Introduction

Yesterday the Supreme Court heard arguments and reserved judgment in Hazel Ruth Withler et al. v. Attorney General of Canada (Court of Appeal decision available here), the first case in over two years to challenge legislation solely on the grounds it breaches the equality guarantee of the Charter. The appeal revolves around a claim that the reduced payout from the death benefit fund based upon age discriminates on enumerated grounds. The media appears to be more gripped by the potential monetary ramifications of a successful appeal, an amount the Justice Department has calculated in excess of $2 billion; none the less, it is important to note that a Treasury Board report at the end of 2008 showed a $2.5 billion surplus in the death benefit fund. It will be interesting to see the approach the Court takes in light of recent jurisprudence on this issue.

Background

Ms. Withler and her co-appellant Ms. Fitzsimmonds are the lead plantiffs in two class-action lawsuits. Ms. Withler’s husband worked in the public service for 35 years before retiring. Upon his death 3 years later, Ms. Withler received $38,000 from the death benefit fund. Similarly Ms. Fitzsimmonds received $5,000 when her husband, who had served 30 years in the navy, passed away at the age of 71.

The death benefit fund is a product of two respective acts: s. 47(1) of the Public Service Superannuation Act (”PSSA“) and s. 66(1) of the Canadian Forces Superannuation Act (”CFSA“). Those acts provide a supplementary death benefit of twice the salary of the participants upon their death, subject to a reduction for age. In the case of the PSSA, public servants’ benefits are reduced by 10% for each year in excess of 65. Under the CFSA, Canadian Forces members’ benefits are reduced 10% for each year beyond 60.

The appellants claim that those provisions constitute age discrimination under s. 15 of the Charter. Accordingly, they seek a declaration that the provisions are inconsistent with the Charter and of no force and effect, and a judgment for the class in the amount by which benefit payments have been reduced.  The defendants argue that the provisions are merely part of a larger legislative scheme which takes into consideration the changing financial requirements of participants as they age.

S. 15(1) states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

At trial, the judge applied the Law v. Canada analysis and found that the provisions neither stigmatized the surviving spouses nor treated them unfairly,  Accordingly, the trial judge found the admittedly differential treatment was not discriminatory. While the B.C. Court of Appeal upheld the trial decision,  the Honorable Madam Justice Rowles dissented.  She would have that the trial judge was in error in applying the comparator group and in failing to conclude the provisions were discriminatory. The appellants now appeal to the Supreme Court of Canada.
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On March 1, the Manitoba Court of Appeal released its decision in R. v. Moquin, 2010 MBCA 22. In doing so, the Court of Appeal visited how to properly distinguish between the crime of “assault” (s. 265 of the Criminal Code) and the crime of “assault causing bodily harm” (under s. 267(b) of the Criminal Code).

The accused and the complainant formed was called a “good snapshot of a classic abusive domestic relationship”. The incidents at issue on appeal were the following: 1) as part of a greater assault, the accused pulled the complainant’s hair so hard as to pull some out, leaving her with a sore scalp for a few days; 2) as part of another greater assault, the accused grabbed the complainant by the throat, thereby choking her hard enough to make it difficult for her to breathe and leaving her with a sore throat and causing difficulties when swallowing for a few days; 3) the accused squeezed the complainant’s hand so hard so as to bruising, soreness, and an inability to bend it for a week or so; and 4) the accused committed an assault leaving the complainant with bruised arms and a sore throat. The trial judge held that these physical injuries did not amount to “bodily harm” as required by s. 267(b), and accordingly convicted the accused of common “assault”.

Under s. 2 of the Criminal Code, “‘bodily harm’ means any hurt or injury that interferes with the health or comfort of the person and that is more than merely transient and trifling in nature”. Deciding the Crown’s appeal on this question of law, the Manitoba Court of Appeal wrote: Read the rest of this entry »

On March 9th, 2010, the Ontario Court of Appeal released its decision in Danso-Coffey v. Ontario, 2010 ONCA 171. The case deals with an individual who is named a director of a corporation without her consent or knowledge. Danso-Coffey was owned and incorporated by Ms. Danso-Coffey’s brother. Without her knowledge, she was named one of the directors of the company. She had no involvement with the company. In 2004, Ms. Danso-Coffey’s brother filed for bankruptcy. On May 15, 2006, the Minister assessed Ms. Danso-Coffey for unremitted retail sales tax of $64,020 on the basis that she was a director of the company.

