R v Elliott: An Unhinged Use of Hashtags

In R v Elliott, 2016 ONCJ 35 [Elliott], Gregory Elliott was found not guilty of criminally harassing two women by repeatedly communicating with them via Twitter through various hashtags they had created. In my view, Mr. Elliott fulfills the definition of a “Twitter troll” and I find his opinions personally offensive. But is the fact that he engaged these women in repeated debate, even after being blocked, enough to find him criminally responsible of harassment? Justice Brent Knazan found that Mr. Elliott’s not letting go of a topic is stubborn and may be considered childish, but it does not provide a basis for the recipient of his tweets to fear danger (Elliott, 76). I would agree. To be clear, Mr. Elliott’s tweets did not threaten violence. But, I am also not implying that tweets need to have a violent nature to be found criminal. That view would ignore the realities of the way individuals perceive fear. However, a criminal charge is very serious and rightfully requires a degree of certainty. In the developing case law around social media, Judge Knazan got this right.

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[filed: Criminal Law Freedom of Expression Freedom of Expression Internet Privacy]

Out in the Cold: No Protection with Tax Shelters?

Every year, Canadians can be found searching for ways to avoid paying the Canadian Revenue Agency (“CRA”) more than they absolutely have to in taxes. Many of us work hard for our money and do not want to give it up so easily. In a progressive tax system like Canada, the more you earn the more you are taxed.  This reality creates an opportunity for tax avoidance vehicles to effectively market themselves to the public.

With tax season looming, the Federal Court of Appeal (“FCA”) has issued a clear warning: when it comes to the use of certain tax shelters, taxpayers are on their own if the CRA initiates an audit.

In Canada v Scheuer, 2016 FCA 7, the FCA takes aim at one such popular tax avoidance program, which has captured the attention of numerous Canadians.  This case raises the alarm about what citizens should and should not expect from the government, in terms of protecting their interests when a chosen method of paying less in taxes backfires.

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[filed: Civil Procedure Class proceedings Commercial Law Federal Court Federal Court of Appeal Tax]

Mapleview v Papa Kerollus: Erring on the side of fairness when adjudicating commercial leases

Mapleview-Veterans Drive Investments Inc. v Papa Kerollus VI Inc. (Mr. Sub), 2016 ONCA 93 [Mapleview], a case released yesterday by the Ontario Court of Appeal (“ONCA”), is the latest pronouncement on interpreting commercial lease provisions. While the outcome of the appeal is understandable given the facts relied upon by the parties, it causes concerns not only for how future cases will be interpreted, but also for the bargaining power it bestows onto commercial landlords at the expense of fairness for commercial tenants.

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[filed: Commercial Law]

Part II: 2015 Year in Review

2015 has been a particularly significant year for the Supreme Court of Canada (“SCC”) in a number of ways, and indeed, TheCourt.ca’s editorial staff has been kept quite busy. Part I of this year-in-review post will summarize the activity of the SCC and the comings and goings of Justices and staff. Part II will discuss some of the key precedent-setting decisions handed down this past year and important cases to follow in 2016.

Decisions, Decisions…

Constitutional Law

By far the most politically and socially significant decision of 2015 was that of Carter v Canada (Attorney General), [2015] 1 SCR 331, where a unanimous bench jointly found sections 14 and 241(b) of the Criminal Code, RSC 1985, c C-46 unconstitutional, violating the right to life, liberty and security of the person in a manner inconsistent with the principles of fundamental justice protected under section 7 of the Charter. The Court thus declared the impugned Criminal Code provisions void, insofar as they prohibit a physician from assisting in the suicide of a consenting, competent adult who suffers intolerably from a grievous and irremediable medical condition. (For in depth case comments, see here and here.) The declaration of invalidity was suspended for one year – although the federal government was successful in having the suspension extended for a further four months in Carter v Canada (Attorney General), 2016 SCC 4. (For a case comment on the live hearing, see here.)

Although this decision has received the most media attention, it was by no means the only significant decision in 2015. In fact, only a week before the 2015 Carter ruling was handed down, the SCC issued another landmark Charter decision in Saskatchewan Federation of Labour v Saskatchewan, [2015] 1 SCR 245, with Justice Abella’s majority recognizing the “right to strike [as] constitutionally protected because of its crucial role in a meaningful process of collective bargaining”(para 51). (For a detailed case comment, see here.)

Equally noteworthy is the divided opinion on the constitutionality of mandatory minimums in R v Nur, [2015] 1 SCR 773, where a 6-3 majority found the three- and five-year mandatory minimum sentences on certain firearm-related offences to be grossly disproportionate, relying on the use of the controversial “reasonable hypothetical.” (For an analytical case comment, see here.)

