HomeCase Commentary (page 4)

Case Commentary

The Decisions to Reject Trinity Western were not “Prescribed by Law”

This article appears in the current (Fall 2016) edition of the Christian Legal Journal, a publication of Christian Legal Fellowship, an intervener in Trinity Western University’s litigation in all three provinces.   Any state-imposed limit on a constitutional right or freedom must be “prescribed by law”, according to section 1 of the Charter. This requirement stems from the principle of ...

Read More »

Wilson v. AECL: A Missed Opportunity to Protect the Rule of Law in Administrative Law

This summer saw a sharply divided Supreme Court of Canada on many points. The case of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 illustrated this perhaps better than any other, with the Court issuing four separate opinions. Many issues are raised in the case, from whether certain non-unionized federally regulated employees can be dismissed without cause to the number ...

Read More »

R. v. Jordan is Judicial Legislation

On July 8, 2016, in R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada overturned its decision in R. v. Morin, [1992] 1 SCR 771. The Court is supposed to be the gatekeeper of the Constitution. However, in R. v. Jordan, it ignored the separation of powers and legislated “ceilings” in establishing whether an accused’s s. 11(b) “right ...

Read More »

Seven’s Wonders and Sixty Colours: More on the Interpretation of Section 7

In my last article, “Reaffirming the Case for Constraint“, I replied to Leonid Sirota’s article “How to do Constitutional Adjudication,” which was itself a response to my paper, “The Case for a Constrained Approach to Section 7.” Mr. Sirota also wrote a piece entitled “Seven’s Sins” in response to my original paper. I had intended to reply to “Seven’s Sins” ...

Read More »

The Comeau Decision is a Welcome Example of Serious Doctrinal Analysis

Constitutional law and alcohol are forever linked. Many famous distribution of powers cases giving rise to new federalism doctrine were about alcohol. It should not be a surprise that we can now add another case to the list. R. v. Comeau, coming out of the New Brunswick Provincial Court, is a novel judicial meditation on Canadian federalism, specifically regarding the ...

Read More »

Carter Should not be the “Last Word” on Assisted Dying

The Alberta Court of Appeal ruled in May in Canada (AG) v. E.F. that a woman suffering from “severe conversion disorder” — a non-terminal, psychiatric condition that causes physical symptoms — was eligible to receive “aid in dying” under the “criteria” stated in the Supreme Court of Canada’s February 2015 decision on physician-assisted dying, known as Carter I. The Attorney ...

Read More »

Court Slashes Lawyer’s Contingency Fee in Favour of Minor Plaintiff

In Batalla v. St. Michael’s Hospital,  the plaintiffs alleged that the physician and nurses who delivered the minor plaintiff did so negligently and caused the minor plaintiff to suffer severe brain damage. He was born with very limited cognitive functioning, impaired motor skills and visual impairments. The parties settled the matter following a mediation in April 2014 for the all-inclusive sum of $6,625,000. Pursuant to Rule 7 ...

Read More »

Ghomeshi Verdict Vindicates the Rule of Law

This morning, Justice William Horkins of the Ontario Court of Justice acquitted Jian Ghomeshi of four charges of sexual assault and a fifth charge of choking. Social media immediately erupted in a firestorm of #believethevictims and #believeallsurvivors. Many insults were also directed toward the judge, who, by all accounts, behaved impeccably during the trial. Indeed, he made an evidentiary ruling near the ...

Read More »

Substantially Incontestable: Discriminatory Wills and the Future of the Public Policy Exception

Should racist wills be void on public policy grounds? This issue has arisen in a number of cases over the last couple of years, most recently in Spence v. BMO Trust Company  [“Spence“]. In that case, the deceased disinherited his daughter and the daughter alleged that her disinheritance was motivated by racial animus. The Ontario Court of Appeal upheld the ...

Read More »

Galati v. Harper: The Rule of Law is not an “Empty Vessel”

The Federal Court of Appeal’s February 8, 2016 decision in Galati v. Harper is notable for several reasons. First, it notes that fundamental legal rules surrounding costs are not jettisoned in the constitutional context. Second, it recognizes that the constitutional guarantee of the “rule of law”, though seemingly broad in the abstract, has a defined meaning and cannot be used ...

Read More »