⚖️ Record holder

To: Hearsay Readers

TODAY’S DOCKET

  • Justice Moreau doesn’t need any prep time

  • Open letter on pro-Palestinian advocacy

  • Suing Tim Hortons over swapped milk

  • Judicial appointments in Quebec and Ontario

SUPREME COURT

Nine judges on SCC bench, women in majority

The Supreme Court sat with a nine-member panel for the first time in over eight months today. The last time nine judges sat in the courtroom was January 18 — the date of the final hearing to include former Justice Brown.

The Court hasn’t been down just one member, either. Chief Justice Wagner chose to require an odd number of judges for each appeal hearing, to avoid any chance of deadlock. So instead of sitting with eight members, every panel since January 18 has consisted of only five or seven judges — a choice some criticized for excluding capable members of the Court from certain hearings.

Today, the bench was full again. And it wasn’t just full. Women held a 5-member majority for the first time in the Court’s 148-year history. At least for now, that’s remarkable.

Setting records: Justice Moreau sat for her first appeal only the day after her appointment. That seems to be a record. And unless a future member of the Court gets appointed and sworn-in just moments before an appeal hearing, it’s a record Justice Moreau is likely to keep.

Justice Moreau also didn’t let the quick turnaround slow her down — she was actively engaged in the hearing and asked questions of counsel.

HEARSAY ROUNDUP

Canadiana

✍️ Members of the legal profession signed a letter raising concern about recent responses to pro-Palestinian advocacy. The letter says retaliatory actions taken against lawyers and students expressing support for Palestine pose a threat to free speech.

🧑‍💻 Alberta plans to let non-engineers call themselves software engineers. Currently, the Engineering and Geoscience Professions Act says only registered professionals can use the title “engineer”. The regulator takes that restriction seriously, and has gone to court to prevent tech companies from using the term “software engineer” in job postings. Tech companies say the term is widely used in the industry, and they’ll lose good talent if they can’t call their programmers software engineers. Amendments proposed by the province will resolve the dispute, freeing up “software engineer” for broader use.

💰 Ontario is considering legislation that would require job postings to disclose expected salary ranges.

☕️ A woman is suing Tim Hortons, alleging she suffered a severe and nearly life threatening allergic reaction. She says Tim’s messed up her order by putting real milk instead of almond milk in a tea she ordered through the company’s mobile app. Among other allegations, she says Tim’s should have let her enter her allergy in the app.

Beyond the border

🧯 As expected, Trump hasn’t made the best witness in his civil fraud trial. He’s had a tough time sticking to the questions asked, instead venturing off to criticize the prosecution and the judge. More importantly though, he seems to have made some critical admissions going to the heart of the Attorney General’s case.

Judicial appointments

  • In Quebec, Justice Isabelle Boillat was elevated from the Court of Quebec to the Superior Court in Chicoutimi.

  • In Ontario, Justices Sally Gomery and Jonathan Dawe were elevated to the Court of Appeal.

INSURANCE

ONCA sides with insurer over homeowners in flood claim

A flood completely destroyed a home in a protected area. The homeowners want their insurer to pay the replacement cost, including the cost of following rules put in place by a conservation authority. The insurance company won’t cover those extra costs. The extra costs are significant — to the tune of about $350,000.

A lower court agreed with the homeowners, but they weren’t so fortunate at the Ontario Court of Appeal.

The policy: The homeowner’s insurance policy covers the full cost of replacing their home using “similar quality materials and current building techniques”. But it generally excludes coverage if replacement costs are increased by “any law regulating the zoning, demolition, repair, or construction of buildings”. The policy only covers those added costs up to $10,000.

After the homeowners built their home, the conservation authority imposed rules on the area. If the home is rebuilt, those rules need to be followed. The insurer says those rules are exactly what the policy was referring to when it excluded the costs of complying with “any law” regulating construction.

Lower court: The application judge disagreed with the insurer. Her view was that by-laws, regulations, and conservation authority policies are not “law”. So it didn’t matter that the policy excluded costs required to comply with “any law” regulating construction.

It’s a significant conclusion — plenty of other insurance policies use similar language.

On appeal: The Court of Appeal said the phrase “any law” is all-encompassing. It includes by-laws, regulations, ordinances, and policies imposed by a public authority. Any non-optional building requirements fit the bill. And that’s a win for the insurer.

But all is not quite lost for the homeowners. The policy covers the cost of using “current building techniques”. How do you differentiate between the extra cost of using modern building techniques and the extra cost of following modern conservation requirements? The Court of Appeal said the parties will need to hash that out at a further court hearing.

Decision report card:

◻️◻️🙂◻️◻️ Factual interest

◻️◻️🙂◻️◻️ Legal interest

🌊◻️◻️◻️◻️ Getting stuck with the fine print