SCC 2019

The appellant franchisor operated a network of cleaning franchises in the Quebec region through a tripartite business model: the franchisor negotiated master cleaning contracts with clients, assigned those contracts (imperfectly) to franchisees who performed the actual cleaning, while remaining directly liable to clients for non-performance.

A parity committee claimed unpaid wages on behalf of a franchisee under the Act respecting collective agreement decrees.

The majority held that the trial judge committed a palpable and overriding error by failing to consider the tripartite nature of the business model, and that the franchisee was an "employee" and the franchisor a "professional employer" within the meaning of the Act.

The dissent would have restored the trial judge's decision, finding no reviewable error and that the imperfect assignment did not materially affect the franchisee's assumption of business risk, and that the franchisor did not exercise sufficient control to qualify as a professional employer.

The appellant was acquitted of sexual assault at trial after the trial judge accepted a child witness's testimony as truthful and reliable, but found the absence of subjective consent was not the only reasonable inference.

The Alberta Court of Appeal allowed the Crown's appeal and substituted a conviction.

On further appeal to the Supreme Court of Canada, the Court dismissed the appeal, finding errors of law apparent on the face of the trial judge's reasons.

The trial judge misapplied the law of circumstantial evidence and the law of consent: the complainant, who was asleep and drugged while being dragged from her bedroom, was statutorily incapable of consenting, and no alternative inference was posited or reasonably available.

The conviction was upheld and the case remitted for sentencing.

The appellant and a co-accused were convicted of second degree murder in a stabbing death of a victim who owed a drug debt.

The trial judge expressly refrained from finding that the appellant personally stabbed the victim, and the subjective mens rea for murder under s. 229(a)(ii) of the Criminal Code was not clearly analyzed.

The Court of Appeal majority erred by making a finding of fact that the trial judge declined to make and by accepting the trial judge's statement of intent as sufficient to support the murder conviction.

The Supreme Court of Canada dismissed the appeal but substituted a verdict of manslaughter, remitting the matter to the trial judge for sentencing.

The appellant was convicted of first degree murder following a trial in which the key witness refused to testify.

The trial judge admitted the witness's prior statements as hearsay under the principled approach, finding that threshold reliability had been established.

The Court of Appeal dismissed the appeal.

Applying R. v. Bradshaw, 2017 SCC 35, a majority of the panel dismissed the appeal largely for the reasons of Dickson J.A., while Karakatsanis and Brown JJ. would have allowed the appeal substantially for the reasons of Bennett J.A. The appeal was dismissed and the first degree murder conviction upheld.

The Crown appealed a Court of Appeal decision setting aside convictions for sexual assault and ordering a new trial.

The Court of Appeal majority had held that the trial judge erred by failing to engage in the second step of the admissibility inquiry and by giving inadequate jury instructions regarding post-offence conduct (the accused's failure to attend for his original trial date).

The Supreme Court held unanimously that failure to attend trial is not presumptively post-offence conduct and its admissibility must be assessed on a case-by-case basis.

A majority allowed the appeal substantially for the reasons of Huscroft J.A. (dissenting in the Court of Appeal), restoring the convictions.

The Crown brought a motion to quash the respondent's notice of appeal as of right to the Supreme Court of Canada.

The Court of Appeal had been unanimous in dismissing the accused's appeal from his convictions, and the accused had filed a notice of appeal as of right based on an alleged disagreement between appellate judges on a point of law.

The Court held that a dissent giving rise to an appeal as of right under s. 691(1)(a) of the Criminal Code must be a disagreement that affects the result.

Because the disagreement expressed by one judge went only to reasoning and did not affect the result, it was properly characterized as a concurring opinion rather than a dissent.

Motion to quash granted.

The appellant was charged with child luring after sending sexually explicit online communications to an undercover police officer posing as a 14-year-old girl.

The police used screen capture software to record the communications without prior judicial authorization.

The Supreme Court unanimously dismissed the appeal, though for different reasons: the majority (Brown J., Abella and Gascon JJ. concurring) held that the appellant had no objectively reasonable expectation of privacy because he communicated with someone he believed to be a child who was a stranger; Karakatsanis J. (Wagner C.J. concurring) held there was no search or seizure because the police simply received messages directed to them; Moldaver J. concurred in the result; and Martin J. dissented in part, finding a s. 8 breach but agreeing that exclusion of the evidence under s. 24(2) was not warranted.

