Copy
October 21, 2021 | Issue 58

Today at the SCC: 3 Oral Judgments, 1 Appeal & 6 Leaves 


A weekly update on important Supreme Court of Canada news. Feel free to forward this email to colleagues, or let them know they can sign up here.

Supreme One-Liners

Oral Judgments

R. v. Dingwall, 2021 SCC 35 (39274)
Law re circumstantial evidence properly applied.

R. v. Reilly, 2021 SCC 38 (39531)
New trial ordered due to police search issues.

Richardson v. Richardson, 2021 SCC 36 (39123)
Superior Court appropriate forum re “whatever ongoing dispute may subsist”.
 

Appeal Judgment

Nelson (City) v. Marchi, 2021 SCC 41 (39108)
Clarification re "core policy decisions" in torts context.

Oral Judgments

Criminal Law: Firearms Offences; Circumstantial Evidence

R. v. Dingwall, 2020 BCCA 1082021 SCC 35 (39274) Judgment rendered October 8, 2021
Rowe J.: "We would dismiss the appeal substantially for the reasons of Newbury J.A., at paras. 51 and 53. We would add that notwithstanding a misstatement of law with respect to circumstantial evidence set out by the trial judge in para. 9(b) of his reasons (2017 BCSC 1457 (CanLII)), the trial judge properly applied the law with respect to circumstantial evidence. Accordingly, no reliance need be placed on the curative authority under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 . Finally, we would note that while the Court of Appeal, in paras. 39 and 50, addressed the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, the scope and application of that rule is not before this Court."
 

Criminal Law: Search Warrants

R. v. Reilly, 2020 BCCA 3692021 SCC 38 (39531) Judgment rendered October 14, 2021
Moldaver J.: "We would dismiss this appeal, substantially for the thorough reasons of Justice Griffin on behalf of the majority of the Court of Appeal. We agree that the trial judge erred in his analysis under s. 24(2)  of the Canadian Charter of Rights and Freedoms  by considering Charter-compliant police behaviour as mitigating. We also agree that the trial judge erred by improperly conducting the overall balancing — whether including the evidence would bring the administration of justice into disrepute — within the first two factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The language of Grant is clear: this overall balancing occurs at the end (para. 85). Judges must first consider whether each of the three factors weigh in favour of inclusion or exclusion of the evidence before asking whether — having regard to all factors — inclusion of the evidence would bring the administration of justice into disrepute. Conducting overall balancing within the first two Grant factors waters down any exclusionary power these factors may have. This type of analysis undermines the purpose and application of s. 24(2) . With respect, however, we are unable to agree with the majority of the Court of Appeal that the trial judge properly considered all relevant Charter-infringing state conduct under the first Grant factor. The trial judge considered the Charter-infringing state conduct related to only two of the three s. 8 breaches. Failing to consider state conduct that resulted in the third breach — the clearing search — was an error. Regardless of whether the third breach was caused by the first two breaches, and regardless of the fact that it was considered necessary in the wake of Constable Sinclair’s unlawful entry, it was nonetheless a breach of Mr. Reilly’s s. 8 Charter-protected rights and must be considered under the first Grant factor. Trial judges cannot choose which relevant Charter-infringing state conduct to consider. The trial judge committed errors that required the majority of the Court of Appeal to conduct a fresh s. 24(2)  analysis. In our view, we do not lack jurisdiction to consider alleged errors in the majority’s fresh analysis. We see no reason to interfere with their fresh analysis. Accordingly, we would dismiss the appeal and affirm the exclusion of evidence and the order for a new trial."
 

