Today marks an interesting anniversary in the Court’s jurisprudence. Ten years ago today, the Supreme Court released its decision in the case of U.F.C.W., Local 1518, v. KMart Canada Ltd., [1999] 2 S.C.R. 1083. There, a unanimous Court held that a law prohibiting union members from distributing leaflets at secondary sites during a labour dispute was an unjustified violation of s. 2(b) of the Charter.

This ruling is also notable, however, for the following passage. At paragraph 43, Cory J. wrote for the Court that “it is well nigh impossible to distinguish between the situation whereby consumers are informed and persuaded not to buy through leafleting at the place of purchase, and the situation whereby the same consumers are informed and persuaded not to buy through leaflets delivered to the mailbox, newspaper advertising, internet mailing or billboards and posters.”

With these words, Cory J. ushered in the dawn of a new era in the Court’s jurisprudence. Specifically, this ruling marks the first appearance of the word “internet” anywhere in our top court’s jurisprudence. And so it was, in the dying days of the millennium and with Antonio Lamer’s decade-long tenure as Chief Justice drawing to a close, that the Supreme Court of Canada officially stepped into the internet age.
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Ricci v. DeStefano, a case concerning reverse discrimination in the form of a denial of promotions to a group of white firefighters who did disproportionately well on qualifying exams, is the United States Supreme Court’s latest decision and arguably its most important of the year. The decision sought to resolve the conflict between eradicating intentional “disparate-treatment” discrimination and unintentional “disparate-impact” discrimination (the latter form being recognized as “adverse effect” discrimination by the Supreme Court of Canada in Andrews v. Law Society of British Columbia (1989)), where attempting to eradicate disparate-impact discrimination against ethnic minorities may necessitate engaging in the disparate treatment of majority whites. The case was also important for its involvement of recent Supreme Court nominee Sonia Sotomayor, whose summary decision at the 2nd Circuit Court of Appeals was reversed by this Supreme Court decision only five weeks prior to Justice Sotomayor’s eventual August 6 confirmation.

Facts

In November and December of 2003 the New Haven (Connecticut) Fire Department administered written and oral examinations to fill vacant lieutenant and captain positions. At a cost of $100,000 to the City, these objective tests had been meticulously developed by an outside firm that specialized in designing entry-level and promotional examinations for fire and police departments. Minority firefighters were deliberately oversampled at every stage of the construction and compilation of the exams, such as ride-along’s and interviews with high-ranking firefighters, in an attempt to ensure that the exams would not be unintentionally biased in favour of white test-takers. Furthermore, two-thirds of the exam assessors pool (30 high-ranking firefighters from outside of Connecticut) was deliberately composed of minorities.

77 candidates completed the lieutenant examination, of which 34 (44%) passed. By race, 25 (58%) of the 43 whites, 6 (32%) of the 19 blacks, and 3 (20%) of the 15 Hispanics passed. 41 candidates completed the captain exam, of which 22 (54%) passed. By race, 16 (64%) of the 25 whites, 3 (38%) of the 8 blacks, and 3 (38%) of the 8 Hispanics passed. The number of vacant lieutenant and captain positions allowed for the 10 highest-scoring lieutenant candidates and the 9 highest-scoring captain candidates to be eligible for immediate promotions. The 10 highest-scoring lieutenant candidates were all white. The 9 highest-scoring captain candidates were 7 whites and 2 Hispanics. Altogether, of the 68 whites, 27 blacks, and 23 Hispanics who completed either the lieutenant or captain examinations, 17 whites and 2 Hispanics achieved eligibility for immediate promotion to those positions.

Based on the statistical disparity of test results, wherein whites greatly outperformed minority candidates, the City expressed concern that the tests had racially discriminated. Vociferous public debate ensued, with the City confronted with arguments both for and against certification of the test results — and threats of a lawsuit either way. The Civil Service Board ultimately voted against certification, throwing out the results of the tests. Read the rest of this entry »

It appears Canadian citizenship isn’t worth as much as we might like to think. The sagas of Abousfian Abdelrazik, Suaad Haji Mohamud, and Omar Khadr demonstrate that, if the government thinks you’re a terrorist, you’ll need to get most of the Canadian public onside before the Department of Foreign Affairs will consider helping you.

