Making a mockery

Last week I asked what you thought of the Ohio Supreme Court’s boneless chicken case. Here are the results:

🟨⬜️⬜️⬜️ Chicken clearly has bones (26%)

🟩🟩🟩⬜️ Boneless means boneless (74%)

The split result really drives home this point from the dissent:

I’m with the majority in camp unreasonable. But I did unfortunately learn that I live in a divided household. My wife likes her boneless wings with a side of caveat emptor.

— Dylan Gibbs

with Alexandra Son

• The Supreme Court’s take on broken promises

• Product liability for consultants

• Residential school denialism?

• A signature-forging lawyer

• Pronoun interveners

• Political donations

SCC

Supreme Court takes a dim view of unfulfilled treaty obligations

Ontario v. Restoule, 2024 SCC 27

Last week’s Supreme Court decision is long. You can chalk a fair bit of the length up to Justice Jamal’s writing style, but the decision also covers a lot of ground. It’s a comprehensive look at treaty-based relationships between the Crown and Indigenous peoples.

What happened? The Anishinaabe of the upper Great Lakes traded their land for a perpetual annuity, paid from the land’s resource revenues. The annuity was capped at $4 per person, unless “Her Majesty [was] graciously pleased to order” a higher amount.

The issue is that Her Majesty never felt gracious. The annuity payments started around $1.70 per person in 1850, increased to $4 per person in 1875, and haven’t budged since. So the Anishinaabe sued Ontario and Canada, asking for a fair share of the Crown’s resource revenues.

By the time the case made it to the SCC, everyone agreed the Crown had to act honourably by at least considering a raise. But the impact of the $4 cap was up for interpretation.

The lower courts avoided the cap by carving the annuity into two parts—a capped payment to individuals and an uncapped payment to the collective Anishinaabe. That netted the Anishinaabe their fair share. But it required a creative reading of the treaties, which don’t actually mention two separate payments:

The SCC wasn’t up for the same interpretive gymnastics. Justice Jamal wrote for the unanimous Court, saying the cap is exactly what it sounds like—a cap. But it is a soft cap. The Crown needs to consider upping the annuity whenever the land makes enough profit to justify a raise.

The Supreme Court’s interpretation meant that the Crown technically won the appeal. But it wasn’t much of a victory. The Court said the Crown should have acted sooner, increasing the annuity to match what it can afford:

Now the Crown needs to make the increase retroactively. The Court even ordered Ontario to pay solicitor-client costs despite the province winning its appeal.

Precedential value

Justice Jamal applied the Court’s settled approach to treaty interpretation to resolve the appeal’s main issue—so there’s no new law there. But the Court also addressed a few other issues with broader reach.

• The standard of review for treaty interpretation is correctness. Since treaties have constitutional status and bind future generations, appellate courts won’t give treaty interpretation the same deference as run-of-the-mill contract interpretation.

• Treaties don’t create fiduciary duties. So the Crown needs to consider increasing the annuity, but it doesn’t need to put the Anishinaabe’s interests above all else.

• And Ontario’s limitations legislation doesn’t apply to treaty claims. That one might strike you as odd—the Court said a treaty claim was barred by a limitation period in Shot Both Sides just a few months ago. But Shot Both Sides dealt with a different statute, which led to a different result.

What now? The Court wouldn’t order the Crown to pay damages. At least, not yet. The Court made it clear that it can award damages. But it gave the parties space to negotiate as a first resort.

Not too much space though.

The Court put a six-month deadline on negotiations to force the Crown into action.

Some of the plaintiffs already settled for a whopping $10 billion. So, while those plaintiffs fight about their legal bill, Canada and Ontario just need to resolve the rest of the claim. And if they can’t strike a deal, the governments need to adjust the annuity unilaterally and wait for the courts to weigh in.

HEARSAY ROUNDUP

Canadiana

💊 Consultants beware. The BC Court of Appeal said McKinsey may be liable for helping opioid companies with their marketing. McKinsey argued that consultants are never responsible for their clients’ dangerous products. But the Court said the issue is murky enough to send to trial.

🏳️‍⚧️ The Saskatchewan Court of Appeal bounced a parental rights group, denying Our Duty Canada intervener status in the province’s contentious gender identity appeal. The issue was that the group didn’t have anything to say about Saskatchewan’s use of the notwithstanding clause—which is the appeal’s focus. The Court let 11 other interveners participate, including Alberta, New Brunswick, and several advocacy groups.

🧑‍⚖️ A trial judge’s reference to “potential” Indigenous remains wasn’t biased. The comment drew outrage from the gallery during a sentencing hearing. And it led to an appeal alleging the trial judge engaged in residential school denialism. Here’s the exchange:

The BC Court of Appeal said the trial judge was simply correcting defence counsel’s inaccurate submissions about unearthed remains.

🧑‍⚖️ The Canadian Judicial Council sanctioned Justice Diana Piccoli for her political donations. Justice Piccoli donated around $900 to the federal Liberals between 2019 and 2021. After the media reported on the issue, she self-reported to the CJC. The panel reviewing her conduct wasn’t prepared to simply dismiss the complaint, but it settled on an expression of concern (the lowest available sanction).

SUITS IN THE NEWS

• The Jewish National Fund is challenging the CRA’s decision to revoke its charitable status.

• Saskatchewan residents say the province’s plan to expand gas-fired electricity generation violates the Charter. 

• BC First Nations are suing over fish farm licenses, alleging that the federal government granted the licenses without proper consultation.

• Meta agreed to pay Texas $1.4 billion for secretly running facial recognition software on Facebook photos.

THINGS NOT TO DO

Don’t forge your client’s signature to speed up a deal. The Law Society of Alberta said a 30-day suspension would be appropriate for a lawyer who noticed a few missing signatures and took matters into his own hands. But the LSA reduced the punishment to a single-day suspension, since the lawyer stopped practicing for three years after the incident.

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