Category: Supreme Court of Canada Page 12 of 23

By: Theresa Yurkewich

PDF Version: Adieu à la Langue Française

Case Commented On: Caron v Alberta, 2015 SCC 56

Introduction

Gilles Caron and Pierre Boutet, the appellants, were charged with traffic offences under section 34(2) of the Use of Highway and Rules of the Road Regulation, Alta. Reg. 304/2002 and sections 160(1) and 115(2) of the Traffic Safety Act, R.S.A. 2000, c. T-6. Both pieces of legislation were written and published solely in English, as permitted by Alberta’s Languages Act, R.S.A. 2000, c. L-6. Mr. Caron and Mr. Boutet, however, argued that by enacting legislation solely in English, the Alberta legislature was acting contrary to the constitutional obligation of legislative bilingualism (i.e. the duty to enact in both English and French). Mr. Caron and Mr. Boutet, therefore, argued that both pieces of legislation should be held inoperative to the extent they violate this principle.

As framed by the Court, the issue presented was “whether the Languages Act is ultra vires or inoperative insofar as it abrogates a constitutional duty owed by Alberta to enact, print, and publish its laws in English and in French.” The trial judge at the Provincial Court of Alberta answered this question in the affirmative (2008 ABPC 232), but this decision was reversed by the Court of Queen’s Bench (2009 ABQB 745), and the Court of Appeal dismissed the appeal by the appellants (2014 ABCA 71).

Impaired Driving and Approved Screening Devices

By Shaun Fluker

On November 12, 2015

In Constitutional, Criminal, Statutory Interpretation, Supreme Court of Canada

By: Shaun Fluker, Elliot Holzman, and Ian Pillai

PDF Version: Impaired Driving and Approved Screening Devices

Case Commented On: Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46; Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47

In October the Supreme Court of Canada issued two companion judgments concerning the constitutionality and meaning of the Automatic Roadside Prohibition (ARP) provisions set out in the Motor Vehicle Act, RSBC 1996, c 318. In Goodwin v British Columbia (Superintendent of Motor Vehicles) the Supreme Court upheld British Columbia’s ARP scheme as valid provincial law that does not unlawfully invade federal criminal law power or contravene section 11 of the Charter, but the Court also ruled that the seizure of a breath sample using an approved screening device (ASD) under the scheme as previously administered was an unreasonable seizure under section 8 of the Charter. In ruling as such, the Supreme Court upheld the ruling of the Chambers Justice who heard the matters back in 2010. Subsequent to that initial ruling the Province of British Columbia amended the ARP scheme in an attempt to remedy the unreasonable seizure, and the Supreme Court’s companion judgment in Wilson v British Columbia (Superintendent of Motor Vehicles) concerns the interpretation of these new provisions employing principles of statutory interpretation. In this comment we provide an overview of the ARP scheme and the issues raised by the use of ASDs in impaired driving cases, and bring this matter into an Alberta context. We also examine the Supreme Court’s constitutional analysis in Goodwin and its application of the principles of statutory interpretation in Wilson.

The Fundamentals of Tribunal Standing and Bootstrapping in Judicial Review

By Shaun Fluker

On October 14, 2015

In Administrative Law, Supreme Court of Canada

By: Shaun Fluker

PDF Version: The Fundamentals of Tribunal Standing and Bootstrapping in Judicial Review

Case Commented On: Ontario (Energy Board) v Ontario Power Generation Inc., 2015 SCC 44

In Ontario (Energy Board) v Ontario Power Generation Inc. the Supreme Court of Canada revisits the fundamentals of standing for a tribunal in a judicial review or statutory appeal of its impugned decision. The substance of this case involves utility regulation in Ontario, and my colleague Nigel Bankes has written on that substance here. The relevant facts for this comment are simply that the Ontario Energy Board disallowed certain labour costs submitted by Ontario Power Generation in its rate application to the Board. The Ontario Divisional Court dismissed an appeal by Ontario Power, but the Ontario Court of Appeal reversed this finding, set aside the Board’s decision, and remitted the case back to the Board for reconsideration. The Board appealed to the Supreme Court of Canada. No doubt in response to what then appears to be the Board attempting to defend its impugned decision before the Supreme Court, the proper role of the Ontario Energy Board in these proceedings was raised and my comment here focuses on what the Supreme Court of Canada decides in this regard.

Methodological Pluralism: Canadian Utility Law Does Not Prescribe any Particular Prudent Expenditure or Prudent Investment Test that a Regulator Must Apply

By Nigel Bankes

On October 9, 2015

In Energy, Supreme Court of Canada, Utility Regulation

By: Nigel Bankes

PDF Version: Methodological Pluralism: Canadian Utility Law Does Not Prescribe any Particular Prudent Expenditure or Prudent Investment Test that a Regulator Must Apply

Case Commented On: Ontario (Energy Board) v Ontario Power Generation Inc., 2015 SCC 44, (OPG) and ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2015 SCC 45 (ATCO)

The last two weeks of September 2015 saw the release of three important court decisions dealing with utility regulation, two from the Supreme Court of Canada, the OPG case and the ATCO case, and one from Alberta’s Court of Appeal, the Utility Asset Disposition case (UAD): Fortis Alberta Inc v Alberta (Utilities Commission), 2015 ABCA 295. The two Supreme Court cases (which were heard together) deal with a utility’s opportunity to recover operating costs and the application of prudency tests to those costs. Justice Rothstein is the principal author of both judgments. The ATCO case is unanimous while Justice Abella offers a dissent in the OPG Case. The UAD case deals with what I have previously referred to as the continuing fall-out from the majority decision of the Supreme Court in Stores Block (ATCO Gas and Pipelines Ltd. v Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140).

This post summarizes the holdings in the ATCO and OPG decisions and then offers some preliminary comments on their implications. The post begins with some general observations on utility regulation statutes. I will aim to do a separate post on the UAD case.

Chevron Corp. v Yaiguaje: Judicial Activism and Cross Border Complexity

By Fenner Stewart

On September 30, 2015

In Conflict of Laws, Supreme Court of Canada

By: Fenner L. Stewart

PDF Version: Chevron Corp. v Yaiguaje: Judicial Activism and Cross Border Complexity

Case Commented On: Chevron Corp. v Yaiguaje, 2015 SCC 42

In 2013, Ecuador’s highest court held that Chevron was liable to pay US$9.51 billion to forty-seven indigenous Ecuadorian villagers (the plaintiffs). Prior to this final judgment, in 2012, the plaintiffs started an action to seize Chevron Canada’s CAN$15 billion in assets to satisfy the judgment. Chevron Canada’s assets include its stakes in the Athabasca Oil Sands, the Hibernia Field, the Hibernia South Extension, the Hebron Field, the Duvernay Shale Field, and the Kitimat LNG Project.

In Chevron Corp. v Yaiguaje, the Supreme Court of Canada (SCC) addressed two questions. First, must there be a real and substantial connection between the defendant (or the dispute) and Ontario before an Ontario court has jurisdiction to recognize and enforce a foreign judgment? The Court answered no. Second, can an Ontario court have jurisdiction over a foreign judgment debtor’s subsidiary when the subsidiary has no connection to the foreign judgement? The Court answered yes.