Yves Faguy: Hi, I'm Yves Faguy. You're listening to Modern Law, presented by the Canadian Bar Association’s national magazine.

It’s March 11^th 2024. We’re back with a new instalment of our Supreme Court briefing with our regular guest, Nadia Effendi. Nadia Effendi is a partner at BLG and a member of the CBA’s Federal Courts Bench and Bar Liaison Committee. Nadia, welcome back to Modern Law.

Nadia Effendi: Thank you, Yves, glad to be here.

Yves: OK, so let’s get into the work of the Supreme Court of Canada in the last year; let’s talk a little bit about its output. What do you have for us today?

Nadia: Yes, I thought we could maybe cover a bit of the stats from last year, looking both at decisions that the court issued, but also a decision on leave. So, let’s start with decisions.

If we were to look at all the decisions released by the court last year, including judgements from the bench, which I’ll come back to in a moment, the court basically issued 34 reported decisions. And that’s compared to 53 in 2022 and 59 in 2021. So obviously, a considerable dip there in terms of decisions.

And if we’re looking at written decisions, that means decisions that were released only after being reserved, not from the bench, we’re looking at 27 compared to 36 and 37 in the last two previous years. And so that’s much lower, frankly, even than the average in the last let’s say ten years about, where we had about 51 written judgements.

So why is that? We can talk about that in a moment, but definitely a dip in the number of decisions coming out of the court.

What is interesting though is if you look at oral reasons, meaning decisions that were released from the bench; the court decided seven cases, all of which in criminal matters where they were appeal as of right and it gave short oral reasons from the bench. In three other cases the court did grant a judgement from the bench but then there were [writ? 00:02:12] reasons that followed.

So, we’re looking about at a total of ten if we were to count the seven and the three, in terms of decisions released from the bench, which is actually lower than the two previous years, so that might be something that our listeners are interested in. There had been quite a bit of criticism in the past with respect to the high number of decisions released from the bench in the last two previous years. In fact, we were looking at 17 and 22, so that is lower.

That being said, this year already, and we’re just at month number three, we’ve already had three decisions that have been released from the bench too in cases that were criminal as of right. And one in a case with leave, but reasons to follow, so there’s hope there. So, as I said, that’s kind of looking at decisions.

One of the things that I also took a look at because I thought it was interesting to see the division between the various areas of law. Again, when we look at all the reported decisions of the courts, the majority are term and criminal cases. Fewer private law cases. We had two that were federalism-based constitutional challenges. We had four that were Charter-based challenges, four that were criminal that focus mostly on Charter issues.

We had seven that raised other criminal matters. We had two that dealt with publication ban and four that were admin law regulatory decisions. And then you had kind of a smattering of different cases, one on the Income Tax Act, one on anti-SLAPP, one on domestic contract and one related to corporate law liability in the Quebec civil law.

So, interestingly though, I think in the past people thought, oh, the majority of the cases would come out of Ontario, and that wasn’t the case. The majority of the decisions were actually out of Alberta and Quebec – six in each of those provinces; four out of Ontario, three out of the Federal Court of Appeal, three in BC and one from the Court Martial, one from Saskatchewan, one from Manitoba and one from the Northwest Territories, and one from my home province of New Brunswick.

So, that’s kind of looking at all the decisions released from the court last year.

Yves: What does that tell you, that there are so many coming out of Quebec and Alberta, or is it just coincidence?

Nadia: You know what, I think it’s hard really to pinpoint if there’s really some reason for it. I just thought it was interesting because historically, you know, given that the Ontario courts are the busiest courts in the country, we tend to see way more appeals coming out of those courts. So, I don’t know that there’s necessarily one reason or the other.

Certainly for Quebec, the Supreme Court has always tried to make sure that issues that are relevant to the Quebec bar and the Quebec law are addressed, even though technically they're not national in jurisdiction, so to speak. But they are of national importance to Quebec itself, so I'm not surprised to see cases out of Quebec there in terms of the number.

Yves: What do you think does explain this low output from the court? And if I'm correct, I think going back even several years ago, the output was in the seventies – you know, 70, 75 decisions a year. Does it have anything to do with the departure of Justice Brown, is it long COVID hangover at the court? What do you think it might be?

