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Case Commentary

The Right to Strike Should Not Be a “Fundamental Freedom”

Last week, the Supreme Court of Canada released what is arguably its most troubling decision of the 21st century. In Saskatchewan Federation of Labour v. Saskatchewan, a 5-2 majority of the Court held that there is a constitutional right to strike, even for certain services that the government deems essential. In putting forth this ruling, our highest court has removed ...

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The Right Result for the Wrong Reason: The Court of Appeal’s Decision in Tanudjaja

Last month, the Ontario Court of Appeal’s decision in Tanudjaja v. Canada (Attorney General) upheld the Superior Court’s dismissal of a novel claim, alleging that the Canadian Charter of Rights and Freedoms confers a positive right to housing. The majority of the Court of Appeal was correct to dismiss the claim. However, the basis of the majority’s decision – that ...

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Federal Court Rules Obama’s Executive Action on Immigration is Unconstitutional

A District Court judge in Pennsylvania held that President Obama’s recent Executive Action on Immigration exceeds his executive authority and usurps the authority of Congress. The court cited President Obama’s previous speeches in which he stated that such Executive Action would violate the  separation of powers and the rule of law. On March 28, 2011, for example, Obama declared that “America is ...

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‘Sprite Please’ vs. ‘7Up Se Il Vous Plaît’ – A Distinction Without a (Monetary) Difference

In a widely circulated decision, a 5-2 majority of the Supreme Court of Canada ruled on October 28, 2014 that an Ottawa couple was not entitled to financial compensation for Air Canada failing to provided services in French. Affidavit evidence that was before the court noted that Lynda Thibodeau asked in French for a 7Up, but the unilingual English-speaking flight ...

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A Questionable Ruling on Aboriginal Rights

As has been widely reported, an Ontario court has ruled that native parents have a right to deny their children life-saving medical treatment. The case of Hamilton Health Sciences Corporation v. D.H. concerned an 11-year-old child, J.J., who was diagnosed with leukemia in August 2014. Her treatment team determined that she had a 90%-95% chance of being cured with chemotherapy, ...

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Looking for Rights in the All the Wrong Places: A Troubling Decision from the Supreme Court

Earlier this month this Supreme Court of Canada held that there is a blanket constitutional right to access the civil courts. The decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) did not make huge headlines when it was released on October 2, but it probably should have. The Supreme Court has done something truly unprecedented in ...

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Court Confirms Two Years Means Two Years

Mr. Justice Bielby of the Ontario Superior Court of Justice in Guelph has confirmed that the Limitations Act, 2002 means what it says. In Slack v. Bednar, the plaintiff suffered a spinal fracture in a ski accident and required surgery. The accident occurred on March 18, 2006 surgery was performed nine days later on March 27. During the course of ...

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Do Hard Cases Make “Inherently Bad Laws?” Carter v. Canada and the Right to Physician-Assisted Death

The Supreme Court of Canada has granted leave to appeal in a British Columbia decision involving the right to physician-assisted suicide and euthanasia. In Carter v Canada (Attorney General), a terminally ill British Columbia resident sought to declare the provisions of the Criminal Code which prohibit physician-assisted dying. The concepts of “physician-assisted suicide” and “euthanasia” are not identical. Physician-assisted suicide ...

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Common Sense for Contracts but not for Statutes

The Supreme Court of Canada has reaffirmed an integral principle of contract law: the interpretation of contracts should be based on the text of the agreement, not the subjective intentions of the parties. Sattva Capital Corp. v. Creston Moly Corp.1 involved the interpretation of a finder’s fee agreement in a mining property acquisition, and specifically what date ought to determine ...

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Supreme Court Alters the Balance of Power Between Labour and Business

On June 27, 2014, the Supreme Court released a decision that will affect every employment relationship across Canada.  In United Food and Commercial Workers, Local 503 v. Wal Mart Canada Corp., a 5-2 majority of the Court held that an employer – in this case Wal-Mart – is prohibited from permanently shutting down its business during the collective bargaining process, unless it ...

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