Episode 27: Supreme court briefing

Yves Faguy: Hi, I’m Yves Faguy. In this episode of Modern Law, we discuss again the work of the Supreme Court of Canada. You’re listening to Modern Law, presented by the Canadian Bar Association’s National Magazine. It’s June 27th, 2023, and we’re back with a new instalment of our Supreme Court briefing with Nadia Effendi, our partner from BLG, who is also a member of the CBA’s federal courts bench and bar liaison committee. Welcome back, great to have you back on the show, Nadia.

Nadia Effendi: Thank you, thank you for having me back.

Yves Faguy: Yeah, no, it’s our pleasure. So let’s get into it. Just quickly, first, the spring session is closed, which is why we’re doing this at this particular moment and doing this Supreme Court briefing. Tell me, Nadia, first of all, what do justices do ion the summertime?

Nadia Effendi: Well, they normally will be working on the judgments that they have reserved, so there'll be a lot of work on drafting, reviewing judgments, circulating among judges. And then they’ll prepare for the fall session, and obviously, like everyone else they’ll be taking a bit of time off as well. But by no means is it vacation. I think from my time back at the court years ago now as a law clerk there’s still lots of activity during the summertime.

Yves Faguy: And the law clerks are very busy.

Nadia Effendi: They are busy. They’re helping, obviously, their judges, and whether it’s with judgment drafting or preparing for the fall session, helping them with what we call bench memos. So, yeah, there’s definitely activity going on there. And obviously some of the judges are also speaking at various conferences, and so they may be doing a bit of that as well.

Yves Faguy: The other person I think certainly legal observers hope will remain busy with respect to the Supreme Court is the Prime Minister and the Minister of Justice, because we have a new vacancy on the court with the departure of Russell Brown. So maybe just in terms of timelines, what are we looking at here? There’s a sense, just by way of context, that this court’s been playing with a bit of a short bench for several months now. How quickly can we reasonably expect the vacancy to be filled?

Nadia Effendi: So, I mean, that’s a good question. I wish I was a fly on the wall of the Prime Minister’s office, because at the end of the day he’s the one that’s going to have the responsibility of appointing the judge out of the west. He has started the process, and you’ll probably have seen, and the listeners will have seen, that the Prime Minister now has a few weeks ago - that applications now were open for this SCC vacancy to western and northern jurists, and people have until July 21st. And the Chief Justice in his annual press conference also reiterated his wish that the appointment would take place very quickly in order to allow whoever will take the position to prepare for the fall session. So I would think, I would hope that all of this would take place prior to October, but it’s really up to the Prime Minister and what he’ll decide to do.

Yves Faguy: Is it realistic to hope that it can happen by October, yeah?

Nadia Effendi: I think so. Yeah, I think so. In the past that has been done, and so I don’t think that that would be a problem. And certainly there’s lots of candidates out there. There’s several names that have been circulating out west, from BC, Alberta, Manitoba, and so there are some candidates from various realms. So I don’t think that’s a problem. I think that if the Prime Minister wants to make that happen, he can. And certainly the fact that he’s indicated that people have until July 21st gives a sense that he plans on, after that in August and maybe September, to allow the committee – because we’ll remember that there’s a process now that has been set up where there’s an advisory board that reviews all the applications and makes non-binding recommendation to the Prime Minister.

So hopefully that committee will be set up very soon. We don’t know yet who’s going to be chairing that committee. You’ll remember, Yves, that previously we had the Right Honourable Kim Campbell who chaired the committee, and then we had also Justice McLachlin, who – sorry, former premier of PEI, Wade MacLauchlan, who also chaired the committee, but we don’t know yet who it is. But I would’ve thought that there’s plenty of time between July 21st and when the court starts sitting to review all those applications, make a recommendation to the PMO, and have him appoint that person.

Yves Faguy: Who are we maybe looking at in terms of the type of criteria that we’re looking at? Obviously in terms of regional considerations I think we’re looking at someone from out west. Maybe not from Alberta, given that there’s another Alberta justice on the court?

