Pay up
Is the government liable for unlawful legislation? Plus the crackdown on illegal sports streaming and all the latest legal news.
Dylan Gibbs & Alexandra Son
July 23, 2024
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Good news for travelling dog owners. The US agreed to soften rules that would have kept Canadian pups out of the country in the name of controlling rabies.
But here’s the thing. The relaxed approach is temporary. If we want it to stick, we need to stop doing things like touching rabid bats.
— Dylan Gibbs
with Alexandra Son
TODAY'S DOCKET |
Paying the price for Charter-infringing legislation
Service dog discrimination
Greenwashing guidance
Illegal sports streaming
Legal tech funding
And the thieving fraudster who wrote a fake will
SCC
Government risks damages for enacting Charter-infringing legislation
Canada (AG) v. Power, 2024 SCC 26
We’re right around the corner from the Supreme Court’s August break, which means a one-month pause on new decisions. But don’t worry—the Court is on a mission to ensure we’ve got plenty to read during the downtime. The latest is a landmark decision about government accountability, holding that the state may need to pay Charter damages for enacting unconstitutional legislation.
What happened: The Harper government changed the rules for pardoning criminal offences. Joseph Power could have applied for a pardon just before the change, but the new legislation took away his chance at a clean slate.
Courts eventually struck the legislation down for violating the Charter. But in the meantime, Power’s criminal record made it tough for him to find work.
Power sued Canada for Charter damages.
Canada applied to dismiss the lawsuit, arguing that the legislative process can’t attract liability.
The lower courts agreed with Power. They felt bound to follow Mackin—a 2002 decision where the Supreme Court said legislators are mostly (but not completely) immune from liability. Mackin says legislative conduct that is “clearly wrong, in bad faith, or an abuse of power” may leave the government reaching for its wallet.
At the SCC: Canada tried to send Mackin packin’, arguing that anything less than absolute immunity would frustrate the state’s ability to govern.
And it wasn’t just the feds. Most provinces intervened to offer backup, along with the Speaker of the House of Commons and the Speaker of the Senate.
The appeal split the Supreme Court into three camps. The five-member majority, led by Chief Justice Wagner and Justice Karakatsanis, stuck with roughly the same standard described in Mackin.
There are no compelling reasons to overrule Mackin. The state’s immunity has been and remains qualified.
According to the majority: People affected by unconstitutional legislation have three reasons to sue for Charter damages: clearly unconstitutional legislation, bad faith, and abuse of process.
Legislation is clearly unconstitutional if the Charter violation was obvious when the state enacted it. The state can’t be reckless about Charter rights.
Other cases would be rare, but claimants can also argue the state acted in bad faith or abused its process. The Court didn’t really elaborate on those concepts, leaving them open for future cases.
A finding of clear unconstitutionality will usually imply that the state either knew that the law was clearly unconstitutional, or was reckless or wilfully blind as to its unconstitutionality.
[O]ther rare situations may require judges to ask whether there is evidence that the state acted in bad faith or abused its power in enacting the invalid law.
We would not attempt to define bad faith or abuse of power in the law‑making process with exactitude... This standard may, for example, be met in cases where the state acted for an improper purpose, or was dishonest.
Check your (parliamentary) privilege
The judges split over parliamentary privilege, the constitutional principle that shields the legislative process from judicial review.
The majority said the privilege is an evidentiary barrier. So, people suing for Charter damages can’t subpoena individual legislators to prove the state acted improperly. But they can at least bring their claim. And they can rely on things like Hansard and government records to show that the state was up to no good.
Justice Jamal (joined by Justice Kasirer) said parliamentary privilege blocks courts from considering whether legislators acted abusively or in bad faith. It’s fine for courts to look at the outcome of the legislative process (the legislation). But they can’t critique the process itself—including any comments made by individual legislators during debate.
Justice Rowe (joined by Justice Côté) said parliamentary privilege requires absolute immunity. “Judges can no more oversee the consideration of legislation [than] can members of Parliament oversee the preparation of our judgments.”
