Category: Supreme Court of Canada Page 20 of 23

Case considered: Lamb v. AlanRidge Homes Ltd., 2009 ABCA 343

PDF version: Staying Arbitration Proceedings under Section 7(5) of the Arbitration Act

Lamb v. AlanRidge Homes Ltd. is an interesting case, in part because the Alberta Court of Appeal calls upon the Alberta legislature to review and amend section 7 of the Arbitration Act, R.S.A. 2000, c. A-43, a section the court criticizes (at para. 16) as “far from a model of clarity.” Calls for legislative action by the courts are not that common. The case is also interesting because section 7 is perhaps the provision most often used by the courts, as it is the provision that requires a court to stay a court action when asked to do so by a party to an agreement to arbitrate.It is, however, a section rarely considered by the Court of Appeal because subsection 7(6) provides that there is no appeal from an order of the Court of Queens’ Bench staying an action or refusing a stay under section 7. The case is also interesting because Alberta’s Arbitration Act is based upon the Uniform Arbitration Act which was prepared by the Uniform Law Conference of Canada in 1989, as were the arbitration statutes in six other provinces. Section 7 was carefully drafted and debated by the Commissioners. It seems somewhat odd to think that, twenty years later, there are basic problems with interpreting and applying that provision.

Prosecutorial Accountability?

By Alice Woolley

On November 12, 2009

In Criminal, Ethics and the Legal Profession, Supreme Court of Canada

Case considered: Miazga v. Kvello Estate, 2009 SCC 51

PDF Version: Prosecutorial Accountability?

In its 2002 decision in Law Society of Alberta v. Krieger, 2002 SCC 65, the Supreme Court of Canada affirmed the ability of the Law Society of Alberta to regulate misconduct by Crown prosecutors. It held, however, that where the misconduct relates to the exercise of prosecutorial discretion, the Law Society’s jurisdiction is limited to circumstances where the prosecutor has acted in bad faith. The Court reiterated that, in general, the exercise of prosecutorial discretion is entitled to deference, and may only be reviewed by the Court in circumstances of “flagrant impropriety” (Krieger, para. 49).

In its recent judgment in Miazga v. Kvello Estate, the Supreme Court has affirmed this highly deferential approach to prosecutorial discretion. The Court held that to establish liability for malicious prosecution the plaintiff must demonstrate a) that the defendant was responsible for the prosecution; b) that the legal proceedings ultimately resolved in favour of the plaintiff; c) that the defendant did not have reasonable and probable grounds for a prosecution, objectively speaking (that is, that the defendant’s professional judgment should have indicated that it was not possible that “proof beyond a reasonable doubt could be made out in a court of law” (para. 63); at this stage the prosecutor’s subjective belief in guilt is irrelevant); and, d) that the defendant acted for some improper purpose in bringing forward the prosecution – that the defendant “deliberately intended to subvert or abuse the office of the Attorney General or the process of Criminal Justice” (para 89).

Motion for Re-hearing of Hutterian Brethren Case Dismissed by Supreme Court of Canada

By Jennifer Koshan

On October 29, 2009

In Constitutional, Supreme Court of Canada

Cases considered: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37

PDF version: Motion for Re-hearing of Hutterian Brethren Case Dismissed by Supreme Court of Canada

On October 15, 2009 the Supreme Court of Canada denied a motion to re-hear the case of Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37. In that case, a majority of the Supreme Court denied the Hutterian Brethren’s claim that its members should be exempted from provincial photo requirements for driver’s licences based on freedom of religion. The Supreme Court did not provide any reasons for its decision, stating only as follows in a news release:

Unhappy differences arise in R. v. Cunningham

By Alice Woolley

On October 7, 2009

In Ethics and the Legal Profession, Supreme Court of Canada

Case considered: R. v. Cunningham, 2008 YKCA 7

PDF version: Unhappy differences arise in R. v. Cunningham

On November 17, 2009 the Supreme Court of Canada will hear argument in R. v. Cunningham, an appeal of a judgment by the Yukon Territory Court of Appeal released June 25, 2008. If the Court upholds the YKCA decision in Cunningham it would change the law in many other Canadian provinces, including Alberta (R. v. D.D.C., (1996) 43 Alta. L.R. (3d) 1 (C.A.), generally referred to as Ferguson), Saskatchewan (Mireau v. Canada et al., (1995) 128 Sask. R. 142 (C.A.)), Manitoba (R. v. M.B.D., 2003 MBCA 116) and Ontario (R. v. Chatwell, (1998) 38 O.R. (3d) 32 (C.A.)).

Supreme Court grants leave to appeal in Caron

By Jennifer Koshan

On August 27, 2009

In Access to Justice, Constitutional, Supreme Court of Canada

Case considered: R. v. Caron, 2009 ABCA 34, leave granted by SCC August 27, 2009

The Supreme Court of Canada has released its decision on the Alberta government’s leave to appeal application in R. v. Caron. Chief Justice McLachlin and Justices Abella and Rothstein granted the government’s leave application (without costs). As is typical in such matters, no reasons for decision were given. The case concerns an interim costs award that was granted to Caron to help fund his language rights challenge against Alberta legislation. As noted in a previous post, Caron was granted an interim costs award by Justice V.O. Ouellette of the Alberta Court of Queen’s Bench in October 2007. This award was upheld by the Alberta Court of Appeal in January 2009. In the meantime, Caron’s language rights challenge was successful after his Provincial Court trial, and this matter is now under appeal. Regardless of the outcome of the language rights challenge, the interim costs matter is a critical issue for access to justice. The Alberta Court of Appeal held that interim costs awards are available in quasi-criminal matters before provincial courts, and it is expected that this will be one of the government’s grounds for appeal. ABlawg will report on future developments in the case.