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Year in review: developments in Canadian law in 2008.

I INTRODUCTION

Purpose and Organization of the Year in Review
Trends in 2008

II. TORT LAW

Duty of Care
   i. Duty of Care and Foreseeability
   ii. Pure Economic Loss
   iii. Duty of Care to Newly Born Children
   iv. Duty of Care in a Claim for Negligent Investigation
   v. Duties of Care Owed by the Crown
Standard of Care
   i. The Effect of Road Signs
Causation
Damages
Specific Torts
   i. Defamation

III PROPERTY

IV CONTRACTS

Exclusion Clauses
Contracts of Employment
Tendering
Restraint of Trade

V LABOUR

The Right to Bargain Collectively
Remedies Under a Collective Agreement
   i. The Union's Remedies Against Employees
   ii. An Employee's Remedies Against Employers
   iii. Rules Governing Arbitrators
Contracts of Employment

VI BUSINESS LAW

The Stakeholders Debate
   i. Derivative Actions
   ii. The Oppression Remedy
   iii. Corporate Existence and the Liability of Directors
Mergers
   i. Competition Law
   ii. Pension Law
Arbitration

VII FAMILY LAW

Spouses
   i. Division of Assets on Divorce
   ii. Federal Spousal Support Guidelines
   iii. Imputation of Income
Children
   i. Section 9 of the Child Support Guidelines
Enforcement of Orders

VIII TAX

Taxation
Administration of the Tax Act
   i. Powers of the Minister
   ii. Duties of the Tax Court Judge

IX CIVIL PROCEEDINGS

Conflict of Laws
Jurisdictional Concerns
Res Judicata and Estoppel
Abuse of Process
Limitations
Rules of Evidence
Burden of proof in civil cases
Pleadings
Costs

X ADMINISTRATIVE LAW

Standard of Review
Procedural Fairness

XI CRIMINAL LAW

Criminal Procedure
Disclosure
Offences
Decisions
   i. Trial Judge's Reasons
   ii. Jury Instructions
   iii. Directed Verdicts
Credibility
Evidence
   i. Out-of-Court Statements
   ii. Searches
   iii. Child Witnesses
   iv. Exclusion under Section 24(2)
Defences
Sentencing
   i. Remedies for Unconstitutional Mandatory Minimum Sentences
   ii. The Principle of Parity
   iii. Pre-sentence Custody and Bail
Youth

XII PROVINCIAL OFFENCES

Provincial Offences Act (Ontario)

XIII CONSTITUTIONAL LAW

Canadian Charter of Rights and Freedoms
   i. Extraterritorial Application
   ii. Section 7: Principles of Fundamental Justice
   iii. Section 2: Freedom of Speech
   iv. Section 15: Equality Rights
   v. Section 20: Language Rights
   vi. Section 14: Translation Services in Legal Proceedings
Taxation
Division of powers
   i. Section 91(2A)
   ii. Section 92(12)


I INTRODUCTION

Purpose and Organization of the Year in Review

The law in Canada is in a state of ongoing upheaval. Statutes are introduced, amended, and repealed. Administrative tribunals develop policies and processes to meet changing conditions. And every day in their decision% courts interpret, re-interpret, reject, and reconcile these and other sources of law. Those court decisions are the focus of this review. In particular, the review focuses on the noteworthy decisions of provincial and federal appellate courts released in 2008.

Decisions may be noteworthy for a variety of reasons. They may change the law, (1) apply the law in an unexpected way, (2) have striking facts or interesting theoretical implications, (3) represent a new application of statutory rules, (4) or be of significant political or practical importance outside the law. (5) Noteworthy decisions provide insight into the current state of the law, prominent topics of legal conversation, and the nature of the work done by appellate courts in Canada. This review aims to identify noteworthy decisions from among the more than 6000 released by appellate courts in 2008 and to discuss their individual and collective significance.

The review will be useful in a variety of ways. Students may gain from it an understanding of the dynamism of Canadian law, a perspective that is often not the focus of their classes at law school. Practitioners can use it to stay up-to-date in areas in which they do not normally practice and to gain new perspectives on the work of appellate courts in Canada. Anyone conducting case research may find it useful as a way to quickly appreciate the significance of a case, and anyone doing general research into an area of the law could use it as one of many resources to update secondary sources. It is also hoped that anyone interested in the nature of legal change and legal decision-making may find in it data that are useful in their investigations.

Trends in 2008

The subtitle to this feature, "Developments in Canadian Law in 2008", is perhaps misleading. Even when our attention is restricted to appellate courts in Canada there is no single "Canadian Law". Rather, what we have is an aggregation of the work of dozens of judges working in variety of statutory and historical contexts and often responding to the unique submissions of the parties before them. It is therefore not surprising that no single, coherent, and comprehensive picture emerges from a consideration of all the developments in Canadian law in 2008. Nevertheless, it is possible to identify and track a few trends.

In this year's Dunsmuir decision, Binnie J. observed that "[t]here is afoot in the legal profession a desire for clearer guidance than is provided by lists of principles, factors and spectrums." (6) In 2008, judges have arguably responded to this demand. Their reforms have often been sensible, eliminating some of the mystery in which legal disputes can become shrouded and allowing citizens to better understand the nature and source of the rules that govern their conduct and relations. (7) It should not be thought, however, that the creation of bright-line rules always produces desirable results. On the contrary, it can result in formalism and artificiality that work unfairness, it can unduly elevate predictability over the real interests of the parties, (8) or it can lead us to sacrifice more rigourous analysis and theoretical clarity. (9)

A related, but distinct, trend has also emerged in response to the following problem, also identified by Binnie J. in Dunsmuir:
   [Litigants] may find the court's attention focussed not on their
   [case] but on lengthy and arcane discussions ... Every hour of a
   lawyer's preparation and court time devoted to unproductive
   'lawyer's talk' poses a significant cost ... [the law] should be
   pruned of some of its unduly subtle, unproductive, or esoteric
   features. (10)


The response to this problem involves courts changing the rules to reorient the evidence and arguments away from broad legal questions and toward the specific issues in dispute in any particular action. (11)

These two trends will usually cut the same way: bright-line rules will often allow the parties and the court to focus on the issues specific to the case at bar. But this will not always be the case. (12) Where previously established tests do not adequately capture what is at stake, courts are forced to make a choice between a rule that misses the point or an unfocussed debate. In these cases courts will presumably decide which value--predictability or responsiveness--is more important in the circumstances.

II TORT LAW

Duty of Care

i Duty of Care and Foreseeability

Tort law offers a reminder that even a factor as fundamental as duty of care requires frequent judicial action. Mustapha v. Culligan (13) is an example. In that case, the Supreme Court of Canada (SCC) clarified that the proper place to consider the difference between psychological and physical harm was in the remoteness and not the duty of care analysis.

Mustapha was a man of "less than ordinary fortitude" (14), elevating his risk of mental injury. While changing the bottle in his family's water cooler he noticed two dead flies in the replacement supplied by Culligan. This caused him great mental suffering: he could hardly sleep and had nightmares about flies; he was afraid to shower or drink water; his sense of humour disappeared; and he became unable to perform sexually. The trial judge accepted that Mustapha's reaction was "objectively bizarre" but found that the fly materially contributed to these problems and that Culligan had been negligent. The judge awarded damages of more than $300,000. (15)

The Ontario Court of Appeal (OCA) overturned the decision, finding that there was no duty of cared owed by Culligan to Mustapha in respect of psychological injury. The test was "whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm" (16) as a result of the allegedly negligent action, and if so whether there are policy considerations that limit liability. (17) Because it was not reasonably foreseeable that allowing flies to contaminate the water would cause psychiatric harm, the OCA found no duty of care and dismissed the action. (18)

Unlike the Court of Appeal, a unanimous SCC easily found that there was a duty of care. (19) In McLachlin C.J.C.'s view, the full Anns test (20) found no application in the case. The proper approach was first to determine whether an established category of duty was engaged. Here, the long-established duty that a "manufacturer of a consumable good owes...to the ultimate consumer" (21) clearly applied. Unlike the OCA, which treated the distinction between mental and physical injury as essential, the SCC regarded these categories as irrelevant to the duty analysis (and generally "elusive and arguably artificial"). (22) They had no trouble finding a breach of the standard of care and that the breach in fact caused Mustapha's suffering. They held, however, that it was not in law the cause of his suffering because it did not meet the threshold test of reasonable foreseeability: a person of ordinary fortitude could not reasonably be expected to suffer mental injury from seeing flies in his water bottle. Put differently, the kind of injury suffered by Mustapha was too remote to the breach of the duty to attract compensation.

The effect of the SCC's departure from the OCA is to shift much of the action from the duty analysis to the remoteness analysis. This has the potential benefit of focusing the litigation on the actual injury suffered in the particular case rather than requiring the parties to dwell on at-large questions about duties of care. In this respect it is in keeping with the trend toward getting courts out of the business of "law office metaphysics". (23) Still, it is unlikely to avoid the more abstract duty analysis entirely, as duty and remoteness are just two sides of same inquiry and "no form of words can ever be expected to control the issues involved" in the analysis. (24) Perhaps for this reason, even courts applying Mustapha have treated the distinction between mental and physical injury as relevant to the existence of a duty of care at the first stage rather than as a question of remoteness to be taken up later, in the analysis of causation. (25)

It is also worth noting the ease with which the Court in this case dismissed "cultural factors" as inappropriate subjective considerations under the test of reasonable foreseeability of injury to the man of ordinary fortitude. (26) This brevity is perhaps attributable to the Court's hesitance to engage with the trial judge's findings of fact in that case. (27) By sidestepping a deeper discussion of this question, however, the Court has left unclear how determinations as to the reasonable foreseeability of mental injury can be disentangled from cultural considerations. The man on the Clapham omnibus (28) will be distressed by different actions from different people than will the hypothetical person on the hypothetical Bondi tram, (29) or on the Dar es Salaam shuttle. Given the frequent criticism of objective tests, (30) there is reason to believe that this question will come to the fore in a subsequent case.

ii Pure Economic Loss

Relationships giving rise to pure economic loss generally do not create a duty of care. In Design Services (31) the SCC reaffirmed its general refusal to impose a duty not to cause others pure economic loss and refused to create a new exception for subcontractors suffering economic loss at the hands of owners who violate the tender process.

In that case, a subcontractor sued the government for wrongly awarding a contract to a non-compliant bidder from a different design-build team. The claim did not fall within any of the "categories of negligence claims for which a duty of care has been found with respect to pure economic losses" (32) and it was therefore necessary to employ the Arms test. (33) At issue was whether there was sufficient proximity to generate a duty of care. While the expectations created by the government's conduct in the bidding process suggested proximity, the ability of the plaintiffs to "foresee and protect themselves from the economic loss in question [was] an overriding policy reason" (34) not to recognize a prima facie duty of care at the first stage of the Arms test. Moreover, any duty would have been negatived at the second stage by a concern for indeterminate liability to affiliates of the subcontractors, reflecting a more general concern about indeterminate liability in construction contracts. (35)

Another claim for pure economic loss was addressed on summary judgment by the Manitoba Court of Appeal (MBCA) in Brett-Young Seeds, (36) a case that has the potential to establish an expansive reading of the Supreme Court decision in Bird Construction. (37) In Bird Construction, the SCC had recognized that a builder could be liable in tort for the costs of repairing latent defects in a building that are imperiling the life and safety of others. In Brett-Young Seeds, the plaintiffs were purchasers of large seed hoppers and the defendants were the engineer and engineering company that had provided services to the vendors of the hoppers. There was evidence that the hoppers were defectively designed so that if filled past one third of their intended capacity they could collapse, causing injury to workers. The plaintiffs sought recovery for the costs of repairs and general damages for profit lost due to the underutilization of the equipment. The Court of Appeal allowed each of these claims to proceed to trial.

Though only a motion for summary judgment, the case provides a precedent for a more expansive reading of Bird Construction than has been apparent in prior judicial applications of that case. Typically, Bird Construction has been applied to the claims of subsequent purchasers of a building against the builder. By contrast, Brett-Young Seeds involves chattels rather than buildings; the defendant had no contractual link with any purchaser of the chattel; and the defect was discovered before anyone was put a risk. In spite of this, the Court, citing Professor Feldthusen, (38) suggested that Bird Construction would nonetheless apply. (39)

iii Duty of Care to Newly Born Children

In two cases (40) at the OCA, Bovingdon and Paxton, Feldman J.A. undertook this year to settle the law in relation to claims by newly born children for injuries being suffered as a result of actions taken by their mothers' physicians prior to their birth. In both cases, she criticized and rejected the approach adopted by the MBCA in the previous leading case, Lacroix. (41)

In Lacroix, a child was born with developmental disabilities after her mother became pregnant while taking medication regarding which the physician had not advised the mother of the risks; had he done so she would not have become pregnant. The MBCA approached the child's claim by dividing cases involving children born with abnormalities into two categories: (1) but for the wrongful act of another, the child would have been born without the abnormality; and (2) but for the wrongful act of another, the child would not have been born. Justice Twaddle thought children could recover damages in the first kind of case (42) but that the second kind--the so-called "wrongful life" cases of which this was an example--did not state a legally recognizable cause of action in Canada. (43)

This decision was criticized by the OCA in Bovingdon (44), in which a child was born prematurely with abnormalities caused by the fertility drug taken by their mother. Justice Feldman thought the two-category approach did not provide a "coherent theory" that could guide courts in this area--for example, the child's claim in Lacroix could easily be put in the first category on the basis it was the drug prescribed by the doctor that caused the injury, not the failure to warn the mother that caused the birth. (45) Given this instability, she preferred a traditional tort analysis yielding the conclusion that a doctor prescribing a legal fertility drug owed no duty of care to future children. His duty was to warn the mother of the risks so that she could make an informed decision.

The Court in Bovingdon stated no view on the specific situation raised in Lacroix--namely, whether a doctor could owe a duty of care to a future child when prescribing medication that is contraindicated during pregnancy. But in Paxton, (46) the Court was forced to confront this issue when a child born with abnormalities brought an action against the doctor who had prescribed a contraindicated drug to her mother without, it was alleged, taking all reasonable precautions to ensure the mother would not become pregnant.

Justice Feldman determined that there was no established 'duty of care' category covering the relationship between the child and the mother's doctor, and that there were none that could be extended by a simple analogy. She thus undertook the Anns test. (47) While it was reasonably foreseeable that the potential child could be harmed by prescribing the drug, policy considerations led to the conclusion that there was insufficient proximity in the relationship: a duty owed to the child could conflict with the duty owed to the mother, through whom the doctor's relationship to the child is mediated. Moreover, there were residual policy considerations, such as the potential interference with a woman's right to have an abortion, that militated against recognizing a duty in this case.

There is now conflicting appellate authority on a number of points in this area. First, the courts in Manitoba and Ontario have disagreed over the proper approach to claims brought by children born with abnormalities. Second, while she does not say so explicitly, the judgment of Feldman J.A. in Paxton appears to contradict the earlier decision of the British Columbia Court of Appeal (BCCA) in Borsman. (48) Finally, Feldman J.A. leaves open the possibility that (unlike in Manitoba) a wrongful life case could succeed in Ontario in some circumstances. Given the difficult doctrinal questions and important policy issues involved, it is reasonable to expect the SCC to seek an opportunity to clarify the law in these areas.

iv Duty of Care in a Claim for Negligent Investigation

Courts in Canada also had the task in 2008 of considering the scope of the duty of care in a claim of negligent investigation based on the 2007 SCC decision in Hill. (49) In Hill, the Court confirmed the existence of a tort of negligent investigation in Canada and affirmed that the police owe a duty of care to suspects in an investigation. In Correia, (50) the OCA found that in some circumstances a private party could similarly be liable for negligent investigation in certain circumstances. The plaintiff in that case had been fired and then arrested by the police after his employer hired a private firm to conduct an investigation into criminality at its plant. Through a series of spelling errors the plaintiff Joao Correia was targeted instead of Joao Corriero, a man forty years his junior. He brought an action against the police, his employer, the investigation firm, and individuals, many of whom moved for summary judgment.

The OCA began by distinguishing its decision in BMG. (51) BMG established that a company not in the business of conducting investigations was entitled, when passing information to the police based on an incomplete investigation, to expect the police to form an independent opinion. It was therefore not reasonably foreseeable that providing negligently gathered information would result in the employee's arrest. By contrast, in Correia there was a complete investigation conducted with a professional investigation firm and it was known that arrests would be made immediately. Thus there was sufficient foreseeability and proximity under these circumstances to give rise to a duty of care from both the employer and the investigator to the employee under investigation.

v Duties of Care Owed by the Crown

Unique questions sometimes arise in cases considering duties of care owed by the Crown. In its short and unanimous decision in Holland, (52) the SCC confirmed that there could be no action in tort for negligently acting outside the law or in breach of statutory duty. In applying the Anns test, (53) the SCC agreed with the Saskatchewan Court of Appeal (SKCA) that even if proximity could be established, second stage policy concerns--such as the potential chilling effect, exposure to massive liability, and a fundamental shift in who bears the burden of ultra vires government action--would negative the duty. (54) The SCC disagreed, however, as to whether certain claims for negligent implementation of the policy in question should be struck. Relying on the distinction between policy and operational decisions, (55) the Chief Justice held that it was not clear that the claim could not succeed. In her view, when read generously the pleadings on this point were sufficient. (56)

Crown liability for negligence was raised again in Attis, a class action brought by two former plaintiffs in the Dow Corning breast implant litigation. (57) The plaintiffs advanced a class action claim against Health Canada for negligent operation of the regulatory system, which was implemented to meet their duty to protect Canadians from potentially dangerous devices. The OCA was of the view that the claim was likely doomed because it fell into a recognized category, breach of statutory duty, in respect of which Crown immunity had already been acknowledged. (58) In any event, the Court found that the duty owed by Health Canada was to the public as a whole--not to individuals--and that manufacturers were responsible for safety. (59) There were no interactions between Health Canada and the plaintiffs that would give rise to proximity (60) and even if there were, the policy considerations raised in Holland--the chilling effect, indeterminate liability, and the operational/policy distinction--all militated in favour of negativing the duty at the second stage of the Anns test. (61)

Nonetheless, in Adams v. Borrel (62) the New Brunswick Court of Appeal (NBCA) conducted an extensive analysis of Crown liability in negligence, ultimately finding a duty of care in that case. Seed potato farmers brought an action against the government for economic loss arising from alleged negligence in dealing with the outbreak of a potato virus. According to Robertson J.A., the duty owed was analogous to the recognized negligent inspection claims that government agencies had faced with respect to road maintenance or building code inspections. (63) Moreover, the relevant federal legislation specifically included in its purpose the protection of crops and farmers from the spread of pests. (64) There were no policy reasons to limit liability flowing from this prima facie duty of care at the second stage of the Arms test, and the decisions were all operational rather than policy-based. Thus the negligence inquiry could proceed.

Standard of Care

i The Effect of Road Signs

In Baker, (65) the Newfoundland and Labrador Court of Appeal (NLCA) considered a case in which the defendant had been traveling at the posted speed limit in an area in which a moose warning sign was posted. When two moose appeared on the right side of the highway he swerved to the left. A third moose emerged from the ditch into the left lane and there was a collision. The plaintiff, who was in the passenger seat, was seriously injured. The trial judge held that a moose warning sign did not create a requirement for reduced speed in order to meet the standard of care. There was an ambiguous finding either that the standard of care was complied with or that any violation of the standard had not been a cause of the accident.

The NLCA disagreed with both of these conclusions. In their view, "[m]oose warning signs ... are a pointed warning of an enhanced risk that a serious hazard may materialize". (66) They require that speed be reduced to meet the standard of care. This conclusion conflicts with other cases in Newfoundland (67) and elsewhere. (68)

Causation

Developments in the analysis of causation in negligence in 2008 mostly involved attempts by courts to define the contours of the SCC's 2007 decision in Resurfice. (69) That case held that the test for causation is the 'but-for' test, with the plaintiff bearing the usual burden of proof. Only in exceptional circumstances, in which proof of causation is impossible, could a 'material contribution' test be used. (70) The 2008 cases suggest that courts have struggled in their attempts to successfully apply this approach.

In Baker, (71) the trial judge found that the defendant's failure to take the proper care was not the cause of an automobile collision with a moose. On appeal, the NLCA countered that "it would be contrary to common sense not to infer that [the failure to take proper care] was part of the cause of the accident". (72) Moreover, the Court held that the "unpredictable behaviour of a wild animal" (73) is not a novus actus that vitiates causation. (74) The risk posed by a moose is precisely the risk that the moose will behave unpredictably. Appropriate action, such as the reduction of speed, should be taken to guard against that risk.

This reasoning is perhaps surprisingly casual. As the NLCA acknowledged, (75) Resurfice affirms that the appropriate test for causation is, in all but exceptional cases where proof of causation would be impossible, the but-for test, with the burden of proof imposed as usual on the plaintiff. This was not one of those exceptional cases in which proof of causation was impossible. Yet the NLCA made no obvious attempt to determine what would have happened but-for the defendant driver's excessive speed and seemed simply to infer causation from the failure to meet the standard of care.

Supreme Court cases prior to Resurfice had held that a mere addition to the risk of injury is not sufficient to make out causation in negligence. (76) Some commentators have been concerned that Resurfice would overrule these cases, (77) although they also admitted that such cases were already being ignored to at least some degree. (78) The commentators were particularly concerned with cases of negligent delay in medical treatment, in which plaintiffs are often able to show increased probability of injury, but not that the delay probably caused the injury. (79) There are two distinct issues at play. The first concerns when it can be considered impossible to apply the but-for test. The second concerns what needs to be proven if those circumstances are made out.

At least one BCCA case, Bohun, (80) suggests that Resurfice may not be as problematic as these commentators have suggested. A doctor failed to perform a biopsy with the result that his patient's risk of death from breast cancer increased by twenty per cent. (81) The trial judge held that the case came within the "exceptional circumstances" required by Resurfice. (82) Breast cancer causes death by spreading to other parts of the body and current limits on medical knowledge made it impossible to know whether the cancer had spread before or after the failure to diagnose. The trial judge found that the delay in diagnosis due to the failure to perform the proper test was a material contribution to the plaintiff's eventual death, and that causation was therefore established. (83)

The BCCA reversed this finding. (84) Evidence of the different risks of death when the diagnosis should have been made and when it was made established that it was more likely that the spread of the cancer occurred prior to the failure to diagnose than because of the failed diagnosis. According to Kirkpatrick J.A., it was possible for the plaintiff to prove on a balance of probabilities that the breach of the duty caused the death if they were able to show that the greater portion of the risk was attributable to the delay. Having failed to show that, it was not open to the plaintiff to have resort to the material contribution test. (85)

That case mirrors, but does not cite, an OCA decision (86) pre-dating Resurfice in which the Court held that "[i]t is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of 'more likely than not'". (87) That a court applying Resurfice adopted the same position would come as no surprise to the OCA, which has expressed the view that Resurfice has not changed the law. (88) The SCC, however, may choose to revisit the issues raised in Resurfice in light of the fact that there is now appellate authority within British Columbia, between British Columbia and Ontario, and among other courts, (89) that can reasonably be seen as conflicting. (90)

Damages

In a set of short and unanimous reasons in Zastowny, (91) the SCC appeared to further narrow the circumstances in which damages will be awarded for wages lost while in prison. Zastowny was incarcerated for the offence of break and enter. While he was in jail he was sexually assaulted by a prison official. After being released, he became a repeat offender and spent 12 of the next 15 years in prison. The prison official was eventually convicted of the sexual assaults and Zastowny brought an action for damages. The trial judge found that the sexual assaults contributed to Zastowny's recidivism and awarded him damages that included compensation for lost wages while he was in prison. The SCC held that the ex turpi causa doctrine (92) and the judicial policy underlying it should bar this form of compensation: it would 'rebate' the penalties imposed on Zastowny for conduct (his own criminal acts) that he had been found to be responsible for. In H.L., the Court had held that damages in these circumstances could only be "justified by exceptional considerations of a compelling nature and supported by clear and cogent evidence of causation". (93) In Zastowny, causation had been proven, but the Court focused on the grounds on which it would be relevant, holding that, in this context, "the only 'exceptional circumstance' is where an award for wage loss while in prison would not undermine a lawfully imposed criminal sanction, such as where an individual was wrongly convicted". (94)

Specific Torts

i Defamation

A highly anticipated SCC decision, WIC Radio, (95) reviewed the law of defamation and pronounced on the defence of fair comment for the first time since the adoption of the Charter. It replaced the traditional requirement that a comment express the speaker's honest belief with a new requirement that it simply be an opinion capable of being honestly expressed. (96) Justice Binnie refused to attach to that 'objective belief' test a requirement that the person capable of holding the belief be reasonable, or fair, or anything else. (97)

This case illustrates both of the main trends that have been identified in this review. First, the subjective belief requirement put a defendant in the position of first denying that his words implied anything defamatory and then, in order to make out the defence of fair comment, claiming that he nonetheless believed the thing he had not implied. As Binnie J. recognized, this gives the proceeding a "disturbing ... technicality" (98) and, it might be thought, does not actually capture the nature of the dispute between the parties. The objective belief requirement more readily captures the real essence of the dispute, which is whether the comment caused an injury to reputation. Second, the Court's refusal to subject opinions to scrutiny for compliance with "some ill-defined line of 'fairmindedness'" (99) is a clear example of the rejection of abstract tests in favour of bright-line standards.