Nadia Effendi: Yeah, I mean, by tradition two of the nine SCC judges are from the west, and the Prime Minister has indicated that that’s his intention to follow that tradition, because he’s opened the application to people that are either members of the bar or judicial appointees that are from the western provinces – BC, Alberta, Saskatchewan, Manitoba, and Northern Canada. He specifically made that point in the application, so Yukon, Northern Territories and Nunavut. You're right that Alberta has had its share of appointments to the top court, in fact four of the past appointments from the west were from Alberta, including recently Justice Sheilah Martin, and obviously Justice Brown, and previously we had Justice John Major and Justice Stevenson. So I think some people are hoping that it will be someone from either Manitoba, BC or Saskatchewan. There’s been a lot of talk about maybe someone from Saskatchewan - obviously the last person was Justice Emmett Hall several decades ago.

I think the names are being mentioned out there, there’s more, as far as I can tell, out of BC and Alberta and Manitoba. I mean, part of it is, you’ll remember, Yves, that the Prime Minister back in 2016 had basically committed to appointing someone that is functionally bilingual. And you’ll know that recently – in fact, just about ten days ago – Parliament passed and there was royal assent given to this Bill C-13, which now provides that all judges, including judges of the Supreme Court of Canada, need to be able to understand French and English without the aid of an interpreter. That bill doesn’t come into effect until 2024, but the reality is the Prime Minister has said that he will appoint someone that’s bilingual, and we know he’s done that with Justice Jamal and Justice O'Bonsawin. So I raise it because obviously that will be a consideration. Some people have said that will limit the number of people that can apply and the pool of candidates. I’m not so sure that’s the case.

I mean, frankly, if you look at the candidates that are being mentioned out there, such as, for example, Justice Leon Marchand, who is a member of the BC Court of Appeal, or Chief Justice Glenn Joyal, who’s Chief Justice of King’s Bench in Manitoba, or the newly appointed Chief Justice of the Court of Appeal of Manitoba, Justice Rivoalen, I mean, they’re all bilingual. So there are definitely bilingual options out there. But maybe he’ll want to name some women. I mean, if he does that would mean that for the first time in the history of the court you’d have a majority of women on the court.

Yves Faguy: What about another Indigenous nomination?

Nadia Effendi: Absolutely. And in fact, one of the names that has been mentioned out there is Justice Paula Favel, who is currently a federal court judge. I understand that he is taking French courses and that he’s a member of an Indigenous community, and he’s also from Saskatchewan. Justice Marchand, who I mentioned earlier, is a member of the Okanagan Indian Band, so obviously an option there as well. So he could do that as well; there’s definitely, I think, the ability for him to appoint a second judge from an Indigenous community.

Yves Faguy: The other thing that’s a little peculiar about this particular vacancy is that we have heard, certainly in the media, a certain amount of desire to appoint a “more conservative voice” to the court. I’m never entirely clear whether Justice Brown was conservative or not. I find those distinctions don’t necessarily fit neatly in how they tend to rule on cases that come before them. But is that something that people are looking at?

Nadia Effendi: I mean, I know there’s been a lot of talk about it. I mean, I don’t know whether or not this is really what the criteria should be at the end of the day, Yves. I think we want people that are qualified that are able to hear these cases in an impartial way, and I think those should be the criteria. And obviously on top of that the bilingual criteria. I mean, if you take the example of Justice Rowe, who I think people thought oh, you know, he was appointed by Trudeau so he must be liberal, left leaning. Well, we could see from his judgment that that hasn’t turned out to be the case. So I don’t know that that should be the criteria. And, frankly, at the end of the day I don’t know that that will necessarily be the criteria that Justin Trudeau, you know …

Yves Faguy: Will rely on.

Nadia Effendi: Exactly, exactly. And so I – and you’re right, I agree with you, I’m not entirely sure that Justice Brown was as right leaning as everyone said. Certainly he had certain views with respect to constitutional matters, and that’s okay. I mean, that’s we want. We want a diversity on the court, right? That represents basically the diversity of views but also cultures and backgrounds from society.

Yves Faguy: Briefly a word on Louis LeBel, who recently died. I know he had a major impact on administrative law. Also obviously he also had a very important background in Quebec labour law as well. An important ruling in private international law. But what else should we be remembering him for?

