Court of Appeal Keeps Barry and Honey Sherman's Estate Files Sealed

Kevin Donovan is the Chief Investigator Reporter at the Toronto Star.  He also is the author of a book about the unsolved murders of Toronto billionaire Barry Sherman and his wife Honey Sherman entitled “The Billionaire Murders: The Mysterious Deaths of Barry and Honey Sherman”.  In the book, as reviewed by Jeff Gray of The Globe and Mail, Donovan sets out to determine what actually happened to the Shermans and who their killer might be.  He explains that on occasion, he even acted as The Toronto Star’s lawyer – even though he has no legal training and is not a lawyer – and has attended at court to question police to unseal such things as search warrant documents.

The Shermans were murdered in their home on December 15, 2017.  No one has yet been arrested and the police are still investigating.

In June 2018 lawyers for the estate trustees of Barry and Honey Sherman's estates filed applications for certificates of appointment of estate trustee.  On the application of the estate trustees, Justice Sean Dunphy of the Ontario Superior Court granted initial ex parte protective orders sealing the applications and other documents relating to the administration of the estates.  Following a contested application to open the court files initiated by Mr. Donovan, Justice Dunphy ordered that the entire court file be sealed and remain sealed for a period of two years, subject to further order of the court.

The court of appeal later set aside that order and ordered that the decision to allow access to the files would take effect 10 days after being released.  However, before the decision took effect, the estate trustees brought a motion for leave to the Supreme Court of Canada.  A stay of the order to release the files was imposed.  Mr. Donovan brought and argued on his own, a motion before Justice van Rensburg of the Court of Appeal to have the estate administration files unsealed pending the decision of the Supreme Court of Canada. 

In upholding the stay, Justice van Rensburg held that the test on a motion for stay of an order of the Court of Appeal pending an application for leave to appeal to the Supreme Court of Canada had been set out by Chief Justice Strathy in Livent v. Deloitte & Touche – i.e. (1) whether there is a serious issue to be tried (2) whether the moving party will suffer irreparable harm if the stay is not granted and (3) whether the balance of convenience favours a stay.  The factors are not to be treated as watertight compartments and the strength of one factor may compensate for weaknesses of another.  The overarching consideration is whether the interests of justice call for a stay.

Justice Dunphy had held that the sealing order was necessary to prevent a serious risk to the privacy and safety of the trustees and beneficiaries of the two estates.  Their privacy had to be weighed against the right to free expression and public interest in open and accessible court proceedings.  In addition, there was an argument that there was a real risk of serious physical harm to the beneficiaries and trustees.  Justice van Rensburg held that the first part of the Livent test had been met.  The threshold was low.  There was a serious question raised about whether public access to the files should be denied in whole or in part for a period of time.  She held that there was arguable merit to the proposed application for leave to appeal to the Supreme Court.  The appropriate analytical framework for restricting public access to court files involving non-litigious or administrative matters was something that the Supreme Court of Canada had not yet determined.  In addition, an issue was whether in the digital age, having regard to the evolving jurisprudence concerning personal privacy, a person's privacy interest can amount to an important public interest at the first stage.  Justice van Rensburg held that the level of threshold in the first part of the test first had been met and that the moving parties' application for leave to the Supreme Court of Canada had some arguable merit.

With respect to the issue of irreparable harm, Justice van Rensburg acceded to the moving parties argument that if the stay was not kept in place, the leave question to the Supreme Court of Canada would be moot.  "By disseminating potentially constitutionally protected confidential information that might at the end of the process continue to be protected would mean that the then horse would be out of the barn."

With respect to the balance of convenience, the only inconvenient part would be delaying access to files of administration.  There was no particular urgency for public access to the files.  Justice van Rensburg held it was best to preserve the status quo until the Supreme Court could rule on the matter.  The files didn't bear themselves on the criminal investigation so that really the only issue was whether the public would be denied anything by continued sealing.  She concluded that there simply no meaningful part of either file that could not be disclosed after making redactions where redactions were necessary and complete.