While Abdelrazik and Mohamud are finally back in Canada, Khadr’s long battle to extricate himself from the legal black hole of Guantanamo Bay took yet another turn last week when the Supreme Court of Canada announced it was granting the federal government’s request for an expedited appeal in Prime Minister of Canada et al. v. Omar Ahmed Khadr.

After losing a series of American legal battles challenging the Guantanamo tribunals themselves, Khadr’s lawyers switched both tactics and countries when they sought judicial review of Prime Minister Stephen Harper’s refusal to seek Khadr’s repatriation from the American naval base. They argued that the Canadian government had an ongoing policy against requesting Khadr’s repatriation; this policy, in turn, offended a principle of fundamental justice and breached Khadr’s s. 7 Charter rights. The appropriate remedy pursuant to s. 24(1) of the Charter was an order requiring the Crown to request that Khadr be sent back to Canada.
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The avarice of lawyers seems to be a widely-shared belief. Not in vain has the so-called legal profession received too many critiques around the world, being as they are often the most radical adversaries of the lower classes. I still remember a cartoon I once saw which said: “Little money… little law,” evidently suggesting (and dramatically describing) those who have money to pay fancy and well-trained lawyers will have greater chances of being satisfied in a trial. Are these unfair sayings?

Chile’s Bar Association (”El Colegio de Abogados”) recently filled a petition before the Constitutional Court, arguing the unconstitutionality of mandatory free legal advice (article 595 of the C.O.T.). According to a legal regulation which lasted almost 60 years - but which can be traced back in the Middle Ages, according to Fernando Orellana Torres - lawyers were bound to provide free legal assistance to people living in conditions of poverty who could not afford a private lawyer. Lawyers were designated by a lot conducted by the Judiciary and, once assigned, were “on duty” for a month - and were required to continue providing legal advice until the end of their client’s case. In practical terms, free legal advice never posed a serious demand on lawyers since it coexisted with the Legal Assistance Service - a government-rooted office, which also provides legal counsel to people who cannot afford a private lawyer. In this latter case, law students - who did not get paid - carried out most of the work. (In fact, this so-called “legal practice” lasts for six months, and is a necessary requirement to becoming a lawyer in Chile.)

Criminal cases (including those before military trials) might have presented a different situation; lawyers designated to their “on duty” role were normally consulted in criminal cases, while in labor and civil cases, people preferred to ask the Legal Assistance Service. Currently, free legal advice in criminal cases is assumed by a public office (“Defensoría Penal Pública”) - implemented with the reform to the criminal proceedings which started in 2000.
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The Supreme Court’s Engagement with s. 2(a)

The Supreme Court of Canada’s recent ruling in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, has already inspired much critical commentary, both in the mainstream media and on TheCourt.ca because of its atypically distressing outcome for rights claimants and dubious appraisal in a popular newspaper. What may prove of especial interest to academics, however, is the ruling’s brief engagement with the Charter’s fundamental freedom of conscience.

Despite the clear wording of the Charter promising everyone “freedom of conscience and religion”, the Supreme Court has only ever heard appeals which primarily engage the latter – that is, the freedom to exercise beliefs religiously motivated. It is still yet to hear a freedom of conscience challenge which does not also involve religion.

Indeed, duly appreciating that it may be seldom asked to do so, the Supreme Court has very rarely engaged freedom of conscience as functionally distinct from freedom of religion. Its limited comments on the subject have often come in minority judgments or otherwise in obiter. Although Alberta v. Hutterian Brethren does not officially endorse prevailing interpretations of freedom of conscience, I would argue that its decision does accord with the line of cases considering the content of our hitherto unexplored s. 2(a) guarantee.

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On June 12, 2009, the Alberta Court of Appeal released its much-awaited insurance cap decision in Morrow v. Zhang, 2009 ABCA 215. In 2004, the province of Alberta passed legislation, the Minor Injury Regulation, AR 123/2004 (MIR), which imposed a $4,000 cap on non-pecuniary damages for “minor injuries” as defined under the MIR. The Alberta Court of Appeal overturned the lower court decision concluding that when the MIR was assessed in light of the entire minor injury legislative scheme, it held up to constitutional scrutiny. This decision has long-term consequences for insurers and claimants in Alberta.

