Lawyers discuss the most impactful cases of 2020
On November 24, 2020, the Toronto Law Association held its seventh annual roundup of decisions from the Supreme Court of Canada (SCC). Presenting the cases were a panel of “veteran lawyers and scholars,” Frank Addario, Principal at Addario Law Group, Eric Gertner, former Director of Research at McCarthy Tétrault LLP, and Allan Hutchinson, Professor and Associate Dean at Osgoode Hall Law School. Mark Gannage, deputy judge, certified adjudicator, and mediator was the moderator.
The evening kicked off with some icebreakers and a slideshow presentation of pictures from inside the Supreme Court of Canada, including images of the Supreme Court justices kicking back, breaking out into discussion groups, and posing in their iconic “Santa Claus outfits.” The evening then moved onto its main event: recounting ten of the most noteworthy cases that came out of the SCC in 2020:
R v Friesen
R v Zora
R v Chouhan
Ontario (Attorney General) v G
Quebec (Attorney General) v 9147-0732 Québec Inc
British Columbia (Attorney General) v Provincial Court Judges’ Association of British Columbia (“Judges’ Association”)
1688782 Ontario Inc v Maple Leaf Foods Inc
Uber Technologies Inc v Heller
Atlantic Lottery Inc v Babstock
Nevsun Resources Ltd v Araya
Criminal law: Sentencing for Crimes of Sexual Assault, Additions to Bail Law, the Challenges of Eliminating Peremptory Challenges, and Discrimination and Sex Offender Registries
Frank Addario presented four criminal law cases. Addario is the leader of Addario Law Group, a firm that specializes in criminal, regulatory, and constitutional law. Addario has appeared before the SCC over forty times and is currently a Director at the Canadian Civil Liberties Association. He previously served as President of the Criminal Lawyers’ Association.
R v Friesen (2020 SCC 9)
Friesen pled guilty to sexually assaulting a four-year-old. His sentencing judge imposed a six-year prison sentence. The Court of Appeal reduced that time to four and a half years.
The SCC unanimously held that Friesen’s original six-year sentence should be restored. In doing so, the SCC established guidelines on sentencing for sexual crimes against children. They began by stating that courts should begin imposing higher sentences for sexual crimes against children: mid-single-digit sentences should be normal, and double-digit sentences should not be unusual, nor reserved for exceptional circumstances. The SCC also suggested that judges should impose maximum sentences whenever the situation warrants it, and not just for the worst crimes.
Addario notes that for all the SCC’s directions on sentencing terms, they remain silent on the fact that much of the violence committed against children is committed by victims of intergenerational violence themselves. Addario notes that judges can impose all the penalties they want, but the cycle will continue until the circuit is broken.
R v Zora (2020 SCC 14)
Zora was charged with drug-related offences and released on bail. As a condition of bail, Zora had to present himself at his door within five minutes of an officer attending his home. The police attended his home on Thanksgiving weekend. Zora was in bed and did not hear them knock. He was charged and convicted of two counts of breach of bail under s. 145(3) of the Criminal Code.
The SCC quashed Zora’s convictions and ordered a new trial, holding that nothing less than subjective mens rea would suffice for conviction under s. 145(3). The SCC addressed the issue of the rising number of convictions for breaching bail conditions, and its disproportionate impact on marginalized communities. The SCC also stated that bail judges should rigorously review the “catch-all” condition that requires the accused to “keep the peace and be of good behaviour” before making it a condition of bail.
Addario sees Zora as a welcome addition to bail law, which is often used as a tool to control and criminalize those most vulnerable in the criminal justice system.
R v Chouhan (2020 CarswellOnt 14612, 2020 CarswellOnt 14613)
Background: Bill C-75 is a reform to the Criminal Code that received Royal Assent on June 21, 2019. One of its reforms aimed to eliminate peremptory challenges, which allow a party to remove a potential juror without giving reasons for doing so. The Attorney General of Ontario allowed prosecutors to argue that the ban should apply to cases already in the system. Addario noted that peremptory challenges are necessary to balance juries and, frankly, make them less racist.
Chouhan was a racialized defendant, tried days after Bill C-75 came into force. He sought peremptory challenges as he faced an all-white jury. The trial judge denied his request, and Chouhan was convicted. The Ontario Court of Appeal reversed the decision.
The SCC allowed the appeal and restored the conviction. They held that the ban against peremptory challenges was constitutional and purely procedural, and therefore could apply retroactively. The appeal was dismissed from the bench, and no written reasons have been given yet.
Ontario (Attorney General) v G (2020 SCC 38)
G was charged with two counts of sexual assault. He was found “not criminally responsible on account of mental disorder” (NCRMD). G received an “absolute discharge” from the Ontario Review Board after they determined that he was not a significant risk to public safety. However, individuals such as G who are found NCRMD of sexual offences must register as sex offenders and report to police at least once a year. On the contrary, individuals found guilty of sexual offences have opportunities to not register or report—opportunities not available to individuals like G. The Court of Appeal allowed G’s appeal.
Dismissing the Crown’s appeal, the SCC found that denying exit routes for persons found NCRMD violated s. 15 of the Canadian Charter Charter of Rights and Freedoms (the right to equal treatment under the law, without discrimination based on characteristics such as mental disability). The SCC noted the stereotypes individuals with mental disabilities face as being inherently and perpetually dangerous. This notion perpetuates the disadvantages individuals with mental disabilities face, and Ontario’s sex offender registry system places individuals found NCRMD in a worse position than individuals found guilty. The SCC upheld the Court of Appeal’s decision allowing Ontario one year to fix their law, and ordered that G be deleted from the registry immediately.
