Insulation
Can the state erase your lawsuit? Plus the SCC's latest on statutory interpretation and your round-up of legal news.
Dylan Gibbs
January 15, 2025
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PRESENTED BY |
It’s been a minute. And it sure is good to be back.
PS: congrats to Mandeep Singh Maan, who gets to keep his entire $2M lottery prize. The BC Supreme Court said he doesn’t have to split it with his colleagues, who (unsuccessfully) argued the winning ticket came from their recurring workplace pool.
Winning the lottery should be a happy event. In this case, sadly, it has ruined relationships.
Though it is impossible to know, I suspect [the coworkers’] sense of entitlement was born at least in part from the fact that some of them did play the lottery together more often than the photos show and from Mr. Maan’s post-win behaviour, which they found suspicious. Though the plaintiffs may feel that they have a moral entitlement to a share of the winnings, they have not established any legal entitlement.
— Dylan Gibbs
TODAY'S DOCKET |
Government litigation shields
Mistaken payments
Reading legislation
Dairy substitutes
Typo checks
STAYING CURRENT 🗞️
Payor beware
Eastwood Home v Procopio
2025 ONCA 11
The Ontario Court of Appeal said a couple is on the hook for payments they made to a rogue project manager. They hired a company to repair fire damage. During the project, the man overseeing the project asked the couple to pay him directly. That raised some red flags, but not enough to stop the couple from paying the fraudulent manager over $95,000.
The repair company successfully argued at the Court of Appeal that the innocent homeowners need to pay again — this time to the proper party.
[T]here was nothing in the contract that authorized the [property owners] to pay [the manager] personally nor was there any other evidence that the [repair company] had authorized personal payments to [the manager]. [The property owners] made no inquiries [of the repair company] as to [the manager’s] authority to receive personal payments. [The property owners had] to receive authority from the [repair company] to pay [the manager] directly or assume the risk…
Text above all
Quebec v. DPJ du CISSS A
2024 SCC 43
In case you missed it, the Supreme Court of Canada’s last case of 2024 focused on statutory interpretation.
A bit of context: When people or institutions violate the rights of a vulnerable child, the Youth Division of the Court of Quebec has the power to correct “the situation”. But the Youth Protection Act leaves “the situation” undefined.
Why it matters: For those practicing Quebec child protection law — the Youth Division doesn’t have the power to make broad remedial orders with no connection to the wronged child (like ordering every child protection worker in the province to take additional training).
[A] preventive corrective measure may be ordered only if the child whose rights have been encroached upon is at risk of being subjected to the situation of encroachment again. The fact that other children whose situations have not been referred to the tribunal might benefit from the preventive corrective measure is not sufficient, on its own, to allow the tribunal to order it.
And for those concerned our modern approach to statutory interpretation gives courts too much freedom to twist legislative wording — Chief Justice Wagner’s unanimous judgment seems to take a more text-focused approach:
[T]he YPA must be given a large and liberal interpretation... However, just as the text must be considered in light of the context and object, the object of a statute and that of a provision must be considered with close attention always being paid to the text of the statute, which remains the anchor of the interpretive exercise… As this Court recently noted, an interpreter must “interpret the ‘text through which the legislature seeks to achieve [its] objective’, because ‘the goal of the interpretative exercise is to find harmony between the words of the statute and the intended objective . . .’”
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DECISION SPOTLIGHT 🔦
How far can governments go to shut down litigation?
Kitsilano Coalition v. BC
2024 BCCA 423
In several recent high-profile cases, provincial governments have enacted legislation to shield themselves from liability. And those with potential claims aren’t happy about it. Case in point: a contentious Vancouver rezoning bylaw.
A bit of context: Residents opposed a development in Kitsilano that included a big chunk of low-income housing. Vancouver’s City Council agreed to move forward with the project anyway, after holding a public hearing mandated by BC legislation.
The residents planned to challenge the hearing in court. But when they applied for judicial review, the province adopted legislation that effectively wiped the litigation out.
