The doctrine of proprietary estoppel can enforce a promise to transfer real property to a person who acts to his or her detriment based on the promise. In Cowper‑Smith v. Morgan, 2017 SCC 61, the court confirmed that proprietary estoppel can enforce a promise to transfer a property interest that the promisor does not have at the time of the promise. The decision raises other questions—such as whether proprietary estoppel can enforce a promise to transfer personal property—but leaves them unanswered. Continue Reading
For nearly thirty years, the Commissioner of Competition has been able to assert ‘public interest’ privilege – on a class basis – to prevent the disclosure of documents obtained from informants in the course of its investigations. Not anymore.
Access by litigants to the Commissioner’s investigation file is an important and developing issue. In Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24, Justice Stratas, writing for a unanimous panel with Justices Boivin and Laskin, held that the Commissioner can no longer invoke ‘public interest’ privilege on a class-wide basis to prevent access. While the Commissioner can still invoke public interest privilege, it can now only do so document-by-document.
In the underlying litigation, the Commissioner brought an abuse of dominance application against the Vancouver Airport Authority. The Commissioner alleged that the Airport Authority had acted anti-competitively by allowing only two in-flight catering businesses to operate at the Vancouver International Airport, resulting in a “substantial prevention or lessening of competition” and, in turn, “higher prices, dampened innovation and lower service quality.”
In the course of the application, the Commissioner delivered an affidavit of documents containing thousands of documents, the majority of which were claimed to be protected by a public interest class privilege and were withheld. The Airport Authority disputed the privilege claim and moved in the Competition Tribunal to compel production. By the time the motion was heard, the Commissioner had capitulated on the majority of the documents, and only twelve-hundred documents remained in dispute. The Tribunal dismissed the Airport Authority’s motion, upholding the Commissioner’s class privilege claim. The Airport Authority appealed.
The Federal Court of Appeal allowed the appeal, issuing fulsome reasons on a number of notable issues, many of which apply broadly to both administrative and court proceedings.
Chief among these, Justice Stratas eliminated the longstanding public interest class privilege that the Commissioner frequently invoked to refuse disclosure. As a class privilege, these documents were protected from disclosure by virtue of their membership in the class – documents containing information obtained from informants – “without regard to the particulars” of the documents and “insensitive to the facts of the particular case”.
Justice Stratas’ reasons for eliminating the public interest class privilege were twofold. First, he held that the earlier Federal Court of Appeal authorities cited by the Commissioner as recognizing the class privilege – D&B Companies of Canada Ltd. v. Canada (Director of Investigation & Research) and Hillsdown Holdings (Canada) Ltd. v. Canada (Director of Investigation and Research) – were, in reality, cases where a deferential standard of review was applied to the Tribunal’s application of the class privilege. As a result, no Federal Court of Appeal authority had ever held that the public interest class privilege was good law.
Second, Justice Stratas rejected the public interest class privilege on its merits. Relying on Supreme Court authority, Justice Stratas held that the threshold for finding new class privileges is “extremely high” – “as high as can be”. It could only be recognized where supported by policy rationales as compelling as those underlying solicitor-client privilege, a class privilege enshrined in the Charter.
In conclusion, Justice Stratas held that “it is perhaps not far from the truth to say that it is now practically impossible for a court, acting on its own, to recognize a new class privilege” – legislation would be required.
But, legislation had not created the public interest class privilege. Instead, the Commissioner argued that the common law test to recognize a class privilege was met: “anything less than blanket confidentiality” would “fail to provide the necessary assurance[s]” to informants to come forward and alert the Commissioner to anti-competitive behaviour. Without confidentiality and fearing reprisal, informants may be reluctant to complain to the Commissioner and offer candid evidence in support of their complaints.
This argument was rejected. The Commissioner:
- filed no evidence in support and the Supreme Court had previously casted doubt over similar arguments. As a policy rationale, this argument did not rise to the level of those underlying solicitor-client privilege;
- has the power to coerce informant cooperation under the Competition Act;
- can waive its privilege at any time, erasing any confidentiality benefits to informants; and
- could not point to any analogous bodies, in Canada or abroad, who found it necessary to assert any similar class privilege.
Last, the Commissioner argued that, in practice, its public interest class privilege did not create any procedural unfairness. Justice Stratas rejected this argument too. The Commissioner’s argument begged the question whether there was a sufficient, proven reason for the class privilege to exist in the first place.
In the end, Justice Stratas held it would be open to the Commissioner to claim privilege on a document-by-document basis.
The Commissioner has announced that it will not seek leave to appeal to the Supreme Court of Canada.
Date of Decision: January 24, 2018
 The Commissioner of Competition v. Vancouver Airport Authority, 2017 CACT 6 at para. 1.
 See, e.g., Canada (Attorney General) v. Thouin, 2017 SCC 46 at paras. 16-17 (Crown immunity precludes the Commissioner being ordered to submit to third party discovery in civil proceedings) and Imperial Oil v. Jacques, 2014 SCC 66 (our commentary, here and here).
 Importantly, prior to commencing litigation, the Commissioner is precluded from disclosing any information obtained from informants: Competition Act, R.S.C. 1985, c. C-34, s. 29.
 The Commissioner can still invoke other recognized class privileges available to all litigants, including solicitor-client privilege, settlement privilege, and litigation privilege.
 At para. 8.
 At para. 45, citing R. v. National Post, 2010 SCC 16 at para. 42 (“National Post”).
