BIBLIOGRAPHY OF BOOKS, ARTICLES, JURISPRUDENCE, AND OTHER MATERIALS BY
HON. GERARD V. LA FOREST
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ACKNOWLEDGMENTS
We wish to express thanks to the following individuals who assisted the compiler in preparing this bibliography: to Matt Hiltz, LL.B. candidate, UNB Faculty of Law, for scanning and converting portions of the bibliography that were never previously available electronically; to Heather Doherty, Law Library Assistant, for her excellent proofreading; and to Brent Timmons, LL.B., UNB Faculty of Law, for preparing the annotations for the listed judgments.
BOOKS AND REPORTS
(COMPILER'S NOTE: Some materials may be accessible at your local public, university or other library. Please check with a librarian.)
Disallowance and Reservation of Provincial Legislation (Ottawa: Department of Justice, 1955).
Report on the Rights of the Provinces of Nova Scotia, New Brunswick and Prince Edward Island to the Ownership
of Adjacent Submarine Resources (Fredericton: s. n., 1959).
Natural Resources and Public Property under the Canadian Constitution (Toronto: University of Toronto Press, 1969).
(With others) Le territoire quebecois (Montréal: Les Presses de l'Université de Montréal, 1970).
(With associates) Water Law in Canada - the Atlantic Provinces (Ottawa: Department of Regional Economic Expansion, 1973).
Extradition To and From Canada (New Orleans: Hauser Press, 1961) and 2nd ed. (Agincourt: Canada Law Book, 1977).
The Ambit of Criminal Law (microfiche of unpublished Law Reform Commission of Canada report dated 1980)
(Buffalo: W. S. Hein, 1981).
The Allocation of Taxing Power under the Canadian Constitution (Toronto: Canadian Tax Foundation, 1967) and 2nd ed. (1981).
The Kouchibouguac Affair: the Report of the Special Inquiry on Kouchibouguac National Park (s. i., s. n., 1981).
(With Judge Graydon Nicholas) Report of the Task Force on Aboriginal Issues (Fredericton: New Brunswick
Task Force on Aboriginal Issues, 1999).
Promoting Equality: a New Vision, Report of the Canadian Human Rights Act Review Panel, Hon. Gerard v. La Forest, Chair (Ottawa: Department of Justice Canada, 2000).
Arbitration between Newfoundland and Labrador and Nova Scotia Concerning Portions of the Limits of their Offshore Areas as Defined in the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada-Newfoundland Atlantic Accord Implementation Act: Award of the Tribunal in the First Phase (Ottawa: Government of Canada, 2001).
Arbitration between Newfoundland and Labrador and Nova Scotia Concerning Portions of the Limits of their Offshore Areas as Defined in the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada-Newfoundland Atlantic Accord Implementation Act: Award of the Tribunal in the Second Phase (Ottawa: Government of Canada, 2002).
Opinion – Canada Customs and Revenue Agency Passenger Name Record (Ottawa: Privacy Commissioner of Canada, 2002).
Opinion – Video Surveillance (Ottawa: Privacy Commissioner of Canada, 2002).
The Offices of the Information and Privacy Commissioners: the Merger and Related Issues, Report of the
Special Advisor to the Minister of Justice (Ottawa: Department of Justice Canada, 2005).
ARTICLES, PAPERS, PRESENTATIONS, AND NOTES
(COMPILER'S NOTES: Some materials may be accessible at your local public, university or other library. Please check with a librarian.
Because some users of this bibliography may not be familiar with the abbreviations of law journals, the full title of
each journal has been given rather than the abbreviation.)
"Bonne Entente" (1947-48) 1 University of New Brunswick Law Journal 44.
"Disallowance of Provincial Legislation" (1956) 34 Canadian Bar Review 632.
"Options to Buy and Lease Land and the Rule against Perpetuities" (1956) 9 University of New Brunswick Law Journal 9.
"Rights of Landowners in New Brunswick Respecting Water in Streams on or Adjoining Their Lands" (1957) 10 University of
New Brunswick Law Journal 21. Republished with modifications under the title "Riparian Rights in New Brunswick" in
(1960) 3 Canadian Bar Journal 135.
"Filing Under the Conditional Sales Act: Is It Notice to Subsequent Purchasers?" (1958) 36 Canadian Bar Review 387.
"Some Aspects of the Writ of Fieri Facias" (1959) 12 University of New Brunswick Law Journal 39.
"Real Property, Options, Rights of Pre-emption, Equitable Interest in Land, Personal Contractual Obligation,
Rule against Perpetuities: Comment on Frobisher Ltd. v. Canadian Pipelines and Petroleum Ltd., et al., [1960] S.C.R. 126"
(1960) 38 Canadian Bar Review 595.
"May the Provinces Legislate in Violation of International Law?" (1961) 39 Canadian Bar Review 78. Also reproduced
in J.-G. Castel, International Law Chiefly as Interpreted and Applied in Canada (Toronto: University of Toronto Press, 1965) 55.
"Mens rea dans les infractions de chasse; Mens Rea and Hunting Offences" (1962) 4 Criminal Law Quarterly 437.
"Canadian Inland Waters of the Atlantic Provinces and the Bay of Fundy Incident" (1963) 1 Canadian Yearbook
of International Law 149.
"The Meaning of 'Public Harbours' in the Third Schedule to the British North America Act, 1867" (1963) 41 Canadian Bar Review 519.
"Boundary Waters Problems in the East", a paper delivered in June, 1961 at the Duke University Commonwealth Center, in
David R. Deener, ed., Canada-United States Treaty Relations (Durham: Duke University Press, 1963) 28.
"The Delimitation of National Territory: Re Dominion Coal Company and County of Cape Breton" (1964) 2 Canadian
Yearbook of International Law 233.
"Community Planning Law in New Brunswick", (1964) 20 New Brunswick Municipal Monthly, no.7, July 1964 & no.8, Aug. 1964. Republished with modifications in (1966) 16 University of New Brunswick Law Journal 16.
Comment on "Problems of Economic Policy" in P.-A. Crepeau and C.B. MacPherson, eds., The Future of Canadian
Federalism – l’Avenir du federalisme canadien (Toronto: University of Toronto Press, 1965) 77.
"Towards a Reformulation of the Law of State Succession", a paper delivered April, 1966, to the American
Society of International Law in Washington, D.C, in (1966) Proceedings of the American Society of International Law 103.
"The History and Place of the Registry Act in New Brunswick Land Law" (1970) 20 University of New Brunswick Law Journal 1.
"Interprovincial Rivers" (1972) 50 Canadian Bar Review 39.
"Water Law of the Future" (1973) 51 Canadian Bar Review 307.
"Jurisdiction Over Natural Resources: Provincial and Federal" in Philippe Crabbe and Irene M. Spry, Natural Resource
Development in Canada: Multi-Disciplinary Seminar (Ottawa: University of Ottawa Press, 1973) at 211.
"The Labour Conventions Case Revisited" (1974) 12 Canadian Yearbook of International Law 137.
(With Christiane Verdon) "Les droits de la femme en droit prive: Les provinces canadiennes de common law"
(1974) 28 Revue juridique et politique indépendance et cooperation 901.
"Delegation of Legislative Power in Canada" (1975) 21 McGill Law Journal 131.
(With Gaylord Watkins) "The Impact on Federal Administrative Tribunals of Recent Developments in
Administrative Law" in The Conduct of Hearings by Federal Administrative Agencies (Toronto: Department of
Continuing Legal Education, Law Society of Upper Canada, 1977) 4. (Edited proceedings from the program held in
Ottawa on June 23, 1976).
"Independent Administrative Agencies: A New Perspective - Les organismes administratifs independants: Une
perspective nouvelle," address, plenary session, 59th Annual Meeting of the Canadian Bar Association, 1977,
in (1977) 60 Year Book of the Canadian Bar Association 133.
"The Developing Concept of Procedural Fairness", in Seminar for Members of Federal Administrative Agencies,
March 19-20, 1979 (Ottawa: Law Reform Commission of Canada, 1979) at 3.
"Towards a New Canada: The Canadian Bar Association's Report on the Constitution" (1979) 57 Canadian Bar Review 493.
"Communicating the Law" (1981) 19 Transactions of the Royal Society of Canada, Series 4, 3.
"Patriation of the Canadian Constitution", presentation as expert witness to the Joint Committee of the Senate
and House of Commons on the Constitution (January 1981) in Minutes of Proceedings and Evidence of the Special
Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, issue no. 34,
Thursday, January 8, 1981, 8.
"The Canadian Charter of Rights and Freedoms: An Overview" (1983) 61 Canadian Bar Review 19.
