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Case Commentary

Is Deference Possible Here? The Groia Decision and Disguised Correctness

In Groia v Law Society of Upper Canada, 2018 SCC 27, decided last week, the Supreme Court of Canada once again fractured over the approach to take to the judicial review of an administrative decision ― and, once again, the majority chose correctness review disguised as reasonableness as its methodology. The substantive issue in Groia was whether the Law Society was entitled to ...

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The Wall of Separation

The Supreme Court of Canada released its judgement in the Wall appeal last week. It’s a victory for clarity in what had become quite a confused case.  The Court, overturning both courts below, ruled that judges do not have authority to review the decision of an unincorporated religious body to expel one of its members. Confusion at the lower courts Randy Wall, the ...

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Comeau is a Casualty of Confused Doctrine

The Supreme Court delivered a bizarre decision last week in R.v. Comeau. By way of background, Comeau concerned the interpretation of s.121 of the Constitution Act, 1867, which states: “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” The issue for the Court was ...

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Canon to the Right of Them, Canon to the Left of Them, Canon in Front of Them

The Ontario Court of Appeal’s recent decision in Schnarr v. Blue Mountain is significant for two reasons. First, it provides much needed clarification to the law of occupiers’ liability, and to waivers of liability in particular. Second,  it includes a detailed discussion of some of the principles of statutory interpretation. In this brief article, I discuss the Court of Appeal’s ...

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RIP Reasonableness

 The Supreme Court recently issued its decision in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3, which may, or may not, be another sign that the Court’s love affair with deference to administrative decision-makers is coming to an end ― in practice if not yet in theory. I ...

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ONCA questions Doré-Loyola framework on eve of TWU’s SCC hearing

Is it “antithetical” to the “Charter value” of “inclusivity” to allow a child to be excused from a public school classroom while sexual orientation or gender is being discussed? In this article I review a case that raises this very question. Many lawyers today are concerned that “Charter values” are being used as a sword for state-enforced moral conformity, when ...

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Doré’s Demise?

In my last post on Double Aspect, I wrote about the religious freedom issues addressed in the Supreme Court’s recent decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which concerned the constitutionality of a ministerial decision to allow development on land considered sacred by an Aboriginal nation. I want to return to Ktunaxa, ...

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A Wise Decision in Retrospect

The Ontario Court of Appeal handed down two seminal decisions last month. In the companion cases, Cobb v. Long Estate and El-Khodr v. Lackie,  the Court of Appeal (hopefully) settled the doctrine in a number of areas relevant to motor vehicle accident (“MVA”) litigation. Cobb and El-Khodr were appeals arising from the assessment damages, prejudgment interest, and costs in the context ...

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The Courts Have No Jurisdiction to Review “Church Discipline”

Can a matter of church discipline be appealed from a church to a court? The question has made its way up to the Supreme Court of Canada in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses. It may surprise you that it was answered in the affirmative by the chambers judge, Justice Wilson, and by a majority ...

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In Defence of the Notwithstanding Clause and Saskatchewan’s Decision to Use It

Summer is fast approaching and, in keeping with that season’s custom (though not yet a convention), I thought it best to engage Leonid Sirota in constitutional debate. Last year, we went a few rounds on section 7 of the Charter. This year, the hot topic is s.33 of the Charter, otherwise known as the “notwithstanding clause,” which states that Parliament or ...

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