Sheilah L. Martin

A provincial Crown corporation (BCI) created to provide investment management services to public sector pension plans held pooled investment portfolio assets in trust.

The federal Crown argued that BCI was required to collect and remit GST on costs recovered from those portfolios under the Excise Tax Act.

The majority held that s. 125 of the Constitution Act, 1867 renders the relevant ETA provisions constitutionally inapplicable because BCI, as a provincial Crown agent, holds legal title to the portfolio assets and imposing GST would tax Crown property.

On the cross-appeal, the Court unanimously held that the Reciprocal Taxation Agreement and the Comprehensive Integrated Tax Coordination Agreement are legally binding intergovernmental agreements and that BCI is subject to them by virtue of s. 16(6) of the Public Sector Pension Plans Act.

Both the appeal and cross-appeal were dismissed.

Wagner C.J. dissented in part, finding that s. 125 immunity should not extend where private pension boards are the beneficial owners and the real impact of the tax falls on them.

The appellants, as liquidators of a deceased spouse's estate, sought a declaration that the value of the family residence — held under a discretionary trust controlled by the surviving spouse — should be included in the partition of the family patrimony under art. 415 of the Civil Code of Québec.

The majority held that family residences held in trust are not in principle outside the scope of the family patrimony and that the 'rights which confer use' at art. 415 C.C.Q. are not limited to real rights.

Wide discretion should be accorded to the trier of fact in determining whether such rights exist, and the absence of an intention to evade family patrimony rules is irrelevant.

The trial judge's finding that the surviving spouse held rights which conferred use was supported by the evidence and disclosed no palpable and overriding error.

The dissent would have dismissed the appeal, finding that the trial judge erred by conflating the trustee's powers with rights and failing to consider the purpose of the trust and the beneficiaries' rights.

Appeal allowed (Côté and Karakatsanis JJ. dissenting).

Three cross-appeals arose from the interpretation of a 1985 environmental indemnity granted by the Province of Ontario to former pulp mill owners, their successors and assigns, in the context of the settlement of mercury contamination litigation brought by two First Nations.

The majority held that the indemnity did not cover first party regulatory compliance orders, as the motion judge made palpable and overriding factual errors, and the indemnity, properly read as a whole, was intended to cover only third party pollution claims.

The appeal of the Province was allowed; the appeals of the corporate successors were dismissed.

The dissent (Côté, Brown and Rowe JJ.) would have dismissed the Province's appeal and allowed the appeal of Resolute, concluding the indemnity covered the Director's remediation order, that the fettering doctrine did not render the indemnity unenforceable, and that Resolute — as Great Lakes' corporate successor — was entitled to the indemnity's protection, but Weyerhaeuser was not, as neither an assignee nor a corporate successor of Great Lakes or Reed.

The appellant, a subway user, was arrested and searched by a police officer after she refused to hold an escalator handrail and declined to identify herself.

The officer, designated as a subway inspector by the transit authority, had been trained that failure to hold the handrail was an offence under a municipal by-law.

The Supreme Court held that the officer committed a civil fault under art. 1457 C.C.Q. because a reasonable police officer would have recognized that the pictogram was merely a safety advisory, not an obligation under the by-law.

The transit authority was found directly liable for providing legally incorrect training and also liable as mandator for the officer's fault.

The victim bore no share of the liability, as she was entitled to refuse to comply with an unlawful order.

Damages of $20,000 were awarded, apportioned equally between the transit authority and the officer.

The appellants, a Canadian shipping conglomerate, purchased reconditioned marine engine parts from the respondent supplier, whose contract contained a six-month warranty and a clause limiting liability to €50,000.

Well after the warranty expired, the ship's main engine suffered a major failure caused by a latent defect in the supplied crankshaft, and the appellants commenced proceedings for $5,661,830.33 in damages and lost profit.

The trial judge held that the Civil Code of Québec governed the dispute and that the limitation clause was unenforceable, but the Court of Appeal majority reversed, finding Canadian maritime law applicable and the clause valid.

A unanimous Supreme Court of Canada allowed the appeal, restoring the trial judge's conclusions, although the six-judge majority and the three-judge concurrence differed as to the constitutional analysis: the majority applied a modified pith and substance test followed by the integral connection test and concluded that while the sale of marine engine parts falls within both federal legislative authority and provincial property and civil rights power (a double aspect scenario), neither interjurisdictional immunity nor federal paramountcy displaces art. 1733 C.C.Q., which prevails over non-statutory Canadian maritime law; the concurrence would have resolved the matter solely through pith and substance, characterizing the dispute as one of sale of goods governed by s. 92(13).

The municipality appealed a judgment ordering restitution of $82,898.63 for event production services provided by a public relations firm through its subcontractor, where no valid municipal contract existed because the mandate was never authorized by council resolution or by an officer with delegated powers.

