Clarifying the Role of the Refugee Appeal Division in Huruglica v Canada

In Huruglica v Canada (Minister of Citizenship and Immigration), [2014] FCJ No 845, a decision released on August 22, 2014, the Federal Court clarified that the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) serves an appellate, rather than a judicial review, function.

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[filed: Administrative Law]

Access to Information and Advice: An Interpretation of the Freedom of Information and Protection of Privacy Act

In John Doe v Ontario (Finance), 2014 SCC 36 [John Doe], the Supreme Court of Canada (SCC) provided a comprehensive explanation of a key provision of the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31 [FIPPA]. FIPPA is a mechanism that enables individuals to request disclosure of information from government officials (information on making a request can be found here). Within the statute, s. 13(1) permits the denial of a request “where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution” (John Doe, at para 7).

In this case, the SCC clarified s. 13(1) in two respects:

1) The Court decided whether records that contain a discussion of policy options constitute “advice” for the purposes of s. 13(1).

2) The Court decided whether s. 13(1) requires the advice or recommendations under consideration to be communicated to a decision maker to qualify for protection.

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[filed: Access to Information Administrative Law]

The Policy Consequences of Quebec v Canada: Guns and Butter

In the fall session, the Supreme Court of Canada (“SCC”) is set to hear an appeal of Quebec (Attorney General) v Canada (Attorney General) 2013 QCCA 1138 [Long-Gun Registry case]. In the case, Quebec seeks a declaration of constitutional invalidity of section 29 of the Ending the Long-Gun Registry Act (“Bill C-19″). Bill C-19 permits the destruction of all records in the Canadian Firearms Registry related to the registration of long-guns.

The case has the potential of becoming the SCC’s most significant decision on cooperative federalism since Reference Re Securities Act 2011 SCC 66. A victory for Quebec would significantly change Ottawa’s power to repeal seemingly valid federal legislation. Alternatively, a victory for Ottawa may cause provincial governments to reconsider embarking on expensive and administratively complex intergovernmental arrangements. Since the latter is far more likely, the post will focus on these policy consequences.

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[filed: Constitutional Law]

Supreme Court Clarifies Sentencing Rules in R v Summers

In 2009, the Conservative government introduced legislation called the Truth in Sentencing Act, SC 2009, C.29, (the “Act”).  The Act, which came into force in 2010, amended the Criminal Code by capping the amount of credit judges were allowed to give prisoners for time served before the prisoners’ trials. While it had been routine for judges to credit prisoners with two days for every pre-trial day, the Act set a cap at 1.5 days. According to Justice Minister Rob Nicholson, the Act sought to disallow any credit at all for prisoners who had been denied bail.

The Act is part of Prime Minister Stephen Harper’s tough-on-crime platform, which has sought to put limits on judicial discretion in the courts. It was tested at Supreme Court of Canada this past April in the case R v Summers, 2014 SCC 26 [Summers]. In a 7-0 decision written by Justice Karakatsanis, the Court ruled that judges continue to have discretion to grant credit to prisoners, including those denied bail. It stressed the importance of treating prisoners fairly, emphasizing that individuals who have had their liberty taken away from them are vulnerable and deserve to be treated with human dignity.

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[filed: Criminal Law]

Divisional Court Certifies G20 Class Actions

Introduction and Facts

In early August, the Ontario Divisional Court released its decision in Good v Toronto Police Services Board, 2014 ONSC 4583. These proceedings relate to the G20 summit that was held in Toronto in June of 2010. The summit brought world leaders to the city, but also attracted a number of groups conducting demonstrations, some of which became violent. For example, those carrying out the “Black Bloc” tactic partook in actions such as breaking windows and destroying police cars. This was an appeal of Justice Horkins’ decision, 2013 ONSC 3026, to not certify the class proceedings.