Family Law: Custody

Richardson v. Richardson, 2019 ONCA 9832021 SCC 36 (39123) Judgment rendered October 13, 2021
Kasirer J.: "The dispute regarding the custody of the parties’ two children involved in this appeal turns on a proper appreciation of their best interest. When leave to appeal was granted, among the matters in dispute was whether the parties’ 16-year-old daughter and their 10-year-old son should live principally with the appellant in Ottawa or with the respondent in Niagara. On October 6, 2021 — one week before this hearing —, the parties wrote a joint letter to the Registrar to advise the Court of what they described as “changes with respect to the children that affect the record in this matter”. These included a statement that the parties’ daughter has resided in Ottawa for over a year and that, given her age, the respondent does not intend to take further steps to enforce the trial judge’s order regarding that child. We note further that the parties have not filed a motion for new evidence before this Court regarding the current best interests of the children. In the unusual circumstances of this appeal, and given the state of the record which the parties acknowledge as incomplete, we are of the unanimous view that the appeal should be dismissed, without costs before this Court. The appropriate forum for identifying and resolving whatever ongoing dispute may subsist between the parties is the Superior Court where, should the legal requirements be met, a variation order relating to custody and access could be sought. Given the tenor of the parties’ joint letter and the state of the record, we are unable to provide meaningful guidance on the best interests of the children in the circumstances. In the result, the appeal is dismissed, without costs before this Court."

Appeal Judgment: 1 Dismissed

Torts/Municipal Law: Negligence; Slip & Fall

Nelson (City) v. Marchi, 2020 BCCA 12021 SCC 41 (39108)

"After a heavy snowfall, the city started plowing and sanding streets pursuant to its written snow clearing and removal policies and unwritten practices. Among the tasks completed by city employees was the clearing of snow in angled parking stalls on streets located in the downtown core. Employees plowed the snow to the top of the parking spaces, creating a continuous snowbank along the curb that separated the parking stalls from the sidewalk. They did not clear an access route to the sidewalk for drivers parking in the stalls. M parked in one of the angled parking stalls. She was attempting to access a business, but the snowbank created by the city blocked her route to the sidewalk. She decided to cross the snowbank and seriously injured her leg. M sued the city for negligence. The trial judge dismissed M’s claim concluding that the city did not owe M a duty of care because its snow removal decisions were core policy decisions. In the alternative, he also found that there was no breach of the standard of care and that in the further alternative, if there was a breach, M was the proximate cause of her own injuries. The Court of Appeal concluded that the trial judge erred on all three conclusions and ordered a new trial."

The SCC (7:0) dismissed the appeal.

Justices Karakatsanis and Martin wrote as follows (at paras. 1-5, 36, 55-56, 61-68, 103):

"Under Canadian tort law, there is no doubt that governments may sometimes be held liable for damage caused by their negligence in the same way as private defendants. At the same time, the law of negligence must account for the unique role of public authorities in governing society in the public interest. Public bodies set priorities and balance competing interests with finite resources. They make difficult public policy choices that impact people differently and sometimes cause harm to private parties. This is an inevitable aspect of the business of governing. Accountability for that harm is found in the ballot box, not the courts. Courts are not institutionally designed to review polycentric government decisions, and public bodies must be shielded to some extent from the chilling effect of the threat of private lawsuits.

Accordingly, courts have recognized that a sphere of government decision-making should remain free from judicial supervision based on the standard of care in negligence. Defining the scope of this immunity has challenged courts for decades. In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, this Court explained that “core policy” government decisions — defined as “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors” — must be shielded from liability in negligence (para. 90). In ascertaining whether a decision is one of core policy, the key focus is always on the nature of the decision.

In the decade since Imperial Tobacco, there has been continued confusion on when core policy immunity applies. This appeal requires the Court to clarify how to distinguish immune policy decisions from government activities that attract liability for negligence. We conclude that the rationale for core policy immunity serves as an overarching guiding principle. Core policy decisions are immune from negligence liability because each branch of government has a core institutional role and competency that must be protected from interference by the other branches. We identify four factors from this Court’s jurisprudence that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria. The separation of powers rationale animating the immunity guides how the factors weigh in the analysis.

The respondent, Taryn Joy Marchi, was injured while attempting to cross a snowbank created by the appellant, the City of Nelson, British Columbia. She sued the City for negligence. Dismissing her claim, the trial judge concluded that the City did not owe Ms. Marchi a duty of care because its snow removal decisions were core policy decisions. In the alternative, he also found that there was no breach of the standard of care and, if there was a breach, Ms. Marchi was the proximate cause of her own injuries. The Court of Appeal concluded that the trial judge erred on all three conclusions and ordered a new trial.

