A bit of positivity
How hard do governments need to fight against climate change? Plus insurance commitments, mining claims, and the latest legal news.
Dylan Gibbs
October 25, 2024
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British Columbians have been waiting a week to find out who will govern the province, but West Coasters don’t have a monopoly on close elections. One municipal council race in Nova Scotia ended in a tie over the weekend. And even though the candidates want a runoff election — the law is a bit less sophisticated.
Nova Scotia’s Municipal Election Act says the race will turn on a random draw:
[The clerk shall resolve a tie by] placing the names of the candidates on equal size pieces of paper placed in a box and one name being drawn by a person chosen by the clerk.
— Dylan Gibbs
TODAY'S DOCKET |
Insurance doing more harm than good
Freedom of professional speech
Consultation-free mining claims
Bold union-busting tactics
Weak climate policies
STAYING CURRENT 🗞️
Another free-entry mining regime bites the dust
Quebec’s free-entry mining system gives prospectors a near-automatic right to stake a claim on Crown land. And that means they can poke around without government intervention (even if their exploration activities conflict with Indigenous rights or title claims).
Quebec’s Superior Court said the setup violates the province’s duty to consult with Indigenous groups in advance.
The Quebec decision resembles earlier cases from the Yukon and BC, but those cases only required consultation on a go-forward basis. Justice Masse told the province to go back and consult on existing claims — potentially threatening mining interests dating back to 1991.
The full decision is only available in French. But here’s an AI-generated unofficial translation for anyone interested.
Think twice about agreeing to get insurance
Catherwood Towing v Lehigh Hanson Materials, 2024 BCCA 348
A contract between a tug operator and a barge operator says the tug operator is responsible for its negligence. The tug operator negligently damages two barges while towing them. Who pays?
According to the BC Court of Appeal, the barge operator is on the hook even though the contract says the tug operator is responsible — because the barge operator agreed to get insurance. The insurance commitment implies that the insured barge operator agreed to cover the loss, trumping the contract’s other provisions.
That’s tough news for the barge operator, who’s out more than $870,000 after their massive deductible rendered the insurance coverage almost worthless.
[T]he very insertion of a covenant to insure in an agreement should generally be regarded as a benefit extended to the counterparty.
[T]he protection afforded by covenants to insure [has] general application [beyond] landlord-tenant and bailor-bailee relationships [including in tug and tow cases].
Amazon sent packing
Laval Amazon Workers Union v. Amazon, 2024 QCTAT 3754
Amazon’s bold attempt to unwind Canada’s first union of Amazon warehouse workers fell flat at Quebec’s labour tribunal. The company asked for public interest standing to argue that Quebec’s labour regime violates workers’ freedom to associate.
Since Quebec lets workers unionize without taking a representative vote, Amazon argued the legislation strips workers of the right to choose their representatives.
But the labour tribunal didn’t exactly see Amazon as a concerned corporate citizen looking out for its workers. The tribunal said employers don’t have standing to challenge a union’s representativeness. And they certainly don’t have standing to use workers’ Charter rights against them.
DECISION SPOTLIGHT 🔦
How much climate action does the Charter require?
Mathur v. Ontario, 2024 ONCA 762
The Ontario Court of Appeal breathed new life into one of Canada’s most notable climate litigation cases last week. A group of young claimants say Ontario’s climate response is so soft that it violates the Charter. They lost in the lower court, but they’ll now get another kick at the can.
A bit of context: The Ontario government slashed its target for reducing greenhouse gas emissions back in 2018. The province is still committed to getting GHG emissions 30% below 2005 levels — but that’s a big step down from the government’s pre-2018 target and well below what scientists say the fight against climate change requires.
The claimants argued the less stringent target poses an arbitrary and grossly disproportionate threat to the safety of Ontarians. And they said it violates the Charter’s equality guarantee, because climate change affects Ontario’s youngest residents more than others.
This was the first Canadian case of its kind to make it to a full evidentiary hearing.
In the Superior Court: Justice Vermette dismissed the application, calling it a “positive rights” claim that would force the province to act. She said the claimants couldn’t use the Charter to secure more stringent emission targets.
[The principles of arbitrariness and gross disproportionality don’t apply] in a case like this one where the issue under section 7 is that the government did not go far enough.
[Nor does section 15 of the Charter] impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation. Were it otherwise, courts would be impermissibly pulled into the complex legislative domain of policy and resource allocation, contrary to the separation of powers.
But according to the Court of Appeal, it’s not a matter of forcing Ontario to act — the province already acted when it committed to reducing greenhouse gas emissions. It’s a matter of deciding whether Ontario’s chosen target complies with the Charter.
[W]here the state does legislate, it must do so in a constitutional manner that complies with the Charter.
[The appellants are not arguing] that the Target does not go far enough. The appellants are not challenging the inadequacy of the Target or Ontario’s inaction, but rather argue the Target itself, which Ontario is statutorily obligated to make, commits Ontario to levels of greenhouse gas emissions that violate their Charter rights.
The Court cited a few cases showing that the Supreme Court of Canada is no stranger to striking down half-measures.
Like Chaoulli, where the Court struck down a ban on private healthcare insurance because Quebec’s public healthcare monopoly offered substandard service.
And the 2018 pay equity decisions, which struck down portions of Quebec’s Pay Equity Act for poorly responding to workplace inequities.
Since the application judge’s “overarching error that this was a positive rights case” tainted her analysis, the case needs to go back for a new hearing.
Big picture: There’s a lot riding on the rehearing (or an SCC appeal if one comes first). There’s been a wave of similar lawsuits around the world. And with a green light from the Court of Appeal, more could follow soon.
HEARSAY ROUNDUP
🗣️ Alberta wants to ensure no other professionals get the Jordan Peterson treatment. Premier Danielle Smith promised reforms to stop professional regulators from pushing an “official version of the truth” on their members, saying regulated professionals should have the freedom to express their personal views.
💰 FINTRAC issued a special bulletin warning lawyers about getting wrapped up in money laundering schemes.
💾 Chief Justice Joyal of the Manitoba Court of King’s Bench called the province’s e-filing system shameful, saying it lags behind those in other jurisdictions. He attributes delayed proceedings to the dated tech.
😤 Justice Drapeau of the New Brunswick Court of Appeal scolded the province’s outgoing justice minister for failing to follow a court order. He said the minister was effectively in contempt — something Justice Drapeau hasn’t seen in his 25 years on the Court.
OBITER DICTA
"Being a lawyer is super easy, you just read the law and apply it."
The law:
— Lawyer Issues (@LawyerIssues)
7:07 AM • Oct 24, 2024
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