Limitless

Good morning,

If you’re set on checking a bag of crab meat next time you fly, you’re in luck. British Columbia’s Civil Resolution Tribunal confirmed that airlines can’t contract out of their responsibility to safely transport luggage. So — even though Brian Vu wasn’t allowed to pack $522 worth of seafood into his suitcase — Flair Airlines still has to compensate for the baggage delay that spoiled his haul.

— Dylan Gibbs

• A big admin law decision from the SCC

• Manitoba’s clear definition of deepfake intimate images

• The judge who called a lawyer’s question stupid

• And this week’s SCC hearings

SCC

Appeal rights don’t block judicial review

Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8

Litigants now have more power to challenge administrative decisions. On Friday, the Supreme Court confirmed that statutory appeal rights and judicial review can peacefully co-exist.

How we got here: Plenty of statutes limit the right to appeal an administrative decision. One of the most common limitations restricts appeals to questions of law. But where does that leave someone who wants to challenge questions of fact, or mixed fact and law? Can they sidestep the limited appeal by applying for judicial review?

“Limited” rights of appeal: According to the Supreme Court, the fact that a statute limits administrative appeals to questions of law doesn’t block judicial review. Litigants can still challenge questions of fact, using judicial review to fill the gaps. Here’s how the Court got there:

• When the legislature says, “You can appeal questions of law,” we can’t infer that the legislature also meant, “You can’t challenge anything else.”

• The Constitution guarantees the right to judicial review.

• Applicants aren’t entitled to judicial review if they have adequate alternative remedies, but a limited right of appeal isn’t adequate.

Left for another day: The statute in this case didn’t have a privative clause — a clear message telling the court to honour the appeal right and leave everything else alone. The Court dealt with whether an appeal right alone is enough to block judicial review. We’ll need to wait on a future case to sort out whether legislatures can use clearer language to limit judicial review.

HEARSAY ROUNDUP

Canadiana

🦾 Former CanLII CEO Colin Lachance is a Canadian legal tech pioneer and legal AI innovator. And now you can make his expertise your expertise. Colin is working with law firms and in-house legal departments that want to innovate with AI. Whether you're just trying to understand what’s possible, or you’re ready to tackle a full-blown AI project, Colin can get you where you want to be.*

🌁 Manitoba tabled legislative amendments to prohibit deepfake intimate images. The updated legislation defines intimate images to include “fake” images created by software like artificial intelligence. It aims to stop the distribution of explicit deepfakes where it’s reasonable to suspect that the person shown in the image wouldn’t consent to it. Manitoba’s definition is much clearer than the legislation recently adopted in BC (which arguably doesn’t cover deepfakes at all, despite the government’s assertions).

💰 The advocacy group that unsuccessfully challenged Edmonton’s encampment policy now has to pay over $11,000 in costs.

😳 The Ontario Court of Appeal dismissed an appeal from a criminal conviction — even though the trial judge called a defence line of questioning “stupid” in front of the jury:

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WEEK AHEAD

On the docket at the SCC

The Supreme Court is hearing three appeals this week. And for the first time in 2024, one of those appeals isn’t criminal.

Protection de la jeunesse — 226231 deals with the Court of Québec’s powers in youth protection matters. A judge found that rehabilitation centres violated the rights of a teenager during court-ordered treatment. In response, the judge ordered far-reaching corrective measures (like ordering staff working at treatment centres throughout the province to undergo mental health training).

The lower courts narrowed the judge’s order, saying that corrective measures should have been restricted to the teenager’s circumstances and the specific facilities that violated the teenager’s rights.

R. v. Campbell deals with reasonable expectations of privacy and exigent circumstances. Police arrested Gammie, a drug dealer. During the arrest, police saw incoming messages on Gammie’s phone from another dealer. Based on the messages, police figured the other dealer was about to deliver heroin laced with fentanyl to Gammie. Without a warrant, police assumed Gammie’s identity and communicated with the other dealer (Mr. Campbell) to set up the meet. Police arrested Mr. Campbell when he showed up with the heroin.

Both of the lower courts said the police acted lawfully — but for different reasons.

• The trial judge said Mr. Campbell didn’t have a reasonable expectation of privacy in the text message conversation with police.

• The Court of Appeal said that Mr. Campbell did expect privacy in the text messages, but the police were allowed to act quickly to keep dangerous drugs off the street — they didn’t need a warrant because of exigent circumstances.

R. v. Boudreau is an appeal as of right. A trial judge convicted Mr. Boudreau of dangerous driving causing bodily harm. A dissenting judge at the Quebec Court of Appeal said the verdict was unreasonable and would have given Mr. Boudreau a new trial.

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