1. Discrimination Based on Country of Origin
   

The Federal Court of Canada has struck down as unconstitutional a provision of the Immigration and Refugee Protection Act (IRPA). In 2012 the Act was changed to create two categories of refugees, based on their country of origin. So called “safe countries” were deemed unlikely to produce refugees and other countries were deemed “not safe”. Refugee claimants from designated “not-safe” countries were obliged to wait two years longer for a risk assessment of their removal from Canada. A risk assessment looks at risk to life, to torture or to cruel treatment. A group of Romani from Hungary (a non-safe country) claimed that they were discriminated against on the basis of nationality, contrary to s. 15 of the Canadian Charter of Rights and Freedoms. Justice Boswell of the Federal Court of Canada agreed that they were. He used a two-step analysis:

• does the law draw a distinction based on one of the grounds of discrimination under the Charter, and if so,
• does the distinction impose a burden or deny a benefit to the person affected.

On the first step, Justice Boswell stated “the differential treatment is clearly a distinction based on the national origin of the refugee claimant”. With regard to the second step, he ruled that discrimination based on national origin perpetuates prejudice or stereotyping. He wrote: “It perpetuates a stereotype that refugees from DCO (designated countries of origin) countries are somehow queue-jumpers or bogus claimants who only come here to take advantage of Canada’s refugee system and its generosity.”

Justice Boswell ruled that the offending section of the Immigration and Refugee Protection Act violated s. 15 of the Charter (equality) and it could not be saved under s. 1 of the Charter as a reasonable limit on freedoms as justified in a free and democratic society.

Feher v. Canada (Public Safety and Emergency Preparedness), 2019 FC 335 (CanLII)

2. A No Contest Clause Challenges Fortitude

A no contest clause in a will is a bit like a “double or nothing” bet. It is meant to discourage beneficiaries from contesting a will and says that if a beneficiary unsuccessfully challenges a will, he or she forfeits their gift altogether. In a case recently decided by the Alberta Court of Appeal, the Court considered whether a beneficiary asking the personal representatives of the testator to obtain formal proof of the will, as opposed to a grant of probate in common form, could trigger the no contest clause. The beneficiary in this case had raised the possibility of suspicious circumstances in the signing of the will but argued that this did not amount to challenging the will, thus triggering the clause. She asked the Court to confirm her position. However, the Alberta Court of Appeal ruled that an application by the beneficiary to raise suspicious circumstances about the creation of the will would trigger the no contest clause. The Court wrote: “…the effect of the no contest clause is to test the fortitude of a potential challenger to the validity of the will and how strongly they believe they can successfully challenge the will.” The Court concluded: “A declaration shall issue that if Ms. Mawhinney applies…to request the personal representatives to obtain formal proof of the August Will, that will constitute a challenge to the validity of the August Will, or litigation in connection with a provision of the August Will, and will trigger operation of the no contest clause in paragraph 21. Whether that application results in the forfeiture of Ms. Mawhinney’s interest under the August Will depends of whether her challenge succeeds.”

Mawhinney v Scobie, 2019 ABCA 76 (CanLII)