 D&B Companies of Canada Ltd. v. Canada (Director of Investigation & Research) (1994), 58 C.P.R. (3d) 353 (Fed. C.A.) and Hillsdown Holdings (Canada) Ltd. v. Canada (Director of Investigation and Research),  F.C.J. No. 1021 (C.A.).
 At paras. 71-74. To the extent these authorities did recognize the class privilege, Justice Stratas held that they were overruled by Supreme Court authority: at para. 75.
 At paras. 53, 56-57, citing Canadian Charter of Rights and Freedoms, s. 8, National Post, R. v. Gruenke,  3 S.C.R. 263, Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, and others.
 At paras. 56-57, 62.
 At paras. 78-81.
 At para. 46, citing National Post at para. 42; Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at paras. 39-40.
 At para. 44.
 At paras. 82-93, citing Carey v. Ontario,  2 S.C.R. 637 at 657, 659.
 At para. 94-97.
 At paras. 100-02, citing Competition Act, s. 11.
 At para. 103, unlike informer class privilege which belongs jointly to the Crown and to the informer and cannot be waived without the informer’s consent: R. v. Leipert,  1 S.C.R. 281 at para. 15.
 At paras. 106-09.
 At paras. 110-14.
 At para. 47.
 News Release: Competition Bureau will not appeal court decision regarding public interest privilege (January 29, 2018).
In Delta Air Lines Inc. v. Lukács, 2018 SCC 2 (“Lukács”), the Supreme Court of Canada addressed two important issues in administrative law. First, the Court addressed the role that a Tribunal’s reasons play in judicial review for substantive error. Second, the Court addressed principles relating to public interest standing, including standing before regulatory tribunals.
Dr. Lukács was a self-described airline passenger advocate. Although not an obese person himself, he took issue with a policy of the appellant airline that sometimes resulted in obese passengers being moved to a different section of the airplane or bumped from the flight altogether. Dr. Lukács filed a complaint with the Canadian Transportation Agency (the “Agency”), which regulates airlines in Canada. The Agency dismissed Dr. Lukács’ complaint on the grounds that he did not satisfy the tests for private interest standing or public interest standing that have been developed by and for the civil courts in Canada.
The Federal Court of Appeal allowed the appeal, held that the Agency’s decision was unreasonable, and remitted the matter back to the Agency for redetermination (2016 FCA 220). The Federal Court of Appeal looked at the Agency’s enabling statute, which was designed to let “any person” make a complaint to the Agency. The Federal Court of Appeal held that a person did not need to be directly personally affected by a decision of the Agency in order to bring a complaint. The Federal Court of Appeal held that the Agency had fettered its discretion by adopting the public interest standing test from the civil courts. The airline appealed to the Supreme Court.
Supreme Court of Canada Majority Decision
Chief Justice McLachlin wrote the majority decision dismissing the appeal and holding the Agency’s decision unreasonable. The two key points addressed were the role of reasons in judicial review for substantive error, and the principles governing public interest standing.
First, the majority was emphatic that, in this case, the reviewing court could not substitute its own reasons for the reasons that were given by the tribunal. The majority stated that “[s]upplementing reasons may be appropriate in cases where the reasons are either non-existent or insufficient.” (para 23). The majority explained it like this:
[W]hile a reviewing court may supplement the reasons given in support of an administrative decision, it cannot ignore or replace the reasons actually provided. Additional reasons must supplement and not supplant the analysis of the administrative body. (para 24)
The majority declined to supplement the Agency’s reasons in this case for three reasons. Firstly, the appellant airline had not pointed to any administrative law authority justifying the court applying its own test for public interest standing. Secondly, for a reviewing court to simply replace a tribunal’s reasons would undermine the crucial role that reasons play in administrative law. The majority stressed that it is “important to maintain the requirement that where administrative bodies provide reasons for their decisions, they do so in an intelligible, justified, and transparent way.” (para 27). Thirdly, the majority noted that it would be ironic for it to apply a deferential standard of review while at the same time telling the Agency what its complaint procedure should look like.
Second, the majority discussed the principles and rationale underlying public interest standing. The court reiterated the holding of Downtown Eastside that the courts must take a “flexible, discretionary approach” (para 18). The majority held that:
The whole point is for the court to use its discretion, where appropriate, to allow more plaintiffs through the door. (para 18)
In this case, the Agency had adopted the civil test for public interest standing, but applied the three prongs as absolute technical requirements as opposed to factors to be weighed contextually. In particular, under the Agency’s approach, the second prong of the test—whether the party is affected by the decision or has a genuine interest in the validity of the legislation—could never be satisfied by any public interest complainant, since any challenge of an airline’s terms and conditions is not a challenge to the validity of legislation. Such a strict test was at odds with the Agency’s role to regulate air carriers. The majority relied on the scheme of the Agency’s enabling legislation, especially the Agency’s broad powers to receive and hear complaints.
The majority remitted the matter back to the Agency for reconsideration.
Supreme Court of Canada Dissent
Justice Abella authored the dissent, joined by Moldaver and Karakatsanis JJ. The dissent would have allowed the appeal and restored the Agency’s decision. The dissent wrote that it was Parliament’s intent for the Agency to have authority to interpret and apply its wide-ranging statute dealing with national transportation issues. Like the courts, the Agency was entitled to apply a principled screening or gatekeeping function to balance competing interests. Contrary to the Federal Court of Appeal, the dissent argued that the Agency should be allowed to apply the same standing test as the courts:
This does not mean that tribunals are required to follow the same procedures courts use, but when they do, this should not be a stand-alone basis for quashing them. Unless we are prepared to say that the courts’ standing rules are inappropriate, I see no reason to conclude that their propriety is diminished when applied by a tribunal. (para 61; emphasis in original)
The dissent also noted that Dr. Lukács had failed to present the Agency with evidence regarding (a) the Agency’s actual complaint process; (b) whether any passenger had actually been affected by the airline’s policy; and (c) any reason why passengers actually affected by the airline’s policy would not be able to bring their own complaint.
