Federal Court tackles cases involving licenses and the protection of endangered species
This week, Canada’s highest court dealt with matters involving sales by description under Ontario’s Sale of Goods Act, 1990 and the rights to privacy and trial by an independent and impartial tribunal under the Canadian Charter of Rights and Freedoms.
Supreme Court of Canada
On Monday, the court jointly heard the cases of Leading Seaman C.D. Edwards, et al. v. His Majesty the King, 39820; Sergeant S.R. Proulx, et al. v. His Majesty the King, 39822; Corporal K.L. Christmas v. His Majesty the King, 40046; Lieutenant (Navy) C.A.I. Brown v. His Majesty the King, 40065; and Sergeant A.J.R. Thibault v. His Majesty the King, 40103.
The appellants, members of the Canadian armed forces facing various charges, requested a stay due to an alleged infringement of their constitutional right to be tried by an independent and impartial tribunal under s. 11(d) of the Charter. The chief of defence staff’s order about the designation of a commanding officer for the purposes of considering disciplinary matters infringed this right, they alleged.
Military judges stayed the proceedings under s. 24(1) of the Charter. They found an infringement of the appellants’ rights under s. 11(d). They held that the Canadian forces organization order lacked force or effect relating to the disciplinary regime applicable to military judges.
The Court Martial Appeal Court of Canada allowed the Crown’s appeals. It ruled that no informed person would find an apprehension of bias or a compromising of the independence of courts martial.
On Tuesday, the court heard Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 40197. Pine Valley Enterprises Inc. contracted with Earthco Soil Mixtures Inc. for the supply of topsoil for use in a project. Pine Valley waived its contractual right to test the soil before shipment.
Testing after delivery showed that the soil significantly differed from earlier test results. Pine Valley sued Earthco for damages since it had to remove the soil.
The trial judge determined that the contract was for a sale by description under the Sale of Goods Act and that there was a discrepancy between the soil described in the contract and the soil delivered, in breach of s. 14 of the Sale of Goods Act. However, he dismissed the suit based on the contract’s exclusionary clauses.
The Ontario Court of Appeal allowed Pine Valley’s appeal. The appellate court ruled that the trial judge erred in using the contract’s factual matrix to decide that the exclusion clauses ousted s. 14.
On Wednesday, the court heard York Region District School Board v. Elementary Teachers' Federation of Ontario, 40360. The school board issued a written reprimand against two teachers based on private communications on their personal and password-protected log, which were read and captured by the principal via screenshots.
The union brought a grievance alleging that the school board violated the teachers’ privacy rights by assessing private digital information without reasonable cause and by using that information for the investigation.
The arbitrator dismissed the grievance. The Ontario Divisional Court upheld this decision. The Ontario Court of Appeal allowed the appeal and quashed the arbitrator’s award.
On Thursday, the court will hear Canadian Broadcasting Corporation v. His Majesty the King, et al., 38992. In 2014, a 1987 conviction for first degree murder was referred to the Manitoba Court of Appeal based on miscarriage of justice concerns. The appellate court ordered a publication ban over details of the accused’s affidavit pending a decision on its admissibility as new evidence.
In 2018, the appellate court found a miscarriage of justice, dismissed the motion for new evidence, and ordered that the publication ban over the affidavit remain effective indefinitely. In 2019, the Canadian Broadcasting Corporation (CBC) moved to set aside the publication ban.
The appellate court refused to consider this motion. In 2021, the Supreme Court of Canada allowed one of the appeals and remanded the matter so that the appellate court could reconsider the publication ban. The second appeal was adjourned.
Last February, the CBC filed a motion for directions and asked the Supreme Court to set the second appeal for hearing. In April, the Supreme Court scheduled the appeal for hearing and limited the issues to the implications of Sherman Estate v. Donovan, 2021 SCC 25 on the publication ban.
Federal Court
On Monday, the court heard Nunavut Tunngavik Incorporated et al. v. Minister of Fisheries and Oceans et al., T-1362-21. Nunavut Tunngavik Incorporated and Qikiqtani Inuit Association represented the interests of the Inuit of Nunavut. They challenged the decision of the minister of fisheries and oceans approving the reissuance of certain fishing licenses for Greenland halibut and Northern shrimp.
Also on Monday, the court heard Abdulrahman Al-Sharawi v. Attorney General of Canada, T-591-22. A judicial review application questioned the Canada Revenue Agency’s decision finding the applicant inadmissible for the Canada Recovery Benefit (CRB).
On Tuesday, the court heard Attorney General of Canada v. The Canadian Human Rights Commission, T-427-23, which arose from the National Security and Intelligence Review Agency’s report making findings under s. 46(1) of the Canadian Human Rights Act allegedly without affording procedural fairness to Immigration, Refugees and Citizenship Canada, the Canadian Security Intelligence Service, the Canada Border Services Agency, and Public Safety Canada.
On Wednesday, the court heard Western Canada Wilderness Committee v. Minister of Environment and Climate Change, T-1177-23. The minister of environment and climate change allegedly failed to timely recommend the issuance of an emergency order to protect the endangered Northern spotted owl under s. 80 of the federal Species at Risk Act, 2002.
Also on Wednesday, the court heard Grand Manan Fishermen's Association, Inc. v. Attorney General et al, T-2291-22. A judicial review application questioned a decision of the minister of fisheries and oceans and the Canadian coast guard purporting to change the coordinates for a certain lobster fishing area on an interim basis.
On Wednesday, the court heard Laurie White v. The Canada Post Corporation, T-2366-22. This involved a challenge of the Canadian human right commissioner’s decision under the Canadian Human Rights Act, 1985 to not deal with the complaint based on its being vexatious.
Also on Wednesday, the court heard Hui Ping Hu v. Attorney General of Canada, T-2324-22. This judicial review application related to the applicant’s eligibility for the CRB and the Canada Worker Lockdown Benefit. The applicant wanted her self-employment work to be recognized.
On Friday, the court will hear Minister of National Revenue v. Seyed Abbas Shokouhi, T-708-23. This application asked for an order under the Income Tax Act, 1985 compelling the respondent to provide certain documents and information.