3. Gap in Sex Offender Registration Laws

A man identified as G was accused of sexually assaulting his wife while in a manic state. He was found not criminally responsible at trial because of his mental state and granted an absolute discharge a year later. Still, he was obliged to register as a sex offender for life under a provincial law passed in 2001, called “Christopher’s Law”, and also under the federal Sex Offender Information Registration Act (SOIRA) for a period of twenty years. G challenged his registrations under ss 7 (life, liberty and security of the person) and 15(1) (equal treatment under the law) of the Charter. He pointed out an anomaly in the law. Persons found guilty of a sexual offence but who receive a conditional or absolute discharge at sentencing are not required to register under either the federal or provincial laws under a Criminal Code provision. However, persons found to be Not Criminally Responsible on account of Mental Disorder (NCRMD) can’t take advantage of the Criminal Code provision because they were never convicted of a Criminal Code offence. The Appeal Court noted: “Persons found NCRMD stand in a dramatically different place than those convicted of a criminal offence. They have done nothing wrong in the eyes of the criminal law, and cannot be punished by the state for what they did.” It dismissed G’s Charter s. 7 argument but ruled: “…the equality command of s. 15(1) dictates that NCRMD who have received an absolute discharge must have some opportunity to address both their risk of reoffending and the potentially negative effects of sex offenders’ registry orders on their mental health and continued recovery. Neither Christopher’s Law nor SOIRA provides that opportunity. Consequently, both infringe s. 15(1) of the Charter.”  The Court ordered the suspension of the provisions of Christopher’s Law and SOIRA to the extent that they impose mandatory registration and reporting requirements with no possibility of exemption for persons found NCRMD who have received an absolute discharge. The Court gave the two governments 12 months to amend the law.

G. v. Ontario (Attorney General), 2019 ONCA 264 (CanLII)

4. Students and Privacy

A high school teacher was charged with voyeurism after he secretly videotaped female students in his school, focusing on their upper bodies and breasts. The offence of voyeurism requires that the persons observed have a reasonable expectation of privacy and that the observation or recording is done for a sexual purpose. The Supreme Court of Canada examined a number of factors giving rise to an expectation of privacy, including:

• the location of the person;
• the nature of the conduct;
• awareness or consent to the potential observation or recording;
• the manner in which the observation or recording was done;
• the subject matter or content of the observation or recording;
• any rules or regulations or policies governing the observation or recording;
• the relationship between the persons involved;
• the purpose of the observation or recording; and
• the personal attributes of the person who was observed or recorded.

The Supreme Court ruled:

In this case, when the entire context is considered, there can be no doubt that the students’ circumstances give rise to a reasonable expectation that they would not be recorded in the manner they were. In particular, the subjects of the video recordings were teenage students at a high school. They were recorded by their teacher in breach of the relationship of trust that exists between teachers and students as well as in contravention of a formal school board policy that prohibited such recording. Significantly, the videos had as their predominant focus the bodies of the students, particularly their breasts. In recording these videos, the accused acted contrary to the reasonable expectations of privacy that would be held by persons in the circumstances of the students when they were recorded.

The Court convicted the accused of the offence of voyeurism.

R v. Jarvis, 2019 SCC 10 (CanLII)

1. Important Limit to the Duty to Consult

Alberta’s Mikisew Cree First Nation took the federal government to court over its omnibus budget bill of 2012. This bill made significant changes to Canada’s environmental protection regime. The Mikisew were not consulted at any stage of the legislative process and they argued that the bill had the potential to adversely affect their treaty rights to hunt, fish and trap. The Supreme Court of Canada rejected their appeal. It ruled that the development of legislation by cabinet ministers does not trigger a duty to consult with aboriginal people. The Court wrote: “The duty to consult is ill-suited for legislative action. It is rarely appropriate for courts to scrutinize the law-making process, which includes the development of legislation by ministers…Recognizing that a duty to consult applies during the law-making process may require courts to improperly trespass onto the legislature’s domain.” The Court noted that the separation of powers is an essential feature of Canada’s Constitution and applying the duty to consult as the Mikisew requested would lead to a significant intrusion of the courts into parliamentary sovereignty.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17288/index.doc

Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

2. This Toronto Maple Leaf is a Winner!

Nikolay Kulemin was a forward with the Toronto Maple Leafs from 2008 and 2014.  In 2014, he and his wife applied for Canadian citizenship, stating that they had a long – held desire to be Canadian citizens, their two children were born in Canada, they had extensive business and investment ventures in Canada, and had integrated into Canadian society. However, in 2017 a citizenship judge rejected their application, ruling that they failed to meet the required number of residency days in Canada, traveled “wherever hockey took them” and no longer lived in Canada because Mr. Kulemin had been traded to the New York Islanders. Madame Justice Kane of the Federal Court of Canada gave them another chance. She decided that the Citizenship judge’s decision was not reasonable on the face of the evidence. She wrote that while the Applicants’ absences from Canada were significant, they should be considered in light of the Papadogiorgakis case, which allows for absences from Canada when they are temporary and the applicant can establish a centralized mode of living in Canada. Madame Justice Kane ruled that the applicants should have another hearing before a different decision-maker.

