Category Archives: Supreme Court of Canada

Yatar v TD Insurance Meloche Monnex: Limited Statutory Rights of Appeal and The Availability of Judicial Review

By: Shaun Fluker, Drew Yewchuk, and Nigel Bankes

Case Commented On: Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (CanLII)

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This post discusses the recent Supreme Court decision in Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (CanLII) (Yatar). The decision addresses the availability of judicial review of administrative decisions when the legislature has established a restricted statutory right of appeal for those same decisions. This unanimous decision is an important affirmation of the continued availability of judicial review – at least for grounds of review not covered by the statutory appeal right. However, it seems likely that this decision, especially when read together with the Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov) will encourage parallel or sequential filings under both the statutory appeal provisions and for judicial review. Continue reading →

What Did the Court Mean When It Said that UNDRIP “has been incorporated into the country’s positive law”? Appellate Guidance or Rhetorical Flourish?

By: Nigel Bankes and Robert Hamilton

Case commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII).

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In its recent reference opinion on the validity of an Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (the FNIM Act), the Supreme Court went out of its way to comment on the legal significance of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (the federal UNDRIP Act). The Court did so notwithstanding that legal questions relating to the federal UNDRIP Act were not directly before it, and notwithstanding its own observations in the Reference to the effect that “[t]he task that falls to the Court in the context of a reference invites caution …” (at para 111). That it chose to comment at such length is even more remarkable when one reflects on how reticent the Court seems to have been to comment on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or Declaration), or international human rights law more generally, in other cases over the last two decades dealing with Indigenous rights. Continue reading →

Triviality and Significance of Federal Environmental Effects after Reference re: Impact Assessment Act

By: Martin Olszynski

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

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This is the sixth ABlawg post regarding the Supreme Court of Canada’s recent opinion in Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) (see the first five posts here). In this post, I address the thorny issue of thresholds, i.e., the level or point at which an effect becomes material or relevant under the Impact Assessment Act, SC 2019, c 28, s 1 (IAA). Since the opinion’s release last fall, I have read and heard concerns that the majority has imposed some kind of minimum threshold regarding the magnitude of effects required to trigger federal jurisdiction, or that the federal government could only refuse to deem such effects to be in the public interest if they are significant (see here for a thoughtful commentary on the practical problems with such an approach). As noted by Justices Andromache Karakatsanis and Mahmud Jamal in their dissent, however, it has actually long been an interpretive rule – since the Supreme Court of Canada’s environmental law decision in Ontario v Canadian Pacific Ltd, 1995 CanLII 112 (SCC), [1995] 2 SCR 1031 (Canadian Pacific) – that broadly worded environmental legislation is to be interpreted in a manner that does not capture trivial, or de minimis, impacts (IAA Reference at para 278). Importantly, however, and as I discussed almost a decade ago in “Ancient Maxim, Modern Problems: De Minimis, Cumulative Environmental Effects and Risk-Based Regulation”  (2015) 40-2 Queen’s Law Journal 705, 2015 CanLIIDocs 5272, (“Ancient Maxim, Modern Problems”), non-triviality is a very low bar; between trivial and significant lies a wide spectrum of impacts, which at the very least includes low and moderate impacts. Trivial or de minimis impacts are essentially only those impacts that a regulatory regime could systematically ignore while still obtaining its objectives – they are treated the same as no impacts whatsoever. Continue reading →

Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime

By: David V. Wright

Case Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime

The Supreme Court of Canada (SCC) recently released its opinion on the constitutionality of the federal impact assessment (IA) regime. In a 5:2 majority opinion, Chief Justice Richard Wagner concluded that much of the scheme is unconstitutional for projects falling primarily within provincial jurisdiction. ABlawg has published initial reflections (see here and here), as well as a primer.

One aspect of the majority opinion and any forthcoming legislative amendments that is in need of further attention is the Court’s analysis of greenhouse gas emissions. This post focuses on that aspect. In short, the majority reiterated that there is no plenary federal power to regulate greenhouse gas emissions, and found that Canada had not adequately made the legal argument to support inclusion of a designated project’s greenhouse gas emissions as a basis for triggering the Impact Assessment Act, SC 2019, c 28, s 1 (IAA) or for making final decisions. However, the majority left the door open on this aspect, while also clarifying that there are no constitutional constraints during the assessment phase (i.e. information gathering phase) of the federal process. At the present juncture, the SCC opinion provides some valuable additional clarity regarding greenhouse gas emissions, but very far from total clarity. Uncertainty remains, and that is unfortunate. In the following discussion, I lay out what the majority said and did not say on greenhouse gas emissions, what that means, and what’s next. Continue reading →

The Word “Exclusive” Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects

By: Nigel Bankes and Andrew Leach

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

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The majority opinion of the Supreme Court of Canada in the Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) concludes that the federal government has arrogated to itself decision-making powers that properly belong to provincial governments; powers, that is, with respect to resource projects and other works and undertakings located entirely within a province (for short, “provincial resource projects”). (For an overview of the IAA Reference see Olszynski et al, “Wait, What!? What the Supreme Court Actually Said in the IAA Reference”.) Given that conclusion, it is not surprising that Premier Danielle Smith, as well as former premier Jason Kenney, who initiated the Reference, have celebrated the decision. But in doing so they have both significantly overstated the majority’s conclusions by suggesting that the majority endorsed a strong theory of exclusive provincial jurisdiction over provincial resource projects. Premier Smith, echoing language in the Alberta Court of Appeal majority opinion in the IAA Reference (which we commented on here), would extend this interpretation further to a right of development and to a form of interjurisdictional immunity for projects falling outside the exceptions in section 92(10) of the Constitution Act, 1867. We provide concrete examples of Premier Smith’s use of the word “exclusive” (or its synonyms) and references to a “right to develop” from the Premier’s press conference on the IAA Reference decision and an interview prior to the decision in Appendix A to this post, and a link to the views of the Hon. Jason Kenney in Appendix B. Continue reading →