The Lukács decision is significant because it addresses concerns raised within the administrative law community following the controversial Edmonton East decision from late 2016. We previously summarized and discussed the Edmonton East decision here. In Edmonton East, the tribunal had provided written reasons but had not addressed the jurisdictional issue that was challenged on judicial review. At the Supreme Court, Karakatsanis J. for the majority (notably McLachlin C.J. was in the dissent) effectively wrote a whole new set of reasons for that tribunal, addressing the jurisdictional issue and reinstating the tribunal’s decision.
Now, in Lukács, the majority has held that a reviewing court may supplement a set of reasons where the reasons at first instance are “either non-existent or insufficient”. However, where the tribunal provides detailed reasons that are nonetheless unreasonable, Lukács says that the reviewing court cannot supplement the reasons. This creates an odd scenario in which the more meagre a tribunal’s reasons, the more a reviewing court will step in to “supplement” the reasons—the result of which will likely be a “supplemental” reasonable chain of analysis to buttress the tribunal’s decision. This is opposite the intuitive scenario in which the worse a tribunal’s reasons are, the more likely a court would intervene to overturn the decision.
There may continue to be uncertainty about what a reviewing court should do when it is confronted with a situation where the tribunal provided some reasons at first instance, but did not provide reasons in respect of one or more issues forming the grounds for the judicial review application. One way to read Lukács harmoniously with Edmonton East is to say that where the tribunal failed to address an issue underpinning the judicial review challenge, the tribunal’s reasons fall into the “insufficient” category, allowing the reviewing court to “supplement” the tribunal’s reasons. However it is still far from clear where the line is drawn between “insufficient” and “unreasonable” when reviewing a tribunal’s chain of analysis using its reasons. For example, wouldn’t the failure of the tribunal to consider a key issue be unreasonable?
The decision in Lukács is also significant because it reaffirms that there should be an open door for public interest litigants with genuine complaints. It is not a free pass for any litigant to walk through the door. But the majority’s decision affirms that, before both administrative tribunals and the courts proper, people should be able to bring complaints even if they are not directly or adversely affected. In other words, there needs to be a judicial or quasi-judicial route for concerned persons to remedy injustices. Significantly, the Chief Justice chose to underscore the courts and tribunals as an accessible means to obtain justice in what is likely one of her final authored decisions following a long and accomplished tenure leading Canada’s highest court.
Date of Decision: January 19, 2018
 Recall that in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,  3 SCR 708, the Supreme Court held that, so long as reasons are given that allow a reviewing court to figure out why the tribunal reached its decision, the requirement of procedural fairness is satisfied, and the analysis moves to whether the reasons are within the range of reasonable outcomes.
 The upshot of all the confusion may be, simply, that “deference as respect” has completely failed as a juridical test that can be applied in practice.
For a party wishing to appeal the decision of an Ontario judge or master, determining the appropriate Court to appeal to is occasionally not a straightforward matter. In some previous cases where there has been uncertainty between the parties as to the appropriate appeal route, single judges of appellate courts have been willing to provide direction to the parties on this question following a short chambers appearance.
In Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986 (“Assessment Direct”), Juriansz J.A. held that this practice is improper and a motion to a full three-member panel of the Court of Appeal is required in order to obtain a decision on the Court’s jurisdiction over a given appeal. It appears that parties will no longer be able to rely on the motion for directions shortcut to obtain an answer to the jurisdiction question.
Background: Jurisdictional Uncertainty
Assessment Direct involved the appeal of a Superior Court of Justice decision regarding privilege over documents and audio files seized by the Ontario Provincial Police during the execution of a Criminal Code search warrant. The parties disagreed with respect to whether the proceeding was civil in nature (with an appeal route to the Ontario Court of Appeal per section 6(1)(b) of the Courts of Justice Act) or criminal in nature (with the only appeal route being straight to the Supreme Court of Canada per section 40(1) of the Supreme Court Act).
Decision: Not So Fast
The appellants brought a motion for directions before Juriansz J.A. of the Ontario Court of Appeal sitting in chambers. While Juriansz J.A. recognized that single judges sitting in chambers had decided similar issues in the past, His Honour refused and referred the motion to a full panel of the Court. His Honour held that these motions were effectively requests for a declaration that the Court did (or did not) have jurisdiction over the appeal and an order that the appeal should not (or should) be quashed. His Honour noted that the Court of Appeal Practice Directions governing civil appeals and criminal appeals provides that only three-judge panels may hear motions to quash an appeal, including due to a lack of jurisdiction. Additionally, Rule 61.15(2.2) of the Rules of Civil Procedure provides that an order that “finally determines an appeal” may only be granted by a full panel of three judges or more.
While much of the decision is couched in terms of stopping a practice that the Rules do not permit, the decision of Juriansz J.A. appears to be directed more towards prohibiting a practice that has the potential to cause confusion and re-litigation. The Rules provide Ontario judges with broad discretion to control their own processes and provide direction to the parties where appropriate. The motion as pleaded appears to have been solely for directions, not an order quashing the appeal on jurisdictional grounds, and thus was technically within the bailiwick of a single judge sitting in chambers.
