There is No Presumption of Loss Flowing from a Breach of the Contractual Duty of Honest Performance

By: Jassmine Girgis

Case commented on: Bhatnagar v Cresco Labs Inc, 2023 ONCA 401 (CanLII)

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In Bhatnagar v Cresco Labs Inc, 2023 ONCA 401 (“Cresco Labs”), the Ontario Court of Appeal addressed whether the Supreme Court’s decision in CM Callow Inc v Zollinger, 2020 SCC 45 (CanLII) (“Callow”) created a legal presumption of loss once a court finds a breach of the contractual duty of good faith. The ONCA found that there is no presumption of loss and that a plaintiff claiming a loss of opportunity has the burden of providing evidence. Continue reading →

Submission to Justice Canada on the Criminalization of Coercive Control

By: Janet Mosher, Shushanna Harris, Jennifer Koshan, and Wanda Wiegers

Bill Commented On: Bill C-332, An Act to amend the Criminal Code (controlling or coercive conduct), First Session, Forty-fourth Parliament (2023)

PDF Version: Submission to Justice Canada on the Criminalization of Coercive Control

Justice Canada has been holding an engagement process on the issue of whether an offence of coercive control should be added to the Criminal Code, RSC 1985, c C-46. This offence has been proposed in a series of private members bills, most recently, Bill C-332. Our submission (link below) argues that it is imperative that actors in all legal domains acquire a nuanced and contextual understanding of coercive control derived from an intersectional analysis that attends to how multiple systems of oppression interact to shape the tactics of coercion and control. However, we do not support the criminalization of coercive control, either as a standalone offence or within a broader offence of domestic abuse/violence. We argue that it is the former approach – the acquisition of deep and contextualized knowledge by legal system actors – and not criminalization, that holds promise in enhancing safety for women and children. Continue reading →

The Word “Exclusive” Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects

By: Nigel Bankes and Andrew Leach

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

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The majority opinion of the Supreme Court of Canada in the Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) concludes that the federal government has arrogated to itself decision-making powers that properly belong to provincial governments; powers, that is, with respect to resource projects and other works and undertakings located entirely within a province (for short, “provincial resource projects”). (For an overview of the IAA Reference see Olszynski et al, “Wait, What!? What the Supreme Court Actually Said in the IAA Reference”.) Given that conclusion, it is not surprising that Premier Danielle Smith, as well as former premier Jason Kenney, who initiated the Reference, have celebrated the decision. But in doing so they have both significantly overstated the majority’s conclusions by suggesting that the majority endorsed a strong theory of exclusive provincial jurisdiction over provincial resource projects. Premier Smith, echoing language in the Alberta Court of Appeal majority opinion in the IAA Reference (which we commented on here), would extend this interpretation further to a right of development and to a form of interjurisdictional immunity for projects falling outside the exceptions in section 92(10) of the Constitution Act, 1867. We provide concrete examples of Premier Smith’s use of the word “exclusive” (or its synonyms) and references to a “right to develop” from the Premier’s press conference on the IAA Reference decision and an interview prior to the decision in Appendix A to this post, and a link to the views of the Hon. Jason Kenney in Appendix B. Continue reading →

Democratic Accountability and the Banff Centre

By: Shaun Fluker

Order commented on: Order in Council 184/2023 (Post-Secondary Learning Act)

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The Banff Centre for Arts and Creativity, located in the Town of Banff, is an internationally known and respected institution for the study of arts and culture. The Centre describes itself as “. . . a leader in the development and promotion of creative work in the arts, sciences, business, and the environment.” Many Canadians eventually cross paths with the Centre for one reason or another, even if they do not study the arts, because the Centre hosts a wide range of live performances, conferences, and similar public events annually. The Centre also has a very well-established program in Indigenous Leadership. For me, the Centre is most familiar as the home of the Banff Mountain Book and Film Festival, which is held at this time every year (late October to early November). This past week however, the Centre was in the news for a very different reason: on October 26 the Alberta government removed the entire board of governors and replaced them with an individual administrator. This change was implemented by the Lieutenant Governor in Council with the issuance of OC 184/2023. This short comment describes the legislative framework for this Order, and I argue that this sort of power over an important institution in our democracy needs some accountability and transparency measures to ensure it is truly exercised in the public interest. Continue reading →

The IAA Reference: A Missed Opportunity for Guidance on Important Issues Pertaining to Indigenous Peoples

By: Robert Hamilton

Case Commented on: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

 PDF Version: The IAA Reference: A Missed Opportunity for Guidance on Important Issues Pertaining to Indigenous Peoples

In the Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Ref), the Supreme Court of Canada considered the constitutionality of the federal environmental impact assessment regime. For analysis of what precise aspects of the Impact Assessment Act, SC 2019, c 28, s 1 (IAA) the majority found unconstitutional (and which it held were unproblematic), see the post by my colleagues Martin Olszynski, Nigel Bankes, and David V. Wright here. Continue reading →