The case also signals two potential further developments in the law of defamation. First, Binnie J. specifically considers but does not decide whether and how the defence of "responsible journalism" applies in Canada. (100) As he notes, leave to appeal has been granted by the SCC in a case raising this issue. (101) Second, the dissents of LeBel and Rothstein JJ. both suggest that the honest belief requirement, even in its objective form, should be eliminated, (102) and some commentators have supported this view. (103) It might be expected that each of these issues will return to the SCC in the future.

III PROPERTY

Famously, property is a "bundle of rights". What bundles of rights amount to "property" under the Bankruptcy and Insolvency Act (BIA)? (104) Appellate courts this year found that the right to participate in a government program and potentially receive a payment does constitute "property", as does a right to fish. While not stating an answer in general terms, these cases suggest that courts will be open to any claim that an economic interest amounts to property for this limited statutory purpose.

In the first case, Ronald (Bankrupt), (105) Ronald participated in a program designed to supplement the income shortfalls of farmers. Both the trustee and creditors asserted a claim to the last payment from the program, made after his bankruptcy and death. If the payment were not property then neither the trustee nor the creditors would have a claim and it would fall to Ronald's estate. The MBCA found that the money comprising the payment was "property" under the BIA and Personal Property Security Act (PPSA). (106) The fact that Ronald may not have been entitled by right to receive a payment did not prevent the right to participate in the program and receive the payment, should one be made, from being property. Specific statutory provisions against assignment are typically required to prevent an assignment to a trustee in bankruptcy.

In a second case, Saulnier v. Royal Bank of Canada, (107) the SCC took up the same question. The bankrupt in that case claimed that a federal license to fish was not property but a privilege. While Binnie J. thought it "extremely doubtful that a simple license could itself be considered property at common law", (108) he noted that the question here was one of statutory interpretation. (109) He found that in this context the license was property. First, he suggested that the OCA's decision in National Trust Co. v. Bouckhuyt, (110) which held that a tobacco quota was not property for the purposes of the PPSA, should be restricted to its facts. (111) Second, he emphasized that, unlike a quota, a fishing license was analogous to a common law profit a prendre--the right to enter onto the land of another to extract some part of the produce of that land--which he characterized as being "undeniably a property right." (112) For this reason, while denying that there is any "necessary connection between proprietary status and commercial value", (113) he accepted that in the bankruptcy context the license was property.

IV CONTRACTS

Exclusion Clauses

In CNR v. Royal, (114) a decision likely to be of considerable importance to practitioners of business law, the SCC concluded that exclusion clauses in an all-risks insurance policy should be read narrowly. The case evinces different conceptions between the majority and minority of the Court with respect to how to identify the true nature of a dispute and how to allow the parties to determine its resolution.

Canadian National Railway (CNR) negotiated an "all risks" policy with the insurer, Royal and Sun Alliance, to cover the construction of a railway tunnel. The tunnel required the design and construction of the largest earth-balance tunnel boring machine (TBM) ever built. The policy insured CNR against "ALL RISKS of direct physical loss or damage ... to ... [a]ll real and personal property of every kind and quality including but not limited to the [TBM]", but excluded both "the cost of making good ... faulty or improper design" and "inherent vice". (115) The project was delayed and the costs increased as a result of dirt contaminating the TBM's bearings. The trial judge held the insurers liable to CNR. He found that while the machine had failed and the design proved defective, the exclusion clause could not be invoked because the design was not improper and had addressed all the foreseeable risks. (116)

The majority of the OCA allowed the appeal, interpreting the exclusion clause to apply if a design fails to "withstand all foreseeable risks". (117) Justice Binnie, for a 4-3 majority in the SCC, stated that this interpretation "reads the qualifying words 'faulty or improper' out of the exclusion", expanding its scope. (118) In his view, "the insurers did not meet the onus of bringing the loss within the exclusion" by showing faulty or improper design. A design need not be perfect relative to all foreseeable risks. In this case, the "design exhausted the state of the art but left a residual risk". (119)

The lower courts had divided over how to define the scope of exclusion clauses within the framework of an "all risks" policy. Justice Binnie emphasized that the words of the exclusion clause--"faulty or improper"--lent themselves more naturally to a narrower interpretation. This accorded with previous jurisprudence holding that "coverage provisions should be construed broadly and exclusion clauses narrowly," (120) and that courts should consider the "commercial atmosphere in which the insurance was contracted". (121) In this case, it was because the parties realized that the TBM could not be constructed risk-free that they negotiated an all-risks policy.

Dissenting, Rothstein J. emphasized that the case should turn on the interpretation of the contract itself and not any external balancing of interests. Further principles may be applied in ambiguous cases but not when, as in this case, the words of the contract are unambiguous. He would have followed Queensland and adopted the view that "the term 'faulty or improper design' attaches to the thing that was designed, not to the work of the design engineers. Whatever standard their work meets or does not meet, the thing designed either works for its intended purpose or it does not". (122)

There appear to be divergent perspectives on the bench as to the nature of the dispute and whether bright line rules will resolve it. In the view of Binnie J., the attentiveness to the true nature of the dispute requires a consideration of the commercial context. By contrast, Rothstein J. suggests that a bright line rule better captures what is at stake between the parties. The close split in the case suggests that the Court may continue to grapple with this question.

Contracts of Employment

In RBC v. Merrill Lynch, (123) the SCC found that the implied duty of good faith owed by a manager to his or her employees included in some circumstances the duty to retain the services of those employees. A number of employees who were leaving RBC for Merrill Lynch had, without notice, transferred RBC client records to Merrill Lynch. Most of the clients transferred along with the employees.

At trial, Holmes J. found that the employees breached implied terms of their contracts not to compete unfairly with RBC, and to give notice. (124) Further, the manager who coordinated the departure breached his contractual duty to RBC to perform his employment in good faith. RBC was awarded damages against the manager and the employees. The trial judge also awarded punitive damages for the conversion of confidential RBC client records. The BCCA (125) overturned the awards against the employees for unfair competition and against the manager because they were not properly pleaded and in any case were not proximate within the meaning of the rule in Hadley v. Baxendale. (126)

At the SCC, RBC sought to reinstate the trial judge's awards. The majority reinstated the order of the trial judge except for damages against the employees for unfair competition. They found that the BCCA had erred in its proximity analysis with regard to the manager, but absolved the employees of liability for unfair competition because they had no residual duty not to compete after the employment was terminated.

Justice Abella agreed with the majority that the unfair competition award against the employees was given in error. She disagreed, however, that the manager "breached an implied contractual duty of good faith in the manner of his departure". (127) The trial judge had based that finding on the fact that the manager had "failed to retain the employment services of the other [employees]". (128) Given the nature of the industry and the fact that RBC consciously chose not to impose non-compete agreements on its employees, Abella J. did not see how the duty to retain employees could arise from the duty of good faith:
   Injecting such an enhanced content into the implied duty of good
   faith of a non-fiduciary employee has the effect of creating a new
   legal category of "quasi-fiduciary" employee, a subset the law has
   yet to recognize. Nor, it seems to me, should it do so now. (129)


In another case, Evans v. Teamsters, (130) the SCC found that the distinction between wrongful and constructive dismissal was artificial and ought to be abandoned and that the duty to mitigate damages in the employment context should be evaluated on an objective standard. Another dissent by Abella J. points out the potential for disagreement regarding the appropriate balance among competing interests in employment cases.

Evans was a Teamsters employee of 23 years. The incoming Teamsters president dismissed Evans. Evans' counsel submitted that he was owed 24 months notice, so the union asked him to return to work for the balance of the notice period. Evans would only do so if the union withdrew its initial termination letter. The union refused and terminated him, claiming that his failure to mitigate constituted just cause. Evans brought an action for wrongful dismissal. The trial judge found that it was not reasonable to expect Evans to return to work and that a failure to mitigate had not been proved. (131) The Yukon Court of Appeal (YKCA) found that Evans acted unreasonably in refusing to return to work and mitigate his damages. (132)

The SCC found that the YKCA had correctly held that there was no principled basis for differentiating the duty to mitigate in cases of wrongful dismissal from the duty to mitigate in cases of constructive dismissal. (133) To hold otherwise would be artificial. An objective standard--informed by the consideration of situational factors--should be used to evaluate whether a reasonable person would have accepted the employer's offer. In this case, Evans' request that the termination letter be withdrawn was unreasonable. The trial judge had erred when he "applied a purely subjective test". (134) The correct test was whether "a reasonable person would have viewed the union's [job offer] as a bona fide employment opportunity". (135) In this case, there was no "atmosphere of hostility, embarrassment or humiliation", (136) nor any other reason why Evans would have been prevented from resuming his employment for the remainder of the notice period.

Dissenting, Abella J. asserted that the majority decision allowed the union unilaterally to transform the wrongful dismissal entitling Evans to notice into a lawful one without notice. The "distinction between constructive and wrongful dismissal is an important one" (137) and will vary the content of the duty to mitigate. In assessing the duty to mitigate, "both objective and subjective factors are relevant in evaluating what a reasonable person in the position of the employee would do". (138)

Tendering

Two appellate cases decided in 2008--Northway Aviation (139) and Borcherdt Concrete (140)--limited the application of the law governing tenders in situations that do not resemble a typical competitive bidding process. In Northway Aviation, the MBCA held that tendering rules do not apply simply because a transaction has been labelled a tender; rather, they require that the terms and conditions of the transaction actually create a formal tender. The plaintiffs in the case had leased an airport hangar from the defendants. When the defendants indicated that they were "amenable" to purchase offers, the plaintiff submitted one with conditions. The defendants accepted a lower offer without conditions and asked the plaintiffs to vacate the hangar; the plaintiffs successfully applied for an injunction preventing the sale on the basis that the tendering process was violated. (141) The defendants appealed the injunction.

Monnin J.A. allowed the appeal, holding that the tendering cases (142) did not apply. The motions judge had either misdirected himself on the evidence or was clearly wrong because "[w]hether the tendering process creates a preliminary contract is dependant upon the terms and conditions of the tender call". (143) Simply calling a transaction a tender--as the plaintiffs did in this case--is insufficient to create a preliminary contract.

In Borcherdt Concrete, the Nova Scotia Court of Appeal (NSCA) refused to grant expectation damages to a bidder who lost a job after the town of Port Hawkesbury engaged in bid-shopping when it received only one tender for the manufacture, delivery, and installation of pre-cast concrete bleachers. The associated costs estimate was 59 per cent higher than the town's budget for the project, In response, the municipality solicited and accepted another bid. The trial judge found that this was bid shopping and awarded expectation damages for loss of profit. The NSCA upheld the finding of liability but reduced the damages. There was a breach of the preliminary contract but the onus was on the plaintiff to prove the connection between that breach and the loss of the final contract. (144) Expectation damages were inappropriate because the bid exceeded the town's estimate by 59 per cent and the trial judge was not satisfied that the breach of the first contract led to the loss of the second.

Restraint of Trade

The decision of the MBCA in Dumont (145) considered the application of 'restraint of trade' cases to agreements which had the effect of limiting opportunities for political participation. The 'restraint of trade' doctrine demands that any agreement which limits one of the parties' future freedom to act in relation to their business, trade or profession, must be 'reasonable', both in terms of the parties, and in terms of the public interest. (146)

Dumont was appointed by the Metis National Council (MNC) to the ceremonial position of governor of the Metis Nation in 1999. After he campaigned unsuccessfully for the political position of national president of the MNC, the Council passed terms of reference stating that governors were ineligible to hold political office in the MNC, or any of its "Governing Member" organizations, for two years following their term. Dumont agreed to these terms of reference. Later, shortly after resigning, he ran unsuccessfully for the position of president of the Manitoba Metis Federation, a "Governing Member" of the MNC. MNC sued for breach of contract. The trial judge held that this was a covenant in restraint of trade that was reasonable as between the parties but against the public interest and therefore unenforceable. (147)

The MBCA disagreed with both of these conclusions. The MNC is "not a business in the sense found in most restraint of trade cases". (148) Though Dumont was restricted by the contract in the practice of his profession (politics), the MNC had a legitimate interest in protecting the credibility of the governorship. Even if the contract was a restraint of trade, it was not against public policy. Justice Steel denied that restrictions on running for office in voluntary associations (149) were parallel to restrictions on participation in the larger political process of the country (150)--only the latter were unconstitutional or against public policy. He awarded nominal damages to the MNC.

V LABOUR

The Right to Bargain Collectively

In Fraser v. Ontario, (151) the OCA found that the Agricultural Employees Protection Act (AEPA) (152) did not provide an adequate collective bargaining scheme for agricultural workers, and thus constituted a violation of s. 2(d) of the Charter (the freedom of association). The AEPA was passed by the Ontario government in response to the 2001 Dunmore (153) decision, in which the SCC found that the exclusion of agricultural workers from Ontario's Labour Relations Act (LRA) (154) violated their freedom to organize, thus violating their constitutional freedom of association.

The AEPA's stated purpose was "to protect the rights of agricultural employees" in a manner that reflected "the unique characteristics of agriculture". (155) The particular 'rights' guaranteed were tailored to meet the SCC's expressed requirements in Dunmore with respect to the freedom to organize. (156) Between Dunmore and Fraser, however, the SCC handed down another decision that significantly expanded the scope of 2(d) labour rights protection: Health Services. (157) In Fraser, the OCA was challenged to assess the AEPA in light of the changes that Health Services had made to the "legal landscape" surrounding collective bargaining. (158) Prior to Health Services, the leading cases on the constitutional requirements vis-a-vis collective bargaining were known collectively as the 'labour trilogy': Reference re Public Service Employee Relations Act (Alta.), (159) PSAC v. Canada, (160) and RWDSU v. Saskatchewan. (161) The trilogy was understood to preclude any reliance on s. 2(d) of the Charter to ground a constitutional right to bargain collectively. In Health Services, this holding was reversed, and the SCC recognized a Charter right to bargain collectively, although the Court did little to define the scope and nature of that right.

The AEPA, following the explicit requirements of Dunmore, included the right of employees to form or join an employees' association; the right to participate in the lawful activities of that association; the right to assemble; the right to make representations respecting terms and conditions of employment to employers through employees' associations; and the right to protection against interference, coercion and discrimination in the exercise of these rights. (162) The AEPA did not, however, oblige employers to bargain with employees' associations; did not include mechanisms to resolve bargaining impasses or disputes between employers and employees regarding the interpretation or administration of collective agreements; and did not preclude the formation of multiple employees' associations within a single workplace. (163)

Chief Justice Winkler, writing for a unanimous panel of the OCA, noted the dramatic shift in the jurisprudence that was signaled in Health Services. While the AEPA met the previous constitutional requirements, it still "substantially impairs the capacity of agricultural workers to meaningfully exercise their right to bargain collectively" (164) and therefore violated s. 2(d) of the Charter. In particular, Winkler C.J.O. emphasized that, "[w]ithout a statutory duty to bargain in good faith, there can be no meaningful collective bargaining process", concluding that:
   At a minimum, the following statutory protections are required to
   enable agricultural workers to exercise their right to bargain
   collectively in a meaningful way: (1) a statutory duty to bargain
   in good faith; (2) statutory recognition of the principles of
   exclusivity and majoritarianism; and (3) a statutory mechanism for
   resolving bargaining impasses and disputes regarding the
   interpretation or administration of collective agreements. (165)


It is, however, unclear whether or not Health Services in fact demands these 'statutory protections', particularly since Health Services specifies that, "the right is to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method." (166) Regardless, this case signals that there is still work to be done to refine the rights recognized in Health Services.

Remedies Under a Collective Agreement

i The Union's Remedies Against Employees

The Health Services decision, discussed above, was also considered in Birch, (167) a case in which some union members challenged a fine imposed on them by their union after they crossed the picket line during a legal strike. The application judge held that the penalty clause in the constitution was unconscionable and unenforceable. Justice Armstrong, for the majority of the OCA, found no error in the judge's unconscionability analysis, in which he first made a finding of inequality of bargaining power and then a finding that the terms of the agreement have a high degree of unfairness. (168)

Dissenting, Juriansz J.A. would have held that the common law rule against penalty clauses does not apply to a union constitution (169) and that Fraser (discussed above) signaled an "evolution of the law towards an increasing appreciation of the value of collective bargaining". (170) In his view the fine was not unconscionable. His strongest disagreement with the majority, however, was with respect to the damage flowing from the alleged breach, which in his view was "real and significant". (171) The majority, by contrast, found not even a "scintilla of evidence" of damage. (172)

ii An Employee's Remedies Against Employers

In Nova Scotia v. Halifax, (173) the NSCA held that a collective agreement arbitration process did not oust the jurisdiction of the Nova Scotia Human Rights Commission (NSHRC). An employee of the Halifax Regional Municipality (HRM) alleged at the NSHRC that he suffered from racially-motivated discriminatory treatment by his employer. HRM refused to provide relevant documents to the NSHRC on the grounds that it did not have jurisdiction and that instead the grievance and arbitration provisions of the collective agreement governed. The NSHRC brought an application to compel the municipality to produce the documentation.

Justice Saunders undertook a two-step analysis: first, how does the legislation treat the arbitrator's jurisdiction; second, does the nature of the dispute combined with the legislation suggest arbitrator exclusivity? (174) Here, the collective agreement provided a process for addressing allegations of discrimination but did not prohibit recourse to NSHRC. The essential character of this dispute did not relate to the collective agreement but rather to broader issue of racial discrimination. (175) The NSHRC therefore had concurrent jurisdiction and was entitled to information from HRM. Had the legislature intended to "deny access for HRM unionized employees to the processes, resources and remedies offered by the [NSHRC]", they would have carved out a clear and explicit exception. (176)

The SCC has already been variously praised (177) and criticized (178) for shifting the momentum of its employment law decisions back towards employers in HydroQuebec. (179) In that case the SCC considered an employer's decision to dismiss an employee after she missed 960 days of work in just over seven years due to mental and physical illness. (180) An arbitrator had dismissed the grievance, finding that the proposed accommodation--the provision of periodic and recurring new work environments, new supervisors, and new co-workers--would constitute undue hardship. This decision was upheld in the Superior Court but overturned by the Quebec Court of Appeal (QCA). The issue at the SCC was whether it was impossible to accommodate similar employees without subjecting the employer to undue hardship. (181)

The SCC held that the QCA had placed too great an emphasis on the possibility of accommodation and had ignored the "undue hardship" component of the test. The employer was not required to consider all reasonable accommodations but rather to "be flexible in applying its standard if such flexibility enable[d] the employee in question to work and d[id] not cause the employer undue hardship". (182) There was no duty to fundamentally change the employment contract or working conditions, or to find that the employee would be entirely unable to work. (183) This decision arguably gives wider berth to employers to formulate occupational requirements.

iii Rules Governing Arbitrators

In CUPE v. Abitibi the NLCA was confronted with the fact that, even after "decades of labour arbitrations", it was still unclear how to deal with allegations of bias against a member of a consensual arbitration board appointed under a collective agreement. (184) The question on appeal was who should first hear allegations of bias: the member, the board, or a court. After reviewing a range of related authorities, Roberts J.A. concluded that the allegation "should be dealt with by the person against whom [it] is made". (185) This course best promoted the efficient resolution of disputes and respect for administrative tribunals, while retaining recourse to the courts on judicial review when necessary. Indeed, Roberts J.A. found these reasons so compelling that, while refusing to foreclose the possibility, he suggested the procedure should be the same in the case of all administrative tribunals, and not just labour arbitration boards. (186)

Contracts of Employment

In a case often cited in Connection with Hydro-Quebec, (187) in Honda v. Keays (188) the SCC considered the termination of an employee who had been frequently absent from work due to his chronic fatigue syndrome. The Court adopted an approach to damages in a non-unionized employment context based on the rule in Hadley v. Baxendale, that damages are recoverable for a contractual breach if the damages are "such as may fairly and reasonably be considered either arising naturally ... from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties". (189) The Court in Keays held that punitive damages could only be awarded in this context on the basis of an independent actionable wrong, which did not include discrimination.

Keays' employer was concerned about whether he was providing notes to explain his absence from a doctor who had independently assessed his disability, as required by company policy. They therefore insisted that he undergo consultation with a doctor they named. When Keays refused, his employment was terminated and he sued for wrongful dismissal. The trial judge awarded damages on the basis of a finding that the reasonable notice period was 15 months. The trial judge awarded further damages for the manner of dismissal, following the structure established in Wallace, (190) whereby unfair dealing or bad faith conduct by an employer in the manner of dismissal was compensated for by extending the 'notice period' for which damages are awarded. In Keays, the trial judge found that compensation for the manner of dismissal should be added in the amount of 9 months' notice. Finally, the trial judge found that there should also be $500,000 in punitive damages and costs of 25 per cent of gross damages. The OCA reduced the punitive damages and costs premium. The SCC allowed an appeal in part.

The SCC upheld the notice period of 15 months. The central issues in the judgment were the awards of Wallace damages and punitive damages. With respect to the Wallace damages, the majority found that palpable and overriding errors of the trial judge undermined the factual basis for the award; they would have allowed the appeal on that ground alone. Nevertheless, Bastarache J., writing for the majority, was of the view that this was an appropriate case in which to "reconsider the Wallace approach and make some adjustments". (191)

Referring to the Court's reaffirmation in Fidler (192) of the general application of the rule in Hadley v. Baxendale to compensatory damages for breach of contract, Bastarache J. rejected both the distinction between damages arising from an independent actionable wrong and other damages related to the manner of dismissal, as well as the method of formulating such damages in terms of an extension of the notice period. (193) The proper focus is instead on the expectations of the parties when the employment contract was formed--conduct that frustrates those expectations, such as attacking the employee's reputation, misrepresenting the basis for the termination, or attempting by the termination to deprive the employee of a right, can give rise to damages calibrated to compensate the employee for the frustrated expectation and not in terms of some arbitrary increase in the notice period. (194)

Justice Bastarache also contrasted the compensatory damages for the manner of dismissal with punitive damages, which are payable only in respect of "advertent wrongful acts that are so malicious and outrageous" as to warrant independent punishment. (195) He affirmed that an independent actionable wrong is required to generate punitive damages and that discrimination, at least in terms simply of a violation of a human rights code, does not meet this standard; the codes themselves provide a comprehensive scheme for dealing with such conduct. (196) In any case, he rejected the factual findings that would have justified an award of punitive damages even on the law as the trial judge understood it.

Justice Bastarache's comments on human rights remedies are supported by the Court's finding in Bbadauria (197) that plaintiffs are precluded from claiming common law remedies for discrimination where a human rights code offers a comprehensive remedial scheme. All of the judges in Keays case agreed that this case was not an appropriate case in which to reconsider Bbadauria. Nonetheless, it is notable that LeBel J., writing for Fish J. and himself, questioned the force of that precedent, suggesting that the door should be left open to common law actions based on discriminatory conduct outlined in the human rights codes. (198) It is possible that the SCC will choose to revisit its decision in Bbadauria and reconsider the position that discrimination cannot constitute a tort actionable at common law.

VI BUSINESS LAW

The Stakeholders Debate

i Derivative Actions

A corporation has a separate legal existence from its shareholders, employees, and officers. A derivative action allows a security-holder, director, or other proper person to act in the name of the corporation where the directors will not prosecute, defend, intervene in, or discontinue an action that is in the corporation's interest to pursue. Leave is invariably required to bring a derivative action. (199) Any application for leave to bring a derivative action will engage a key question in the so-called stakeholders debate: in whose interest does a corporation properly operate?

The litigation in Markland 1 and 2 (200) demonstrates the complexity of this debate, and also clarifies that where an action brought without leave is later found to be derivative, leave can be granted retroactively. Markland was involved in the business of trout farming. The company obtained its feed from Maple Leaf pursuant to a credit arrangement. After some time, Markland alleged that Maple Leaf was supplying deficient feed. Markland ceased to make its payments under the credit arrangement and commenced an action against Maple Leaf in tort and contract. Because Markland had ceased to make its payments, it allegedly went into default under the credit arrangement and Maple Leaf appointed a Receiver and Manager (Ernst & Young Inc.). The Receiver and Manager instructed Markland's solicitor to cease his representation of Markland in the action against Maple Leaf. The solicitor refused, answering instead to Markland's directors, who instructed him to continue the action on behalf of the company. In Markland 1, Maple Leaf moved to have Markland's claim struck on the basis that the company's directors lacked the capacity to carry the action forward without the consent of the Receiver and Manager. Maple Leaf was unsuccessful. The NLCA held that the directors retained a residual power to direct actions against a secured creditor that had appointed a receiver.

