Martin v Alberta, Federal Employees, and Workplace Injuries: Just Like the Rest of Us

In Martin v Alberta (Workers’ Compensation Board), 2014 SCC 25, the Supreme Court of Canada (“SCC”) resolved a statutory overlap that had been treated inconsistently by appellate courts across Canada. The SCC held that workplace compensation claims of federal employees, who are subject to the Government Employees Compensation Act, RSC 1985, c G-5 [GECA], are generally governed by the compensation regime of the province wherein they usually work.

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[filed: Labour and Employment]

Banks Forced to Repay Added Charges Plus Punitive Damages: Bank of Montreal v Marcotte

On September 19, 2014, the Supreme Court released its decision in Bank of Montreal v Marcotte, 2014 SCC 55 [BMO v Marcotte], and its two companion cases, Amex Bank of Canada v Adams, 2014 SCC 56, and Marcotte v Fédération des caisses Desjardins du Québec, 2014 SCC 57. The case in BMO v Marcotte was based on major banks charging undisclosed fees for credit card transactions made in foreign currency. The Supreme Court found a group of major banks liable for repayment of those undisclosed charges, plus punitive damages.

In rendering its decision, the Supreme Court addressed many fundamental features of consumer protection laws that apply to Federally regulated businesses in Canada. In particular, BMO v Marcotte (1) establishes new standards for the authorization of class actions in Quebec; (2) emphasizes co-operative federalism as the dominant approach to issues arising from overlapping Federal and Provincial jurisdiction; and (3) affirms the significance of business transparency and accountability to the determination of punitive damages. On the whole, BMO v Marcotte may constitute a game-changer for how Federal firms assess risk and the costs of doing business in Canada.

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[filed: Class proceedings Constitutional Law Consumer Protection]

Aboriginal Status, Mandatory Minimums, and Prosecutorial Discretion: R v Anderson

Back in June, the Supreme Court of Canada (SCC) dealt with the issue of whether Crown prosecutors are constitutionally required to consider the Aboriginal status of accused persons when deciding to pursue a mandatory minimum sentence in R v Anderson, 2014 SCC 41.

The respondent, Frederick Anderson, was charged with impaired driving pursuant to section 253 of the Criminal Code of Canada (the Code), which was his fifth driving-related offence. Because of Anderson’s history of driving-related offences, the Crown, exercising its prosecutorial discretion, decided to seek a mandatory minimum sentence of 120 days.

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[filed: Aboriginal Law Criminal Law]

New Test for When an Appellate Court Can Raise a New Issue: R v Mian

In R v Mian, 2014 SCC 54 [Mian, SCC], the Supreme Court of Canada (SCC) attempted to strike a balance between two competing roles for appellate courts – of neutral arbiter and of justice-doer. In the process, the SCC set a new precedent for determining when an appellate court can raise a novel legal issue.

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[filed: Charter Constitutional Law Criminal Law]

The Supreme Court Addresses the Truth in Sentencing Act and the Retrospective Application of Legislation: R v Clarke

R v Clarke, 2014 SCC 28, is part of the trilogy of cases recently released by the Supreme Court of Canada (“SCC”) addressing the issue of the Conservative government’s tough-on-crime policy expressed in the Truth in Sentencing Act, SC 2009, c 29 (the “Act”). As discussed in previous commentary from on R v Summers, 2014 SCC 26 [Summers], the Act amends the Criminal Code, RSC 1985, c C-46 by capping the amount of credit judges are able to give prisoners for time served before trial.

Although prior to the Act there was no specific formula, it was expressed in R v Wust, [2000] 1 SCR 455, that certain factors usually meant that judges would credit prisoners with two days for every pre-trial day served. In contrast, under the current legislation, section 3 of the Act limits judicial discretion in sentencing to “a maximum of one day for each day” in custody unless “the circumstances” warrant an increase to a cap of 1.5 days per day.

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[filed: Charter Criminal Law]

Prisoners Cannot Be Punished Twice: Canada (Attorney General) v Whaling

This past March, the Supreme Court issued a unanimous 8-0 decision on Canada (Attorney General) v Whaling, 2014 SCC 20. This ruling upholds the Charter right of prisoners not to be punished twice for the same offence.


In 1992, Parliament brought in a simplified process for accelerated parole review (“APR”) that would benefit non-violent first-time offenders. In 1997, the process was expanded to include early eligibility for day parole. Later, in March 2011, the Abolition of Early Parole Act (“AEPA”) came into effect. It abolished the APR, and, in provision 10(1), applied its abolition to any offenders currently serving sentences.

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[filed: Charter Constitutional Law]

Upcoming Symposium: Understanding and Taming Public and Private Corruption in the 21st Century

From ex-New Orleans Mayor Ray Nagin being found guilty of corruption in the wake of Hurricane Katrina, to a report finding that the owners of Bangladesh’s Rana Plaza were responsible for a building collapse, to Canadian Senators wrongfully claiming various travel expenses and expenditures, the problems of public and private corruption are a reality in business and politics today. To bring such problems into focus, on Thursday November 6th and Friday November 7th, the Osgoode Hall Law Journal, in collaboration with the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime, and Security, will host its second bi-annual symposium, entitled “Understanding and Taming Public and Private Corruption in the 21st Century.”

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[filed: Human Rights International Law]

The Supreme Court Upholds Security Certificate Regime: Canada v Harkat

Canada has used the process of issuing a “certificate of inadmissibility,” also known as a “security certificate,” to detain and remove foreign nationals suspected of being involved with terrorist activity. That process is legislated under the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”), which has been the subject of several Charter challenges reaching the Supreme Court of Canada. In Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37 (“Harkat”), the constitutional validity of the IRPA’s provisions was challenged yet again. In this case, the challenge came from Mohamed Harkat, a man suspected of being a “sleeper agent” working with terrorist organizations.

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[filed: Charter Constitutional Law]

Cabinet and the Standard of Review Analysis: Canadian National Railway Co v Canada

Since the passage of the Railway Act, 1868, the Governor in Council (“Cabinet”) has played an important administrative role in areas of the economy regulated by federal legislation. Currently, Cabinet functions as an appeal body with authority to vary or rescind decisions made by administrative tribunals established under a cluster of statutes including the Telecommunications Act, the Canada Oil and Gas Operations Act and the Canada Transportation Act (“CTA”).

Given the Supreme Court of Canada’s (“SCC”) traditional deference to Cabinet decisions (see e.g. Inuit Tapirisat, [1980] 2 SCR 735), lower courts have grappled with the issue of determining the appropriate mechanism for the review of its administrative functions. Does the standard of review analysis set out in Dunsmuir v New Brunswick, 2008 SCC 8 [Dunsmuir] apply? If so, what is the applicable standard of review?

On 23 May 2014, the SCC squarely answered these questions in Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40 [CN Rail]. The unanimous decision applied the Dunsmuir framework and determined that reasonableness review applies when Cabinet interprets the regulatory legislation it administers. This comment will provide a brief summary of the analysis used by Justice Rothstein in coming to these conclusions.

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[filed: Administrative Law]

Access to Justice and the Rule of Law Principle: Trial Lawyers Association v British Columbia

In its ruling in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, the Supreme Court of Canada found that court hearing fees imposed by regulation in British Columbia were unconstitutional because they interfered with access to the constitutionally protected core jurisdiction of the provincial superior courts and the rule of law as a fundamental constitutional principle.

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[filed: Constitutional Law]