Nadia Effendi: Well, and I was talking to several of his former clerks, actually, about his legacy, and I think you’re right, he will definitely be known as someone that had an important legal mind, there’s no doubt, in admin, labour and private law, as you mentioned. But I think some of the people that have worked with him also remember him for his sense of humour and humanity, and I think behind all of his judgments you could see that. And he also had the ability to write in a very clear way. And you think about some of his judgments that he’s issued, including, for example, that [Van Breda] case, which is a seminal case when it comes to the issue of international private law that clarified the real and substantial connection. I mean, that area of the law was a mess until Justice LeBel came in and clarified it. So I think that he’s also remembered for that.

Yves Faguy: Let’s turn our attention to some recent judgments that have been handed down or that have been released recently by the Supreme Court. What are a few on your radar? The most recent one that seems to have popped up is the Canadian Council for Refugees, which is the decision on the safe third country agreement.

Nadia Effendi: That’s one that obviously garnered a lot of attention, released about ten days ago. I mean, one of the reasons also why it got so much attention is, you’ll remember, Yves, that prior to the decision actually being released, Prime Minister Trudeau and President Biden went ahead and expanded the agreement, notwithstanding that the matter was under reserve and now the agreement covers the entire land border. And there’s been some mention about how there’s been a drop in the number of cross-border refugee claimants. So I think that was an odd kind of little context to this whole thing, but obviously the court here didn’t deal with the expanded agreement, it dealt with the agreement as it existed at the time.

So just for the listeners, you’ll remember that in this case what the court was basically being asked to examine was whether or not the designation of the US as a safe third country for the purpose of refugee claim violated section 7 of the charter. And the court concluded that it did not. But there’s a caveat to that, because it sent back the matter to the federal court to determine whether or not the claimant's section 15 challenge was founded. So we’ll have to wait and see, I mean, whether or not this safe third country agreement is actually safe. We don’t know for sure yet. What we know is that the court concluded it didn’t violate section 7.

Yves Faguy: I’ve spoken to immigration lawyers who were telling me, saying, this is like – this is not a great outcome, in a sense, because it doesn’t give a particularly meaningful remedy to refugee claimants who have to wait it out again. Is it fair to say that the outcome has left everybody a little bit dissatisfied? And I say that acknowledging that probably the court had a pretty tough hand that it was dealt.

Nadia Effendi: I think so. I think that everyone was unsatisfied, and I think you can kind of tell that a bit by the judgment of the court. First of all, it was incredible that it was unanimous, although I do know that Justice Brown sat on the hearing and participated in the judgment. So there’s several things. I think that you’re right that the refugee community and the immigration bar is probably very disappointed, but there's a few other things. if you don’t practise in this area that I think all of us were left a bit unsatisfied. And one thing that I wanted to note for our listeners – and maybe people didn’t twig to that – is this whole issue in the decision related to what is the standard that you apply to review regulation, because that was what was at issue here. It was actually a regulation that was passed under the Immigration and Refugee Protection Act. And I was hoping that the court would deal with that issue, because especially after Vavilov there’s a whole line of cases coming out of the [CATS 00:14:15] case that dealt with this concept of a hyper deferential standard that should be applied for regulation, and the court decided to ignore that.

So I was a bit disappointed, to be honest. The issue might come back to the court, there is some decision that is making its way there, so maybe that will be looked at again. So that’s one element. Another element that was also interesting, for those individuals that practise in the constitutional realm, is that the court confirmed that there’s no charter hierarchy. And one of the things that the court noted is that there’s been this judicial pattern of neglect with respect to section 15 challenges where if someone raises multiple charter rights, courts tend to ignore section 15, and only deal with section 7, thereby giving less effect to section 15. It’s almost like it’s a lower tier. And the court said no, that shouldn’t be how it’s treated. And, in fact, it goes further than that. It basically says, look, lower courts and appellate court should really seriously consider ruling on alternative basis a constitutional challenge, even after finding constitutional validity under one ground.

So I think that’s interesting for all of us; hopefully we will see more of the lower courts dealing with section 15, and other charter rights, even though there’s a multiplicity of them. And so the other thing that was interesting also on the immigration side of things is the whole shocks the conscience standards, and that was something that was discussed in the case. And that standard in extradition, the court said, is not relevant when challenging legislation under section 7 of the charter. While in the past the SCC had applied that shocks the conscience standard to legislative challenges, it’s now clear that that standard is only applicable to the review of individualized decisions and not actually to the review of legislation. So a disappointment there for people in the immigration bar, certainly.