In Markland 2, the majority shareholder of Markland (Nord Invest) sued Maple Leaf for the damage done to Markland and its investment, and sued the Receiver and Manager for its failure to maintain the action against Maple Leaf. Again, Maple Leaf and the Receiver and Manager moved to strike the claim, this time on the grounds that either it disclosed no reasonable cause of action (201) or that it was a derivative action for which leave had not been granted. The trial judge identified the claim as a derivative action and granted leave to Nord Invest to bring it retroactively. With respect to Nord Invest's action against Maple Leaf, the NLCA reversed the trial judge on the basis that a derivative action was available only where the directors themselves had not brought, diligently prosecuted or defended or discontinued an action, (202) but in this case the directors had been allowed to do just that in Markland 1.

The remaining question was whether the action was valid as against the Receiver and Manager (who was not named in the suit brought by the directors in Markland 1). In order to proceed with this derivative action, Nord Invest would need to be granted leave retroactively. In a previous case, (203) Barry J. (then in the Superior Court) had found that because no action could proceed unless leave had been granted, a statement of claim originating before leave had been granted must be struck. The NLCA had adopted this position. (204) Here, Barry J.A., now sitting on the Court of Appeal himself, relied on an Ontario case (205) to find that leave could indeed be granted retroactively. Nonetheless, in the circumstances of this case, policy considerations weighed against granting leave retroactively. In any event, the case appears to resolve some confusion as to whether leave will be granted to move an action forward where that action was not originally conceived of as, but was then found to be, derivative.

ii The Oppression Remedy

The development of the oppression remedy was, like the rest of corporate law, largely dominated in 2008 by the decisions of the SCC and QCA in BCE Inc. v. 1976 Debentureholders, (206) in which the SCC revisited the stakeholders debate and ultimately held that BCE's bondholders had no legal basis on which to object to the leveraged buyout of BCE by a consortium led by the Ontario Teachers Pension Plan. The bondholders had sought to block the plan of arrangement under the Canada Business Corporations Act, (207) relying on s. 192 (court approval of arrangements) and s. 241 (the oppression remedy). (208) The trial judge dismissed both of these claims.

The QCA, reversing the trial judge, held that BCE had not shown that the plan was fair and reasonahle because they had not shown that their directors had considered the interests of the bondholders, which were wider than their contractual rights, "with a view to examining whether it was possible to alleviate or attenuate all or some of the adverse effects" on them. (209) The QCA specifically rejected the application of any so-called Revlon duties treating the maximization of shareholder value as an overriding concern. (210) BCE had not presented evidence to show that the plan was fair and reasonable in spite of its detrimental effect on the interests of bondholders and therefore the QCA would not have approved it.

They refused to consider the oppression claim on the grounds that a plan that was fair and reasonable would not be oppressive and a plan that was not fair and reasonable could not lead to oppression because it would not go forward. (211)

The Supreme Court granted leave to appeal from this decision on a "dramatically expedited" basis. (212) The QCA had issued its decision on May 21st, 2008. The SCC heard the case on June 17th, 2008, restored the trial judge's ruling on June 20th, 2008, and released reasons for their decision on December 19th, 2008.

The Supreme Court began by affirming its statement in Peoples (213) that the fiduciary duty of directors is always owed to the corporation, not to particular classes of stakeholders, and that it is a "broad, contextual concept". (214) The business judgment rule requires deference to the directors as they take into account these various interests in making a reasonable decision in the best interests of the corporation. (215) Unlike the QCA, the Supreme Court held that ss. 192 and 241 require different inquiries. (216)

Considering the s. 241 oppression remedy, the Court identified two lines of cases. One line of cases has taken a strict categorical approach, attempting to discern the particular content of "oppression", "unfair prejudice", and "unfair disregard". The other line of cases has focused on broad, underlying principles. The Court combined these approaches into a two part test. First the court should ask whether the underlying principle of protecting reasonable expectations has been engaged; i.e., does the evidence support the assertion of a reasonable expectation by the claimant? Second, the court should ask whether that expectation has been violated by conduct falling within the meaning of the terms "oppression", "unfair prejudice" or "unfair disregard". The oppression remedy is equitable and the inquiry is fact-specific. The primary reasonable expectation is to be treated fairly by directors pursuing the best interests of the corporation. In the result, the SCC agreed with the trial judge that there was no reasonable expectation that the investment grade rating of the bonds would be maintained; instead, they accepted a new argument from the bondholders that their economic interests needed to be considered by the board. Contrary to the QCA, however, the SCC was of the view that BCE had shown that they considered the bondholders' interests. The directors had reviewed letters sent by the bondholders and one of the directors had met with them. The SCC would therefore have dismissed the oppression claim.

Considering s. 192, which requires a court to approve of certain changes to corporate structure as being fair and reasonable, the Court declined to apply the "business judgment test" (i.e. whether an intelligent and honest business person, as a member of the voting class concerned and acting in his or her own interest, would reasonably approve the arrangement). (217) Instead, the Court formulated a new test: First, does the arrangement have a valid business purpose? Second, does it resolve the concerns of those whose rights are arranged in a fair and balanced way? The Court concluded that, in this case, there was a valid business purpose and that the interests of the bondholders had been taken into account.

We note that the Court invokes "the best interests of the corporation viewed as a good corporate citizen" in its discussion of the oppression remedy. (218) Some have suggested that the appearance of this phrase for the first time may signal a requirement from courts that directors take a broader range of interests into account than were previously considered relevant. (219) How this dictate will be applied in future cases remains to be seen.

In Malata Group, the OCA considered the relationship between oppression claims and derivative actions under the Ontario Business Corporations Act, (220) and the application of the rule in Foss v. Harbottle (221) that a shareholder has no personal cause of action for harm done to the corporation. (222) The plaintiff was a shareholder as well as creditor of the company, a closely-held corporation; the defendant was a shareholder and director who had allegedly misappropriated funds from the company. The plaintiff brought an oppression remedy against the defendant, seeking to have the funds returned to the company. The defendant brought a motion to strike the plaintiff's statement of claim on the basis that it amounted to a derivative action for which leave was required (and had not been obtained) under the Act.

The Court began by stating that there is not "a bright-line distinction" between the claims under the Act. (223) As a result, "a court cannot determine which is the appropriate avenue for a claim to proceed through the simple application of a rule such as the rule in Foss v. Harbottle. Instead, a court must examine the relevant statutory text and the facts of the claim at issue." (224) In this case, the claim could have proceeded via either avenue, and was allowed to proceed under the oppression provisions of the Act. The oppression remedy was considered to be appropriate in this case; in particular, because of the power of the court to issue, as a remedy for oppression, "an order varying or setting aside a transaction or contract to which a corporation is a party and compensating the corporation". (225) The Court also emphasized the fact that the company was closely held, reducing the risk of frivolous lawsuits and undermining the rationale for requiring leave to bring a derivative action. (226) Nevertheless, the Court made clear that there are differences between the derivative action and the oppression remedy: for example, the derivative action arises simply from a breach of the corporation's legal rights, whereas an action in oppression is available only for conduct having an oppressive or prejudicial effect on the proposed plaintiff. (227)

iii Corporate Existence and the Liability of Directors

Aujla (228) concerned the liability of directors for monies owed under the Excise Tax Act (ETA). (229) The ETA makes directors liable for certain monies not paid by their corporation for up to two years after they leave office. The taxpayers in this case had been directors of a corporation owing money under the ETA. The company had been dissolved for failing to file the necessary reports. Four years later, the Minister undertook to collect the money and had the company for that purpose restored to the register and "deemed to have continued in existence as if its name had never been struck off the register and dissolved", all without prejudice to the rights any parties had in the meantime acquired. (230)

The questions, to be decided under the British Columbia Company Act, (231) were (1) whether an involuntary dissolution had the effect of ending the taxpayers' directorships, (2) whether the order restoring the company also restored the directorships as if they had not ended, or alternatively (3) whether the order had the effect of restoring the directorships going forward so that the taxpayers again became liable for debts incurred during their first stints as directors.

The majority of the BCCA easily held that even an involuntary dissolution ended the directorships. For the majority, the more difficult question was whether the order restoring the company to the register reconstituted the directorships. Based on the language of the statute, Ryer J.A. held that an order restoring a company operated only prospectively, unless the order contained, as this one did, language specifically indicating its retroactive effect. In any event, the order did not reconstitute the directorships unless they were specifically mentioned in it, which was not the case here. The taxpayers were therefore not liable for the company's unpaid excise taxes. (232)

In dissent, Blais J.A. thought the taxpayers' status as directors was in "limbo"; to take advantage of the limitations act they would need to prove that they ceased to be directors, which they could not do. The dissent accused the majority position of creating "vast conceptual difficulties" (233) and pointed out the inconsistency in holding that the dissolution of the company terminated the directorships but that the undoing of the dissolution did not restore them. (234) Justice Blais also noted the difficulty in restoring a company to the register which was, without directors or assets, nothing more than a name; this was directly contrary to the Act's requirement that every company have at least one director. (235) Justice Blais further argued that the requirement that the order be presumed to be "without prejudice" to rights acquired since the dissolution was met. Since the Aujla brothers were deemed never to have ceased to be directors, they did not gain any 'rights' in the period following the dissolution, and any surviving liability could not constitute prejudice to rights accrued after the dissolution. (236)

Finally, Blais J.A. addressed a public policy argument that the majority had appeared to endorse--that the taxpayers, having ordered their affairs in the belief that they were not liable for these taxes, should not now be held liable. In Blais J.A.'s view, this amounted to rewarding them for negligence in maintaining the company on the register, as they could not have voluntarily dissolved the company without guaranteeing the payment of the taxes owing. (237) The taxpayers had been free to resign as directors when the risk of dissolution became known but they chose not to. They therefore should not be allowed to rely on the limitation. (238)

Mergers

i Competition Law

In Labatt, (239) the FCA held that the Commissioner of Competition could not obtain an order preventing a transaction from closing after the statutory waiting period unless she could prove that any harm to competition that might result could not be remedied in the absence of the order. The Competition Act (240) gives the Commissioner the power to apply for an interim order enjoining merging parties from doing anything directed at completing a merger while more time is taken to finish an inquiry. This provision had not been tested in court since being amended in response to a previous decision denying the Commissioner's request for an order. (241) At issue in Labatt was whether the Commissioner needed to show that any anticipated harm to competition in the marketplace could not effectively be remedied if the transaction closed, or whether she needed only to show that an inquiry was being conducted in good faith.

The FCA upheld the decision of Phelan J., sitting as a member of the Competition Tribunal, to deny the Commissioner's request for an order. The Court agreed that the Commissioner had not shown, as required, that there would be no effective remedy for any competitive problems that might be caused by the merger. The case is significant because it threatens to create, in the words of the successful counsel on the case, "a new timing paradigm for merger review". (242) In the past, parties had generally deferred to Competition Bureau policy establishing lengthy review periods. (243) The decision means that it may now often be possible to close a transaction that is the subject of an inquiry as soon as the initial 42-day statutory waiting period expires.

ii Pension Law

In Burke, the OCA resolved a long-standing pension dispute between The Bay and the former employees of its former Northern Stores Division, which it had sold in 1987. (244) The Bay had agreed to transfer to the pension plan set up by the successor company an amount equal to the existing pension liabilities for each employee, allowing for the employees to continue receiving their defined benefits. The employees sought an order requiring The Bay to transfer, as well, a pro rata share of the actuarial surplus and the amounts used for contribution holidays and plan expenses during the time the pension was in actuarial surplus.

The Court held that, based on the plan documentation, the actuarial surplus in the defined benefits pension plan did not need to be transferred. The OCA was of the view that the only way to demonstrate that the surplus should be transferred to the new plan was to show an independent entitlement to the surplus on behalf of the employees at the time of the sale. The Court relied on Schmidt (245) for the proposition that this entitlement was to be determined on the basis of a close reading of the plan documentation. Even if all the plan members had believed that the surplus would be used to improve benefits, which was unlikely, that would not have been sufficient to establish a legal right to the surplus. (246) In this case, the documentation made clear that the surplus belonged to The Bay.

The Court also dealt with the concern that maintaining the whole surplus in the original plan led to an inequality of treatment among the original beneficiaries of that plan. Simply put, this was not necessarily the case, as neither The Bay nor the new owner of the Northern Stores Division were required to use the surplus to improve plan benefits. Finally, the Court ruled that the plan in this case allowed for expenses to be paid from the surplus and that this was not changed by the company's original practice of paying expenses themselves. (247)

Arbitration

In Hayes, (248) the BCCA sought to clarify the role and scope of judicial review of arbitral awards under the B.C. Commercial Arbitration Act, (249) in relation to the construction of a contract. (The Act provides that arbitral awards are final and binding on all parties, but provides a right to appeal to the court on any question of law arising out of the award, either by agreement of the parties or with leave of the court; the Act contains a limited privative clause. (250)) There was previously a split in appellate authority in BC on this point. Some cases, dealing with arbitration, had held that the construction of a contract was a question of law. (251) Other cases, outside of the arbitration context, had indicated that the construction of a contract was a question of mixed fact and law. (252) While in Hayes Chiasson J.A. attempted to distinguish, rather than overrule, the arbitration cases, there is reason to think that these will no longer be applied. Justice Chiasson held that, "[i]nsofar as the task narrowly is to determine the meaning of the words in the contract the matter may be a question of law ... [but interpreting] the language of the contract in the context of the factual matrix is a question of mixed fact and law". (253) It is suggested that there will be few arbitral decisions involving narrow questions considered without reference to a factual matrix: for practical purposes, construction will always be a question of mixed fact and law. Indeed, the BC Supreme Court has already cited Hayes for the proposition that the interpretation of an agreement on an appeal from arbitration is "at best" a question of mixed fact and law, rejecting outright the contrary approach. (254) This brings the law in British Columbia into line with the law of Ontario on this point. (255)

VII FAMILY LAW

Spouses

i Division of Assets on Divorce

In Stein v. Stein, (256) the SCC held that contingent liability could be included in the division of property after a divorce under the BC Family Relations Act. (257) The trial judge had found that both spouses had benefited from tax shelters, which represented a contingent liability that could not be valued at the time of trial. The issue was whether the Act allowed an order to be made dividing this contingent liability between the spouses.

The SCC agreed with the trial judge that it could. In the view of Bastarache J., fairness requires that the complete financial situation of the parties, including both assets and liabilities, be taken into account. (258) Just as this includes inchoate or contingent assets, so should it include inchoate or contingent liabilities. (259) Given that each spouse was expected in this case to be financially stable and self-sufficient, no other factor displaced that requirement of fairness. There was nothing in the Act that precluded this result. (260)

In dissent, Abella J. suggested that this result ran counter to the trend in the jurisprudence refusing to impose contingent liabilities on the financially vulnerable spouse. In her view there were "dramatic differences in the financial circumstances, sophistication, and experience of the spouses" that made the division of the contingent liability "manifestly unfair to the wife". (261) In particular, the division did not properly account for the economic sacrifices made by the wife, the interference with financial planning and security associated with carrying a potentially large contingent liability, and the disparate impact on living standards that would result if and when a large liability became due.

The reception of this decision in lower courts has not so far been enthusiastic. For example, the BCCA suggests that the SCC's deision "presents some conceptual challenges in relation to the finality of an order for reapportionment". (262) Other courts have relied on it for the proposition that debts must generally be evenly divided (263)--this is in tension with the statement by Bastarache J. that the Act "does not require that debts be divided equally between separating or divorcing spouses, and the presumptive position is that only assets will be divided on an equal basis". (264) For these reasons, the SCC may again take up this issue in order to resolve the confusion.

ii Federal Spousal Support Guidelines

A number of courts this year considered the weight and analytical function of the advisory federal Guidelines (265) on spousal support. In Fisher, (266) the OCA conducted a lengthy review of judicial treatment of the Guidelines, emphasizing that they are "only advisory"; (267) that they do not apply in atypical cases, such as where the incomes of the parties are unusually high or low; (268) and that they cannot be applied mechanically or to override judicial authorities. (269) At least for now, the Court would continue to first generate a result independent of the Guidelines framework and would then check that result against them. Nevertheless, the Court expressed "optimis[m] that, with experience, the Guidelines will become accepted as a reliable tool for resolution of many cases". (270) In any event, they held that when a trial judge departs from the Guidelines where they are relied on by a party that judge ought to give reasons for doing so. (271)

The Guidelines were still in draft when the OCA released Fisher; they had been finalized when the BCCA released Chutter in December. (272) While the Court repeated the caution that the Guidelines are advisory in nature, they appear to have gone further in giving them effect. Indeed their judgment could be read to suggest that they will intervene if an award falls outside the range dictated by the Guidelines unless there are "exceptional circumstances" (273) and "it is clear that the trial judge has considered the Guidelines, but chose not to apply them for reasons specific to the facts of the case". (274) By contrast, the Alberta Court of Appeal (ABCA) still appears hesitant to give them significant force. (275)

iii Imputation of Income

It is well established that in calculating support payments, income can be imputed to those who are unreasonably under-employed. (276) The Guidelines (277) give a nonexclusive list of circumstances in which this is appropriate. But what happens when a former spouse is "being paid a salary by a company his family owns and controls, and his income drop[s] significantly at the time of separation", as was the case in D.L.M.? (278) This was not one of the circumstances listed in the Guidelines and it was not a case of under-employment, as there was evidence that the payments from the family company had always been higher than appropriate. Nevertheless, the Court held that it gave rise "to a rebuttable presumption that the [spouse]'s salary [wa]s being manipulated" and in the absence of a reasonable explanation, justified the imputation of income. (279)

Children

i Section 9 of the Child Support Guidelines

To determine the child support payable in a particular case it is necessary to decide how much time the child spends with each parent; under the Manitoba Guidelines, support is awarded on a 'shared custody' scale where both parents have custody, care, or control of the child at least 40 per cent of the time over the course of the year. (280) In Mehling, the MBCA attempted to clarify the approach that should be taken for this calculation, but there is some indication that it has not done so successfully. In Mehling, the MBCA noted that the SCC had "not yet had the opportunity to provide guidance to trial judges about how they are to go about deciding whether the 40 per cent threshold has been met" (281) and described the various appellate decisions on point as "varie[d]". (282) They concluded that minute-by-minute and hour-by-hour calculations should generally be rejected in favour of an analysis based on days and weeks. In cases where this temporal calculation alone does not give an obvious answer, courts should consider other relevant factors, including the development of the arrangement, agreements between the parents, the desires of the children, the nature of the time spent with the children (school, summer and holidays, etc.), and who is responsible for meal preparation and related chores. (283)

At least one subsequent decision in Saskatchewan has treated this case as outlining two different approaches, a "strict mathematical" approach and a "functional approach", leaving it to the trial judge to choose which to apply in any particular case. (284) This is not the only possible reading of the Mehling decision, which might as readily be taken to dictate a single two-stage approach as outlined above. Depending on how these cases are subsequently interpreted, divergence in the application of the 40 per cent rule may persist.

Enforcement of Orders

If an individual falls into arrears in their support obligations in Ontario, the Director of the Family Responsibility Office may initiate a default hearing under the Family Responsibility and Support Arrears Enforcement Act. (285) Multiple adjournments are sometimes required and in the meantime there is often a need to ensure support continues to flow. The Act gives courts the power to make a temporary order including "any order that may be made under" the provisions governing final orders. (286) In the Fischer case (287), the OCA provided explicit guidance regarding whether or not this broad language included the power to order imprisonment for default on a temporary order. The case was unusual because the Director and the individual involved were ad idem with respect to that particular case and only sought guidance for the benefit of those involved in future cases.

The Court made clear that absent a constitutional challenge there was nothing to suggest that the plain language of the statute granting the power to order imprisonment should not be given effect. Nonetheless, courts should be especially cautious in making such an order in these circumstances. Imprisonment should only be ordered when the party in default really does have the ability to pay; before the merits of the case have been fully decided, courts should remain especially cognizant of the risk that the individual does not have that ability. (288) Similarly, imprisonment should be a last resort; given that the party will be back before the court soon, it may not be necessary in some cases. (289)

The Court was also asked to provide guidance on the procedure that should be used for making this order. They thought that courts regularly conducting default hearings were better placed to determine the appropriate procedure, but agreed with the Director that it would be inappropriate to conduct a full separate formal hearing on the question of imprisonment within the default hearing. They also offered some suggestions as to the minimum protections required given that liberty was at stake. In their view, courts should: explain the nature and potential effect on liberty of the proposed order; indicate why the order was being considered; and give the individual the chance to respond and to submit other relevant information. (290)

VIII TAX

Taxation

In McLarty, (291) the SCC enunciated a bright-line distinction between contingent and absolute liabilities for the purpose of tax deductions. The taxpayer purchased proprietary seismic data for $100,000, $85,000 of which was in the form of a limited recourse promissory note. The promissory note was to be paid off from the business venture's income. If such revenue was insufficient, the value of the promissory note would decrease. The taxpayer claimed the full purchase price as a Canadian exploration expense under s. 66.1(6) of the Income Tax Act. (292) The Canada Revenue Agency (CRA) reassessed on the basis that the price was in excess of fair market value.

The main issue before the SCC was whether the taxpayer's liability was absolute or contingent, because only absolute liabilities were fully deductible. The majority held that the liability was absolute. Drawing on English and Canadian cases, (293) Rothstein J. held that "[t]he test is simply whether a legal obligation comes into existence at a point in time or whether it will not come into existence until the occurrence of an event which may never occur". (294) Though the promissory note envisioned some uncertainty in the manner and amount of repayment, this did not make the liability uncertain. Justices Bastarache and Abella, dissenting, pointed to the possibility of debt forgiveness but Rothstein J. reasoned that "a forgiveness provision ... implies there is something to forgive, namely the absolute obligation" already incurred. (295) Noting the uncertainty in the venture, the dissenting judges thought the deduction could be taken when the expense was incurred but "[u]ntil then, it [was] difficult to see his liability as anything other than contingent". (296) The majority in this case appears to have followed the trend in 2008 of preferring clear rules.

Administration of the Tax Act

i Powers of the Minister

As with many areas of economic and business law, the development of tax law in Canada is driven largely by legislative change, administrative policy, and the decisions of the Tax Court of Canada. Nevertheless, appellate court decisions are, when they come around, frequently consequential.

Redeemer Foundation (297) involved a foundation that operated a forgivable loan program that financed the education of students at an affiliated college. The CRA requested a donor list from the foundation because it was concerned that some donors were receiving charitable donation receipts for donations made with the expectation that they were funding the education of their own children. The taxpayer foundation contended that, when conducting an audit, the Minister should be required to obtain judicial authorization before asking for information about the identity of third-party taxpayers who had donated to the organization. (298)

The SCC upheld the judgment of the FCA that the combined effect of ss. 230 and 231 of the Income Tax Act (299)--which provide for the record-keeping responsibilities of charities and the power of the CRA to reasonably inspect taxpayers--was to entitle the Minister to information about the identity of the donors. In addition, the Minister was justified in reassessing individual taxpayers as a "logical consequence" of investigating the foundation. The majority worried that requiring judicial review whenever the audit of a charity might lead to a reassessment of donors was unworkable. They viewed as minimal the risk that the CRA would "audit a taxpayer who is not personally suspected of noncompliance merely to investigate other unnamed taxpayers for non-compliance". (300)

Justice Rothstein, writing for Binnie and Deschamps JJ, dissented in part. He would have allowed the appeal from the FCA on the basis that
   [w]here the CRA seeks information or documents for a purpose other
   than compliance by the taxpayer with the Act that may be determined
   through audit, it is acting outside s. 230 and s. 231.1. If what
   the CRA seeks pertains to unnamed persons, judicial authorization
   is required. (301)


The Minister's power to acquire information was also at in issue in the eBay decision, (302) which concerned a court order mandating that the eBay online auction site provide the Minister with information concerning 'PowerSellers', a category of vendors designated by eBay for particular benefits on the basis of their eBay sales, the length of time that they have been selling, their financial record, and whether they have been the subject of complaints from other eBay users. The Canadian company claimed that the information had been inappropriately dealt with under the general power to require disclosure under s. 231.2 of the Act; in eBay's view, because the information was "available or located outside Canada", it was therefore "foreign-based" and should have been dealt with under s. 231.6 of the Act, which governs 'foreign based' information, and which does not provide for the disclosure of information related to unnamed persons. (303) The FCA held that even information stored on a server outside Canada had to be supplied to Canadian authorities under the s. 231.1 general power.