"The Court and the Constitution" (1983) 32 University of New Brunswick Law Journal 285.
"Bicentennial of the Supreme Court of New Brunswick, notes for an address given for the Court of Appeal
of New Brunswick" (1985) 34 University of New Brunswick Law Journal iii.
"Some Impressions on Judging" (1986) 35 University of New Brunswick Law Journal 145.
"Integrity in the Practice of Law," address, Call to the Bar Ceremonies, Ottawa, 13 April 1987" (1987) 21 Law Society of
Upper Canada Gazette 41.
"The Use of International and Foreign Material in the Supreme Court of Canada" in Proceedings of the
1988 Conference of the Canadian Council on International Law (Ottawa: The Council, 1988) at 230.
"The Supreme Court: Some Institutional Issues", in Anne F. Bayefsky, ed., Legal Theory Meets Legal Practice
(Toronto: Carswell, 1988) 357.
"Rambling Recollections of the Law School" (1990) 39 University of New Brunswick Law Journal 224 .
"The Balancing of Interests under the Charter" (1992) 2 National Journal of Constitutional Law 133.
"The Law Journal in the School's Centennial" (1992) 41 University of New Brunswick Law Journal 1.
"The Courts and Administrative Action: Standards of Judicial Review of Administrative Action" (1992) Special Lecture
of the Law Society of Upper Canada 1.
"Overview of Fiduciary Duties" in Fiduciary Duties / Conflicts of Interest Symposium (Winnipeg: Law Society of Manitoba; Manitoba Bar Association; University of Manitoba Faculty of Law, 1993).
"Jean Beetz - Souvenirs d'un Ami" (1994) 28 Revue Juridique Themis 547.
"The Use of American Precedents in Canadian Courts" (1994) 46 Maine Law Review 211.
"Bill Ryan: Some Things I Remember" (1995) 44 University of New Brunswick Law Journal 15.
“The Expanding Role of the Supreme Court of Canada in International Law Issues” (1996) 34 Canadian Year Book
of International Law 89.
"Alternate Paths in Law" (1997) 46 University of New Brunswick Law Journal 53.
"One-on-One with Mr. Justice Gerard La Forest" Lawyer’s Weekly 17:19 (26 September 1997) 31.
G.V. La Forrest (sic) "Off-duty Conduct and the Fiduciary Obligations of Teachers" (1997) 8 Education and Law Journal 119.
"The Law Journal at 50" (1997) 46 University of New Brunswick Law Journal 3.
BOOK REVIEWS
Palmer's Company Guide: A Manual of Everyday Law and Practice, 36th ed. by J. Charlesworth (1949) 27 Canadian Bar Review 489.
The Constitution and What It Means Today, by Edward S. Corwin (1956) 34 Canadian Bar Review 1220.
Legislative, Executive and Judicial Power in Australia, by W. Anstey Wynes (1959) 37 Canadian Bar Review 244.
The Relation Between International Law and Municipal Law in the Netherlands and the United States, by L. Erades
and Wesley L. Gould (1963) 41 Canadian Bar Review 161.
Droit penal canadien, by Irenee LaGarde (1963) 23 Revue du Barreau 187.
Disarmament, by Lyman M. Tondel (1964) 14 University of New Brunswick Law Journal 7.
The Inter-American Security System and the Cuban Crisis, by Lyman M. Tondel. (1964) 14 University of
New Brunswick Law Journal 71.
The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain
Other International Organizations, by Jul jit Ahluwalia (1964) 19 International Journal 564.
Judicial Review of Legislation in Canada, by B. L. Strayer (1969) 34 Saskatchewan Law Review 352.
Contemporary Problems of Public Law in Canada: Essays in Honour of Dean F. C Cronkhite, by O. E. Lang
(1970) 8 Alberta Law Review 463.
Canadian Perspectives on International Law and Organization, by R. St. John MacDonald, Gerald L. Morris &
Douglas M. Johnston, eds. (1975) 53 Canadian Bar Review 442.
Treaty Law in Canada, by A. Jacomy-Millette (1976) 14 Canadian Yearbook of International Law 399.
The Court and the Constitution, by Peter Russell, Robert Decany, William Lederman, Noel Lyon and Dan
Soberman (1983) 32 University of New Brunswick Law Journal 285.
Collective Agreement Arbitration in Canada, by Earl Edward Palmer (1984) 33 University of New Brunswick Law Journal 410.
JURISPRUDENCE
JUDGMENTS FROM THE NEW BRUNSWICK COURT OF APPEAL (1981-1985)
(COMPILER'S NOTE: Some of these cases may be accessible in full text on the free public website of CanLII, the Canadian Legal Information Institute.)
CONTRACTS
Storey and Storey v. Hallmark Pool (1983), 45 N.B.R (2d) 183
(Contracts; Collateral Contracts; Formation of Contracts) A judgment for the court;
the defendant is liable for the deterioration of the plaintiff's pool. The liability arises
from guarantees issued in the defendant's advertisements, not from a formal
arrangement. The defendant offered the guarantee in its advertisements and the
plaintiffs accepted by entering into the formal contract with the defendant's agent.
The defendant cannot rely on limiting conditions for the guarantee because there
was no reasonable notice given of their existence.
Buckley Insurance Ltd v. Guardian Insurance of Canada (1983), 45 N.B.R. (2d) 66
(Contracts; Insurance; Damages) A judgment for the court; the respondent was in
breach of its contract with the plaintiff, and damages should be awarded
accordingly.
Thomas Equipment Ltd v. Sperry Rand Canada Ltd. (1982), 40 N.B.R. (2d) 271
(Contracts; Oral Representations; Limitation Clauses) A concurring judgment; on
the true construction of the contract, the defendants had an obligation to the
plaintiff that the limitation clause does not cover, and that obligation was not met.
The defendants are, therefore, full liable for failing to meet that obligation.
NB Tel v. John Maryon International Ltd. (1982), 43 N.B.R. (2d) 469
(Contracts; Remedies for a Breach and the Availability of a Tort Action) A judgment
for the court. When a party to a contract negligently performs, the other party may
bring an action in tort and contract concurrently, unless the tort action is precluded
specifically by the contract.
Distributeur Norbec Enrg. and Gagnon v. Daigle et Fils Ltee. (1984), 57 N.B.R. (2d) 269
(Contracts) A judgment for the majority; the owners could not recover rent for
the year, since the movers could not have been leased anyway.
CRIMINAL LAW
R. v. Morrison (1982), 42 N.B.R. (2d) 271
(Criminal Law; Evidence; Hearsay) A majority judgment ordering a new trial
because the trial judge erred in law as to what constituted reasonable notice.
R. v. Davidson (1984), 52 N.B.R. (2d) 338
(Criminal Law; Food and Drugs) A judgment for the majority reducing a doctor's
conviction for trafficking in drugs from three months to one month.
R. v. Stewart (1982), 40 N.B.R. (2d) 433
(Criminal Law; Police Powers of Arrest) A judgment for the court; the arrest of the
accused was made without authority because the arresting officer was outside the
officer's territorial jurisdiction.
R. v. Clements (1985), 58 N.B.R. (2d) 147
(Criminal Law; Practice) A majority judgment dismissing the defendant's appeal of
his conviction. The defendant had claimed the conviction could not be reasonably
supported by the evidence.
R v. Stevens (1984), 53 N.B.R. (2d) 63
(Criminal Law; Sentencing) A judgment for the court substituting a conviction for
assault, replacing a sentence for robbery by assault with intent to steal since there
was no evidence of the accused's intent to steal, and sentencing the appellant to five
years imprisonment.
R. v. Picard (1982), 43 N.B.R. (2d) 66
(Criminal Law; Sentencing) A majority judgment; the defendant's sentence for
robbery is increased from four to twelve months, plus one year probation.
R. v. Levesque (1982), 42 N.B.R. (2d) 506
(Criminal Law; Sentencing) A majority judgment allowing the appeal and increasing
the defendant's sentence for indecent assault.
FAMILY LAW
Re A.P.; Shea v. MacDonald (1983), 45 N.B.R. (2d) 379
(Family Law; Adoption; Discretionary Orders and Appellate Courts) A judgment for
the court. If a trail judge exercises his/her discretionary powers reasonably, an
appellate court should not interfere with that decision even though it may have
come to a different decision. The trial judge in the present case exercised his
discretion on a proper basis.
McLellan v. McLellan (1983), 50 N.B.R. (2d) 432
(Family Law; Divorce; Marital Property) A judgment for the court holding that
the court had no jurisdiction to divide non-marital property under the
Marital Property Act. The trial judge erred in dividing the marital property under s. 8
of the Act, but did not err in the division under s. 42 of the Act.
