Category Archives: Supreme Court of Canada

The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

By: Jonnette Watson Hamilton and Jennifer Koshan

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Case Commented On: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII)

The latest decisions of the Supreme Court of Canada on s 15 of the Canadian Charter of Rights and Freedoms are the two companion pay equity decisions rendered May 24, 2018 in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (APP) and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII) (CSQ). The analysis of the Charter’s s 15(1) prohibition of discrimination on the ground of sex and s 15(2) protection of ameliorative programs from charges of reverse discrimination – the two-case, five-judgment spanning focus of this post – reveals a seriously fractured court reminiscent of the court that decided the so-called “equality trilogy” of the mid-1990s. It reveals the lack of consensus at the end of Beverley McLachlin’s term as Chief Justice and after a significant turnover in members in the past four years, with the three most recently appointed judges who heard these appeals dissenting. The issues this post addresses – and we address them only briefly in this forum – are: (1) What is the current legal test for discerning a breach of s 15? (2) What are the contentious points on which the current justices disagree? And (3) What might these pay equity decisions mean for the future of equality law in general? Unfortunately, there is enough disagreement about the answers to the first two questions that this lengthy post will only discuss the relevant law and not go into detail on its application to the facts in this case (except in the use of comparators).

An earlier ABlawg post by Jennifer Koshan, The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?, explores the implications of these two decisions for the Alberta government’s pay equity obligations. The context and facts of both decisions are detailed in that post, but a brief recap to set the stage for the s 15 analysis is in order.

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Protecting the Public Interest: Law Society Decision-Making After Trinity Western University

By: Alice Woolley and Amy Salyzyn

PDF Version: Protecting the Public Interest: Law Society Decision-Making After Trinity Western University

Cases Commented On: Law Society of British Columbia v Trinity Western University, 2018 SCC 32 (CanLII); Trinity Western University v Law Society of Upper Canada, 2018 SCC 33 (CanLII).

Introduction

Canadian law societies strive to regulate lawyers and legal services in the public interest. Courts emphasize the law societies’ broad discretion to determine what the public interest requires in governing the profession and, accordingly, defer to the law societies’ exercise of that discretion (See Malcolm Mercer’s analysis of this on slaw.ca).

Courts defer to law societies because they accept the underlying rationale for law societies’ power and responsibility. Courts recognize the importance of the independence of the bar, and view self-regulation (of lawyers by lawyers) as an appropriate mechanism for ensuring that independence (This view is problematic but widely accepted – see, e.g., Law Society of British Columbia v Trinity Western University 2018 SCC 32 (“LSBC v TWU”) at para. 37). Courts view serving the public interest as something law societies must pursue in exchange for the privilege of self-regulation (LSBC v TWU at para 32) but simultaneously identify self-regulation as likely to ensure protection of the public interest given law societies’ “particular expertise and sensitivity to the conditions of practice” (LSBC v TWU at para. 37). Briefly (albeit circularly), courts assert that they defer to law societies because independence of the bar requires self-regulation; self-regulation requires law societies to act in the public interest; and self-regulation effectively protects the public interest because of law societies’ institutional expertise.

This blog post raises questions about whether current law society policy-making structures can effectively consider and advance the public interest. In particular, and in light of the saga of Canadian law societies’ consideration of TWU’s attempt to open a law school, it considers whether law societies can fulfill their mandate to regulate in the public interest when benchers make policy decisions in hard cases.

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Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada

By: Amy Matychuk

PDF Version: Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada

Case Commented On: Ewert v Canada, 2018 SCC 30 (CanLII)

On June 13, 2018, the Supreme Court of Canada (SCC) issued its decision in Ewert v Canada (Ewert SCC), in which the majority held that the Correctional Service of Canada (CSC) breached its statutory duty to Jeffrey G Ewert, a Métis inmate, when it used five actuarial risk assessment tests that were not proven to be accurate when applied to Indigenous offenders. CSC uses these tests to assess inmates’ risk of recidivism, and the test results can impact liberty-related processes such as security classification, parole hearings, and eligibility for escorted temporary absences (ETAs). Mr. Ewert had rather slim positive evidence for the presence of cultural bias in the tests; his argument was, instead, that his and others’ legitimate concerns about the possibility of bias should require CSC to produce research confirming the tests’ validity. He was initially successful at the Federal Court in 2015, overturned at the Federal Court of Appeal in 2016, and ultimately prevailed at the SCC. His lengthy litigation efforts resulted in a total of five written decisions and spanned eighteen years. In this post, I will review the long history of Mr. Ewert’s efforts, the progression of his case through the courts, and the significance of the remedy he received.

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Supreme Court Sides with Law Societies in Trinity Western University Litigation

This morning the Supreme Court of Canada released its decisions in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (CanLII) and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (CanLII). A majority of the Court upheld the decisions of the Law Societies of British Columbia and Upper Canada to deny accreditation to or approval of Trinity Western University (TWU) law school. For readers wanting more context for the Supreme Court decisions, please see previous ABlawg posts on TWU here, and watch for analysis of the decisions on ABlawg in the coming days.

Not Your Grandfather’s Cooperative Federalism: Constitutional Themes at the Supreme Court Hearing of Redwater

By: Scott Carrière

PDF Version: Not Your Grandfather’s Cooperative Federalism: Constitutional Themes at the Supreme Court Hearing of Redwater

Case Commented On: Orphan Well Association, et al v Grant Thornton Limited, et al, 2017 ABCA 124 (CanLII), leave granted 2017 CanLII 75023 (SCC), webcast available here, factums on appeal available here

Background

The Orphan Well Association and Alberta Energy Regulator’s action against a now-defunct oil and gas company’s bankruptcy trustee and primary creditor— commonly known as Redwater—was heard before the Supreme Court in February, and with the facts of the case disclosing a number of significant issues pertaining to the division of powers, the constitutional themes took centre stage throughout the oral and written submissions to the court. The arguments put forward by the parties and interveners represent significant considerations of Canada’s doctrinal approach to federalism as they pertain to contemporary natural resource governance. This post focuses on these substantial doctrinal issues put to the court by the parties and interveners, as it is likely that the case will be decided on narrower bases than the full suite of considerations put to the Court given its general restraint on constitutional matters that could represent a shift in the established doctrine dealing with the division of federal and provincial powers. Continue reading →