However, practically an order giving directions would only be effective if it was honoured by both parties. Either party would have the ability to appeal the decision to a full panel of the Court of Appeal in any event since it was issued by a single judge. Furthermore, the order giving directions would not have the effect of dismissing the appeal and a further motion to a three-member panel would be required to quash the appeal if the opposing party did not agree to the appeal being discontinued in that forum.
Takeaway: Parties Should Bring Motion to a Full Panel at Early Stage
Following the decision of Juriansz J.A. in Assessment Direct, parties should no longer seek to use the shortcut of a motion for directions to determine the issue of whether an appeal was brought in the appropriate forum. The parties must proceed to a hearing before a full three-member panel. Fortunately, the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario provides that jurisdiction motions will be heard at an early stage of the appeal and the parties are not required to wait until they can proceed with a full appeal on the merits in order to get an answer to the jurisdiction question.
Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986
Date of Decision: December 15, 2017
 Courts of Justice Act, RSO 1990, c C.43, s. 7(5).
 Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 7.2.5.
In order to be admissible to Canada, permanent residents and foreign nationals must avoid “serious criminality” as set out in s. 36(1)(a) of Canada’s Immigration and Refugee Protection Act. That section provides that “serious criminality” is evidenced by being sentenced in Canada to a term of imprisonment of more than six months, or by being convicted of an offence punishable by a maximum term of imprisonment of at least 10 years.
In its October 19, 2017 decision of Tran v. Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada held that:
- a conditional sentence constitutes a “term of imprisonment” under s. 36(1)(a) of the IRPA;
- the phrase “punishable by a maximum term of imprisonment of at least 10 years” in the IRPA refers to the maximum term of imprisonment available at the time the person was sentenced, not at the time that admissibility to Canada is determined.
Mr. Tran is a citizen of Vietnam who acquired permanent resident status in Canada in 1989. In 2011, he was involved in a marijuana grow operation and was charged with production of a controlled substance, contrary to s. 7(1) of the Controlled Drugs and Substances Act. On November 6, 2012, legislation came into effect increasing the maximum sentence applicable to this offence from 10 years of incarceration to 14 years. Three weeks later, on November 29, 2012, Mr. Tran was convicted and given a 12-month conditional sentence to be served in the community.
A CBSA officer prepared a report stating that Mr. Tran was inadmissible to Canada under s. 36(1)(a) of the IRPA. A delegate of the Minister of Public Safety and Emergency Preparedness (“Minister”) referred Mr. Tran’s case to an admissibility hearing before the Immigration Division – this referral was withdrawn due to legislative changes to appeal rights under s. 64(2) of the IRPA.
Mr. Tran argued in writing that he did not fall within the purview of s. 36. A second CBSA officer reviewed those submissions and concluded in another report that Mr. Tran should be referred to an admissibility hearing. This report canvassed conditions in Vietnam, Mr. Tran’s degree of establishment in Canada, and the best interests of his children. The report also considered Mr. Tran’s history of arrests and charges without conviction, ultimately concluding that Mr. Tran seemed not to have accepted responsibility of his actions. The Minister’s delegate endorsed this report and referred the matter to an admissibility hearing. The Minister’s delegate’s decision is the decision under review in this case.
Lower Court Decisions
On judicial review in the Federal Court, Justice O’Reilly found the Minister’s delegate’s decision to be unreasonable, ordering that another officer consider the question of Mr. Tran’s admissibility. The Minister appealed.
At the Federal Court of Appeal, Justice Gauthier for a unanimous court allowed the Minister’s appeal. Gauthier J. found that the reviewing judge failed to do what he was required to under a reasonableness standard of review: to assess whether the administrative decision-maker’s interpretation of s. 36 fell within the range of interpretations defensible on the facts and law.
Supreme Court Decision
This case went up to the Supreme Court for determination of the two main issues summarized below.
Issue 1: is a conditional sentence a “term of imprisonment”?
At the Supreme Court of Canada, Justice Côté, writing for the unanimous Court held that conditional sentences are not captured by the phrase “term of imprisonment” in s. 36(1)(a) of the IRPA for at least three reasons.
First, “length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of a permanent resident.” Conditional sentences are crafted for less serious offences. In fact, there are cases in which mitigating factors have prompted courts to replace jail terms of less than 6 months with conditional sentences. There are also cases in which aggravating factors led courts to replace conditional sentences longer than 6 months with jail terms shorter than 6 months.
Second, “the meaning of “term of imprisonment” varies according to the statutory context.” For example, in some parts of the Criminal Code, “imprisonment” captures conditional sentences, but in other cases it does not. The Court noted that there is similarly no consistent meaning for what “imprisonment” entails in other statutory contexts.
Third, including conditional sentences in the phrase “term of imprisonment” would lead to absurd results. Côté J. reasoned that it would be an absurd outcome if a “less serious and non-dangerous offender” sentenced to a 7-month conditional sentence in the community could be deported while a more serious offender serving a 6-month sentence in jail could be allowed to remain in Canada. It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they could remain in Canada – as Mr. Tran had actually done before the Court of Appeal. This would sabotage the goals of conditional sentences which include encouraging rehabilitation, reducing the rate of incarceration, and improving the effectiveness of sentencing.
Issue 2: how is “maximum term” determined?
Justice Côté held that a contextual reading of s. 36(1)(a) “supports only one conclusion”: that the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum penalty available at the time that the offence was committed.