McEvoy v. McEvoy (1985), 58 N.B.R. (2d) 174
(Family Law; Divorce) A judgment for the court allowing the appeal in part; the trial
judge did not commit any reviewable error in his finding concerning the
divorce or the maintenance issue. The judge, however, erred in finding that the wife
was entitled to only 25% of one half the value of the matrimonial home.
Toussaint v. Toussaint (1982), 40 N.B.R. (2d) 541
(Family Law; Maintenance; Unconscionability) A judgment for the court affirming
the maintenance awarded at trial to the wife and son; a previous agreement was set
aside on the grounds of unconscionability.
LeBouthillier v. LeBouthillier (1982), 39 N.B.R. (2d) 244
(Family Law; Marital Property) A concurring judgment reassessing the value of the
marital home and awarding the wife an equal share of the property; such issues are
usually sent back to be decided at trial, there is sufficient evidence before the court
to decide the matter.
LABOUR LAW
New Brunswick v. Canadian Union of Public Employees et al. (1984), 55 N.B.R. (2d) 149
(Labour Law; Grievances) A judgment for the court quashing the adjudicator's
decision because, under s. 91(1)b of the Public Service Labour Relations Act,
adjudication is available only for disciplinary action resulting in discharge. The
adjudicator did not, therefore, have jurisdiction over written reprimands.
St. Anne-Nacawic Pulp and Paper Ltd v. Canadian Paperworkers Union, Local 219
(1982), 44 N.B.R. (2d) 10
(Labour Law; Collective Agreements) A judgment for the court; when parties to an
collective agreement include provisions to resolve disputes through arbitration in the
agreement, one of the parties cannot then avoid arbitration by bringing a civil action
against the other.
Modern Warehousing Ltd v. Canadian Brotherhood of Railway, Transport and General
Workers (1984), 55 N.B.R. (2d) 39
(Labour Law; Judicial Review; Unions) A judgment for the court; the approach taken
by the Industrial Relations Board may have contained certain procedural and
administrative flaws but it was clearly within the Board's jurisdiction. The Board's
jurisdiction is supported by a strong privative clause ousting the jurisdiction of the
Courts.
Campbellton, City of v. Canadian Union of Public Employees, Local 76 (1983),
49 N.B.R. (2d) 271
(Labour Law) A judgment for the court; once notice to bargain was given to the
union, the collective agreement was terminated and the 'bridge provision' did not
operate.
Pelts and C.U.P.E., Local 1251 v. New Brunswick (1985), 58 N.B.R. (2d) 68
(Labour Law; Jurisdiction) A judgment for the court. The Civil Service Act, not the
collective agreement, governed the dismissal therefore the adjudicator's original
award was correct.
Jardine Transport Ltd. v. Workers' Compensation Board (1984), 56 N.B.R. (2d) 387
(Labour Law; Workers Compensation) A judgment for the court dismissing the
appeal; under s. 70(3) of the Workers' Compensation Act, the operators were
deemed employees of the company, and demerit assessments should be calculated
on the company's payroll.
Chippin Bros. Ltd. v. United Food and Commercial Workers, Local 649 (1985),
58 N.B.R. (2d) 399
(Labour Law; Arbitration) A majority judgment allowing the appeal; the Board of
Arbitration did not err by implying in the collective agreement the tests of
completeness and reasonableness.
Irving Oil Ltd, Refinery Division v. Energy and Chemical Workers Union, Local 691
(1983), 47 N.B.R. (2d) 205
(Labour Law) A judgment for the court; the court has jurisdiction over the action by
the plaintiff for conspiracy to commit nuisance, trespass and negligence because the
actions, if proved, would constitute wrongs independent of the collective agreement.
These actions are not arbitrable.
New Brunswick Corporation v. C.U.P.E. Local 963 (1985), 59 N.B.R. (2d) 142
(Labour Law) A concurring judgment, quashing the Chairman of the Public Service
Relations Board's time extension order under s.55 of the Public Service Labour
Relations Act Regulation 6985, because s.55 conflicted with the collective agreement
and was inapplicable.
Re Campbell (1983), 49 N.B.R. (2d) 145
(Labour Law) A judgment for the court quashing the award in favour of the
grieving employee because the grievance was not filed within the time limit
specified in the collective agreement.
New Brunswick v. Canadian Union of Public Employees Local 1190 (1984),
56 N.B.R. (2d) 114
(Labour Law) A judgment for the court; when appointing from within the civil
service based on the merit of candidates, as required by s. 15 of the Civil Service Act,
experience may be considered in determining merit, but seniority cannot displace
merit.
MISCELLANEOUS
Omista Credit Union v. Thomson and Phillips (1982), 43 N.B.R. (2d) 628
(Company Law; Personal Liability and Corporate Contracts) A majority judgment;
the defendants, and not their company, were personally liable for the disputed
loans.
Clark v. Canadian National Railway Co. and New Brunswick (1985), 62 N.B.R. (2d) 277
(Constitutional Law; Jurisdiction) A majority judgment, holding that s. 342(1) of the
Railway Act was ultra vires the federal Parliament in so far as it attempted to
prescribe a limitation period for a common law negligence action.
Rio Hotel Ltd. v. Liquor Licensing Board (1983), 47 N.B.R. (2d) 436
(Constitutional Law; Provincial Jurisdiction) A judgment for the court; section
14(1)(a)(1) of the Liquor Control Act is ultra vires of the province because it encroaches
on the federal government's power to legislate over criminal law.
Canadian Pacific Ltd. v. Paul et al. (1983), 50 N.B.R. (2d) 126
(Courts; Indians; Real Property) A judgment for the court. An Indian Band may sue
for trespass to property reserved for its use. The company was entitled, prior to
Confederation, to obtain a right-of-way-over Crown land, but the railway never
obtained title. The court refused a permanent injunction for the railway but granted
a six month injunction to allow the railway to seek a permanent right-of-way.
Kennebecasis Park Ltd v. Gould (1982,) 39 N.B.R. (2d) 208
(Creditors and Debtors) A judgment for the court; the action is remitted for a
hearing on the amount of interest, if any, to be paid.
Re Leblanc et al. (1984), 54 N.B.R. (2d) 329
(Crown; Sales and Service Tax) A judgment for the court; the Federal Business
Development Bank, as a prior mortgagee, had priority to funds derived from a sale
of the debtor's property over a subsequent sales tax lien.
Beaulieu v. Gagnon (1982), 40 N.B.R. (2d) 433
(Damages; Torts; Trespass) A judgment for the court upholding the trial judge's
finding of trespass and altering the award of damages to the plaintiff with costs.
Philibert v. Lavoie (1984), 54 N.B.R. (2d) 225
(Damages; Torts) A judgment for the court dismissing the defendant's appeal from a
finding of sole responsibility for the plaintiffs injuries and affirming the damages
awarded.
White et al. v. Smith Estate (1984,) 54 N.B.R. (2d) 293
(Deeds and Documents; Restitution) A concurring judgment; Retention of the
securities by the Estate was an unjust enrichment and the plaintiffs releases did not
bar the children's claim to the value of the securities.
Roynat Ltd. v. Sommerville, et al. (1982), 40 N.B.R. (2d) 578
(Deeds; Material Alterations) A concurring judgment dismissing the appeal; the
history of alteration of deeds and documents that a subsequent material alteration
avoided an instrument; conditions for material alterations.
L.E. Shaw v. Berube-Madawaska Contractors (1982), 40 N.B.R. (2d) 374
(Basements; Public Policy) A judgment for the court; the municipality's easements
were not immune from liens on the ground of public policy; water sewage easements
owned by a municipality within a housing division were subject to mechanics liens.
R. v. Phillips and Phillips (1981), 37 N.B.R. (2d) 72
(Evidence) A concurring judgment, taking judicial notice of the fact that properly
operation headlights on a motor vehicle are capable of being used to attract or locate
game.
Minister of Transportation v. Verrot (1983), 47 N.B.R. (2d) 48
(Expropriation; Compensation Factors) A judgment for the court; the Property
Compensation Board did not err in failing to consider that lack of access decreased
the value of the property because the lack of access would not have prevented
development of the property.
R. v. Polchies and Paul (1982), 43 N.B.R. (2d) 449
(Fish and Game; Indian and Inuit Rights; Treaty Rights) A judgment for the court;
Natives do not have the right to hunt and fish at all times of the year in New
Brunswick off Indian Reserves. They are bound by the Fish and Wildlife Act; Native
treaties ought to be liberally construed.
R. v. Maillet (1984), 53 N.B.R. (2d) 69
(Fish and Game) A judgment for the court; the offence of possession of undersized
lobsters is one of strict liability, therefore, the accused's intention is irrelevant. The
appeal is allowed and a new trial ordered.
