Law Times

Top cases from the Supreme Court of Canada National securities regulation, freedom of religion among top issues BY ELIZABETH RAYMER, FOR LAW TIMES DECISIONS FROM the Supreme Court of Canada in 2018 provided guidance on legal matters ranging from religion to interprovincial commerce to na- tional securities regulation. Here are some of the SCC's top cases of 2018: Jehovah's Witnesses v. Wall; Law Society of British Columbia v. Trinity Western University Both of these appeals concerned religion. In Highwood Congregation of Jehovah's Wit- nesses (Judicial Committee) v. Wall, a man who was expelled from his religious community raised the question of whether decisions of private, vol- unteer organizations should be subject to judicial review. Canada's highest court decided that judi- cial review is limited to public decision-makers, and there is no right to procedural fairness absent an underlying legal right, overturning rulings from the Court of Queen's Bench and Court of Appeal of Alberta. "Issues of theology are not justiciable," wrote Justice Malcolm Rowe, who delivered the judgment. Two months later, the majority of the Supreme Court upheld the decisions of the Law Society of British Columbia and the Law Society of Upper Canada (now Ontario) to not accredit a law school at Trinity Western University in Langley, B.C. that required its students and faculty to adhere to a strict Christian code of conduct. The decision by the LSBC "'gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate' [and] amounted to a proportionate bal- ancing and was reasonable," wrote justices Rosalie Abella, Michael Moldaver, Androm- ache Karakatsanis, Richard Wagner and Clément Gascon in their joint reasons in Law Society of British Columbia v. Trinity Western University. In the companion deci- sion of Trinity Western University v. Law Society of Upper Canada, the majority of the court confirmed that the LSUC decision not to accredit TWU was also reasonable. In a strongly worded dissent, however, justices Suzanne Côté and Russell Brown found that both law societies should have approved the accreditation of TWU's law school. "The decision not to approve TWU's proposed law faculty because of the restric- tions contained in the Covenant — a code of conduct protected by provincial human rights legislation — is a profound interference with religious freedom, and is contrary to the state's duty of religious neutrality," the two judges wrote in joint dissenting reasons in LSBC v. TWU. Haaretz.com v. Goldhar; Rogers Communications v. Voltage Pictures At first blush, these two cases seem disparate, but both appeals were from decisions in which the appellants were media companies. The Supreme Court's June decision in Haaretz.com v. Goldhar, a multi - -jurisdictional defamation case, was relatively clear-cut in the result, with six judges finding that Israel was the appropriate forum for an action brought by a Canadian busi- nessman against the newspaper Haaretz. For lower courts that will have to apply the part of the test that deals with the forum non conveniens analysis, however, a decidedly mixed message was sent. The ruling in Haaretz included the main decision of three judges, three sets of con- curring reasons and a dissent by the remaining three judges, including former chief justice Beverley McLachlin in one of the last cases she heard before her retirement. The number of reasons issued by the court means that the "takeaway" on at least some of the issues is not as straightforward as usual when dealing with an online defa- mation case that could be heard in more than one jurisdiction. Paul Schabas, lead counsel for Haaretz, said there is still some clarity in the main judgment, written by Côté. "Whenever jurisdiction is established on a relatively weak or technical basis, the court is saying there should be a robust application of the forum non conveniens anal- ysis. As a practical matter, the court has indicated that in these circumstances the bur- den [to rebut the presumption of jurisdiction] will be lessened," says Schabas, a partner at Blake Cassels & Graydon LLP in Toronto. In Rogers Communications Inc. v. Voltage Pictures, a unanimous Supreme Court overturned a Federal Court of Appeal decision in allowing the appeal of Rogers Com- munications Inc., supported by other major internet service providers such as Bell Can- ada, Cogeco and Telus. At issue in the case was who had to pay for requests made to ISPs such as Rogers Communications Inc. to provide information on their customers' internet usage, in- cluding possible illegal downloading of movies. Was it the copyright holders to the films — a small consortium led by Voltage Pictures LLC, producer of The Hurt Locker, among other blockbusters — or was it the ISPs? The court found, overall, for the ISPs. However, while eight of the Supreme Court justices found that most of the service providers' costs should be recoverable from copy- right holders, it found that their costs for accurate record-keeping are not recoverable. R. v. Comeau In April, the Supreme Court allowed the appeal of the Crown against Gerard Comeau, a retired steelworker from Tracadie, N.B. who, in 2012, had purchased lower-priced alcohol in Quebec and brought it back home to New Brunswick. It was a case closely watched, on one side by the provinces and their agricultural marketing boards that favour regulation of interprovincial sales and importation of goods and on the other side by independent business, vintners and