Use it or lose it

Federal budget says 17 judicial positions had an expiry date. Plus other budget highlights and a look at whether the SCC's latest decision impacts notwithstanding clause litigation.

I’m happy to announce that your dreams have come true. As long as you’ve been dreaming of Tim Hortons adding sub $10 pizza to its menu across the country.

— Dylan Gibbs


6-min read

  • Highlights from the federal budget

  • Long live the short-term rental

  • Digging into Alberta’s modified coal policy

  • And will the Supreme Court grant a declaration despite the notwithstanding clause?


More than just a tax increase

Animated character representing a personification of tax documents waves at a man in a suit, who is running away worriedly while carrying a bag of money.

The attention-grabbing change in yesterday’s budget announcement was the capital gains increase targeting high-income taxpayers. But Budget 2024 also comes with plenty of other legally-interesting measures.

By the numbers 📊

  • 62: The total number of legislative changes required to implement the budget. The changes include a long-awaited framework for open banking, consumer-friendly amendments targeting telecom providers, and amendments to combat auto theft that include new criminal offences.

  • 1: The number of cities where Federal Court and Tax Court judges are allowed to live … for now. The government is launching a consultation to consider eliminating the Ottawa residency requirement that applies to those two courts — which could expand the pool of interested applicants.

  • $713.7 million: The spending earmarked for legal aid over the next five years. $440 million is going to legal aid in the criminal justice system and the rest to immigration and refugee matters.

  • 17: The number of judicial positions the federal government is taking away from Alberta because the province hasn’t unified its family court system. The positions were set aside for Alberta in Budget 2018, but the province hasn’t used them. So the federal government is redistributing the positions to other jurisdictions (and trying to set a record for the most passive-aggressive budget statement).

By redistributing positions to courts in jurisdictions where they will be put to use, the federal government will ensure funding for Canada’s justice system does not go to waste, as some provinces have chosen to do.


Don’t swear at prospective clients who tick you off. A Quebec lawyer turned down a prospective client over a conflict of interest. To express his displeasure, the prospective client posted a negative review about the lawyer online. And that prompted the lawyer to send an email saying, “Go f$&% yourself.” The lawyer ended up with a reprimand from the Quebec Bar.



🏠 Property owners brought a court challenge against BC’s short-term rental restrictions, which take effect on May 1.

🧑‍⚖️ Justice Minister Arif Virani put a healthy dent in Alberta’s judicial vacancies this week, with five new appointments and two elevations.

  • Justices Tamara Friesen and Joshua Hawkes are the Court of Appeal’s newest members.

  • Maureen McGuire, K.C., Kelsey Brookes, Shane Parker, K.C., Oliver Ho, and Derek Jugnauth all joined the Court of King’s Bench.

💊 The Superior Court of Quebec authorized a class action against pharmaceutical companies that allegedly misled consumers about opioids.

🚛 A jury found three men guilty of mischief for their role in the 2022 Coutts border blockade.

📑 Justice Teskey of the Alberta Court of King’s Bench ordered the Alberta government to turn over documents about its revised coal policy. A group of Alberta ranchers have been pursuing the documents through an access to information request since July 2020. Justice Teskey wasn’t too impressed with the government’s opposition to that request:

[Alberta Energy] required 15 months to release less than 1 percent of the records responsive to the request…

I will not allow [Alberta Energy] the opportunity to compound the inordinate delay they have created…

I am concerned about the seemingly casual attitude that Alberta Energy adopted in representing the number of records before the Commissioner. It was reasonable for the Adjudicator to demand sworn evidence on this issue where previous representations had become concerningly inconsistent…

While I can accept that some of the delays in this matter are attributable to COVID-19, the bottom line is that the release of information in this matter has been so slow as to be practically non-existent. I further find that the Public Body’s application for judicial review has further delayed the process such that it engages questions of public confidence about the practical reality of the right to information in Alberta.

Alberta Energy v Alberta (Information and Privacy Commissioner), 2024 ABKB 198 at paras 3, 35, 72, 78

Beyond the border

🚭 A UK bill that would ban tobacco sales to anyone born in 2009 or later made it through second reading yesterday, taking the landmark anti-smoking legislation past its first major hurdle. New Zealand was planning a similar generation-based tobacco ban, but the government recently reversed course.


Here’s an email question I received about the Supreme Court’s Shot Both Sides decision, covered in Monday’s newsletter:

Could the fact the Court granted a declaration signal anything about how it will treat declarations in Charter cases where the notwithstanding clause has been invoked?

I had the same question when I was reading the decision, so I figured I’d share my thoughts here.

In case you haven’t been following: Saskatchewan’s pronoun litigation and Quebec’s secularism litigation each considered the proper role for courts after a government invokes the notwithstanding clause. Should judges declare a rights violation — even though the notwithstanding clause blocks a substantive remedy — just to spell out the effect of legislation on fundamental rights and freedoms?

In Shot Both Sides, the declaration served a practical purpose by “authoritatively demonstrating that the Crown has infringed [the Blood Tribe’s] rights.” The Court figured the declaration could promote reconciliation and prompt the Crown to negotiate.

  • There’s a decent parallel in the notwithstanding context. The argument is that declaring a rights infringement would help governments make a more informed decision about using the override (and help the public decide whether to send those governments packing on election day).

  • But Shot Both Sides was premised on the “unique tenor” of declaratory relief in the context of Indigenous rights, where the Crown is bound to act honourably. The government’s relationship with Indigenous peoples strengthens the case for declaratory relief.

Editor’s view: I don’t think the Court has committed itself to either approach in the notwithstanding cases. Judges who take an expansive view of Charter rights could latch onto the practical value of “authoritatively demonstrating” a rights infringement to encourage dialogue between legislators and the courts. But the Court could easily limit Shot Both Sides to the Indigenous context.

Thanks for responding to the feedback polls and for sending your comments by email. I love hearing from the (now 1,400) subscribers to this newsletter.

Dylan Gibbs

That’s all for today. Govern yourself accordingly.

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