The accused was charged with second degree murder in the death of his wife.

The trial judge granted a stay of proceedings for unreasonable delay.

The Crown appealed but the Court of Appeal declined to adjudicate on the merits, dismissing the appeal as moot on the basis that the accused had been deported to a country with which Canada has no extradition treaty.

The Supreme Court held that the Court of Appeal erred at the first stage of the mootness test: deportation of an accused, even to a non-extradition treaty country, does not render criminal proceedings moot where the underlying basis for those proceedings has not disappeared and a live controversy remains.

The appeal was allowed and the matter remitted to the Court of Appeal for decision on the merits.

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.

A class action was brought against a telecommunications provider on behalf of approximately two million Ontario residents who alleged they were overcharged through an undisclosed call-rounding practice.

The class consisted of both consumers (protected from arbitration by the Consumer Protection Act, 2002) and non-consumer business customers bound by a mandatory arbitration clause in standard form contracts.

The majority held that s. 7(5) of the Arbitration Act, 1991 does not grant the court discretion to refuse to stay claims that are dealt with in an arbitration agreement, and that the first precondition under s. 7(5)(a) was not met because the sole matter in dispute — alleged overbilling — was dealt with in the arbitration agreements.

The business customer claims were therefore stayed, as only the consumers benefited from the Consumer Protection Act's override of the arbitration clause.

Four judges dissented, holding that s. 7(5) confers a discretion to allow the entire proceeding including arbitrable claims to continue in court where it would be unreasonable to separate them.

The appellant was detained in pre-trial custody on firearm offences and sought a review under s. 525 of the Criminal Code.

The reviewing judge applied a two-step test requiring the accused to first establish either unreasonable prosecutorial delay or a material impact of time on the initial basis for detention before the court could assess whether continued detention was justified under s. 515(10).

The Supreme Court allowed the moot appeal to resolve a systemic national divergence, holding that unreasonable delay is not a threshold condition for a s. 525 detention review — the sole overarching question is whether continued detention is justified under s. 515(10).

The Court also clarified the procedural obligations of the jailer to apply forthwith, the judge to schedule the hearing at the earliest opportunity, and the discretion under ss. 525(9) and 526 to give directions expediting the trial.

The Crown appealed a Nova Scotia Court of Appeal decision that set aside convictions for first degree murder and conspiracy to commit murder and ordered a new trial.

The Supreme Court agreed that the trial judge's instructions on party liability for first degree murder were in error, such that the first degree murder conviction could not stand.

However, the Court held that the trial judge was not required to charge the jury on manslaughter, as the evidence did not meet the air of reality test.

The Court further held that the trial judge did not err in the evidence left for the jury under the third prong of the Carter test for admissibility of co-conspirator hearsay.

Accordingly, the appeal was allowed in part: the conspiracy conviction was restored and a conviction for second degree murder was substituted.

A police officer was acquitted by jury of sexual assault.

The Court of Appeal set aside the acquittal and ordered a new trial, finding the trial judge erred by refusing to instruct the jury on s. 273.1(2)(c) of the Criminal Code, which provides that no consent is obtained where an accused, by abusing a position of trust, power, or authority, induces a complainant to engage in sexual activity.

The Supreme Court dismissed the appeal, holding that an instruction under s. 273.1(2)(c) was warranted on the facts, as it was open to the jury to conclude the accused used his position of trust and the complainant's intoxicated and vulnerable state to secure her apparent consent to sexual activity.

The appellant challenged the constitutionality of three subsections of the child luring provision in a police sting operation context: the age presumption under s. 172.1(3), the reasonable steps requirement under s. 172.1(4), and the one-year mandatory minimum sentence under s. 172.1(2)(a).

The majority held that s. 172.1(3) infringes s. 11(d) of the Charter and cannot be saved under s. 1, but that s. 172.1(4) does not infringe s. 7 because it only limits a defence rather than providing an independent pathway to conviction.