Despite section 566 of the Vancouver Charter, despite the City of Vancouver's Procedure By-law No. 12577 and despite any decision of a court to the contrary made before or after this section comes into force,
(a) the public hearing on the amending bylaw, held on June 28, 29 and 30, 2022 and on July 14, 25 and 26, 2022, is conclusively deemed to have been validly held,
(b) the amending bylaw is conclusively deemed to have been validly adopted by the Vancouver council, and
(c) all powers and duties in relation to the zoning bylaw, as amended by the amending bylaw, may be exercised or performed as if the amending bylaw had been validly adopted by the Vancouver council under section 566 of the Vancouver Charter.
Governments have been getting pretty comfortable with this sort of thing.
BC ended litigation over the City of Surrey’s police force using similar legislation. Ontario exempted its contentious Ontario Place development from environmental approvals and blocked any litigation standing in the way. And similarly, when Ontario pulled land out of its protected Greenbelt only to put it back after a scandal broke out, the province vetoed any potential lawsuits. That legislation even went as far as to call out and nullify one specific claim.
So, is that legal?
No. At least according to the BC Court of Appeal’s recent decision on the Vancouver zoning bylaw.
The Court held that it’s perfectly acceptable for governments to change the law underlying a dispute in a way that changes the outcome. But they can’t directly eliminate a lawsuit or tell the court what decision to make. The BC government went offside when it “deemed” the rezoning hearing validly held.
[Legislators can] enact legislation that [retroactively alters] the law applicable to a dispute. While a Legislature may not interfere with the Court’s adjudicative role, it may amend the law which the court is required to apply in its adjudication. The difference between amending the law and interfering with the adjudicative function is fundamental to the proper roles of the legislature and courts in our parliamentary democracy.
[This legislation directs] that notwithstanding what the law might be, a particular state of affairs is to be ‘deemed’ to exist — that the public hearing has been “validly held” and the proposed amending bylaw has been “validly adopted”. The effect of [the legislation] deeming a particular state of affairs to be true is to direct the outcome of a specific court proceeding. That direction is obviously intended for the Supreme Court. That, as the Attorney seems to concede, “interferes with the Court’s adjudicative function by commandeering its power to grant orders entirely.”
Big picture: The Ontario Place development is headed to the Ontario Court of Appeal on this same issue, so we’ll see if Ontario follows suit. Given how common these sorts of provisions are — and what could be a murky distinction between governments changing the law and directing an outcome — I wouldn’t be surprised if this issue ends up at the SCC.
🗓️ UPCOMING CPD EVENTS
* Presented in partnership with OsgoodePD
MAKING HEADLINES
📖 The CBA has a good read on the legislation affected by Prime Minister Justin Trudeau proroguing Parliament. Given the current state of affairs, there’s a decent chance the legislative work done on several big pieces of legislation goes to waste.
💧 Drip pricing litigation keeps coming — this time against Indigo Park. A BC class action alleges the company added hidden fees when customers paid for parking electronically.
👩💼 Former Alberta premier Rachel Notley is returning to practice. She’s joining Southern Butler Price, a western firm focused on labour and employment.
☕️ There’s a class action against Big Coffee for allegedly price gouging non-dairy substitutes. A group of consumers say Starbucks, Tim Hortons and Second Cup charged extra for drinks with replacements like soy, almond, and oat milk. And (according to the claim) the prices were so exorbitant that they violated Quebec’s Consumer Protection Act and Civil Code. This paragraph from the application to authorize the class action sums it up:
[T]he amounts of $0.80 or $0.50 charged by the Defendants [for non-dairy substitutes] are disproportionate, exploitative, unconscionable and abusive, and bear no relation to the underlying cost of providing non-dairy substitutes (and are therefore illegal);
THINGS NOT TO DO 😤
Don’t circulate draft judgments for error checking.
A Tax Court judge circulated their judgment to the parties before making a formal pronouncement, asking for input on minor wording issues. The Court warned the parties it wasn’t an invitation to reargue the case, but the taxpayer couldn’t resist. And when the Court refused to hear further submissions, the taxpayer appealed.
The Federal Court of Appeal sided with the lower court, but the panel didn’t exactly recommend the error-checking practice to other judges.
We wish to comment on the practice the Tax Court followed here. It is for the Tax Court alone—not the parties—to vet its judgment and supporting reasons for typographical, grammatical, punctuation and similar errors.
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