Week in Review
This week brought a close to the Supreme Court’s Winter 2007 session, so there’s going to be a brief lull in hearings; the next hearing is scheduled for April 23. Also, the Supreme Court rendered its decision in R v McKay, 2007 SCC 16, and granted five of the thirteen applications for leave to appeal.
R v McKay
As Evan VanDyk reported at the end of last week, the SCC held its hearing in the R v McKay case just last Friday. They released only brief oral reasoning for their decision. For anyone very interested, the judgment is only three paragraphs long, but I’ll provide a summary in any event. A unanimous Court agreed with the Court of Appeal that the s. 41 defence of property provision in the Criminal Code does not excuse aggravated assault, but limited that agreement to “in this case.” The SCC further added express caution that their affirmation of the Court of Appeal’s decision does not endorse its statements that the defence of property can only ever justify the most minor use of physical force.
However, they did not agree that it was appropriate for the Court of Appeal to enter a conviction because of evidentiary concerns. Therefore, the SCC overturned the trial acquittal and sent the case back to be retried.
Evan and Yu-Sung Soh have both written previously on the falling number of leave applications from the Supreme Court. That was certainly not the case this past week. Against a historic average of 13% of applications granted, the SCC granted 5 of 13, or 38% of the applications heard. I’m going to provide a little background for the first three, and follow it up with another post tomorrow.
New Brunswick Human Rights Commission v Potash Corporation of Saskatchewan Inc (NB) (31652)
At age 65, D. Melrose Scott was forced to retire from his job with the Potash Corporation of Saskatchewan (PCS). New Brunswick’s Human Rights Code, RSNB 1973, c H-11, forbids age discrimination, except in the specific context of a bona fide pension plan or a bona fide occupational qualification (BFOQ). PCS chose to rely on the former instead of the latter, and the issue before the SCC will be what test is properly applied to such a situation.
The Board of Inquiry originally used a three-part test found in British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3 [BCGSEU], arguing that the BFOQ test set down in BCGSEU should be imported into the “bona fide pension plan” test, in part because they share the same statutory language. But a majority of the Court of Appeal decided that the more lenient (i.e. for the employer), two part test found in Zurich Insurance Co v Ontario (Human Rights Commission),  2 SCR 321, was the appropriate test.
Both approaches seem reasonable, which is perhaps why the Supreme Court granted leave. The dissenting member of the Court of Appeal agreed with the Board’s decision, citing the need to interpret human rights statutes, and the rights themselves, broadly and purposively. Because this approach ought to favour the employee in this situation, he felt that the BCGSEU test was more appropriate. On the other hand, the majority reasoned that, if a BFOQ analysis was required within the pension plan analysis, it would render that section of the Act irrelevant. For the pension plan section to have true meaning, it must be more lenient.
Privacy Commissioner of Canada v Blood Tribe Department of Health (FC) (31755)
This case is similar to the above in that it is another judicial review case dealing primarily with statutory interpretation. Here, the Privacy Commissioner requested a batch of documents, including privileged documents, in relation to the dismissal of Annette Soup from the Department of Health. The documents weren’t privileged in relation to her dismissal; but she had access to them through her former duties, and so they were tangentially related.
The reviewing Federal Court judge viewed the Privacy Commissioner as a having many of the powers of a superior court, and that therefore the Commissioner could view the privileged documents without actually abrogating solicitor-client privilege. The Federal Court of Appeal disagreed, stating that the Commissioner’s powers analogous to a superior court’s are only granted by a specific section, and that section only grants them insofar as they relate to compelling evidence and records. Further, they stated the solicitor-client privilege is of a nature that it cannot be abrogated through statutory interpretation, but only through express allowance by statute.
The issue before the Supreme Court will be whether the Commissioner has the power to view privileged documents.
Wayne Stein v Malka Stein (BC) (31704)
Following a divorce, the trial judge made as part of his order that Wayne and Malka Stein share in the future liability for a tax shelter that was purchased as a family asset. Many parts of the trial judge’s original ruling were appealed to the B.C. Court of Appeal, but only the tax-shelter issue is being appealed to the Supreme Court.
The Court of Appeal set aside the trial judge’s order that the future liability of the tax shelter be split. They interpreted the B.C. Family Relations Act as requiring a final resolution of asset division at trial, and so to create an order imposing a future liability would be beyond the power given to the courts by the Act. And since the courts are not empowered to affect the ownership of assets without authority from the Family Relations Act, the order should not be allowed.
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