The Supreme Court accepted Mr. Tran’s argument that a reading of the provision indicates that since section 36(1)(a) begins with “having been convicted”, the fact of a conviction precedes the two disjunctive clauses: the maximum term and the actual term imposed.
The Court rejected the conclusion of the Federal Court of Appeal that the phrase could be interpreted in the abstract, without reference to the particular individual. Rather, the phrase must be interpreted with reference to the actual offender or others in similar circumstances. This would accord with the purpose of the IRPA: to “permit Canada to obtain the benefits of immigration, while recognizing the need for security and outlining the obligations of permanent residents.”
The Court explained that the IRPA establishes “mutual obligations” between permanent residents and Canadian society which must be knowable in order to apply. Individuals cannot be required to act in accordance with rules that do not yet exist.
Côté J. reasoned that while section 11(i) of the Charter (right to lesser punishment) did not apply to the decision of a Minister’s delegate because the proceedings were neither criminal nor penal, the presumption against retrospectivity is a rule of statutory interpretation that did apply. The presumption engages the rule of law by providing individuals with a “stable, predictable and ordered society in which to conduct their affairs,” in the words of Lord Denning. The presumption also promotes fairness and respects decisions of sentencing judges, who are required to consider immigration consequences. It would offend fairness, the rule of law, and undermine a sentencing judge’s decision if, after a change in the law, a permanent resident who had already served a sentence 25 years ago could suddenly be found inadmissible.
Côté J. held that the presumption against retrospectivity was not rebutted in this case because there was no express language or necessary implication indicating that Parliament had turned its mind to the issue of retrospectivity.
Analysis of Tran
As to issue 1, the Supreme Court’s decision in Tran should provide certainty for lawyers acting for clients with criminal and immigration matters. Tran has harmonized s. 36 of the IRPA with criminal sentencing jurisprudence by clarifying that a conditional sentence is not indicative of “serious criminality” under the IRPA. Before Tran, a lawyer could be remiss to recommend a longer conditional sentence to be served in the community instead of a shorter sentence of incarceration due to potential deportation consequences. The Supreme Court has clarified that decisions to refer non-citizens to admissibility hearings under the IRPA should reflect the criminal law’s understanding of seriousness of offences.
The relationship between criminal law and immigration law in s. 36(1) of the IRPA means that a criminal offence may have serious consequences for the offender beyond criminal sanctions. Tran suggests that the possible immigration consequences of an offence should be considered as a factor by the sentencing judge when determining the appropriate sentence to impose. Negative immigration consequences may prompt judges to impose conditional sentences in cases where penal sentences of at least 6 months could also be imposed.
As to issue 2, this decision of the Supreme Court’s underscores that Canadian citizenship is not a right but a benefit that depends on mutual obligations between Canadian society and the individual. Part of Canadian society’s obligation is for the law to be intelligible and predictable in order for permanent residents to be able to “plan their lives”.
The Supreme Court’s emphasis on fairness, the rule of law, and the discretion of sentencing judges should provide certainty for non-citizens living in Canada. Although the Court held that s. 11(i) of the Charter did not apply to the decision since the proceedings were neither criminal nor penal, the principle behind that section – the presumption against retroactivity – was available. By applying the presumption of retrospectivity, the Court furthered the principles of fairness, predictability and intelligibility of the law. The Court’s application of the presumption of retrospectivity also seems to echo jurisprudence in the administrative law context suggesting that decision-makers should consider Charter values when making decisions.
Docket : 36784
Date of Decision: October 19, 2017
 S.C. 2001, c. 27 [“IRPA”].
 2017 SCC 50 [“Tran”].
 S.C. 1996, c. 19 [“CDSA”].
 2014 FC 1040, 31 Imm. L.R. 160 (F.C.).
 2015 FCA 237.
 Tran at para. 25.
 Tran at para. 27.
 Tran at para. 29.
 Tran at para. 29.
 Tran at para. 32.
 Tran at para. 40.
 Tran at para. 45.
The Supreme Court of Canada (SCC) released a decision on November 2, 2017 dismissing a novel Aboriginal freedom of religion Charter claim that was raised in opposition to a ski resort development in British Columbia: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (Ktunaxa). This is a significant case as it is the first time the SCC has been asked to consider an Aboriginal spiritual rights claim and the protections that may be afforded to it under s. 2(a) of the Charter in addition to s. 35 of the Constitution Act, 1982. McCarthy Tétrault LLP (Neil Finkelstein, Brandon Kain, and Bryn Gray) intervened in this case on behalf of the Canadian Chamber of Commerce.
Ktunaxa limits the scope of potential Aboriginal spiritual rights claims that may be protected under s. 2(a) of the Charter, which is significant given that there are Aboriginal spiritual rights claims across Canada that are attached to vast tracts of land. The decision also importantly confirms once again that Aboriginal groups do not have a veto over projects and that developments can proceed without consent if adequate consultation has occurred, except in limited cases of established rights, such as established Aboriginal title.
In this appeal, the Ktunaxa Nation Council sought to overturn the approval of a Master Development Agreement (MDA) for a new ski resort in the Jumbo Valley in the BC interior on two grounds: (i) the project violated the Ktunaxa’s freedom of religion under s. 2(a) of the Charter and (ii) the government breached it duty to consult. In both instances, the Ktunaxa argued that the development was taking place in a sacred area called Qat’muk that was home to the Grizzly Bear Spirit and that no accommodation of their spiritual rights was possible.
