Category: Supreme Court of Canada Page 4 of 23

Case Commented On: Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII)

On October 16, 2020, the Supreme Court of Canada released its long-awaited decision in Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII). Fraser involved a claim of adverse effects discrimination by female RCMP members who lost their entitlement to full pension benefits when they entered temporary job-sharing arrangements. We blogged on the Federal Court of Appeal decision in Fraser here, and – in the interests of disclosure – also participated in the Supreme Court intervention in Fraser by the Women’s Legal Education and Action Fund (LEAF) (for LEAF’s news release following the Fraser decision, see here).

Fraser is the first successful adverse effects claim under section 15 of the Canadian Charter of Rights and Freedoms in over 20 years and it is the first ever successful adverse effects claim under section 15 in a sex discrimination context. This post will focus on the typical challenges that have been faced in adverse effects claims and review how Justice Rosalie Abella’s majority decision in Fraser responded to these problem areas, which were also apparent in the lower court decisions in Fraser. Although Justice Abella wrote for the majority of the Court (Chief Justice Richard Wagner and Justices Michael Moldaver, Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer, as well as herself), we will refer to the judgment as hers because it appears to be the culmination of her life-long work on equality rights and may be her last judgment on this subject before her retirement in 2021.

We also review the two dissenting judgments in Fraser, written by Justices Russell Brown / Malcolm Rowe and Justice Suzanne Côté. Our title is inspired by Justice Abella’s allegation that the dissent “tug[s] at the strands of a prior decision they disagree with … [to] unravel the precedent” (at para 133, referring to Alliance, one of the Court’s two 2018 pay equity decisions that we cite below). Interestingly, the same could be said of the majority judgement, which unravels the knots of a large body of section 15 jurisprudence that has made it difficult to prove adverse effects discrimination claims. It is these problem areas that we turn to next.

Furthering Expression in the Public Interest: SCC Provides Interpretation of Ontario’s Anti-SLAPP Legislation

By Daniella Marchand

On October 26, 2020

In Access to Justice, Civil Procedure, Supreme Court of Canada

By: Daniella Marchand and Nafisa Abdul Razak

PDF Version: Furthering Expression in the Public Interest: SCC Provides Interpretation of Ontario’s Anti-SLAPP Legislation

Case Commented On: 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22 (CanLII)

Last month, the Supreme Court of Canada (SCC) released their decision in the Pointes Protection case, dismissing 1704604 Ontario Ltd.’s appeal and upholding the Ontario Court of Appeal’s (ONCA) decision. This commentary follows up our first post regarding the ONCA’s decision on 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685 (CanLII). In our previous post, we advocated for the enactment of a similar provision in Alberta as exists in Ontario, relying on the analysis set out by Justice David Doherty and the arguments made by various interveners as to the necessity of anti-SLAPP (Strategic Litigation Against Public Participation) legislation. For background on the previous proceedings, please see our other post titled “Is Now the Time to Consider Anti-SLAPP Legislation in Alberta? A Reflection on Pointes Protection”.

Here, we continue to recommend the introduction of similar anti-SLAPP legislation in Alberta. In Pointes Protection, the SCC provides a detailed analysis of Ontario’s anti-SLAPP legislation, perhaps expecting that this decision may guide the development of similar legislation in other provinces and territories. In this post, we will examine the test as interpreted by the SCC, and how this framework presents a novel opportunity for adoption of anti-SLAPP legislation to the Alberta legislature.

The Expansion of Unconscionability – The Supreme Court’s Uber Reach

By Jassmine Girgis

On July 23, 2020

In Access to Justice, Contracts, Supreme Court of Canada

By: Jassmine Girgis

PDF Version: The Expansion of Unconscionability – The Supreme Court’s Uber Reach

Case Commented On: Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII)

Contracts of adhesion, or standard form agreements (SFAs) are oftentimes unfair. They are drafted by the stronger parties. Their provisions are dense and difficult to understand. The party signing does not have a say in their contents – they are take-it-or-leave-it agreements. They are usually lengthy and cannot feasibly be read in the short time it takes the parties to transact. Some of the more onerous terms are deeply embedded (hidden?) in the document. The contracts more often than not limit the liability of the drafting party at the expense of the other party. They ensure occupiers are not liable for negligence, including their own. And the list goes on.