Because the trial judge convicted on a legally unsound basis — failure to take reasonable steps — without finding proof beyond a reasonable doubt of actual belief, the conviction was set aside and a new trial ordered.

The constitutionality of the mandatory minimum was left to the new trial judge.

Karakatsanis J. concurred but would have also declared the mandatory minimum unconstitutional.

Abella J. dissented in part, finding s. 172.1(4) also unconstitutional and that an acquittal should be entered.

A lawyer referred his clients to a financial advisor who was his personal friend, and over a period of four years repeatedly endorsed and encouraged the clients to invest with the advisor's firm.

The investments turned out to be part of a Ponzi scheme and the clients lost over $5 million.

The trial judge dismissed the professional liability claim, finding no causal link between the lawyer's faults and the clients' losses.

The Quebec Court of Appeal reversed, finding the trial judge had assessed the evidence through a distorting lens leading to palpable and overriding errors.

The Supreme Court dismissed the appeal, holding that the Court of Appeal correctly identified palpable and overriding errors and that the lawyer's breaches of his duty to advise and duty of loyalty were a true cause of the clients' losses; the intervening fraud did not break the chain of causation.

The appellant, a Quebec resident sued personally in Utah alongside two companies he allegedly controlled, brought a motion to dismiss challenging jurisdiction, alter ego liability, and the economic loss rule.

A default judgment was ultimately entered against all defendants.

The respondent sought recognition and enforcement of that judgment in Quebec.

The majority held that the appellant submitted to the Utah court's jurisdiction under art. 3168(6) of the Civil Code of Québec by presenting substantive arguments that, if accepted, would have resolved part of the dispute on its merits, thereby establishing sufficient substantial connection under art. 3164 C.C.Q. The appeal was dismissed, with Côté J. dissenting on the grounds that submission to jurisdiction was not established and no substantial connection existed between the dispute and Utah.

The appellant was convicted by jury of intentionally discharging a firearm while reckless as to the life or safety of another person and occupying a motor vehicle knowing there was a firearm present.

He did not testify at trial.

On appeal to the SCC, the appellant argued unreasonable verdict based on circumstantial evidence.

The Court held that the strong circumstantial case permitted the Court of Appeal to consider the appellant's silence when assessing his unreasonable verdict argument, and affirmed that the trial judge's clear jury instructions against using silence as a makeweight for the Crown preserved the accused's right to silence.

Appeal dismissed and convictions upheld.

The appellant appealed convictions for sexual assault with a weapon and unlawful confinement, arguing the verdict was unreasonable.

The Court of Appeal for Alberta had dismissed the appeal, deferring to the trial judge's credibility assessment.

The Supreme Court of Canada dismissed the appeal substantially for the reasons of the majority of the Court of Appeal, finding the verdict was not unreasonable and the convictions were properly upheld.

The appellant Crown appealed the acquittal of a high school teacher charged with voyeurism under s. 162(1)(c) of the Criminal Code after he used a concealed pen-camera to surreptitiously record female students engaged in ordinary school activities in common areas of the school.

The majority of the Court of Appeal had upheld the acquittal on the basis that the students were not in circumstances giving rise to a reasonable expectation of privacy.

The Supreme Court unanimously allowed the appeal and entered a conviction, holding that circumstances giving rise to a reasonable expectation of privacy under s. 162(1) are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred, taking into account the entire context.

The majority (Wagner C.J.) adopted a multi-factor contextual test informed by s. 8 Charter jurisprudence, while a concurring minority (Rowe J.) proposed a conjunctive test requiring both loss of control over one's image and infringement of sexual integrity.

The appellant was charged with refusing to comply with a demand to provide a breath sample.

At trial, the Crown conceded the availability of the defence of extreme intoxication akin to automatism, and the accused was acquitted.

The Court of Appeal for Quebec set aside the acquittal and entered a conviction, doing so by raising and deciding the availability of the defence despite the Crown's concession.

The Supreme Court held that the Court of Appeal erred in raising and deciding the availability of the defence in view of the Crown's concession.

Given the unusual circumstances, it was not in the interests of justice to overturn the acquittal, and the Court expressly refrained from deciding the availability of the defence on the merits in the absence of an adequate record on the constitutional issues.