SCC hearings tackle Charter rights to vote and to trial within reasonable time

This week, hearings scheduled before the Supreme Court of Canada and the Federal Court involved issues relating to third party expense limits, trial delays in the wake of the COVID-19 pandemic, “multi-Crown” class proceedings, flight bans, and forum selection clauses.

Supreme Court of Canada

The court set Attorney General of Ontario v. Working Families Coalition (Canada) Inc., et al., 40725 on May 21–22, Tuesday to Wednesday. Amendments to Ontario’s Election Finances Act, 1990 concerned spending limits on third party advertising. An application judge invalidated the amendments for failing to minimally impair third party advertisers’ free expression rights.

Ontario’s government passed the Protecting Elections and Defending Democracy Act, 2021, which included the invalidated amendments and invoked the notwithstanding clause in s. 33 of the Canadian Charter of Rights and Freedoms. A constitutional challenge alleged that the new legislation violated the right to vote in an informed manner under s. 3 of the Charter and improperly used s. 33.

In December 2021, a judge of the Ontario Superior Court of Justice dismissed the application under s. 52 of the Constitution Act, 1982. The judge ruled that the re-enacted spending restrictions did not breach the right to vote and that the use of the notwithstanding clause was not improper.

In March 2023, the Ontario Court of Appeal’s majority allowed the appeals. The disputed spending limits should have no force and effect since they unjustifiably infringed s. 3, the appeal court declared. But the court suspended this declaration’s effect for 12 months to allow the province to draft new legislation.

The court scheduled Flemmings, et al. v. His Majesty the King, et al., 41002 on May 22, Wednesday. In a case before the Ontario Court of Justice, the applicant faced charges relating to human trafficking and fentanyl possession. In March 2020, the pandemic led to court closures. The Crown preferred a direct indictment in May 2021.

The applicant applied to stay the proceedings due to delay. In May 2022, the Ontario Superior Court granted his application and stayed all charges based on breaches of his right to trial within a reasonable time. In June 2023, the Ontario Court of Appeal allowed the appeal and set aside the stay.

The court set Sanis Health Inc., et al. v. His Majesty the King in Right of the Province of British Columbia, 40864 on May 23–24, Thursday to Friday. This involved the Opioid Damages and Health Care Costs Recovery Act, 2018, which allowed B.C. to recover health care costs caused or contributed to by the opioid-related wrongs of manufacturers and distributors of such drugs.

Section 11(1)(b) of the legislation permitted the province to bring a “multi-Crown” proceeding for the purposes of s. 4 of B.C.’s Class Proceedings Act, 1996. Before the section came into force, the plaintiffs initiated a proposed “multi-Crown” proceeding. The defendants applied to declare s. 11 constitutionally invalid for being ultra vires B.C’s Legislative Assembly.

In December 2022, a summary trial judge of the B.C. Supreme Court dismissed the applications and found the s. 11 within the legislature’s authority. In July 2023, the B.C. Court of Appeal in Vancouver dismissed the appeal and unanimously held that the judge properly upheld s. 11’s constitutional validity.

Federal Court

The court scheduled Chrono Aviation Inc et al. c. PGC et al., T-656-24 on May 21, Tuesday. The transport minister decided to prohibit the take-offs and landings of the Boeing 737-200 aircraft at night at the Saint-Hubert Airport. The applicant sought judicial review and a stay of this decision.

Last Apr. 26, in Chrono Aviation Inc. v. Canada (Attorney General), 2024 FC 635, the Federal Court dismissed the stay motion. The applicant failed to show that the immediate coming into force of the night-flight ban would irreparably harm it, the court said. The public interest in reducing the noise caused by the airport’s operations favoured dismissing the motion, the court added.

The court set QSL Canada Inc. v. Cleveland-Cliffs Inc., T-247-23 on May 23, Thursday. This was an admiralty matter involving cargo damage that arose relating to stevedoring services that the plaintiff provided at the Port of Quebec to two defendants.

One of the defendants moved to enforce an allegedly applicable and binding forum selection clause, which called for the litigation of any of the parties’ disputes relating to their stevedoring contract at the Pennsylvanian courts.

Last Oct. 26, in QSL Canada Inc. v. Cliffs Mining Company, 2023 FC 1429, the Federal Court dismissed the motion. It could not find that the clause bound the parties, that Pennsylvanian courts were a more appropriate forum to litigate the underlying dispute, and that the nature of the plaintiff’s remedy in the form of declaratory relief was inappropriate.

The court scheduled Mejias Turmero v. Air Canada et al., T-1251-19 on May 23, Thursday. The plaintiffs, who were family members, filed an action for damages. They alleged that they encountered complications during a trip to Panama, that they delayed their return to Canada by a month and two days, and that they incurred about US$4,520 in out-of-pocket expenses.

The plaintiffs moved to set aside the case management judge’s order under r. 51 of the Federal Courts Rules, SOR/98-106. Last June 12, in Mejias Turmero v. Air Canada, 2023 FC 831, the Federal Court dismissed the plaintiff’s motion under r. 51.