Regards,

Blair

SCC - Federal Court does not have Jurisdiction to Interpret City By-law

Windsor (City) v. Canadian Transit Co. 2016 SCC 54 

 

In a 5 – 4 decision, the Supreme Court of Canada dismissed an appeal from the Federal Court of Appeal on whether the Federal Court had jurisdiction to decide whether the Canadian Transit Co. (the “Company”) was required to comply with the City of Windsor’s by-law and repair orders.

 

The Company owns and operates the Canadian half of the Ambassador Bridge connecting Windsor, Ontario and Detroit, Michigan.   The Company was incorporated in 1921 by An Act to incorporate the Canadian Transit Co. (the “Act”).  The Act empowered the Company to construct, maintain and operate a general traffic bridge across the Detroit River, to purchase, lease or otherwise acquire and hold lands for the bridge and to construct, erect and maintain buildings and other structures required for the convenient working of traffic to, from and over the bridge.  The Act also declared the works and undertakings of the Company to be for the general advantage of Canada, triggering federal jurisdiction under the Constitution Act, 1867.

 

The Company purchased more than 100 residential properties in Windsor with the intention of eventually demolishing the houses and using the land to facilitate the maintenance and expansion of the bridge.  Most of the houses are now vacant and in varying states of disrepair.   The City of Windsor issued repair orders against the properties pursuant to a municipal by-law.  The Company has not complied with the repair orders. 

 

The parties have been engaged in litigation relating to the repair orders in the Ontario Superior Court of Justice.  In addition, the Company applied to the Federal Court for declarations saying that it has rights under the Act which supersede the by-law and the repair orders.  The City moved to strike the Company’s notice of application on the ground that the Federal Court lacked jurisdiction to hear the application.  The Federal Court struck the Company’s notice for want of jurisdiction.  The Federal Court of Appeal set aside that decision.

 

On further appeal to the Supreme Court of Canada, Justices McLachlin, Cromwell, Karakatsanis, Wagner and Gascon held that the Federal Court does not have jurisdiction to decide whether the City’s by-law applies to the Company’s properties and that the issue should be decided by the Ontario Superior Court.   

 

Justices Abella, Moldaver, Côté and Brown dissented.

 

The majority framed the question this way:  The issue is whether the Federal Court has the jurisdiction to decide a claim that a municipal by-law is constitutionally inapplicable or inoperative in relation to a federal undertaking.  The majority decision was written by Justice Karakatsanis. 

 

Justice Karakatsanis wrote that the Federal Court has only the jurisdiction that has been conferred upon it by statute.  It is a statutory court, without inherent jurisdiction.  Accordingly, the language of the Federal Courts Act is completely determinative of the scope of the court’s jurisdiction.   The majority held that the role of the Federal Court is constitutionally limited to administering federal law.  The Federal Court has jurisdiction where a federal statute grants it jurisdiction and where the claim is for relief made or a remedy sought under an Act of Parliament or otherwise.  The relief must be sought under, and not merely in relation to, federal law. 

 

In this case, the Company was not seeking relief under an Act of Parliament or otherwise as required by the Federal Courts Act.  The Company was seeking relief under the Act that created it.  The court held that the Federal Courts Act is not itself a federal law under which the Company could seek relief.  For that right, parties must look to other federal law.  Further, although the Act confers certain rights and powers on the Company, it does not give the Company any kind of right of action or right to seek the relief that it was seeking.  The Company in fact was seeking relief under constitutional law, because constitutional law confers on parties the right to seek a declaration that a law is inapplicable or inoperative.  A party seeking relief under constitutional law is not seeking relief under an Act of Parliament or otherwise within the meaning of the Federal Courts Act, therefore the applicable section of the Federal Courts Act does not grant jurisdiction over the Company’s application to the Federal Court.  As a result, the motion to strike the Company’s notice of application in the Federal Court must succeed.

 

There were two separate dissenting reasons – one by Justices Moldaver, Côté and Brown and a separate set of dissenting reasons by Justice Abella. 

