BenchPress - Vol 43-2 - LawNow Magazine

BenchPress – Vol 43-2

  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.

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

  1. 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

  1. 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)

  1. 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), <>, consulté le 2018-10-


Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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