Employment Law, Jurisdictional Immunity, and Access to Justice: Amaratunga v Northwest Atlantic Fisheries Organization

In Amaratunga v Northwest Atlantic Fisheries Organization, 2013 SCC 66, Justice LeBel, writing for a unanimous court, determined that an employee’s claim for wrongful dismissal against the Northwest Atlantic Fisheries Organization (NAFO) could not succeed due to the jurisdictional immunity that the international organization was entitled to as a result of an immunity order it had entered into with Canada.

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[filed: International Law Labour and Employment]

Forest Ethics Advocacy Assn v Canada: Barred from Charter Relief

This comment is the second part of a two-part series analyzing the Federal Court of Appeal (“FCA”) decision in Forest Ethics Advocacy Assn v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics]. As outlined in part one, Forest Ethics is a judicial review of interlocutory decisions related to a proceeding on the approval of the Line 9B and Line 9 Capacity Expansion Project. The basis for the decisions is the rejection of Ms. Sinclair, an environmentalist and resident of North Bay, Ontario, as a participant in the National Energy Board (“NEB”) hearings on the Line 9 project.

Forest Ethics and Ms. Sinclair challenged the interlocutory decisions on two bases: administrative law unreasonableness and the constitutional guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”). Part one (found here) detailed the administrative law elements of the decision. Part two will discuss the FCA’s findings on the applicants’ Charter argument.

Noting that the Charter argument had not been raised before the NEB, Justice Stratas framed the issue in negative terms: “whether the applicants are barred from seeking Charter relief on the application of judicial review…” (para 26). He found that they were. The discussion begins with the court’s rejection of public interest standing for Forest Ethics.

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[filed: Administrative Law Charter Civil Procedure]

Aboriginal Underrepresentation in Jury Roll Construction: Her Majesty the Queen v Kokopenace

The Supreme Court of Canada’s (“SCC”) upcoming decision in Her Majesty the Queen v Kokopenace (“Kokopenace”) will clarify what steps provinces need to take in order to ensure that Aboriginal persons facing criminal charges are afforded the chance to have their cases tried by a representative jury.

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[filed: Aboriginal Law Criminal Law]

Wakeling v United States of America: Supreme Court Upholds Wiretap Disclosure Provision

In Wakeling v United States of America, 2014 SCC 72, the Supreme Court of Canada (“SCC”) considered the constitutionality of the legislative scheme surrounding the disclosure of information collected through wiretaps to foreign governments. In a 3-1-3 split decision, the Court dismissed this challenge to the Criminal Code, RSC 1985, c C-46. While grappling with a difficult issue, the various judgements highlighted concerns regarding the need to respect Parliament’s role in crafting legislation and the use of information once in the hands of foreign governments.

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[filed: Charter Criminal Law]

R v Wilis: “A Close Call” and Appellate Review of Unreasonable Jury Verdicts

Six days after hearing the appeal of R v Wilis, 2014 ONCA 178 [Wilis, ONCA], Justice Rothstein delivered the one paragraph decision of the Supreme Court of Canada in R v Wilis, 2014 SCC 73 [Wilis, SCC]. Reproduced in full, it reads:

The majority of the Court is of the view that the appeal should be dismissed for the reasons of Doherty J.A. in the Court of Appeal. Justices Cromwell and Karakatsanis, dissenting, would have allowed the appeal for the reasons of Pepall J.A.

As the Supreme Court’s decision leaves no room for analysis, this post will rehearse and comment on the reasons of both the majority and dissent at the Court of Appeal. On reflection, the Court of Appeal’s decision provides both a neat summary of the jurisprudence around appellate court review of the reasonableness of a jury’s verdict, while also demonstrating the complexity of the review task itself.

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[filed: Criminal Law Evidence Law]

R v Chauhan: Sexual Assault, Consent, Intoxication and Honest but Mistaken Belief (Part II)

This commentary is the second part of a two-part series detailing and critiquing the decision of Thorburn J in R v Chauhan. The first part addressed the relevant facts, rules and analysis as it related to the first complainant in the case, A.C. The second part will address the second complainant, P.W.