In addition to Charter jurisprudence, the constitutional division of powers was also at issue on several occasions in 2015. In the “paramountcy trilogy” (consisting of Lemare; Alberta (Attorney General) v Moloney, 2015 SCC 51 (for a case comment on Lemare and Moloney, see here and here, respectively); and 407 ETR Concession Co v Canada (Superintendent of Bankruptcy), 2015 SCC 52), Justice Gascon appears to have re-worked (and in a sense, re-cast) the contemporary approach to the two-part paramountcy test, much to the disapproval of Justice Côté. The SCC also grappled with the proper application of the doctrine of cooperative federalism in Quebec v Canada (for an analytical case comment, see here). Finally, in Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, an 8-1 majority affirmed the constitutional validity of provincial legislation imposing immediate penalties for those caught driving while impaired through approved screening devices. (For a detailed case comment, see here.)

Public Law

Closely related to the constitutional realm are the two public law decisions concerning Crown proceedings. The appeal in Henry v British Columbia (Attorney General), [2015] 2 SCR 214 [Henry] involved a civil suit stemming from the wrongful conviction of Mr. Henry, after the Crown failed to make full disclosure before his trial. Justice Moldaver’s majority decided that malice was not in fact a requirement to obtain a charter remedy. Nonetheless, he ultimately held that civil recourse in cases like that would only be available to a claimant who suffered harm as a result of the intentional withholding of information by the Crown in circumstances where it knew or ought to have known that the disclosure would have restricted the defence’s ability to fully answer the charge. TheCourt.ca’s Katya Bogdanov suggests that this new standard – intention without malice – bears very little appreciable difference to the pre-Henry standard requiring both intention and malice. TheCourt.ca’s Dan Priel also takes another look at Henry and how to deal with difficult precedent and facts.

Similarly, the SCC in Strickland v Canada (Attorney General), [2015] 2 SCR 713 [Strickland] addressed the question of whether provincial superior courts could review the validity of federal administrative action. Both the majority and the concurrence agreed that superior courts have the jurisdiction to consider the validity of regulations in administrative law if that point is necessary for the determination of the matter before them. In their concurring reasons, however, Justices Abella and Wagner took care to note that Strickland ought not to be interpreted as “categorically endorsing” the assumption that “the Federal Court always has exclusive jurisdiction to declare invalid federal regulations promulgated by the Governor in Council” – this assumption is to be tested in another case “where the issue is squarely raised” (para 67). (For an in depth case comment, see here.)

Criminal Law

The SCC also took the opportunity in 2015 to address and clarify a number of ambiguous doctrines and principles in the criminal law. In R v Rodgerson, [2015] 2 SCR 760, a unanimous bench warned against the nature of using post-offence conduct evidence as a basis for proving intent, and affirmed that juries hearing this type of evidence must be properly instructed about its limited probative value regarding intent. (For an analytical case comment, see here.)

The right to a fair trial was also the topic of an important ruling in R v Kokopenace, [2015] 2 SCR 398, where the accused – an on-reserve Aboriginal man – argued that the under-representation of Aboriginal people on the jury roll in his district violated his section 11(d) right to a fair trial, and section 11(f) right to a jury trial. Despite recognizing “the problem of the underrepresentation of Aboriginal on-reserve residents in the jury system,” a divided court found that Ontario satisfied its obligations by making reasonable efforts in this area (para 127). TheCourt.ca’s Zinejda Rita nonetheless suggests that Ontario has since demonstrated some willingness to improve the representation of Aboriginal in jury selection, by adopting certain Iacobucci Report recommendations on this point.

Finally, in MM v United States of America, 2015 SCC 62, the SCC undertook the difficult task of reviewing the Minister of Justice’s decision to surrender the appellant-mother of three children to the United States to face abduction charges, after she and her children were located in a battered women’s shelter in Quebec. The mother contended that she did not abduct her children – rather that they had ran away with her to escape the mental and physical abuse inflicted on them from their father, who had sole custody. For the majority, Justice Cromwell dismissed the appeal, and upheld the Minister’s surrender order. A strong dissent authored by Justice Abella called the majority approach “Kafkaesque” (para 176), and among other things, raised serious questions about the majority’s consideration of the children’s best interests. (For a detailed case comment, see here.)

Administrative Law

In 2015, the SCC handed down a monumental decision with potentially huge implications on corporate law. Tervita Corp v Canada (Commissioner of Competition), [2015] 1 SCR 161, marks the very first time the SCC has directly explored the merger and efficiency defence provisions in the Competition Act, RSC, 1985, c C-34. In their fantastic review of this complex and highly technical decision, TheCourt.ca’s Kendall Grant and Andreea Andrei underscored several key implications and troublesome aspects of this decision, which is sure to have a considerable impact on Canadian merger and competition law.