The Supreme Court held that the rules on restitution of prestations under the Civil Code of Québec apply in the municipal context and are not excluded by the public order provisions of the Cities and Towns Act.

Although no contract existed to be annulled, the conditions for receipt of a payment not due under art. 1491 C.C.Q. were satisfied, as the firm provided services in error believing it had a valid mandate.

The municipality's appeal was dismissed (6-3), with the dissent finding the firm knew at the time of payment that no contract existed and therefore did not pay in error.

A young person charged under the Youth Criminal Justice Act appealed his convictions for aggravated assault and possession of a weapon for a dangerous purpose, arguing that the 18-month presumptive ceiling established in Jordan should be lowered for youth justice court proceedings and that the delay of nearly 19 months in his case was unreasonable.

The majority held that the existing Jordan framework applies to youth proceedings without modification to the presumptive ceilings, but that the enhanced need for timeliness in youth matters must be considered within the below-ceiling test when assessing whether delay was markedly longer than it reasonably should have been.

After deducting two to three months of defence delay and approximately one month of delay from a discrete exceptional administrative event, the net delay fell below the 18-month ceiling and did not meet the test for a stay below the ceiling in this transitional case.

Four justices dissented, with three finding a separate 15-month ceiling should apply and one finding the full delay breached the 18-month ceiling without any deductions.

The appellants sought leave to appeal a Quebec Court of Appeal decision that denied leave to appeal a Superior Court authorization of a class action against automobile manufacturers for punitive damages arising from non-compliance with environmental standards.

The Superior Court had authorized the class action with respect to punitive damages only, declining to authorize the compensatory damages claim.

A majority of the Supreme Court found the Court of Appeal judge did not err in exercising her discretion to deny leave.

The minority would have granted leave on the basis that a question of law warranting appellate review had been raised, and would have remanded the matter to the Court of Appeal for a decision on the merits.

The Crown appealed an acquittal on drug and firearm charges following a trial judge's finding that police violated the accused's s. 8 Charter right by obtaining a search warrant based on insufficient information, and the subsequent exclusion of evidence.

A majority of the Court of Appeal dismissed the Crown appeal, affirming the acquittals.

The Supreme Court of Canada, by majority, allowed the appeal and ordered a new trial, adopting the dissenting reasons of the Court of Appeal judge who found there was no breach of s. 8 of the Canadian Charter of Rights and Freedoms.

The appellant, convicted of drug trafficking offences, had previously obtained a judicial order returning seized funds to pay for reasonable legal expenses under s. 462.34(4)(c)(ii) of the Criminal Code, having demonstrated no other assets or means.

At sentencing, the Crown sought a fine instead of forfeiture under s. 462.37(3) equal to the returned amount.

The majority held that, as a general rule, sentencing judges should not impose a fine instead of forfeiture on funds judicially returned for the payment of reasonable legal expenses, as doing so would undermine Parliament's secondary purposes of providing access to counsel and giving meaningful weight to the presumption of innocence.

The discretion to impose a fine may be exercised only where the offender lacked a real financial need or did not use the funds to alleviate that need.

The dissent would have imposed the fine in lieu unless the offender could demonstrate a constitutional entitlement to state-funded counsel under the Rowbotham test.

The appellant bank appealed from the Quebec Court of Appeal's decision (2018 QCCA 810).

The Supreme Court of Canada heard the appeal on November 7, 2019, and delivered oral judgment on the same day dismissing the appeal with costs.

Written reasons were to follow.

A majority of the Court found against the appellant.

The appellant, acting as tutor to an absentee and liquidator of his succession, sought to retain pension payments received on behalf of the absentee during the period he was presumed alive under art. 85 of the Civil Code of Québec.

The absentee's remains were discovered nearly six years after his disappearance, and his true date of death was established as the day after he disappeared.

The majority held that the rebuttal of the presumption of life operates retroactively, extinguishing the absentee's entitlement to pension payments from his true date of death, and that the respondent's claim for receipt of a payment not due under art. 1491 C.C.Q. succeeded when assessed retrospectively.

The dissent would have allowed the appeal, finding that the rebuttal of the presumption of life operates only prospectively and that the traditional requirements of art. 1491 C.C.Q. were not satisfied.

The appellant wife and the respondent husband filed parallel divorce proceedings — the husband first in Belgium, the wife three days later in Quebec.

The husband applied to stay the Quebec proceedings on the basis of international lis pendens under art. 3137 C.C.Q., seeking to enforce his revocation of over $33 million in gifts made during marriage under art. 1096 of the Belgian Civil Code.

The Supreme Court held that the burden of proving susceptibility of recognition of the foreign judgment rests on the party seeking the stay, though that burden is not onerous; a prognosis or possibility of recognition suffices.