The approval at issue was the last in a serious of approvals granted over 20 years, in which Aboriginal consultation had been undertaken at every stage. Significant accommodation measures were also made to the project in response to concerns raised by the Ktunaxa, including reducing the size of the recreational area by 60 per cent. The First Nation located closest to the project was satisfied with these changes and indicated their support but the Ktunaxa Council, representing three other First Nations, remained opposed. Despite their opposition, the Ktunaxa Council continued to engage in lengthy discussions with the Crown in an effort to find mutually satisfactory accommodation of their concerns. Several accommodation offers were rejected by the Ktunaxa Council but these rejections did not explicitly identify the Grizzly Bear Spirit or the sacred nature of the Jumbo Valley as outstanding concerns that needed to be addressed.
After several years, the Minister advised the Ktunaxa Council that a reasonable consultation process had occurred and that approval for the resort could be given while accommodation discussions continued. The Ktunaxa Council subsequently adopted a “very different and uncompromising position” that the process had not properly considered the sacred nature of the Jumbo Valley and that their spiritual concerns could not be accommodated. This was because a ski resort with lifts to glacier runs and permanent structures would drive the Grizzly Bear Spirit from Qat’muk and irrevocably impair their religious beliefs and practices.
Similar to the BC Supreme Court and BC Court of Appeal, the SCC dismissed the Ktunaxa’s appeal on both grounds.
Freedom of Religion
Chief Justice McLachlin and Justice Rowe for the majority concluded that the Ktunaxa’s spiritual rights claim is not protected by s. 2(a) of the Charter. They held that there are two aspects of the right to freedom of religion, namely the freedom to (i) hold religious beliefs and (ii) manifest those beliefs and that neither were infringed upon in this case. The Minister’s decision did not interfere with the Ktunaxa’s freedom to believe in the Grizzly Bear Spirit or to manifest this belief. Instead, the Ktunaxa were seeking to protect the Grizzly Bear Spirit itself and the subjective spiritual fulfillment that they derive from it, neither of which are protected by s. 2(a) of the Charter.
In a concurring in result opinion, Justice Moldaver held that the Minister’s decision infringed s. 2(a) of the Charter because it would interfere with the Ktunaxa’s ability to act in accordance with a religious belief or practice in more than a trivial or insubstantial manner. He held that where state conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom. In this case, he held that the development would render the Ktunaxa’s religious beliefs related to the Grizzly Bear Spirit devoid of any spiritual significance.
Yet despite his finding that the Minister’s decision infringed s. 2(a) of the Charter, he concluded that the Minister’s decision was reasonable because it reflected a proportionate balancing between the Ktunaxa’s s. 2(a) Charter right and the Minister’s statutory objectives, to administer Crown land and dispose of it in the public interest. The Minister tried to limit the impact of the development on the substance of the Ktunaxa’s s. 2(a) right as much as reasonably possible given these objectives with significant accommodation measures. Granting the Ktunaxa a power to veto development over the land would effectively give transfer to them a significant property interest – namely a power to exclude others from constructing permanent structures on public land and regulating a vast area of public land so that it conforms to the Ktunaxa’s religious beliefs. Justice Moldaver concluded that allowing the Ktunaxa to dictate the use of 50 square kilometres of public land in accordance with their religious belief was not consistent with the Minister’s statutory mandate and would significantly undermine if not completely compromise it.
Duty to Consult
The SCC unanimously held that the Minister’s conclusion that the Crown had met its duty to consult and accommodate with the Ktunaxa under s. 35 of the Constitution Act, 1982, and thus his decision to approve the MDA, were reasonable.
The SCC held that the Crown’s consultation with the Ktunaxa was properly characterized by the Minister as “deep” consultation and was adequate, even though the Ktunaxa ultimately did not achieve their desired outcome to cancel development of the resort in Qat’muk to protect the Grizzly Bear Spirit. In so finding, the Court highlighted several important principles of consultation. It noted that the steps in the consultation and accommodation process (first articulated by the SCC in Haida Nation), are “offered as guidance to assist parties in ensuring that adequate consultation takes place”, but the process is not intended as a “rigid test or a perfunctory formula.”[i] Rather, what matters is “whether in fact the consultation that took place was adequate” and whether the process was consistent with the honour of the Crown.[ii] The SCC noted, for example, that it is possible for the Crown to mischaracterize a right and still fulfill the duty to consult.[iii] In addition, “the s. 35 obligation to consult and accommodate is a right to a process, not to a particular outcome” and “s. 35 does not give unsatisfied claimants a veto over development.”[iv]
The SCC also found that the Ktunaxa’s petition for a declaration that Qat’muk is sacred and that permanent construction should be banned from the site was an improper use of the judicial review process. A court that is in judicial review of an administrative decision which centres on the adequacy of consultation, is not equipped to pronounce on the validity of an unproven claim to a sacred site and associated spiritual practices. Similarly, administrative decision-makers may need to assess the prima facie strength of unproven claims, but proving Aboriginal rights claims requires a trial in which evidence can be tested, and “with the benefit of pleadings, discovery, evidence and submissions.”[v] The SCC recognized the concerns raised by the Ktunaxa if their claimed right were not protected, but noted that “in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket.”[vi] The SCC also commented that injunctive relief to delay a project may also be available in such cases.[vii]
This decision is significant for a number of reasons:
- It restricts Aboriginal spiritual rights claims under the Charter
First, it restricts the types of Aboriginal spiritual rights claims that will engage freedom of religion protections under the Charter. In particular, the fact that certain land is sacred to an Aboriginal group does not mean that any development of that land would violate the freedom of religion of the specific group. The development must interfere in a non-trivial way with the Aboriginal group’s ability to hold or manifest a particular religious belief, such as interfering with an Aboriginal group’s ability to engage in a particular spiritual practice on a specific area of land.