Justices Moldaver and Brown held that the Federal Court’s jurisdiction should be construed broadly and that its purposes are better served by a broad construction of its jurisdiction.  The essential nature of the case is not relevant to whether the Federal Court has jurisdiction but to whether it should exercise it.  The dissenters held that requiring a federal statute to expressly create a cause of action before jurisdiction may be founded under an Act of Parliament was unduly narrow and inconsistent with Parliament’s intent in creating the Federal Court.  The court’s jurisdiction should be construed broadly so that if the claim for relief is related to a federal work or undertaking and the rights being enforced arise from an Act of Parliament, the claimants may approach the Federal Court. 

 

In separate dissenting reasons, Justice Abella held that the appeal should be dismissed in part and a stay of the Federal Court proceedings should be entered.  She held that notwithstanding that the Federal Court has concurrent jurisdiction with the Ontario Superior Court, it should not exercise it in this case.  Both the Company and the City appealed orders to the Ontario Superior Court.  Rather than wait for the outcome of the appeals before the Superior Court, the Company sought to activate the Federal Court’s intervention.  Justice Abella reasoned that the Company had attempted to divert the proceedings into a jurisdictional sideshow which added expense and delay in aid of nothing except avoiding a determination of the merits for as long as possible.  To date that jurisdictional diversion has cost the public a delay of three years.  There was no basis for further delaying the Superior Court proceedings.

Regards,

Blair

 

Supreme Court Strikes Down Legislation Providing For Court Hearing Fees

The Supreme Court of Canada recently released its decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC 59.  The majority of the Supreme Court struck down legislation in British Columbia which obliged parties to pay fees to use courtrooms for trials. 

 

The parties in the case were involved in a child custody dispute.  The plaintiff brought an action to have the custody issues resolved.  In order to get a trial date, she had to undertake in advance to pay a court hearing fee.  At the outset of the trial, the plaintiff asked the judge to relieve her from paying the hearing fee.  The judge reserved his decision on the request until the end of the trial.  The parties were not represented by lawyers and the hearing took 10 days.  The hearing fee amounted to $3,6000 – almost the net monthly income of the family.  After legal fees had depleted her savings, the plaintiff could not afford to pay the hearing fee.  In declaring the legislation unconstitutional the Supreme Court held that these hearing fees infringed upon the plaintiff's constitutional right of access to justice and offended the rule of law.

 

Writing for the majority of the court, Chief Justice Beverley McLachlin, stated, “As access to justice is fundamental to the rule of law and the rule of law is fostered by the continued existence of the section 96 Courts (Superior Courts of the Provinces) it is only natural that section 96 of the Constitution Act, 1867 provides some degree of constitutional protection for access to justice…when hearing fees deprive litigants of access to the Superior Courts, they infringe the basic right of citizens to bring their cases to court.  That point is reached when the hearing fees in question cause undue hardship to the litigant who seeks the adjudication of the Superior Court.”  

Justice McLachlin held that a fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts.  She held that it is the role of the provincial legislatures to devise a constitutionally compliant hearing fee scheme.  As a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees for people who cannot, by reason of their financial situation, bring non‑frivolous or non‑vexatious litigation to court.  A hearing fee scheme can include an exemption for the truly impoverished, but the hearing fees must be set at an amount such that anyone who is not impoverished can afford them.  Higher fees must be coupled with enough judicial discretion to waive hearing fees in any case where they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims.                      

Regards,

Blair

Supreme Court Rules Early Dismissal of Cases Beneficial

In Quebec, Article 165 of the Code of Civil Procedure (“Code”) provides the courts of that province with a mechanism, at a preliminary stage, to put an end to actions that are bound to fail.  In a recent Supreme Court of Canada decision (Canada (Attorney General) v. Confederation des syndicats nationaux, 2014 SCC 49), the court ruled that judges must be cautious in exercising this power:  although the proper of administration of justice requires that the court’s resources not be expended on actions that are bound to fail, the cardinal principle of access to justice requires that the power be used sparingly, where it is clear that an action has no reasonable chance of success. 

