Reference

The Court of Appeal for Ontario heard motions for leave to adduce evidence and for a confidentiality order in the context of a reference regarding the legality of an online provincial lottery scheme permitting international play.

The court granted leave to the Attorney General of British Columbia and the Canadian Lottery Coalition Members to file their proposed evidence, finding it potentially helpful for the reference panel.

The court dismissed the Canadian Gaming Association's motion for a confidentiality order, ruling that alleged reputational harm was a private interest insufficient to override court openness, especially as the information was largely public.

The Quebec Court of Appeal was asked by reference whether the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, was ultra vires Parliament's jurisdiction.

The Court of Appeal held the Act was valid except for ss. 21 and 22(3), which it found impermissibly altered Canada's constitutional architecture.

Both the Attorney General of Quebec and the Attorney General of Canada appealed.

The Supreme Court upheld the entire Act as constitutionally valid under s. 91(24) of the Constitution Act, 1867, finding that its pith and substance — protecting the well-being of Indigenous children, youth and families by promoting culturally appropriate child and family services and advancing reconciliation — falls squarely within Parliament's jurisdiction over Indians and Lands reserved for the Indians.

The Court also held that ss. 21 and 22(3) do not alter the constitutional architecture: s. 21 is a valid anticipatory incorporation by reference provision, and s. 22(3) is a permissible legislative restatement of the doctrine of federal paramountcy.

The Attorney General of Canada appealed from the Alberta Court of Appeal's ruling that the federal Impact Assessment Act and Physical Activities Regulations were entirely ultra vires Parliament.

The Supreme Court allowed the appeal in part, holding that the designated projects scheme is unconstitutional because it is not in pith and substance directed at regulating effects within federal jurisdiction — those effects do not drive the scheme's decision-making functions — and because the defined term 'effects within federal jurisdiction' does not align with federal legislative jurisdiction.

However, the secondary scheme in ss. 81 to 91 of the IAA, which governs projects on federal lands or outside Canada, was found to be clearly intra vires and severable.

The dissent would have upheld the entire legislation as validly directed at assessing and regulating adverse federal effects.

The Privacy Commissioner brought a reference to the Federal Court regarding the application of PIPEDA to Google's search engine.

A complainant alleged Google contravened PIPEDA by displaying links to sensitive news articles when his name was searched.

The Court answered two reference questions.

First, the Court held that Google collects, uses, and discloses personal information in the course of commercial activities when indexing and displaying search results, as every component of its business model is commercial.

Second, the Court held Google's search engine service is not excluded from PIPEDA under the journalistic exemption, as its primary purpose is not journalistic, and certainly not exclusively journalistic.

The Court concluded PIPEDA applies to Google's search engine operations.

The Supreme Court considered whether article 35, paragraph 1 of Quebec's Code of Civil Procedure, which grants the Court of Québec exclusive jurisdiction over civil disputes valued at less than $85,000, is constitutional under section 96 of the Constitution Act, 1867.

The majority held that the provision unconstitutionally infringes on the core jurisdiction of the Superior Court by creating a prohibited parallel court, given the breadth of the jurisdiction, its exclusivity, the absence of accessible appeal to the superior court, and a monetary ceiling approximately 29 percent above the updated historical limit.

The second question, concerning whether the Court of Québec must apply judicial deference standards when hearing administrative appeals, was found to be moot following the combined effect of Vavilov and new legislation.

The Court dismissed the appeals but suspended the declaration of invalidity for 12 months to allow the Quebec legislature to enact a constitutional replacement.

The Attorney General of Canada sought to prevent the disclosure of sensitive information in a public version of a Federal Court decision regarding an application for warrants under the Canadian Security Intelligence Service Act.

After releasing the decision with the contested information redacted, the Court invited submissions on whether the Canada Evidence Act applies to such novel circumstances.

The Court agreed with the Attorney General and amicus curiae that the scheme under section 38 of the Canada Evidence Act provides an appropriate mechanism for seeking non-disclosure of sensitive information in a decision on a warrant application, allowing the Attorney General to bring an application under section 38.04.

Three provincial appellants challenged the constitutionality of the federal Greenhouse Gas Pollution Pricing Act, which established minimum national standards of greenhouse gas price stringency operating as a backstop to provincial pricing systems.

The courts below were divided, with the Saskatchewan and Ontario Courts of Appeal upholding the Act while the Alberta Court of Appeal struck it down.

A 6-3 majority of the Supreme Court held that the Act's pith and substance is the establishment of minimum national standards of greenhouse gas price stringency to reduce greenhouse gas emissions, and that this matter falls within Parliament's jurisdiction under the national concern branch of the peace, order, and good government power.