Nadia: I think it’s an interesting question. I think that all litigators probably have noticed that the Supreme Court has been steadily deciding fewer cases since the early nineties. And last year was exceptionally low, I would say.

You know, to put it into perspective, the lowest number of judgements goes back to 1947, and it was interesting; I read this study prepared by the Alberta law professor, Gerald Kennedy, who actually will be publishing in the Spring Court Law Review. And he looked at all the stats, and you had to go back to 1884 in fact to find a year with fewer decisions than last year. So, that’s not great for the court.

Why? I mean, I can only speculate, but there’s maybe four reasons that one can look at. One, I would suspect, is the departure of Justice Brown is one of the reasons as you mentioned. I mean, the fact is that he was put on leave by the Chief in February 2023 and couldn’t participate in the 16 appeals he had heard. So that meant he couldn’t participate in the judgement on the reserve or decide leave applications that may have been assigned to him, so that had to be reassigned to others. And so obviously, the reassignment, I assume, would have created some delays both in judgement and leave decisions.

What is interesting though is that it didn’t affect the number of hearings that the court heard, because the court heard 50 appeals in 2023 compared to 52 and 53 in the previous two years. Although, 50 appeals last year is the lowest in the past decades, I should note.

That said, as of early January of this year, there was only two cases that Justice Brown had sat on that hadn't been released, and they have now been released. So, I don’t know, I think certainly that’s part of the reason.

The second reason, I suspect – and maybe that is the main reasons for the low number of decisions – is due to the fact that in 2022 we had fewer leaves that were granted. Only 24 leaves to appeal were granted, which some have noted is kind of a historical low. Obviously, the court doesn’t provide reasons, Yves, as you know, for why leave is granted or denied, so it’s really difficult to speculate on the reason for this drop.

Some have [appine? 00:08:04]; I saw that my friends, [local language 00:08:07] appine that, based on his data analysis, that maybe the court simply got stingier with granting leave. Or maybe it’s more likely that in 2022 it was a year with less worthy issues to be decided by the court. Remember that the test is a very high test, so having to be public importance issues. And again, COVID in the mix, slower pace for cases to go through the courts, so that probably had an impact as well.

A third reason that some people have pointed to is an increased division among the justices of the Supreme Court in terms of a higher number of dissenting opinions. And of course, a divided court might actually take more time to finalise judgement because it means you have to make sure you have the judgement reasons and also the dissent reasons that are ready and prepared to be released at the same time. So that might be another explanation.

The last one which I frankly hesitate even to mention, but I saw some anonymous Supreme Court expert quote it as having said that maybe one of the reasons is because of the court’s expansion on extracurricular activities, i.e. speeches and other initiatives.

Personally, I frankly would be very surprised that that would be the reason why. I mean, judges of the Supreme Court have always participated in conferences and giving speeches over the years and frankly, I think that is a very good thing, so I wouldn’t imagine that that’s the reason for the lower number of judgements coming out of the court. So, I'm hoping that 2023 might be an outlier, given the low leaves from the previous year and Justice Brown’s departure.

I mean, on the bright side, the number of leaves the Supreme Court granted last year is up to 40 from 24, so that suggests that there will be more decisions hopefully coming out of the court this year.

Yves: And just to play devil’s advocate, do we mistakenly think that more leaves being granted is a good thing, or is there merit in the court focusing its efforts and its minds on a more manageable number?

Nadia: Yes, I mean, that’s a tough question. I don’t know, is it better or worse? Fewer leaves means less new law or guidance from the court on issues of public importance, and especially in civil cases where there are no appeals as of right.

In fact, if you look over the past five years, you’ll see that the number of civil cases where leave was granted has been on a downward trend: 27 in 2018 to 14 in 2022, although we’re back up to 23 last year. So, that is disappointing for lawyers that practice in this area. It means less opportunities to advance the law on important topics. That said, 23 civil leaves were granted last year, which might indicate a surge in civil [lodgers? 00:10:58] prudence coming out of the courts this year – we’ll have to see.

