2020: Year in Review
2020 was an unprecedented year. The COVID-19 pandemic overtook the world, influencing nearly all aspects of everyday life across the globe. At the time of writing, over 1.8 million people have died from COVID-19, including over 15,000 in Canada, with case numbers continuing to rise. It is impossible to reflect on the events of 2020, within or outside of the legal sphere, without beginning here.
In responding to the pandemic, nearly all aspects of society had to stop and re-evaluate their operations. In the legal world, this was most clearly seen through the operation of the courts. In the early days of the pandemic, most courts closed for several months, leading to a significant reduction in the number of cases heard and decisions released this year. The Supreme Court of Canada (SCC) only released 45 decisions in 2020, compared to 68 from 2019 and 60 from 2018. The same trend held true at lower levels. The Ontario Court of Appeal released 818 decisions in 2020, compared to 1022 in 2019, and 1050 in 2018, and the British Columbia Court of Appeal released 366 decisions in 2020 compared to 463 in 2019 and 483 in 2018.
In order to shift to remote operation during the pandemic, the court system was forced to adapt to the modern world in ways it had been resisting. Courts began accepting documents filed by email, rather than requiring paper copies of documents. The Law Society of Ontario began allowing virtual commissioning of documents. After several months, hearings resumed, largely by Zoom instead of in person in order to adhere to physical distancing protocols. Virtual hearings have introduced a new set of considerations for how to best promote access to justice in our court system—while hearings over Zoom may make court proceedings accessible to more people, they also may impact the privacy of participants, and may make certain aspects of judicial processes like credibility assessments more challenging.
As one example of where virtual hearings have arguably exacerbated existing concerns with access to justice, the eviction blitz at the Landlord and Tenant Board in Toronto once evictions were no longer suspended due to the pandemic shows the perils of normalizing brief, virtual, and impersonal hearings. Tenants in Toronto were being evicted over Zoom in mere minutes, without the ability to fully plead their case, and sometimes without the ability to access counsel. While housing activists were uniquely able to watch and report on these hearings remotely, the virtual forum also facilitated these mass evictions in a way that likely could not have occurred through in-person court proceedings.
Virtual hearings also facilitated the open court principle in new ways. This was perhaps best exemplified by the rendering of the verdict in R v Theriault, 2020 ONSC 5725 [Theriault], in June, in which over 20,000 people watched the verdict being read to hear whether the Theriault brothers, two off-duty police officers who pursued and injured Dafonte Miller, a Black teen, would be convicted of assault. Although the virtual nature of the decision allowed more people to access the court system than usual, the decision also frustrated many lawyers and activists alike, and led to renewed questioning of the justice system’s ability to adequately respond to police violence against Black people in Canada.
Like Theriault, there were a number of other cases that attracted significant public attention in 2020. Undoubtedly, the public responded most strongly to R v Sullivan, 2020 ONCA 333 [Sullivan], in which the Ontario Court of Appeal (ONCA) held that s. 33.1 of the Criminal Code, RSC 1985, c. C-46 [Code], which prevented self-induced intoxication from being a defence to violent crime was unconstitutional. This decision sparked public outrage, including a petition for the Crown to appeal the decision, as observers expressed particular concern over whether alcohol intoxication would now be a viable defence to sexual assault. Some lawyers took to social media, news platforms, and legal publications in an effort to correct the perceived misinformation about the availability of drunkenness as a defence to sexual assault. Others argued that the decision could have some troubling implications for women, reinforcing the perception that the justice system fails to meet the needs of survivors of sexual assault. Ultimately, Sullivan acted as a reminder of the importance of clear and accessible communication about legal decisions, which is too often overlooked in the legal system—a lesson that will need to be carried through 2021 as the SCC prepares to hear the Crown’s appeal in Sullivan.
2020 at the SCC
As mentioned, 2020 held far fewer SCC decisions than an average year. However, there were still numerous highly significant decisions that will have far-reaching effects on several fields of law over the coming years.
Several of the most significant decisions were employment law cases—Matthews v Ocean Nutrition, Uber v Heller, and Fraser v Canada (Attorney General) all resulted in meaningful jurisprudential developments within employment law. Matthews v Ocean Nutrition, 2020 SCC 26 [Matthews], clarified the calculation of reasonable notice entitlements in wrongful dismissal cases by holding that stock options, bonuses, and other benefits the employee could have earned during the notice period should be presumptively included in the calculation of damages. Matthews also held that in constructive dismissal claims, bad faith in the manner of dismissal can include all the mistreatment and bad faith conduct leading to the constructive dismissal, rather than just at the exact time of termination. While some had hoped that the Court would use Matthews to expand the duty of good faith beyond just the manner of dismissal, the Court declined to do so, leaving the question of an overarching duty of good faith in employment relationships unresolved.
In Uber v Heller, 2020 SCC 16, a closely watched case for its implications on the gig economy, the SCC found that the clause in Uber’s contract requiring Uber drivers to pursue any disputes through its arbitration process in the Netherlands, for which drivers had pay an upfront fee of at least $14, 500 USD, was unconscionable. Because of this finding, the Uber drivers’ proposed class action over whether they have been misclassified as independent contractors rather than employees, disentitling them from rights under Ontario’s Employment Standards Act, can proceed to the certification stage.
Lastly, Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser], addressed adverse effects discrimination and gender inequality in the context of female RCMP officers whose job-sharing arrangements, which they took on due to childcare responsibilities, disentitled them from pension benefits. The SCC found this to be discrimination against women, violating substantive equality rights under s. 15 of the Charter because of the disproportionate impact on women. The SCC’s clarification of adverse effects discrimination in Fraser will likely shape how future cases are litigated and decided.