Yves Faguy: The takeaway, though, for those who want to see a little bit of positive in this, I suppose, is that especially the court is saying if you have a claim under 7 and a claim under 15, might be a good idea to deal with both.

Nadia Effendi: Correct. Correct. And I think that’s a good thing, right? I think now we'll see more of the courts trying to deal with both of those at the same time and not leaving them for another case to be dealt with. And so hopefully we’ll see more jurisprudence coming out of the courts.

Yves Faguy: Deans Knight, this is a tax law case in which the Supreme Court clarified general anti-avoidance rule or GAAR analysis. Why is this one important?

Nadia Effendi: Well, I mean, people that practise in tax are probably always very excited to see a case out of tax coming out of the highest court. For the rest of us, maybe not, but you know what? It was a very interesting case. Certainly, I would say that that case probably confirmed and endorsed the continued application of the long-established legal principles and approach to GAAR. And just by way of background, we’ll remember that basically GAAR allows Canada Revenue Agency to redetermine [unintelligible 00:17:28] consequences of a transaction. And so for GAAR to apply, the taxpayer must have engaged in some sort of transaction or series of transactions, the purpose of which was to obtain a tax benefit then. So that’s what GAAR is generally. And so it’s designed to really capture those situations that undermine that government will say the integrity of the tax system.

And so in this case what the court had to do was to consider the application of GAAR to transactions specifically designed to avoid triggering certain provisions which restrict a corporation that has undergone an acquisition of control. And so the court had to look and interpret the control as the [unintelligible 00:18:08] control, and it had to look at that concept. So it was almost unanimous. Justice CĂ´tĂ© was in dissent, the judgment was penned by Justice Rowe, and in that case the court found that the transaction at issue were abusive. Then the GAAR applied to deny the tax benefit, and basically it held that the taxpayer had contravened the legislative rationale. And so as I said, I don’t think that it significantly changes the legal framework of GAAR, because the court’s reasoning is really rightfully tethered to the [unintelligible 00:18:41] standard used in corporate law’s restrictions. So it doesn’t establish new legal principle, I think it’s really the result of the case itself that is largely fact specific. But from a practical perspective, Yves, I think that it does illustrate that if a taxpayer achieves an outcome highly similar to that at which a particular provision is directed, there is a very significant risk that it will be found to have come within the legislative rationale of that provision, thereby triggering GAAR. So, yeah, that’s Deans Knight.

Yves Faguy: Well, that’ll keep the tax specialists busy.

Nadia Effendi: I think it will, I think it will.

Yves Faguy: Hansman versus Neufeld. Now, this is also a case that we spent some time on at National Magazine, but this is the anti-SLAPP case out of BC where the court highlighted the public interest in protecting counter speech. So what is counter speech?

Nadia Effendi: You’ll remember that this case actually – I mean, I think it follows a line of cases that the court had issues a few years ago. You’ll remember there was that Platnick versus Bend, and then that [unintelligible 00:19:47] association that dealt with anti-SLAPP legislation. And so this one, this decision, is out of BC, so it deals with the equivalent piece of legislation out of the BC that’s similar to the one in Ontario that had been looked at a few years ago. I think basically the takeaway from us – and I think the facts are important here for the readers and for those who haven’t looked at the case, because the case basically involved a situation where you had a public school board trustee who had made online posts criticizing provincial government designed to equip educators to instruct students about gender identity. And so that was Neufeld. And then you had Mr. Hansman who was a gay man teacher who was prominent among the dissenting votes and made statements to the media, and he, among other things, called Neufeld’s views bigoted and transphobic.

And then obviously what happened is that Neufeld sued Hansman for defamation, and then Hansman brought this anti-SLAPP motion. And so he was successful, basically. And I think the key takeaways here, there’s a few of them. Obviously the court reaffirms its test that it had established under Platnick and Bend, and under [unintelligible 00:21:03] association. But I think what’s really key is that it affirms for the first time the dignity and equality interest of trans individuals under Canadian law. And that was key. In addition to that, on the counter speech, it is the first decision in Canada to import this notion of protecting counter speech as a relevant consideration under the anti-SLAPP framework. So the court says even forceful counter speech containing accusations of hate speech may be protected from a defamation lawsuit. So I think that’s really key. And those are really fundamental issues, so we’ll see how that translates in the future, but I think a very important decision out of the court trying to protect, basically, freedom of expression.