It’s difficult to say that the SCC lowered the number of leaves in order to focus kind of a more manageable number of appeals. I mean, if you compare this with other ethics courts, like the US Supreme Court released 58 in rulings in the 2022/2023 term, and the UK 54. So, I don’t think there’s any reason why our Supreme Court wouldn’t be able to manage a similar load. I'm in fact sure they could.

The court’s really primary role in our society is to provide guidance to Canadians, and on issues of public importance, and I don’t think that there’s been a decline in cases raising issues of public importance. I'm hopeful that with Justice Moreau’s appointment we’ll see an increase in judgements this year and hopefully a return to the normal output we’ve seen in the previous decade.

Yves: Yes, no, certainly. And on top of it, she has the reputation of being a very hard worker, Justice Moreau, so they're going to definitely have some [cement? 00:12:01] strength there.

I'm wondering if you have any reaction to the Chief Justice’s comments again recently about the high number of judicial vacancies. It seemed to me he was pressing the point a little bit more insistently.

Nadia: Yes, and just so that the listeners are provided a bit of a context, Yves, his address at the CBA Annual General Meeting to Justice [Vagnas] now sounded once again, frankly, the alarm on the lack of judicial appointments and resources for the court. He noted that as of January 1^st of this year there were still 78 vacancies in federally appointed judicial positions, and some courts have been coping for years with a vacancy rate as high as 10 and 15%.

So, this situation does little to inspire a confidence, frankly, in the judicial system, which is what he stressed, further adding that the governments have to understand, especially with the Supreme Court’s Jordan ruling, that it has really serious consequences if there’s challenges in terms of resources for the court.

I personally cannot but agree with these comments. Our listeners will have undoubtedly heard about the recent decision of the federal court in Hameed, which was released early in February, which addressed the speed at which the government makes judicial appointments to fill vacancies.

Ultimately in that case there was no mandate that was issued against the government to force them to do something, it was simply a declaration that judicial vacancies should be filled in a reasonable time. But I think the case demonstrated the frustration of the bar, frankly, and Canadians, in getting their case heard in a court system that is more strained than ever.

So, I'm hopeful that the governments – frankly, all level of governments, provincial and federal – will act judicially on this and take action in an effort to accelerate the judicial appointment processes.

Yves: So, the Chief Justice also mentioned that during those same remarks to the Canadian Bar Association’s AGM, he talked about restricting intervenors to virtual appearances. And you know, we’ve talked about this in the past on this show, but I imagine some members of the bar are a little disappointed by this?

Nadia: I think we are. As our listeners probably know, back in 2022 the Supreme Court had issued a directive barring intervenor counsel from arguing in person. And at the time it was on the basis of ongoing COVID health concerns. And again, at this AGM he made a few comments on intervenors appearing virtually and how he believes – the Chief Justice – that enhances access to justice.

And you're right, the reactions from the profession have been mixed. I saw that there was a lot of lawyers on Twitter, on X, expressing their disagreement or skepticism with the directive. Most agreed that it does in fact enhance justice by reducing costs for the parties, but a lot were puzzled as to why there wasn’t any hybrid option.

As you know, since the pandemic there’s been a divide in our profession between those who much prefer in-person advocacy and those who believe that in fact, virtual is an important practical, cost-effective option that exists for their clients.

So, the Chief Justice’s comments at this AGM addressed really for the first time the concern that had been raised by members of the bar and the profession since the implementation of the directive. Although there’s been a lot of chatter, I think this was the first time that the Chief Justice addressed them head-on.

What I thought was interesting was that he said that the directive offers a lot of saving to those furthest away from Ottawa, which improves access to justice, which we all agree with. He also said that it leveled the playing field. Maybe. I mean, if it really is simply to save costs and increase access to justice it would seem appropriate to offer, in my view, a hybrid option which would then satisfy all parties here.

And this is particularly given that he went on to say that it doesn’t matter to members of the court if counsel is standing before them or appearing on screen, that in his view it was really well-reasoned, persuasive argument that mattered and could be made anywhere. And if that’s the case, then why not offer the option for those who can attend in person?

And personally, I think where this matters is that the reality is that for many lawyers, their first experience at the Supreme Court of Canada is through an intervention, often on a pro bono basis, but still, they're putting in a lot of effort, this is their first time there.

