This week at the SCC

The Supreme Court of Canada will hear four appeals this week, the last week for which hearings have been scheduled for the spring session.

May 23 – British Columbia – Boutilier v. R.

Charter of Rights and Freedoms: The Crown brought a dangerous offender application; following the hearing and submissions, counsel for Donald Joseph Boutilier served a notice of constitutional question in relation to several amendments to s. 753 of the Criminal Code. The judge found that an aspect of s. 753(1) infringed s. 7 of the Charter and could not be saved under s. 1 of the Charter. Accordingly, s. 753(1) was declared to be inconsistent with the Charter and hence void, but in consideration of the interests at stake, the judge held that this declaration of invalidity would be suspended for one year.

The judge also designated the applicant a dangerous offender and sentenced him to an indeterminate prison term. The Crown successfully appealed the declaration of constitutional invalidity, while the applicant unsuccessfully appealed the dismissal of his application to have s. 753(4.1) declared constitutionally invalid, as well as his designation as a dangerous offender and the indeterminate sentence.

Read the British Columbia appellate court decisions here and here.

Related news stories:
B.C. judge strikes down Canada's dangerous offender law; Vancouver Sun

Former Brantford man may be declared a dangerous offender; Brantford Expositor

May 24 – Quebec – Attorney General of Canada v. Thouin, et al.

Civil procedure: In 2004, the Competition Bureau launched an investigation following allegations of a conspiracy by oil companies and retailers to fix the price of gasoline at the pump in certain areas of Quebec. In the course of the investigation, the Bureau obtained judicial authorizations to intercept and record over 220,000 private conversations, to seize thousands of paper and electronic documents and to take numerous statements.

In the aftermath of the investigation, the respondents, Daniel Thouin and the Automobile Protection Association, instituted a class action against the oil companies, distributors and retailers that had allegedly conspired to agree on a sale price for gasoline at the pump. They filed a motion in the Superior Court seeking permission to summon the Competition Bureau’s chief investigator to be examined on discovery on all facts relevant to the case that related to the Octane investigation.

They also sought permission to ask the investigator to disclose the recordings made and the documents obtained during that investigation.

Read the Quebec appellate court decision here.

Related news stories:
Second trial for Linda Proulx in ongoing gas cartel case; Sherbrooke Record

Update on the APA's Class Actions over price fixing in the retail sale of gasoline; Automobile Protection Association

Related law firm briefs:

The Year Ahead: Ten Top Appeals to Watch in 2017; McCarthy Tetrault
May 25 – Ontario – Attorney General of Canada v. Fontaine et al.

Civil procedure: In the course of the Independent Assessment Process that provided a second level of compensation to some former residential school students, questions arose about what was to become of the highly confidential documents created during the IAP after it came to an end.

The supervising judge ordered that the IAP documents were not to be transferred to Library and Archives Canada, and that the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat was to retain the IAP documents for a 15-year retention period. IAP documents not held by the Chief Adjudicator were to be destroyed, with certain caveats. Claimants could archive their own IAP documents with the National Centre for Truth and Reconciliation, and the Truth and Reconciliation Commission or the National Centre for Truth and Reconciliation could carry out a notice program to inform claimants of that right. The majority of the Court of Appeal ordered that the notice program was to be carried out by the Chief Adjudicator. Otherwise, the appeal and cross appeals were dismissed.

Read the Ontario appellate court decision here.

May 26 – British Columbia – Cowper-Smith v. Morgan

Wills and estates: Elizabeth Cowper-Smith, who died in 2010, was survived by her two sons, Max and Nathan Cowper-Smith, and her daughter, Gloria Morgan.

Her two major assets were her residence in Victoria and her investments. In 2001, after receiving legal advice, Elizabeth executed a title transfer and declaration of trust, effectively providing that her home and investments would became Gloria’s property “absolutely” upon her death, leaving her estate devoid of any significant assets.

In 2002, Elizabeth executed a will, leaving one-third of her estate to each of her children. In 2007, Gloria convinced Max to leave his home and life in England to care for Elizabeth; in turn, Gloria agreed to allow Max to purchase her one-third interest in the house after Elizabeth’s death.

Upon learning that Gloria was a joint owner on title, Max and Nathan expressed concerns about the property transfer but were assured by Gloria that this was done simply to provide her with greater ease in the management of their mother’s affairs and eventually her estate. After Elizabeth’s death, however, Gloria maintained that the residence and investments were hers absolutely. Max and Nathan brought an action against Gloria for declarations that the assets held by Gloria were subject to a trust in favour of the estate. Max also sought a declaration that on the basis of proprietary estoppel he was entitled to purchase Gloria’s interest in the house.

Read the British Columbia appellate court decisions here and here.