Background

Peari Morrow and Brea Pedersen, the respondents, were injured in two separate automobile accidents. Morrow suffered soft tissue injuries to her neck and upper back, which was diagnosed as a grade two whiplash associated disorder (WAD II). Pederson also suffered soft tissue injuries to her neck, shoulders, back and wrists. Despite treatments and medication, both respondents continued to suffer pain and discomfort in their everyday life and household chores.

During the trial, the judge noted that the respondents would have received non-pecuniary damages in excess of $4,000, if the legislation did not stipulate the $4,000 cap. The respondents challenged the constitutionality of the cap stating that it violated section 7 and section 15 of the Charter.
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The Court recently upheld the judgement of the Court of Appeal for Ontario in Nolan v. Kerry (Canada) Inc., 2009 SCC 39. The case involved the treatment of surplus in a pension plan. A usually obscure area of labour and administrative law, pension plans and pensions generally were weekly news during 2008 and 2009, and are shaping up to be a future election issue. This is because most (about two-thirds) Canadians do not have private, employer-sponsored pension plans, and those plans that do exist have had a very difficult few years.

The Kerry decision actually belongs to a previous era - the era of pension plan surpluses that broadly speaking began in the late 1980s and lasted until about 2001, when we saw the emergence of plan deficits. The issues in Kerry emerged during the era of surplus, and revolve around the role of trust law in pension plans.

In a nutshell, the question during this era was: to what extent can “exclusive benefits” language in a pension trust document preclude the use of trust assets for any other use? Several cases since 1987 have sketched out answers; Kerry is the most recent in this line of cases. The specific issues in Kerry were whether assets in the trust fund could be used to pay for expenses of the administration of the trust, whether they could be used to pay for employer contributions to a related pension plan, and whether the costs of bringing claims on both these issues should be paid out of the fund.

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Protecting Political and Conscientious Speech

Last month the Supreme Court released judgment in Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, ruling that the transit authority unjustifiably limited the claimants’ freedom of expression by prohibiting political advertisements from being displayed on the sides of buses. The case is a victory for civil libertarians, relieved to see s. 2(b) of the Charter withstand considerable incursion by the offending authority’s policies.

The facts of the case are well-known and described here by Chris Donovan for TheCourt.ca. For our purposes, I will provide a brief gloss of his excellent summary. The claimants attempted to purchase advertising on horizontal panels running along the sides of public buses operated by the appellant transit authority. One proposed ad, which was characteristic of the content and tone of the other impugned ads, featured a silhouette of a concert crowd with the caption “ROCK THE VOTE BC.com”.

The transit authority permitted ads which “communicate information concerning goods, services, public service announcements and public events,” although not those which are “likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy.” Ads which “advocat[e] or oppos[e] any ideology or political philosophy” or which “conve[y] information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office” are especially not permitted.

At issue was whether the transit authority could, in doing so, lawfully circumscribe the content of the claimants’ otherwise free expression in a public location.  By ruling that it could not, the Supreme Court deserves praise for protecting Charter rights from undue government intrusion. Just as pertinently, the SCC’s decision may pre-empt religious objections to atheist bus ads, since their contentious subject matter seems analogous to that of the voter recruitment ads permitted by Greater Vancouver.

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The Ontario Court of Appeal’s unanimous decision in Kerry (Canada) v. DCA Employees Pension Committee, 2007 ONCA 416, was welcome news for Canadian employers everywhere. Nevertheless, in light of the SCC’s decision to hear an appeal of the case, Canadian employers held their breath in preparation for possible changes to come. Many theorists had ruminated on the outcome of the appeal and the potential of additional costs to employers administering a pension plan. With such fatalistic prospects, employers can now breathe a huge sigh of relief at the SCC’s decision in Nolan v. Kerry (Canada), 2009 SCC 39, to dismiss the appeal and reaffirm the Ontario Court of Appeal’s finding.

The SCC supported three main conclusions. First, where the pension plan has an actuarial surplus, the company may use this surplus to pay “contributed holiday” obligations. Second, where the plan agreement is silent, reasonable pension plan expenses can be paid out from the pension fund. Finally, where the defined contributions portion was not part of a separate and distinct plan, the surplus from the defined benefit portion can be used to pay the defined contribution obligations. An analysis of this tripartite decision is detailed below.
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