And while the judges may afford the same importance to the submission when they're there in person or virtual, for the lawyer making the argument is a totally different experience. There’s nothing that can replace the feeling of walking into frankly, the Supreme Court of Canada building and then into that courtroom, and then standing when they open those doors and call la cour.

And also, simple things like learning how to address the court at that big podium. And I can tell you, having been there, it’s quite an experience because it resonates with the microphone and everything. And so, I think that there's a learning there that needs to happen, and it’s a huge disservice to the members of the bar, the more junior members of the bar, in getting the training for the next case, where they may actually appear on behalf of our party.

Yves: Yes, I imagine learning how to manage the butterflies is part of the job.

Nadia: Absolutely, this is not the same thing as sitting in your office wherever you are in Canada, or even at home. I totally agree. I think that’s something that we all need to learn, and the only way to do it is to be there, in front of those judges in that building, in that courtroom.

Yves: You wanted to talk about the topic of rehearing, which is a bit unusual, and that came up in a couple of recent cases at the court.

Nadia: Yes, I thought that it was interesting because it came up twice. And I think the reality is, it’s probably as a result – not just probably – it’s a result of Justice Brown’s departure, so it’s created this little situation. And so this issue came up in two cases; in Bykovets, as well as Greater Sudbury.

Both cases were originally heard by a panel with Justice Brown, but they weren't decided before his departure, and that’s what was interesting about it. If we start first with Bykovets, it was argued in January 2023 before a seven-panel court, and then on November 9, 2023, at the end of last year, the court ordered a rehearing of the appeal to be conducted in writing. And the written hearing was conducted on December 11, with all nine justices sitting, and then the judgement was reserved.

And the decision was actually released last week or the week before, I believe – a couple of weeks ago – and it was slit five/four. So, given the slit in the panel one would expect that the rehearing was ordered to avoid a tie, four/four, unlike the decision in Greater Sudbury, which I’ll come to in a moment. So, I thought that was very interesting.

And frankly, the decision Bykovets is a really important decision generally. I mean, the case arises from a police investigation into online fraudulent gift card purchase scheme, and there the police had requested and received the IP address attached to transactions from the payment processing company, without prior judicial authorization. And then the police had went on to obtain a production order for the relevant IP addresses, subscriber information and everything.

But the central question on this appeal was whether an IP address itself attracts a reasonable expectation of privacy. And the Supreme Court had previously held in Spencer that a reasonable expectation of privacy attaches to the subscriber’s information name but hadn't looked at the issue specifically of the IP address.

So, slit decision five/four, the majority decision penned by Justice Karakatsanis and the minority decision by Justice Côté. And we could see here very different views between the two groups. And so, I think that the issue of the hearing really was an important one.

Yves: And ultimately, the court ruled that there was a reasonable expectation of …

Nadia: Absolutely, absolutely. They found that there was a reasonable expectation of privacy that attaches to the IP address, such that they would require, going forward, the police to obtain prior digital authorizations requested.

And the majority recognized that the informational privacy is becoming critical in this current digital age, and it viewed the IP address as more than simply a string of meaningless numbers, as had been argued. Rather, in the majority’s view, the link connecting the internet activity to a specific location, potentially betraying the identity of the device’s user, was important.

And the line that has been quoted in this decision by Justic Karakatsanis, where she describes it as the first digital breadcrumb that can lead to the state on the trail of an individual’s internet activity. So, the majority rejected the Crown’s argument that Section 8 didn’t extend to an IP address.

And that’s really different than what the dissent decided, and the dissent Justice Côté to Justice Wagner, Justice Rowe and Justice O’Bonsawin – which, by the way, an interesting group of judges there, I must say.

Yves: It’s not the usual team.

Nadia: No, it’s not the usual team, so maybe that’s good, not a bad thing. They, on the other hand, found that the appellant didn’t have a reasonable expectation of privacy in the IP address alone, without any other information linking him to that IP address. And Justice Côté and the dissent disagreed with the majority’s approach in describing the subject matter of the search as the identity of the user. They were much more narrow in their definition. She found there was no information revealed by the raw IP address alone, and therefore it was not the subject matter of the search.