Moreover, even if there is an infringement of freedom of religion, this does not mean a development cannot proceed because the religious freedoms of the particular Aboriginal group must be balanced with the relevant statutory objectives at issue. The majority reasoning did not address this balancing exercise because they concluded that freedom of religion was not engaged in this case. However, the minority concurring opinion did so and the reasoning suggests that broad Aboriginal spiritual rights claims that effectively amount to a power of exclusive use or veto over land use will not meet a proportionality test. While this is in the Charter context, the decision further underscores the balance and compromise that is necessary on both sides in Aboriginal rights disputes and the risk that Aboriginal groups take in putting forward absolutist positions.
- It emphasizes that consultation is a “two-way street”
The SCC repeated the well-established principle that there are reciprocal obligations on Aboriginal groups to facilitate the process of consultation and accommodation by, among other things, setting out claims clearly and as early as possible, not frustrating the Crown’s reasonable good faith attempts at consultation, and not taking unreasonable positions to thwart the Crown from making decisions where agreement cannot be reached, despite meaningful consultation.[viii]
In its review of the facts, the SCC noted the extensive consultation that took place over two decades, and which in the Minister’s view, had come to a conclusion in 2009. The SCC noted that there had been multiple occasions up to that point in which the Crown offered accommodation and the Ktunaxa had the opportunity to raise concerns, but they did not raise any specific concerns regarding the Grizzly Bear Spirit and the sacred nature of the Jumbo Valley. Rather, by 2009, the Minister had concluded that the Ktunaxa’s outstanding concerns related primarily to interests other than their asserted Aboriginal rights and title claims.[ix]
Only after the Minister had concluded consultation was complete, did the Ktunaxa first raise the specific concerns regarding the Grizzly Bear Spirit and take the new position that no accommodation was possible and that a complete rejection of the resort was the only solution. At that late stage, the Ktunaxa indicated that there was no point in any further consultation, although the Minister attempted to further consult. The late and uncompromising approach taken by the Ktunaxa in asserting their new claim was noted by all three levels of court, and in our view was not an insignificant factor in assisting the courts with reaching their decision. This decision therefore sets a strong example of the importance placed by the courts on the reciprocal obligations of Aboriginal groups in consultation.
- It re-confirms that s.35 provides a right to a process, not to a veto or the right to consent
The SCC confirmed that the process of consultation does not provide any guarantee that the specific accommodation sought by an Aboriginal group will be warranted or possible. The ultimate obligation, rather, is that the Crown act honourably.[x] The Court went on to emphasize that the duty to consult does not provide Aboriginal groups a veto over development and that “where adequate consultation has occurred, a development may proceed without the consent of an Indigenous group”.[xi] The SCC reiterated that “consent is required only for proven claims, and even then only in certain cases”, such as in cases of established Aboriginal title.[xii]
Justice Moldaver’s concurring reasons regarding freedom of religion also recognized the difficult position that the Minister was placed in to either fulfill his statutory objectives or to provide the Ktunaxa with what would amount to a veto right against any development over fifty square kilometres of Crown land, on the basis of unproven claims. In his view, the Minister’s rejection of such a veto right was reasonable in light of his statutory objectives, while limiting the Ktunaxa’s right as little as reasonably possible.[xiii]
[i] Para. 81.
[ii] Paras. 81, 83.
[iii] Para. 104, citing Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at paras. 38-39.
[iv] Para. 83.
[v] Paras. 84, 85.
[vi] Para. 86.
[vii] Para. 86.
[viii] Paras. 79, 80
[ix] Para. 31.
[x] Para. 79.
[xi] Para. 83.
[xii] Para. 80.
[xiii] Paras. 119, 120
On September 15, 2017, the B.C. Court of Appeal rejected a challenge by the Trial Lawyers Association of British Columbia (“TLA”) to the constitutionality of legislation requiring civil litigants opting for a jury trial to pay the fees and expenses of the jury and jury process. TLA 2017 holds that provinces may impose such fees without interfering with the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867.
Mary Carter agreements are settlement agreements between a plaintiff and defendant in multiparty litigation wherein the defendant ostensibly remains an active party to the litigation while the plaintiff’s claim in fact targets the other parties. On September 5, 2017, the B.C. Court of Appeal (the “Court“) released its decision in Northwest Waste Solutions Inc. v. Super Save Disposal Inc., 2017 BCCA 312 affirming that Mary Carter agreements must be disclosed immediately and outlining potential remedies for a failure to make such disclosure. Parties and their counsel will need to keep this in mind when considering the merits of entering into a Mary Carter agreement. In the event that such agreements are entered into, parties must act quickly to discharge their now-clear duty of disclosure.
In Camions Daimler Canada ltée v. Camions Sterling de Lévis inc., 2017 QCCA 798, the Quebec Court of Appeal confirmed that the duty to inform that exists between contracting parties, which has been recognized as a general principle of Quebec contractual law since the early 1980s, may also apply to third parties, insofar as they might be impacted by the contractual relationship.
On June 2, 2017, the Ontario Court of Appeal decided, in what it described as a case of first impression, that a taxi company was not vicariously liable for a sexual assault allegedly committed by one of its employees, absent any evidence of fault on its part.