We are not powerless against these contracts – common law and equitable doctrines protect weaker parties from harsh or onerous provisions. Is this enough? Probably not. Certainly the Supreme Court of Canada thought more should be done to protect weaker parties against SFAs in the case of Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII). But instead of leaving this job to the legislature, as it should have, it expanded the reach of the doctrine of unconscionability without providing any substantial guidance or principles, thereby furnishing lower courts with an enormously powerful weapon to use against SFAs.

Adding Zora to the 1L Crime Syllabus

By Lisa Silver

On July 2, 2020

In Constitutional, Criminal, Supreme Court of Canada

By: Lisa Silver

PDF Version: Adding Zora to the 1L Crime Syllabus

Case Commented On: R v Zora, 2020 SCC 14 (CanLII)

It is never too soon to start thinking about the fall semester – in fact, I keep a running list of changes to make to my syllabus throughout the year. But this year, it seems that the newest Supreme Court of Canada decision in R v Zora, 2020 SCC 14 (CanLII), is going to be added to my syllabus in more places than one. Zora is a rare decision in which the Court does much with so little. I do not say this flippantly but seriously. On the surface, the issue of whether the offence of failure to comply with a release order under section 145(3) of the Criminal Code, RSC 1985, c C-46, requires objective or subjective mens rea seems trite. In fact, any 1L student might be asked to do such an analysis on a law school exam. Yet, Zora soars as Justice Sheilah Martin expertly analyzes the issue holistically, humanely and firmly anchored in the Charter. In doing so, Justice Martin, on behalf of the entire Court, is weaving together a narrative based on the histories of all those accused who have carried their bail conditions like dead weight, from the moment of arrest and right up to the courtroom doors. In this post, I will share 5 reasons why I am adding Zora to my 1L Crime syllabus.

Supreme Court of Canada Finally Addresses Racial Profiling by Police

By Meryl Friedland

On June 26, 2020

In Constitutional, Criminal, Police, Supreme Court of Canada

By: Meryl Friedland

PDF Version: Supreme Court of Canada Finally Addresses Racial Profiling by Police

Cases Commented On: R v Le, 2019 SCC 34 (CanLII); R v Ahmad, 2020 SCC 11 (CanLII)

Nine minutes. This is the length of time that a police officer pressed a knee to the neck of George Floyd in the United States, while he lay on the ground immobilized, pleading, stating he couldn’t breathe. Nine minutes is a shockingly long time for Constable Chauvin to have exerted deadly force on a human being whom he had already rendered vulnerable. He could only do this without interference because of the power provided to him by the state. He could only do this because violent race-based state conduct is nothing new – far from it.

Our current Canadian protests expose the local experience of abusive and racist police tactics, both systemic and overt, against Black, Indigenous, and other racialized Canadians. These protests and the action urged by them have the potential to mobilize and enact change. The criminal justice system is reactionary, but it can still send a message denouncing unlawful conduct with the aim of preventing it from recurring. Recently, the Supreme Court of Canada has given us new tools in this fight, by addressing racial profiling twice in the past year in R v Le, 2019 SCC 34 (CanLII) and R v Ahmad, 2020 SCC 11 (CanLII). It has taken an exceptionally long time for our highest court to give us these tools. Although these judgments are a start, unquestionably there is still much work to be done, both in and out of the courts.

Category: Supreme Court of Canada Page 4 of 23

Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

Furthering Expression in the Public Interest: SCC Provides Interpretation of Ontario’s Anti-SLAPP Legislation

The Expansion of Unconscionability – The Supreme Court’s Uber Reach

Adding Zora to the 1L Crime Syllabus

Supreme Court of Canada Finally Addresses Racial Profiling by Police