We agree with the Court of Appeal that the trial judge erred on all three conclusions. On duty of care, the relevant City decision was not a core policy decision immune from negligence liability. The City therefore owed Ms. Marchi a duty of care. On standard of care and causation, the trial judge’s analysis was tainted by legal errors. As key factual findings are required, this Court is not well placed to determine the standard of care and causation issues. We would therefore dismiss the appeal and order a new trial in accordance with these reasons.

...

For the purposes of this case, we need not decide whether core policy immunity is best conceived of as a rule for how the Just category operates, or whether it should be viewed as a stage two consideration under the Anns/Cooper framework even when an established category of duty applies. It makes no practical difference to the outcome of the appeal. Regardless of where core policy immunity is located in the duty of care framework, the same principles apply in determining whether an immune policy decision is at issue. Those principles apply in any case in which a public authority defendant raises core policy immunity, whether the case involves a novel duty of care, falls within the Just category, or falls within another established or analogous category. What is most important is that immunity for core policy decisions made by government defendants is well understood and fully explored where the nature of the claim calls for it. It is for this reason that we will now articulate the principles underlying the immunity.

...
 

The characteristics of “planning”, “predetermining the boundaries” or “budgetary allotments” accord with the underlying notion that core policy decisions will usually have a sustained period of deliberation, will be intended to have broad application, and will be prospective in nature. For example, core policy decisions will often be formulated after debate — sometimes in a public forum — and input from different levels of authority. Government activities that attract liability in negligence, on the other hand, are generally left to the discretion of individual employees or groups of employees. They do not have a sustained period of deliberation, but reflect the exercise of an agent or group of agents’ judgment or reaction to a particular event (see H. J. Krent, “Preserving Discretion Without Sacrificing Deterrence: Federal Governmental Liability in Tort” (1991), 38 U.C.L.A. L. Rev. 871, at pp. 898-99).

Thus, four factors emerge from this Court’s jurisprudence that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria.

...
 

The rationale for core policy immunity should also serve as an overarching guiding principle for how to assess and weigh the factors this Court has developed for identifying core policy decisions. We will elaborate.

First: the level and responsibilities of the decision-maker. With this factor, what is relevant is how closely related the decision-maker is to a democratically-accountable official who bears responsibility for public policy decisions. The higher the level of the decision-maker within the executive hierarchy, or the closer the decision-maker is to an elected official, the higher the possibility that judicial review for negligence will raise separation of powers concerns or have a chilling effect on good governance. Similarly, the more the job responsibilities of the decision-maker include the assessment and balancing of public policy considerations, the more likely this factor will lean toward core policy immunity. Conversely, decisions made by employees who are far-removed from democratically accountable officials or who are charged with implementation are less likely to be core policy and more likely to attract liability under regular private law negligence principles (Just, at pp. 1242 and 1245; Imperial Tobacco, at para. 87).

Second: the process by which the decision was made. The more the process for reaching the government decision was deliberative, required debate (possibly in a public forum), involved input from different levels of authority, and was intended to have broad application and be prospective in nature, the more it will engage the separation of powers rationale and point to a core policy decision. On the other hand, the more a decision can be characterized as a reaction of an employee or groups of employees to a particular event, reflecting their discretion and with no sustained period of deliberation, the more likely it will be reviewable for negligence.

Third: the nature and extent of budgetary considerations. A budgetary decision may be core policy depending on the type of budgetary decision it is. Government decisions “concerning budgetary allotments for departments or government agencies will be classified as policy decisions” because they are more likely to fall within the core competencies of the legislative and executive branches (see, e.g., Criminal Lawyers’ Association, at para. 28). On the other hand, the day‑to‑day budgetary decisions of individual employees will likely not raise separation of powers concerns.