So, the significant difference between the majority and the dissent here is really how they define the subject matter, and what was ultimately at issue. I think important key takeaways here: obviously the court expands the veil of individuals’ reasonable expectation of privacy to account for the role of third-party private corporation as mediator between the state and the individual, so very interesting.

Also, another key takeaway is that the court confirms a constitutional right to privacy will not be based on the state’s declared intention with respect to the information sought, so it must consider what the information, the subject matter of the search tends to reveal. So, you have to go look at the whole picture. And the court really doubled down in decision in Spencer by extending the obligation for a private to show authorization to the first step of requesting that IP address.

Obviously, you know, technological advancements have changed how we see privacy, and the court confirms that those advancements don’t require a Canadian to make an impossible choice between their privacy and being part of today’s society. So, I think a really important decision which, as you mentioned, the rehearing had an important role to play, I suspect here.

Yves: And what about Greater Sudbury – why was that reheard?

Nadia: Well, there unfortunately, the slit four/four remained and so that case was argued October 2022 before all nine judges. Decision comes down in November of last year, court slits four/four on the central issue. Four justices upheld the Court of Appeal reason, four would have overturned it. And as a result of the four/four, the Court of Appeal’s decision was upheld.

And this is a really interesting precedent-setting case which came, frankly, as a shock to many lawyers practicing municipal law. The case provided clarity on whether a property owner who contracts with a general contractor to complete all the work on a construction project engages health and safety duties as an employer.

And the prevailing view of the Court of Appeal was upheld, namely that an owner would be an employer under Occupational Health and Safety legislation, with all the legal responsibilities that go along with that. So it really did expand those obligations to any owner under the Occupational Health and Safety.

So, I think in light of that decision owners are at greater risk for health and safety on their project, and need to be really careful, to probably reconsider their contractual arrangement with GCs and managers. It really has far-reaching implications that really might upset the business practices for decades.

We’ll have to see – I mean, Justices Rowe and O’Bonsawin – again, an interesting duo – commented on the absurdity of that interpretation in their dissent. So again, we see here how – and the reason I raise it, coming back to my point about rehearing, is that after the decision – [pause] – was released, Greater Sudbury filed a motion requesting a rehearing of the appeal. And unfortunately that motion was dismissed without reason earlier this year.

We do have, from a few decades ago, a bit of an understanding as to when the court usually has allowed rehearings. And if you go back to 1999, there was a decision there where the court issued reason and explained that it would only grant a rehearing if it were one of those truly exceptional cases where the applicant could show a potential failure of justice at the original hearing.

So, I assume that in this case for Greater Sudbury, the court didn’t believe that the unusual slit decision was truly exceptional and warranted a rehearing. So, that’s kind of the last word for Greater Sudbury.

Yves: It didn’t quite meet the bar, yes.

Nadia: It didn’t.

Yves: Let’s talk a little bit about recent judgements. Can we start by the reference on an act respecting First Nations? That’s a pretty big deal.

Nadia: It is, and frankly, this is one of those decisions that was highly anticipated, dealing with the constitutionality of an act respecting First Nation, Inuit, Metis children. The court unanimously upheld the validity of the federal act there, and it reinforced with its decision the authority of Indigenous governing bodies to enact and enforce their own child and family services laws pursuant to that federal act, really is a landmark ruling. And [would it? 00:27:31] represent a critical development in Indigenous self-governance, frankly, and signals an important step in acknowledging and recognising Indigenous laws within our federal structure.

Since the federal act was proclaimed in 2020, there’s been over 50 Indigenous communities that have undertaken to draft laws and prepare for and assert their jurisdiction and enter into various coordinating and funding agreements with provinces in Canada. So, this decision really removed a considerable degree of uncertainty regarding the legal status of those laws that had been enacted under the federal legislation.

And it really reaffirms that those laws are paramount to provincial laws. Specifically, the decision reaffirms two key sections of the federal act, providing that Indigenous laws have force and effect of federal law and that such laws are paramount to provincial law in the event of a conflict.

