Re-litigating cases

Yesterday marked the end of an era. A US judge granted an interim injunction, ordering Donald Trump to stop playing the song “Hold On, I’m Coming” at his rallies.

That’s good news for family members of Isaac Hayes Jr. (who co-wrote the song). They don’t want the song connected with Trump’s campaign.

But it’s a darn shame for Trump watchers. The song brings out some of Trump’s most impressive dance moves. You can still watch the moves, but they don’t hit quite the same with the music muted.

— Dylan Gibbs

• Opening up past judgments to Indigenous participation

• Delivery drivers skipping to court

• The war on judicial vacancies

• Pandemic work reductions

• Getting fired by clients

• Avoiding sex ed

DECISION SPOTLIGHT 🔦

Re-litigating 135-year-old judgments

Atikameksheng Anishnawbek v. Canada, 2024 ONSC 4012

Atikameksheng Anishnawbek First Nation wants to settle the boundaries of its reserve. A judge already settled those boundaries in 1889, but the First Nation says he got it wrong. Fortunately for the First Nation, the prior decision isn’t a barrier — at least according to Justice Morgan of the Superior Court of Justice.

A bit of context: Ontario sued Canada and some timber operators to sort out the scope of Treaty 6 back in 1889. Ontario argued that Canada gave out timber licenses using the wrong boundaries, which forced the Court to rule on the size of the First Nation’s reserve.

• The First Nation’s members gave evidence at the trial. And the judge even accepted their evidence. But the First Nation didn’t participate as a party.

• Now the First Nation wants a proper say.

The Court’s reasons: Justice Morgan considered the First Nation’s claim a collateral attack and an abuse of process.

But that didn’t end the discussion. Courts have discretion to allow re-litigation. And the First Nation’s lack of participation in the original trial swayed Justice Morgan. He said the First Nation didn’t have a proper chance to protect its interests even though its members gave evidence.

Justice Morgan summed up his concerns with an analogy: It sure wouldn’t be fair if two neighbours altered your property boundary in a fight between themselves and there was nothing you could do about it.

For Justice Morgan, re-litigating the reserve boundary furthers the administration of justice irrespective of the outcome.

• If the boundary stays the same, the First Nation’s participation at least lends legitimacy to the result.

• And if the boundary changes, the new trial serves a truth-seeking function.

Either way, letting the First Nation participate advances reconciliation.

Big picture: Like the SCC’s flexible approach to declaratory relief for Indigenous claimants, this case joins a growing list of decisions that soften the strict application of legal doctrines in the name of reconciliation.

HEARSAY ROUNDUP

Canadiana

😷 Hotel employees won a class action over COVID-related schedule changes. BC’s Supreme Court ruled that a hotel constructively dismissed its hourly employees when it cut their shifts in response to the pandemic. Most employees’ contracts said “assignment of hours will be subject to business demand” — but the Court said that didn’t permit an indefinite work stoppage.

• Most of the employees’ contracts also attempt to limit damages — giving them just the minimum notice period required by statute — so it’ll be tough to get too excited.

🧑‍⚖️ Justice Minister Arif Virani announced more judicial appointments in BC and Ontario, which just about brought the vacancy count below Justice Henry Brown’s target. Justice Brown told the government to aim for 46 vacancies or less. There were 47 open spots as of September 1.

🍕 Manitoba’s Skip the Dishes class action is headed to trial. The Manitoba Court of Appeal rejected Skip’s attempt to force the case to arbitration earlier this year, and the Supreme Court of Canada recently denied leave to appeal.

🧑‍🏫 No sex ed without approval. Alberta didn’t launch opt-in sexual education for this school year, but you can expect it soon. The province is tabling legislation in the fall that will require parents to enrol their children in any lesson that covers sexual education.

🧐 McGill obstructed the union of law professors, according to Quebec’s labour tribunal. The University sent emails to faculty members that — based on the timing — attempted to influence union members.

❓ Wondering what files you need to turn over after getting fired by a client? Here’s a great thread:

Beyond the border

🧑‍💻 Canada’s new digital services tax really bothers the US. Our southern neighbour kicked off a trade dispute under USMCA with a request for settlement discussions. If it doesn’t settle in 75 days, the dispute could head to a resolution panel.

🚗 Volkswagen’s notorious emissions scandal is back in court. Former head exec Martin Winterkorn started his criminal trial yesterday, facing allegations of fraud, market manipulation, and perjury.

FROM THE READERS

I was overwhelmed by the number of detailed responses to last week’s question about podcasting. I plan to respond to everyone who wrote in, but it’ll take some time. In the meantime, thanks for participating!

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