Marshall Rothstein

The appeal addresses the governing legal test and its application to the record before the appellate court.

The Court clarifies the proper analytical framework, applies it to the disputed issues, and resolves the appeal accordingly.

The reasons emphasize principled interpretation and consistency with established jurisprudence.

The disposition determines the parties' rights on the issues raised in the appeal.

The Court allowed the appeal and held that the provincial statutory bar in s. 44 of Newfoundland and Labrador’s workers’ compensation statute applied to bar the dependants’ maritime negligence action.

The Court concluded the provincial provision was constitutionally applicable and operative, rejecting both interjurisdictional immunity and federal paramountcy.

The Court held the provincial no-fault compensation regime and the federal maritime cause of action could operate together without conflict.

This appeal addressed whether trial judges may fix rates of remuneration for amici curiae and order provincial payment in criminal proceedings where amici were appointed to preserve orderly process.

The majority held that while superior and statutory courts may appoint amici in exceptional circumstances, inherent or implied jurisdiction does not extend to fixing compensation rates absent constitutional or statutory authority.

The Court emphasized separation of powers and held public-funding allocation decisions belong to the legislative and executive branches.

Dissenting judges would have recognized fee-setting as necessarily incidental to the appointment power to protect judicial process integrity.

The appeal was allowed.

The appellants sought to file French-language exhibits attached to affidavits in constitutional litigation concerning minority-language education rights.

The majority held that British Columbia law required civil court proceedings, including exhibits relied on for their content, to be in English unless impracticable, and that this framework displaced residual inherent jurisdiction to admit untranslated French documents.

The Court further held that the 1731 English statute was received into provincial law and had not been displaced for this issue.

The dissent would have recognized continued inherent jurisdiction absent clear legislative ouster and remitted the matter for discretionary determination.

The appeal was dismissed, with costs awarded to the appellants.

The appellant challenged an order for a new trial after exclusion of a co-accused’s prior inconsistent Agreed Statement of Facts tendered for its truth in a murder prosecution.

The majority held threshold reliability was not established because available safeguards did not adequately permit testing of truth and accuracy, particularly given curtailed cross-examination following assertions of solicitor-client privilege.

The Court emphasized deference to trial-level reliability determinations absent error in principle and rejected a request for a new trial based on how the prosecution conducted the voir dire.

It concluded the statement’s surrounding circumstances did not provide sufficient substantive reliability where the declarant had incentives to shift blame during plea negotiations.

The appeal was allowed and the acquittal restored, with dissenting reasons favouring a new trial.

The appeal addressed exclusion from refugee protection under art. 1F(a) for alleged complicity in crimes against humanity by a state official.

The Court rejected guilt by association and held that exclusion requires serious reasons for considering the claimant voluntarily made a knowing and significant contribution to the group’s crime or criminal purpose.

It clarified that passive acquiescence or mere rank is insufficient, and that analysis must remain individualized and contextual.

The matter was remitted to a new panel for redetermination under the refined contribution-based test.

The Court allowed the appeal and held that the law firm breached the duty of loyalty by accepting a retainer directly adverse to a current client without consent, then breaching duties of commitment and candour by dropping existing retainers and failing to disclose.

The bright line rule against concurrent adverse representation applies to related and unrelated matters, subject to limited scope constraints.

The matter was remitted for redetermination of remedy focused on maintaining public confidence in the administration of justice.

In a criminal appeal concerning convictions for sexual assault and unlawful touching, the appellant argued that trial reasons were insufficient and that the burden of proof was misapplied.

The Court held that the functional test for sufficiency was met because the reasons, read in context, explained why guilt was found and permitted meaningful appellate review.

The Court also held that the trial judge properly applied reasonable doubt principles and did not impermissibly decide the case by merely choosing between competing accounts.

The appellant’s denial was considered but did not raise a reasonable doubt on the record.

The appeal was dismissed.

The Court dismissed an appeal challenging a refusal of ministerial relief from inadmissibility under s. 34(2) of the Immigration and Refugee Protection Act.

It held that reasonableness is the applicable standard of review for this discretionary decision and accepted an interpretation of national interest focused mainly on national security and public safety, while not excluding other relevant factors.

The Court found the Minister’s reasons intelligible and justified on the evidentiary record, including sustained contact with an organization found to have engaged in terrorism and credibility concerns.

It further held that procedural fairness was satisfied and any legitimate expectations from published guidelines were met.

The Minister’s decision was allowed to stand.

The Crown appealed a decision of the Ontario Court of Appeal which set aside the respondent's conviction for possessing marijuana and cocaine for the purposes of trafficking and ordered a new trial.

The central issue was whether a drug purchase call intercepted by police on the accused's cell phone constituted admissible evidence or inadmissible hearsay.

The Court held that implied assertions tendered for the truth of their contents are subject to the hearsay rule, just as express assertions are.

On a principled analysis, the single drug purchase call failed to meet the requirements of necessity and reliability, as no effort was made to locate the caller despite having his address, and the call lacked sufficient indicia of reliability.

The appeal was dismissed and a new trial ordered.

The appellant union challenged the employer's unilaterally imposed mandatory random alcohol testing policy at a paper mill.

The arbitration board allowed the grievance, finding the policy unjustified absent evidence of a workplace alcohol problem.

On judicial review, the board's decision was set aside, and the New Brunswick Court of Appeal dismissed the union's appeal.