One thing though that was disappointing for some people is that while the decision did pave the way to the recognition to Indigenous child and family services law, the court didn’t directly pronounce itself on the scope of the content of inherent right of self-governance under Section 35 of the Constitution. The court reasoned that the federal act statement that the inherent rights of self-government was an affirmation by parliament [intended? 00:28:55] by the Crown, as if Section 35 included that right.

But the court held that that was a practical way to advance reconciliation with Indigenous communities, but it left for another day the issue of the Section 35, so we’ll have to see.

But for Indigenous communities that are currently in the process of drafting laws and entering into agreements, some of the uncertainty may remain, including in relation to the scope of an Indigenous governance body’s jurisdiction, the qualification and the definition to be given to an entity, a possible outcome. So, those will have to be resolved in a future court proceeding and probably decided on a case-by-case basis, but certainly a very important landmark decision in Indigenous law.

Yves: And how important is the court broaching the topic of UNDRIP, or the UN Declaration on Rights of Indigenous People. Are we beginning to see a shift, are we beginning to see this part of the makeup of their decisions, trying – give me some context on that.

Nadia: Yes, I mean, I think that the court has always been careful in looking at international treaties and convention, right, Yves. But we’ve seen in some of the recent cases that the court more and more is looking at that and giving it some weight in its interpretation of important legislation. So, I think it’s –

Yves: And it’s part of Canadian law now.

Nadia: Exactly, exactly. And particularly in those cases where it’s been adopted as part of the federal legislation, etcetera. But we’ve also seen how the courts have been very critical of decision makers in lower courts that have failed to consider some of these international conventions. In fact, it has gone so far as to say that even administrative tribunals who fail to look at international law could have their decision deemed unreasonable.

So, I think that we appear to be moving into that direction in giving those international conventions the weight that a lot of people have for years demanded that they be given and used in the interpretation of our legislation.

Yves: OK, so what other judgements caught your eye?

Nadia: Well, there was quite a few decisions that came out of the court, so maybe I can just touch on a couple of them. I know that they may look a bit passe now, seeing as they were released at the end of last year. But we had discussed, you and I, the [local language 00:31:34] and I just want to touch on it very briefly.

I mean, obviously, an important case because it affirmed the important role of non-right holders that play in fulfilling them minority language education right under Section 23 of the Charter. So, very important there because it really does boost – gives a boost to minority language communities.

But for those admin law geeks like me, the decision is also important because it affirmed the continued application of the Doré framework, which some people thought was maybe dead or on the verge of dying.

Well, no, it is as strong as ever after that decision, and we see here that the application of the reasonableness review to administrative law that engaged Charter is reaffirmed.

And there was, as I said, a lot of criticism after Trinity Western about whether or not that was still a valid framework. And the court tells us, “Yes, it’s still there,” so something to keep in mind for the next case that comes around. As I said, I think that the court definitely has breathed some life in Doré with that case.

Maybe the only other one to mention because you and I had talked about it previously, Yves, is the Ontario Attorney General, this Ontario Information and Privacy Commissioner. You’ll remember we had talked about that – that was a request that had been made for those mandate letters that the Ford government had delivered to each of their ministers, and there was a fight about the disclosure of those letters, and the government has refused on the basis of cabinet privilege.

And so there the decision of the Supreme Court confirmed the important role that cabinet confidentiality plays in Canada's constitutional democracy, and how cabinet confidentiality is protected as a matter of constitutional convention. So again, an important decision.

There is also a bit of a back and forth between Justice Côté and the majority with respect to the appropriate standard of review to be applied. Just as Côté concludes that correctness review ought to have applied here, whereas the majority decided not to address that, saying, “Well, whether we apply correctness or reasonableness, it would have been the same decision,” and Justice Côté took issue with that.

Again, I feel like the issue of standard review will never disappear from the Canadian judicial system, but that’s OK I guess, for lawyers like us that are interested in those issues. So just wanted to note those cases, as I said, because we had talked about them previously.

Yves: Yes, well, I have a feeling that you're going to bring up some more admin law, because you’re going to talk about [unintelligible 00:34:20] with the watch, we’re talking about this case dealing with the constitutionality of that old Child Support Guidelines. It’s Auer?

Nadia: Yes, Auer, exactly. So, it’s a bit of a dual, Yves, here; Auer and TransAlta.

