The Problem of Judicial Arrogance

By: Alice Woolley

PDF Version: The Problem of Judicial Arrogance

In her remarkable new book Life Sentence (Doubleday Canada, 2016), Christie Blatchford describes the Canadian judiciary as “unelected, unaccountable, entitled, expensive to maintain and remarkably smug” (at pp. 33-34). She argues that the process for judicial appointments and judicial discipline, along with the structure and conduct of an ordinary trial, create judicial arrogance. And that arrogance, even if not universal, is both systemic and common enough to corrode and undermine the pursuit of justice. She also suggests that actors in the legal system are complicit in judicial arrogance while simultaneously having considerable arrogance of their own: lawyers and judges alike deny the rationality and dignity of the “non-lawyer,” refuse to admit their own faults, and tend both to aggrandize official power and to subdue public criticism.

I wish I could disagree with Ms. Blatchford. But I can’t. I have to reluctantly concede the uncomfortable truth of her fundamental allegation: we undermine our legal system through our own arrogance, and particularly in how we create, encourage and reinforce judicial power, unaccountability and – at the end of the day – judicial conduct that can be fairly described as arrogant. Continue reading →

A Supreme Folly

By: Frances Woolley

PDF Version: A Supreme Folly

Matter Commented On: The Bilingual Requirement for Supreme Court of Canada Justices

Last August, Prime Minister Justin Trudeau announced that, in future, only candidates who are “functionally bilingual” in French and English will be recommended for positions on the Supreme Court of Canada. With the information released subsequent to the nomination of Malcolm Rowe to the Court, we now have some sense of what this means. At a minimum, a functionally bilingual candidate should be able to read and understand court materials in both English and French, as well as discuss legal matters with their colleagues, converse with counsel in court and understand oral submissions in both languages.

Realistically, it is hard to imagine anyone being able to understand complex legal reasoning in both official languages – and, furthermore, to demonstrate convincingly that they had the ability to do so – unless they already had some experience using both English and French in a work environment. Yet opportunities to function in both French and English are unevenly distributed across the country, raising the possibility that the new bilingualism requirements will significantly alter the pool of potential Supreme Court appointees. Continue reading →

This Fall’s Supreme Court Hearings – A Missing Voice for Human Rights

By: Jennifer Koshan

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Case Commented On: Brent Bish on behalf of Ian Stewart v. Elk Valley Coal Corporation, Cardinal River Operations, et al, SCC Case No 36636, leave to appeal granted from Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII)

On Monday, the Prime Minister’s Office announced that Justice Malcolm Rowe of the Court of Appeal of Newfoundland and Labrador has been nominated to the Supreme Court of Canada. A question and answer session with Justice Rowe will take place on Tuesday October 25, 2016 at the University of Ottawa, and the PMO has invited two law students from every Canadian law school to attend. We will be blogging about the Q & A event on ABlawg, so stay tuned for that.

Provided Justice’s Rowe’s nomination is accepted, there will soon be a full slate of justices on the Supreme Court to hear this fall’s appeals. The Globe and Mail ran an interesting article a couple of weeks ago noting some of this session’s more interesting hearings. One case that was not mentioned is one that we have been watching on ABlawg – Stewart v Elk Valley Coal (see here, here and here – the case also goes by the name of Bish, the union member who filed a complaint on behalf of Stewart). Intervener facta were filed in Stewart on October 7, and there is an important set of voices missing from those arguments. On August 12, 2016, Justice Russell Brown denied intervener status to the Canadian Human Rights Commission and the Ontario Human Rights Commission, the Manitoba Human Rights Commission, the Saskatchewan Human Rights Commission and the Yukon Human Rights Commission, who had applied to intervene jointly. Continue reading →

Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

By: Erin Sheley

PDF Version: Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

Case Commented On: Regina v Sanaee, 2016 ABCA 289 (CanLII)

The year 2016 has been bleak for animals in Canada. In September, Montreal passed a new city bylaw banning the adoption of new pitbulls and pitbull mixes, and imposing stringent licensing and muzzling requirements on currently-owned dogs under threat of euthanasia. (See City of Montreal Regulation 16-060). And Parliament just voted down proposed amendments in Bill C-246, the Modernizing Animal Protections Act, which would have made modest changes to federal legislation such as banning the importation of shark fins removed from living sharks and products made from dog or cat fur. But on September 28, 2016 the Alberta Court of Appeal provided some good news for animal welfare supporters.

In R v Sanaee, 2016 ABCA 289 (CanLII), the Court of Appeal considered the appeal of a dog trainer convicted of two counts of causing unnecessary pain, suffering or injury to an animal, contrary to section 445.1(1)(a) of the Criminal Code, RSC 1985, c C-46. Continue reading →

Pre-Dynex Royalty Agreements Continue to Spawn Interest in Land Litigation

By: Nigel Bankes

PDF Version: Pre-Dynex Royalty Agreements Continue to Spawn Interest in Land Litigation

Decision Commented On: Re Walter Energy Canada Holdings, Inc., 2016 BCSC 1746 (CanLII)

In 2002 the Supreme Court of Canada handed down its decision in Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 (CanLII) in which it confirmed that a gross overriding royalty (GORR) carved out of a working interest in land was capable of subsisting as an interest in land as a matter of law. Whether any particular GORR created an interest in land, or simply a contractual claim, depends upon the intentions of the parties as revealed in the language adopted by the parties to describe the GORR. There is presumably no objection to expressing this intention with words such as “the parties intend that the right and interest created by clause x of this agreement is to be an interest in land” – so long as this intention is not contradicted by other language in the agreement when construed as a whole in accordance with the usual rules on the interpretation of contracts. See, Nigel Bankes, Private Royalty Agreements: A Canadian Viewpoint, Rocky Mountain Mineral Law Institute (2003). While Dynex definitively settled the issue of principle (can a GORR as a matter of law ever be an interest in land) it still requires an analysis of the intentions of the parties in any particular case, although this should be easier to demonstrate for post-2002 agreements than for pre-2002 agreements. That said, the matter had been widely litigated during the previous 40 years, and counsel should at least have been aware, well before then, of the need to use language appropriate to creating an interest in land rather than a contractual interest – if that was indeed the intention of the parties. Continue reading →