There were several significant criminal law cases as well, though their effects may be less dramatic than the employment law developments. In R v Zora, 2020 SCC 14 [Zora], the Court focused its attention again on bail, reiterating that the default for bail should be pre-trial release on an undertaking to attend trial, and that additional conditions should only be imposed where reasonable and necessary, and should be the least onerous possible in the circumstances. Zora also implemented a stricter mens rea standard for convictions for failing to comply with bail standards, requiring that people knowingly or recklessly failed to comply with their conditions, or were wilfully blind to the fact that they were failing to comply with their conditions. Zora has been received positively but cautiously, and it remains to be seen whether this latest SCC call to action on bail will address the remand crisis in Canada.
The SCC also released its decision in R v KGK, 2020 SCC 7 [KGK], addressing unreasonable delays in criminal trials. Specifically, KGK clarified that the time taken by a judge to render their decision does not count towards the time limits set out in R v Jordan for determining unreasonable delay. Rather, the Court held that where the trial court takes “markedly longer than it reasonably should have in all the circumstances,” then there is a violation of the accused’s right under s. 11(b) (KGK, para 4).
Outside of criminal law and employment law, there are other key developments to highlight. First, in Nevsun Resources v Araya, 2020 SCC 5 [Nevsun], an early 2020 decision, the SCC held that a lawsuit brought against Nevsun, a Canadian company, by workers from its mining company in Eritrea could proceed. In refusing to accept Nevsun’s motion to strike, a narrow SCC majority found that Canadian common law includes customary international law, meaning the workers could bring a claim against a Canadian corporation in a Canadian court alleging breaches of customary international law. Nevsun marked a “significant departure from previous treatment of application of customary international law in Canadian common law,” and as such, may prove to be one of the most significant decisions of 2020. In the time since the SCC decision, Nevsun has settled the case.
In another noteworthy set of decisions, 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22 [Pointes], and Bent v Platnick, 2020 SCC 23 [Bent], the SCC interpreted s. 137.1 of Ontario’s Courts of Justice Act, RSO 1990, c C.43. S. 137.1 is part of what is known as an “anti-SLAPP” (Strategic Lawsuits Against Public Participation) law, meant to prevent lawsuits brought with the intent to “silence and deter…public criticisms.” In interpreting an anti-SLAPP provision for the first time, the SCC set out a framework to assess future anti-SLAPP motions, emphasizing an expansive understanding of the public interest, which will shape how these cases are assessed moving forward. However, the split decision in Bent may suggest a degree of unpredictability to this new analytical framework.
Finally, the SCC found the Genetic Non-Discrimination Act to be constitutional in the Reference re Genetic Non-Discrimination Act, 2020 SCC 17 [GNDA Reference], holding it to be within the federal government’s jurisdiction given its criminal law purpose. Notably, the SCC came to this conclusion despite the Attorney General of Canada siding with the Attorney General of Quebec in arguing that the law was unconstitutional.
What to Look For in 2021
As we look forward to 2021, there are several key developments to watch for at the SCC. First, there are some significant decisions expected in 2021. Perhaps most notably, in September, the SCC heard appeals from the Courts of Appeal of Ontario, Alberta, and Saskatchewan regarding the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA)—colloquially referred to as the “carbon tax.” Given the highly politicized debate around the carbon tax, the SCC’s decision on whether the GGPPA is unconstitutional will undoubtedly be worth watching for.
The SCC will also likely release its written decision in R v Chouhan, Docket No. 39062 [Chouhan], which was heard in October. After the hearing, the Court released its decision from the bench, finding the elimination of peremptory challenges to be constitutional; however, given the thoughtful and well-reasoned arguments made both for and against the elimination of peremptory challenges, the SCC’s written decision in Chouhan will likely be an interesting read.
In addition to the outstanding decisions, there are also several high-profile cases on the SCC’s docket for 2021. Perhaps most significantly, the SCC has recently granted leave to Sullivan (discussed above), where it will hear arguments about voluntary intoxication as a defence to violent crime. Given the public outcry and media attention surrounding these cases, the SCC decision will inevitably be contentious, and may reshape the defence of automatism moving forward.
Along with Sullivan, a second criminal law decision, Her Majesty the Queen v JJ, 2020 BCSC 29 and 2020 BCSC 349 [JJ], was recently granted leave to appeal to the SCC. JJ addresses whether s. 278.93(4) of the Code, which require seven days’ notice to the Crown for requesting an application for admissibility of certain records that include the complainant’s private information, is unconstitutional. JJ will likely also clarify the pathways to appeal to the SCC, as this decision comes to the SCC directly from the British Columbia Superior Court. Alberta Law Professor Peter Sankoff tweeted that together, the appeals in Sullivan and JJ will be “the two biggest cases of 2021…and easily two of the biggest cases of this Century in criminal law.” With them on the docket, 2021 should be an interesting year at the SCC.
Although the SCC produced far fewer decisions than usual, there were still several highly significant decisions released in 2020. The field of employment law saw perhaps the most influential jurisprudential developments, with Matthews and Uber both making substantial changes to the existing law and paving the way for future developments, particularly through the upcoming Uber class action. There were also several important criminal law developments through Zora and KGK, but the most influential criminal law decisions are likely yet to come as the SCC prepares to hear Sullivan and JJ in 2021.
2020 was a year unlike any other, and the far-reaching effects of the COVID-19 pandemic influenced the legal world in a variety of ways. As we move into 2021, and as we look towards the eventual end of the pandemic, it will be interesting to see how many of the responses to this year’s unique circumstances will remain, and how the tension between the benefits and drawbacks of virtual hearings will be addressed when they are no longer necessary for public health reasons.