Sweet and Sweet v. Co-operative Fire and Casualty Co. (1983), 46 N.B.R. (2d) 189
(Insurance; Automobile Insurance) A judgment for the court. The disability
insurance benefits the plaintiff received through his trade union were not 'available
by reason of his employment' and therefore do not affect the defendant's liability.
Pipes v. C.N.A. Insurance Co. (1982), 43 N.B.R. (2d) 160
(Insurance; Evidence; Burden of Proof) A judgment for the court; the beneficiary
failed to meet the requisite burden of proof in establishing that the insured's death
was an accident and not the result of illness.
Vinneau v. Arsenaut (1982), 41 N.B.R. (2d) 82
(Limitations of Actions; Professional and General Negligence) A judgment for the
court upholding a lower court judgment finding the defendant, a barrister, liable to
the plaintiff for professional negligence.
M. Robert Birmingham Ltd. v. Village of Perth-Andover (1981), 38 N.B.R. (2d) 208
(Mechanics Lien; Restitution) A judgment for the court dismissing the appellant's
claims for restitution as without foundation under the Mechanic's Lien Act.
Saunders v. Rothesay, Town of (1984), 54 N.B.R. (2d) 266
(Municipal Law; Police) A concurring judgment; although the police chief was an
officer of a municipality engaged in the administration of the municipality, he was
not 'necessary for the administration of the municipality', and therefore his
dismissal was valid.
Bernier v. Theriault (1982), 40 N.B.R. (2d) 136
(Negligence; Causation; Evidence) A judgment for the court allowing the defendant's
appeal from the trial judge's finding of liability; the plaintiff did not prove causation;
also noted the role of appellate judges in findings of fact and the nature of causation
in negligence.
Breau et al. v. Soucy and Cyr (1982), 41 N.B.R. (2d) 20
(Nuisance; Operation of Injunctions) A judgment for the court; an application for a
stay of the operation of an injunction pending an appeal ought to be granted in the
interests of justice.
Societe Des Acadiens v. Minority Language School Board (1984), 54 N.B.R. (2d) 198
(Practice; Appeals) A judgment for the court; the court of appeal exercised its
inherent jurisdiction to grant leave to appeal to a person who alleges that he has
been aggrieved or prejudiced in an action in which he is not a party.
R. v. Bantaylor Trading Co. (1983), 45 N.B.R. (2d) 394
(Practice; Persons who can sue and be sued) A judgment for the court; there was
admissible evidence before the Trial Judge sufficient to establish a prima facie case
that the respondent was incorporated.
Routh, Galard and Coburn v. Bowes et al. (1983), 47 N.B.R. (2d) 425
(Real property; Waters) A judgment for the court. In the case of a grant of land on
the shore of a non-tidal river there is a presumption that the grant extends ad
medium filum aquae. The presumption is merely a rule of construction and the
parties may override it. There is nothing in the deed at present to override this
presumption.
Re Estabrooks Pontiac Buick; Re Fisherman's Wharf Ltd. (1983), 44 N.B.R. (2d) 201
(Sales Tax; Tax Lien; Statutory Interpretation) A majority judgment determining the
meaning of s.19(1)of the Social Services and Education Tax Act by using both
English and French versions of the statute, reviewing the legislative history of the
section, and using the Interpretations Act.
Fundy Ventilation v. Brunswick Construction et al. (1982,) 40 N.B.R. (2d) 484
(Statutory Interest; Mechanics Lien) A judgment for the court dismissing the appeal;
the defendant prematurely released the holdback; the duty of appeal courts
regarding findings of fact by a trial judge.
Plant and Plant v. Lanyon (1982), 43 N.B.R. (2d) 205
(Torts; Negligence; Standard of Care; Burden of Proof) A judgment for the court
allowing the appeal and reapportioning the damages from 60% to 75% against the
defendant.
R. v. Schelew (1984 ), 52 N.B.R. (2d) 142
(Trade and Regulation) A judgment for the majority dismissing the appeal and
upholding the acquittal of the defendants who were charged under the Combines
Investigation Act.
Davis v. Davis and Davis (1982), 41 N.B.R. (2d) 590
(Trusts; Tenancy in Common) A judgment for the court dismissing the appeal. The
property at issue was held in trust for the plaintiff and her husband as tenants in
common.
Randall v. Nicklin (1985), 58 N.B.R. (2d) 414
(Undue Influence; Interest) A judgment for the court; the circumstances of the case
raise the presumption of undue influence, but the presumption was rebutted by the
obtainment of independent legal advice. There was an implied trust which the
niece/defendant held the property as a trustee for the benefit of the plaintiff during
his lifetime, after which it was to go to the survivor.
Mean and Mean v. New Home Certification Program of the Atlantic Provinces (1984),
54 N.B.R. (2d) 221
(Warranties) A judgment for the court dismissing the defendant's appeal from a
finding of liability against it, under the warranty program provided for the plaintiffs
home. The court also increased the damages awarded to the plaintiffs.
Director of Investigation and Research, Combines Investigation Act v. Board of
Commissioners of Public Utilities of New Brunswick and N.B. Telephone Co. Ltd (1984),
53 N.B.R. (2d) 353
(Practice; Trade Regulation) A concurring judgment; in the present case the
respondent failed to exercise its discretion to hear the Director because it believed it
could not under the law do so. The Board was in error. The Board's decision should
be quashed and the Director allowed to intervene.
Marche De Poission v. Commission D'Amenagement (1984), 52 N.B.R. (2d) 91
(Administrative Law; Reasons for Decisions) A judgment for the court, quashing the
Provincial Planning Appeal Board's decision. The Board did not give adequate
reasons for its decision.
Oromocto Development Corp v. Oromocto Property Developments (1981),
37 N.B.R. (2d) 464
(Agency; Estoppel; Contracts) A judgment for the court dismissing the
appeal; finding agency and estoppel, the defendant breached the agreement.
Caisse Populaire D'Inkerman Ltee. v. Dorion (1985), 61 N.B.R. (2d) 123
(Banks and Banking; Barristers and Solicitors) A majority judgment allowing in part
an appeal of a solicitor found liable for professional negligence, finding the plaintiff
contributorily negligent and reducing the damages against the solicitor.
Lodger's International Ltd v. O'Brien (1983), 45 N.B.R. (2d) 342
(Administrative Law; Boards and Tribunals; Statutory Interpretation) A judgment
for the court; the N.B. Human Rights Commission lacked the authority under the
Human Rights Act to issue subsequent orders with time limitations, therefore the
second order is quashed.
JUDGMENTS FROM THE SUPREME COURT OF CANADA (1985-1997)
(COMPILER'S NOTE: Some of these cases may be accessible in full text on the free public website of CanLII, the Canadian Legal Information Institute.)
ADMINISTRATIVE LAW
Bell v. Canada (Human Rights Commission); Cooper v. Canada, [1996] 3 S.C.R. 854
(Administrative Law; Commissions and Tribunals) A judgment for the Majority: The
Canadian Human Rights Commission is limited in its jurisdiction by the Human
Rights Act, and cannot subject the Act's provisions to constitutional scrutiny.
CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983
(Administrative Law; Judicial Review; Appeals) A concurring judgment; Where, as in
the present case, and administrative tribunal is protected by a privative clause, its
decisions should only be reviewed if that Board has made an error in interpreting its
jurisdiction, or it has made an error of law. Here the Board had 'the jurisdiction and
the decision was not patently unreasonable.
British Columbia (Milk Board) v. Grisnich (c.o.b. Mountainview Acres),
[1995] 2 S.C.R. 895
(Administrative Law; Subordinate Legislation) A concurring judgment: There is not
precedent for holding that an administrative body must consciously identify the
source of power it is relying on, in order for the exercise of that power to be valid.
When administrative bodies act it is to be presumed that they believe themselves to
be within the bounds of their statutory authority.
CONFLICT OF LAWS
Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077.
(Conflict of Laws, Constitutional Law) A judgment for the majority: Analyzing
constitutional rules of various countries before extending the principle in the U.S.
constitution of full faith and credit to judgments rendered in sister provinces. “The
courts in one province should give full faith and credit, to use the language of the
United States Constitution, to the judgments given by a court in another province or
territory, so long as the court has properly, or appropriately, exercised jurisdiction
in the action.”
Hunt v. T&N plc, [1993] 4 S.C.R. 289
(Conflict of Laws, Constitutional Law) Analyzing whether the provisions of the Quebec
Business Concerns Records Act, R.S.Q., c. D-12, a "blocking statute", provide a "lawful excuse"
under Rule 2(5) of the British Columbia Rules of Court, such that Quebec defendants to a civil
action in British Columbia can refuse to comply, as required by Rule 26 of the
British Columbia Rules of Court, with a demand for discovery of documents.