The FCA held that even though the information in issue was stored on servers outside Canada, it was also located in Canada because of its ready accessibility to, and use by, the appellant company. (304) Citing Binnie J.'s statement earlier this year that courts must transpose early legislation "to the information age, and to technologies undreamt of by those early legislators", (305) the FCA rejected the argument that "as a matter of law, information in electronic form stored on a server is 'located' where the server is situated". (306) The true concern in the legislation was the practicality of requiring production, something not at issue when retrieval required only the "click of a mouse". (307)

ii Duties of the Tax Court Judge In Fortin, a consolidated appeal of three judgments of Archambault J. of the Tax Court of Canada (TCC), the FCA dealt with the administrative and supervisory role of appellate courts. (308) These cases involved findings of directors' liability for source deductions that certain companies failed to remit to the Minister. The appeals were dismissed on the merits, but the FCA was nonetheless concerned about the conduct of Archambault J. himself, who had repeatedly "shirked his duty to provide a single set of reasons and allow the parties access thereto in a timely manner". (309) The FCA had addressed this problem twice in relation to Archambault J. before. (310)

Here the judge had given oral reasons but did not file written reasons until three months after a notice of appeal had been filed. He was also in the habit of amending and improving his oral reasons--in one case allegedly reversing deductions that had been allowed--instead of providing a complete transcript of his oral reasons.

The Court repeated its previous criticism that:
   Justice Archambault's refusal to remit the reasons delivered at the
   conclusion of the trial to the parties in a timely manner is not
   only unacceptable, it brings the administration of justice into
   disrepute. The administration of justice is also compromised by the
   deletion of the recording or transcript of the reasons given
   orally. This practice is quite simply reprehensible. (311)


The FCA sent its reasons to the Chief Justice of the TCC "so that he may take the measures he considers appropriate to end this practice". (312)

IX CIVIL PROCEEDINGS

Conflict of Laws

In Kent Trade (313) the FCA held that the rules governing conflict of laws relating to contracts should apply in maritime law. Kent Trade arose from a sale of necessaries that was effected in Canada at the instance of the mortgagee of a ship. Each of the supply contracts contained choice-of-law provisions adopting US law. Under Canadian law, a supplier of necessaries obtains a statutory right in rem ranking below a mortgage, while under US law, the supplier obtains a maritime lien ranking ahead of a mortgage.

The Prothonotary in the Federal Court (FC) (314) applied the FCA's decision in Imperial Oil, (315) holding that with respect to maritime liens the choice-of-law provisions in the supply contract were only one factor to consider in the conflicts analysis. In the FC, on appeal, Gauthier J. acknowledged that if the choice-of-law provisions were treated as determinative, the parties could "do indirectly what they could not do directly ... [which is to] create a maritime lien" that would outrank third parties. (316) Nevertheless, she considered herself bound by the FCA decision in Richardson, (317) which interpreted Imperial Oil as confirming that the conflicts rules relating to contracts applied to claims for a maritime lien where the ship's owner was personally liable under the supply contracts.

On appeal to the FCA, Richard C.J. explicitly recognized that "maritime liens are in rein rights, which arise by operation of law and not from contract". (318) Nevertheless, he held that the conflicts rules relating to contracts should apply because they promote the value of "order" in maritime cases where the other values of comity and fairness are frequently equivocal. (319) While leaving open the possibility that in certain circumstances the connection to another forum could be so strong that the contractual conflicts rules are displaced, this decision fits clearly into the general trend in 2008 to emphasize clear rules over vague or abstract balancing tests.

Jurisdictional Concerns

A potential conflict has arisen between the FCA and the OCA with respect to the jurisdiction of provincial superior courts to hear damages claims flowing from the decisions of federal tribunals. Section 18 of the Federal Courts Act (320) gives the.

Federal Court "exclusive original jurisdiction ... to hear and determine any application or other proceeding for relief in the nature of [the prerogative writs] ... against a federal board, commission or other tribunal" and provides that these remedies "may be obtained only on an application for judicial review made" to the Federal Court within 30 days of the communication of the impugned action.

In Nu-Pharm, (321) the FCA held that a claim for damages, based on the Minister of Health acting unlawfully and without authority in his treatment of a new drug, could not be brought unless there had been a successful application for judicial review. Such a claim depended entirely on showing that the Minister's actions had an unlawful character--the damages claim amounted to a clear collateral attack on the Minister's decision. In coming to this conclusion, Nadon J.A. followed the FCA's decision in Grenier (322) and Alan Hinton. (323)

In a consolidated decision on four appeals, both heard and released by the OCA after the release of the Nu-Pharm decision, Borins J.A. took a different view of the effect of s. 18 of the Act. (324) In his view damage claims are simply not captured by s. i8, which deals with the prerogative writs. Thus he refused to follow Grenier in this regard and candidly stated his view that it was wrongly decided and not binding on the OCA. (325) He also posited, in apparent contradiction to the FCA, that collateral attack is a defence not going to jurisdiction. (326) The Nu-Pharm decision is not considered in the judgment. As will be clear, two of the country's most prominent, and busiest, appellate courts appear to be in direct conflict over the boundaries of their jurisdiction. It can be expected that the Supreme Court will step in quickly to mediate this conflict.

Res ludicata and Estoppel

The SCC recast the doctrine of issue estoppel in criminal law in its decision in Mahalingan, holding that it applied only to issues decided in the accused's favour in a prior proceeding, and not to every issue raised in that proceeding. (327) The accused in that case was convicted of aggravated assault. During the trial, evidence was led regarding an alleged phone call he made to a witness asking the witness not to testify. He was later charged with obstruction of justice in relation to the phone call but was acquitted. On appeal from the conviction for aggravated assault he sought to introduce as fresh evidence his acquittal on the obstruction of justice charge, claiming this should make the evidence of the phone call retroactively inadmissible under the doctrine of issue estoppel.

Chief Justice McLachlin, writing for the majority, found that the Court's decision in Grdic (328) extended issue estoppel in the criminal context only to "issues which were decided in the accused's favour, whether on the basis of a positive factual finding or a reasonable doubt". (329) Whether an issue was so decided in a previous trial is a question of fact. Importantly, and contrary to some previous practice, issue estoppel does not extend to all issues raised in the previous trial and it cannot have retroactive effect, as this would undermine rather than advance the goal of finality. With these limitations, issue estoppel should be retained in Canadian criminal law.

Justice Charon, writing for Abella J., Deschamps J. and herself, and concurring in the result, argued strongly against retaining issue estoppel. On this view, other safeguards (330) were sufficient to deal with any circumstances in which relitgation might be problematic, without giving rise to the difficulties inherent in the application of issue estoppel in the criminal context. (331)

Abuse of Process

Courts in 2008 continued to sketch the contours of the abuse of process doctrine described by the SCC in Toronto (City) v. CUPE. (332) In Garber, (333) the FCA held that it would not be an abuse of process for taxpayers to assert that they had legitimate business expenses associated with an investment scheme for which the two principles had been convicted of fraud. The issues were not the same, there was no guarantee that the integrity of the conviction would be challenged, and the right of the taxpayers to be heard should be given priority.

In Garber, the FCA criticized the Ontario Superior Court's decision in Polgrain. (334) Polgrain involved a civil action against a hospital nurse who had been acquitted of charges of sexual assault in a criminal trial. At issue were the findings of the criminal trial judge, who had asserted that the accused was innocent, not merely "not guilty". The Superior Court treated the criminal trial judge's findings of fact as determinative of the accused's guilt or innocence on the civil standard of proof, and held that relitigating the issue of his guilt or innocence in a civil action would constitute an abuse of process. The OCA subsequently reversed that holding. (335) The OCA affirmed that the criminal court cannot make a formal legal declaration of an accused's factual innocence: the only thing in issue in the criminal trial is the legal innocence of the accused based on a standard of reasonable doubt. Because there is no appeal from a criminal trial judge's reasons, but only from her verdict (the only part played by the reasons is that they may disclose an error in reasoning that taints the lawfulness of the verdict), treating these findings of fact as binding in a civil trial, which involves a lower standard of proof, could produce unfairness.

There was also, in Garber, strong disagreement between the majority and Nadon J.A., concurring in the result, with respect to whether the doctrine of abuse of process could ever operate against someone who was not a party to the original proceeding. In the view of the majority the "flexible" (336) approach from Toronto v. CUPE should be applied so that the question of whether the doctrine applies is considered in each particular fact situation. In response, Nadon J.A. argues that Toronto v. CUPE "says in no uncertain terms that the conviction of a non-party ... can be challenged in subsequent proceedings". (337) With respect, we think other readers are unlikely to understand the reasons of Arbour J. in this way.

Limitations

The OCA continued its struggle to make clear how the new Limitations Act (338) should be applied. St. Jean (339) concerned the transition provision in the Act (s. 24), which deals with the treatment of "claims based on acts or omissions that took place before [the new Act] and in respect of which no proceeding has been commenced before [the new Act]". The Court ultimately held that a "proceeding" means a proceeding against a particular party or class of parties. Two years prior to the coming into force of the new Act, the plaintiff in St. Jean had brought an action against his mother's obstetrician, gynecologist, and the hospital in which he was born; two years after the new Act came into force he commenced a second action against the doctors responsible for his neonatal care. The question was whether the first action barred the application of s. 24 to the second action.

The OCA's previous authorities on this point conflicted. In Pepper v. Zellers, (340) the Court had held that a proceeding commenced against the person thought to own a pharmacy excluded the application of s. 24(2) to a subsequent action brought against the pharmacist that had dispensed the plaintiff's medication. But in Meady v. Greyhound, (341) the court held that a "proceeding" must be understood with reference to a particular party against whom an action is brought; thus a previous action against a negligent passenger causing a bus accident did not bar the application of s. 24 to actions against the doctor who treated the resulting injuries. Meady did not refer to Pepper but the Court in St. Jean held that the flexible approach in Meady had "overtaken" Pepper and ought to be followed. (342)

In a companion case to Meady, the OCA considered whether under the new Act the common law doctrine of special circumstances could still be employed to allow a cause or party to be added to an action outside the limitation period in certain cases where there was no prejudice to the defendant. (343) Although some lower courts had done SO, (344) the OCA concluded that the doctrine could not be applied under the new Act. While the new Act allowed for derogations from the limitation period "by or under" another Act, this did not preserve the application of common law principles that had been used to apply the Rules created under the Courts of Justice Act. (345)

In Grey Condominium Corp., the OCA held that independently discoverable latent defects in building construction can found multiple causes of action, so that even if one is discovered, the limitation period on any of the others does not commence. (346) In Lameman, (347) the SCC also dealt with limitations in the context of a claim in Alberta with respect to dealings in reserve land more than a century ago. The Court held that, in a case where the defendant government had adduced sufficient evidence that the alleged wrong was discoverable in the 1970s, the action could be summarily dismissed or statute-barred where the plaintiff band had offered no material response to the government evidence. (348) The limitations period and the requirement that evidence be adduced--not just alluded to--on summary judgment applied equally to aboriginal as to other actions.

Rules of Evidence

In the Blood Tribe (349) case the SCC emphasized the importance and sanctity of solicitor-client privilege, finding that legislation empowering the Privacy Commissioner to compel the production of documents "in the same manner and to the same extent as a superior court of record" and to "receive and accept any evidence and other information" (350) regardless of its usual legal admissibility was insufficient to allow access to privileged documents, even to determine whether privilege is validly claimed. That was a task for a court, not an administrative actor, and particularly not one that may be or become adverse in interest to the party claiming privilege. (351)

The SCC also emphasized confidentiality concerns in the legal process in unanimously allowing an appeal against a unanimous BCCA decision in Juman. (352) In that case a defendant in a civil suit relied on the implied undertaking rule to move, prior to discovery, to prevent the parties to the suit from disclosing the fruits of the discovery process to the police or others. Although the rule provides that parties are deemed to undertake not to use discovered evidence for purposes other than the proceeding for which the evidence was obtained, the BCCA held that this general duty of confidentiality does not prevent the "bona-fide disclosure of criminal conduct". (353) The SCC rejected this exception, noting that a party's motive for disclosure was irrelevant to the reason why disclosure might sometimes be permitted, specifically that the public interest in law enforcement might at times outweigh the interest in a fair and effective discovery processes. (354) Instead, the SCC thought leave would be necessary to vary the undertaking of confidentiality and adopted as an accurate statement of the common law the position in the Ontario Rules: the undertaking will be varied only if the court is "satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence". (355) This must be an "exceptional circumstance". (356)

But while the SCC emphasized confidentiality concerns in Juman, in Kitchenham, (357) the OCA set out a limit on the privacy protection offered by the deemed undertaking rule in another context. That case dealt with the relatively common situation in which a person is suing their insurance company for benefits arising out of an incident that has been the subject of a previous tort action involving that person. The OCA confirmed that Rule 30.1 (establishing deemed undertakings) (358) protects only the discovered party. A party that receives discovery from another cannot disclose the information received to third parties without following the procedures in the Rule. The party that disclosed the information, however, is not prevented or protected from disclosing it again in a subsequent discovery.

In an example of the sometimes-slow process of change in the common law, in Holland (359) the BCCA revisited its decision in Endean, (360) where it had held that there was no independent tort of spoliation. (361) The Court notes that Endean was "based on its understanding of" SCC jurisprudence and that leave to appeal that decision had been granted (although the appeal was abandoned). (362) Referring to Ontario and Alberta cases, (363) the Court suggests that, "recognition of a freestanding tort of spoliation has not been foreclosed in Canada". (364) After canvassing policy arguments in favour of and against such a tort, the Court notes that the question was "not squarely before [them] on the pleadings" and therefore refrains from pronouncing on it. (365) As this decision suggests, courts in Canada have yet to pronounce conclusively on the tort of spoliation.

Burden of proof in civil cases

In FH v. McDougal1 (366) the SCC unanimously rejected an idea, which had emerged in some lower court decisions, (367) that civil actions alleging more serious or blameworthy conduct faced a higher burden of proof "commensurate with the occasion" (368) than did a usual action. The Court also reversed its own earlier position (369) that evidence led in support of serious allegations should be scrutinized with greater care. Instead, "there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred." (370)

Pleadings

In the unique case of National Bank v. Potter, (371) Cromwell J.A. (as he then was) of the NSCA reviewed a decision to grant leave to a party that wished to amend its own pleadings. The party had sought, but was denied, leave to delete allegations made about a person against whom it had discontinued the action. While accepting that the situation was unusual, Cromwell J.A. would not disturb the finding of the motions judge that the amendments would leave an unexplained gap in the pleadings, would create prejudice to the other parties, and were being made strategically and in bad faith.

Costs

Another decision tending to favour bright-line tests over broad evaluations of equity and fairness was that of the OCA in Hanis v. Teevan. (372) The case involved the question of how the costs of defending a lawsuit should be apportioned between an insurer and an insured when defence of claims that are covered by the insurance policy has the effect of furthering the defence of uncovered claims. The insurer argued that the costs of the defence should be divided in a fair and equitable manner. The Court held that the relationship between the insurer and the insured had to be governed by the terms of the policy, which (in this case) made it clear that the insurer was obliged to defend all claims associated with the covered risks.

There was, in the previous case law in Canada, some ambiguity as to which approach should be preferred. The BCCA had clearly favoured the contractual approach, (373) two previous OCA decisions were inconclusive, (374) and a number of lower court cases, including in Ontario, appeared to have divided the costs based on fairness. (375) Justice Doherty clearly rejected the approach in these lower court cases and held that insured persons were entitled to the full benefit of their contractual bargains.

X ADMINISTRATIVE LAW

Standard of Review

Over its thirty-year history, (376) the modern Canadian law of judicial review of administrative decisions has been marked by frequent change. In Dunsmuir, (377) which is among the most noteworthy decisions released in any area this year, the SCC revisited the analysis for determining the appropriate 'standard of review', or level of deference to the decision-maker of the first instance, on judicial review.

Prior to Dunsmuir, the courts had settled on three 'standards of review' on which an administrative decision might be evaluated: patent unreasonableness, correctness, and reasonableness simpliciter. (378) The courts determined which of these three standards should be applied using a "pragmatic and functional" approach, taking into account four considerations: the existence (and strength) of a privative clause in the tribunal's governing legislation; the relative expertise of the tribunal; the purpose of the legislation as whole, and the provision at issue; and whether the question on review is a question of law or of fact. (379) The instability of this approach was demonstrated by a series of dissenting and concurring judgments authored or joined by LeBel J., in which he criticized the patent unreasonableness standard of review and the general applicability of the pragmatic and functional approach. (380) The positions taken by LeBel J. were largely vindicated in Dunsmuir, wherein the Court rejected both the 'pragmatic and functional approach' and refined the standard of review analysis to include only two standards: reasonableness and correctness.

Dunsmuir concerned the judicial review of a decision of an adjudicator dealing with a grievance filed by a civil servant and at-pleasure office holder after he was terminated with pay in lieu of notice. The adjudicator was required first to determine whether it had jurisdiction to inquire into the reasons for the termination, given that the dismissal was with pay and no cause was alleged. The adjudicator found that it did have jurisdiction. The adjudicator also found that Dunsmuir was entitled to procedural fairness in the termination proceeding but did not receive it. Dunsmuir was therefore reinstated retroactively. The Court's review of the decision required inquiry into what standard of review should be used and on what basis it should be determined.

The majority of the SCC began its judgment by noting that
   [t]he recent history of judicial review in Canada has been marked
   by ebbs and flows of deference, confounding tests and new words for
   old problems, but no solutions that provide real guidance for
   litigants, counsel, administrative decision makers or judicial
   review judges. (381)


In a concurring judgment, Binnie J. explained that judicial review had "become unduly burdened with law office metaphysics". (382) Both the majority and Binnie J. indicated that they would therefore undertake a comprehensive restatement of the administrative law in Canada. Dunsmuir is thus the most explicit example of the trend, already identified, toward the creation of accessible, concrete rules in lieu of abstract or indeterminate tests.

The majority decision in Dunsmuir determined that the patent unreasonableness standard of review was more confusing than helpful. Determining which of the two remaining standards of review, reasonableness simpliciter and correctness, (383) applies is a two-step process. (384) First, if previous case law has established how questions in that category are to be reviewed, then no further analysis is required; for example, questions of true vires--such as disputes over provincial/federal jurisdiction--are always reviewed on a correctness standard. Second, if no prior case has established the appropriate standard of review, an analysis of the relevant or determinative factors is undertaken to determine the appropriate standard. The expectation, of course, is that this will improve consistency and focus on what is important in the particular litigation.

In his concurring judgment, Binnie J. objects that certain parts of the majority decision do not do enough to "prefer clarity to needless complexity". (385) Similarly, Deschamps J., joined by Charron and Rothstein JJ., states in her concurring judgment that judicial review could be made plainer if it were "cleared of superfluous discussions and processes", (386) suggesting that the approach adopted by the majority would not rectify this problem. Instead, Deschamps J. proposes a more direct approach, emphasizing that "[a]ny review starts with the identification of the questions at issue as questions of law, questions of fact or questions of mixed fact and law. Very little else needs to be done in order to determine whether deference needs to be shown to an administrative body." (387) In other words:
   [T]he analysis can be made plainer if the focus is placed on the
   issues the parties need to have adjudicated rather than on the
   nature of the judicial review process itself. By focusing first on
   'the nature of the question' ... it will become apparent that all
   four factors need not be considered in every case and that the
   judicial review of administrative action is often not
   distinguishable from the appellate review of court decisions. (388)


Together, these concurring judgments indicate that the Court may not yet have overcome the instability that has been associated with the modern law of judicial review in Canada. Consider, for example, the SCC's subsequent decision in Proprio Direct. (389) Justice Deschamps, dissenting, reiterated her position in Dunsmuir, and using her own approach, she would have adopted a different standard of review. (Nonetheless, she would have also reached a different result from the majority if she had applied the same standard.)

Procedural Fairness

In Dunsmuir (discussed above), (390) the SCC also considered what procedural fairness, if any, is owed to civil servants and at-pleasure office holders. The majority of the SCC overturned the Court's previous decision in Knight v. Indian Head, (391) which had held that at-pleasure office holders were entitled to know the reasons for their dismissal and to be heard unless that right was explicitly taken away in contract or statute. Instead, where the employee has a contract the contract governs her rights; it is only in the absence of any contractual or other recourse that an office holder can make an appeal based on procedural fairness. (392) Again, this rule should increase certainty and shift control away from courts and back to the parties.

In Cyr (393) the Court considered the question of when public law remedies were available to persons working on behalf of the state and when they were limited to contractual remedies. In order to provide for the mechanical inspection of certain vehicles, a Quebec auto-safety regulator signed an agreement with Cyr's employer; an appendix to that agreement, which Cyr also signed, designated him as an accredited inspector. The question was whether Cyr was entitled to administrative fairness when that designation was revoked.

The majority of the Court, in a decision that does not mention Dunsmuir, viewed the appendix as merely a mechanism by which the state unilaterally exercised its power to grant an administrative authorization to Cyr to perform the inspection. There being no contract for services that could govern, Cyr was entitled to public law procedural fairness. By contrast, the dissent viewed the appendix as connecting Cyr and the government by contract and therefore his only recourse should have been rooted in contract. While much of the debate concerned the requirements of a contract under the Civil Code of Quebec, underlying this was a disagreement over the effect of limiting, as Dunsmuir had done in the case of certain employment situations, public law remedies in the presence of a contract. The majority appeared concerned that "increased privatization of public services" would allow the state "to avoid public law duties". (394) The minority, on the other hand, views the issue not as a "popularity contest" between contract law and procedural fairness but as the identification of the legislative scheme, and particularly which components involve the exercise of police powers and which involve service delivery. (395)

The procedural fairness aspect of Dunsmuir was considered explicitly by the BCCA in Martin v. Vancouver. (396) That case considered the Vancouver city council's dismissal of the entire Board of Variance, pursuant to s. 572(2.1) of the Vancouver Charter, (397) which gave them the power to "rescind an appointment to the Board at any time". The question was whether the Board members were entitled to procedural fairness in the manner of their dismissal. Justice Levine held that after Dunsmuir the public law procedural fairness outlined in "Knight continue[d] to apply to non-contractual employment relationships and to public appointments from which the holder may be dismissed without cause". (398) In this case, minimal procedural fairness was required because the decision was policy driven and the board members acted as volunteers without security of tenure.

XI CRIMINAL LAW

Criminal Procedure

Courts continued in 2008 to work out the proper role of victims in the criminal proceedings in Canada. In V.W., (399) the OCA determined that victim impact statements could be considered in making a Serious Violent Offence (SVO) determination under the Youth Criminal Justice Act (YCJA), (400) and that the victim could be cross examined on that statement under certain circumstances. V.W. argued that if victim impact statements were admissible in proceedings to determine the SVO designation without allowing for cross-examination on the statement, the offender's constitutional right to a fair process would be violated. In particular, V.W. noted that s. 7 of the Charter includes the guarantee that, where an individual's liberty is at stake, the principles of fundamental justice--including elements of procedural fairness--must govern. V.W. relied on the SCC's 1982 decision in Gardiner, (401) which affirmed that, at the sentencing stage, "the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court." (402)

Although Sharpe J.A. agreed that the principles in Gardiner (and the subsequent codification of those principles in s. 724(3) of the Criminal Code) applied to victim impact statements, he ultimately found that neither Gardiner nor s. 7 require "an automatic or open-ended right to insist that victims attend for cross-examination any time the Crown wishes to use a victim impact statement in a sentencing hearing". (403) While an absolute bar to cross examination would unduly interfere with the offender's procedural rights, Sharpe J.A. also noted that an open-ended right to cross-examine may discourage victims from making statements, or serve to 're-victimize' those who do. (404) In order to reconcile these competing interests, Sharpe J.A. held that the right to cross-examination should only arise where there is an "air of reality" to the offender's claim that facts in the statements are disputable and that the desire to cross-examine is not specious. (405)

Disclosure

Proceedings continued in 2008 in relation to the wrongful conviction of James Driskell, (406) including his civil suit against certain police defendants. (407) Driskell's statement of claim alleged, among other things, that the police breached a duty to provide continuing disclosure to the Crown or to himself following his conviction, given that he maintained his innocence throughout that time. The motions judge refused to strike these allegations from the statement of claim. On appeal, the MBCA clarified that there could be no duty on the part of the police to provide disclosure to Driskell directly but rather that all disclosure should go through the Crown; (408) the corresponding allegations were therefore struck. However, the Court of Appeal also held that while the duty of disclosure was generally considered to apply only prior to the final exhaustion of all appeals, it was not plain and obvious that there were no circumstances in which a continuing duty to disclose could be owed. (409) Accordingly, the Court of Appeal declined to strike these further allegations from the statement claim.

Offences

The SCC in 2008 sought to clarify the application the dangerous driving provision of the Criminal Code (s. 249(4)), which had caused problems in lower courts; the SCC also addressed the relationship between two counts of manslaughter, the first by criminal negligence under s. 219 of the Code and the second by the unlawful act of failing to provide the necessaries of life under s. 215 of the Code.