Kulemin v. Canada (Citizenship and Immigration) 2018 FC 955

3. Financial Advisor Goes to Jail
   

The Ontario Securities Commission charged Daniel Tiffen with three offences under the Ontario Securities Act. He and his firm had been selling promissory notes to clients at a time when they were under an order prohibiting them from trading in securities. The issue at trial was whether or not these notes were “securities” as defined by the Securities Act. The Ontario Superior Court of Justice found that the notes did fall within the definition of securities under the Act. At the sentencing hearing, the judge reviewed the aggravating and mitigating factors and determined that restitution was not sufficient. He noted that Mr. Tiffen was a repeat offender and had taken advantage of his position of trust with his clients. He sentenced him to six months in jail and 24 months probation.

Ontario Securities Commission v. Tiffin, 2018 ONSC 5419 (CanLII)

4. Do Cats Have Privacy Issues?
   

Sundae, an orange and white shorthair cat went missing. After a few days of searching, the Boucart family registered their cat as missing with the Societe Protectrice des animaux (SPA) A month later, the family was shocked to see that Sundae was listed on the SPA website as “adopted”. Axel Boucart asked the SPA for the name of the adoptive family so he could see about getting Sundae back but the SPA refused, citing privacy issues. It claimed that Quebec confidentiality laws prevented it from releasing private information about the adoptive family without permission. A Quebec judge ordered the SPA to turn over the information immediately but the SPA appealed. A Court of Appeal judge refused to hear the SPA’s appeal, stating that the confidentiality laws were not relevant in this case. He ordered the SPA to turn over the name and contact information of Sundae’s new owners within 5 days. No word yet on where Sundae is residing these days.

SPA Mauricie c. Boucart, 2018 QCCA 1612 (CanLII), <http://canlii.ca/t/hvcnb>, consulté le 2018-10-

1. A series of cases decided in January 2019 highlight the ongoing problems with solitary confinement within Canada’s corrections system.
   

The British Columbia Court of Appeal ruled on a challenge filed by the John Howard Society and the B.C. Civil Liberties Association against the Attorney General of Canada on the issue of inmate segregation. The Court of Appeal gave the Attorney General more time to come up with new policies for holding prisoners in solitary confinement, but in the meantime set out new conditions to help protect inmates’ constitutional rights. The Court of Appeal ordered:

• Inmates must be given 2 ½ hours a day outside of their cells, including an opportunity to be outdoors for at least 1 ½ hours each day, including weekends and holidays;
• Inmates should receive a daily visit from a health care professional;
• Indigenous Elders must be allowed to visit segregation units and provide one-on-one counselling to Indigenous prisoners;
• A senior official must give authorization before a prisoner can be kept in segregation for more than 15 days, and that person cannot be the head of the institution where the prisoner is kept; and
• Inmates must be allowed to have legal counsel at hearings to determine their placement in solitary confinement.

British Columbia Civil Liberties Association and the John Howard Society of Canada v. Canada (Attorney General) CanLII – 2019 BCCA 5 (CanLII)

In Edmonton, a Court of Queen’s Bench Justice ruled that an inmate kept in solitary confinement for over a year suffered cruel and unusual punishment. He was moved out of segregation only after he brought a writ of habeas corpus to challenge his placement. Justice Pentelechuk gave inmate Ryan Prystay 3.75 days credit towards every one day he spent in segregation. The Justice wrote: “Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly for extended periods.”

