous consent of
Parliament and all provincial legislatures. As well, the majority
held that amendments to the "other essential features" of
the Court, which encompasses its jurisdiction as the final general
court of appeal for Canada (including in matters of constitutional
interpretation) and its independence, require the consent of at
least seven provinces representing, in the aggregate, at least half
of the population of all the provinces. Because s. 6 of the
Supreme Court Act relates to the composition of the Court
– and indeed, "reflects the Court's bijural
character and represents the key to the historic bargain that
created the Court in the first place" – the majority
held that declaratory legislation which amended s. 6 in 2013 to
provide that former members of the Quebec bar are eligible for
appointment is ultra vires.
The first, Power Workers' Union (Canadian Union of
Public Employees, Local 1000) v. Ontario (Energy Board), 2013 ONCA 359, concerns the test that should
be applied when a utilities regulator is deciding whether to
approve an application for rates under its "just and
reasonable" rate-setting jurisdiction, in circumstances where
those rates are intended to cover fixed labour costs that a utility
has assumed under collective agreements with its unions. The issue
for the Supreme Court is whether such costs should be treated as
"committed" costs which the regulator should generally
presume to be prudent unless challenged on reasonable grounds, or
as "forecast" costs which the regulator may assess having
regarding to a wider variety of economic considerations. The
Court's decision will be an important for all regulated
utilities with unionized workforces.
The second new appeal is from Canada v. Guindon, 2013 FCA 153. It involves whether an
individual who is assessed a penalty under s. 163.2 of the
Income Tax Act is entitled to the protections afforded by
s. 11 of the Canadian Charter of Rights and Freedoms.
Additionally, the appeal raises the issue of whether the failure to
serve a notice of constitutional question deprives courts of the
jurisdiction to consider constitutional arguments.
The third case is Sabourin and Sun Group of Companies v.
Laiken, 2013 ONCA 530, which concerns the test for
civil contempt of court. In particular, the case raises the issue
of whether it is necessary to establish that violation of a court
order was deliberately and wilfully disobedient in circumstances
where the violating party is not one of the litigants directly
bound by the order, but their lawyer.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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