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Even as COVID-19 continued to affect Canada and Canadians in 2021, there were a number of key appellate decisions from the Supreme Court of Canada (SCC) and provincial appellate courts across the country.
In this article, members of our Appellate Law group provide insight into SCC cases from 2021, sharing their knowledge on the far-reaching impacts these decisions could have.
Ward v. Québec is an important part of the ongoing discussion surrounding the limits to freedom of expression under s. 3 of the Québec Charter and s. 2(b) of the Canadian Charter of Rights and Freedoms. Notably, this decision reinforces the concept that offensive or repugnant expression that results in harm is not enough to justify limitations on an individual’s freedom of expression.
This case serves as a reminder of the significance underlying a party’s choice of remedy at the outset of a claim. The SCC explicitly noted that although this claim did not meet the test for discrimination, it may have been better framed as a claim for defamation or protection against harassment provided for in s. 10.1 of the Québec Charter.
BLG (Christopher Bredt and Laura Wagner) acted on behalf of the intervener, the Canadian Civil Liberties Association.
In York University v. Access Copyright, the SCC clarifies that licenses or contracts cannot be imposed on an unwilling party, and that authors, collective societies, and end users all have an active role in negotiating terms. Collective societies that represent copyright holders in Canada must understand that they are not monopolies over the content they possess.
Furthermore, in obiter the SCC mentions that fair dealing will consider both the author’s ownership rights and that of the users and the public interest in disseminating the content as well. In the realm of Canadian copyright law, this decision suggests the issue is not always a property/ownership one, but rather one of fairness.
BLG (Guy Pratte and Nadia Effendi) acted as co-counsel to York University.
In Wastech Services Ltd. v. Greater Vancouver Sewage and Drainage District, the SCC’s expansion of the duty of good faith provides some protection against the risk discretionary clauses carry.
Parties are no longer able to exercise their discretion arbitrarily and instead, must now judge their decisions against the standard of reasonableness.
Following Bhasin, C.M, and Wastech, the parties’ intention is paramount and central to the court’s analysis. Accordingly, when negotiating a clause that provides for discretionary decision-making, parties should clearly demonstrate the reasons behind the clause in the contract.
In Sherman Estates v. Donovan, the SCC restates the Sierra Club test while affirming the high threshold that must be met in order to justify placing discretionary limits on the open court principle, such as where there is a serious risk to an important public interest. While privacy may be classified as an important public interest, it is sufficient to warrant a sealing order only where the information goes to the biographic core or core dignity of the person.
The probability and gravity of the potential harm are central to the analysis. But, even if a serious risk exists, the courts must consider whether reasonable alternatives would suffice to prevent the risk. Courts must also consider whether the benefits of the order outweigh its harmful effects.
BLG (Teagan Markin) acted on behalf of the intervener, the Income Security Advocacy Centre.
In Toronto (City) v. AG, the SCC clarifies the distinctions between positive vs. negative s. 2(b) Charter claims. Where a s. 2(b) claim is characterized as a positive claim, it may be an uphill battle for the rights holder. The core question in positive rights claims is whether the government has substantially interfered with or had the purposes of doing so by denying access to a statutory platform or otherwise failing to act.
The SCC also confirms the role of constitutional principles as incapable of being standalone grounds to invalidate impugned legislation. Rather, unwritten constitutional principles can be used to fill gaps or ambiguity in the text of the Constitution.
BLG (Christopher Bredt and Pierre Gemson) acted on behalf of the intervener Centre for Free Expression at Ryerson University.
In Canadian Broadcasting Corp. v. Manitoba, the SCC’s decision strengthens the constitutionally-protected open court principle by allowing affected persons to ask the issuing court to reconsider the continued need for a publication ban or sealing order without going through the difficult and often cost-prohibitive appeal at a higher level court.
BLG (Nadia Effendi) acted as agent for the intervener, Ontario AG.
In Prelco v. Createch, the SCC found that a limitation of liability clause was operative despite the effect of the clause on the performance of a fundamental obligation of the underlying agreement. The SCC concluded that public order was insufficient on its own and also said that in the limited circumstances of the case, the limitation on liability clause did not deprive “the obligation of its cause,” as there remained a sanction for non-performance of the fundamental obligation.
BLG (Guy J. Pratte, Stéphane Richer, Julien Boudreault and Nadia Effendi) acted for 6362222 Canada Inc. "Createch".
In Grant Thornton LLP v. New Brunswick, the SCC unanimously concluded that a claim is discovered when a plaintiff has knowledge, actual or constructive, of material facts that support a plausible inference of the defendant’s liability.
Constructive knowledge may be established when the plaintiff “ought to have discovered” material facts “by exercising reasonable diligence” and a plausible inference is one which gives rise to a “permissible fact inference” of liability.
BLG (Guy J. Pratte, Nadia Effendi and Julien Boudreault) acted for the intervener Chartered Professional Accountants of Canada.
The SCC’s decision regarding the Greenhouse Gas Pollution Pricing Act represents a major victory for the Government of Canada, upholding its flagship climate policy and affirming its constitutional authority to establish minimum national standards of carbon pricing. This decision provides much-needed clarity and finality with respect to federal and provincial jurisdiction over climate policy.
The SCC’s reasoning, particularly with respect to its application of peace, order and good government of Canada may have implications for future energy-related division of powers disputes, including the ongoing constitutional challenge to the federal Impact Assessment Act currently before the Alberta Court of Appeal.
BLG (Guy Pratte) acted as co-counsel to the Attorney General of Canada before the Supreme Court of Canada.
Click below to access in-depth summaries of the highlighted decisions.
The authors gratefully acknowledge the assistance of BLG students Erica McLachlan, Mark Muccilli and Geri Angelova in writing this article.