Why it matters: Despite the majority saying it was just sticking with Mackin, recent cases made Mackin look questionable. In Mikisew Cree, four judges said the legislative process is completely immune from judicial interference. And three more (including Chief Justice Wagner and Justice Karakatsanis) agreed that courts generally can’t interfere. As of Friday, that general rule looks a bit less general.
Any legislator looking to push the envelope now has a choice. They can forge ahead with legislation that might infringe the Charter, exposing the state to liability. They can dial their legislation back. Or they can treat Power as a further push to invoke the notwithstanding clause (the worst case for people whose rights the legislation infringes).
Happy reading: The judges had a lot to say about this one. And the authors didn’t make much effort to sync up—you’ll find multiple renditions of the facts, the background, and the history of parliamentary privilege.
HEARSAY ROUNDUP
Canadiana
💦 Calgary’s ruptured water main could get more costly. A proposed class action claims $10 million in damages against the City and utility provider Enmax. The suit alleges the defendants knew about the risk of failure and didn’t take steps to mitigate it.
🏴☠️ The Federal Court cracked down on pirated sports streams. Broadcasters with the rights to live sporting events won a two-year injunction targeting illegal streamers—their broadest injunction yet. The injunction lets the broadcasters shut down any IP address meeting predefined criteria. And it’s dynamic, so the broadcasters can block new IP addresses without going back to court. The broadcasters also wanted to add new sports leagues and events to the injunction without court approval, but Justice Little didn’t go that far.
Canadian legal proceedings and self-help remedies seem to be at most partially effective to address piracy, owing to the anonymity of the pirates, the physical location of the servers and related infrastructure outside Canada, and the surreptitious nature of the conduct.
[A] two-year mandatory injunction implementing dynamic site‑blocking should be issued… as the best effective remedy to stop the widespread and persistent infringement of their copyright in the communication of live sports events in Canada.
🌳 There’s new greenwashing guidance. The federal government released an updated deceptive marketing guide, which covers the recently enacted greenwashing prohibitions. There’s also a public consultation, if you’re keen on sharing your thoughts about the changes.
🐶 Ontario needs a new policy on service dog disability benefits. The Ontario Disability Support Program only pays a benefit for accredited service animals. And it only recognizes a narrow form of accreditation. So, people who use a service dog for mental health conditions aren’t eligible. The Ontario Human Rights Tribunal and the Divisional Court both said that gap is discriminatory.
While the [accreditation requirement] was neutral on its face, it had the effect of excluding all ODSP recipients whose disabilities did not fall within the disabilities that were served by [accredited] organizations in Ontario.
The Tribunal reasonably directed Ontario to take the necessary steps to review the process for training and certifying service dogs. It reasonably required Ontario to consider the alternatives in other provinces, and work towards adopting a similar or alternative approach that was not as restrictive…
👨💼 Tyler Shandro didn’t commit professional misconduct. The Law Society of Alberta dismissed three citations against the province’s former health minister that alleged fairly minor misconduct.
Mr. Shandro’s conduct at the time of the events that give rise to the Citations was at times inappropriate. However, we find that the conduct did not rise to the level of conduct deserving of sanction.
💰 Clio secured the bag. The legal tech giant just finalized a US$900M funding round.
THINGS NOT TO DO
Don’t rip off your deceased business partner’s estate. The Law Society of Ontario disbarred Sheriza Mohammed-Ali for conduct worthy of a Netflix special, including breaking into her deceased business partner’s office, stealing his property, drafting a fake will to take over as executor of his estate, and drafting a fake partnership agreement to give herself a larger stake in the business.
There has been a wholesale failure on the part of Ms. Mohammed-Ali to act with integrity, probity or trustworthiness. She has stolen from the estate of her deceased partner, lied to his widow, lied to other licensees and at least one client, lied to her regulator, fabricated documents, forged cheques, misappropriated trust funds, and generally acted in a reprehensible manner that is deserving of the strongest condemnation.
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