 In this case, the court agreed that an action brought by the Confederation des syndicats nationaux and the Federation des travailleurs et travailleuses du Quebec (referred to collectively as the “Unions”) was bound to fail, finding that the application of the doctrine of stare decisis was fatal to it.  A previous decision of the Supreme Court of Canada had settled the law on the legal issues that the action raised.  That previous decision deprived the Unions’ motion to institute proceedings of any legal basis. 

The Code

The motion was based on an article in the Code which was designed to avoid a trial where an action has no basis in law, even if the facts in support of it are admitted.  The court held that the Code "favoured the sound and effective management of judicial resources", i.e. the power of the courts to dismiss actions at a preliminary stage and held that the tool  “is a valuable housekeeping measure essential to effective and fair litigation.  It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.” 

 

However, because dismissing an action at a preliminary stage can have very serious consequences the courts must be cautious in exercising this power.  As a result, an action will not be dismissed at such an early stage in the proceedings unless it is “plain and obvious” that it lacks a basis in law. 

 

The plain and obvious situation opens the door to a dismissal of an action that is apparent from the allegations set out in the motion.  The facts alleged in the motion must be assumed to be true.

Operation of Stare Decisis

 

In respect of dismissing an action on the basis of stare decisis, the Supreme Court held that judgments rendered under the article of the Code often concerned situations in which the right being claimed was clearly prescribed.  An action will sometimes be dismissed if it is clear that an authoritative decision had already resolved the issue or issues raised in the motion.  The court held that the doctrine of stare decisis is "not inflexible".   The precedential value of a judgment may be questioned “if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shift the parameters of the debate” where, on the other hand, the legal issue remains the same and arises in a familiar context, the precedent still represents the law and must be followed by the courts. 

Accordingly, the judge must be satisfied in light of the record and the alleged facts that the precedent relied on by the applicant actually concerned the entire dispute that it should normally resolve and that it provided a complete, certain and final solution to the dispute. 

The Case

In 1996 the federal government carried out a major reform of the employment insurance program when it enacted the Employment Insurance Act (“1996 Act”).  One of the main components of the reform concerned the mechanism for setting the premiums payable by workers and employers who contributed to the program and thus the method of financing the program.  Faced with periodic deficits in the program and fearing the effects of an economic downturn on the Consolidated Revenue Fund, Parliament sought to create a reserve to enhance the program's stability while avoiding significant fluctuations in premiums. 

 

In 1998 and 1999, the Unions went to court to strike down certain provisions of the 1996 Act, arguing that the premium-setting mechanism was unconstitutional because the annual surpluses in the account were being reallocated by the government to its general expenses, including budget deficit reduction (there was a surplus of several billion dollars in the account).  In the Unions’ view, this was a misappropriation of monies that were supposed to be ear-marked for employment insurance.

 

In December of 2008, the Supreme Court declared that the measures adopted in the 1996 Act were valid and constitutional with the exception of the measures that applied in 2002, 2003 and 2005.  For those years, premium rates had been set by sections in the 1996 Act that made it possible to disregard the criteria which governed the exercise of the power to set rates.  The Supreme Court accepted that for the years in question,  the improper exercise by the Governor in Council of the power conferred on Parliament was a technical defect and it suspended the effect of the declaration of invalidity of the impugned sections to enable Parliament to rectify the situation.

 

In July of 2010, Parliament enacted the Jobs and Economic Growth Act (“2010 Act”) which provided for, among other thing, closing the Employment Insurance Account and creating a new account called the Employment Insurance Operating Account retroactive to January 1, 2009.  

 

The 2010 Act did not specify that the balance of the Employment Insurance Account, which at that point amounted to over $57 billion was to be transferred to the new Employment Insurance Operating Account.   This is the context in which the litigation began.

 

In April of 2011, the Unions filed a motion in order to have certain provisions of the 2010 Act declared unconstitutional.  The Attorney General of Canada argued that the issues raised by the Unions had already been decided by the Supreme Court in 2008 and moved to dismiss the action under an Article of the Code on the basis that it was unfounded in law. 

 

The motion to dismiss was granted by the Quebec Superior Court.  The motion judge held that the Supreme Court had previously held it its 2008 case, that the monies from the program belonged to the government and not to the contributors.  The accumulated surpluses formed part of the government’s revenues, did not have to be used solely for the employment insurance program and were not a debt owed to the program by the Consolidated Revenue Fund.  Accordingly, she dismissed the action. 

