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Fairness and The Corporate Oppression Remedy: What is the Difference Between “Prejudice” and “Unfair Prejudice”?

On May 25, 2022

In Corporate / Commercial, Legal Research

By: Jassmine Girgis

Paper Commented On: “Fairness in The Oppression Remedy: How Does Harm Become Unfair?”, 19^th Annual Review of Insolvency Law, 2021 CanLIIDocs 13557

PDF Version: Fairness and The Corporate Oppression Remedy: What is the Difference Between “Prejudice” and “Unfair Prejudice”?

[The National Judicial Institute (NJI) recently held its civil law seminar in Calgary, Alberta, where I participated in a panel on director and officer liability. The following blog captures some of my remarks during that panel, as well as excerpts from a recent paper that formed the basis of those remarks]

People have a strong intuitive sense of fairness – even children sense when an adult has treated them unfairly. Perhaps for this reason, in the context of the corporate oppression remedy, which has fairness as its foundation, spotting oppression in a set of facts can be relatively straightforward. The problem, however, is that while unfairness (and oppression) can be easy to see, why something is unfair or oppressive can be much more difficult to explain. Indeed, oppression remedy jurisprudence often fails on this point – prejudice or harm may be plainly evident on the facts (Kevin P McGuinness, Canadian Business Corporations Law, 3rd ed, vol 3 (Toronto: LexisNexis Canada Inc, 2017) at §21.135), but without guidance the fairness test can seem obscure, and courts sometimes struggle with it. They get the results right, and they give some reasons, but these reasons often do not provide a clear articulation as to what fairness means.

Carbon Tax Redux: A Majority of the Alberta Court of Appeal Opines that the Impact Assessment Act is Unconstitutional

By Martin Olszynski

On May 24, 2022

In Constitutional, Energy, Environmental

By: Martin Olszynski

Opinion Commented on: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII)

PDF Version: Carbon Tax Redux: A Majority of the Alberta Court of Appeal Opines that the Impact Assessment Act is Unconstitutional

On May 10, 2022, the Alberta Court of Appeal released its lengthy and long-awaited opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court of Appeal (Chief Justice Fraser, Justice Watson, and Justice MacDonald) concluded that the Impact Assessment Act, SC 2019, c 28, s 1 (IAA), Part 1 of Bill C-69, was ultra vires (i.e. beyond) Parliament’s legislative authority pursuant to section 91 of the Constitution Act, 1867. Justice Strekaf concurred in the result. Justice Greckol dissented, concluding that the IAA was indeed constitutional. In my view, Justice Greckol’s dissent is both clearer and more consistent with current Canadian constitutional and environmental law doctrine. The majority’s opinion, on the other hand, is relatively difficult to follow, includes basic doctrinal errors in some parts, and ignores or strays far from precedent in others. In this and other ways, the majority’s approach is strongly reminiscent of its earlier opinion in Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 (CanLII) (GGPPA Reference ABCA) (see post here), which was overturned by the Supreme Court of Canada in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) (GGPPA References SCC) (see posts here, here, and here). The federal government has already confirmed that it will appeal the majority’s opinion to the Supreme Court, pending which the IAA regime will remain in force (reference opinions not being strictly binding the same way that judgments are).

Does the Punishment Fit the Crime?

By Lisa Silver

On May 20, 2022

In Constitutional, Criminal, Sentencing

By: Lisa Silver

Appeals commented on: R v Hills (SCC Case No 39338), R v Hilbach and the companion appeal, R v Zwozdesky (SCC Case No 39438)

PDF Version: Does the Punishment Fit the Crime?

The week of March 21 was a momentous occasion for criminal law. In that week, over the course of three days, four Supreme Court of Canada appeals were heard that may change our sentencing principles and subsequently our entire conception of a fit and proper sentence. All four cases evoke the Charter in their drive to clarify, confine, and restrain punishment. The Alberta trilogy of R v Hilbach (argued with the companion case R v Zwozdesky), 2020 ABCA 332, and R v Hills, 2020 ABCA 263 all focus on the interpretation and application of s 12 of the Charter in challenging the mandatory minimum penalties of firearm offences. Bissonnette v R, 2020 QCCA 1585 from the Quebec Court of Appeal, on the stacking of the twenty-five-year parole ineligibilities for multiple convictions of first-degree murder under s 745.51, turns to ss 7 and 12 of the Charter. Finally, in R v Sharma, 2020 ONCA 478, ss 7 and 15 are applied to question the unavailability of conditional sentences for certain offences, particularly for Indigenous offenders. This comment will focus on the trilogy of Alberta cases in Hilbach, Zwozdesky, and Hills, which give us a snapshot of those trending issues that the Supreme Court of Canada will be grappling with when writing their decisions for all these appeals. For further ABlawg reading on the concerns with mandatory minimum sentences, see Erin Sheley, “The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences”; and Daphne Wang, “R v EJB: Another Unconstitutional Mandatory Minimum Sentence”.

With a Little Help from the Feds: Incorporation by Reference and Bill C-92

By Kerry Wilkins

On May 17, 2022

In Aboriginal, Constitutional, Family, Indigenous, Provincial Court

By: Kerry Wilkins

Case Commented On: Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 (CanLII) (unofficial English translation) (Reference)

PDF Version: With a Little Help from the Feds: Incorporation by Reference and Bill C-92

According to section 18 of An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (Act or the Act), “[t]he inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority” and “the authority to provide for dispute resolution mechanisms.” As it turns out, the Quebec Court of Appeal tells us in the recent Reference about the Act’s validity (now under appeal to the Supreme Court of Canada; you can read Robert Hamilton’s summary of the decision here), there is indeed such a right, but not because Parliament says so (Reference, at paras 451-453, 514).

Red Flags with Bill 15 – Education (Reforming Teacher Profession Discipline) Amendment Act

By Shaun Fluker

On May 10, 2022

In Administrative Law, Rule of Law

By: Shaun Fluker

Legislation Commented On: Bill 15 – Education (Reforming Teacher Profession Discipline) Amendment Act (30^th Legislature, 3^rd Session, Minister of Education)

PDF Version: Red Flags with Bill 15 – Education (Reforming Teacher Profession Discipline) Amendment Act

One day the Supreme Court of Canada will revisit its 2001 decision in Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 (CanLII), [2001] 2 SCR 78, because the Court will eventually have to address its failure in Ocean Port to give adequate consideration to the importance of real independence in the administrative process established by the executive branch, both in matters generally and more particularly in disciplinary proceedings. The disciplinary process for Alberta teachers, recently added to the Education Act, SA 2012, c E-0.3 by Bill 15, is a case in point. The Minister of Education stated at the beginning of second reading for the bill that the Commissioner in charge of the disciplinary process “would operate at arm’s length from the ministry.” (Alberta Hansard, April 21 2022 at 767) This post examines Bill 15 to assess the accuracy of the Minister’s claim, and concludes that not only is the Commissioner not sufficiently independent of the Minister, the disciplinary process as a whole exhibits very little indicia of being independent.