Yves Faguy: There’s actually a podcast coming out this week with Justin Safayeni of Stockwoods, and we actually discuss this case. Another thing that was kind of interesting in there was this whole notion of the court discusses quality of the speech and introduces this notion of charter values into evaluating the quality of that speech. And that’s also an interesting new element that we're seeing in terms of freedom of expression cases.

Nadia Effendi: I think it is. I mean, obviously what the court said, particularly when it was talking about this concept of counter speech, it said, look, this speech is aimed at protecting a group of person that the group finds to be marginalized or vulnerable; that’s a key factor. And I think you’re right, Yves, that is an important element here, and so we’ll have to see how that plays out in the future. I mean, the type of speech has always been something that is important, obviously, but we know from freedom of expression cases that often it’s not the most popular speech that ends up being protected by the charter. But here I think we have a case where obviously the speech in question was one that was trying to protect a vulnerable group, and the court afforded great weight to that.

Yves Faguy: Are there some unintended consequences we might worry about that in the long run? In other words, should we be sanctioning the quality of the speech? I mean, I say that really as an open question.

Nadia Effendi: Yeah, I mean, I don’t know. and remember that this was really also specifically in the context of anti-SLAPP, not in the context of a charter case, right? So I think I see this as being two distinct different situations, so we’ll have to see, maybe. Certainly, I can say that just as recently as a few weeks ago I was in front of the Ontario Divisional Court in a case that involved freedom of speech, and this case was raised by some of the parties in that case. And so maybe it will, maybe it will have an impact more broadly on those charter freedom of speech cases. We’ll have to see.

Yves Faguy: Okay, so let’s turn our attention to leaves to appeal that were granted. What’s on your radar, Nadia? Tell us.

Nadia Effendi: Well, there’s quite a few actually, so I picked a few for our listeners, Yves, here. One that I thought was quite interesting is a case out of New Brunswick called the Attorney-General of Canada versus Joseph Power. And so leave was granted, and the case is tentatively scheduled, I think, to be heard in December. And it’s an interesting case because it basically deals with the Mackin case. And so for our listeners, you’ll remember that the Mackin case dealt with the issue of whether the Crown is immune from charter damages arising out of legislation later declared unconstitutional. And so the court is basically being provided an opportunity to consider that issue again. And it looks like it’s garnering a lot of attention, because just recently last week was the deadline for leave to intervene, and there was quite a few groups, actually, that sought leave to intervene in that case, including the Speaker of the Senate, the Speaker of the House of Commons, the Attorney-General of Quebec, the Attorney-General of Ontario. And you can see why, because the implications of the case would be huge. If the Crown is not immune from a civil suit for charter damages for legislation enacted, you could see how that would have broad consequences for legislators.

Yves Faguy: The SCC granted leave also in another admin law case – I don’t know if you were referring to this earlier, but this is about judicial reviews where a statutory appeal mechanism is already available. So this is Yatar versus TD Insurance. Is this a post-Vavilov case? I’m trying to situate this for people who are a little bit quizzical about administrative law.

Nadia Effendi: Yes, it is a -

Yves Faguy: That includes myself, by the way.

Nadia Effendi: [Laughs]. Well, I think we’re always on edge in admin law figuring out what’s going to happen next. But you’re right, it is a post-Vavilov case. It’s a case that’s scheduled to be heard in November, and here the court is given an opportunity to weigh in on, frankly, a point of inconsistency among appellate decisions. And the question is: to what extent can legislator limit judicial review? And so the question for the court will be the interplay, as you said, between statutory right of appeal and the availability of judicial review. And the reason why this case is interesting is because we do have conflicting line of cases. We have a case out of the Federal Court of Appeal in this Best Buy case where basically the majority held that judicial review is constitutionalized, and so the rule of law will always be there and will override partial [unintelligible 00:26:31] clauses.

