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Case Commentary

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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The Notwithstanding Clause is no Longer the Nuclear Option

Section 33 of the Canadian Charter of Rights and Freedoms – better known as the “notwithstanding clause” – is one of the most controversial parts of the Canadian constitution. Despite being an integral part of the formation of the Charter, commentators such as Andrew Coyne have suggested that the provision is “dead letter” or “taboo”. But on Monday, Saskatchewan Premier ...

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Vriend v Alberta Revisited: A Road to Constitutional or Judicial Supremacy?

The Supreme Court of Canada  has on numerous occasions insisted upon the primacy of the written text of the Constitution.[1] In the Reference Re Secession of Quebec, the Supreme Court explained that the recognition of underlying constitutional principles “could not be taken as an invitation to dispense with the written text of the Constitution”. It noted that “[a] written constitution ...

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Not Just A Pillowfight: How the SCC Has Muddied the Standard of Review

Recently, Justice David Stratas of the Federal Court of Appeal released an extremely helpful summary of almost every aspect of administrative law in Canada. Administrative law students, practitioners, and academics would be well-served to carefully read the document. But Justice Stratas’ piece is far from merely descriptive—in it, he provides a number of recommendations for a return to sound and ...

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A Constitutional Pregnancy: A New Approach to Section 1 Following BC FIPA?

Can you get a little bit pregnant? Of course not. But recently, in BC FIPA, the Supreme Court of Canada held that it matters whether the government infringes constitutional rights by a little or a lot. The difference will determine the strength of evidence the government will need to adduce to justify a rights infringement under section 1 of the ...

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Parliament’s Post: The City of Hamilton Cannot Regulate Community Mailboxes

Recently, the Ontario Court of Appeal in Canada Post Corporation v Hamilton (City)[1] had an opportunity to revisit the doctrine of federal paramountcy in the context of the most exciting of subjects: community mailboxes. Below, I briefly review the facts of the case, and argue that the case should have been decided on the grounds of validity rather than operability. ...

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“Intolerant and Illiberal”: The B.C. Court of Appeal is Right to Insist on Tolerance for an Intolerant Institution

In a decision issued this week, Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423, the British Columbia Court of Appeal held that the Law Society acted unreasonably when its benchers, following its members, voted “not to approve” the University’s proposed law school, preventing its graduates from practicing in the province and causing it to lose the ...

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A Marriage Made in Britain: Section 121 and the Division of Powers

The New Brunswick Court of Appeal will hear the Crown’s appeal in R. v. Comeau this coming month. The issue for appeal is whether Justice LeBlanc of the New Brunswick Provincial Court got it right in finding that s.121 of the Constitution Act, 1867 prohibits both tariff and non-tariff barriers between the provinces, overturning the Supreme Court of Canada’s precedent ...

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The Correct Approach to Contractual Interpretation

The Supreme Court of Canada’s freshly released Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. provides welcome clarification to contract law generally and insurance law specifically. By holding that appellate courts are to review interpretation of “standard form” contracts on a correctness standard, the court protects the rule of law. The decision should also promote access to civil justice. Background ...

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