The Supreme Court of Canada (6-3) allowed the appeal, holding the arbitration board's decision was reasonable.

The majority found the board properly applied the established arbitral "balancing of interests" test, which requires evidence of enhanced safety risks to justify random testing.

The dissent would have found the board's decision unreasonable for departing from the arbitral consensus on the evidentiary threshold without explanation.

The appellant used funds advanced by the respondent to purchase property in his own name.

The respondent claimed a beneficial interest via purchase money resulting trust.

The Supreme Court declined to abandon the purchase money resulting trust doctrine in favour of unjust enrichment, holding that the doctrine provides certainty and predictability.

The Court found the trial judge correctly concluded the presumption of resulting trust was rebutted, as the respondent's contribution matched the exact amount of tax arrears it owed to a third party, and the respondent's own fax stated the funds were advanced without conditions or requirements.

The appellant was convicted of three counts of first degree murder for being a party, with her spouse, to the murder of their three children as part of a murder-suicide pact.

She argued the trial judge erred in not putting the defence of abandonment to the jury as an alternative to her primary defence of absence of mens rea.

The Supreme Court held there is no cardinal rule against putting incompatible defences to a jury, but the defence of abandonment did not meet the air of reality test because the appellant, who had supplied the murder weapon, failed to take reasonable steps proportional to her participation to neutralize its effects or prevent the offence.

The Court reformulated the test for abandonment under s. 21(1) of the Criminal Code to include a fourth element requiring proportional neutralizing or preventative steps.

The appellant was acquitted at trial of operating a vehicle with a blood alcohol level exceeding the legal limit after the trial judge found that straddle evidence rebutted the statutory presumption under s. 258(1)(d.1) of the Criminal Code.

The Quebec Court of Appeal set aside the acquittal and substituted a conviction.

The Supreme Court of Canada allowed the appeal, holding that straddle evidence is admissible to rebut the statutory presumption, applying the principles from R. v. Gibson.

The trial judge committed no legal error in finding the presumption rebutted and no palpable or overriding error in weighing the other indicia of impairment.

The acquittal was reinstated.

The appellants, a mother and infant who suffered brain damage during a vaginal birth after caesarean section (VBAC), appealed a Court of Appeal order setting aside a trial judgment due to the trial judge's extensive copying of the plaintiffs' submissions.

The Supreme Court held that incorporating the material of others in reasons for judgment does not, without more, require the decision to be set aside; the presumption of judicial integrity is rebutted only where copying would lead a reasonable person to conclude the judge did not independently consider the issues.

On the merits, the Court affirmed liability against the prenatal obstetrician for failure to obtain informed consent to VBAC, but set aside findings of liability against the hospital, nurse, and other physicians for lack of causation.

The appellant sold two forest tenures in Alberta, under which the purchasers assumed statutory reforestation obligations arising from past harvesting.

The Minister reassessed the appellant to include the estimated cost of those reforestation obligations in the vendor's proceeds of disposition under s. 13(21) of the Income Tax Act.

The Supreme Court of Canada unanimously allowed the appeal, holding that the reforestation obligations were not a distinct existing liability of the vendor but rather a future cost embedded in the forest tenure by virtue of Alberta's regulatory scheme, which depressed the tenure's value.

The Court rejected both the Minister's mortgage analogy and the appellant's contingent liability argument, finding the obligations properly excluded from proceeds of disposition regardless of whether they were contingent or absolute.

The Crown appealed the acquittal of the respondent on a charge of child abandonment under s. 218 of the Criminal Code.

The respondent, unaware of her pregnancy, gave birth in a retail store washroom and left the newborn in the toilet, believing the child was dead.

The majority held that s. 218 requires subjective fault, and the Crown had not proved the respondent knew her conduct risked the child's life or health.

The concurring minority would have applied an objective penal negligence standard but upheld the acquittal on the basis of the respondent's honest and reasonable mistake of fact.

The appeal was dismissed unanimously.

The appellants, individual members of the Fort Nelson First Nation, blocked a logging company's access to timber sites after the Crown granted logging licences.

Sued in tort, they defended on the basis that the licences were issued in breach of the duty to consult and violated their treaty rights under Treaty No. 8.

The Supreme Court of Canada held that the duty to consult is owed to the Aboriginal group collectively, and absent authorization from the First Nation, individual members cannot assert a breach of that duty on their own.

The Court declined to make a definitive pronouncement on whether individual members could assert treaty rights in these circumstances, but ultimately dismissed the appeal on the basis that raising the defences constituted an abuse of process, as the appellants had failed to challenge the licences when issued and instead resorted to self-help by blockading access.

The appellant challenged the constitutionality of s. 243 of the Criminal Code, which prohibits concealing the dead body of a child whether it died before, during, or after birth, arguing the provision is impermissibly vague in its application to a child that died before birth, thereby infringing s. 7 of the Charter.

The Supreme Court unanimously dismissed the appeal, holding that s. 243 meets the minimum standard of precision required by the Charter when interpreted to apply only to a fetus that would likely have been born alive.

The Court adopted a likelihood standard from R. v. Berriman, finding the provision gives fair notice and sufficiently limits enforcement discretion.

The matter was remitted for a new trial.

The Court dismissed the application for leave to appeal from a Federal Court of Appeal judgment, with costs.