So basically, even if the legislator provides for a right of appeal in specific issues, that’s not good enough. And so some people have criticized that decision, because it essentially makes Vavilovian, Vavilov, [laughs], reasonableness constitutionally enshrined, is what people have said. But then you have also a different line of cases, and that’s the minority in Best Buy where the minority has said no, no, it’s okay for the legislator to restrict judicial review, as long as it’s a partial restriction and not basically a total restriction. Here, the Court of Appeal of Ontario struck a middle position. It’s closer to the Best Buy minority; it does suggest that partial restriction on review is okay. So I think we’ll have to see what the court says. I think it’s a very interesting case, as you say. Definitely post-Vavilov, so all of these administrative law aficionados will be watching for it.

Yves Faguy: The next one is York Region School Board versus Elementary Teachers Federation of Ontario. Now, this is about whether employees had a right to be protected against unreasonable search and seizure in the workplace under section 8. Right?

Nadia Effendi: Yeah, exactly. Exactly. So another case that I suspect will have a lot of possible intervenors getting involved into. I mean, the court really will be looking into a few issues in this case. One, I think it will be looking at an opportunity to revisit the application of [unintelligible 00:28:03], my favourite case. And in particular it does raise important legal issues about the scope of [unintelligible 00:28:10] and the role of judicial review in the charter context. And so the appellant actually specifically asked for guidance from the SCC on the applicable standard of review. So we’ll have to stay tuned there. But the court will also have to grapple with whether the charter even applies in a public school employment context. And so we’ll have to see – and then if it concludes that it does, then ’ll have to consider the scope of a teacher’s right to a reasonable expectation of privacy under section 8 of the charter. So very interesting issues for the court to deal with.

Yves Faguy: Now, I would presume that it would apply, but why might it not?

Nadia Effendi: Well, actually, since the McKinney University case, it’s not that clear, actually, Yves, that in the context of a school that the charter applies. There’s really several factors are being looked at. You’ll remember the charter applies to government, government actors, and so the question is always, well, is a school – you know, does it fit within the factors related? Does it act as a public entity? Is it like a government actor? And so it may be that the answer is obvious, maybe not. I mean, for example, in the context of hospitals there’s a whole line of cases that says no, for hospitals, it doesn’t apply. So it’s not as obvious as you may think, so we’ll have to see what the court says there, whether it actually dives into the McKinney test and provides a bit of clarification there in terms of whether or not it applies.

Yves Faguy: Okay, interesting. Now, another case that’s been granted leave that you flagged was basically, by my count, the second expropriation case that we’ve seen the court interested in, in a year.

Nadia Effendi: Yeah, you’re right. It does feel like it’s a kind of [Annapolis 00:29:48] number two. Although – so this is the City of St. John’s versus Lynch matter, and so that – I think it’s being heard also in November, so stay tuned there. Again, several intervenors that have actually asked the court for leave to intervene, so we’ll have to see. But the issue here is much narrower. I think what we expect this case to provide is guidance on how to quantify the appropriate compensation where constructive expropriation results from a series of land use restrictions. So it’s really limited to the issue of the appropriate compensation.

The facts of the case are interesting, though, because it’s in the context of the city’s expropriation of property that had been in the Lynch family since 1917. And so the court will have to decide whether compensation to be based on permitted use and zoning, which doesn’t permit residential development in that case, or if it should be determined as if the land could be developed. As you could imagine, the compensation would be quite different. And so we’ll have to see there what the court does with that case.

Yves Faguy: Nadia Effendi, thank you so much for giving us your time, again, and for keeping us apprised of what’s going on at the Supreme Court of Canada.

Nadia Effendi: My pleasure, Yves.

Yves Faguy: And on that, I wish you also a restful summer, and then we’ll talk again in the fall.

Nadia Effendi: Absolutely. I’m sure there’ll be a lot of cases and interesting things to talk about.

Yves Faguy: Thanks

Nadia Effendi: Thank you.

Yves Faguy: We hope you enjoyed the episode. If so, please share it with your friends and colleagues, and if you have any comments, feedback or suggestions, please feel free to contact us on Twitter @CBAnatmag and on Facebook. And please visit nationalmagazine.ca to read our latest analysis of legal news in Canada. And thank you all for listening.