SCC’s ‘Barnburner’ Fall Session Features TWU, Groia, Comeau and Other Hot Cases
The Lawyer's Daily
Two cases that have galvanized the legal profession — TWU and Groia — are among the 28 appeals the Supreme Court of Canada is hearing during a busy fall session that marks the swansong of the court’s longest serving chief justice.
After 28 years at the highest court (nearly 18 as its leader), Chief Justice Beverley McLachlin, 74, will hear her final round of appeals from Oct. 3 to December 8 and then retire one week later.
“This is a barnburner of a term — it is a fitting end to the chief justice’s remarkable tenure,” commented University of Ottawa constitutional law professor Carissima Mathen. “There are cases spanning the legal spectrum, from the foundational tenets of federalism, to tricky conflict of rights issues, to very important cases in criminal law.”
Mathen, who is also the vice dean of the school's common law faculty, noted that with Chief Justice McLachlin’s departure Dec. 15, the court will receive a new puisne judge from the west or north, as well as the appointment of a new chief justice.
“The adjustment period undoubtedly depends on who is selected for both of these roles,” Mathen told The Lawyer’s Daily. “But there is no doubt that this will be a significant shake-up. It is frankly difficult to imagine what the post-McLachlin court will look like. Experience and history suggest that it will probably contain not a few surprises.”
The fall session promises to be “one of the most eventful in years,” said Osgoode Hall Law School dean Lorne Sossin. The cases “are diverse and potentially divisive,” he pointed out, citing “the contest between equality rights and religious freedom in Trinity Western University's (TWU) litigation with the law societies in B.C. and Ontario over its proposed law program, which already has caused a stir in the application for intervention by several LGBTQ groups which were initially denied intervention, only to have that decision reversed by the chief justice.”
The court’s fall session kicked off Oct. 3 with argument in a Civil Code of Quebec appeal that asks whether some Quebec hockey fans who rioted after a 2008 win by the Montréal Canadiens are jointly and severally liable in damages for their destruction of 10 police cars (Ville de Montreal v. Lonardi—the judges reserved decision). Most of the appeals originate from Alberta (nine cases) and Ontario (seven cases).
Looking ahead, the court’s docket also includes: a constitutional blockbuster sparked by a New Brunswick man’s purchase of cheaper beer and liquor in Quebec that he transported home in violation of provincial limits — a case that could knock down interprovincial trade barriers within Canada (R. v. Comeau, Dec. 6); Newfoundland’s challenge to the 1969 deal committing the province to sell cheap power to Quebec from Labrador’s Churchill Falls, with the appellant arguing that the contract should be renegotiated given the duty, under Quebec’s civil law, to act in good faith (Churchill Falls (Labrador) Corp. Ltd. v. Hydro Quebec, Dec. 5); and a far-reaching test case by a Jehovah’s Witness member expelled by his congregation’s elders that asks the judges to decide whether courts can override membership decisions made by voluntary associations, such as religious communities (Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses v. Wall, Nov. 2).
The Comeau appeal, which queries whether the so-far narrowly construed s. 121 of the Constitution guarantees free trade among the provinces and territories, “addresses interprovincial trade laws that have been a part of the national economic fabric for almost a century,” Mathen remarked. “The case takes us back to the intent of those who founded Canada, and is as close to an American-style ‘originalism’ case as we ever get.”
Lawyers will be particularly focused on the hearings of two of the cases on the docket.
The first case of special interest to lawyers is an Ontario appeal featuring an ostensible clash between lawyer civility and vigorous advocacy in the courtroom which asks is it the presiding judge or the law society, or both, who regulate a barrister’s courtroom conduct? (Groia v. Law Society of Upper Canada, Nov. 6).
The second appeal involves another apparent clash—this time between a B.C. Evangelical Christian university’s religious freedom to oblige its law students to abide by a faith-based code of conduct prohibiting same-sex sexual intimacy, and the rights of LGBTQ students to have equal access to law school. The court is asked: Was the refusal of B.C. and Ontario legal regulators to accredit TWU’s nascent law school “reasonable”? (Trinity Western University v. Law Society of Upper Canada; Law Society of British Columbia v. TWU, Nov. 30 and Dec. 1).
Together the TWU and Groia cases have generated especially fierce debate about what it means to be a lawyer — and what it means to be a self-governing legal profession — as evidenced by the extraordinary number of interveners in each appeal: 27 and 11 respectively (by comparison, there were 18 in the Quebec Secession Reference, and 28 in the Same-Sex Marriage Reference). “The TWU issues may present the court's biggest challenge this fall, not least because differences between the two [regulators’ decisions] created the possibility of different outcomes, and a divided court, in the Ontario and B.C cases,” commented Osgoode Hall constitutional law professor Jamie Cameron.
Groia also promises to be memorable, Sossin observed, especially as the appellant, Toronto securities litigator Joseph Groia, is now a Bencher of the Law Society of Upper Canada that imposed the disciplinary sanctions in the first place. “
The Groia matter has already been litigated in four proceedings — a Law Society Hearing Panel, a Law Society Appeal Panel, the Ontario Divisional Court and the Ontario Court of Appeal — with none finding in Mr. Groia's favour thus far.”
Groia argues he should not be disciplined for alleged incivility in submissions he made in defence of a client in a major securities prosecution — submissions about which neither the Ontario Securities Commission prosecutors, nor the presiding judge, complained to the law society.
Other noteworthy questions the Supreme Court will consider in its fall sittings include:
- Do property owners owe a duty of care to trespassers and thieves who are injured during the commission of a crime — especially if the injured parties are minors? In this Ontario appeal, one of the joyriding inebriated teenagers who took an unlocked car with keys left in the ashtray from the lot of the appellant's commercial garage was catastrophically injured when the car crashed: Rankin v. J.J., Oct. 5.
- Does the Crown have to show a strong prima facie case (proof of irreparable harm) in order to obtain an interim injunction against a media outlet that requires the removal of website content that was posted before a publication ban? The appellant CBC refused to remove the material, prompting the Crown to apply for the injunction and an order citing the broadcaster for contempt: CBC v. The Queen, Nov. 1.
- What is the proper interpretation of a child’s “habitual residence” in the Hague Convention on the Civil Aspects of International Child Abduction, which kicks in when parents remove children to other countries in violation of court orders. What role, if any, should the views of the child play? Office of the Children’s Lawyer v. Baleve and Bagott. Nov. 9.
- What are the limits, if any, to a court assuming jurisdiction over an alleged libel on the Internet that is downloaded by someone in Canada? How should the principle of forum non conveniens apply to internet libel? Haaretz.com v. Goldhar, Nov. 29.
- Are maintenance records for breathalyzer devices subject to first-party, or third-party, disclosure rules? Gubbins v. The Queen; Vallentgoed v. The Queen, Dec. 8.
Schmitz, Christin; Sossin, Lorne; and Cameron, Jamie.
"SCC’s ‘Barnburner’ Fall Session Features TWU, Groia, Comeau and Other Hot Cases."
The Lawyer's Daily
(03 October 2017):