Constitutional Law and Tort Law: s. 12 and Corporations, the Constitutionalization of Judicial Salaries, and Establishing Sufficient Proximity for Cases of Pure Economic Loss
Allan Hutchinson is a professor and Associate Dean at Osgoode Hall Law School. He was elected to the Royal Society of Canada in 2004. He has been published in many of the common law world’s leading law journals. He is the author of Evolution and the Common Law and The Companies We Keep: Corporate Governance for a Democratic Society. Professor Hutchinson presented three constitutional law and tort law cases.
Quebec (Attorney General) v 9147-0732 Québec Inc (2020 SCC 32)
Quebec’s Building Act imposes a minimum fine of $30,000 for doing construction work without a permit. A corporation charged with the fine challenged the Act on the basis that it violated s. 12 of the Charter, which forbids cruel and unusual punishment.
The SCC held that corporations, as legal entities,are not entitled to rights against cruel and unusual punishment. Section 12 is based on human dignity, and the idea that humans deserve respect, regardless of who they are or what they’ve done. To Professor Hutchinson, the very existence of extended litigation on whether corporations were protected by s. 12, forty years after the birth of the Charter, was “slightly depressing.”
British Columbia (Attorney General) v Provincial Court Judges’ Association of British Columbia (“Judges’ Association”) (2020 SCC 20)
This case considered how judicial salaries are set. In order for courts to maintain “judicial independence” from the other branches of the state, judges cannot negotiate their own salary raises with the government. Instead, independent commissions make salary increase recommendations and have the final say. Their decision is reviewable by courts under the Constitution. The Judges’ Association launched court proceedings after the government reduced their salary increases from the 8.2 per cent suggested by the commission to 3.8 per cent. They sought to access the Cabinet documents used to make the decisions.
The SCC denied the Judges’ Association access to the Cabinet documents.
Professor Hutchinson felt this case represented another example of the constitutionalization of salary negotiations by judges. The idea that some of the most highly paid public officials could attempt to constitutionalize their salaries sets the interests of judges aside and above those of any other group in society. Judicial independence is also questionable, because the Judges’ Association’s complaints are heard by fellow judges. Third-party onlookers, Professor Hutchinson says, can be forgiven for noting whiffs of self-dealing.
1688782 Ontario Inc v Maple Leaf Foods Inc (2020 SCC 35)
A Mr. Sub franchisee brought a class action on behalf of various franchisees against Maple Leaf Foods after some of their products were contaminated with bacteria. The franchisees were contractually required to purchase ingredients from Maple Leaf Foods, but had no direct contract with them. The franchisees sought recovery from their reduced profits.
A narrow majority (5-4) of the SCC dismissed the claim, holding that there was no general right to recovery from pure economic loss. Nonetheless, the SCC noted that there are circumstances where economic losses can be recovered. Economic losses can be recovered where they were consequential upon property damage or personal injury, or when expenses were incurred to prevent personal injury.
A claim for pure economic loss may succeed in issues involving performance of a service. The issue to be determined is whether the claimant can establish sufficient proximity to the service provider or supplier — in this case between Maple Leaf Foods and the Mr. Sub franchisees. The majority found that while there was proximity between Maple Leaf Foods and the end consumers, there was no proximity between Maple Leaf Foods and the franchisees. The franchisees’ interest was purely commercial.
Class Actions: Striking Down Arbitration Clauses, Rejecting the Waiver of Tort, and Recognizing Customary International Law
Eric Gertner was the former Director of Research at McCarthy Tétrault LLP in Toronto. He was one of the founding co-editors of The Supreme Court Law Review, now in its 40th year of publication, and co-authored Debtor-Creditor Law, the leading Canadian casebook on debtor-creditor law. Gertner presented the last three cases of the roundup.
Uber Technologies Inc v Heller (2020 SCC 16)
Heller brought a class action in Ontario on behalf of Uber drivers. Uber moved to stay the class action on the basis that their contract with the drivers had an arbitration clause which required disputes to be resolved by arbitration in the Netherlands, and required Heller to put security of 14,500 USD before they proceeded with arbitration.
The majority of the SCC held that the arbitration clause was unconscionable and therefore invalid. Two questions were asked: was there inequality of bargaining power, and if so, was the contract unfair to Heller? The Court held that there was clearly unequal bargaining power, especially considering the fact that the parties’ contract was a standard form contract, and that it resulted in unfair terms as the mandatory deposit likely prohibited Heller from bringing his claim in the first place.
Atlantic Lottery Inc v Babstock (2020 SCC 19)
Babstock proposed a class action against the Atlantic Lottery Corporation for profiting from dangerous and deceptive video lottery terminals. One of Babstock’s grounds for his action was “waiver of tort,” a doctrine that allows a claimant to seek disgorgement of the defendant’s profits when their tort claim may not provide adequate compensation. The issue of waiver of tort has been hotly disputed by lower courts in the past. It is a common issue faced by defendants in class actions, but has never before been directly addressed by the SCC.
The SCC held that waiver of tort was not a separate and discrete remedy available to claimants. The SCC dismissed Babstock’s claims on the grounds that they disclosed no reasonable cause of action.
Nevsun Resources Ltd v Araya (2020 SCC 5)
Citizens of Eritrea, an East African country, sought to bring a class action in British Columbia, claiming that Nevsun violated their human rights by hiring them through the government of Eritrea’s mandatory “National Service Program.” They sought to bring the suit in British Columbia as it was unlikely an Eritrean court would rule against their own government.
In allowing the class action to proceed in Canada, Abella J, writing for the majority, clarified two points of law. First, she held that Canada does not recognize the “act of state” doctrine, which grants foreign states immunity from prosecution in Canadian courts. Second, Abella J held that customary international law was part of Canadian law, and therefore courts are able to hold Canadian companies liable for violations of customary international law.
