Joseph J. Arvay

Following Stage Two of a complex treaty rights trial, the plaintiffs sought costs against Ontario.

Ontario disputed the quantum and the partial indemnity rate, arguing the plaintiffs expended an unreasonable amount of time compared to the defendants.

The court found the plaintiffs' time expenditure was reasonable given the complexity of the issues, including Crown immunity and limitations, and the risks involved.

The court awarded costs to the plaintiffs on a partial indemnity basis at a rate of 65%, taking into account an offer to settle made by the Superior plaintiffs and the unique nature of the Anishinaabek-Crown treaty relationship.

The appellant challenged lower court orders requiring production of a confidential Cabinet submission in the context of a Bodner review of the government's response to a judicial compensation commission's recommendations.

The Court held that the rules of evidence and production in Bodner reviews must reflect the unique nature of that review and respect both judicial independence and Cabinet confidentiality.

A party seeking production of a confidential Cabinet document must first establish some basis to believe the document may contain evidence tending to show the government failed to meet one of the Bodner requirements; failing that threshold, the document need not be produced.

The respondent association did not meet that threshold, as no evidence or circumstances were identified suggesting the Cabinet submission would reveal a constitutional failure.

Accordingly, the appeal was allowed and the production order quashed.

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 plaintiffs, beneficiaries of the Robinson Huron and Robinson Superior Treaties, brought a motion for partial summary judgment in Stage Two of their action against the federal and provincial Crowns.

They sought declarations that their claims for breach of the treaties' annuity augmentation promises were not barred by Ontario's limitations legislation or the doctrine of Crown immunity.

The Superior Court of Justice granted partial summary judgment on these issues, finding that treaties are not contracts or specialties subject to the Limitations Act, 1990, and that equitable claims for breach of fiduciary duty could historically be pursued by petition of right, thus falling outside Crown immunity under the Proceedings Against the Crown Act.

The court declined to grant summary judgment on the issues of joint and several liability and whether Canada should act as paymaster, deferring those matters to the Stage Three trial.

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.

Ontario brought a motion to reopen Stage One of the trial to admit newly discovered evidence, specifically the Fort William Jesuit Mission Diary and a September 30, 1850 entry, along with expert opinion evidence.

The court dismissed the motion, finding that the evidence would not probably have changed the result of the trial and could have been discovered with reasonable diligence.

The court also ruled that the expert opinion evidence was inadmissible on the motion as it was not necessary and its prejudicial effect outweighed its probative value.

The appellant brought a claim under the Independent Assessment Process of the Indian Residential Schools Settlement Agreement, alleging compensable sexual abuse under category SL1.4 when a nun touched his genitals over his clothing while he was a student at a residential school.

The Hearing Adjudicator denied the claim by erroneously importing a requirement of sexual intent not found in SL1.4.

All internal review levels upheld the denial, and the supervising judge at the Manitoba Court of Queen's Bench ordered reconsideration.

The Manitoba Court of Appeal set aside that order, holding the supervising judge had exceeded his jurisdiction.

A majority of the Supreme Court of Canada allowed the appeal and reinstated the reconsideration adjudicator's compensation award, finding that supervising courts have an ongoing duty to intervene where an adjudicator makes an unauthorized modification of the IAP, and that a gap in the IRSSA justified judicial intervention to ensure the appellant received the compensation bargained for.

The defendants moved to strike the plaintiffs' statement of claim, arguing no reasonable cause of action, lack of standing for the Barbra Schlifer Clinic, and that the action was frivolous, vexatious, and an abuse of process.

The plaintiffs sought declarations of systemic sex discrimination by the London Police Service in investigating sexual assault complaints and an order for a court-supervised external review.

The court allowed the motion in part, affirming that the claim was not plainly and obviously bound to fail and that the Clinic had public interest standing.

However, several paragraphs of the statement of claim were struck for pleading evidence or being vexatious and inflammatory.

The Anishinaabe beneficiaries of the Robinson Huron and Robinson Superior Treaties of 1850 brought actions seeking declarations regarding the interpretation of the annuity augmentation clause in the Treaties.

The Treaties provided for a perpetual annuity that the Crown promised to increase if the ceded territory produced an amount enabling the Crown to do so without incurring loss, provided the amount paid to each individual did not exceed £1 ($4) per year, or such further sum as Her Majesty may be graciously pleased to order.

The Court held that the Crown has a mandatory obligation to increase the collective annuities when economic circumstances warrant, and that the $4 cap applies only to individual distributions, not the collective entitlement.

The Court also found that the Crown owes an ad hoc fiduciary duty to the beneficiaries to engage in the process of determining whether the economic circumstances warrant an increase.

The Chief Adjudicator of the Independent Assessment Process under the Indian Residential School Settlement Agreement appealed two directions issued by the Eastern Administrative Judge.

The first direction prohibited the appellant from participating in three appeals and ordered him to withdraw his facta, finding him insubordinate and in defiance of the supervising courts.

The second direction rescinded the first and appointed an amicus curiae to bring a Request for Direction.

The Court of Appeal allowed the appeal and set aside both directions, finding that the appellant was owed procedural fairness and natural justice, which were not afforded.

The court also found the second direction violated the principle of functus officio.

The court held that any future proceedings regarding the appellant's conduct must follow the mandated Request for Direction process and be conducted by a different supervising judge.

The Chief Adjudicator of the Independent Assessment Process under the Indian Residential Schools Settlement Agreement sought a stay of a Direction issued by the Eastern Administrative Judge that prohibited the Chief Adjudicator from continuing participation in three appeals, including one before the Supreme Court of Canada scheduled for October 10, 2018.

