⚖️ Failed assessment

To: Hearsay Readers

In today’s update:

  • Supreme Court scraps Impact Assessment Act

  • Hearings this week include military courts and teacher privacy

  • On court or in court? Toronto Raptors and New York Knicks duke it out over scouting secrets

— Dylan Gibbs

SCC

Trudeau sent back to the drawing board with Impact Assessment Act

In case you missed it, the Supreme Court of Canada ruled against the federal government on Friday. The Court said the Impact Assessment Act is almost entirely unconstitutional. That means the government needs to take another stab at regulating oil and gas development and other major projects.

Cheers reverberated throughout the prairies. But no one was louder than Alberta’s Premier Danielle Smith. Smith told the feds: learn your lesson and stop trying to “emasculate” the provinces.

Impact Assessment? The Impact Assessment Act lets the federal government reject or impose conditions on major projects — think projects like mines, nuclear facilities, oil and gas development, renewable energy, and transportation. The government picked those types of projects because of their potential to harm the environment. But many projects affected by the Act aren’t federal works — they don’t cross borders, and they don’t involve industries exclusively assigned to the federal government (like banking or nuclear power).

And Alberta took that personally.

What’s the problem with the IAA? Both levels of government can create laws to protect the environment. Both levels of government can weigh-in on project approvals. But they need to stay in their lane and stick to the areas of jurisdiction assigned by the Constitution.

The Impact Assessment Act lets the federal government shut down projects for reasons that are unrelated to federal jurisdiction. For example, the feds could halt a project solely based on public input, or because of issues related to “the intersection of sex and gender with other identity factors.” And that — the Supreme Court said — is a problem.

Yes, the federal government can review projects to identify negative federal effects (things that actually impact an area of federal jurisdiction, like the fisheries). But the federal government can’t block projects by pointing to effects that instead fall under provincial jurisdiction.

The Court said the only acceptable part of the Act is the part that deals with projects on federal land or outside of Canada (which was never really in dispute). So, it’s back to the drawing board.

Decision report card:

😢◻️◻️◻️◻️ Factual interest

◻️◻️◻️◻️🔥 Legal interest

😭◻️◻️◻️◻️ Brevity

On the docket this week

The Supreme Court is also continuing with fall hearings this week:

  • Sir, yes sir: Yesterday, the Court heard a group of appeals about the military court system. Members of the military argued they can’t get a fair trial in the Court Martial because military judges are subject to military discipline and therefore aren’t impartial.

  • Soil wars: Today, the Court is hearing a sale of goods case. Here’s a rule you’d think we wouldn’t need: when someone sells goods based on their description, Ontario’s Sale of Goods Act says the delivered goods need to actually match the description. The case at the Supreme Court involves a soil sale. The soil didn’t match the seller’s description, but the seller says they aren’t responsible because the buyer could have tested the soil. The contract says it’s not the seller’s fault if the buyer chooses not to test the soil — is that good enough to trump the Sale of Goods Act?

  • Caught in 4k: Tomorrow, the Court will hear a case about whether the Charter applies to school boards. Two teachers kept a running log of issues they had with a colleague (not quite a Burn Book, but their colleagues did call it toxic). The school principal found the log on an open laptop belonging to one of the teachers. He took screenshots, which were used to discipline the two teachers. Did the principal violate the teachers’ Charter rights?

  • Spilling the beans: Thursday, the Court will consider lifting a publication ban imposed in a wrongful conviction case. Frank Ostrowski spent 23 years in prison for murder before the Manitoba Court of Appeal overturned his conviction. The Court of Appeal heard evidence about Crown misconduct and banned publication of that evidence. CBC wants the ban lifted.

HEARSAY ROUNDUP 

👮‍♀️ Female police officers in B.C. launched a class action lawsuit alleging systemic discrimination, harassment, and bullying. The suit names all 13 municipal police forces in the province, plus the Police Complaints Commissioner, the Attorney General, and the Minister of Public Safety and Solicitor General.

🚔 British Columbia wants the City of Surrey to stop using the RCMP and transition to a local police force. Surrey is putting up a fight, but B.C. is now introducing legislation that would force the change. Surrey is thinking: “Bruh … didn’t you see all the local police forces are getting sued?”

Beyond the border

🏀 The Toronto Raptors say a lawsuit filed by the New York Knicks should be settled by arbitration, not the courts. The Knicks are suing the Raptors in New York, alleging that the Raptors stole a whole whack of secret scouting materials with the help of a mole inside the Knicks.

🤐 Donald Trump was hit with another gag order yesterday — his most restrictive yet. Trump called the judge assigned to his 2020 election interference case “deranged” and “biased”. He’s also attacked the wife of the special counsel investigating the charges. The gag order prevents Trump from making public comments about the special counsel and his team, court staff, and most potential witnesses in the case.

💊 After settling opioid-related lawsuits for $30MM, pharmacy chain Rite Aid has now filed for bankruptcy protection. The company is trying to work out a plan with creditors and “resolve litigation claims in an equitable manner”.