R. v. Prystay CanLII – 2019 ABQB 8 (CanLII)

Finally, at the end of January, 2019 the Ontario Superior Court granted a stay of proceedings in the murder prosecution of Adam Capay, the young Aboriginal man who came to national attention after he was kept in solitary confinement for over four years, in a cell where the lights were kept on 24 hours a day. Usually, courts remedy unacceptable behaviour such as this by crediting time against the prisoner’s ultimate sentence, as in the Prystay case. So, the Order for a stay of proceedings in this case is unusual. Justice Fregeau wrote: “In my opinion, this is the clearest of cases in which no remedy short of a stay is capable of redressing the prejudice caused to the integrity of the justice system as a result of the multiple and egregious breaches of the accused’s Charter rights. ”

R. v. Capay 2019 ONSC 535

2. New Moms Get A Class Action Settlement

The Federal Court of Canada recently approved a class action settlement worth between $8.5 to 11 million for as many as 2000 expectant mothers denied Employment Insurance benefits when they became sick during their parental leave. Jennifer McCrea, a Calgary mother led the action. She developed breast cancer while on maternity leave but was turned down when she applied for additional EI sickness benefits. EI officials maintained that a woman who was ill during maternity leave was not available for work and so was not eligible for sickness benefits. The federal government changed the law in 2013 but refused to pay people who claimed between 2002 and 2013.

The class action funds will be available to parents who were sick during the parental leave portion of their combined maternity/parental leave. Justice Catherine Kane wrote that it would have been better if the women had received their benefits when they were ill but that this was “nevertheless… a very good result. They will receive their benefits, albeit years later, and they will have witnessed both a change in the legislation to benefit others like them and improvements in the manner that information is shared by Service Canada about such benefits.” Jennifer McCrea received an honorarium for her efforts and said she was grateful to the Liberal government for living up to its 2015 election promise to settle the case, “albeit not as quickly as we had hoped.”

McCrea v. Canada 2019 FC 122

3. Henson Trusts and Tenancies

A Vancouver woman living with disabilities was denied help with her rent because, after her father died, she began to receive some money set aside for her in a Henson Trust. This is a kind of trust for people with disabilities that is structured in such a way that it tries to avoid interfering with government benefits. In this case, the Metro Vancouver Housing Corporation said that Ms. A’s trust counted as an asset and wanted to know the details. Ms. A refused and so the Housing Corporation would not process her application for rental assistance. Both the B.C. Court of Queen’s Bench and the Court of Appeal ruled that her trust was an asset that could disqualify Ms. A from rental assistance. The Supreme Court of Canada disagreed. It ruled that the Metro Vancouver Housing Corporation had a duty to consider her application for rental assistance and sent the case back to the trial judge to assess her compensation. The majority ruled that Ms. A’s Henson Trust was not an asset as the word is usually understood because she had no control over it and could not count on it to pay her rent. This case is the first time the Supreme Court has looked at Henson Trusts. It commented that it was not the situation that a Henson Trust could never be considered an asset but only that it would depend on the facts in each particular case.

S.A. v Metro Vancouver Housing Corp., CanLII – 2019 SCC 4 (CanLII)

4. Dealing with Orphans

The Alberta Energy Regulator will not issue a licence to a company to extract, process, or transport oil and gas unless the company assumes end-of-life responsibilities. These include plugging and capping oil wells to prevent leaks, dismantling surface structures and restoring the surface of the land to its previous condition. Redwater, an Alberta oil and gas company, went into bankruptcy and Grant Thornton Limited (GTL) was named as trustee. Since it would cost millions of dollars more to clean up the wellsites than the company was now worth, GTL decided it would “disown” the wells and not clean them up. The Regulator argued that GTL must do so under both the federal Bankruptcy Act and the provincial Regulations. The legal issues were whether the Bankruptcy Act allowed a trustee to just walk away from certain sites and whether provincial orders to clean up the sites were provable claims under the Act and payable according to the rules of bankruptcy. The majority of the Supreme Court of Canada ruled that the trustee couldn’t simply walk away from the sites and that Redwater could not avoid its environmental responsibilities. It also ruled that the costs were not debts under the Bankruptcy Act but rather they were duties to the public and nearby landowners. Therefore, the costs of dealing with abandoned wells did not fall under the Act. The Court ordered that money held in trust from the sale of Redwater’s assets must now be used to deal with the wells and reclaim the land before all other creditors under the Bankruptcy Act were paid. This decision was very good news for Alberta landowners who had been stuck with environmentally dangerous non-operative oil wells on their lands.

Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5

The Supreme Court of Canada has released a number of interesting cases over the last few months. This issue of BenchPress will look at four of them. Two are of national significance, and two reveal the profoundly personal situations that cause Canadians to access the justice system

1. A Deal is a Deal
   

The provinces of Quebec and Newfoundland and Labrador have been fighting over the terms of the Churchill Falls hydroelectric plant since they first contracted to build and operate it in 1969. The deal allowed Hydro-Quebec to buy electricity at a fixed rate for the 65-year duration of the contract, in return for promising to buy the electricity whether it needed it or not. After the contract was completed, the market price of electricity dropped well below the price set in the contract. Hydro- Quebec now buys electricity from Churchill Falls and sells it for a substantial profit. Newfoundland and Labrador asked the Court for an order allowing it to renegotiate the contract and adjust the price of the electricity. The Supreme Court of Canada rejected the appeal. The majority ruled that Hydro-Quebec did not have a duty to renegotiate the contract once it was clear that it was receiving an unanticipated, substantial profit. The Court concluded that it could not change the contents of the contract, require the parties to renegotiate it, or to share its benefits. It stated that the doctrine of unforeseeability, which could allow for a contract to be renegotiated if its terms become excessively onerous for one party, did not apply in this case. The doctrine is not a part of the Quebec Civil Code, and, in any event, the circumstances of this case did not allow for its limited use. The Court also dismissed suggestion that Hydro-Quebec was under obligations of good faith and equity to renegotiate. The Court wrote:“ Hydro-Quebec is not breaching its duty of good faith in exercising its right to purchase electricity from Churchill Falls at fixed prices. Nor does its insistence on adhering to the contract despite the unforeseen change of circumstances constitute unreasonable conduct.”

Churchill Falls (Labrador) Corp . v. Hydro-Quebec, 2018 SCC 46

2. Teenage Tragedy from Joyriding

Two teenaged boys, who had been drinking and smoking marijuana, went looking for cars to break into.  They found an unlocked car at a service garage and discovered the ignition key in the ashtray. One boy, who had never driven a car before, decided to steal the car and drive to the next town.  He crashed the car and his companion suffered catastrophic brain damage. At trial, a jury found the driver, the driver’s mother and the service garage liable in negligence.  The garage appealed, arguing that it did not owe a duty of care to the injured plaintiff.  The Court noted, perhaps wryly: “There is no clear guidance in Canadian case law on whether a business owns a duty of care to someone who is injured following the theft of a vehicle from its premises.”  It stated, however, that “…the notion that illegal or immoral conduct by a plaintiff precludes the existence of a duty of care has consistently been rejected by the Court. Whether the personal injury caused by unsafe driving of a stolen car is suffered by a thief or a third party makes no analytical difference to the duty of care analysis.”  The majority concluded that, upon analysis of the evidence, the plaintiff did not prove a duty of care on the part of the garage. While it was reasonably foreseeable for the garage to anticipate the theft of a car, the risk of theft in general did not automatically include the risk of theft by minors or the risk that negligent operation of the stolen vehicle would result in physical injury. It concluded: “A business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.” The Court ruled that the garage was not liable for the injuries to the plaintiff.Rankin (Rankin’s Garage and Sales) v. J.J. 2018 SCC 19

Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 (CanLII)

3. The Holy Grail of a National Securities Regime

Many a Canadian Attorney General and Minister of Finance has sought to establish a national framework for a capital markets regulatory system.  Canada is one of the few developed countries that does not have a national securities regulator. Currently, each province and territory has its own regime.  Some provinces, notably Quebec and Alberta, have resisted a national system, arguing that it would transgress on provincial powers.