The fundamental issue is whether this statute is ultra vires or is constitutionally
inapplicable to a judicial proceeding in another province.
CONSTITUTIONAL LAW
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island;
Reference re Independence and Impartiality of Judges of the Provincial Court of Prince
Edward Island, [1997] 3 S.C.R. 3
(Constitutional Law; Judicial Independence) Dissenting: Our constitution expressly
contemplates both the power of judicial review and guarantees of judicial
independence. Given that the express provisions dealing with constitutional
protection for judicial independence have specifically spelled out their ambit, it
seems strained to extend the ambit of this protection by reference to a general
preambular statement.
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010
(Constitutional Law; Aboriginal Rights; Aboriginal Title) Aboriginal title is a sui
generis interest based on the continued occupation and use of the land as part of the
people's traditional way of life. The key factors for recognizing aboriginal rights are met in
this case. Furthermore, the province has no authority to extinguish aboriginal rights.
R. v. Gladstone, [1996] 2 S.C.R. 723
(Constitutional Law; Aboriginal rights; Criminal Law) Dissenting: The Heiltsuk do
not have an aboriginal right to barter and trade herring spawn or kelp.
R. v. Côté, [1996] 3 S.C.R. 139
(Constitutional Law; Aboriginal Rights; Native Fishing Rights) A concurring
judgment: The traditional use by natives that has continued from pre-contact time
of a particular area for a particular purpose can be recognized as an aboriginal right,
even without 'Indian Title'. The right claimed here is an 'existing right' within the
meaning of s. 35(1) of the Constitution Act 1982.
Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5
(Constitutional Law; Administrative Law; Jurisdiction) A judgment for the majority:
Administrative tribunals which have been given the power to interpret law also
have the power to determine whether the law is constitutionally valid. A formal
declaration of invalidity, however, is not a remedy available to administrative
tribunals.
R. v. Goldhart, [1996] 2 S.C.R. 463
(Constitutional Law; Charter of Rights; Admissibility of Evidence) Dissenting: The
accused's conviction ought to be overturned because he was convicted by evidence
which ought to be excluded under s. 24(2) of the Charter.
McKinney v. University of Guelph, [1990] 3 S.C.R. 229
(Constitutional Law; Charter of Rights; Application) A judgment for the majority:
The Charter apples to government action only. The actions of universities do not fall
within the ambit of the Charter.
Harrison v. University of British Columbia, [1990] 3 S.C.R. 451
(Constitutional Law; Charter of Rights; Application) A judgment for the majority:
The higher degree of government control present here still does not justify the
application of the Charter, as in McKinney.
Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483
(Constitutional Law; Charter of Rights; Application) A judgment for the majority:
The Charter applies to government only and neither the Vancouver General nor its
Board can be considered government actors.
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S C.R. 570
(Constitutional Law; Charter of Rights; Application) A judgment for the majority:
The college was performing acts of government in carrying out its function and,
therefore, the Charter is applicable. The collective agreement is law and is
inconsistent with s.15(1) of the Charter.
R. v. Rahey, [1987] 1 S.C.R. 588
(Constitutional Law; Charter of Rights; Courts) A concurring judgment; When a trial
court is not yet seized with the proceedings in order to determine whether an
accused's right to be tried within a reasonable time has been infringed, the superior
court of the province may exercise jurisdiction.
R. v. Potvin, [1993] 2 S.C.R. 880
(Constitutional Law; Charter of Rights; Criminal Law) A concurring judgment: S. 11(b)
of the Charter does not apply to appellate delay. Weight may be given to pre-appeal
delay at the appellate level and a consideration of appellate delay can figure in the
equation when complaints about delay are raised at a trial following appellate
review.
R. v. Wise, [1992] 1 S.C.R. 527
(Constitutional Law; Charter of Rights; Criminal Law) A judgment in dissent: The
installation of an electronic tracking device in the appellant car constituted an
unlawful trespass and violates his privacy rights under s.8 of the Charter. The
evidence obtained should be excluded.
Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876
(Constitutional Law; Charter of Rights; Electoral Rights) A judgment for the
majority: S 119(c) of the Elections Act is prima facie unconstitutional as violating
the appellant rights under s.3 of the Charter, but is a justified infringement under
s. 1.
Egan v. Canada, [1995] 2 S.C.R 513
(Constitutional Law; Charter of Rights; Equality) A judgment for the majority: The
distinction made in s. 2 of the Old Age Security Act is not based on an irrelevant
personal characteristic enumerated or analogous to the grounds in s.15, therefore, it
is constitutional.
Tétreault-Gadoury v. Canada (Employment and Immigration Commission),
[1991] 2 S.C.R. 22
(Constitutional Law; Charter of Rights; Equality) A judgment for the majority: The
Board of Referees has jurisdiction over the parties but not over the subject matter
and the remedy. Section 31 of the Unemployment Insurance Act 1971 violates
section 15 of the Charter and is not saved by s.1.
R. v. Harrer, [1995] 3 S.C.R. 562
(Constitutional Law; Charter of Rights; Exclusion of Evidence) A judgment for the
majority: The Charter does not directly apply to interrogations in the US because the
US authorities were not acting on behalf of a Canadian government. Furthermore,
the admission of the evidence obtained would not result in an unfair trial.
United States v. Cotroni, [1989] 1 S.C.R.1469
(Constitutional Law; Charter of Rights; Extradition) A judgment for the majority:
The extradition of a Canadian citizen to a foreign country constitutes a prima facie
infringement of the citizen's right to remain in Canada under 6(1) of the Charter. In
the case at bar, however, the infringement is justified under s.1 of the Charter.
Argentina v. Mellino, [1987] 1 S.C.R. 536
(Constitutional Law; Charter of Rights; Extradition) A judgment for the majority;
Section 11 of the Charter does not apply to extradition hearings, therefore, the
extradition judge erred in dismissing the extradition application because of s. 11
infringements The extradition judge has no jurisdiction to consider remedies under
s. 24 of the Charter.
Canada v. Schmidt, [1987] 1 S.C.R. 500
(Constitutional Law; Charter of Rights; Extradition) A judgment for the majority. A
judge for an extradition hearing has no jurisdiction to deal with defences which
could be raised at trial. S. 11(h) of the Charter does not apply to an extradition
hearing.
Canadian Broadcasting Corp. v. New Brunswick (Attorney General),
[1991] 3 S.C.R. 459
(Constitutional Law; Charter of Rights; freedom of the Press) The appeal should be
dismissed for the reasons given in CBC v. Lessard.
R.B. v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315
(Constitutional Law; Charter of Rights; Freedom of Religion) A judgment for the
majority: The Child Welfare Act does deprive the parents of liberty, but it does so in
accord with the principles of fundamental justice and therefore does not violate s.7
of the Charter. The Act's deprivation of the parents’ right to rear their children
according to their religious beliefs does infringe 2(c) of the Charter, but the
infringement is justified under s. 1.
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326
(Constitutional Law; Charter of Rights; Freedom of the Press and Freedom of
Expression) Dissenting in part: Freedom of expression, like the other rights and
freedoms guaranteed by the Charter, is subject to the limits prescribed by law that
can be demonstrably justified in a free and democratic society. Section 30(1) of the
Alberta Judicature Act is a reasonable limit, but 30(2) is not.
R. v. Andrews, [1990] 3 S.C.R. 870
(Constitutional Law; Charter of Rights; Freedom of Expression; Hate Propaganda) A
judgment in dissent: For the reasons given by the majority in Keegstra, s. 319(2)of
the Criminal Code infringes s.2 (b)of the Charter. Furthermore, the reverse onus
clause in 319(3a) infringes 11(d) of the Charter. Both sections, however, are
justifiable under s. l.
R. v. Jones, [1986] 2 S.C.R. 284
(Constitutional Law; Charter of Rights; Freedom of Religion) A judgment for the
majority; the provisions of the Alberta School Act do constitute some interference
with the appellant's freedom of religion, but do not violate s. 2(a) of the Charter.
Scholarly requirements are reasonable limits.
Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421
(Constitutional Law; Charter of Rights; Freedom of the Press) A concurring
judgment: The search and seizure of videotapes made by the media is reasonable
under s. 8 of the Charter. Although the press should not be turned into a
investigative arm of the police, there is a difference between searching a reporter's
notes and videotape.
RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199
(Constitutional Law; Charter of Rights; Freedom of Expression) Dissenting: The
Tobacco Products Control Act was validly enacted under the criminal law power.
While the Act infringed s. 2(b) of the Charter, the section was justified under.
Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779
(Constitutional Law; Charter of Rights; Fundamental Justice) A judgment for the
majority: The extradition of an accused to a foreign jurisdiction to be tried where
the death penalty may be imposed does not constitute cruel and unusual
punishment under s.12, nor did it offend the principles of fundamental justice in this
case.
R. v. Lyons, [1987] 2 S.C.R. 309
(Constitutional Law; Charter of Rights; Fundamental Justice) A judgment for the
majority; the Criminal Code provisions for finding 'dangerous offender' do not
violate s.7 of the Charter, nor is it cruel and unusual punishment under s.12, nor
arbitrary under s. 9.
R. v. Potvin, [1989] 1 S.C.R. 525
(Constitutional Law; Charter of Rights; Fundamental Justice; Criminal Law) A
concurring judgment: section 643(1)of the Criminal Code gives the trial judge the
discretion to allow preliminary hearing evidence from a witness who does not
testify at trial into evidence, as governed by the ordinary principles of evidence. The
trial judge failed to exercise the discretion which was incumbent upon him to ensure
a fair trial.
R. v. Creighton, [1993] 3 S.C.R. 3
(Constitutional Law; Charter of Rights; Manslaughter) A concurring judgment: Both
at the constitutional level and in the interpretation of offenses, the adoption of
subjective rather than objective mens rea was favoured.
Black v. Law Society of Alberta, [1989] 1 S.C.R. 591
(Constitutional Law; Charter of Rights; Mobility Rights) A majority judgment: a
purposive approach to the Charter dictates a broad approach to mobility. Rules 75B
and 154 of the Law Society of Alberta infringes s. 6(2) of the Charter and cannot be
saved under s. 1.
R. v. Vaillaicourt, [1987] 2 S.C.R. 636
(Constitutional Law; Charter of Rights; Principles of Fundamental Justice) A
concurring judgment. The principles of fundamental justice require a mens rea for
a constructive murder conviction that reflects the crime's particular nature, namely
causing death. Section 213(d) of the Criminal Code violates these principles and
cannot be saved under section one of the Charter.
Schachter v. Canada, [1992] 2 S.C.R. 679
(Constitutional Law; Charter of Rights; Remedies) A concurring judgment: The
legislation concerned concededly violates the Charter. Reading in and reading down
by courts should only be employed in the clearest of cases and since Parliament has
acted on its own, there is no reason to declare the legislation invalid and then
suspend that declaration.
R. v. Vermette, [1988] 1 S.C.R. 985
(Constitutional Law; Charter of Rights; Right to a Fair Trial) A judgment for the
majority: whether the respondent can be tried by an impartial jury can only be
determined when the jury is selected, therefore, a Charter motion in this case was
premature.
R. v. Smith, [1989] 2 S.C.R. 368
(Constitutional Law; Charter of Rights; Right to Counsel) A judgment in dissent: The
accused was not given a reasonable opportunity to retain and instruct counsel. The
accused's statement, therefore, should be excluded pursuant to s. 24(2) of the
Charter.
R. v. Evans, [1996] 1 S.C.R 8
(Constitutional Law; Charter of Rights; Search and Seizure) Concurring: My
colleague holds that the search was unreasonable because it was illegal. I think it
was illegal because it was unreasonable. The sanctity of the home has constituted a
bulwark against the intrusion of state agents for hundreds of years. Our society
simply cannot accept police wandering about or 'sniffing' around our homes.
R. v. Gallagher, [1993] 2 S.C.R. 861
(Constitutional Law; Charter of Rights; Trial within a reasonable time) A concurring
judgment: There was not an unreasonable delay in this case, for the reasons
explained in R.v. Potvin.
R. v. Frazer, [1993] 2 S.C.R. 866
(Constitutional Law; Charter of Rights; Trial within a reasonable time) A concurring
judgment: There was not an unreasonable delay in this case, for the reasons
explained in R. v. Potvin.
R. v. Colarusso, [1994] 1 S.C.R. 20
(Constitutional Law; Charter of Rights; Unreasonable Search and Seizure) A
judgment for the majority: Where a body sample is seized by a party other than the
police but ultimately used against the individual in a criminal prosecution, the
courts must go beyond the initial non-police seizure and determine whether the
actions of the police constitute a seizure by the state or make the initially valid
seizure by the coroner unreasonable.
R. v. Wong, [1990] 3 S.C.R 36
(Constitutional Law; Charter of Rights; Unreasonable Search and Seizure) A
judgment for the majority: The degree of privacy reasonably expected in a free
society would be seriously diminished by unrestricted video surveillance by agents
of the state. The seizure in the case at bar violated the accused's s. 8 Charter rights
and was not justified under s. 1. The appellant has not shown, however, that
admission of the evidence would bring the administration of justice into disrepute.
Comité paritaire de l'industrie de la chemise v. Potash, [1994] 2 S.C.R. 406
(Constitutional Law; Charter of Rights; Unreasonable Search and Seizure) A
judgment for the majority: In view of the important purpose of regulatory
legislation, the need for powers of inspection and the lower expectation of privacy in
such cases, a proper balance of the rights of individuals and the interest of society
does not require, in addition to legislative authority, a system of prior authorization.
R. v. Edwards, [1996] 1 S.C.R. 128
(Constitutional Law; Charter of Rights; Unreasonable Search and Seizure)
Concurring: The protection accorded by s. 8 of the Charter is not in its terms limited
to searches of premises over which an accused has a personal right to privacy in
the sense of some direct control or property. Rather the provision is intended to
afford protection to all of us to be secure against intrusion by the state or is agents
by unreasonable searches or seizures, and is not solely for the protection of
criminals.
R. v. Wiggins, [1990] 1 S.C.R. 62
(Constitutional Law; Charter of Rights; Unreasonable Search and Seizure) A
judgment for the majority: For the reasons given in R. v. Duarte the electronic
surveillance conducted by police infringes the defendant's .8 Charter right but was
not saved by section one of the Charter.
R. v. Duarte, [1990] 1 S.C.R. 30
Constitutional Law; Charter of Rights; Unreasonable Search and Seizure) A
concurring judgment: Surreptitious electronic surveillance of the individual by an
agency of the state constitutes and unreasonable search and seizure under s. 8 of the
Charter. In the case at bar the seizure was in no way deliberate and it stemmed from
an entirely reasonable misunderstanding, therefore, the admission of the evidence
would not bring the administration of justice into disrepute.
R. v. Silveira, [1995] 2 S.C.R. 297
(Constitutional Law; Charter of Rights; Unreasonable Search and Seizure) A
dissenting judgment; The police, as the Crown conceded, violated the appellant s.8
rights by entering and securing the appellant house without a warrant. It is
unrealistic to make a distinction between the entry into the house and the
subsequent search. Each was part of a single operation. The evidence, therefore,
should be excluded under s. 24(20) of the Charter.
R. v. Dyment, [1988] 2 S.C.R. 417
(Constitutional Law; Charter of Rights; Unreasonable Search and Seizure) The use of
a person's body, including his blood, without his consent to obtain information
about him invades an area of privacy essential to human dignity, and is protected by
s. 8 of the Charter.
Lavigne v. Ontario Public Service Employees Union (OPSEU), [1991] 2 S.C.R. 211
(Constitutional Law; Charter of Rights Application) The Charter applies in this case
because the obligation imposed of Lavigne to pay union dues can be attributed to
government action. Although the compulsion violates 2(d) of the Charter, it is
justified under s. 1.
R. v. Belnavis, [1997] 3 S.C.R. 341
(Constitutional Law; Charter of Rights; Unreasonable Search and Seizure)
Dissenting: There was no reasonable and probable grounds to believe that the
driver or passenger had committed a criminal offence that would warrant a police
search. The evidence, therefore, should be rejected under s. 24(2) of the Charter.
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143
(Constitutional Law; Charter of Rights; Equality; Citizenship) A concurring judgment.
Section 15 of the Charter was not intended to be a tool for the wholesale subjection
of legislation to judicial scrutiny; citizenship is an irrelevant personal difference in
the case at bar, and the distinction cannot be justified under section one of the
Charter.
Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077.
(Constitutional Law, Conflict of Laws) A judgment for the majority: Analyzing
constitutional rules of various countries before extending the principle in the U.S.
constitution of full faith and credit to judgments rendered in sister provinces. “The
courts in one province should give full faith and credit, to use the language of the
United States Constitution, to the judgments given by a court in another province or
territory, so long as the court has properly, or appropriately, exercised jurisdiction
in the action.”