In Beatty (410) the SCC attempted to set out the elements of the offence of dangerous driving as defined in s. 249(4) of the Code. The defendant driver in that case had suffered a momentary lapse of attention that caused his vehicle to cross the centre line and collide with an oncoming car. He was acquitted at trial on the basis that a few seconds of lapsed attention was not a sufficiently marked departure from the standard of care to generate criminal culpability; this case fell only in the spectrum of civil negligence. The BCCA reversed, stating that the relevant question was whether the conduct was objectively dangerous and concluding that the defendants' conduct was obviously a marked departure from what was reasonable. (411)

The SCC restored the trial judge's acquittals. Writing for the majority, Charron J. identified two areas of confusion in the lower court decisions on dangerous driving: the relationship between a "marked departure" and the elements of "objectively dangerous conduct" and the accused's subjective mental state. (412) She restated the elements of the offence: the actus reus simply required conduct that was dangerous to the public in the circumstances (following the wording in the provision); the mens rea required a marked departure from the care that a reasonable person would have taken in the same circumstances. Applying this test, Charron J. found that while crossing the centre line into the path of an oncoming car was of course objectively dangerous, the trial judge had not erred in finding that the momentary lapse of attention was not a marked departure as required in the mens rea of the offence.

There were two concurring judgments in the case. Chief Justice McLachlin would have held that the actus reus should be defined as a marked departure from the normal manner of driving. In her view, a momentary lapse of attention is insufficient to make out either the actus reus or the mens rea of the offence; such cases are appropriately dealt with under provincial careless driving legislation. In the second concurring judgment, Fish J. agreed with Charron J. as to the requirements of the actus reus. He disagreed, however, with both of his colleagues with respect to the mens rea of the offence. According to Fish J., in the absence of deliberate recklessness, a marked departure in the conduct of the driver is required to support the inference that a reasonable person in the circumstances would have taken greater care.

The SCC dealt with negligence-based offences again in J.F., (413) in which the Court held that it was inconsistent for a parent to be acquitted of manslaughter for failing to provide the necessaries of life to his child, but to be convicted of manslaughter by criminal negligence for causing the death of that child by the same conduct. The conduct at issue was the father's omission to protect the child from obvious physical abuse by the mother.

According to the majority, the actus reus of each count was identical--failure to meet the legal duty to protect the child from abuse--and the mens rea, while not identical, was essentially the same. Justice Fish allowed that, in theory, the mens rea with respect to the failure to provide necessaries is foresight of permanent endangerment to health, while with respect to criminal negligence, it is disregard for safety. Nonetheless, "[t]his abstract distinction between the two offences [was] of little relevance on the facts" and could not explain the difference in the verdicts. (414)

In a vigorous dissent, Deschamps J. attacked this conclusion. In her view, the difference in the verdicts was explained precisely by this additional element. (415) She charged the majority with adopting a poorly delineated "impressionistic approach" that will frustrate efforts by trial judges to appeal-proof their jury charges because it does not identify any strict violation of a rule of law. (416) By contrast, the majority viewed the justification for the verdicts advanced by Deschamps J. as an "intellectualized gloss" divorced entirely from what was actually at stake in the trial. (417)

Decisions

Trial Judge's Reasons

In C.L.Y., (418) the SCC considered whether a trier of fact must adhere to the reasoning process laid out in W.(D.) (419) in relation to the burden of proof, concluding that, so long as the appropriate burden of proof is applied, the steps proposed in W.D. need not necessarily be followed. In W.(D.), the Court proposed the following reasoning process to ensure that the trier of fact remains focused on the principle of reasonable doubt: First, if the trier of fact believes the evidence of the accused, she must acquit; second, if she does not believe the testimony of the accused, but is left in reasonable doubt by it, she must acquit; and third, even if she is not left in doubt by the evidence of the accused, she must ask herself whether, on the basis of the evidence which she does accept, she is convinced beyond a reasonable doubt by that evidence of the guilt of the accused. (420) Although the trial judge in C.L.Y. correctly described the W.(D.) test, she went on to deliver reasons that first assessed and accepted the evidence of a complainant, and then assessed and rejected the evidence of the accused.

The Court was unanimous in its finding, on the facts of the case, that the trial judge had exhibited a misapprehension of the evidence which rendered her decision unsupportable. (421) The Court divided, however, on the significance of the trial judge's departure from the W.(D.) framework. Justice Abella, writing for the majority, held that a trial judge's reasons should not be read as a step-by-step recounting of her reasoning process, and that the trial judge in C.L.Y. had not violated the presumption of innocence. The majority emphasized that the trial judge, "understood that a finding that the [complainant] was credible did not mean that the onus shifted to the accused to show that he was not guilty. I find it difficult to see how the sequence in which the trial judge set out her findings of credibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt." (422)

In contrast, the minority thought this was the precise case in which departure from the W.(D.) procedure was problematic. The case involved a credibility contest and the trial judge by her own terms had already accepted the evidence of the complainant as true, compelling a finding of guilt, when she "assessed" the evidence of the accused; this reversed the presumption of innocence. (423)

In Dinardo, (424) the SCC held that although W..(D.) is not a magic formula, where a trial judge's reasons did not deal with the accused's denial, it appeared that W. (D.) had not been complied with even in spirit. (425) While reasons relating to credibility will rarely be attacked successfully on appeal, in the circumstances of this case, where the credibility of the complainant was the live issue, some reasons were required. A new trial was ordered.

Walker was released about a month after Dinardo but did not cite it. (426) In Walker, the SCC dealt with the sufficiency of reasons for an acquittal on a charge of murder. The Court held that the standard was the same as on a conviction--they must enable meaningful appellate review--but that whether the standard was met had to be decided in the context of the issue at stake in an acquittal and the Crown's limited right of appeal.

The issue of sufficiency of reasons returned to the SCC later in the year in companion sexual assault cases, R.E.M. and H.S.B., in which credibility was again in issue. (427) Perhaps concerned that Dinardo had left the matter uncertain or had invited too much interference by appellate courts, McLachlin C.J. for a unanimous court undertook a review of the case law relating to the sufficiency of reasons. Sounding a cautionary note, she emphasized that reasons need only meet the basic functional test of enabling appellate review and that appeals courts should proceed with deference. (428)

ii Jury Instructions

In Layton, (429) the MBCA confronted the question of whether a jury asking a question about the burden of proof, despite having been provided with a written copy of a standard jury charge, (430) could be answered simply by repeating the relevant sections from the charge already provided. This case turned on the tension between the efforts of trial judges to avoid misdirection by relying on approved jury charges, on the one hand, and the need to provide individualized and case- and jury-specific charges, on the other.

The majority of the MBCA held that the trial judge could generally not just repeat the charge, and in particular could not, as had been done in this case, discourage the jury from asking further questions by suggesting that there was nothing else to say. The dissenting justice disagreed, suggesting that juries must be assumed to have the ability to think harder about their instructions and understand them or else take the initiative to return with another question. (431)

iii Directed Verdicts

The OCA in MacDonald (432) held that a trial judge may direct a conviction where the accused pied not guilty to murder but throughout the trial conceded that he was guilty of manslaughter. At trial, the accused acknowledged that he had assaulted the victim and caused his death, but urged the jury to acquit him of murder and convict instead on the included offence of manslaughter. The judge had left the jury only with the potential verdicts of guilty of murder or guilty of manslaughter. After being convicted of second degree murder, the accused appealed his conviction, in part on the grounds that the trial judge had erred in failing to instruct the jury that 'not guilty' was a possible verdict.

The defence relied upon the SCC's decision in Krieger (433) that a directed verdict of guilty was not permissible even where the evidence was overwhelming, as it deprived the accused of the right to a trial by jury. The OCA in MacDonald easily distinguished Krieger on the basis that counsel for the defence in MacDonald had consented to the instruction as a trial tactic. The accused in MacDonald was thus not denied his right to a trial by jury, and was in fact allowed to exercise his constitutional right to control his own defence. (434)

Credibility

A number of cases have considered whether it is unreasonable to disbelieve an accused person on the grounds that their recollection of events is too good. When C.L.Y. (discussed above) was argued in the MBCA, (435) Twaddle J.A. (dissenting) stated his view that it is unreasonable to disbelieve an accused on such grounds. (436) On appeal, the SCC did not consider this question directly, (437) but Twaddle J.A.'s view has been endorsed in a concurring judgment in the NLCA. (438) This creates a situation in which two appellate judges have rejected the use of "too good to be true" reasoning regarding the recollection of events by accused. While neither of them have the effect of stare decisis in any lower courts, together they suggest a question that will need to be confronted directly in the future.

Evidence

i Out-of-Court Statements

In Rojas, (439) the SCC considered two issues: (1) the use of out-of-court statements made by one of the accused to bolster the general credibility of a witness who testifies against both of them, and (2) whether and how judges should give a Duncan instruction (440) with respect to mixed out-of-court statements.

With respect to the first issue, the accused argued that the decision of the OCA in Perciballi (441) required that the jury be instructed to make separate findings of credibility against the witness for each accused. In Perciballi, Charron J.A. (as she then was), held that the Crown could not invite the jury to use an inculpatory statement made by one accused to support the testimony of a witness who also implicated the second accused. This was "for the same policy considerations that define the scope of admissibility of an accused's out-of-court statement and limit its use as against its maker only". (442) Dissenting in Perciballi, Doherty J.A. had cautioned that this would logically require a jury to make different findings of credibility with respect to the same witness on the same evidence--one each with respect to each of the accused. (443)

That precise result was now being advocated by the accused in Rojas. Now at the Supreme Court, Charron J. restated her view that while the jury could not be expressly directed to use an inculpatory statement when assessing the case against the accused who did not make it, neither did the jury have to be specifically cautioned against using it as part of the totality of the evidence relating to the credibility of a witness. (444)

In terms of the second issue, a Duncan instruction tells the jury that the inculpatory elements of out of court statements are likely to be true ("otherwise why say them?") but that the exculpatory elements should not to be given the same weight. In Rojas, Charron J.A. noted that appellate courts in Canada had both approved of (445) and rejected (446) variations of the instruction, while the House of Lords had clearly accepted it. (447) She concluded that in general the instruction was confusing and ought not to be given; instead, counsel could urge the inference in argument. (448) Whether giving the instruction amounts to misdirection, however, must be decided on a case-by-case basis. In this case, especially given the permissive manner in which it was expressed, there was not a misdirection. By contrast, in Illes, (449) where the instruction was framed in terms of a presumption, it did constitute a misdirection.

ii Searches

In Knight, (450) the police seized a large amount of marihuana in an operation conducted as though it were a theft in order to disguise police involvement. The NLCA held that this did not violate sections 7 or 8 of the Charter. Knight, a well-known drug trafficker, was travelling by ferry from Nova Scotia to Newfoundland when police, acting pursuant to a warrant, took a spare tire containing marihuana from his vehicle. The police were aware that Mr. Knight's co-conspirators distrusted him and would accuse him of the theft, exposing him to harm or death. Nevertheless, they did not reveal these facts to the judge who issued the warrant.

The NLCA considered whether this omission misled the issuing judge on a material fact, rendering the warrant invalid. The defendant had the onus of demonstrating that it did and Knight failed to meet this burden; the issuing judge could have inferred the danger in issue without the police needing to state it explicitly.

iii Child Witnesses

Sections 486.2 of the Criminal Code and 16.1 of the Canada Evidence Act (451) allow a child to testify in a criminal case from behind a screen after promising to tell the truth. These sections were enacted in 2006 after an inquiry into the capacity of child witnesses. In JZS, the BCCA found both sections to be constitutionally valid. (452) J.Z.S. had been convicted of sexually assaulting his young children, who gave their testimony in the case from behind a screen. In his appeal he argued that that these testimonial procedures violated his rights under ss. 7 (right to life, liberty and security of the person) and 11(d) (right to be presumed innocent until proven guilty) of the Charter. The trial judge found that the use of a screen did not impair cross-examination, impact the presumption of innocence, or impair the Crown's ability to prove each element of the offence. He followed the SCC's decision in Levogiannis, (453) which had found that the inability to confront a witness using a testimonial aid did not offend a principle of fundamental justice, nor was it contrary to trial fairness.

iv Exclusion under Section 24(2)

Section 24(2) of the Charter provides for the exclusion of evidence obtained in a manner that breaches the Charter where the admission of that evidence would bring the administration of justice into disrepute. This provision has been the subject of controversy, with some arguing that its application has failed to meaningfully vindicate the rights of citizens or promote appropriate behaviour by the police. (454) The SCC arguably attempted to respond to that view in 2008. In Wittwer, (455) the Court found easily that the police cannot knowingly confront a suspect with a statement obtained unconstitutionally in order to extract another confession. Doing so brings the administration of justice into disrepute. (456)

In Harrison, the OCA confronted a case it described as "a close call and one on which reasonable people could disagree". (457) In that case, a police officer testified that he encountered a rental car driving the speed limit on the highway and began to pull it over for not having front plates. After noticing it was registered in Alberta, and therefore that front plates were not needed, he completed the stop anyways in order to avoid compromising "the integrity for police". (458) When the accused did not produce his license but did produce information that revealed his license was suspended, the officer conducted a search of the whole car and discovered a large quantity of cocaine. Ultimately, the Court agreed to admit unconstitutionally obtained evidence

The OCA noted that the trial judge had described the Charter breaches involved as "brazen and flagrant", in bad faith, and "extremely serious". (459) On the other hand, there were attenuating factors such as the reduced expectation of privacy associated with a rental car on a public highway. Most importantly, there was the serious social evil associated with the crime involved. The majority concluded that in the result the trial judge made no error in admitting the evidence. Justice Cronk dissented vigorously on the question of admissibility. In her view, the trial judge essentially treated the seriousness of the crime as determinative and did not ask whether the long term effect on the administration of justice from admitting evidence gathered through willful breaches would outweigh the effect of exclusion in this case.

There is reason to believe that lower courts are ill at ease with the majority's willingness to admit evidence in the face of such serious breaches of the Charter, and that they may expect the SCC to intervene. In one Alberta case, a judge, noting that leave to appeal the OCA decision in Harrison had been granted, emphasized that the future direction of the law in this area was unknown. (460) And in spite of suggesting that the facts of Harrison were very similar to those of the case being considered, the judge appeared to approve of the "strong dissent" of Cronk J.A. and refused to admit the evidence. (461)

v. Defences

The SCC continued in 2008 to deal with certain defences to drunk driving charges that have recently gained prominence. Section 258(1) of the Criminal Code contains a series of presumptions that compel a finding that an accused who blows "over 80" was driving over the legal blood alcohol limit unless there is evidence tending to rebut the presumption. In Gibson, (462) the plurality of the Court rejected the use of "straddle evidence"--expert evidence purporting to show, based on the accused's expected elimination rate and consumption pattern, that the accused's blood alcohol would have fallen within a range that straddled the legal limit. Three different approaches to this kind of evidence had developed in the courts below. (463) Because of the fractured nature of the SCC decision, this divergence may continue.

Writing for herself and three others, Charron J. rejected straddle evidence because it only tended to confirm that the accused fell within the category of drivers about whom Parliament was concerned; she therefore held it to be inadmissible. (464) Concurring in the result, LeBel J., for himself and two others, concluded that straddle evidence was not presumptively inadmissible but would only carry significant weight if the range were narrow and sat mostly below the legal limit. (465) Justice Deschamps, joined by Binnie J., would have held that straddle evidence was admissible and raised a reasonable doubt whenever its prevailing direction was below the legal limit. (466) She noted that the approach advocated by LeBel J. did not provide practical guidance to lower courts in an area in which there were many trials. (467)

The divisions in the SCC make it unclear how courts should treat, for example, a case in which there is straddle evidence with a narrow range that falls mostly below the legal limit--five of the nine judges on the court would have admitted it and considered that it raised a reasonable doubt, but the judges in the plurality judgment would not have done so. This may contribute to continued divergence in lower courts, with the result that the matter comes once again before the SCC at some point in the future.

Indeed, there are early indications that this is precisely what is happening. One lower court judge has found it impossible to discern any sort of ratio in the combined concurring and dissenting judgments and has, relying in part on "the front page of the written decision" from the SCC that identifies Charron J. as giving the "Reasons for Judgment", treated the plurality's reasons as binding. (468) Another judge has referred to the plurality as the "real majority". (469) The SKCA adopted the approach of Charron J. because it matched the prevailing trend in lower court jurisprudence. (470) Appellate judges elsewhere have given consideration to the factors identified by LeBel j. (471)

Sentencing

i Remedies for Unconstitutional Mandatory Minimum Sentences

In Ferguson, McLachlin C.J. held that if imposition of a mandatory minimum sentence would result in cruel and unusual punishment, the correct remedy is to declare the law imposing that sentence to be of no force and effect under s. 52 of the Constitution, rather than creating a Constitutional exemption in favour of the convicted person under s. 24(1 ). (472) During an altercation, Ferguson, an RCMP officer, shot and killed a man being held in a cell at a detachment. The jury acquitted him on the murder charge but convicted him of manslaughter, which, because a firearm was involved, carried a four-year minimum sentence under s. 236(a) of the Criminal Code. The judge granted Ferguson a constitutional exemption from the provision imposing the sentence. The Court of Appeal reversed the trial judge; the SCC affirmed. The sentence was not cruel and unusual on the facts of this case. In any event, if the sentence was cruel and unusual, a number of considerations would weigh in favour of striking down the law imposing the minimum sentence rather than granting an exemption to it, including: to allow courts to grant constitutional exemptions for mandatory minimum sentences would be to contradict Parliament's intentions; s. 24(1) provides a remedy for actions that violate the Charter whereas s. 52(1) provides a remedy for laws that violate the Charter; constitutional exemptions in this context would undermine the rule of .law values of certainty, accessibility, intelligibility, clarity and predictability; striking down the law would provide Parliament with certainty as to the constitutionality of the law and the basis for that finding, and the opportunity to remedy the breach.

ii The Principle of Parity

In L.M., (473) the SCC rejected again the notion that a maximum sentence can be given only to the worst offender in the worst circumstances. The offender in this case was guilty of sexually assaulting his young daughter and making, distributing and possessing child pornography involving her and a young friend of hers. He had related previous convictions. The trial judge held that he had committed the 'worst offence in the worst circumstances' and gave him the maximum sentence available. (474) She also found him to be a long-term offender and ordered his supervision for ten years. (475) The QCA, relying primarily on the principle of parity, reduced the sentence from 15 to 9 years.

The SCC reversed the QCA decision and restored the original sentence, emphasizing that the principle of parity should not take priority over the principle of deference to the trial judge's exercise of discretion, given the individualized and contextual nature of the sentencing determination. (The trial judge was also correct not to take into account the period of community supervision of the accused as a long-term offender in determining the length of the sentence, because of the conceptual distinction between sentencing and supervision. (476)) These themes have been echoed by appellate courts throughout the year. (477)

iii Pre-sentence Custody and Bail

In Mathieu, the SCC held that periods of pre-sentence custody taken into account at sentencing do not add to the length of the sentence imposed. (478) Section 731(1)(b) of the Criminal Code allows a judge "sentencing [an] offender to imprisonment for a term not exceeding two years" to add up to three years probation to follow the imprisonment. In Mathieu, the offenders received two year sentences and would have received longer ones but for their significant pre-trial custody. The SCC held that the sentencing judge could make a probation order under s. 731(1)(b).

In a previous case, Fice, (479) the SCC held that a conditional sentence, only available on terms of less than two years imprisonment, could not be given where a longer term of imprisonment would have been imposed but for the pre-sentence custody. Pre-sentence custody was "part of the total punishment imposed ... not a mitigating factor" that simply reduced the appropriate term of imprisonment. (480) Dissenting in that case, Fish J. argued that a "sentence of less than two years is not transformed into a sentence of more than two years ... simply because the trial judge took into account ... time already spent in custody". (481)

The unanimous decision in Mathieu was written by Fish J., who characterized Fice as an exception that proved the general rule that "the term of imprisonment in each case is the term imposed by the judge at the time of sentence". (482) He argued again that a "sentence of less than two years does not ... become a sentence of more than two years simply because the trial judge ... took into account the time already spent in custody". (483) A judge imposing a sentence of less than two years in consideration of pre-trial custody therefore has authority under s. 731(1)(b) of the Code to include a probation order. For the same reason, the judge does not have authority to impose a period of parole ineligibility--that power is only available where an offender receives a sentence of imprisonment of two years or more under s. 743.6(1.2).

While credit is routinely given for pre-sentence detention, (484) practice has diverged on giving credit where the accused is subject to bail conditions imposing meaningful restrictions on liberty. One line of cases, of which the OCA decision in Downes (485) is a leading example, gives credit in essentially the same way as for pre-trial detention. (486) Other cases, including at the OCA and BCCA, have suggested instead that release on bail with conditions can, but need not necessarily, be taken into account as a mitigating factor. (487)

The appropriate treatment of pre-sentencing bail with strict conditions came squarely before both the NBCA and the MBCA in 2008. The MBCA considered the question first in Irvine (488) and explicitly rejected the possibility of giving credit even for pre-sentence bail that amounts to house arrest; at most, bail conditions were to be taken into account as a mitigating factor. That decision did not acknowledge that a practice had developed in some courts of giving credit for pre-sentence bail conditions rather than simply treating them as a mitigating factor. The NBCA did, however, acknowledge the practice (in Voeller), (489) although they questioned the extent to which it was good law even in Ontario under Downes. In any event, they rejected it as inconsistent with the essential nature and purpose of pre-trial bail. (490)

Youth

As youth justice legislation continues to be updated, the SCC has been engaged in the task of applying its unique provisions, particularly in light of the demands of the Charter. (491) Section 146 of the YCJA provides youth with the right to have counsel and another adult present when making any statement. (492) The section also requires that these rights be explained in a manner consistent with the youth's understanding, given his age and circumstances. In L.T.H. (493) the SCC held that this required an explanation that was objectively reasonable taking into account all of the factors relating to the understanding of the particular accused.

The SCC also held that the Crown must prove beyond a reasonable doubt that s. 146 was complied with and also that they must prove any waiver of rights by the young person beyond a reasonable doubt. (494) Three concurring judges differed from the four-judge majority on this point; they would have held that only proof on a balance of probabilities was required. (495)

XII PROVINCIAL OFFENCES

Provincial Offences Act (Ontario)

In London v. Young, (496) Feldman J.A. of the OCA held, with Doherty J.A. dissenting, that where an officer incorrectly entered the "set fine" amount on the form that serves as both the notice and certificate of a provincial offence, a Justice of the Peace is right to quash the Certificate of the Offence because it is not "complete and regular on its face", as required by the Provincial Offences Act. (497) In doing so, she explicitly rejected the conclusion of the Ontario Superior Court of Justice in Wilson. (498) In Wilson, it had been held that because the set fine was only required on the notice of offence, and because in the default proceeding the justice was only required to consider whether the certificate of offence was complete and regular, an error in entering the set fine amount did not require the certificate to be quashed. For Feldman J.A., the default procedure was designed to resolve disputes efficiently while protecting accused persons, by providing them with the information they require to decide whether to contest a charge. (499) Allowing the justice to enter a conviction where the notice was filled out incorrectly and then requiring the offender to appeal would, in her view, wrongly shift the burden of the state's error to the citizen and would be unduly expensive. (500) It would also eliminate the incentive for officers to fill out the paperwork correctly.

In dissent, Doherty J.A. preferred the approach in Wilson. (501) Apparently central to the dispute between the justices was a difference in their view of the purpose and scheme of the Act. Justice Doherty did not share Feldman J.'s view that the Act is directed toward ensuring that the accused makes an informed decision, or toward encouraging officers to fill out the paperwork correctly. In Doherty J.A.'s view, Feldman J.A.'s approach elevated technicalities above the merits of the case. He suggested that in cases where the accused has been materially misled--where the "set fine" was meaningfully higher than was stated on the notice--appeal to the Ontario Court of Justice would provide "a straightforward inexpensive means" of ensuring fairness. (502) This case is another example of the occasional tension between practical bright line rules and a desire to capture what is really in dispute.

XII CONSTITUTIONAL LAW

Canadian Charter of Rights and Freedoms

i Extraterritorial Application

In 2008 the SCC considered the application of the Charter to conduct outside of Canadian territory. In the high profile Khadr case, the SCC held that the Charter applied to CSIS officials interviewing Omar Khadr at Guantanamo Bay. (503) By providing information gathered in these interviews, conducted while Khadr was held in conditions that US courts had found violated international and US domestic law, Canadian officials participated in a violation of international human rights laws. In the Court's 2007 decision in Hape, (504) the majority of the SCC found that the Charter did not apply to Canadian officials involved in a money-lending investigation in the Carribbean, on the basis that international law and comity of nations normally require officials operating abroad to comply with local law. In Khadr, the SCC observed that all members of the Court in Hape had suggested that the principles of comity would not extend to exempt Charter scrutiny in the face of clear violations of international law. The Khadr Court concluded that, "[i]n light of ... decisions by the United States Supreme Court that the process at Guantanamo Bay did not comply with either U.S. domestic or international law, the comity concerns that would normally justify deference to foreign law do not apply in this case." (505)

In Amnesty International, (506) the FCA applied the decisions in Hape and Khadr to a situation involving the handling of Afghan detainees in Afghanistan by members of the Canadian Forces. They rejected Amnesty's request for a declaration that certain provisions of the Charter applied to the detainees. According to Desjardins J.A., Khadr had not changed the meaning of Hape, and "all the circumstances in a given situation must be examined before it can be said that the Charter applies." (508) In this case, the Canadian Forces did not have 'effective control' of the area in which the detainees were held and the Afghan government had not consented to the application of Canadian law to its nationals. In these circumstances, the Charter was found not to apply.