The Minister made this assessment pursuant to section 43 of the Retail Sales Tax Act (RSTA), R.S.O. 1990, c. R-31. Section 43 of the RSTA provides that when a bankrupt corporation has failed to remit taxes, the directors of the corporation are jointly and severally liable with the corporation to pay the tax. Furthermore, section 43(3) of the RSTA recognizes a due diligence defence for directors where they are not subjected to any liability if they exercise the degree of care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances.

The application judge held that Ms. Danso-Coffey could not be lawfully assessed as a director under section 43 of the RSTA. A person’s consent is required in order for the appointment of the person as a director to be valid. Because she never gave her consent and was named director without her knowledge, she was never a director. The judge further held that the RSTA is not a sufficiently comprehensive code. Thus, it does not oust the court’s jurisdiction to grant declaratory relief. Nothing in the RSTA would prevent the court from exercising its inherent and statutory jurisdiction to grant declaratory relief. The application granted Ms. Danso-Coffey relief from payment of tax arrears, stating that it would be “unfair not to do so”. The Minister appealed this decision. Read the rest of this entry »

In order to pull my weight in solidifying the general reputation of law students as somewhat nerdish types who just…can’t…get…enough…law, I recently picked up The Nine, journalist Jeffrey Toobin’s behind the scenes look at the U.S. Supreme Court through the nineties and early 2000s. (The book was reviewed by TheCourt.ca’s Jon Bricker back in March, 2008).

For the people who want to get the low-down on how the Court’s major opinions were shaped, this is the book for you. Toobin has talked to the justices and their clerks and sifted through the personal papers of retired judges to construct a picture of how cases such as Planned Parenthood v. Casey (505 U.S. 833), Bush v. Gore (531 U.S. 98) and Hamdan v. Rumsfeld (548 U.S. 557) get decided. Toobin also takes his readers into the nomination processes and describes how the Clinton and Bush administrations settled on their picks for new justices.

While the book certainly contributes to the view that legal arguments matter less in the Supreme Court than judicial ideology, it provides a revealing look at what actually happens at the Supreme Court, which I think helps humanize the place and explain its role to the public.

Of course, I can’t help but notice that no similar book exists on the Canadian Supreme Court. This isn’t fair! (Hey, if I’m going to pull my weight on the nerdish law-student reputation, I’m going to go all out.) America gets two (The Brethren, a similar profile of the Burger Court co-written by Bob Woodward, being the second), but Canadians have to settle for Supreme At Last, University of Lethbridge political science professor Peter McCormick’s analysis of the number of judgments, dissents, and “who’s voting with whom” stats of the various incarnations of our top court since the 1950s.

Don’t get me wrong, I like statistics as much as the next guy, and they can be useful to a point. But I’m not that interested in being able to put together a set of SCC Baseball Cards with stat packs to trade with my friends. “You have the ‘91 Sopinka card? Dude! That was the year he wrote Stinchcombe! I’ll trade you for McLachlin’s 2000 Chief Justice Rookie Card.”

No, instead we Canadians have to contend with Youtube clips of the Chief Justice’s occasional speeches to law students or TVO interviews to glean any sort of information about the Court’s inner workings. (Though I still don’t know how many justices you have to convince in order to be granted leave to appeal. Maybe they don’t even know.)

Why such a strict code of omertà? Is there a dungeon in the bowels of 301 Wellington Street that each batch of incoming clerks are shown on their tour to reinforce the message that loose lips sink ships? Or is there a more pedestrian answer — do our judges just get along with each other, meaning there isn’t anything worth reporting? Or maybe it’s just that no one has bothered to ask…

This isn’t to say that the Court should leak like a sieve. I’m not suggesting that the outgoing clerks check in with Peter Mansbridge on their way out the door for a debrief session. But it’s coming up on twelve years since the Secession Reference was decided, and twenty two years since Morgentaler. They took 15 months to decide that case! You’re telling me there’s nothing interesting to say about what went down? I find that a bit hard to believe.

Old Legal Debts and the Indian Act
The Financial Legal Post’s Julius Melnitzer says that Borden Ladner Gervais’ [BLG] appeal in Borden & Elliot v. Temagami First Nation “is shaping up as potentially embarrassing to BLG, if not downright ugly.” Others might put it more strongly, actually, in that BLG’s alleged bad faith respecting the aboriginal band’s outstanding legal fees is a nicely ironic demonstration of what was once offensively known as “Indian giving”.