Fourth: the extent to which the decision was based on objective criteria. The more a government decision weighs competing interests and requires making value judgments, the more likely separation of powers will be engaged because the court would be substituting its own value judgment (Makuch, at pp. 234-36 and 238). Conversely, the more a decision is based on “technical standards or general standards of reasonableness”, the more likely it can be reviewed for negligence. Those decisions might also have analogues in the private sphere that courts are already used to assessing because they are based on objective criteria.

Thus, in the course of weighing these factors, the key focus must always be on the underlying purpose of the immunity and the nature of the decision. None of the factors is necessarily determinative alone and more factors and hallmarks of core policy decisions may be developed; courts must assess all the circumstances.

To summarize, core policy decisions are “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith” (Imperial Tobacco, at para. 90). They are a “narrow subset of discretionary decisions” — meaning, the presence of choice is not a marker of core policy (ibid., at paras. 84 and 88). Core policy decisions are immune from negligence liability because the legislative and executive branches have core institutional roles and competencies that must be protected from interference by the judiciary’s private law oversight. A court must consider the extent to which a government decision was based on public policy considerations and the extent to which the considerations impact the rationale for core policy immunity.

In addition, four factors emerge that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria. The underlying rationale — protecting the legislative and executive branch’s core institutional roles and competencies necessary for the separation of powers — serves as an overarching guiding principle for how to weigh the factors in the analysis. Thus, the nature of the decision along with the hallmarks and factors that inform its nature must be assessed in light of the purpose animating core policy immunity.

...

For these reasons, the trial judgment must be set aside. On duty of care, we would conclude that the impugned City decision was not a core policy decision and the City therefore owed Ms. Marchi a duty of care. The standard of care and causation assessments require a new trial. We would therefore dismiss the appeal with costs throughout."

Leave Applications: 6 Dismissed

Dismissed

Civil Litigation: Abuse of Procedure

Hrabovskyy v. Attorney General of Canada, 2021 QCCA 85 (39721)
The Applicant, Mr. Hrabovskyy, was a Canadian citizen residing in the Province of Québec who worked in a laboratory in Norway as part of his Master’s program in chemistry. In that context, he developed a long‑term illness due to the inhalation of diethyl. He claimed before the Norwegian authorities for pension and disability benefits, but relief was refused under the applicable legislative regimes. He then sought various orders against the Respondent attorneys general in Québec for similar compensation, alleging participation by them in a fraud perpetrated by the Norwegian authorities in the handling of his claim. The Respondent attorneys general successfully moved to dismiss Mr. Hrabovskyy’s claim for abuse of procedure. The Qué. C.A. dismissed Mr. Hrabovskyy’s application for leave to appeal, having found no error in the judgment of first instance or a question going beyond the interests of the immediate parties. "The miscellaneous motion is dismissed. The application for leave to appeal...is dismissed with costs to the respondent, Attorney General of Canada."
 

Criminal Law: Pre-Sentence Custody Credit

Rajmoolie v. R., 2020 ONCA 791 (39700)
Mr. Rajmoolie pleaded guilty to firearms offences. At his sentencing hearing, he sought credit for time served and additional credit for the harsh conditions experienced while incarcerated in Toronto East Detention Centre. He was sentenced to four years less credit for time served with no enhanced credit for the conditions of his pre‑sentence detention. The Ont. C.A. dismissed the appeal. "The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal...is dismissed."
 

Criminal Law: Sexual Offences

N.B.M. v. R., 2021 ABCA 14 (39687)
There is a publication ban on the party, in the context of sexual offences by a father against a daughter. "The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal...is dismissed."
 

Family Law: Custody

S.W.B.M. v. C.S.M., 2021 SKCA 64 (39715)
There is a publication ban on the party, in the context of child custody. "The motion for a stay of execution is dismissed. The application for leave to appeal...is dismissed."
  

