Three appeals to the Supreme Court of Canada in the fall 2021 session | Bennett Jones LLP


The fall session of the Supreme Court of Canada begins now. While the tribunal will primarily hear criminal law cases, in November it will consider three cases that may be of interest to business or organizations facing civil litigation:

  • The Court will consider when an order in advance of costs can be made in Anderson and Beaver Lake Cree Nation Beneficiaries of Treaty 6 c Alberta (Attorney General), 2020 ABCA 238. The Plaintiff First Nation alleges that the federal and provincial governments violated the band’s treaty rights by improperly authorizing its lands to be used for industrial and resource development. The motions judge allowed 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 advance costs test because it had funds available, despite the funds being available. been incurred for other expenses. In particular, governments have already provided $ 7 million to $ 8 million in annual funding to the First Nation, and there was no evidence that the amount was insufficient to continue the litigation. The First Nation should argue that the Supreme Court should take into account the unique social, political and economic context of impoverished First Nations, as well as reasonable financial choices, in its assessment of upfront fees.
  • Law Society of Saskatchewan v Abrametz, 2020 SKCA 81 deals with the rejection of administrative proceedings for undue delay. In that case, the Law Society of Saskatchewan convicted the respondent lawyer of various forms of misconduct. In doing so, the Law Society denied the Respondent’s request to stay the proceedings for undue delay. The Saskatchewan Court of Appeal allowed the appeal on the timing issue, noting “a series of palpable errors”. In particular, the court ruled that the Law Society did not sufficiently explain various periods of delay of more than 32 months, causing significant prejudice to the respondent. The Court of Appeal noted that the prejudice in this case resulted from exercising in a “cloud of suspicion” and under intrusive conditions for much longer than necessary. On appeal, the Court should determine 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 should be reconsidered in light of more recent Supreme Court decisions on delays, such as R against Jordan, 2016 SCC 27 and Hryniak vs. Mauldin, 2014 SCC 7.
  • Attorney General of British Columbia v. Council of Canadians with Disabilities, 2020 BCCA 241 deals with standing to act in the public interest. The Council of Canadians with Disabilities and two individual applicants have filed a complaint alleging that the provisions of the British Columbia law Mental Health Act and the related regulations are unconstitutional. The two individual claimants withdrew their claims and the Board filed an amended statement to continue the litigation. The trial judge allowed the defendant’s summary judgment request, finding that the Council had no standing to act in the public interest to hear the request on its own. The Court of Appeal allowed the appeal and set aside the summary judgment, ruling that the motion judge erred in concluding that there was no serious justiciable issue because “a challenge to constitutionality of a law is always justiciable ”and that the contested law affects all members of a defined and identifiable group. On appeal, the Supreme Court must explain how to weigh the relevant factors in the absence of any particular personal factual background.


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