The majority further held that the fuel and excess emissions charges are constitutionally valid regulatory charges rather than taxes.

The appeals by the Attorneys General of Saskatchewan and Ontario were dismissed and the appeal by the Attorney General of British Columbia was allowed, with Côté J. dissenting in part and Brown and Rowe JJ. fully dissenting.

The appellant challenged the Quebec Court of Appeal's opinion that ss. 1 to 7 of the Genetic Non-Discrimination Act, S.C. 2017, c. 3, exceeded Parliament's criminal law power under s. 91(27) of the Constitution Act, 1867.

The majority held that the pith and substance of the impugned provisions — prohibiting compelled genetic testing and non-consensual use or disclosure of genetic test results in connection with contracting and the provision of goods and services — was a valid exercise of the criminal law power, as the provisions respond to a reasoned apprehension of harm to autonomy, privacy, equality, and public health.

A concurring minority agreed on the result but characterized the pith and substance more narrowly as protecting health by giving individuals control over the intimate information revealed by genetic testing.

The dissent would have dismissed the appeal on the basis that the impugned provisions lacked a well-defined threat and adequate evidentiary foundation to constitute a valid criminal law purpose, falling instead within provincial jurisdiction over property and civil rights under s. 92(13).

The Province of British Columbia referred the constitutionality of proposed amendments to the Environmental Management Act to the British Columbia Court of Appeal.

The proposed amendments would have introduced a hazardous substance permit system regulating the presence of heavy oil in the province, directly impacting the Trans Mountain pipeline expansion.

The BCCA held that the proposed amendments fell outside provincial legislative authority because their pith and substance — placing conditions on, and if necessary prohibiting, carriage of heavy oil through an interprovincial undertaking — related to Parliament's jurisdiction over federal undertakings under s. 92(10) of the Constitution Act, 1867.

The Supreme Court of Canada unanimously dismissed the appeal, adopting the reasons of the Court of Appeal for British Columbia.

This decision addresses motions for leave to intervene and to file records in a constitutional reference concerning the Greenhouse Gas Pollution Pricing Act.

The motion judge granted leave to intervene to twelve parties, including three Attorneys General as of right and nine additional parties seeking discretionary leave.

The judge declined to grant leave to one individual applicant.

The decision also addresses the scope of factums, oral argument time allocation, and the relaxed approach to supplementing the record in constitutional references as a court of first instance.

In consolidated constitutional reference appeals, the Court upheld the cooperative capital markets framework and confirmed the draft federal statute was within Parliament's general trade and commerce power.

It held the memorandum did not legally bind provincial legislatures or impermissibly transfer primary legislative authority, and that the federal scheme validly targeted systemic risk and financial crime.

The court determined the dispositive appellate issues on the evidentiary record.

The reasons address the principal submissions, apply the governing legal framework, and resolve the controlling questions.

Relief was granted or refused according to the applicable standard of review and the merits.

The court determined the dispositive appellate issues on the evidentiary record.

The reasons address the principal submissions, apply the governing legal framework, and resolve the controlling questions.

Relief was granted or refused according to the applicable standard of review and the merits.

The appeal addressed whether a federal regulator had statutory authority to implement a market-based regime requiring negotiations over compensation for retransmission of local television signals.

The majority held the proposed regime exceeded statutory authority and conflicted with the copyright scheme governing retransmission rights and exceptions.

The dissent would have found a sufficient statutory basis and no operational conflict between the two statutes.

The appeal was allowed, with costs throughout.

The appeal concerned whether retail Internet service providers, when providing end-users with Internet access to requested programming, carry on broadcasting undertakings under the Broadcasting Act.

The court held that the statutory terms, read in light of the Act’s language and policy objectives, do not capture entities that merely provide a transmission mode without selecting, originating, or packaging content.

Prior authorities on transmission and conduit functions were treated as consistent with this interpretation, while precedent involving content control by cable licensees was distinguished.

The appeal was dismissed, confirming that access-providing Internet service providers are not broadcasting undertakings in this context.

The Governor in Council referred the proposed federal Securities Act to the Supreme Court of Canada to determine its constitutional validity.

The proposed Act sought to create a single national securities regulator and a comprehensive federal regime for securities regulation.

The federal government argued the Act was a valid exercise of its general trade and commerce power under s. 91(2) of the Constitution Act, 1867.

The Court applied the General Motors test and concluded that while certain aspects of the securities market are national in scope, the main thrust of the Act was the day-to-day regulation of securities, which falls under provincial jurisdiction over property and civil rights (s. 92(13)).

Consequently, the Court found the proposed Act unconstitutional, though it noted that a cooperative federal-provincial approach remains available.