The legal fees in dispute were incurred in the ’80’s and ’90’s, in land claims actions brought by Temagami First Nation [TFN] aginst the federal and provincial governments. According to Domenico Magisano, the Blaney McMurtry lawyer representing the band in the appeal, BLG’s fees were initially paid through a government fund; once the fund ran dry, BLG “asserted that it continued to to act on behalf of TFN and…amassed an outstanding account of over $1.1 million.” In 1996, BLG succeeded in an action to recover the fees from OFNGP, which is charged with distributing Casino Rama revenues among Ontario’s various aboriginal bands, including TFN. According to Magisano, BLG “advised TFN that this was merely a procedural step and that BLG had no intention of enforcing on any judgment it might obtain.” TFN thus did not defend the claim and was noted in default. Biding its time, and early assurances notwithstanding, BLG obtained a default judgment against TFN and, in 2008, issued TFN a notice of garnishment. In defending against BLG’s appeal, TFN’s success hinges on how the monies owed BLG are characterized in light of s. 89(1) of the Indian Act, and whether or not the disputed amount is “debt” or “personal property”. If the appeals court sees the old account as debt, then BLG wins. However, if the court decides (given that Casino Rama and the OFNGP are both located on reserves) that the money is personal property, it will dismiss the appeal, as the Act provides immunity to garnishment. Curiously, the “most recent news” section of Borden Ladner’s website makes no mention of the upcoming appeal. Read the rest of this entry »

In 1992, a striking gold miner in the Northwest Territories (NWT) planted a bomb which killed nine replacement workers. The ensuing judicial saga, in which the widows of the murdered men sought compensation in tort from the security company guarding the mine, the union, and the territorial government branch responsible for mine safety, ultimately came to naught with the SCC’s recent decision in Fullowka v. Pinkerton’s of Canada Ltd, 2010 SCC 5,  commented on at TheCourt.ca by Daniel Del Gobbo here. The Supreme Court’s lengthy decision offers a comprehensive analysis of the stages of a claim for negligence. One notable aspect of the judgment is the Court’s consideration of government liability in tort for failure to enforce statutorily imposed standards of safety, and in particular the surprising extent to which receiving legal advice interpreting responsibility narrowly can insulate the government from liability.

Fullowka suggests that taking legal advice will be a powerful shield against claims of negligence – even when the advice is suspect.  The plaintiffs asserted that the NWT government’s decision not to close the mine in the face of ongoing threats and acts of violent sabotage amounted to a failure to meet the standard of care it owed under the Mining Safety Act. The Court rejected this argument, finding that the government met its standard of care by virtue of its good faith reliance on legal advice stating the government did not have the authority to close the mine in the circumstances. The gist of this advice was that an order to close the mine would be outside the jurisdiction of the government’s Mine Safety Division because, in the context of strike-related violence, such an order would more properly be within the purview of either the RCMP (as a criminal matter) or the Labour Board (as a matter of labour relations.) Although the legal opinion received by the government was wrong, the mere fact that it was relied upon in good faith was enough to relieve the government of any responsibility for the deaths.

Writing for a unanimous Court, Justice Cromwell agreed in no uncertain terms with the trial judge that the legal opinion was wrong: Read the rest of this entry »

For those of you who have been “taxed” at the border for alcohol, you may find the Federal Court of Appeal’s recent decision in Philip Anisman v. Canada Border Services Agency et al., 2010 FCA 52, potentially useful. Pursuant to an agreement signed between the Government of Canada and the Liquor Control Board of Ontario (LCBO) in 1993, custom officers working for the Canada Border Services Agency (CBSA) collect mark-ups on imported alcohol. In January 2007, Mr. Anisman paid a mark-up of $537.13 to the CBSA, which was remitted to the LCBO. He made a request to the CBSA that the mark-up be refunded. After consulting the LCBO, the CBSA informed Mr. Anisman that the mark-up was non-refundable. In response, Mr. Anisman made an application to the Federal Court for judicial review of the CBSA’s decision to refuse the refund. The CBSA filed a motion for an order dismissing the application for judicial review on the primary ground that the Federal Court did not have the jurisdiction to grant the requested remedy. Jurisdiction was lacking because the CBSA was not acting as a “federal board, commission or other tribunal” within the meaning of s. 2 of the Federal Courts Act. Mr. Anisman filed a cross-motion for an order granting summary judgment and requiring a refund of the mark-up on the primary ground that the CBSA was not authorized by federal legislation to enter into the aforementioned agreement to collect mark-ups on behalf of the LCBO. At the Federal Court, Barnes J. dismissed both motions. Nadon J.A., writing for the Federal Court of Appeal, overturned portions of the lower court decision.
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A few weeks ago, the Supreme Court denied leave to appeal in Slahi v. Canada (Justice), 2009 FCA 259, first canvassed on TheCourt.ca by Padraic Ryan here. My post aims to briefly examine the international law aspects of the case and their relation to the Charter.