Unlike Thorburn J’s conclusion of the incident relating to A.C., I believe that Thorburn J made numerous errors in law with respect to her analysis of P.W.’s incident which would warrant an appeal to the Ontario Court of Appeal.

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[filed: Criminal Law]

R v Chauhan: Sexual Assault, Consent, Intoxication and Honest but Mistaken Belief (Part I)

This commentary is the first part of a two-part series detailing and critiquing the decision of Thorburn J in R v Chauhan. The first part addresses the relevant facts, rules and analysis as it relates to the first complainant in the case, A.C. The second part will address the second complainant, P.W.

On September 25, 2014, Thorburn J ruled that Amitabh Chauhan was not guilty of drugging or sexually assaulting A.C., and that neither Chauhan nor Suganthan Kayilasanathan were guilty of (a) drugging for the purpose of overpowering and sexually assaulting P.W., or sexually assaulting P.W.; or (b) of being a party to a sexual assault by another.

While I agree with Thorburn J that there was reasonable doubt that Chauhan sexually assaulted A.C. or that Chauhan met with A.C. in September or October 2003, I argue that Thorburn J has erred in law with respect to the sexual assault of P.W. by Chauhan and Kayilasanathan. As such, it is quite likely that the Crown will appeal Thorburn J’s ruling.

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[filed: Criminal Law Uncategorized]

Marriage and Agency: Swift v Tomecek Roney and a Statement Against Assumptions

After a custom built home was found to have significant structural defects, the homeowners (“the Swifts”) sued the designer of the home (“the Architects”). This case provides clear guidance on the law of agency in the context of matrimonial relationships. As such, Swift v Tomecek Roney Little & Associates Ltd., 2014 ABCA 49, provides invaluable insight for parties who contract with couples.

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[filed: Contracts]

Ontario Court of Appeal Finds Trial Judge Biased: Hazelton Lanes Inc v 1707590 Ontario Limited

The Ontario Court of Appeal ordered a new trial under a different trial judge after finding a reasonable apprehension of bias on the part of Ontario Superior Justice Ted Matlow in Hazelton Lanes Inc v 1707590 Ontario Limited2014 ONCA 793 [Hazelton Lanes]. Justice Matlow’s objectivity has been questioned by the Canadian Judicial Council in the past, when an inquiry panel made a finding against him before being overturned in the Council’s recommendations to the Federal Minister of Justice.

The matter at trial arose from a client bringing an action against his former solicitor when their relationship turned sour following an elaborate series of financial transactions. While ostensibly attempting to unpack the relationship between the parties and curb the Defendant solicitor’s evasive strategy during trial, Justice Matlow assumed an active role that escalated to the point of issuing 19 directions, numerous ex parte Mareva injunctions and a finding of contempt against the Defendant. The Court of Appeal found that the extent of this active involvement, coupled with a lack of detailed reasoning for the Trial Judge’s decisions, cumulatively amounted to a reasonable apprehension of bias.

The Court of Appeal implicitly affirmed that some cases may require trial judges to play a more active role in fact-finding with the proviso that detailed reasons must accompany decisions arising from such active involvement.

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[filed: Administrative Law Civil Procedure Real Estate]

Consent and Sexual Assault Causing Bodily Harm: R v Zhao  

Can a person legally consent to sexual assault causing bodily harm? In the wake of the Supreme Court of Canada’s landmark decision in R v Jobidon, [1991] 2 SCR 714, there remains some confusion regarding how far to extend the broad proposition outlined in that case – namely, that bodily harm cannot be consented to. In R v Zhao, 2013 ONCA 293, the Ontario Court of Appeal clarifies the extent to which the ruling in Jobidon might apply in the context of sexual assault.

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[filed: Criminal Law]