The majority further held that even where the conditions of art. 3137 C.C.Q. are met, the Quebec court retains discretion to decline to stay its ruling, and that discretion was not unreasonably exercised by the Superior Court.

The Court of Appeal's intervention in the trial judge's exercise of discretion was unwarranted; the criterion of possible recognition of the Quebec judgment in the foreign country is not determinative where the Quebec judgment would be effective in Quebec.

The appellant was charged with possession of methamphetamine and cocaine for the purpose of trafficking.

The trial judge acquitted the accused on the trafficking charges but convicted him of the lesser included offence of simple possession.

The Saskatchewan Court of Appeal found that the trial judge had applied the wrong legal test with respect to possession for the purpose of trafficking and entered convictions on the trafficking charges.

The Supreme Court of Canada dismissed the appeal substantially for the reasons of the Court of Appeal, upholding the trafficking convictions.

The Crown appealed a conditional sentence imposed on an offender convicted of historical sexual offences (gross indecency) committed between 1979 and 1987.

The conditional sentence had not existed at the time the offences were committed, was available for a discrete intermediate period, but was no longer available under the sentencing provisions in force at the time of sentencing in 2017.

The majority held that s. 11(i) of the Charter confers a binary right — entitling an offender only to the lesser of the punishments applicable at the time of the offence and at the time of sentencing — and not a global right to the least onerous punishment available at any point in the intervening interval.

The dissent would have dismissed the appeal as moot following the respondent's death and would have upheld 30 years of consistent judicial interpretation giving s. 11(i) a global reading.

The appeal was allowed, though no new sentence was imposed given the respondent's death.

The Crown appealed a majority decision of the Court of Appeal for British Columbia that ordered a new trial for an accused convicted of sexual assault and sexual interference.

The Court of Appeal majority found the trial judge erred in the jury charge regarding the indictment, in responding to the jury's question during deliberations, and in failing to provide further credibility instructions.

The Supreme Court of Canada allowed the appeal substantially for the reasons of the dissenting judge, finding the trial judge's charge and response to the jury's question were adequate.

Three additional issues raised by the respondent for the first time at the Supreme Court — character evidence limiting instruction, prior consistent statements, and interpretation of 'single transaction' under s. 581(1) of the Criminal Code — were addressed but did not require a new trial.

Convictions for sexual assault restored and judicial stay on sexual interference count maintained.

The appellant was arrested by Ontario Provincial Police officers while walking to a counter-protest flag rally, having committed no offence and presenting no threat of violence.

The police relied on a purported common law power to arrest someone acting lawfully in order to prevent an apprehended breach of the peace by others.

Applying the ancillary powers doctrine, the Court held that no such common law power exists: the power is not reasonably necessary because statutory arrest powers already address situations where individuals resist or obstruct officers taking less intrusive measures, and effectiveness of a police action alone cannot justify an arrest if less intrusive means were available.

The Court restored the trial judge's award of damages for battery, wrongful arrest and false imprisonment, and found no new trial was warranted on the issue of excessive force because the arrest itself was unlawful.

A journalist was subpoenaed to testify in support of an accused's motion for a stay of proceedings on the ground of abuse of process, seeking to identify government sources responsible for leaking confidential information.

The Court considered the new federal statutory scheme for the protection of journalistic sources in s. 39.1 of the Canada Evidence Act, enacted by the Journalistic Sources Protection Act, S.C. 2017, c. 22.

The majority held that the new scheme shifts the burden of proof to the party seeking disclosure, establishes reasonable necessity as a threshold requirement, and requires a balancing of the public interest in the administration of justice against the public interest in preserving the confidentiality of journalistic sources.

The appeal against the Quebec Court of Appeal's finding that it lacked jurisdiction was dismissed.

The appeal against the Superior Court's authorization of disclosure was allowed in part due to the Crown's change of position, with the case remanded to the court of original jurisdiction for reconsideration once new evidence from a government investigation is disclosed.

The dissent would have set aside the disclosure authorization outright, finding fundamental legal errors in the Superior Court's application of the new statutory scheme.

A land surveying company brought a class action on behalf of Ontario land surveyors whose plans of survey had been digitized, stored, and copied by the province's electronic land registry service provider without payment of royalties.

The appellant argued that Crown copyright under s. 12 of the Copyright Act did not vest in the registered and deposited plans.

The majority held that the comprehensive provincial land registration regime gave the Crown complete control over the publication process, satisfying the requirements of s. 12.

A concurring minority agreed on the outcome but adopted a different interpretive framework, requiring both that the work be published 'by or under the direction or control' of the Crown and that the work qualify as a 'government work' serving a public purpose.

The appeal was dismissed without costs.