Hape was again applied by the OCA in a civil case, Drabinsky, (508) involving the recognition of a US judgment against the officers of Livent Inc. The OCA held that the Charter could operate to exclude evidence gathered extraterritorially that would compromise trial fairness in Canada. In particular, it would exclude statements made in the context of the US civil case from the Canadian criminal case. The Court reached this conclusion by relying on Hape for the proposition that "the Charter can have 'extraterritorial adjudicative jurisdiction' particularly where the application of that jurisdiction results in purely domestic consequences and does not interfere with the jurisdiction of the foreign country", (509)

ii Section 7: Principles of Fundamental Justice

In 2009, the 'war-on-terror' cases also continued to play a substantial role in the development of s. 7 of the Charter, which provides for heightened procedural protections where state action threatens 'life, liberty, or security of the person'. In Kbadr, (510) having decided that the Charter did apply, the SCC set out bow it applied. In particular, they explained that the s. 7 disclosure requirement was defined in this context by the nature of the Canadian participation in the foreign process. Here, participation involved providing the Americans with the fruits of their interviews of Khadr, thereby imperiling his liberty and security. The remedy s. 7 required was disclosure to the defendant of the information gathered in this way. To make the remedy effective, all information (subject to legitimate national security restrictions) gathered in the interviews had to be disclosed, not just that which had been provided to the Americans. (511)

In Charkaoui, (512) the SCC held that the controversial 'security certificate' process, (513) which provided for the detention of foreign-born terror suspects without trial, and based on undisclosed evidence, engaged liberty and security interests such that s. 7 imposed certain disclosure requirements on CSIS officials. The SCC rejected the decision of the FCA, (514) which had relied on Blencoe (515), where the SCC declined to apply the criminal law requirement of disclosure in the administrative law context of a human rights complaint. The SCC in Charkaoui found that the question of whether s. 7 disclosure requirements apply does not turn on the formal area of law--criminal or administrative--but rather on the severity of the consequences of the proceeding. The SCC emphasized that, in any event, the security certificate process is not purely administrative, (516) In the result, CSIS is required to preserve all the original evidence relied on in relation to the security certificate and to provide that evidence to the ministers and judge involved in the process. After excluding information protected for national security reasons, the judge must summarize what remains and provide it to the person named in the security certificate. (517)

Another s. 7 case warranting brief mention as an illustration of the "dialogue" theory (518) is Sfetkopoulos. (519) In that case the FCA upheld the decision of an application judge (520) to declare a provision of the federal Marihuana Medical Access Regulations (521) to be of no force and effect. The struck provision allowed a medical marihuana user to designate someone to produce marihuana for their medical needs, but prohibited anyone from producing marihuana for more than one user. The law was essentially identical to one that had been struck down in 2003 because it imposed an arbitrary restriction on the right of access to marihuana for medical purposes under section 7 of the Charter. (522) The government had since then licenced a single dealer to produce marihuana for distribution to those authorized to possess it for medical use. The applicants insisted that the licenced supply of marihuana was inferior to the alternatives and the evidence showed that most users did not use the government's licenced supplier. The application judge was unwilling to wade into this question (523) and declared the provision of no force and effect. The FCA upheld that decision and specifically refused to suspend the declaration of invalidity. (524)

iii Section 2: Freedom of Speech

Demonstrations in relation to abortion were the subject matter of Spratt, (525) a 2(b) freedom of expression case arising out of a charge on a provincial offence (526) in British Columbia. The defendants had expressed religious and political opinions disapproving of abortion inside the boundaries of an access zone within which protest was prohibited. The question was whether this prohibition, which infringed s. 2(b), was saved by s. 1. It was. On the most contentious issue, minimal impairment, Ryans J.A. relied largely on American authority (527) for the propositions that (1) as a practical matter, it is necessary to draw a bright-line by banning all confrontation in an area rather than trying to distinguish particular acts, (528) and (2) the right to free speech does not include the right to a captive audience, which would be the effect of allowing the demonstrations to take place at the immediate entrance to the clinic, (529)

iv Section 15: Equality Rights

The SCC issued a landmark s. 15 discrimination decision this year in Kapp. (530) That case upheld a federal program that granted exclusive commercial salmon fishing rights to three aboriginal groups for a twenty-four hour period was upheld. In so doing, the SCC re-formulated the analysis for both subsections of the constitutional discrimination provision: s. 15(1), which proscribes discrimination, and s. 15(2), which protects 'ameliorative programs' (for example, affirmative action) from being struck under s. 15(1).

The Court revisited the s. 15(1) analysis in obiter, suggesting that, in future cases, it would no longer focus on the "abstract" concept of human dignity in discrimination cases. According to Law (531), the previous leading case on discrimination, a court should determine whether a distinction on the basis of a proscribed ground was substantively discriminatory in the sense that would infringe the 'dignity' of a reasonable person in the claimant's position. Under the Law analysis, this 'dignity' analysis involved consideration of 'contextual factors'. Four contextual factors in particular were proposed--the pre-existing disadvantage of the claimant; the correspondence between the ground on which the claim is based and the actual needs, capacities and circumstances of the claimant; the ameliorative purpose or effects of the impugned law or program on a more disadvantaged person or group; and the nature and scope of the interests affected. These factors were posited in Law as providing a focus for the dignity analysis.

In Kapp, the SCC observed that "human dignity is an abstract and subjective notion that ... cannot only become confusing and difficult to apply [but can] be an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be". (532) In this respect, the Court appears to have continued its effort to simplify legal tests and refocus them on the particular claims being advanced in a particular case. In Kapp, this meant returning to the framework outlined in the leading case prior to Law, namely Andrews, (533) which limited the equality rights inquiry to two steps: 1) does the law create a distinction or disadvantage on the basis of an enumerated or analogous ground? 2) does that distinction impose a disadvantage through the perpetuation of prejudice or stereotyping? (534) In Kapp, the Court emphasized that the contextual factors proposed in Law may shed light on whether the impugned law or program perpetuates prejudice or stereotyping, but the impairment of dignity as such is no longer the subject of the discrimination inquiry.

The central issue in Kapp was a longstanding approach, established in Lovelace (535), to the treatment of ameliorative programs under s. 15(2). In Lovelace, section 15(2) was considered to be "confirmatory" of s. 15(1), and the ameliorative aspects of an impugned law or program were simply considered along with the other contextual factors in the 'dignity' analysis described above. In Kapp, the SCC gave independent force to s. 15(2) by prescribing a discrete inquiry into the purported ameliorative purpose of a law or program. As soon as it is shown that a law or program draws a distinction on the basis of an enumerated or analogous ground under s. 15(1), then the discrimination inquiry shifts to s. 15(2). Under s. 15(2), the government may defend the law or program by proving that (1) it has an ameliorative purpose, and (2) it targets a disadvantaged group identified by the impugned distinction. If the government discharges this burden, the law or program need not be justified on any other basis.

v Section 20: Language Rights

Section 20(2) of the Charter provides that citizens are entitled to service from the government or legislature in New Brunswick in their choice of English or French. By contrast, federal agencies are only required to provide services in an official language where the concentration of speakers of that language makes it reasonable to do so. In SAANB, (536) the SCC found the federal Royal Canadian Mounted Police (RCMP) to be bound by New Brunswick's Constitutional language requirements when acting as a provincial police force in that province. The RCMP was not acting as a separate federal institution but rather became, by way of contract, an "institution of the legislature or government" of New Brunswick. (537) By participating in a function of the New Brunswick government, the RCMP assumed the Constitutional obligations of the province.

vi Section 14: Translation Services in Legal Proceedings

A different language rights issue arose in Ryhak, (538) in which the OCA rejected an appeal from an accused who was convicted at trial of murder. The appeal was based, inter alia, on the grounds that the accused was not provided with sufficient Polish language interpretive services to understand the proceeding, as required under s. 14 of the Charter. This complaint had two bases: (1) because the accused had some facility in English, the trial judge had instructed the interpreter to provide translation when the accused indicated that it was needed, rather than continuously; and (2) despite having worked in the court for a long time, the interpreter was, contrary to assurances given to the judge, not accredited and had in fact failed the accreditation exam twice.

The question on appeal was what translation services Rybak was entitled to, given that he is only partially proficient in English. The OCA took a purposive reading: the required level of service was that necessary to allow Rybak the same opportunity to participate as if he were fully conversant in English. (539) In this case, he had not discharged his onus of showing that the interpretative services were deficient. No complaints were made during the trial and there was no evidence connecting the translator's non-accreditation with anything that happened in the trial. The Charter claim was therefore dismissed.

Taxation

In 620 Connaught, (540) the SCC held that a base plus percentage of sales charge on businesses licensed to sell alcohol in Jasper National Park, imposed pursuant to statutory authority by the Minister of Canadian Heritage, was a valid regulatory fee and not a tax, which would be invalid on the basis that s. 53 of the Constitution Act, 1867 provides that only Parliament has the power to tax. Central to the appeal was the application of the SCC decision in Westbank. (541) In Westbank, the Court had held that a tax should be "unconnected to any regulatory scheme", in addition to the existing conditions that it be enforceable by law, imposed under the authority of the legislature, levied by a public body, and intended for a public purpose. (542) Because the Court found easily that the charge had all the other attributes of a tax, (543) the contentious questions were whether there was a relevant regulatory scheme and a sufficient connection between the fee and the scheme.

In the result, the Court held that there was a detailed code of regulation aimed at influencing behaviour, from which the businesses benefited. The fees appeared to be in proportion to the cost of the regulatory scheme--while the evidence was incomplete, the total collected in Jasper appeared to be no greater than the cost of maintaining the park. The charges were therefore in pith and substance regulatory fees and could validly originate with the Minister rather than Parliament under s. 53 of the Constitution Act, 1867.

Was it actually necessary, however, that the quantum of the fees collected and the cost of the regulatory scheme be equivalent? This was the question in Canadian Association of Broadcasters, (544) in which the FCA held that a "soft linkage" was sufficient, (545) In that case, a number of broadcasters challenged the "Part II" license fees levied by the Canadian Radio-television and Telecommunications Commission (CRTC). The CRTC levies two license fees. Part I fees are equal to each licensee's rated share of the Commission's annual regulatory cost. Part II fees are roughly equal to 1.365 per cent of annual revenue from broadcasting, (546) The Federal Court found that no connection had been demonstrated between the amounts collected as Part II fees and any relevant regulatory scheme; they therefore held that the fees were unlawfully imposed taxes, (547)

The FCA reversed, holding that Westbank and 620 Connaught only required either a connection between the fee and the costs of the scheme or that the fee is levied for a regulatory purpose. (548) Having identified this error, the FCA undertook its own evaluation of the Part II fees. They identified the relevant regulatory scheme as the whole Canadian broadcasting system, including not just Industry Canada and CRTC administrative costs but also the CBC. (549) Appropriations for the CBC greatly exceeded the amount of the Part II fees, meaning that there was a "soft-linkage" between the two sufficient to satisfy the requirements in 620 Connaught. (550)

The FCA rejected as "unduly formalistic and impractical" the argument that because monies collected from Part II fees were simply placed in the Consolidated Revenue Fund they were not "tied to" the costs of the scheme. (551) The FCA would also have upheld the alternative argument that the fees "serve a regulatory purpose by ensuring that licensees are required to make payments for the privilege of operating in an industry that is protected by the regulatory scheme from the rigours of full-blown competition". (552)

While Ryer J.A. wrote the primary reasons for the FCA, Letorneau and Pelletier JJ.A. each, in separate concurring reasons, demonstrated even more fundamental disagreement with the contentions of the applicant. They argued, respectively, that no connection between the costs of the scheme and the levies were necessary because the market would prevent such an outcome, (553) and that no question of accountability for taxation arises at all because there is no compulsion--only a voluntary payment of money in exchange for the right to participate in a licensed activity, (554)

The SCC has granted leave to appeal this decision (555) and, it is suggested, for good reason. First, Ryer J.A. suggests in her judgment that the case is not covered by 620 Connaught and that at least to some extent she is plowing new ground, (556) Because this is an area of fundamental constitutional and wide-ranging political importance, it is natural that the SCC would want to weigh in. This is particularly so given that the conclusions reached by Ryer J.A. are far from obvious based on the current jurisprudence (in 620 Connaught the Court took a narrow view of the regulatory scheme--focusing on Jasper National Park rather than all parks-and also struggled with evidentiary deficiencies that were not material if enabling participation in a regulated activity was a sufficient regulatory purpose for the fee).

Second, it is at least arguable that the combined effect of the reasons of Letorneau and Pelletier JJ.A. is to create a majority opinion in the FCA endorsing a view that is by its own admission (557) much more radical than the current jurisprudence. Even if Ryer J.A. is right, the Court may wish to deal directly with the concurring judgments.

The distinction between regulatory fees and taxes was also raised in Confederation des syndicats nationaux, (558) which found that Employment Insurance (El) premiums had been collected unlawfully in 2002, 2003, and 2005. The case dealt with litigation relating to changes made to the El system over the last two decades. Over that time the EI system had developed a deficit and then, after certain changes were made, quickly accumulated a surplus. The general rule under the system was that the EI Commission would, in conjunction with the Cabinet and Minister, set a premium that ensured sufficient revenue while maintaining stability across the business cycle, (559) In spite of the large surpluses, the general rule provided a sufficient connection between the monies collected and the regulatory system, in light of Westbank.

Amendments in 2001 (560) and 2004, (561) however, provided that in 2002, 2003, and 2005 the cabinet and Minister alone would set the premium. These amendments, in the context of the large surpluses then being generated, demonstrated "that the relationship between the levy and the regulatory scheme had disappeared and that premiums had been transformed into a kind of payroll tax". (562) Because the amendments made no clear or express delegation of taxing power, the premiums collected in 2002, 2003, and 2005 were collected unlawfully, (563)

Division of powers

i Section 91(2A)

Dealing with other changes to the Employment Insurance (EI) system at issue in Confederation des syndicats nationaux, (564) discussed above, the SCC found that a broad range of federal programs for the unemployed did not violate the division of powers. The applicant argued that the federal employment service, work-sharing programs, benefits connected to training programs, and other measures extending beyond the payment of money to people who are unemployed were ultra vires the federal government, (565) The respondent countered that the programs could be supported on the basis of the s. 91(2A) EI power or the federal spending power. In the result, the Court upheld all of these aspects of the EI system on the basis of the s. 91(2A) power alone; the Court emphasized that one of the purposes of that power has always been to maintain ties between citizens and the labour market, and that the impugned programs retain a close enough Connection to this objective and form a sufficiently integral part of the exercise of that power as to be intra vires. (566)

ii Section 92(12)

In two cases decided in 2008, courts held that the provinces may take into account the interests of aboriginals in provincial legislation. Both cases considered whether provincial or federal labour legislation should apply to child and family services provided to aboriginals in a culturally sensitive manner, in light of the federal power over Indians set out in s. 92(12) of the Constitution Act, 1867. In NIL/TU, O, (567) these services were provided to aboriginal children via delegated provincial authority. The BCCA unanimously held that nothing about the delegation of this authority took these services outside of the scope of provincial jurisdiction. (568)

The same issue arose in Native Child and Family Services, (569) and the FCA reached the same result. The FCA, however, placed greater emphasis on the application of the doctrine of interjurisdictional immunity, which had recently been reconsidered by the SCC in Canadian Western Bank. (570) The doctrine of interjurisdictional immunity provides that a law, even if it is intra vires the enacting level of government, is inapplicable to matters falling within the exclusive authority of the other level of government. Prior to Canadian Western Bank, the courts had debated the extent to which a law must encroach upon another head of power in order to warrant the application of the doctrine of interjurisdictional immunity. In Canadian Western Bank, the SCC held that the proper question was whether the application of an impugned law would impair (rather than simply affect) the "core" of another head of power. Thus, in Native Child and Family Services, the FCA considered whether the core of the federal power over Indians was impaired (and not merely affected) by the exercise of provincial power. The FCA found that, even assuming that the "core of Indianess" includes relationships within aboriginal families (which did not need to be decided), the province's child and family services legislation could still apply to aboriginals because the record did not support a finding that the legislation impaired these relationships. (571)

(1) See e.g. Dunsmuir, infra note 377 and accompanying text.

(2) See e.g. BCE (QCA), infra note 206 and accompanying text.

(3) See e.g. Mustapha (SCC), infra note 13 and accompanying text.

(4) See e.g. L.T.H., infra note 493 and accompanying text.

(5) See e.g. Confederation des syndicats nationaux, infra note 558 and accompanying text.

(6) Dunsmuir, infra note 377 at para. 132, per Binnie J.

(7) See e.g. Hanis v. Teevan, infra note 372 and accompanying text.

(8) A potential example is in Kent Trade (SCC); see infra note 313 and accompanying text.

(9) A potential example is in Zastowny; see infra note 91 and accompanying text.

(10) Dunsmuir, infra note 377 at para. 133, per Binnie J.

(11) See e.g. Mustapha (SCC), infra note 13 and accompanying text.

(12) See e.g. J.F., infra note 413 and accompanying text.

(13) Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 [Mustapha (SCC)].

(14) Ibid. at para. 17.

(15) Mustapha v. Culligan of Canada Ltd (2005), 32 C.C.L.T. (3d) 123 [Mustapha (SCJ)].

(16) Mustapha v. Culligan of Canada Ltd (2006), 84 O.R. (3d) 457 [Mustapha (OCA)] at para. 49. The Court here purported to follow its decision in Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (OCA).

(17) The Anns test as adopted in Kamloops v. Nielsen, [1984] 2 S.C.R. 2 [Kamloops]. The test, as now applied in Canada, is well summarized in Cooper v. Hobart, [2001] 3 S.C.R. 537 at para. 30: "At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Arms test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care."

(18) This was in keeping with that Court's precedents: see Nespolon v. Alford, (1998) 40 O.R. (3d) 355 at para. 42 ("a duty of care will only be found where the resultant harm is reasonably foreseeable" (emphasis added)) and Vanek v. Great Atlantic & Pacific Company of Canada Limited, (1999) 48 O.R. (3d) 228 at para. 28 ("reasonable foreseeability of nervous shock, potentially limited by policy considerations, is utilized as the proper test for imposing a duty of care in these types of situations").

(19) Mustapha (SCC), supra note 13 at para. 8.

(20) See supra note 17 for an overview of the Anns test.

(21) Mustapha (SCC), supra note 13 at para. 6.

(22) Ibid. at para. 8.

(23) Dunsmuir, infra note 377 at para. 122.

(24) Cecil A. Wright, Cases on the Law of Torts, 4th ed. (Toronto: Buttersworth, 1967) reproduced in Ernest Weinrib, Tort Law: Cases and Materials, 2nd ed. (Toronto: Edmond Montgomery, 2003) at 111. As Professor Wright explains, duty asks "risk to whom?" while remoteness asks "risk of what?".

(25) See, for example, Waap v. Alberta, 2008 ABQB 544 (holding that the list of categories in which proximity had been recognized includes "an act that foreseeably causes physical harm to the plaintiff or the plaintiff's property" but not acts that cause mental suffering).

(26) Mustapha (SCC), supra note 13 at para. 18.

(27) An expert at trial had given evidence that assertions that Mustapha was malingering were based on a failure to consider his ethnic background. He had also claimed, as Brockensire J. put it, that "in the Middle East ... the devotion to and concern for the family is at a higher level than is found in North America". This evidence seems to have been accepted. See Mustapha (SCJ), supra note 15 at paras. 102 and 211.

(28) Hall v. Brooklands Auto-Racing Club, (1933) 1 KB 205, per Greer L.J.

(29) Papatonakis v Australian Telecommunications Commission (1985), 156 CLR 7 at 36, per Deane J.

(30) See e.g. Mayo Moran, Rethinking the Reasonable Person (Oxford: Oxford University Press, 2003).

(31) Design Services Ltd. v. Canada, 2008 SCC 22 [Design Services].

(32) Ibid. at paras. 31-33. In particular, because there was no injury to persons or property involved, the Plaintiffs could not bring themselves within the category of relational economic loss.

(33) For a description of the Anns test, see note 17.

(34) Design Services, supra note 31 at para. 56.

(35) Ibid. at paras. 64-65.

(36) Brett-Young Seeds Ltd. et al. v. K.B.A. Consultants Inc. et al. 2008 MBCA 36 [Brett-Young Seeds].

(37) Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85 [Bird Construction].

(38) Bruce Feldthusen, "Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.: Who Needs Contract Anymore?" (1995) 25 Can. Bus. L.J. 143.

(39) Brett-Young Seeds, supra note 36 at paras. 47-48.

(40) Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2 [Bovingdon]; Paxton v. Ramji, 2008 ONCA 697 [Paxton].

(41) Lacroix (Litigation Guardian of) v. Dominique (2001), 202 D.L.R. (4th) 121 (MBCA) [Lacroix].

(42) As was done in Cherry (Guardian ad litem of) v. Borsman (1990), 75 D.L.R. (4th) 668 (BCSC) [Borsman], aff'd (1992), 12 C.C.L.T. (2d) 137 (BCCA), leave to appeal refused [1993] 2 S.C.R. vi (SCC) (child could recover for abnormalities arising from a breach of the duty of care owed by the physician to the child during an attempted abortion) and in Webster v. Chapman (1997), [1998] 4 W.W.R. 335 (MBCA) (child could recover for abnormalities arising from the doctor's negligent failure to advise the child's mother to discontinue use of a medication).

(43) The court would not recognize a duty on a physician to allow the mother to terminate or avoid pregnancy, and was unable and unwilling to assess damages, which would have been equal to the difference in value between a state of non-existence and a state of existence with the abnormalities.

(44) Bovingdon, supra note 40.

(45) Ibid. at para. 55.

(46) Paxton, supra note 40.

(47) See note 17 for an overview of the Anns test.

(48) The BCCA in Borsman, supra note 42, had found a duty of care between the physician and unborn child. Justice Feldman simply noted that the "Supreme Court of Canada has not had the opportunity to address the issue".

(49) Hill v. Hamilton-Wentworth Police Services Board, [2007] 3 S.C.R. 129 [Hill].

(50) Correia v. Canac Kitchens, 2008 ONCA 506 [Correia].

(51) BMG Canada Inc. v. Antek Madison Plastics Recycling Corp., [2006] O.J. No. 4577 (OCA) [BMG].

(52) Holland v. Saskatchewan, 2008 SCC 42 [Holland (SCC)]. The reasons given by the Chief Justice are just 18 paragraphs long.

(53) See note 17 for an overview of the Anns test.

(54) Holland v. Saskatchewan, 2007 SKCA 18 at paras. 41-43 [Holland (CA)].

(55) Generally, the decision by a public authority as to whether or not to implement a particular public policy cannot be the basis for a tort claim. Yet, once an authority has elected to implement a particular policy, there can be liability for implementing it negligently. The distinction is founded, broadly speaking, on a concern regarding the democratic legitimacy of courts making difficult public policy decisions. See Kamloops, supra note 17 at 11-12.

(56) Holland (SCC), supra note 52 at paras. 14-16.

(57) Attis v. Canada (Health), 2008 ONCA 660 [Attis].

(58) This method of analysis was, in the Court's view, simply an implication of the Supreme Court's insistence that the first question in a negligence case is whether the claim falls in an existing or analogous category of duty: ibid. at para. 31. See e.g. Mustapha (SCC), supra note 13.

(59) Attis, supra note 57 at paras. 53-62.

(60) Ibid. at para. 68.

(61) Ibid. at paras. 73-78.

(62) Adams et al. v. Borrel et al., 2008 NBCA 62 [Adams v. Borrel].

(63) Ibid. at paras. 41 and 42.

(64) Ibid. at para. 44.

(65) Baker v. Russell, 2008 NLCA 51 [Baker].

(66) Ibid. at para. 21.

(67) Hartson v. Hunter, 2006 NLTD 59 at para. 40 (finding that while increased alertness may be required, reduced speed was not).

(68) Maksymetz v. Plamondon, [1998] M.J. No. 318 at paras. 8-9 (MBCA) ("[R]equiring a driver to reduce his speed much below the posted speed limit because of the threat of the sudden appearance on the highway of a large animal, such as a moose or a deer, directly in front of a moving vehicle travelling with dimmed headlights is too high a standard to set for driving on Manitoba roads, especially those in remote areas of the province.")

(69) Resurfice Corp. v. Hankey, [2007] 1 S.C.R. 33 [Resurfice].