Slahi affirms the recent line of jurisprudence (culminating in Canada (Prime Minister) v. Khadr, 2010 SCC 3) concerning the applicability of section 7’s right to life, liberty, and security of person to Canadians detained at Guantanamo Bay. Of course, “Canadian” may be a misnomer in Mr. Slahi’s case: he is a landed immigrant, which the Federal Court of Appeal ruled disqualifies him from the benefit of Charter protections overseas.

The plain language of section 7 extends its protection to “everyone”, not just citizens.  Such a broad classification would initially seem to include persons of the claimant’s status.  However, as Justice L’Heureux-Dubé rather sardonically observed in R. v. Cook, [1998] 2 S.C.R. 597, “I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word ‘everyone’.”

“Everyone” has been previously found to include non-Canadians claiming Charter protections abroad where circumstances establish a nexus with Canada. During his detention at Guantanamo Bay, Mr. Slahi was interviewed by representatives from the RCMP and Canadian Security Intelligence Service about matters relevant to his pending habeas corpus petition. Records from this interview were subsequently forwarded to U.S. authorities. Further, Mr. Slahi resided in Montreal between November 1999 and January 2000, after having been granted landed immigrant status. The question before the court was whether the Canadian government’s participation in Mr. Slahi’s interrogation and/or his residency status sufficiently connected the claimant with Canada such that his section 7 rights were engaged.

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The Supreme Court of Canada recently released official statistics on its work in 2009 along with comparisons with the previous ten years: Bulletin of Proceedings: Special Edition, Statistics 1999 to 2009 (26 February 2010). The official statistics are interesting and insightful. In light of recent, flavourful TheCourt.ca posts by my friend James Yap (“Judgment of the Decade,” “the First Annual Ozzy Awards”) I decided to add to the official statistics by compiling some judge-specific statistics of my own, included in the second half of this post.

Applications for Leave
In 2009, 556 appeals were filed with the Supreme Court of Canada, of which 542 were applications for leave to appeal and 14 were appeals as of right. 518 of these applications were considered by panels of the Court for decision (the remaining carry over to 2010). Not surprisingly, more than half the applications originated in either Quebec or Ontario (139 and 137, respectively).
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SCOTUS chief to (not) retire
Breaking news: John Roberts, the Chief Justice of the United States, is retiring “for personal reasons,” Radar online reported yesterday. Actually, just kidding! Radar, known more for following Hollywood celebrities than Supreme Court justices, retracted the story less than an hour later, but not before it had ricocheted across the Web: The Huffington Post put up a story which noted that “[w]hile RadarOnline doesn’t give a reason for the possible retirement, Roberts, 55, has suffered two seizures, in 2007 and 1993. Time magazine speculated in 2007 that Roberts may have epilepsy.” The “news” was also picked up by The Drudge Report, which ran the “shock report” but also quoted a SCOTUS source saying “this is not happening … news to me.” (HT: Gawker.) As it turns out, it was probably news to Roberts as well. As Above The Law explains, the rumour started in a first-year criminal law class at Georgetown University Law Center, when Professor Peter Teague walked into his morning class and announced that, as relayed by one of his students, “we might find it interesting that tomorrow, Roberts would be announcing his retirement for health concerns.” Teague shared the shocking news at 9 a.m. and Radar had a story up 10 minutes later (talk about speedy reporting). Their first retraction came at 9:36 a.m., six minutes after Teague told his class that his comments were a joke meant to make a point “on the credibility and reliability of informants.” ATL, who to their credit sought to do some independent reporting before running the story, noted that the news never really passed the smell test to begin with: “One of [ATL's] SCOTUS experts actually laughed out loud after we (sheepishly) asked, ‘Have you heard anything about a possible Roberts retirement?’ This source noted that [Roberts] would sooner die — literally — than give Obama the chance to appoint his successor.” Read the rest of this entry »