SCC appeal asks whether cabinet records exemption protects premier's mandate letters to ministers
This week, Canada’s Supreme Court tackled matters raising issues about the transitional exception relating to the Jordan ceiling, the cabinet records exemption in connection with mandate letters to cabinet ministers, and the definition of employee under Quebec’s Labour Code.
Supreme Court of Canada
Last Monday, the country’s highest court rendered judgment in Dia ‘Eddin Hanan v. His Majesty the King, 40097. In December 2015, the appellant received charges for crimes relating to the shooting of two people. The jury trial, scheduled to start in November 2018, was adjourned to October 2019.
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The appellant applied to stay the proceedings based on an alleged breach of his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.
The trial judge dismissed the appellant’s application. The transitional exceptional circumstance applied to justify the net delay, which was presumptively unreasonable for exceeding the 30-month ceiling in R. v. Jordan, 2016 SCC 27, the judge said.
The appellant was convicted of manslaughter of the first victim and of discharging a firearm with intent to wound the second victim. He was also convicted of possessing a restricted firearm without a license. He received acquittals for second degree murder and attempted murder.
The appellant filed a conviction appeal, which the Ontario Court of Appeal dismissed. The appellate court agreed with the trial judge that the transitional exception justified the delay. The appellant took the case to Canada’s Supreme Court.
The Supreme Court stayed the proceedings and unanimously allowed the appeal because it found a violation of the appellant’s s. 11(b) right. Since it allowed the appeal on this ground, it did not tackle the second ground, which alleged that the trial judge misdirected the jury regarding the presumption of innocence and the burden of proof.
On Tuesday, Canada’s highest court heard the appeal in Attorney General for Ontario v. Information and Privacy Commissioner of Ontario, et al., 40078. The dispute arose when a journalist for the Canadian Broadcasting Corporation requested the disclosure of the Ontario premier’s letters to the cabinet ministers about the policy priorities for each minister’s mandate.
Ontario’s cabinet office opposed the disclosure based on s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act, 1990. The legislation’s introductory words required government heads to refuse disclosure if it would reveal the substance of deliberations of the executive council or its committees.
Ontario’s information and privacy commissioner ordered the disclosure of the mandate letters to the CBC. The cabinet office had to give sufficient evidence proving a link between the letters’ content and the actual substance of cabinet deliberations. Here, the letters’ content and context and the cabinet office’s evidence and representations did not meet the test for applying s. 12(1), the commissioner said.
The appellant filed a judicial review application, which the Ontario Superior Court of Justice dismissed. The appellant appealed. The majority of the Ontario Court of Appeal dismissed the appeal.
The Supreme Court had to address the issue of whether the cabinet records exemption protected the premier’s confidential communications to the ministers about policy initiatives and development.
The Supreme Court scheduled a Thursday hearing for the case of Société des casinos du Québec inc., et al. v. Association des cadres de la Société des casinos du Québec, et al., 40123. The matter arose from a November 2009 certification petition filed by the Association des cadres de la Société des casinos du Québec under certain provisions of Quebec’s Labour Code.
The association challenged the constitutionality of excluding managers from the definition of “employee” in s. 1(l)(1) of the Labour Code. This subsection allegedly violated the members’ freedom of association under s. 2(d) and s. 3, respectively, of Canada’s and Quebec’s charters of rights and freedoms.
The Administrative Labour Tribunal agreed that there was a s. 1(l)(1) infringement here. The employer, Société des casinos du Québec inc., filed a judicial review application, which Quebec’s Superior Court allowed. The association successfully appealed to the Quebec Court of Appeal.
The issue before the Supreme Court was whether s. 1(l)(1) breached the members’ right to freedom of association under Canada’s and Quebec’s charters and whether such breach, if any, was a reasonable and justifiable limit within the meaning of s. 1 of Canada’s charter and s. 9.1 of Quebec’s charter.
Federal Court of Appeal
On Monday, the appellate court heard the appeal in Stephanie Difederico et al v. Amazon.com, Inc. et al., A-189-22. The appeal arose when the Federal Court stayed the portion of the appellant’s claim for damages relating to certain Amazon.ca purchases in favour of arbitration.
The Federal Court judge failed to give the United Nations Foreign Arbitral Awards Convention Act, 1985 an interpretation harmonious with the Commercial Arbitration Act, 1985, the appellant contended.
On Wednesday, the appellate court dealt with the case of Glencore Canada Corporation v. His Majesty the King, A-301-21. Here, a mining company challenged a December 2013 reassessment of the national revenue minister. The Tax Court of Canada rejected the challenge.
The taxpayer argued that the tax judge failed to apply the proper test for deciding whether an extraordinary receipt amounted to business income and ignored relevant evidence due to this supposed error.
The appellate court scheduled Thursday hearings for similar appeals in the cases of Joanne Lauria v. His Majesty the King, A-310-21 and Jeremy Freedman v. His Majesty the King, A-311-21. Here, both appellants unsuccessfully challenged reassessments of their 2006 taxation year.
They alleged that the Tax Court judge wrongly interpreted what constituted misrepresentation, neglect, and carelessness for the purpose of s. 152(4)(a) of the Income Tax Act, 1985. According to them, the judge erroneously concluded that they ignored the effect of a proposed initial public offering on the fair market value of certain shares of Gluskin Sheff + Associates Inc.
The appeal in Brandon Osadchuk v. His Majesty the King, A-270-21 was also set for Thursday. Here, the appellant sought the return of back taxes collected under an allegedly false, unlawful method. The appellant also asked for interest.