A major point of contention in 2015 was the proper application of the standard of review for each issue raised in a judicial review. This was a live dispute in Movement laïque québécois v Saugenay (City), [2015] 2 SCR 3 (for a case comment, see here) and Canadian Broadcasting Corp v SODRAC 2003 Inc, 2015 SCC 57 [SODRAC] where the majorities both held that the reviewing court ought to break down the issues, and review each separate question under its proper standard, as opposed to reviewing the decision as a whole. Dissenting on this point in both decisions, Justice Abella strongly criticized the majority’s position – in SODRAC, going as far as stating the following:

Extricating the various components of the decision and subjecting each to its own standard of review analysis represents, with respect, a significant and inexplicable change in this Court’s standard of review jurisprudence, further erodes the careful framework this Court endorsed in Dunsmuir v New Brunswick, […] and risks creating an unworkable template for the judicial review of administrative decision-making (para 189).

Although the majority’s approach appears to have won out in 2015, we can expect this debate to continue, with Justice Abella likely to persevere in her opposition to the multiple-standards-of-review approach.

Other Significant Decisions

In Theratechnologies Inc v 121851 Canada Inc, [2015] 2 SCR 106, the SCC clarified the “reasonable possibility of success” standard that must be met by shareholders seeking to launch a securities class action regarding shares purchased on the secondary market – a requirement common in the securities legislation of most provinces. The unanimous bench agreed that this requirement ought to be more than just a “speed bump,” and that it should instead be used to screen unmeritorious or frivolous claims, so as to only allow those with a reasonable chance of success to proceed (para 38). This raises questions as to whether the Theratechnologies decision “could make it harder for plaintiffs across the country to file this kind of legal action.” (For an analysis on the case, see here.)

Finally, in a seemingly never-ending dispute between a global oil company and a small class of South American villagers, the SCC decided in Chevron Corp v Yaiguaje, 2015 SCC 42 that the Ecuadorian plaintiffs can now have an extraterritorial judgment recognized and enforced against Chevron in Ontario, despite there being no real and substantial connection between that dispute and the province. Although this may seem like a huge victory for the underdog, Justice Gascon reminds us nonetheless that the ruling “does nothing more than to give the plaintiff an opportunity to seek recognition and enforcement,” and the defendant can still avail itself of any available procedural and substantive tools in its tireless attempt to dispose of the plaintiff’s allegation (para 94). With that in mind, TheCourt.ca’s Katya Bogdanov predicts that this saga is likely to drag on in courtrooms around the world. (For another case comment, see here.)

Looking Ahead! 

Despite a busy and eventful 2015, the SCC is showing no signs of slowing down, with 11 appeals and motions heard in January alone, and five decisions released thus far in 2016. Moreover, a number of decisions to be released, and key appeals remain to be heard.

World Bank Group v Kevin Wallace et al was heard late last year, and we can expect an important pronouncement on this complex and interesting legal dispute, involving accusations against SNC Lavalin officials under the Corruption of Foreign Public Officials Act, SC 1998, c 34. Similarly, judgment in R v DLW is expected to be handed down this year, where the SCC will decide on the elements of the Criminal Code offence of bestiality. (For an in depth case comment on the decision from the British Columbia Court of Appeal, see here; for a review of the hearing from the SCC, see here.)

The SCC is also scheduled to hear the appeal in Royal Bank of Canada v Trang et al, which will address important privacy law questions in our increasingly interconnected society. The difficult questions regarding factual causation in medical malpractice law will be put to the SCC in Benhaim v St-Germain, with the hearing tentatively scheduled for April 2016. Finally, in R v Lloyd, the SCC will have the opportunity to assess the constitutionality of a mandatory minimum sentence under the Controlled Drug and Substances Act, SC 1996, c 19. (For an analysis on the decision from the British Columbia Court of Appeal, see here.)

As always, TheCourt.ca will be your one-stop source for all SCC-related news and analysis.

[filed: Administrative Law Constitutional Law Criminal Code]

Part I: 2015 Year in Review

2015 has been a particularly significant year for the Supreme Court of Canada (“SCC”) in a number of ways, and indeed, TheCourt.ca’s editorial staff has been kept quite busy. Part I of this year-in-review post will summarize the activity of the SCC and the comings and goings of Justices and staff. Part II will discuss some of the key precedent-setting decisions handed down this past year and important cases to follow in 2016.

