Three Appeals At The Supreme Court Of Canada In The 2021 Fall Session

The Supreme Court of Canada Fall term begins now. While the court will be hearing mostly criminal law matters, in November, it will consider three cases that may interest the business community or organizations facing civil litigation:

• The Court will consider when an order of advance costs may be made in Anderson and Beaver Lake Cree Nation beneficiaries of Treaty No. 6 v Alberta (Attorney General),  2020 ABCA 238. The plaintiff First Nation alleges that the federal and provincial governments infringed the band's treaty rights by improperly allowing its lands to be used for industrial and resource development. The motion judge granted the plaintiff's motion for advance costs, ordering each defendant to contribute $300,000. The Alberta Court of Appeal allowed the appeal, holding that the plaintiff did not meet the impecuniosity requirement of the test for advance costs because it had available funds, despite those funds being committed to other expenses. In particular, the governments already provided $7 to $8 million in annual funding to the First Nation, and there was no evidence that the amount was insufficient for prosecuting the litigation. The First Nation is expected to argue that the Supreme Court should consider the unique social, political and economic context of impoverished First Nations, as well as reasonable financial choices, in its assessment of advance costs.

• Law Society of Saskatchewan v Abrametz, 2020 SKCA 81 deals with the dismissal of administrative proceedings for undue delay. In this matter, the Law Society of Saskatchewan convicted the respondent lawyer of various forms of misconduct. In doing so, the Law Society dismissed the respondent's application to stay the proceedings for undue delay. The Saskatchewan Court of Appeal granted the appeal on the delay issue, noting “a series of palpable errors.” In particular, the court held that the Law Society did not adequately explain various periods of delay of over 32 months, causing significant prejudice to the respondent. The Court of Appeal noted that the prejudice here arose from practicing under a “cloud of suspicion” and under intrusive conditions for far longer than necessary. On appeal, the Court is expected to address whether the standing test for dismissal for undue delay in administrative proceedings set out in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 ought to be reconsidered given more recent rulings from the Supreme Court on delay, such as R v Jordan, 2016 SCC 27 and Hryniak v Mauldin, 2014 SCC 7.

• Attorney General of British Columbia v Council of Canadians with Disabilities, 2020 BCCA 241 deals with public interest standing. The Council of Canadians with Disabilities and two individual plaintiffs started a claim alleging that provisions of British Columbia's Mental Health Act and the related regulations are unconstitutional. The two individual plaintiffs withdrew their claims and the Council filed an amended Statement of Claim to proceed with the litigation. The application judge granted the defendant's request for summary judgment, holding that the Council did not have public interest standing to proceed with the claim on its own. The Court of Appeal allowed the appeal and set aside the summary judgment, holding that the application judge erred in determining that there was no serious justiciable issue because “a challenge to the constitutional validity of legislation is always justiciable” and the impugned legislation affects all members of a defined and identifiable group. On appeal, the Supreme Court is expected to explain how to weigh the relevant factors absent any particular, personal factual context.

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