 

The Quebec Court of Appeal set aside the motion judge’s decision and found that the action was concerned more with the ”effects of the act of eliminating the balance and resulting accounting entries” that flowed from the 2010 legislative amendment than with the use of the surpluses that had accumulated in the account.  The Court of  Appeal held that the issue had not been disposed of by the Supreme Court in its 2008 decision since the legislation in question had not yet been enacted.  The Court of Appeal also noted that the Union’s allegation that the Consolidated Revenue Fund was indebted to the Employment Insurance Account was one of the facts that the trial judge had to assume to be true. 

 

In allowing the appeal, the Supreme Court held that before granting a motion to dismiss on the basis that an authoritative decision had already resolved the issue before him or her, the judge "must be satisfied in light of the record and the alleged facts that the precedent relied on by the applicant concerned the entire dispute that it should normally resolve, and that it provided a complete, certain and final solution to the dispute". 

 

In this case, the Supreme Court held that Unions’ action was bound to fail.  The action's underlying premise was that a balance in the Employment Insurance Account is a debt owed by the Consolidated Revenue Fund to that account.  In the Unions’ view, the premiums paid in the context of the employment insurance program are constitutionally valid only if they are properly accounted for.  The court held however, that its 2008 decision settled the law in that regard and it deprived the motion to institute proceedings of any legal basis.  In that case, the Supreme Court held that the amounts collected as contributions to the employment insurance program formed part of the government’s revenues and could be used for purposes other than paying benefits.  Although, the connection between the program and the premiums was a fact that could be considered in determining the nature of the levies, it was wrong to say that the validity of these levies depended on the existence of that connection. 

 

Furthermore, the Supreme Court held that no debt of the Consolidated Revenue Fund to the Employment Insurance Account ever existed, since the government cannot be indebted to itself. 

Because the action had no reasonable chance of success the section of the Code applied and was appropriate to dismiss the action at the preliminary stage.

Regards,

Blair

 

SCC Clarifies Test For Civil Fraud

Albert Bruno was the principal of an American company called Bruno Appliance and Furniture, Inc.  In late 2001, Bruno met with Robert Cranston, the principal of a Panamanian company, Frontline Investments Inc.  As a result of those meetings, Bruno signed a number of investment documents in favour of Frontline.

 

In February of 2002, Bruno met with Cranston and Gregory Pebbles, a lawyer at the Toronto offices of Cassels Brock and Blackwell.  Robert Hryniak did not attend this meeting.  However, Hryniak's company, Tropos Financial Corp., received and paid a bill for Pebbles'  attendance. 

 

In early March of 2002, Bruno Appliance wired US$1 million to Cassels Brock who assigned the funds to an account associated with its client, Hyrniak's company, Tropos.  Bruno Appliance's funds were then "bundled" with other funds totalling US$3.5 million and paid to Tropos in a bank draft.  At the end of April 2002, Tropos paid US$2.5 million to a company called Southern Equity Investors Inc. and in June 2002, Tropos transferred approximately US$550,000 to an individual named Reinhard.  By the end of September 2003, the balance in Cassels Brock's  Tropos account had dwindled to US$19,000. 

 

Bruno Appliance's money was not invested and it never received a return on its investment. 

 

Bruno Appliance joined with other plaintiffs in a civil fraud action against Hryniak, Peebles and Cassels Brock.  The plaintiffs brought motions for summary judgment.  The motion judge found that Bruno Appliance had established its claim against Hryniak.  He found that despite his absence from the early meeting, Hryniak knew that the meeting was occurring and that his company Tropos paid for Pebbles' attendance.  The motion judge found that Hryniak was aware that US$1 million was placed in the Tropos account and that he gave instructions regarding those funds. 

 

On appeal to the Ontario Court of Appeal, the court allowed Hyrniak's appeal and held that there were two genuine issues that required a trial:  whether Hryniak induced Bruno Appliance to invest; and whether some of the funds were misappropriated by Cranston rather than Hryniak.