Yves: TransAlta, yes.

Nadia: Yes, both cases coming out of the Alberta Court of Appeal, and both cases tackle the question of what is the appropriate framework for a judicial review of regulation? In one case, in Auer, we were dealing with governing counsel regulation of support payments, and then in TransAlta we were dealing with ministerial regulation about property taxation assessment.

And so, the question here that had been left open after Vavilov is whether or not the correct approach to review regulation in light of Vavilov is the reasonableness approach, in other words, the Vavilov framework, or whether or not we should be applying the Katz framework, which is a framework that had been established by the Supreme Court of Canada with respect to regulation.

And so here the court really will have an opportunity to provide some insight and clarity as to what is the appropriate approach to apply, and whether or not delegated decision making via regulation in fact are administrative actions that should be reviewed under the Vavilov framework, or whether or not Katz remains the appropriate approach.

And here, what was interesting is that the Alberta Court of Appeal determined that no, when it came to the issue of regulations, certainly the guidelines under the Divorce Act, if we start with that under Auer, and determining what is the appropriate approach, it determined that it was the Katz that applied.

The Court of Appeal drew a distinction between administrative decision making and legislative action like here. And it concluded that enacting a regulation is not a decision in the Vavilovian sense, and so decided that it would apply the Katz group test. And so I think it’ll be a very interesting thing to see what the Supreme Court of Canada does.

TransAlta, in fact, is an extension of the Auer case; similar application there where again, the Court of Appeal concluded that you had to apply the Katz framework and not the Vavilov framework. I think that’s important.

There’s been a lot of discussion, frankly, at the bar and also for people practicing in admin law. Some people have said that the Alberta Court of Appeal’s reluctance to apply Vavilov really stems from a false understanding or belief that if you were to apply the reasonableness review under Vavilov. In fact, you would invite a review of the merit of government policy decision when they adopt these types of regulation.

And frankly, that’s all that Vavilov says, right. Vavilov doesn’t actually open the door to courts being able to second-guess administrative actions. But it’s true that Vavilov does offer some flexibility because it’s the type of framework that has to be able to apply to all different types of administrative decision making. Which means also that it could, some people have argued, apply to all sorts of different type of regulation as well.

The other thing to remember is that regulations are not legislation. They really are executive actions, so they don’t have the same kind of process that is followed as one would follow for various statutes. So, we will have to see; the decision is being heard. Those two cases are being heard together in April, and there’s already been, I think, close to a dozen potential interveners that have applied, wanting to comment on these two cases, so we’ll have to see.

Yves: So, Vavilov really is getting stress-tested through many of these decisions over the last little while, right?

Nadia: Absolutely, it definitely is. And not only that; I think it’s being tested on some of the things that the court has not said. And so, where there’s been, I would say, gaps where the court may not have addressed an issue or remained silent on an issue.

Now obviously, these are creeping up via other decisions and so that’s one of them, right. Does Vavilov apply to regulation or not? So, we’ll have to see, I think, whether that’s the case. I'm hopeful to allow some consistency in admin law, that the court might try to use the same framework. We’ll have to see, frankly, whether that’s the case or not or whether it’s decides, no, you know, there’ll be a different framework that applies for regulations.

Yves: It’s too early to say whether it will survive the stress test.

Nadia: Yes, that’s right, that’s right. I'm hopeful.

Yves: Interesting case out of Ontario, the Working Families Coalition where the province used Section 33 to try to get its election spending act through.

Nadia: Yes.

Yves: This is also rare, Section 3 Charter case.

Nadia: It is, it is. And just by way of background, prior to the 2018 Ontario general election, the government had enacted amendments to the Election Finance Act there, and it had imposed a 600 000 spending limit on political ads by third parties.

And in 2021 the government further amended these laws by extending that restricted spending period to 12 months prior to the issuance of a writ but maintain the cap of 600 000. And so, there was a group of advocacy or organizations and unions that commenced a constitutional challenge of the spending restriction.

Those restrictions were declared and valid and they were struck down by the Ontario Supreme Court for infringing freedom of expression. The government that subsequently re-enacted the Election Finance Act amendments but invoked the Notwithstanding clause to shield the legislation from constitutional challenge under Section 27 [to 15? 00:40:40] of the Charter.