Professions: Discipline

Fleischer v. Tribunal des professions, et al., 2020 QCCA 1651 (39746)
This Leave involves malpractice allegations launched against a lawyer who represented the Applicant, Ms. Fleischer, at trial in the context of litigation involving her late father’s estate. Ms. Fleischer was sued by her lawyer for unpaid fees following the trial, and she responded by lodging complaints initially before the Syndic du Barreau du Québec, and then to the Disciplinary Council of the Barreau du Québec, alleging her representation fell below the applicable ethical standards. The Disciplinary Council of the Barreau du Québec acquitted Ms. Fleischer’s lawyer of the offences alleged in her complaint. The Professions Tribunal dismissed Ms. Fleischer’s appeal on a summary basis, having determined her prospective appeal stood no reasonable chance of success. Ms. Fleischer’s application for judicial review was dismissed by the Superior Court, and the Qué. C.A. denied her application for leave to appeal. "The application for leave to appeal...is dismissed with costs to the respondent Louis Brousseau. Kasirer J. took no part in the judgment."
  

Torts: Injurious Affection

Tri-C Management Limited v. Nova Scotia (Attorney General), 2021 NSCA 26 (39678)
Highway 104 in Nova Scotia used to pass through the Town of Antigonish. The Province of Nova Scotia constructed a by‑pass. The by‑passed portion of highway became a trunk highway. Five businesses commenced claims for injurious affection. The Nova Scotia Utility and Review Board dismissed the claims. The N.S. C.A. dismissed appeals and a cross‑appeal. "The application for leave to appeal...is dismissed with costs."

Appellate Extras

Featured Court of Appeal Decision

We also track what’s happening in the appellate world before it gets to Canada’s highest court. Below is this week’s featured Court of Appeal decision from our Appellate Monthly newsletter.

Civil Litigation: Contempt

Thrive Capital Management Ltd. v. Noble 1324, 2021 ONCA 722 (CanLII)

Key Words: contempt; Rules of Civil Procedure, RRO 1990, Reg 194

Read our summary here

Upcoming SCC Hearings

For a full list of upcoming Supreme Court of Canada hearings and a quick look at what they’re about, check out our annotated appeal schedule

Last Word

A Toast?

Well, for some, not me. Probably not allowed to raise a cup of tea (even if a particularly good Darjeeling or Lapsang Souchong) in a toast?

Maybe that was the reason I felt obliged to immigrate from Scotland—last alcohol I drank (lager and lime) during the “frosh” week (I remember it actually being a day and a half) at the start of first year law in Edinburgh (Sept. 1972).

As for toasts (don’t tell anyone) I prefer mine with lotsa butter and a spoon of blackcurrant jam.

But here are some toasts as referenced in the Atlas Obscura.

Though as Dean Martin said, “I feel sorry for people that don’t drink. When they wake up in the morning, that’s as good as they’re going to feel all day”. He added, “You’re not drunk if you can lie on the floor without holding on”.

Though not a toast, but a memorable reason to eat a particular food item, is by the Colombian writer Gabriel García Márquez: “People that can’t swim, eat fish for revenge”.

Thank you: Peter Hamiwka (Hrycyna Law Professional Corporation, Toronto), phamiwka@hlpc.law.

About Supreme Advocacy LLP

We're a boutique law firm specializing in:

  • SCC advocacy and agency
  • ghostwriting factums at all appellate levels
  • preparing complex legal opinions and legal research

Our team of lawyers consists of:

  • Eugene Meehan, Q.C., former Executive Legal Officer at the SCC, Masters and Doctorate in Civil Law from McGill University, Queen's Counsel.
  • Marie-France Major, former SCC law clerk, Masters from Oxford University, and Doctorate in law from UC Berkeley.
  • Tom Slade, former Editor-in-Chief of the Ottawa Law Review, journalism degree from Carleton University, and law degree from University of Ottawa.
  • Cory Giordano, Bachelor of Arts (Honours) degree from Queen’s University and Juris Doctor from University of Ottawa.
Contact Us

End Notes

We welcome your questions and comments. Please email me your suggestions for the Last Word. Sources acknowledged, of course.

If you received this newsletter from a friend and are not yet subscribed yourself, you can sign up here.

There’s no charge to sign up for this publication — I may be Scottish, but “Scot-free” isn’t an oxymoron.

Eugene
Twitter
Facebook
Website
Copyright © 2021 Supreme Advocacy LLP, All rights reserved.


Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list.