The Direction was issued without notice to the Chief Adjudicator or other parties and without supporting record.

The Court of Appeal granted the stay, finding serious issues to be tried regarding procedural fairness, jurisdiction, and the scope of participation permitted for administrative tribunals in appeals challenging their decisions.

On a motion to extend the suspension of the declaration of constitutional invalidity granted in an earlier physician-assisted death ruling, the moving party sought a six-month extension.

The Court held that the federal election delay constituted extraordinary circumstances justifying only a four-month extension.

The Court also granted an exemption for Quebec in relation to specified provincial end-of-life care provisions and permitted eligible individuals to seek judicial authorization from superior courts during the extension period.

A partial dissent would have granted only the four-month extension and refused both exemption requests.

Special costs were awarded on a full indemnity basis.

The appellants challenged Criminal Code provisions barring assistance in dying, arguing the absolute prohibition violated section 7 Charter rights of competent adults with grievous and irremediable medical conditions causing intolerable suffering.

The Court held the blanket ban was overbroad relative to Parliament’s objective of protecting vulnerable persons and was not justified under section 1.

It declared section 14 and section 241(b) of no force or effect to the extent they prohibit physician-assisted death for competent, consenting adults meeting the defined criteria.

The declaration of invalidity was suspended for 12 months to allow a legislative response.

The Court also awarded special costs on a full indemnity basis to the appellants, with partial cost responsibility assigned to British Columbia.

The applicants, female soccer players participating in the FIFA Women's World Cup Canada 2015, filed a human rights application alleging sex discrimination regarding the requirement to play on artificial turf.

They subsequently sought to amend their application to include allegations of reprisal and requested an interim remedy ordering the respondents to cease and desist from threatening reprisals.

The Tribunal granted the request to amend the application, finding no prejudice to the respondents.

However, the Tribunal denied the request for an interim remedy, concluding that a cease and desist order was unnecessary because section 8 of the Human Rights Code already provides clear protection against reprisal.

The applicants, women soccer players participating in the FIFA Women's World Cup Canada 2015, filed a human rights application alleging sex discrimination because they were required to play on artificial turf, unlike men's teams.

They requested an expedited proceeding to ensure grass fields could be installed before the tournament.

The Tribunal denied the request to expedite, finding that the applicants had delayed filing their application for over 18 months after the tournament schedule and venues were announced.

The Tribunal held that granting an expedited hearing in these circumstances would unfairly prejudice other applicants waiting for their cases to be heard.

This appeal addressed public interest standing in a broad constitutional challenge to prostitution-related Criminal Code provisions.

The Court reaffirmed that standing is determined by a flexible, purposive weighing of three factors: serious justiciable issue, genuine interest, and whether the proceeding is a reasonable and effective means to bring the claims forward.

It held that parallel or potential litigation does not automatically defeat standing and that practical barriers affecting directly impacted persons are relevant to the analysis.

In the circumstances, the respondents met the test and were granted public interest standing.

The Attorney General of Canada appealed a decision granting a constitutional exemption to Insite, a safe injection facility in Vancouver, from federal drug possession and trafficking laws.

The Supreme Court of Canada held that while the Controlled Drugs and Substances Act is valid federal criminal legislation that applies to provincial health facilities, the federal Minister of Health's refusal to grant an exemption under section 56 of the Act violated the claimants' section 7 Charter rights.

The Court found the Minister's decision was arbitrary and grossly disproportionate in its effects, as it denied life-saving medical care to vulnerable individuals without a corresponding benefit to public safety.

The Court ordered the Minister to grant the exemption forthwith.

The appellants, representative plaintiffs in two class actions, challenged the constitutionality of provisions in the Public Service Superannuation Act and the Canadian Forces Superannuation Act that reduced the supplementary death benefit payable to surviving spouses based on the age of the deceased plan member.

They argued this constituted age discrimination under s. 15(1) of the Charter.

The Supreme Court of Canada dismissed the appeal, holding that the reduction provisions did not violate s. 15(1).

The Court clarified that a formalistic 'mirror comparator group' approach is not required for a s. 15(1) analysis.

Instead, a substantive equality approach must be taken, considering the full context of the legislative scheme.

Viewed contextually, the benefit scheme met the actual needs of the claimants and did not perpetuate disadvantage or negative stereotypes.

The government of British Columbia enacted the Health and Social Services Delivery Improvement Act in response to a health care crisis.

Part 2 of the Act introduced changes to transfers, contracting out, layoffs, and bumping rights, invalidating provisions of existing collective agreements and precluding future collective bargaining on these issues.

The appellants challenged the legislation under ss. 2(d) and 15 of the Charter.

The Supreme Court of Canada held that s. 2(d) protects a procedural right to collective bargaining, overruling previous jurisprudence.

The Court found that ss. 6(2), 6(4), and 9 of the Act substantially interfered with this right and were not justified under s. 1 because they were not minimally impairing.

The Court dismissed the s. 15 equality claim, finding the distinctions were based on employment sector rather than personal characteristics.

The appellant, a bookstore catering to the gay and lesbian community, sought advance costs to fund litigation against Customs regarding the detention of four books and a systemic review of Customs' practices.

The Supreme Court of Canada dismissed the appeal, holding that the case did not meet the strict requirements for an advance costs award established in Okanagan.

The Court found that the four books appeal was too narrow to constitute special circumstances of public importance, and the systemic review was an unnecessary expansion of the litigation.