And so the same applicant commenced a new constitutional challenge objecting to the government’s invocation of Section 33 and arguing that the re-enacted restriction infringed Section 3 of the Charter.

The same judge who determined the Section 2[b] challenge, heard the application and sided with the government this time. He found that first, Section 33, the Notwithstanding clause, was properly invoked and that the re-enacted third party [add? 00:41:10] spending limits did not infringe the right to vote under Section 3.

And so, we will have to see what comes out of it. There was a dissent, so the Court of Appeal, I should mention, agreed with the lower court that Section 33 was properly invoked. However, a majority of the three judge panels overturned the lower court’s ruling on Section 3; the majority held that the informational component of the right to vote was overly restricted by the spending limits and the time period.

So, we’ll have to see. As I said, there was a slit there, the Court of Appeal. I think it will be a very interesting decision that addresses, as you say, Section 3, which doesn’t often appear in front of the Supreme Court, and obviously, the Notwithstanding clause. So, TBD there.

Yves: Yes. Sanis Health – this is also interesting because we’re talking here about BC legislation that would allow a province to bring an action on behalf of a class of governments in Canada. And this all has to do with the opioid crisis.

Nadia: Correct, exactly. So, another interesting division of power case. As you mention, this relates to the opioid damages and Health Care Costs Recovery Act that was enacted in BC. And so, that act allowed the province to bring an action on behalf of the class.

And so here the applicants were named as defendant in the proposed class action that was brought by the province under that statute. And they sought by way of summary trial and overstriking the provision of that statute as being ultra vires, the province, and therefore of no force and effect.

The summary trial judge found that the provision was within the legislator’s authority and dismissed the application, and the Unanimous Court of Appeal of BC also dismissed the appeal.

The case is important for those that practice in pharma litigation space, but also in class action. While essentially, it’s a constitutional case, the outcome is likely to impact a lot out there across Canada. It’ll be interesting to if the SCC takes the opportunity to clarify how the jurisprudence on both [Orr? 00:43:20] and Ferris relate to multi-Crown and national class actions.

The court had previously held that where the pith and substance of provincial legislation relate to matters within the provincial legislative competence, that incidental or consequential effects on extra-provincial right doesn’t necessarily make the provision ultra vires. So, we’ll have to see here an interesting, and as I said, constitutional/class action issue – yes, a matter to be dealt with by the court, to be heard in May of this year.

Yves: I mean, it strikes me as odd that you would not be able to create a class in this particular circumstance, so I'm not sure what the alternative to action by the different governments would be, but yes, definitely, an interesting case. What else is on your radar?

Nadia: Well, maybe one other case that some people have said is admin law, although it doesn’t deal with standard review, Yves, and that’s the TELUS Communication case. I would call this case kind of a pure 101 on statutory interpretation.

When I started looking at the case, I wondered whether or not it was actually a standard review. It is not. So, this is TELUS Communication versus the Federation of Canadian –

Yves: I hope you weren't too disappointed.

Nadia: No. Not too disappointed because it deals with this issue that the court hasn’t – well, I mean, I think the court has dealt with in the context of other decisions, but kind of as a standalone issue, this is really all about statutory interpretation.

So, the case comes out of the CRTC and frankly, deals with the proper interpretation of the term – and I quote – “transmission line” under the Telecommunication Act. That’s what it’s about, and whether or not “transmission line” could include small cells or any technology that transmits telecom wirelessly. So, that’s the whole issue here in this case.

It touches on statutory interpretation, which obviously is an important issue that all decisionmakers have to deal with, but also courts across the country have to deal with on a regular basis. No hearing date has been scheduled yet for it, so we’ll have to see when it gets scheduled.

But I thought it was an interesting little case, as I said. For those people that are starting as lawyers or maybe law students, probably something that will be of interest in terms of whether or not the court confirms its approach to the interpretation of words, or whether or not it chooses to adopt a different approach in this case.

Yves: Well, as always, some great insight. And thank you for this fantastic Supreme Court briefing, Nadia Effendi.

Nadia: My pleasure, Yves.