Category Archives: Supreme Court of Canada

Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act

PDF version: Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act 

Case considered: Smith v Alliance Pipeline Ltd., 2011 SCC 7

In Smith v Alliance Pipeline Ltd., 2011 SCC 7 (Smith) all nine judges of the Supreme Court of Canada endorsed a broad view of the power of the federal Pipeline Arbitration Committee (PAC) established under the National Energy Board Act, RSC 1985 c N-7 (NEBA) to award costs to a claimant to an arbitration proceeding. Committee costs may include solicitor-client costs of related litigation. The Court grounded its finding in subsection 99(1) of the NEBA, which if triggered requires a company to pay “all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person’s claim for compensation,” and in the history of statutory reform of the law of expropriation, specifically the principle of full compensation for expropriation. The Court was silent on the Federal Court of Appeal finding that matters for which a committee may award compensation are restricted by section 84 of the NEBA, under which litigation costs are not compensable (Alliance Pipeline Ltd. v Smith, 2009 FCA 110 at para. 55 (Smith FCA)). The impact of Smith may be limited to cases in which compensation awarded by the committee exceeds 85 percent of the value offered by the company, as the statutory basis for the Court’s decision is subsection 99(1), and the subsection is triggered only where the 85 percent threshold is exceeded.

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Supreme Court hears Alberta Privacy Case

Case considered: Information and Privacy Commissioner v. Alberta Teachers’ Association, an appeal from 2010 ABCA 26

Yesterday the Supreme Court of Canada heard the appeal in Information and Privacy Commissioner v. Alberta Teachers’ Association, an appeal from 2010 ABCA 26. For a comment on the Court of Appeal decision, see Court of Appeal Decision on Privacy Process Likely to Have Significant Impact on Office of Information and Privacy Commissioner. Here is a summary of the case from the SCC’s website: “Ten individuals complained to the Office of the appellant Information and Privacy Commissioner that the respondent Alberta Teachers’ Association disclosed, in contravention of the Personal Information Protection Act, S.A. 2003, c. P 6.5, their personal information by publishing their names and other information about them in a publication called the “ATA News”. The adjudicator found that the Association had disclosed the complainants’ personal information contrary to ss. 7 and 19 of the Act. On judicial review, the adjudicator’s decision was quashed on the basis that the Commissioner lost jurisdiction for failing to comply with the time lines set out in s. 50(5) of the Act. The Court of Appeal, in a majority decision, upheld that decision.” The issues raised in the case include: Whether it is appropriate for a court, on judicial review, to review a matter that has not been decided by the tribunal at first instance? What consequences ought to flow when a tribunal breaches a statutorily imposed time line?

Interim Costs and Access to Justice at the Supreme Court of Canada

PDF version: Interim Costs and Access to Justice at the Supreme Court of Canada 

Case considered: R. v. Caron, 2011 SCC 5

The Supreme Court recently upheld the Alberta Court of Appeal decision in R. v. Caron, 2009 ABCA 34. That decision affirmed the jurisdiction of a superior court to award interim costs for public interest litigation before the provincial court, and found that Caron’s language rights challenge was an appropriate one in which to order interim costs pursuant to the test in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (Okanagan). The Supreme Court’s decision was unanimous (with a majority judgment by Justice Ian Binnie and a concurring judgment by Justice Rosalie Abella), and was welcomed by groups such as the Canadian Civil Liberties Association (CCLA). The CCLA had intervened in the case along with a number of other public interest groups, indicating some anxiety that entitlement to interim costs awards as originally set out in Okanagan may be further restricted by the Supreme Court, a restriction it commenced in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38 (Little Sisters (No.2)).

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Supreme Court of Canada hears appeal in Alberta v. Elder Advocates of Alberta Society

Case Commented On: Her Majesty the Queen in Right of the Province of Alberta v. Elder Advocates of Alberta Society et al., 2009 ABCA 403, appeal heard January 27, 2011

On January 27, 2011, the Supreme Court of Canada heard arguments in the case of Alberta v. Elder Advocates of Alberta Society et al. The case arose after the provincial Health Minister issued a directive in August 1991 indicating that the operators of long term care facilities in Alberta were to charge and collect the maximum accommodation charge permitted by s. 3(1) of the Nursing Homes Operation Regulation, A.R. 258/85. The plaintiffs sought to certify class action proceedings under the Class Proceedings Act, R.S.A. 2000, c. C-16.5, on behalf of approximately 14,000 long term care facility residents. The plaintiffs argued that the residents had been overcharged because the Crown and Regional Health Authorities did not ensure that the monies paid by them for the “accommodation charge” were used solely for accommodation and meals. The class proceedings were certified by Justice Sheila Greckol of the Alberta Court of Queen’s Bench (see 2008 ABQB 490) and this decision was upheld by the Alberta Court of Appeal (2009 ABCA 403, per Justices Conrad, Berger and Rowbotham). The overall issue in the case is whether class proceedings were properly certified, which in turn raises issues related to the underlying cause of action. The Supreme Court described those issues as follows: What is the test for imposing a fiduciary duty upon the Crown outside the Aboriginal context? Does the province owe a private law duty to “exercise all reasonable care, skill and diligence with respect to the administration, monitoring and auditing of the public funding provided to operators and the accommodation charges paid to operators by residents”? If the province does not owe a fiduciary duty or duty of care with respect to setting the maximum accommodation charge, can dismissal of the common law claims against the province be avoided by pleading unjust enrichment? Do the pleadings support a Charter damages claim? Should a class action be certified based on any surviving cause of action? The Supreme Court reserved its decision in the case.

Is R v Gomboc really only about a homeowner’s expectation of privacy or is there more to it?

PDF version: Is R v Gomboc really only about a homeowner’s expectation of privacy or is there more to it? 

Case commented on: R. v. Gomboc, 2010 SCC 55

The late November 2010 decision of Canada’s Supreme Court in R. v. Gomboc has come to represent one of two things in the divergent views of its critics and supporters. For critics from a civil libertarian perspective, our highest court’s approval of a power company’s act, pursuant to a warrantless police request, of monitoring a homeowner’s electrical usage and then providing that information to police engaged in a criminal investigation represents yet another example of a culture of authoritarianism that seems to be creeping into Canada’s judiciary. On the other hand, for the “law and order” crowd, especially those who see warrants as pesky obstacles to simply letting the police get on with it and just do their jobs, homeowners have no reasonable expectation of privacy over information about their electrical usage, so the Supreme Court’s decision that an authorizing warrant was not required is spot on. Furthermore, even if there was a breach of any privacy interest a person may have here, then it was so trivial that any fuss over it is unwarranted.

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