⚖️ Charter notwithstanding

To: Hearsay Readers

CHARTER

Saskatchewan kicks off plan to oust Charter rights

Premier Scott Moe brought the fight between “parental rights” and Constitutionally enshrined Charter rights into Saskatchewan’s legislature yesterday.

Backstory. In August, Saskatchewan’s Minister of Education introduced a new policy for the upcoming (and now current) school year: “Use of Preferred First Name and Pronouns by Students”. The policy says children under 16 need parental consent if they want their school to use “their preferred name, gender identity, and/or gender expression.” UR Pride Centre for Sexuality and Gender Diversity challenged the policy through a court application, arguing that it violates the Charter guarantees of personal security (section 7) and equality (section 15). UR Pride relied on evidence showing that the policy will harm children by preventing them from using their preferred name, pronouns, and gender identity at school.

Justice Megaw of the King’s Bench for Saskatchewan granted an interim injunction on September 28. He concluded the risk of harm to children outweighs the government’s policy objectives pending a full hearing scheduled in November.

What now? The injunction halts the policy in its tracks — but Premier Moe has other plans. Moe immediately announced that his government will shield the policy from judicial review using our Constitution’s trump card — the notwithstanding clause in section 33 of the Charter.

Moe called for an early sitting of the Saskatchewan Legislature yesterday to get the ball rolling and kick off debate. The legislation will almost certainly pass given the Conservative government’s majority, but it won’t happen immediately. The government needs to give two days’ notice before tabling the legislation, so we won’t see the proposed text until Thursday. It will then take at least a week to get the bill to its third and final reading.

Other nuggets:

  • Rare use of the notwithstanding clause. If enacted, it would mark only the fifth time a province other than Quebec has taken Charter-trumping legislation over the finish line. Of the four prior enactments, two were held invalid by the courts, one was deemed unnecessary, and one was repealed by the government (Ontario) after only 11 days.

  • Twitter fingers. Moe tweets that the question is simple: “Should parents be included in important decisions regarding your kids?” Hopefully his drafters are a bit more careful — do we really want to include parents in decisions about children other than their own?

LEGAL PRACTICE

Ontario judge roasts lawyers over their costs submissions

A tenant has an option to purchase their landlord’s property. The tenant wants to exercise the option. The landlord says the tenant didn’t do it properly. How long should it take the lawyers to prepare for court? How much should each party expect to pay in legal fees?

Not $75,000 (claimed by the landlord) — and certainly not $101,732.88 (claimed by the tenant) — says Justice Chang of the Ontario Superior Court of Justice. Justice Chang called those amounts “extremely high”, remarking that “excessive” would be a gross understatement.

And it wasn’t just the quantum of costs that irked Justice Chang. Neither party could properly address costs during the court hearing. Justice Chang found it “troubling” that the parties failed to follow the Court’s procedural direction on costs and wasted court time. The tenant uploaded a bill of costs during submissions, which was a marginal improvement over the landlord’s failure to prepare one at all.

Justice Chang ultimately awarded the tenant $35,000 in costs (34% of what they claimed).

Quotes that pack a punch

On access to justice:

The amounts claimed by these parties are yet further examples of the unacceptable excesses that continue to spiral the cost of litigation out of control and risk putting access to justice beyond the reach of all but the wealthiest few.

On division of labour:

The Tenant engaged three lawyers and a law clerk whose hourly rates range from $385.00 to $925.00[1] with the lawyer charging $525.00/hour (called to the Bar in 2020) and the lawyer charging $925.00/hour (called to the Bar in 2006) being responsible for nearly all of the applicable time.

I am truly astounded by the sheer amount of time that has been claimed, as well as the failure to reasonably distribute that time among the various counsel and clerical staff.

Paras 49 and 51

On detailed time entry descriptions:

Chief among the more concerning elements of the claimed time is the $925.00/hour lawyer’s 74.3 hours for “Application Preparation”, “Factum” and “Application Hearing Preparation”, as well as his 4.8 hours for “Scheduling”. Also of concern is the fact that the $385.00/hour law clerk spent 3.7 hours to prepare a three-page bill of costs.

Decision report card:

◻️😐◻️◻️◻️ Factual interest

◻️😐◻️◻️◻️ Legal interest

◻️◻️◻️◻️🔥 Added spice

HEARSAY ROUNDUP

🤝 Fasken opened a new office located on the Tsuut’ina Nation, just outside of Calgary. According to the firm, it’s North America’s first corporate law office on an Indigenous reserve. Indigenous lawyer Brenden Hunter will serve as managing partner for the new office.

👮 The RCMP have officially launched a criminal investigation into Ontario’s green belt land swap. Doug Ford’s government removed lands from the green belt to permit commercial development, before reversing course last month after a scathing report by Ontario’s Auditor General. Two of Ford’s Ministers have since resigned, which might be the least of his worries — depending how the investigation unfolds.

JUDICIAL APPOINTMENTS

Prime Minister Justin Trudeau and Attorney General Arif Virani appear to have spent the long weekend finalizing a sizeable list of judicial appointments. Between them, they announced a total of eleven federal appointments yesterday, including new members of the judiciary and position changes.

  • Quebec: Justice Éric Hardy was elevated from the Superior Court to the Court of Appeal. Maxime Roy has been appointed to fill Justice Hardy’s spot on the Superior Court (Québec district).

  • Prince Edward Island: Sophie MacDonald, K.C. was appointed to the Supreme Court in Charlottetown.

  • New Brunswick: Two new judges were appointed to the Court of King’s Bench. Justice Stephen J. Doucet will sit in Miramichi and Justice Maya Hamou will sit in Moncton.

  • Ontario: Two Superior Court judges have been appointed as Regional Senior Judges: Justice Renee Pomerance (Southwest Region) and Justice Danial Newton (Northwest Region).

  • Newfoundland and Labrador: David Conway was appointed to the Supreme Court in Grand Bank. Stephanie Hickman, K.C. was appointed to the Supreme Court, Family Division in St. John’s.

  • Saskatchewan: Justice Robert Leurer of the Saskatchewan Court of Appeal has been appointed Chief Justice of Saskatchewan.

  • Alberta: Justice D. Blair Nixon of the Court of King’s Bench of Alberta has been appointed as the new Associate Chief Justice in Calgary.

We hear there’s still an open spot on the Supreme Court of Canada…

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