Law Times - Newsmakers

2015 top news, newsmakers, and cases 9 top cases brought by the British Columbia Civil Liberties Association on behalf of Kay Carter and Gloria Taylor, who both suffered from intractable terminal diseases. Taylor died of amyotrophic lateral sclerosis in 2012, while the 89-year-old Carter travelled to Switzerland in 2010 to end her life at a medical clinic. e association argued that the women were being de- nied their right to security under the Charter of Rights and Freedoms and were facing discrimination given that their conditions made it impossible to end their lives the way able- bodied people could. e highest court in the land agreed, reversing its 1993 decision in Rodriguez v. British Columbia (Attorney General). While the fear of elderly patients facing pressure to com- mit suicide had led to arguments about the right to life, the court found legislation that prevented assisted suicide would impose suffering and deny security to those with unbearable conditions. "is would create a 'duty to live,' rather than a 'right to life,' and would call into question the legality of any consent to the withdrawal or refusal of life-saving or life- sustaining treatment," the decision stated. e Supreme Court's decision will permit doctors to aid in the suicide of adult patients who are suffering from intolerable conditions and have clearly expressed the desire to end their lives. e decision doesn't, however, compel doctors to assist in suicides, a matter the court le to medi- cal colleges and regulators. R. v. Nur and R. v. Charles Mandatory minimum sentences suffered a big defeat this April with the Supreme Court's finding in R. v. Nur and R. v. Charles that arbitrary sentences for possession of a firearm amounted to cruel and unusual punishment in contravention of the Charter. e 6-3 decision, written by Chief Justice Beverley McLach- lin, actually upheld the original sentences for the respondents that were longer than the mandatory minimums of three years and five years but nonetheless used a reasonable hypothetical analysis to strike down relevant provisions in the Criminal Code. McLachlin, in her decision, likened the provisions to a "blunt instrument" that captures relatively minor offences, such as when someone illegally carries a gun owned by their spouse, that may amount to little more than a licensing infraction. e decision leaves other mandatory minimum provisions vulnerable to challenge. Indeed, the Supreme Court will hear another such appeal in January, this time for drug possession, in R. v. Lloyd. Trillium Motor World Ltd. v. General Motors of Canada Ltd. Big law firms got a reminder about conflict of interest rules in July when the Ontario Superior Court granted class action plaintiffs a $45-million award against Cassels Brock & Blackwell LLP. e case, Trillium Motor World, goes back to 2009 when the government bailout of General Motors resulted in the elimination of about 200 car dealerships. e dealerships formed a class action against GM while also suing Cassels Brock for breach of duty. e plaintiffs claimed they had retained the law firm even as it was acting for the federal government. e firm, for its part, said it never represented the dealerships but only pro- vided legal advice in advance of a possible proceeding. Justice omas McEwen of the Ontario Superior Court felt otherwise. In his 160-page decision, McEwen found Cassels Brock had breached its professional, fiduciary, and contractual duties. Cassels Brock continues to assert that it wasn't represent- ing the dealerships, which each had their own legal repre- sentation. e firm says the decision creates "indeterminate liability" for lawyers and is pursuing an appeal. Chevron Corp. v. Yaiguaje International media attention focused on Canada's Supreme Court in September as it issued its ruling in a case that would have global ramifications. Chevron involved a battle pitting a big oil company against thousands of Ecuadoran villagers who won a $9.5-billion award for environmental damage in 2011. By then, Chevron had no assets in Ecuador, leading the plaintiffs to seek enforcement in countries where the com- pany owned subsidiaries. In the United States, the attempt failed badly after Chevron successfully argued the plaintiffs' counsel had resorted to bribery and corruption to obtain the massive award. Back in Canada, the top court wouldn't be dealing with corruption or environmental damage but the relatively aca- demic matter of jurisdiction. The plaintiffs sought enforce- ment while Chevron argued that Canadian courts had no jurisdiction over the matter given that neither the parties nor the incident had any real and substantial connection to Canada (the jurisdictional test laid out in Club Resorts Ltd. v. Van Breda). Justice Clément Gascon quickly dispatched with Chev- ron's argument with a ruling that established a distinction between motions of first instance and those of recognition and enforcement. In the latter case, plaintiffs don't have to meet the Van Breda test for jurisdiction since the courts aren't weighing the merits of the award but only whether to recognize it. Chevron's next move will be to argue, as it successfully did in the United States last year, that the Ecuadoran deci- sion involved corruption.

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