Robert J. Frater

This is a costs endorsement following an appeal where the Court of Appeal allowed the appeal on a preliminary jurisdictional question raised by the court itself, rather than on the substantive issues.

The court had determined that neither the application judge nor the Court of Appeal had jurisdiction to decide whether a proposed payment would constitute an offence under the Criminal Code.

Given these unique circumstances, where the disposition was based on a threshold jurisdictional question posed by the panel and did not determine the underlying substantive issues, the court ordered that each party bear their own costs below and on appeal.

The Court of Appeal for Ontario set aside a Superior Court declaration that a proposed payment by estate executors to a law firm, in satisfaction of a Dubai judgment, would violate s. 83.03(b) of the Criminal Code due to alleged connections between the judgment creditors and a terrorist group.

The appellate court held that the Superior Court lacked jurisdiction to issue such a declaration, as it improperly interfered with prosecutorial discretion and provided no binding immunity from criminal prosecution.

The court emphasized that Rule 14.05(3) of the Rules of Civil Procedure and s. 60(1) of the Trustee Act are procedural and do not create jurisdiction for declarations on criminal legality, especially when based on disputed facts.

Senator Michael Duffy sued the Senate of Canada for over $7 million in damages, alleging his suspension and denial of expenses were politically motivated, unconstitutional, and violated his Charter rights, despite his acquittal on criminal charges.

The Senate moved to dismiss the action, asserting parliamentary privilege.

The court granted the Senate's motion, finding that the Senate's decisions regarding member discipline, internal affairs, proceedings, and freedom of speech were protected by parliamentary privilege and thus immune from judicial review.

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.

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.