Hunt v. T&N plc., [1993] 4 S.C.R. 289
(Constitutional Law, Conflict of Laws) Analyzing whether the provisions of the Quebec
Business Concerns Records Act, R.S.Q., c. D-12, a "blocking statute", provide a "lawful excuse"
under Rule 2(5)of the British Columbia Rules of Court, such that Quebec defendants to a
civil action in British Columbia can refuse to comply, as required by Rule 26 of the British
Columbia Rules of Court, with a demand for discovery of documents. The fundamental issue
is whether this statute is ultra vires or whether it is constitutionally inapplicable to a judicial
proceeding in another province.
Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.),
[1989] 1 S.C.R 238
(Constitutional Law; Courts Jurisdiction) A concurring judgment: the province had
the legislative jurisdiction to empower the Direction of Labour Standards and the
Labour Standards Tribunal to hear and determine disputes relating to the Labour
Standards Code. In light of the Constitution Act of 1867, and ss. 67 A(2) and (3) of
the Labour Code were not ultra vires the province
Mills v. R., [1986] 1 S.C.R. 863
(Constitutional Law; Courts of Competent Jurisdiction) A concurring judgment
dismissing the appeal; a preliminary hearing magistrate is not a court of competent
jurisdiction to give a remedy under section 24(1) of the Charter, specifically for
determining whether an accused has been tried within a reasonable time.
Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252
(Constitutional Law; Courts; Jurisdiction) A concurring judgment: It is only the first
step, not the second or third, of the Residential Tenancies Test that is relevant to the
question of whether an ordinary court is exercising a function ordinarily assigned to
superior courts. The sole question is the proper characterization of the power.
R. v. B.L.L.; R. v. J.T.F., [1991] 1 S.C.R. 285
(Constitutional Law; Courts; Jurisdiction) For the reasons given in Ref re Young
Offenders Act (PEI), youth courts are not the exclusive domain of s. 96 courts.
R. v. D.A.W., [1991] 1 S.C.R. 291
(Constitutional Law; Courts; Jurisdiction) Youth courts are not to be considered s.96
courts within the Constitution Act of 1867.
R .v. Corbett, [1988] 1 S.C.R. 670
(Constitutional Law; Criminal Law; Evidence; Right to a Fair Trial) A judgment in
dissent. A trial judge has the discretionary power to exclude or to admit evidence of
an accused's prior conviction(s). The admittance of such evidence does not violate an
accused's right to a fair trial, and any deprivation of liberty is in accord with the
principles of fundamental justice.
R. v. Mercure, [1988] 1 S.C.R. 234
(Constitutional Law; Criminal Law) A judgment for the majority. Since no provision
of the Saskatchewan Act was inconsistent with s.110 of the North-West Territories
Act, s.110 continues in effect and the statutes of Saskatchewan must be in French
and English. Both versions may be used in the courts. The conviction under the
English language statute should be quashed.
Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327
(Constitutional Law; Distribution of Legislative Powers) A judgment for the
majority: The Canadian Labour Code applies to employees of Ontario Hydro who are
employed on or in connection with those nuclear facilities that come under s.18 of
the Atomic Energy Control Act.
Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3
(Constitutional Law; Distribution of Powers; Environment) A judgment for the
majority: The 'environment' is not an independent matter of legislation under the
Constitution Act of 1867. While both levels of legislative power may act in relation
to the environment, there must be a link to an appropriate head of power. The
Guidelines Order cannot be used as a colourable device to invade areas of provincial
jurisdiction which are unconnected to the relevant heads of provincial power.
Ontario Home Builders' Assn. v. York Region Board of Education, [1996] 2 S.C.R. 929
(Constitutional Law; Division of Powers; Charter) Concurring: The Educational
Development Charge relates to the taxation power of the province. The charge is
intra vires as a direct tax under 92(2) of the Constitution Act 1867.
R. v. Hydro-Quebec, [1997] 3 S.C.R. 213
(Constitutional Law; Division of Powers; Environmental Protection) A judgment for
the majority: The protection of the environment is not a subject of legislation under
the Constitution Act 1867. The protection of the environment through prohibitions
against toxic substances, however, constitutes a wholly legitimate public objective
in the exercise of Parliament's criminal law powers.
Whitbread v. Walley, [1990] 3 S.C.R. 1273
(Constitutional Law; Division of Powers; Maritime Law) A judgment for the
majority: Tortious liability in a maritime context is governed by a body of maritime
law which is in the exclusive legislative jurisdiction of Parliament.
Scowby v. Glendinning, [1986] 2 S.C.R. 226
(Constitutional Law; Division of Powers) A judgment in dissent; a board of inquiry,
established by the Saskatchewan Human Rights Commission, may validly inquire
into allegation of arbitrary arrest and detention contrary to the Saskatchewan
Human Rights Code against the R.C.M.P.
R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401
(Constitutional Law; Division of Powers) A dissenting judgment: While parliament
may prohibit the dumping of anything into federal waters, such prohibitions against
dumping substances into provincial waters must be linked to some federal power.
Section 4(1) of the Ocean Dumping Control Act was ultra vires Parliament because
there was no evidence of such a link.
R . v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713
(Constitutional Law; Freedom of Religion; Right to Liberty) A concurring
judgment; Although s. 2(a) of the Charter is infringed by the Retail Business
Holidays Act, the legislature must be given room to manoeuvre in determining what
is demonstrably justified in a free and democratic society.
MacKeigan v. Hickman, [1989] 2 S.C.R. 796
(Constitutional Law; Judiciary; Judicial Privilege) A concurring judgment: The Nova
Scotia Public Enquiries Act does not over-ride the fundamental principle of judicial
immunity from being compelled to testify about the decision making process in a
particular case.
Reference re: Goods and Services Tax (GST) (Canada), [1992] 2 S.C.R. 445
(Constitutional Law; Taxation; Division of Powers) A concurring judgment:
The Goods and Services Tax Act is intra vires the federal Parliament, falling within
s. 91(3) of the Constitution Act 1867.
Thomson Newspapers Ltd. v. Canada, [1990] 1 S.C.R. 425
(Constitutional Law; Charter of Rights; Combines Investigation) A concurring
judgment: Section 17 of the Combines Investigation Act does not contravene
section 7 of the Charter. Section 7 does not give an absolute right to silence or
against self- incrimination. The order made under s. 17 of the Act is a seizure, but
it is not unreasonable.
CONTRACTS
Hodgkinson v. Simms, [1994] 3 S.C.R. 377
(Contracts; Fiduciary Duty) A judgment for the majority: Liability in this case
inexorably flows from the principles underlying the notion of fiduciary duty. The
finding of a fiduciary relationship in the independent advisory context does not
represent an addition to the law. Policy considerations support finding relationships
in the case of financial advisors. The proper approach to damages for the breach in
the case is restitutionary.
London Drugs Ltd v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299
(Contracts; Privity; Torts) Dissenting on the cross-appeal: The respondent
employees did not owe any duty of care to the appellant in the circumstances of this
case. Because of the proximity created by contract, the company owes a duty of care
to the customer and is vicariously liable for the negligent acts of its employees.
H. W Liebig & Company Limited v. Leading Investments Limited, [1986] 1 S.C.R. 70
(Contracts; Real Estate) A concurring judgment; The listing agreement governed.
The bargain between the vendor and broker was struck when the listing agreement
was signed and its meaning was not altered by reading it with the agreement of
purchase and sale.
CRIMINAL LAW
R. v. Landry, [1986] 1 S.C.R. 145
(Criminal Law; Arrest without a warrant) A judgment in dissent. The appeal ought
to be dismissed; the sanctity of private dwellings must be maintained and ought not
be violated by police without a warrant in the absence of good reasons.
R. v. Hundal, [1993] 1 S.C.R. 867
(Criminal Law; Dangerous Driving; Mens Rea) The offence of dangerous driving, a
quasi-regulatory offence, differences in both its wording and object from the general
office of criminal negligence, which requires a subjective mens rea.
R. v. Parks, [1992] 2 S.C.R. 871
(Criminal Law; Defences; Automatism; Sleepwalking) A judgment for the majority:
In distinguishing between automatism and insanity the trial judge must consider not
only the evidence but also overarching policy considerations. An involuntary act,
including one committed in an automatistic state entitles an accused to an
unqualified acquittal, unless the automatistic condition stems from a disease of the
mind that has rendered the accused insane.
R. v. MacKenzie, [1993] 1 S.C.R. 212
(Criminal Law; Evidence; Appeals) A majority judgment allowing the appeal and
restoring the acquittal: The trial judge's charge to the jury, viewed as a whole, was
not misleading. The Court of Appeal did not misstate the standard of appellate
review by requiring only that the Crown show the jury's verdict might have been
different had it been properly instructed.