Following the Court’s review and affirmation of the leading jurisprudence on vicarious liability, it is doubtful that any car passenger service company could be found liable for the independent and wrongful criminal conduct of its drivers.
The Appellant was intoxicated and feeling unwell while at a party. The Appellant’s friend ordered her a taxi from the Respondent company. A taxi was dispatched and arrived at the party to transport the Appellant. The Appellant subsequently alleged that she was sexually assaulted in the taxi, by the taxi driver.
The driver had no criminal record. There was no evidence that he had, or that the taxi company had any knowledge that he might have, a propensity for, or history of, sexual or other violence.
The Appellant sued the driver and taxi company, alleging vicarious liability, negligence, and breach of fiduciary duty. She did not allege breach of contract.
The Respondent company brought a successful summary judgment motion. Notably, for the purpose of the summary judgment argument, it was assumed that the accused driver was an “employee” of the Respondent company, even though evidence had been filed to suggest he was an employee of the owner of the taxi.
The Appellant only challenged the motion judge’s dismissal of the claim of vicarious liability.
The Motion Judge’s Decision
The motion judge relied on the Supreme Court of Canada’s decision in Bazley v. Curry to dispose of the vicarious liability argument. The motion judge noted that the wrongful acts at issue were “only coincidentally linked” to the Respondent taxi company’s activities and that imposing vicarious liability in the circumstances did not accord with common sense notions of fairness.
The motion judge did not, as Appellant argued and the Court accepted, undertake an express analysis of the five factors established by the Supreme Court of Canada in Bazley.
The Court’s Decision
The Court held that deference was not owed on the proper application of the law of vicarious liability to the facts of the case. As such, the Court undertook its own analysis of the Bazley factors before affirming the motion judge’s decision.
Before conducting the Bazley analysis, the Court revisited the two major policy rationales for imposing vicarious liability: victim compensation and deterrence of future harm.
The Court, relying on Bazley, considered the imposition of liability for wrongs that were only “coincidentally linked” to employer activity as incompatible with the policy goals. Quoting McLachlin J. (as she then was), the Court noted that: “where vicarious liability is not closely and materially related to a risk introduced or enhanced by the employer, it serves no deterrent purpose, and relegates the employer to the status of an involuntary insurer.”
The Court applied the five non-exhaustive Bazley factors and concluded that the Respondent taxi company did not significantly or “materially” increase the risk of the Appellant being sexually assaulted by permitting the accused driver to drive the taxi and dispatching him to drive the Appellant. As such, the link required to impose vicarious liability and further the primary policy goals was absent.
With respect to the first Bazley factor—the opportunity that the enterprise afforded the employee to abuse his or her power—the Court was of the view that this was a question of degree and that the opportunity provided to the accused driver was not as significant as that found in other cases. While the opportunity afforded to the driver to abuse his or her power was “not negligible” (in that taxi drivers often have power over intoxicated lone passengers), it was not as substantial as the opportunity in Bazley where child caregivers were alone with vulnerable children for extended periods of time and during intimate activities, such as bathing or toileting.
As for the second and third factors—the extent to which the wrongful act may have furthered the employer’s aims and the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise—the Court found no connection between the driver’s conduct and the taxi company’s aims or any friction, confrontation or intimacy inherent in the taxi driver and passenger relationship. The Court noted that the taxi company’s Rules and Regulations specifically sought to prevent physical contact and harassment by prohibiting the touching of passengers or crossing of other boundaries.
As for the fourth factor—the extent of power conferred on the employee in relation to the victim—the Court found that no power was conferred other than for the driver to drive the Appellant. According to the Court, “the relationship between the driver and the Appellant was that of adult driver and adult fee-paying passenger… what power the driver had, he arrogated to himself through his own decisions.”
Finally, with respect to the fifth factor—the vulnerability of potential victims to wrongful exercise of the employee’s power—the Court accepted that the passenger was vulnerable, but noted that the power wrongfully exercised by the driver was not predicated on his employment. Vulnerability alone, according to the Court, was not enough to provide the “strong link” necessary to impose no-fault vicarious liability.
The Court concluded that the Bazley factors did not support the imposition of vicarious liability and that the Appellant had not demonstrated how the broader policy rationales of fair compensation and deterrence would have been furthered by imposing liability.
Significance of the Court’s Decision
As more consumers rely on car based transport services, the Court’s decision provides welcome clarity to the division of liability between a transport company and its drivers (assuming the latter are actually employees, which may not be the case in all instances) for wrongful conduct on the latter’s part.
To the extent any aggrieved passenger intends to make a claim against a passenger service company for the conduct of its drivers, it will simply have to rely on traditional grounds of direct liability.
The Court has also sent a clear message that vicarious liability is not meant to be a “deep-pockets” rule that assures a wronged party obtains some compensation when other remedies either do not exist or are not effective. Although the Court acknowledged that the lack of an effective remedy for survivors of sexual assault was a matter of public concern, it was not prepared to address this concern by passing the burden to employers on a no-fault basis.
While the Court’s decision no doubt has broad implications for a whole host of other enterprises, each instance of employee misconduct will have to be assessed on its own accord. To that end, we know the Bazley factors remain the guiding principles for the task and that no-fault vicarious liability will not be awarded in the absence of a strong and material connection between the misconduct and the employer’s enterprise.
Ivic v Lakovic, 2017 ONCA 446
Date of Decision: June 2, 2017
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Learn from the professionals in Canada and find out how to leverage their know-how for better outcomes for your clients’ in this revised and updated edition. The third edition can be purchased here.
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