(70) Ibid. at para. 22. The exceptional circumstances allowing for the application of the "material contribution" test are (1) that for reasons beyond the plaintiff's control, such as the limits of scientific knowledge, it is impossible to prove causation, and (2) the defendant clearly breached a duty of care and the plaintiff suffered the type of injury falling within the ambit of that duty.

(71) See supra note 65 and accompanying text.

(72) Ibid. at para. 38.

(73) Barry Baker v. Travis Russell et al., 2006 NLTD 114 at para. 53.

(74) Novus actus interveniens translates to "new intervening act". A Novus actus interveniens interrupts the chain of events between the impugned conduct and the injury suffered such that causation cannot be proven.

(75) Baker, supra note 65 at para. 35.

(76) See: Laferriere v. Lawson [1991] 1 S.C.R. 541 at 609;, Arndt v. Smith, [1997] 2 S.C.R. 539 at para. 43; and St. Jean v. Mercier, [2002] 1 S.C.R. 491 at paras. 56-57, 116.

(77) Vaughn Black and David Cheifetz, "Through the Looking Glass, Darkly: Resurfice Corp. V. Hanke" (2007) 45 Alta. L. Rev. 241 at 246 (suggesting that Resurfice has redefined the material contribution test to require only that "the defendant has increased the risk of the plaintiff suffering the type of injury the plaintiff did in fact suffer").

(78) Black and Cheifitz, ibid. at 248, cite in agreement Professor Klar's statement that "even in cases where the evidence clearly does not support the factual proposition that the defendants' negligence caused the plaintiff's injuries, as a matter of probabilities, defendants have been found fully liable for a plaintiff's injuries": Lewis Klar, "Downsizing Torts" in Nicholas J. Mullany & Allen M. Linden, eds., Torts Tomorrow: A Tribute to John Fleming (Sydney: LBC Information Services, 1998) 305 at 311-12.

(79) Black and Cheifitz, ibid. at 251. This fear is confirmed in obiter in Sam v. Wilson, 2007 BCCA 622 at para. 109 (holding that material contribution in Resurfice is "not a test of causation at all: rather, it is a rule of law based on policy"--i.e., it is a policy decision to find liability merely from the increase in risk).

(80) Bohun v. Segal, 2008 BCCA 23 [Bohun (CA)].

(81) That is, had she been diagnosed at the proper time her chances of dying were 21%; at the time she was diagnosed her chances of dying were 25%. This was an absolute increase of 4 percentage points, which equates to a 20% higher chance than before.

(82) See note 70.

(83) Bohun v. Sennewald et al, 2007 BCSC 269 [Bohun (SC)].

(84) Bohun (CA),supra note 80.

(85) Ibid. at para. 53.

(86) Cottrelle v. Gerrard (2003), 67 O.R. (3d) 737 (OCA) [Cottrelle].

(87) Ibid. at para. 25.

(88) Barker v. Montfort Hospital, 2007 ONCA 828; Monks v. ING Insurance Company of Canada, 2008 ONCA 269 at paras. 85-86 ("Athey v. Leonati ... is the leading Canadian case on causation... I do not understand Resurfice to alter the basic causation principles."). This is perhaps surprising given that there is a plausible reading of Resurfice that would make liability for increased risk of injury available, and that the Court had noted in Cottrelle, supra note 86 at para. 37 (citing inter alia Salvatore Mirandola, "Lost Chances, Cause-in-Fact and Rationality in Medical Negligence" (1992) 50 U.T. Fac. L. Rev. 258) that the exclusion of liability in those circumstances "has been criticized as being unduly rigid and harsh".

(89) See e.g. Bowes v Edmonton (City), 2007 ABCA 347 and Fullowka v. Royal Oak Ventures Inc., 2008 NWTCA 4.

(90) See e.g. Sam v. Wilson, supra note 79.

(91) British Columbia v. Zastowny, 2008 SCC 4 [Zastowny]. The judgment, written by Rothstein J., was just 44 paragraphs long.

(92) Ex turpi causa non oritur actio expresses the proposition that a plaintiff will not be allowed to pursue a cause of action which arises from his or her own illegal conduct.

(93) H.L. v. Canada (Attorney General), 2005 SCC 25 at para. 137 [H.L.].

(94) Zastowny, supra note 91 at para. 42.

(95) WIC Radio Ltd. v. Simpson, 2008 SCC 40 [WIC Radio].

(96) Ibid. at para. 28.

(97) Ibid.

(98) Ibid. at para. 35.

(99) Ibid. at para. 28.

(100) Ibid. at paras. 18.

(101) Cusson v. Quan, 2007 ONCA 771 (leave to appeal granted 3 April 2008).

(102) WIC Radio, supra note 95 at paras. 81 and 109.

(103) See e.g. Stephen Frankel, "Case Comment: WIC Radio v. Simpson" (2009) 67(1) U.T. Fac. L. Rev. 135.

(104) Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 [BIA].

(105) Ronald (Bankrupt), Re, 2008 MBCA 104 [Ronald].

(106) Personal Property Security Act, C.C.S.M. c. P35 [PPSA].

(107) Saulnier v. Royal Bank of Canada, 2008 SCC 58 [Saulnier (SCC)]; the decision of the Nova Scotia Court of Appeal in that case, Saulnier (Receiver of) v. Saulnier, 2006 NSCA 91, was cited in Ronald, supra note 105 at para. 20.

(108) Saulnier (SCC), ibid. at para. 23.

(109) Ibid. at para. 16.

(110) National Trust Co. v. Bouckhuyt, (1987), 61 O.R. (2d) 640 (OCA).

(111) Saulnier (SCC), supra note 107 at para. 27.

(112) Ibid. at para. 28.

(113) Ibid. at para. 42.

(114) Canadian National Railway Co. v. Royal and Sun Alliance Insurance Co. of Canada 2008 SCC 66 [CNR v. Royal (SCC)].

(115) Ibid. at para. 2.

(116) Canadian National Railway Co. v. Royal and Sun Alliance Insurance Co. of Canada, [2004] O.J. No. 4086 (SCJ) [CNR v. Royal (SCJ)].

(117) Canadian National Railway Co. v. Royal and Sun Alliance Insurance Co. of Canada, 2007 ONCA 209 at para. 62 [emphasis added by the SCCI [CNR v. Royal (CA)].

(118) CNR v. Royal (SCC), supra note 115 at para 4.

(119) Ibid. at para. 5.

(120) Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252 at 269.

(121) Consolidated-Bathurst Export Ltd. c. Mutual Boiler & Machinery Insurance Co., [1980] 1 S.C.R. 888 at 901.

(122) Manufacturers' Mutual Insurance Co. v. Queensland Government Railways (1968), [1969] 1 Lloyd's Rep. 214 at para. 86 (Australia H.C.) (further: "the fact of failure not only speaks for itself but, once it is attributed to the design, it discharges the insurers' onus of proof") [Queensland].

(123) RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., 2008 SCC 54 [RBC v. Merrill Lynch (SCC)].

(124) RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., 2003 BCSC 1773 [RBC v. Merrill Lynch (SC)].

(125) RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., 2007 BCCA 22 [RBC v. Merrill Lynch (CA)].

(126) Hadley v. Baxendale (1854), 9 Exch. 341, 156 E.R. 145 (Eng. Ex. Div.) [Hadley v. Baxendale]. This case established that damages are recoverable for a contractual breach if the damages are "such as may fairly and reasonably be considered either arising naturally ... from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties", at para. 151.

(127) RBC v. Merrill Lynch (SCC), supra note 123 at para. 34.

(128) Ibid. at para. 36.

(129) Ibid. at para. 51.

(130) Evans v. Teamsters Local Union No. 31, 2008 SCC 20 [Evans v. Teamsters (SCC)].

(131) Evans v. Teamsters Local Union No. 31, 2005 YKSC 71 [Evans v. Teamsters (SC)].

(132) Evans v. Teamsters Local Union No. 31, 2006 YKCA 14 [Evans v. Teamsters (CA)].

(133) Evans v. Teamsters (SCC), supra note 130.

(134) Ibid. at para. 47.

(135) Ibid. at para. 49.

(136) Farquhar v. Butler Brothers Supplies Ltd., [1988] 3 W.W.R. 347, 23 B.C.L.R. (2d) 89 (BCCA).

(137) Evans v. Teamsters (SCC), supra note 130 at para. 105.

(138) Ibid. at para. 113 [emphasis in original].

(139) Northway Aviation Ltd. v. Southeast Resource Development Council Corp. Ltd. et al., 2008 MBCA 93 [Northway Aviation].

(140) Borcherdt Concrete Products Ltd. v. Port Hawkesbury (Town) 2008 NSCA 17 [Borcherdt Concrete].

(141) Ibid. at para. 8.

(142) The Queen (Ont.) v. Ron Engineering, [1981] 1 S.C.R. 111 and M.J.B. Enterprises Ltd. v. Defence Construction (1951), [1999] 1 S.C.R. 619 [M.J.B. Enterprises].

(143) Northway Aviation, supra note 139 at para. 80, quoting from Martel Building Ltd. v. R., 2000 SCC 60 at para. 80.

(144) M.J.B. Enterprises, supra note 142.

(145) Metis National Council Secretariat Inc. et al. v. Dumont, 2008 MBCA 142 [Dumont (CA)].

(146) Ibid. at paras. 23 and 25.

(147) Metis National Council Secretariat Inc. et al. v. Dumont 2006 MBQB 163 [Dumont (QB))].

(148) Dumont (CA), supra note 145 at para. 20.

(149) See Baier v. Alberta, 2007 SCC 31.

(150) See Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69.

(151) Fraser v. Ontario (Attorney General), 2008 ONCA 760 [Fraser].

(152) Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 [AEPA].

(153) Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 [Dunmore].

(154) Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A [LRA].

(155) AEPA, supra note 152, s. 1(1).

(156) AEPA, supra note 152, s. 1(2). See Dunmore, supra note 153 at para. 67.

(157) Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391 [Health Services].

(158) Fraser, supra note 151, at paras. 7, 11.

(159) Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313.

(160) PSAC v. Canada, [1987] 1 S.C.R. 424.

(161) RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460.

(162) See citations at note 156, supra.

(163) Fraser, supra note 151 at para. 28.

(164) Ibid. at para. 11.

(165) Ibid. at paras. 80-81.

(166) Health Services, supra note 157, at para. 91.

(167) Birch v Union of Taxation Employees, 2008 ONCA 809 [Birch].

(168) Ibid. at para. 45.

(169) Ibid. at para. 100.

(170) Ibid. at para. 101.

(171) Ibid. at para. 91.

(172) Ibid. at para. 63.

(173) Nova Scotia (Human Rights Commission) v. Halifax (Regional Municipality), 2008 NSCA 21 [Nova Scotia v. Halifax].

(174) Ibid. at para. 21. This two-part test for determining whether arbitral jurisdiction is exclusive in a particular case was drawn from Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185.

(175) Nova Scotia v. Halifax, supra note 173 at para. 51.

(176) Ibid. at para. 79.

(177) Catherine L. Peters, "The Hydro-Quebec decision: restoring balance to the accommodation analysis" Hicks Morley Client Update (22 July 2008), online: Hicks Morley <http://www.hicksmorley.com/images/pdf/2008/CU_Hydro_Quebec.pdf>.

(178) Michael Lynk, "How many swallows make a spring? Human rights and the workplace at the Supreme Court of Canada" Doorey's Workplace Law Blog (3 August 2008), online: Doorey's <http://www.yorku.ca/ddoorey/lawblog/?p=97>.

(179) Hydro-Quebec v. SCFP-FTQ, 2008 SCC 43 [Hydro-Quebec]. See also Keays, infra note 188.

(180) Hydro-Quebec, ibid.

(181) As required by British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3.

(182) Hydro-Quebec, supra note 179 at para. 13.

(183) Ibid. at paras. 15-19.

(184) Communication, Energy and Paperworkers Union of Canada Local 60N v. Abitibi Consolidated Inc., 2008 NLCA 4 at para. 1 [CUPE v. Abitibil.

(185) Ibid. at para. 35.

(186) Ibid. at para. 37.

(187) Hydro-Qudbec, supra note 179.

(188) Honda Canada Inc. v. Keays, 2008 SCC 39 [Keays].

(189) Hadley v. Baxendale, supra note 126 at 151, cited in Keays, ibid. at para. 54.

(190) Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 [Wallace].

(191) Keays, supra note 188 at para. 35.

(192) Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 [Fidler].

(193) Keays, supra note 188 at para. 59.

(194) Ibid.

(195) Ibid. at para. 62.

(196) Ibid. at para. 64.

(197) Seneca College v. Bhadaudria, [1981] 2 S.C.R. 181 [Bhadaudria].

(198) Ibid. at para. 119.

(199) See e.g. Canada Business Corporations Act, R.S.C 1985, c. C-44, s. 239 [C.B.C.A.].

(200) Maple Leaf Foods Inc. v. Markland Seafoods Ltd., 2007 NLCA 7 [Markland 1] and Nord Invest Ltd. v. Maple Leaf Foods Inc., 2008 NLCA 11 [Markland 2].

(201) Per the rule that a shareholder had no individual claim for harm done to its corporation, established in Foss v. Harbottle (1843), 67 E.R. 189 (Eng. V.-C.) [Foss v. Harbottle] and affirmed in Hercules Management Ltd v. Ernst and Young, [1997] 2 S.C.R. 165.

(202) According to the language in the Newfoundland Corporations Act, R.S.N.L. 1990, c. C-36, s. 369(2): "[A]n action may not be brought ... unless the court is satisfied (a) that the complainant has given reasonable notice to the directors ... where the directors of the corporation or its subsidiary do not bring, diligently prosecute or defend or discontinue the action." The language of s. 246(3) of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 [O.B.C.A.] is to the same effect: "[N]o action may be brought ... unless the complainant has given fourteen days' notice to the directors ... and the court is satisfied that, (a) the directors ... will not bring, diligently prosecute or defend or discontinue the action." The C.B.C.A., supra note 199, s. 239(2) is nearly identical: "No action may be brought ... unless the court is satisfied that (a) the complainant has given notice to the directors ... if the directors of the corporation or its subsidiary do not bring, diligently prosecute or defend or discontinue the action."

(203) Pappas v. Acan Windows Inc., [1991] N.J. No. 164 (NSSC).

(204) NPV Management Ltd v. Anthony, [2003] N.J. No. 194 (NLCA).

(205) Vadeko International Inc. v. Philosophe (1990), 10.R. (3d) 87 (Div. Ct.).

(206) BCE Inc. v. 1976 Debentureholders, 2008 SCC 69 [BCE (SCC)], on appeal from BCE inc. (Arrangement relatif a), 2008 QCCA 935 [BCE (QCA)]. Commentators have entered into this debate throughout. For examples of contemporaneous comments see: Jeffrey Macintosh, "The People's corporate law: unsafe at any speed" Financial Post (10 June 2008); Jeffrey Macintosh, "Engine of wealth" Financial Post (11 June 2008); Peter Zumbansen and Simon Archer, "Some Reflections on the BCE Deal 2008 and the Firm as a Contractual Organization" The Court (17 July 2008), online: <http://www.thecourt.ca/2008/07/17/some-reflections-on-the -bce-deal-2008-and-the-firm-as-a-contractual-organization/>; Christopher C. Nicholls, "Canada's M&A rule book may be written" The Globe and Mail (9 June 2008); Anita Anand, "Backing the BCE Bondholders--Beyond Law and Contract" UTFL Faculty Blog (22 May 2008), online: <http://utorontolaw.typepad.com/faculty_blog/ 2008/05/backing-the-bce.html>; Anita Anand, "Backing the BCE Board" UTFL Faculty Blog (19 December 2008), online: <http://utorontolaw.typepad.com/faculty_blog/2008/12/ backing-the-bce-board.html>; Steven M. Davidoff, "Canadian Class Warfare" DealBook: The Deal Professor (22 May 2008), online: <http://dealbook.blogs.nytimes.com/2008/05/22/ bell-canada-class-warfare/>.

(207) C.B.C.A., supra note 199.

(208) The oppression remedy is available where a corporation acts unfairly or prejudicially towards a securityholder, creditor, director, or officer. It is frequently used, for example, by minority shareholders to prevent the majority shareholders from expropriating their investment.

(209) BCE (QCA), supra note 206 at para. 106.

(210) See: Revlon v. MAC Andrew & Orbes Holdings Inc., 506 A. 2d 173 (Del. Sup. Ct. 1986). Revlon duties were summarized as follows in CW Shareholdings Inc. v. WIC Western International Communications Ltd. (1998), 39 O.R. (3d) 755 at 768 (Div. Ct.): "In the context of a hostile take-over bid situation where the corporation is 'in play' (i.e., where it is apparent there will be a sale of equity and/or voting control) the duty is to act in the best interests of the shareholders as a whole and to take active and reasonable steps to maximize shareholder value by conducting an auction."

(211) BCE (QCA), supra note 206 at para. 87.

(212) According to executive legal officer for the Court, Jill Copeland, as quoted in Robert Todd, "BCE case 'gruelling' for lawyers" Law Times (23 June 2008), online: <http://www.lawtimesnews.com/Headline-News/ BCE-case-gruelling_for_lawyers>.

(213) Peoples Department Stores Inc. (Trustee of) v. Wise, [2004] 3 S.C.R. 461 [Peoples].

(214) BCE (SCC), supra note 206 at para. 38.

(215) Ibid. at para. 40 ("The 'business judgment rule' accords deference to a business decision, so long as it lies within a range of reasonable alternatives").

(216) Ibid. at para. 165. The Court emphasizes the "crucial" distinction between the oppression remedy and the requirement that a plan be approved by the courts as fair and reasonable: the latter is concerned only with strict legal rights (except in exceptional circumstances not engaged here). Unlike an oppression action, the court approval process imposes a burden on the proponent of the transaction rather than the party resisting it, and could therefore yield different results. The Court criticized the QCA for importing the reasonable expectations interests relevant to the oppression inquiry into the approval process, where the burden was different.

(217) Ibid. at paras. 139-142. The Court reasoned that the "business judgment test" was neither useful nor sufficient for the purposes of evaluating a plan of arrangement under s. 192. First, the business judgment test is sometimes confused with the business judgment rule, which expresses the need for deference to the business judgment of directors as to the best interests of the corporation. Section 192, by contrast, addresses whether the proposed arrangement is fair and reasonable. Second, the business judgment test does not in effect provide any more information than the outcome of the vote giving rise to the plan of arrangement.

(218) Ibid. at para. 66. The phrase "responsible corporate citizen" appears at para. 82.

(219) See e.g. counsel quoted in Jim Middlemiss, "Supreme Court reasoning positive for directors: corporate lawyers" Financial Post (19 December 2008), online: <http://www.financialpost.com/news-sectors/legal/story.html?id=1096271>.

(220) O.B.C.A., supra note 202.

(221) Foss v. Harbottle, supra note 201.

(222) Malata Group (HK) Limited v. Jung, 2008 ONCA 111 [Malata Group].

(223) Ibid. at para. 26.

(224) Ibid. at para. 27.

(225) O.B.C.A., supra note 202, s. 248(3)(h); see also, C.B.C.A., supra note 199, s. 341(3)(h).

(226) Malata Group, supra note 222 at para. 39.

(227) Ibid. at para. 34.

(228) 2008 FCA 304 [Aujla].

(229) Excise Tax Act, R.S.C. 1985, c. E-15 [ETA].

(230) Ibid. at para. 9. The restoration of the company was pursuant to s. 262 of the BC Company Act, R.S.B.C. 1996, c. 62 [B.C.C.A.]. See also: C.B.C.A., supra note 199, s. 209.

(231) B.C.C.A., ibid.

(232) The majority noted, however, that had the taxpayers acted as if they were directors, they might have been caught by the definition of that term in spite of the legal situation and would have been liable.

(233) Aujla, supra note 228 at para. 70.

(234) Ibid. at para. 74.

(235) B.C.C.A.,, supra note 230, s. 108.

(236) Aujla, supra note 228 at para. 78.

(237) Ibid. at para. 82.

(238) Ibid. at para. 86.

(239) Canada (Commissioner of Competition) v. Labatt Brewing Company Limited, 2008 FCA 22 [Labatt].

(240) Competition Act, R.S.C. 1985, c. C-34, s. 100(1)(a).

(241) The Director of Investigation and Research v. Superior Propane et al., (1998) CT-98/02, 85 C.P.R. (3d) 194 (Can. Comp. Trib.).

(242) Blakes, "New Timing Paradigm in Canada for Merger Review: The Labatt Decision" Blakes Bulletin on Competition Law (April 2007), online: <http://www.blakes.com/english/legal_updates/competition/ april_2007/The_Labatt_Decision.pdf>.

(243) Competition Bureau, Fee and Service Standards Handbook (4 December 2003), online: <http://www.ic.gc.ca/eic/site/cb-bc.nsf/vwapj/ ct02530e_a.pdf/$FILE/ct02530e_a.pdf>.

(244) Burke v. Hudson's Bay Company, 2008 ONCA 394 [Burke].

(245) Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 [Schmidt].

(246) Burke, supra note 244 at paras. 56-57.

(247) Ibid. at para. 90.

(248) Hayes Forest Services Limited v. Weyerhaeuser Company Limited, 2008 BCCA 31 [Hayes].

(249) Commercial Arbitration Act, R.S.B.C. 1996, c. 55.

(250) Ibid., ss. 14 and 32.

(251) See e.g. Domtar Inc. v. Belkin Inc. (1989), 62 D.L.R. (4th) 530 (BCCA), and more recently British Columbia v. Surrey School District No. 36, 2005 BCCA 106 at para. 42, per Southin J., dissenting on other grounds ("[a] question of construction of a written instrument is, of course, a question of law").

(252) See e.g. Petty v. Telus Corp., 2002 BCCA 135.

(253) Hayes, supra note 248 at para. 44.

(254) Cascadia International Resources Inc. v. Novawest Resources Inc., 2008 BCSC 679 at para. 18.

(255) See e.g. MacDougall v. MacDougall (2005), 262 D.L.R. (4th) 120 at paras. 25-32 (ONCA) and Casurina Limited Partnership v. Rio Algom Ltd. (2004), 40 B.L.R. (3d) 112 at para. 34 (ONCA).

(256) Stein v. Stein, 2008 SCC 35 [Stein].

(257) Family Relations Act, R.S.B.C. 1985, c. 128.

(258) Stein, supra note 256 at para. 9.

(259) Ibid. at para. 11.

(260) Ibid. at para. 13.

(261) Ibid. at para. 23.

(262) Beese v. Beese, 2008 BCCA 396 at para. 46.

(263) See Pangalia v. Pangalia, 2008 BCSC 1279 at para. 49 (citing Stein, supra note 256 and concluding that debts "must be fully taken into account in the division of family assets"). This view has been generalized by the Alberta Court of Appeal in Dbala v. Dhala, 2008 ABCA 259 at para. 18 (the position that only matrimonial property is to be divided under the Act and that matrimonial debt is not something to be divided "is not ... reconcilable with the principles in Stein").

(264) Stein, supra note 256 at para. 14.

(265) Carol J. Rogerson and D.A. Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) [Guidelines]. These Guidelines provide a non-binding indication of what spousal support payments should given in a particular financial situation.

(266) Fisher v. Fisher, 2008 ONCA 11 [Fisher].

(267) Ibid. at para. 95. It has been held, however, that their importance increases when financial information is incomplete: Langdon v. Langdon, [2008] O.J. No. 418 (SCJ).

(268) Fisher, ibid. at para. 96.

(269) Ibid. at paras. 97-98.

(270) Ibid. at para. 101.

(271) Ibid. at para. 103. There is no error where the Guidelines are not put before the trial judge: Jessop v. Wright, 2008 ONCA 673. Courts in other provinces, while generally accepting the view of the OCA that the Guidelines are helpful, have not necessarily accepted that a failure to explain divergence from them even where they are put forward amounts to an error. See, e.g., J.H.A. v. C.G.A., 2008 MBQB 62.

(272) Chutter v. Chutter, 2008 BCCA 507 [Chutter].

(273) Ibid. at para. 101.

(274) Ibid. at para. 102.

(275) See Sawatzky v. Sawatzky, 2008 ABCA 355.

(276) See, generally, D.A. Rollie Thompson, "Slackers, Shirkers, and Career-Changers: Imputing Income for Under-Employment and Unemployment", in Philip M. Epstein, ed., Law Society of Upper Canada Special Lectures: Family Law (Irwin Law: Toronto, 2006).

(277) Guidelines, supra note 265, s. 19(1).

(278) D.L.M. v. J.A.M., 2008 NBCA 2 at para. 43 [D.L.M.].

(279) Ibid.

(280) Child Support Guidelines Regulation, Man. Reg. 58/98, s. 9 [Manitoba Guidelines]. The federal provision is identical: Federal Child Support Guidelines, SOR/97-175, s. 9.