The system currently being proposed consists of a “Model Provincial Act”, which covers the day-to-day aspects of the securities trade, a “Draft Federal Act”, aimed at preventing and managing risk within the system, and establishing criminal offences relating to financial markets, and a national securities regulator (the Authority”) to administer the regime.  The Authority and its Board of Directors will operate under the supervision of a Council of Ministers, which will be made up of the provincial ministers responsible for capital markets regulation for participating provinces and the federal Minister of Finance.

The proposal was referred to the Supreme Court of Canada, which released its opinion this fall.  It concluded:

1. It is within the powers of the Constitution for the Government of Canada to establish a pan-Canadian securities regulation under the authority of a single regulator;
2. The proposed Draft Federal Act falls within Parliament’s trade and commerce power pursuant to s. 91(2) of the Constitution Act.

The Court wrote: “With respect to the classification of the Draft Federal Act, the ultimate question in this case is whether the Act, viewed in its entirety, addresses a matter of genuine national importance and scope going to trade as a whole, in a way that is distinct and different from provincial concerns. …the Draft Federal Act does address a matter of genuine national importance and scope relating to trade as a whole, and it therefore falls within Parliament’s general trade and commerce power under s. 91(2) of the Constitution Act 1867.  The preservation of the integrity and stability of the Canadian economy quite clearly has a national dimension, and one which lies beyond provincial competence.”

The Court also set out the protections in the plan for provincial sovereignty. Neither model Acts have any force of law until they are properly enacted by provincial legislation. Any proposals to amend the Model Provincial Act are subject to a vote and must be approved by at least 50% of the members of the Council of Ministers.

Reference re Pan-Canadian Securities Regulation, 2018 SCC 48

4. The “Ex” and the Widow

The Supreme Court of Canada had to decide recently who should receive the benefit of a life insurance policy: the deceased policy holder’s spouse or his ex-wife.  The deceased, Larry Moore, took out a life insurance policy while married to Michelle Moore.  They divorced in 2003 but Michelle continued to pay the policy premiums until Larry’s death in 2013.  She maintained that they had a verbal contract that she would remain the beneficiary of the policy and the proceeds would be used to help support their children. However, unbeknownst to her, shortly after Larry began to live with Risa Sweet, he named her the irrevocable beneficiary under the policy.  After Larry’s death a dispute arose between Ms Moore and Ms Sweet over who should receive the $250,000 insurance payment. Ms Sweet argued that she was the irrevocable beneficiary and should receive the money.  Ms. Moore argued that this would amount to an “unjust enrichment” for Ms Sweet.

The majority of the Supreme Court ruled in favour of Ms Moore. It stated that a plaintiff will establish unjust enrichment when:

• the defendant was enriched;
• the plaintiff suffered a corresponding loss; and
• There was no legal reason to justify the defendant’s enrichment and the plaintiff’s loss.

The majority ruled that Ms Sweet was clearly enriched by receiving the insurance proceeds and that her enrichment came at Ms Moore’s expense. It further ruled that there was no reason in law to justify Ms Sweet’s enrichment.  The Insurance Act of Ontario does not prohibit a claim for unjust enrichment from succeeding against an irrevocably designated beneficiary. The majority decided that Ms Moore should receive the money. It ruled that it was Ms Moore’s payment of the premiums that kept the life insurance policy in effect and that Ms Sweet’s claim to the proceeds was only possible because of those payments.

Michelle Constance Moore v. Risa Lorraine Sweet, 2018 SCC 52

Moore v. Sweet, 2018 SCC 52 (CanLII)