 

The Court of Appeal also found that the motion judge failed to address the issue of whether Hryniak knowingly made any misrepresentation that induced Bruno Appliance to invest, a necessary element of fraud. 

 

The Court of Appeal ordered that the Bruno Appliance action proceed to trial.  The plaintiff further appealed to the Supreme Court of Canada.

 

The Supreme Court of Canada dismissed the plaintiff's appeal and ordered that the action proceed to trial.  

 

At the Supreme Court the parties disagreed as to the elements of the tort of civil fraud, in particular whether proof was required that Hryniak induced Bruno Appliance to invest its money.  The judgment of the court was delivered by Justice Karakatsanis.  

 

The Supreme Court held that a classic statement of the elements of civil fraud stems from an 1889 decision of the British House of Lords, Derry v. Peek: 

 

First in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice.  Secondly, fraud is approved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false... Thirdly, if fraud be proved, the motive of the guilty person of it is material.  It matters not that there was no intention to cheat or injure the person to whom the statement was made.

Since that statement was made, the Supreme Court of Canada has added two additional requirements - the false statement must actually induce the plaintiff to act upon it and proof of loss is required.

 

Accordingly, Justice Karakatsanis summarized the following four elements of the tort of civil fraud:  (1)  a false representation made by the defendant; (2)  some level of knowledge of the falsehood of the representation on the part of the defendant (whether through actual knowledge or recklessness); (3)  the false representation caused the plaintiff to act; and (4)  the plaintiff's actions resulted in a loss.

 

In dismissing the appeal, the SCC found that there was a genuine issue requiring a trial.  Civil fraud required a finding that Hryniak made a misrepresentation which induced Bruno Appliance to invest.  The motion judge did not identify the need for a misrepresentation and did not find that Hryniak had made one.  Since Hryniak was not present at the important meeting, he could only be liable for any misrepresentations made by Peebles or Cranston if their statements could be attributed to him.  However, the Court of Appeal considered and rejected the possibility that Pebbles or Cranston was acting as Hryniak's agent. 

 

While the motion judge found that the evidence clearly demonstrated that Hryniak was aware of the fraud and may have in fact benefited from the fraud, whether Hryniak perpetrated the fraud by inducing Bruno Appliance to contribute the US$1 million to a non-existent scheme was a genuine issue that required a trial. 

 

Regards,

 

Blair

Supreme Court Rejects Prime Minister's Appointment

In a rebuke to Canada's Prime Minister, the Supreme Court of Canada ruled that his attempt to appoint a judge from the Federal Court of Appeal to the country's highest court was unconstitutional.  

 

On September 30, 2013, Stephen Harper, the Prime Minister of Canada, announced the nomination of Justice Marc Nadon, a supernumerary judge of the Federal Court of Appeal to the Supreme Court of Canada.  On October 3, 2013, Justice Nadon was named as a judge of the Supreme Court of Canada by Order in Council.  He replaced Justice Morris Fish as one of the three judges appointed from Quebec pursuant to section 6 of the Supreme Court Act ("Act").   He was sworn in as a member of the court on the morning of October 7, 2013. 

 

On the same day, Justice Nadon's appointment to the SCC was challenged by Rocco Galati, a Toronto lawyer.  Mr. Galati brought an application before the Federal Court of Canada arguing that the Act does not permit Federal Court judges to be appointed to the SCC.  As a result of Mr. Galati's legal challenge, Justice Nadon decided not to participate in any cases that were before the SCC. 

 

In an attempt to confirm its choice of Justice Nadon and cut short Mr. Galati's challenge, the government referred two questions to the Supreme Court for hearing and consideration :

 

1.    Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Quebec (Quebec Bar) be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Act?  (Justice Nadon was a former advocate of the Quebec bar.)

 

2.    Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment of a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled "Economic Action Plan 2013 Act, No. 2"?  (This was the government's omnibus budget bill.)