others that want direct-to-consumer sales and an open market. The decision in R. v. Comeau hinged on the interpretation of s. 121 of the Constitu- tion Act, 1867, which provides that all articles of manufacture from any province shall be "admitted free" into each of the other provinces, thereby rendering s. 134(b) of New Brunswick's Liquor Control Act — which forbids residents from having or keeping li- quor not purchased from the New Brunswick Liquor Corporation — as unconstitu- tional. In Comeau, a unanimous Supreme Court found that while s. 121 prohibits laws whose main purpose is to prevent the movement of goods across provincial borders, it does not prohibit legislation that has incidental effects on trade. While the New Bruns- wick law that Comeau challenged restricted the movement of alcohol across the provin- cial border, this was not its main purpose, which was to manage the supply and demand of liquor in New Brunswick. Therefore, the court decided that the law is constitutional. Mikisew Cree First Nation v. Canada Although the Crown must act honourably toward Canada's Indigenous peoples, Parliament is not required to consult them when making laws, the Supreme Court ruled in October. In Mikisew Cree First Nation v. Canada (Governor General in Council), a unan- imous Supreme Court dismissed the appeal, finding that the Federal Court did not have jurisdiction to review the actions of federal ministers who develop bills. At the heart of the ruling were the issues of parliamentary sovereignty and the sepa- ration of powers among the three branches of government as set out in the Constitu- tion: the executive, the legislative and the judiciary. "The appellant Mikisew Cree First Nation argues that the Crown had a duty to con- sult them on the development of environmental legislation that had the potential to adversely affect their treaty rights to hunt, trap, and fish," Justice Andromache Karakat- sanis wrote, with Chief Justice Richard Wagner and Justice Clément Gascon concur- ring in her reasons. "This Court must therefore answer a vexing question it has left open in the past: Does the duty to consult apply to the law-making process?" The answer, Karakatsanis concluded, was no. Churchill Falls (Labrador) Corporation Limited v. Hydro-Québec In early November, the Supreme Court ended a long-standing dispute between the provinces of Quebec and Newfoundland and Labrador over the sharing of profits from a hydroelectric plant on Labrador's Churchill River, deciding that the contract cannot be revisited by the courts. In a 7-1 decision in Churchill Falls (Labrador) Corp. v. Hydro-Québec, the Su- preme Court found that the contract did not violate principles of good faith and equity and that the doctrine of unforeseeability did not apply in this case. The agreement made in 1969 between the two provinces for the Churchill Falls plant, which was completed in late 1971, has seen more than $27.5 billion delivered to Hydro-Québec and approxi- mately $2 billion to Newfoundland and Labrador. "At the time the Contract was entered into, the benefit that CFLCo [Churchill Falls (Labrador) Corporation] now characterizes as disproportionate, namely the guarantee of fixed prices for the purchase of electricity, was seen as a way to have Hydro-Québec assume a risk that CFLCo did not want to assume," Justice Clément Gascon wrote, with Chief Justice Richard Wagner and justices Rosalie Abella, Michael Moldaver, Androm- ache Karakatsanis, Suzanne Côté, Russell Brown and Sheilah Martin concurring. Québec (Attorney General ) v. Canada (Attorney General) In a highly anticipated decision released on Nov. 9, the Supreme Court ruled that a pro- posed co-operative pan-Canadian securities regulator is constitutional, thereby over- turning a finding of the Quebec appellate court. Canada is one of the only developed countries in the world that does not have a na- tional regulator to oversee securities trading, and the effort to establish a national secu- rities regulator — which has been ongoing since at least the 1970s — has suffered a series of delays and roadblocks. In 2011, the federal government asked the Supreme Court whether Parliament could pass a federal law creating a single regulator, and it was told that it could not as, under the Constitution, the provinces and territories hold power over most aspects of securi- ties regulation. However, the court said, a co-operative approach among the provinces and territories would be constitutional, and a Cooperative Capital Markets Regulatory System was then developed by Ontario, British Columbia, Saskatchewan, Prince Ed- ward Island, New Brunswick, the Yukon and Canada. In May 2017, the Court of Appeal of Quebec — which with Alberta opposed the CCMR — ruled that the proposal for the CCMR was unconstitutional. The decision in Reference re Pan-Canadian Securities Regulation made clear that the Constitution allows the federal, provincial and territorial governments to work to- gether to regulate securities trading under a single, unified system in Canada. A pan- Canadian regulator will get its authority from a Council of Ministers formed from the federal government and the provinces and territories participating. Provincial and ter- ritorial legislatures are not required to join a common regulatory system. — With files from Tim Wilbur and Shannon Kari top stories Despite multiple sets of reasons, Paul Schabas said there is still some clarity in the SCC's main judgment in Haaretz. 18 December 2018

• Cover