(281) Mehling v. Mehling, 2008 MBCA 66 at para. 24 [Mehling].

(282) Ibid. at para. 30.

(283) Ibid. at paras. 45-47.

(284) Probert v. Andres, 2008 SKQB 361.

(285) Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

(286) Ibid., s. 41(14).

(287) Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825 [Fischer].

(288) Ibid. at paras. 25-26.

(289) Ibid. at paras. 24 and 26.

(290) Ibid. at para. 30.

(291) R. v. McLarty, 2008 SCC 26 [McLarty].

(292) Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 66.1(6).

(293) Winter v. Inland Revenue Commissioners (1961), [1963] A.C. 235 (U.K.H.L.) and Wawang Forest Products Ltd. v. R., 2001 D.T.C. 5212, 2001 FCA 80 (FCA).

(294) McLarty, supra note 291 at para. 18.

(295) Ibid. at para. 38.

(296) Ibid. at para. 91.

(297) Redeemer Foundation v. Canada (National Revenue), 2008 SCC 46 [Redeemer Foundation].

(298) Ibid. at para. 1 (pointing to s.231.2(2) of the Income Tax Act, supra note 292).

(299) Income Tax Act, supra note 292, ss. 230(2)(a) and 231.1.

(300) Redeemer Foundation, supra note 297 at para. 27.

(301) Ibid. at para. 41.

(302) eBay Canada Ltd. v. Canada (National Revenue), 2008 FCA 348 at para. 3 [eBay].

(303) Ibid., following the language in the Income Tax Act, supra note 292, s. 231.6.

(304) Ibid. at para. 4.

(305) Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2008 SCC 46 at para. 43.

(306) eBay, supra note 302 at para. 40.

(307) Ibid. at para. 48.

(308) Fortin v. Canada, 2008 FCA 248 [Fortin].

(309) Ibid. at para. 2.

(310) Breslaw v. Canada, 2005 FCA 355; Brunet c. R., 2007 FCA 196.

(311) Fortin, supra note 308 at para. 11.

(312) Ibid. at para. 12.

(313) Kent Trade and Finance Inc. v. JP Morgan Chase Bank, 2008 FCA 399 [Kent Trade (FCA)].

(314) Kent Trade and Finance Inc. v. JP Morgan Chase Bank, 2005 FC 864 [Kent Trade (FCTD)].

(315) Imperial Oil Ltd. v. Petromar Inc., 2001 FCA 391 [Imperial Oil].

(316) Kent Trade and Finance Inc. v. JP Morgan Chase Bank, 2006 FC 409 at para. 70 [Kent Trade (FC)].

(317) Richardson International, Ltd. v. Mys Chikhacheva (The), 2002 FCA 97 [Richardson[.

(318) Kent Trade (FCA), supra note 313 at para. 24.

(319) Ibid. at para. 24.

(320) Federal Courts Act, R.S.C. 1985, c. F-7.

(321) Nu-Pharm Inc. v. Canada, 2008 FCA 227 [Nu-Pharm].

(322) Grenier v. Canada, 2005 FCA 348 [Grenier].

(323) The Minister of Citizenship & Immigration v. Alan Hinton and Irina Hinton, 2008 FCA 215 [Alan Hinton].

(324) Telezone v AG (Can); G-Civil v The Queen; Fielding Chemical Technologies v AG (Can); Michiel McArthur v AG (Can), 2008 ONCA 892.

(325) Ibid. at para. 100.

(326) Ibid. at para. 96.

(327) R. v. Mahalingan, 2008 SCC 63 [Mahalingan].

(328) Grdic v. The Queen, [1985] 1 S.C.R. 810 [Grdic].

(329) Mahalingan, supra note 327 at para. 22.

(330) Such alternative avenues include abuse of process; character evidence rules; the Kienapple principle (whereby an accused cannot be convicted of two offences arising from the same facts: Kienapple v. The Queen, [1975] 1 S.C.R. 729 [KienappleD; collateral attack; the pleadings of autrefois convict and autrefois acquit (that the accused has already been convicted or acquitted of the offence charged); and s. 11(h) of the Charter (protecting against double jeopardy).

(331) Mahalingan, supra note 327, at para. 84.

(332) Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77 [Toronto v. CUPE].

(333) Canada v. Garber, 2008 FCA 53 [Garber].

(334) Polgrain, as Executor on Behalf of the Estate of Polgrain v. The Toronto East General Hospital et al. (2007), 87 O.R. (3d) 55 (SCJ) [Polgrain (SCJ)].

(335) Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427 [Polgrain (CA)].

(336) Garber, supra note 333 at para. 55.

(337) Ibid. at para. 79.

(338) Limitations Act, 2002, S.O. 2002, c. 24 Sch. B.

(339) St. Jean v. Cheung, 2008 ONCA 815 [St. Jean].

(340) Pepper v. Zellers Inc. (2006), 83 O.R. (3d) 648 (C.A.) [Pepper v. Zellers].

(341) Meady v. Greyhound Transportation Corp., 2008 ONCA 468 [Meady v. Greyhound].

(342) St. Jean, supra note 339 at para. 31.

(343) Joseph v. Canada's Wonderland, 2008 ONCA 469.

(344) St Denis v. TD Insurance Home and Auto liberty Insurance Co of Canada (2005), 80 O.R. (3d) 76 (SCJ); Doyley v. York Condominium Corp. (2006), 82 O.R. (3d) 629 (SCJ); Munshaw v. Economical Mutual Insurance Co. (2007), 84 O.R. (3d) 785 (SCJ).

(345) Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [Rules].

(346) Grey Condominium Corporation No. 27 v. Blue Mountain Resorts Limited, 2008 ONCA 384 [Grey Condominium Corp].

(347) Canada (Attorney General) v. Lameman, 2008 SCC 14 [Laneman].

(348) See: Limitations Act, S.A. 1996, c. L-15.1, s. 13; Limitation of Actions Act, R.S.A. 1980, c. L-15, s. 4.

(349) Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 [Blood Tribe].

(350) Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 12.

(351) Blood Tribe, supra note 349 at para. 23.

(352) Juman v. Doucette, 2008 SCC 8 [Juman (SCC)]. Indeed, the trial judge in Juman specifically linked the two questions: "The state is forbidden to use its investigatory powers to violate the confidentiality requirement of solicitor-client privilege; so too, in my view, should the state be forbidden to violate the confidentiality protected by discovery privilege." Juman v. Doucette, 2005 BCSC 400 at para. 62 [Juman (SC)].

(353) Juman v. Doucette, 2008 BCCA 262 at para. 56 [Juman (CA)].

(354) Juman (SCC), supra note 352 at para. 49.

(355) Rules, supra note 345, r. 30.1, adopted in ibid. at para. 34. It is worth noting that Binnie J. also seems in his judgment to include in the balance the prejudice to the process of discovery more generally.

(356) Juman (SCC), ibid. at para. 32.

(357) Kitchenham v. AXA Insurance Canada, 2008 ONCA 877 [Kitchenham].

(358) Rules, supra note 345.

(359) Holland v. Marshall, 2008 BCCA 468 [Holland].

(360) Endean v. Canadian Red Cross Society (1998), 48 B.C.L.R. (3d) 90 (C.A.) [Endean].

(361) Spoliation is the "destruction, mutilation, alteration, or concealment of evidence in the context of existing or potential litigation": Blacks Law Dictionary, 8th ed. (St. Paul, Minn.: Thomson/West, 2004).

(362) Holland, supra note 359 at para. 67.

(363) Spasic Estate v. Imperial Tobacco (2000), 49 O.R. (3d) 699 (CA); Robb v. St. Joseph's Health Centre, Rintoul v. St. Joseph's Health Centre, Farrow v. Canadian Red Cross Society (2001), 152 O.A.C. 60 (CA), and Kacperski v. Orozco, 2005 ABCA 179.

(364) Holland, supra note 359 at para. 67.

(365) Ibid. at para. 73-74. The decision reflects, perhaps, the Court's practical concern with deciding difficult legal questions in a case in which the appellant is self-represented and the legal arguments on both sides "unhelpful".

(366) FH v. McDougall, 2008 SCC 53 [FH v. McDougalll.

(367) See e.g. B. (M.) v. British Columbia, 2001 BCCA 227; Blackwater v. Plint, 2001 BCSC 997; J.L.M. v. P.H., [1998] B.C.J. No. 1546.

(368) Bater v. Bater, [1950] 2 All E.R. 458 at 459, per Denning L.J. (BCCA).

(369) Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164.

(370) FH v. McDougall, supra note 366 at para. 49.

(371) National Bank Financial Ltd. v. Potter, 2008 NSCA 92 [National Bank v. Potter].

(372) Hanis v. Teevan, 2008 ONCA 678 [Hanis v. Teevan].

(373) Coronation Insurance Co. v. Clearly Canadian Beverage Corp., 1999 BCCA 11.

(374) St. Paul Fire & Marine Insurance Co. v. Durabla Canada Ltd. (1996), 29 O.R. (3d) 737 (CA); Daher v. Economical Mutual Insurance Co. (1996), 31 O.R. (3d) 472 (CA).

(375) Sommerfield v. Lombard Insurance Group (2005), 74 O.R. (3d) 571 (SCJ); Scott v. Optimum Frontier Insurance Co. (2005), 38 C.C.L.I. (4th) 129 (SCJ); Kelly Panteluk Construction Ltd. v. AXA Pacific Insurance Co., 2005 SKQB 239.

(376) Beginning with the decision in CUPE, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 SCR 227 [CUPE].

(377) Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir].

(378) See: CUPE, supra note 376; Syndicat des employes de production du Quebec v. CLRB, [1984] 2 S.C.R. 412; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; and Pushpanathan v. Canada (Minister o[ Citizenship and Immigration), [1998] 1 S.C.R. 982 [Pushpanatban].

(379) Pushpanathan, ibid.

(380) Toronto v. CUPE, supra note 332; Ontario v. O.P.S.E.U., [2003] 3 S.C.R. 149; Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609 [Voice Construction]; Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650; and Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710.

(381) Dunsmuir, supra note 377 at para. 1.

(382) Ibid. at para. 122.

(383) Ibid. at para. 34. This result had been largely predicted, based on a reading of Voice Construction, supra note 380, in a judgment, in the minority on this point, released a few months earlier by Smith J.A. in Saskatchewan: Saskatoon (City) v. Canadian Union of Public Employees, Local 59, 2008 SKCA 11.

(384) Dunsmuir, ibid. at para. 62.

(385) Ibid. at para. 128.

(386) Ibid. at para. 158.

(387) Ibid.

(388) Ibid. at para. 160.

(389) Association des courtiers et agents immobiliers du Quebec v. Proprio Direct Inc., 2008 SCC 32 [Proprio Direct].

(390) Dunsmuir, supra note 377.

(391) Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 [Knight v. Indian Head].

(392) There are two minor situations in which a public law duty of fairness may continue to apply: where the office is truly at-pleasure, such as when the contract contains a summary dismissal power, and where the statutory power to dismiss implies that a duty of fairness is owed: see Dunsmuir, supra note 377 at para. 115.

(393) Societe de l'assurance automobile du Quebec v. Cyr, 2008 SCC 13 [Cyr].

(394) Ibid. at para. 25.

(395) Ibid. at paras. 62 and 80.

(396) Martin v. Vancouver (City of), 2008 BCCA 197 [Martin v. Vancouver[.

(397) Vancouver Charter, S.B.C. 1953, c. 55.

(398) Martin v. Vancouver, supra note 396 at para. 71.

(399) R. v. V.W., 2008 ONCA 55 [V.W.].

(400) Youth Criminal Justice Act, S.C. 2002, c. 1 [YCJA].

(401) R. v. Gardiner (1982), 68 C.C.C. (2d) 477 at 514 (SCC) [Gardiner].

(402) Ibid., at 514, cited in V.W., supra note 405, at para. 25.

(403) V.W., ibid. at para. 28.

(404) Ibid.

(405) Societe de l'assurance automobile du Quebec v. Cyr, 2008 SCC 13 [Cyr].

(406) See: Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, offline: <http://www.driskellinquiry.ca/>.

(407) Driskell v. Dangerfield et al., 2008 MBCA 60.

(408) Ibid. at para. 25.

(409) Ibid. at paras. 33-35.

(410) R. v. Beatty, 2008 SCC 5 [Beatty (SCC)].

(411) R. v. Beatty, 2006 BCCA 229 [Beatty (CA)].

(412) Beatty (SCC), supra note 410 at para. 42.

(413) R. v. J.F., 2008 SCC 60 [J.F.].

(414) Ibid. at para. 27.

(415) Ibid. at para. 76.

(416) Ibid. at para. 99.

(417) Ibid. at para. 5.

(418) R. v. C.L.Y., 2008 SCC 2 [C.L.Y. (SCC)].

(419) R. v. W.(D.), [1991] 1 S.C.R. 742 [W.(D.)].

(420) Ibid., at 758, cited in C.L.Y. (SCC), supra note 418, at para. 6.

(421) C.L.Y. (SCC),, ibid. at paras. 13 and 23.

(422) Ibid. at para. 12.

(423) Ibid. at paras. 29-30.

(424) R. v. Dinardo, 2008 SCC 24 [Dinardo].

(425) Ibid. at para. 23.

(426) R. l:. Walker, 2008 SCC 34 [Walker].

(427) R. v. R.E.M., 2008 SCC 51 [R.E.M.]; R v. H.S.B., 2008 SCC 52 [H.S.B.].

(428) R.E.M., ibid. at para. 55.

(429) R. v. Layton, 2008 MBCA 118 [Layton].

(430) In this case, the jury was instructed using the charge formulated in R. v. Lifchus, [1997] 3 S.C.R. 320, which forms the basis for the model jury instruction issued by the Canadian Judicial Council. See online: <http://www.cjc-ccm.gc.ca/english/ lawyers_en.asp?selMenu=lawyers_juryinstruction_en.asp>.

(431) Layton, supra note 429 at paras. 36 and 45.

(432) R. v. MacDonald, 2008 ONCA 572 [MacDonald].

(433) R. v. Krieger, 2006 SCC 47 [Krieger].

(434) MacDonald, supra note 432 at para. 36.

(435) R. v. C.L.Y., 2006 MBCA 124 [C.L.Y. (CA)].

(436) Ibid. at para. 37.

(437) C.L.Y. (SCC), supra note 418 at para. 18 (the majority focused on the basis for trial judge's finding, instead, concluding that "where, as here, a trial judge attributes an inappropriate capacity for recollection of detail to a witness who in fact revealed no such capacity, there remain serious concerns about the reliability of the credibility finding").

(438) R. v. Ward, 2008 NLCA 38.

(439) R. v. Rojas, 2008 SCC 56 [Rojas].

(440) Duncan instructions are explained further below.

(441) R. v. Perciballi (2001), 154 C.C.C. (3d) 481; aff'd without further reasons 2002 SCC 51 [Perciballi].

(442) Ibid. at para. 84.

(443) Ibid. at para. 124.

(444) Rojas, supra note 439 at para. 25.

(445) R. v. Ryznar, [1986] 6 W.W.R. 210 (MBCA); R. v. Harrison, 2001 BCCA 272.

(446) R. v. Leblanc (2001), 162 C.C.C. (3d) 74 (QCA); R. v. Samuels (2005), 196 C.C.C. (3d) 403 (OCA); R. v. David, 2006 BCCA 412.

(447) R. v. Aziz, [1995] 2 Cr. App. R. 478 (H.L.).

(448) Rojas, supra note 439 at paras. 39-40.

(449) R. v. Illes, 2008 SCC 57 [Illes].

(450) R. v. Knight, 2008 NLCA 67 [Knight].

(451) Canada Evidence Act, R.S.C. 1985, c. C-5.

(452) R. v. J.Z.S., 2008 BCCA 401.

(453) R. v. Levogiannis, [1993] 4 S.C.R. 475 [Levogiannis].

(454) This criticism has even been made in the mainstream press: see "Slippery slope in court ruling" The Toronto Star (18 February 2008), online: The Star <http://www.thestar.com/comment/article/304099>.

(455) R. v. Wittwer, 2008 SCC 33 [Wittwer].

(456) Ibid. at para. 26.

(457) R. v. Harrison, 2008 ONCA 85 at para. 6 [Harrison].

(458) Ibid. at para. 14.

(459) Ibid. at para. 40.

(460) R. v. Tran, 2008 ABQB 743, at paras. 6 and 39.

(461) Ibid. at paras. 36-39.

(462) R. v. Gibson, 2008 SCC 16 [Gibson].

(463) For the Heideman approach, see R. v. Heideman (2002), 168 C.C.C. (3d) 542 (OCA); for the "prevailing direction" approach, see R. v. Gaynor (2000), 272 A.R. 108 (Alta. Prov. Ct.); and for the "some evidence" approach, see R. v. Dery, [2001] Q.J. No. 3205 (QCA).

(464) Gibson, supra note 462 at para. 6.

(465) Ibid. at para. 73.

(466) Ibid. at para. 84.

(467) Ibid.

(468) R. v. Hughes, 2008 ABQB 336 at para. 23.

(469) R. v. Campbell, 2008 ABPC 149 at para. 9.

(470) R. v. Eddingfield, 2008 SKCA 84.

(471) Kourkjian c. R., 2008 QCCA 993 at paras. 15, 16, and 19.

(472) R. v. Ferguson, 2008 SCC 6 [Ferguson].

(473) R. v. L.M., 2008 SCC 31 [L.M. (SCC)].

(474) R. c. L.M, [2005] Q.J. No. 15934 (L.M. (CQ)).

(475) R. c. L.M, [20051 Q.J. No. 15933 (L.M. (CQ-Sentencing decision)).

(476) L.M. (SCC), supra note 473 at para. 50.

(477) R. v. Bryan, 2008 NSCA 119; R. v. Solowan, 2008 SCC 62.

(478) R. v. Mathieu, 2008 SCC 21 [Mathieu].

(479) R. v. Fice, 2005 SCC 32 [Fice].

(480) Ibid. at para. 18.

(481) Ibid. at para. 65.

(482) Mathieu, supra note 478 at paras. 6 and 7.

(483) Ibid. at para. 17.

(484) See s. 719(3) of the Criminal Code and R. v. Wust, 2000 SCC 18 ("pre-trial detention is ... in effect, deemed part of the punishment following the offender's conviction").

(485) R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.) [Dowries].

(486) For a 2008 example see R. v. Lai, [2008] O.J. No. 1342 (SCJ) (Where the sentence was read as" "I sentence you to 18 months imprisonment to be served in the community ... I will allow a credit of 10 months for the 34 months of house arrest and curfew that you will have served by the day this sentence commences. You are therefore sentenced to a further eight months imprisonment to be served in the community.")

(487) See e.g. R. v. Panday, 2007 ONCA 598; R. v. Cuthbert, 2007 BCCA 585; R. v. White, [2008] O.J. No. 4511 (SCJ) at para. 23.

(488) R. v. Irvine, 2008 MBCA 34 at para. 27 [Irvine].

(489) Voeller v. R., 2008 NBCA 37 at para. 19 [Voeller].

(490) Ibid. at paras. 21-22.

(491) See e.g. R. v. D.B., 2008 SCC 25.

(492) YCJA, supra note 400, s. 146.

(493) R. v. L.T.H., 2008 SCC 49 [L.T.H.].

(494) Ibid. at para. 42.

(495) Ibid. at para. 79.

(496) London (City) v. Young, 2008 ONCA 429 [London v. Young].

(497) Provincial Offences Act, R.S.O. 1990, c. P.33, s. 9(1)(a).

(498) York (Regional Municipality) v. Wilson (2005), 27 M.V.R. (5th) 153 [Wilson].

(499) London v. Young, supra note 496 at para. 26.

(500) Ibid. at para. 35.

(501) Ibid. at para. 56.

(502) Ibid. at para. 84.

(503) Canada (Justice) v. Khadr, 2008 SCC 28 [Khadr].

(504) R. v. Hape, [2007] 2 S.C.R. 292 [Hape[.

(505) Khadr, supra note 503, at para. 3.

(506) Amnesty International Canada v. Defence Staff for the Canadian Forces, 2008 FCA 401 [Amnesty International].

(507) Ibid. at para. 20.

(508) King v. Drabinsky, 2008 ONCA 566 [Drabinsky].

(509) Ibid. at para. 34.

(510) Khadr, supra note 503.

(511) Ibid. at para. 53.

(512) Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 [Charkaoui (SCC)].

(513) See Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 76-87.2.

(514) Charkaoui v. Canada (Citizenship and Immigration), 2005 FC 149 [Charkaoui (FC)].

(515) Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para. 88 [Blencoe].

(516) Charkaoui (SCC), supra note 512 at paras. 53-55.

(517) Ibid. at para. 62.

(518) See peter Hogg and Allison Bushell, "The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such A Bad Thing After All)" (1997) 35 Osgoode Hall L.J. 75 and Peter Hogg, Allison Bushell Thornton, and Wade Wright, "Charter Dialogue Revisited--Or 'Much Ado About Metaphors'" (2007) 45 Osgoode Hall L.J. 1.

(519) Canada (Attorney General) v. Sfetkopoulos, 2008 FCA 328 [Sfetkopoulos (FCA)].

(520) Sfetkopoulos v. Canada (Attorney General), 2008 FC 33 [Sfetkopoulos (FCTD)].

(521) SOR/2001-227, s. 41(b) (as rep. by SOR/2003-387, s. 9), (b.1) (as enacted idem).

(522) Hitzig v. Canada (2003), 231 D.L.R. (4th) 104.

(523) Sfetkopoulos (FCTD), supra note 520 at para. 19 ("The expert scientific evidence as to the different therapeutic effects of various strains mainly indicates that there is great uncertainty and the subject requires further research").

(524) Sfetkopoulos (FCA), supra note 519 at para. 7.

(525) R. v. Spratt, 2008 BCCA 340 [Spratt].

(526) Access to Abortion Services Act, R.S.B.C. 1996, c. 1, s.2(1)(a) and (b).

(527) Hill v. Colorado, 530 U.S. 703 (2000); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974).

(528) Spratt, supra note 525 at para. 80.

(529) Ibid. at paras. 82-83.

(530) R. v. Kapp, 2008 SCC 41 [Kapp].

(531) Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law].

(532) Ibid. at para. 22.

(533) Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 [Andrews].

(534) This is also how lower courts have interpreted the decision: see Witbler v. Canada (Attorney General), 2008 BCCA 539.

(535) Lovelace v. Ontario, 2000 SCC 37 [Lovelace].

(536) Societe des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15 [SAANB].

(537) Ibid. at para. 16.

(538) R. v. Rybak, 2008 ONCA 354 [Rybak].

(539) Ibid. at para. 78.

(540) 620 Connaught Ltd. v. Canada (Attorney General), 2008SCC 7 [620 Connaught].

(541) Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134 [Westbank].

(542) Ibid. at para. 43.

(543) As outlined in Lawson v. Interior Tree Fruit and Vegetable Committee of Direction, [1931] S.C.R. 357.

(544) Canadian Association of Broadcasters v. R., 2008 FCA 157 [Canadian Association of Broadcasters (FCA)].

(545) Ibid. at para. 70.

(546) Ibid. at para. 13.

(547) Canadian Association of Broadcasters v. R., 2006 FC 1482 at para. 114 [Canadian Association of Broadcasters (FC)].

(548) Canadian Association of Broadcasters (FCA), supra note 544 at para. 43.

(549) Ibid. at paras. 59 and 78.

(550) Ibid. at para. 85.

(551) Ibid. at para. 82.

(552) Ibid. at para. 94.

(553) Ibid. at para. 103.

(554) Ibid. at para. 110.

(555) SCC, Applications for Leave to Appeal, No. 32703.

(556) Canadian Association of Broadcasters (FCA), supra note 544 at para. 52.

(557) Ibid. at para. 106.

(558) Confederation des syndicats nationaux v. Canada (Attorney General), 2008 SCC 68 [Confederation des syndicats nationaux].

(559) Employment Insurance Act, S.C. 1996, c. 23, s. 66.

(560) An Act to amend the Employment Insurance Act and the Employment Insurance (Fishing)

Regulations, S.C. 2001, c. 5, s. 9.

(561) Budget Implementation Act, 2004, S.C. 2004, c. 22, s. 25.

(562) Confederation des syndicats nationaux, supra note 558 at para. 75.

(563) Ibid. at para. 93.

(564) Confederation des syndicats nationaux, supra note 558.

(565) Ibid. at para. 19.

(566) Ibid. at paras. 39-49.

(567) NILFFU, O Child and Family Services Society v. BCGEU, 2008 BCCA 333 [NILFFU, O].

(568) Ibid. at para. 66.

(569) Native Child and Family Services of Toronto v. Communication, Energy and Paperworkers Union of Canada, 2008 FCA 338 [Native Child and Family Services].

(570) Canadian Western Bank v. Alberta, 2007 SCC 22 [Canadian Western Bank].

(571) Native Child and Family Services, supra note 569 at para. 37.
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