Read the rest of this entry »

[filed: Administrative Law Civil Procedure Constitutional Law Criminal Law SCC Appointments]

Finding a Reasonable Apprehension of Bias: Stuart Budd & Sons Limited v IFS Vehicle Distributors ULC

Everyone has the right to a fair trial. This foundational principle was undermined in Stuart Budd & Sons Limited v IFS Vehicle Distributors ULC, 2015 ONSC 519. On appeal, the Ontario Court of Appeal (“ONCA”) determined that a reasonable and informed objective observer would consider the motion judge, Justice Corbett, to have displayed bias (Stuart Budd & Sons Limited v IFS Vehicle Distributors ULC, 2016 ONCA 60, para 5 [IFS, ONCA]). Justice Corbett’s comments and action indicated that he pre-judged the motion before hearing all the evidence. Justice Epstein, writing for a unanimous court, ordered a new trial.

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[filed: Civil Procedure]

Update on R v Riesberry: it’s more than just a game.

Some time ago, I wrote a piece on the one line Supreme Court of Canada (“SCC”) holding that the appeal in R v Riesberry [Riesberry] is to be dismissed. In that article, I purported to prognosticate on the ratio to be derived from what, on the facts, appears to be a straightforward case. Briefly: a professional horse trainer was caught on tape doping two horses before two races, in an effort, clearly, to give them an advantage. He was charged with cheating in a game and fraud. The trial judge acquitted him, saying that horseracing isn’t a game, and that there was no evidence that anyone changed their betting strategies in reliance on the fraud.

On December 18, 2015, the SCC closed its year by releasing the reasons for its decision. To be clear before we go forward:

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[filed: Criminal Code Uncategorized]

R v Rogers Communications: Some Guidelines for Big Brother

In R v Rogers Communications, 2016 ONSC 70 [Rogers], Justice John Sproat of the Ontario Superior Court of Justice provided some much needed guidance to police and issuing justices when handling production orders for “tower dumps.” Sought by investigators through a court order, tower dumps occur when a telecom company is compelled to provide the names and numbers of cellphone users that have used a particular cellphone tower. So why should you care if you did not commit a crime? What are the police going to do with that information? There is a good chance that if the information is not relevant to the investigation, it will be discarded and never see the light of day. But why should police have access to so much data when they are looking only for the tiny percentage that is relevant?

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[filed: Access to Information Charter Constitutional Law Criminal Law Criminal Procedure Privacy]

Some Suggestions on Regulating Technological Innovation: City of Toronto v Uber Canada Inc.

In November of last year, I wrote an article for The Court on the recent decision in City of Toronto v Uber Canada Inc., 2015 ONSC 3572 [“Uber”] by the Ontario Superior Court of Justice (“ONSC”). In Uber, Justice Sean F. Dunphy ruled that Uber is neither a “taxicab broker” nor a “limousine service” within the meaning of the City of Toronto Municipal Code, and thus cannot be prohibited from operating without a license.  In other words, the Court said that Uber cannot be regulated under the existing municipal framework that has regulated the taxi industry in Toronto for several decades.  However,  as Justice Dunphy alluded to, it is open to municipalities to develop new approaches to regulating this form of Disruptive Innovative Technology (“DIT”), however, it is abundantly clear that ‘outside the box’  thinking is necessary.

In this regard, I suggested in the above referenced piece that Uber, from a policy standpoint, should not be viewed entirely as an elusive regulatory subject. Instead, it is better understood as mimicking the role that law plays in enabling a market framework to exist, as market regulator, constraining the behavior of market actors in the public interest. I further suggested that Uber’s framework of rules and their implementation might surpass the public interest function played by the municipality in the areas of driver safety, passenger safety, and cost regulation. The purpose of this article is to further explore that claim, highlight the strengths and weaknesses of the Uber framework in light of recent information, and propose how municipalities might approach the issue.

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[filed: Municipal Law]

Livent v Deloitte: Has the Fat Lady Finally Sung?

The Executives of Livent were masters of live performance. Known for producing popular shows such as The Phantom of the Opera and Show Boat, they never thought their own escapades would play out in the media as a protracted drama with a final act orchestrated by the highest court in Ontario.

Early in January, the Court of Appeal for Ontario (“ONCA”) sealed a critical chapter in the decades-long saga between Livent Inc. (“Livent”) and Deloitte & Touche LLP (“Deloitte”) (Livent Inc. v Deloitte & Touche, [2016] ONCA 11). The management at Livent were engaged in fraudulent practices and were misleading creditors, investors, and the general public about the financial profitability of the production company. They were floundering in debt and walked a tight rope between suppression and discovery over the course of several years.  When the jig was finally up, not only were the executives of Livent in hot water but their auditors (Deloitte) were on the hook as well.

The leaders of Livent were handed criminal convictions and served prison time while Deloitte experienced a civil suit defeat to the tune of $118 million. The case determined that Deloitte was negligent in its auditing practices and contributed to the losses suffered by Livent.

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[filed: Appeal Watch Commercial Law Contracts Corporate law Media Law Regulatory Law Torts]