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[filed: Class proceedings]

Individuality and Community: Expounding the Fundamental Freedoms’ Normative Antinomy


It has been said that the Canadian Charter of Rights and Freedoms is a liberal document. On this view, the Charter presupposes an individualistic conception of the rights-bearer. It conceives of persons as having pre-politically discrete identities and as being free, autonomous, and independent of the community. Its function is to “police the boundary that separates the political and the collective from the pre-political and the individual” (Allan C Hutchinson & Andrew Petter, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988) 38:3 UTLJ 278 at 284).

Although individualism permeates the Supreme Court of Canada’s section 2 jurisprudence, notions of community are also prevalent therein. The Court’s disagreements on the scope of religious freedom disclose recognition of a link between religion and community. Its views on the limits of expressive freedom disclose how expression is realized in communal life. The evolution of its freedom of association jurisprudence discloses recognition of groups as rights-bearers.

The tension between individuality and community is the normative antinomy at the heart of the fundamental freedoms. I expound this antinomy in what follows.

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[filed: Charter Constitutional Law Freedom of Expression Religion]

Random Drug and Alcohol Testing in the Workplace Is Given Parameters in Irving Pulp & Paper

The issue of alcohol and drug testing in the workplace is certainly a contentious one. Some readers may know anecdotally (or not so anecdotally) of its pervasiveness among oil, or related, industry workers in Alberta. The justification typically given for such policies, which may subject workers to deeply personal tests, is the dangerous nature of the work.

In New Brunswick, the apparently competing interests of safety versus employee privacy arose in Communication, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 (Irving). At issue in that case was whether workplace alcohol and drug testing could be justified given the invasion of privacy that would be required and the lack of evidence of an alcohol or drug problem in the particular workplace.
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[filed: Administrative Law Labour and Employment]

The Reasonable Expectation of Privacy in the Information Age: R v Spencer

On June 13, 2014, Cromwell J., in R v Spencer, 2014 SCC 43, gave a ruling on whether or not Matthew David Spencer had a reasonable expectation of privacy with respect to his subscriber information. Contrary to the decision of the trial judge, Cromwell J. concluded that since “[t]he disclosure of the subscriber information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities could be anonymous…” (para 66), the request made by the police to the Internet Service Provider (ISP), Shaw Communications Inc., without prior judicial authority, was a breach of Mr. Spencer’s section 8 Canadian Charter of Rights and Freedoms rights.

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[filed: Access to Information Charter Constitutional Law Privacy]

Quebec v Asphalte Desjardins: The Supreme Court stands by the principle of employee protection in Quebec

The decision in Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., 2014 SCC 51, demonstrates the Supreme Court of Canada’s support for employee protection while leaving an unclear future for Quebeckers who are employed in competitive industries.  The case dealt with an employee’s notice of resignation and his employer’s subsequent attempt to shorten the employee’s remaining tenure without providing either notice or payment in lieu of notice.  The Supreme Court’s decision hinged upon determining whether an employment contract remained in place once an employee or employer had provided notice of an intent to terminate the contract. Penned by Justice Wagner, the judgment aimed to harmonize Quebec’s Act Respecting Labour Standards and Civil Code of Quebec with respect to the employment relationship by emphasizing that a legislative intent to protect employees as vulnerable parties constitutes a common thread that runs through both pieces of legislation. Accordingly, the employment contract remains in place as a source of protection for employees from the time of notice of termination until the effective date set out in the notice. While this decision signals the judiciary’s employee-friendly approach in matters of notice and termination, its practical consequences may cause employers to adopt precautions that will limit employees’ mobility between firms and thereby hamper the innovation and competitiveness that arises from such mobility.

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[filed: Contracts Labour and Employment Statutory Interpretation]

Lawyer Unsuccessful in Discrimination Claim Against Law Firm

The decision of Fasken Martineau DuMoulin LLP v British Columbia (Human Rights Tribunal), 2012 BCCA 313, previously discussed on this site, has now made its way to the Supreme Court. Canada’s highest court has confirmed the result that Mr. McCormick, an equity partner at Fasken, could not succeed in his claim of age discrimination against the firm as a result of its mandatory retirement policy: McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39.

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[filed: Human Rights Labour and Employment]