⚖️ Assessment in progress

To: Hearsay Readers

TODAY’S DOCKET

  • Impact Assessment Act still causing conflict

  • Mary Moreau to be appointed as next SCC justice

  • Class actions aimed at antisemitism and genetic data breach

  • Japan says forced sterilization unconstitutional

DIVISION OF POWERS

Ontario takes federal government back to court over major project approval process

Justin Trudeau, masked, looks over Doug Ford's shoulder as Ford speaks at podium

Ontario is challenging the Impact Assessment Act. Yes, the same Impact Assessment Act the Supreme Court of Canada already said is unconstitutional. The province is asking the Federal Court to rule that the Impact Assessment Act doesn’t apply to two specific provincial projects: Highway 413 and Ontario Place.

Why the continuing saga? The Supreme Court’s recent decision was a reference decision. That means the Court gave an advisory opinion but didn’t actually strike down the Impact Assessment Act. The law is still in force and the Court’s decision technically isn’t binding on the government. 

Technically. In practice, reference decisions are firm. Governments listen when the Supreme Court says a law is unconstitutional. The problem here is that the provincial and federal governments don’t agree on what “listening” looks like — or how soon that listening needs to take place.

Ontario wants the federal government to repeal the Impact Assessment Act immediately, and stay out of regulating provincial projects forever. The federal government says it will change the legislation as soon as possible but will continue using the existing Act in the meantime (including to regulate Ontario’s Highway 413 project). Environment and Climate Change Minister Steven Guilbeault is making brief remarks this afternoon to explain how the government will apply its unconstitutional statute in the interim period while awaiting amendments — expect something like “don’t worry, we won’t use any of the bad parts of the Act the Supreme Court didn’t like.”

What now? Ontario’s newest court proceeding puts more pressure on the federal government to replace the Impact Assessment Act – like, ASAP. Using an unconstitutional statute creates a minefield of potential litigation. But as much as Ontario says it's taking legal action to get “shovels in the ground”, there’s no world where the federal government simply walks away from Ontario’s major projects. The Supreme Court said the federal government can regulate those projects, as long as the government is “consistently focused on federal matters” when making approval decisions.

So, don’t start holding your breath in anticipation of a shiny new Ontario highway.

HEARSAY ROUNDUP

Canadiana

👩‍⚖️ Sources say Mary Moreau, Chief Justice of the Alberta Court of King’s Bench, will be the next Supreme Court of Canada justice. That will put five women on the Court and only four men — a female majority for the first time in the Court’s existence.

🧬 A man in BC filed a proposed class action against genetic testing company 23andMe. Earlier this month, a large number of 23andMe accounts were compromised in a data breach. The world (including 23andMe) learned about the breach after hackers offered to sell account data in an online forum.

🎓 York University and its students’ union are also facing a proposed class action. The lawsuit alleges the University failed to address recurring antisemitic incidents over a span of two decades.

💾 On Tuesday, Quebec implemented Bill 34, which modernizes its notarial profession. The new law lets notaries provide online services and creates a central digital repository for notarized records. It also contemplates an expedited enforcement mechanism, which will let contracting parties enforce notarized agreements without going through the traditional court process. The enforcement mechanism isn’t available yet — the government needs to flesh it out through regulations.

🌾 In the same law that forces schools to get parental consent before using preferred names and pronouns, Saskatchewan also mandated that schools fly the provincial flag. No satire here — the province really did mandate flag flying in the same piece of legislation that overrides fundamental freedoms under the Charter.

Beyond the border

🏳️‍🌈 The Japan Supreme Court said the country’s forced sterilization law is unconstitutional. Under the law, transgender people were not allowed to officially adopt their preferred gender unless they first went through a medical procedure to remove their sexual organs.

 💬 Oof … Sam Bankman-Fried’s crypto fraud trial has been filled with millennial speak. We’ll see if the fresh lingo continues today — SBF is expected to hit the box and testify in his own defence.