 

On the same day that the government referred these two questions to the court, it introduced Bill C-4, Economic Action Plan 2013 Act, No. 2 ("Bill C-4") into the House of Commons.  Clauses 471 and 472 of Bill C-4 proposed to amend the Act by adding sections 5.1 and 6.1.  These provisions were subsequently passed and received Royal Assent on December 12, 2013.  The new provisions were designed to clear the way for Justice Nadon's appointment. 

 

Section 5 of the Act reads:  "Any person may be appointed a judge who is or has been a judge of a Superior Court of a province or a barrister or advocate of at least 10 years standing at the bar of a province." 

 

Section 5.1, added by Bill C-4, reads:  "For greater certainty, for the purpose of section 5, a person may be appointed a judge if at any time, they were a barrister or advocate of at least 10 years standing at the bar of a province."

 

Section 6 of the Act reads:  "At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province ."

 

Section 6.1, added by Bill C-4, reads:  "For greater certainty, for the purpose of section 6, a judge is from among the advocates of the Province of Quebec if, at any time, they were an advocate of at least 10 years standing at the bar of that Province."

 

Seven judges of the Supreme Court of Canada heard this reference.  

 

In a six to one decision (Justice Moldaver dissenting), the Supreme Court answered the first question in the negative and determined that Justice Nadon did not meet the criteria set out in sections 5 and 6 of the Act and was therefore ineligible to join them on the Supreme Court of Canada.  

 

The Court answered the second question in the negative with respect to the three seats on the court reserved for Quebec and held that Parliament could not enact legislation to make Justice Nadon eligible without the unanimous consent of Parliament and the provincial legislatures because to do so amounted to a amendment to the Constitution Act, 1982.

 

The majority decision, written by all the majority justices, held that reading section 5 and section 6 of the Act together, means that the pool of eligible candidates from the four groups of people that are eligible under section 5 are narrowed by section 6 to two groups, i.e. current members of the Quebec bar or current judges of the courts of Quebec.  The plain meaning of section 6 has remained consistent since the original version of that provision was enacted in 1875 and it has always excluded former advocates.  By specifying that three judges shall be appointed "from among" the judges and advocates of the identified institutions impliedly excludes former members of those institutions and imposes a requirement of current membership.  Reading sections 5 and 6 together, the requirement of at least 10 years standing at the bar applied to appointments from Quebec.  

 

The Court held that this analysis is consistent with the underlying purpose of section 6 and reflects the historical compromise that led to the creation of the Supreme Court as a general court of appeal for Canada and as a federal and bijural institution.   Section 6 seeks to ensure civil law expertise and the representation of Quebec's legal traditions and social values on the Court and to enhance the confidence of Quebec in the Court.  

 

Accordingly, Justice Nadon, as a former but not current advocate, was not eligible.

 

With respect to the second question, the justices held that Parliament's unilateral power to provide for a general court of appeal for Canada found in section 101 of the Constitution Act, 1867, has being overtaken by the Supreme Court's evolution in the structure of the Constitution as recognized in Part V of the Constitution Act, 1982.   The Court's constitutional status arose from its historical evolution into an institution whose continued existence and functioning engaged the interests of both Parliament and the provinces.  As a result, Parliament is now required to maintain the essence of what enables the Supreme Court to perform its current role.  While Parliament has the authority to enact amendments necessary for the continued maintenance of the Court, it cannot unilaterally modify the composition or other essential features of the Court.  

 

Part V of the Constitution Act, 1982, expressly makes changes to the Supreme Court and to its composition subject to constitutional amending procedures.  Accordingly, such changes require the unanimous consent of Parliament and the provincial legislatures.  Any substantive change in relation to the court's eligibility requirements is an amendment to the Constitution in relation to the composition of the Supreme Court and triggers the application of Part V.  Accordingly, section 6.1 of the government's omnibus Economic Act was unconstitutional of Parliament since it substantively changed the eligibility requirements for appointments to the Quebec seats on the court under section 6.  The court found however, that section 5.1 does not alter the law as it existed in 1982 and was therefore validly enacted under the Constitution Act, although it is redundant.  

 

Despite this decision, the government has indicated that it hasn't ruled out re-appointing Justice Nadon to the Court.

 

Regards,

 

Blair