R. v. Hawkins, [1996] 3 S.C.R. 1043
(Criminal Law; Evidence; Witnesses) Concurring: The common law rule of spousal
incompetence should not be modified in the circumstances of this case. The wife's
testimony at the preliminary inquiry may be read into evidence at trial through a
principled exception to the hearsay rule.
Michaud v. Québec (Attorney General), [1996] 3 S.C.R. 3
(Criminal Law; Interception of Private Communications) Concurring: Since the
advent of the Charter, a person who was under electronic surveillance and was
subsequently charged has been automatically entitled to access to the sealed packet,
subject to the editing power of the judge to whom the application was made. This
applies to the accused and the non-accused alike.
R. v. Thompson, [1990] 2 S.C.R. 1111
(Criminal Law; Interception of Private Communications; Admissibility of Evidence)
A dissenting judgment: Simply authorizing the police, in their sole discretion, to use
any electronic means of interception anywhere the suspect may go is incompatible
with Part IV. l of the Criminal Code and s. 8 of the Charter. The evidence in this case
should be inadmissible.
R. v. Penno, [1990] 2 S.C.R. 865
(Criminal Law; Intoxication; Defences) A concurring judgment: Having care and
control of a motor vehicle while impaired is prohibited by the Criminal Code. It is an
offence to commit a prohibited act while impaired. It would, therefore, be
inconsistent to use intoxication as a defence for impairment. Section 234(1) of the
Criminal Code does not violate section 7 or 11(d) of the Charter.
R. v. Bernard, [1988] 2 S.C.R. 833
(Criminal Law; Mens Rea) A concurring judgment. The requirement of mens rea is
so fundamental in criminal offenses that incursions upon such fundamental legal
values must be made by legislatures and not judicial policy.
Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835
(Criminal Law; Publication Bans) Dissenting: There is no direct appeal to this court
under s. 40 of the Supreme Court Act from the superior court judge's order. A
remedy, however, may be available under s.24 (1) of the Charter. Since the effect of
the order was an infringement of the appellant Charter right to freedom of
expression to serve a government purpose, the order may be subjected to Charter
scrutiny.
R. v. Milne, [1987] 2 S.C.R. 512
(Criminal Law; Sentencing) A concurring judgment; when a change in the law
deletes the offence under which the appellant was convicted, the change does not
alter the status of dangerous offender, nor is it reversible under ss. 9 or 12 of the
Charter.
R. v. Audet, [1996] 2 S.C.R. 171
(Criminal Law; Sexual Offence; Persons in a position of authority) A judgment for
the majority: In this case there is no circumstance relevant to the determination of
the nature of the relationship between the accused and the young person that
could raise a reasonable doubt in the mind of the trier of fact as to the accused's
position of trust. The acquittal should be set aside and a verdict of guilty
substituted.
R. v. M.B.P., [1994] 1 S.C.R. 555
(Criminal Law; Sexual offenses) A judgment in dissent: The trial judge did not err in
allowing the Crown to re-open its case and amend the indictment. The difficulty of
children pinpointing the exact time of incidents which have occurred several years
before, but which they are able to define interims of other contemporaneous
matters, should be underlined.
R. v. Curragh Inc., [1997] 1 S.C.R. 537
(Criminal Law; Trials; Bias) A judgment for the majority: The trial judge's actions
and words during the trial and prior to the order staying proceeding created a
reasonable apprehension of bias. Where a reasonable apprehension of bias is
demonstrated, the trial judge has no further jurisdiction in the proceeding and the
only appropriate remedy is a new trial.
R. v. Finta, [1994] 1 S.C.R. 701
(Criminal Law; war Crimes and Crimes Against Humanity) A dissenting judgment:
the appeal by the Crown of the accused's acquittal at trial should be dismissed.
FAMILY LAW
Thomson v. Thomson, [1994] 3 S.C.R. 551
(Family Law; Custody; Abduction) A judgment for the majority; The mother, by
removing the child from Scotland, was violating the Scottish court's order. This court
must therefore order the return of the child forthwith.
Pelch v. Pelch, [1987] 1 S.C.R. 801
(Family Law; Divorce; Variation of Maintenance Agreement) A concurring judgment;
the trial judge erred in varying the settlement. The fact that the appellant's
misfortune resulted in her relying on welfare for income is not sufficient to shift that
burden to the respondent.
Richardson v. Richardson, [1987] 1 S.C.R. 857
(Family Law; Maintenance; Variation of Settlement Agreement) A judgment in
dissent; the parties to a divorce cannot oust the judge's discretion to award
maintenance, an existing contract is only one factor to be considered.
Frame v. Smith, [1987] 2 S.C.R. 99
(Family Law; Practice) A judgment for the majority; all old tort actions to protect a
father's interests in his children have been abolished by the Family Law Reform Act.
Any possible judicial action has been superseded by legislative action.
TAXATION
McClurg v. Canada, [1990] 3 S.C.R. 1020
(Taxation; Income Tax; Company Law) Dissenting: A discretionary dividend clause
that permits the directors of a corporation to choose which class of shareholders is
entitled to receive dividends to the exclusion of other classes is invalid at common
law. The dividend would have been included in McClurg's income had the
allocation been properly made.
Kourtessis v. Canada (Minister of National Revenue), [1993] 2 S.C.R. 53
(Taxation; Income Tax; Courts) A judgment for the majority allowing the appeal:
section 231.3 of the Income Tax Act infringes s. 8 of the Charter.
Schwartz v. Canada, [1996] 1 S.C.R. 254
(Taxation; Income Tax; Courts) A judgment for the majority: Taxability in the case
should be assessed pursuant to the retiring allowance provision of the Income Tax
Act, and the damages received by the appellant cannot be considered a 'retiring
allowance' within the meaning of s. 248(1) of the Act.
Air Canada v. British Columbia, [1989] 1 S.C.R. 1161
(Taxation; Provincial Powers) A judgment for the majority: The Gasoline Tax Act
1976 and 1981 were valid provincial legislation under its taxing powers. The act did
not violate the Charter nor infringe federal powers.
Canadian Pacific Airlines Ltd v. British Columbia, [1989] 1 S.C.R. 1133
(Taxation; Provincial Powers) There was not a sufficient presence in the province to
provide a basis for the imposition of the tax on inflight sales of alcohol, as provided
for in the Social Service Tax Act. However, the airline cannot recover the money paid
by its passengers for the tax on alcoholic beverages.
TORTS
BG Checo Int. Ltd v. British Columbia (Hydro and Power Authority), [1993] 1 S.C.R. 12
(Torts; Contracts; Concurrent Liability) A judgment for the majority: Hydro is liable
to Checo for breach of contract. The contract does not preclude Checo from suing in
tort. No limitation was included in the contract, therefore, Checo is entitled to be
compensated for all reasonable foreseeable losses caused by the tort.
Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021
(Torts; Economic Loss) A judgment in dissent. My conclusion is that the bright line
rule excluding recovery for economic loss owing to interference with contractual
relations that results from damage to a third party's property should not be
modified, at least on the facts of this case.
Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634
(Torts; Manufacturer's Duty to Warn) A judgment for the majority: A manufacturer
of a product has a duty in tort to warn consumers of dangers it knows or ought to
know are inherent in the product's use. The 'learned intermediary' rule is applicable
in this case, however, Dow's warning to the surgeon here was inadequate.
Edgeworth Construction Ltd. v. N.D. Lea & Associates Ltd., [1993] 3 S.C.R. 206
(Torts; Negligence; Duty of Care) There are several distinctions between the tort of
negligence and negligent misrepresentation. Furthermore there are sound policy
reasons for not imposing a duty of case on the appellants in this case.
Rothfield v. Manolakos, [1989] 2 S.C.R. 1259
(Torts; Negligence; Municipalities) A judgment for the majority: The city, once it
made the policy decision to inspect building plans and constructions, owed a duty of
care to all who it is reasonable to conclude might be injured by the negligent
exercise of those powers.
Queen v. Cognos Inc., [1993] 1 S.C.R. 87
(Torts; Negligent Misrepresentation) A judgment for the majority: This is not a case
of concurrent liability in tort and contract. The tort was independent of the contract
and is not touched by the exclusion clause in the contract.
Tock v. St. John's Metropolitan Area Bd., [1989] 2 S.C.R. 1181
(Torts; Nuisance; The Defence of Statutory Authority) A concurring judgment: The
flooding in the case at bar would constitute a compensable nuisance if this case had
been between private individuals. It was not reasonable to deny compensation to
the appellant because the damage was suffered at the hands of a body exercising
statutory authority.
Norberg v. Wynrib, [1992] 2 S.C.R. 226
(Torts; Battery; Consent) A judgment for the majority: The consent of the patient
was rendered void on the grounds of unconscionability. The appellant is entitled to
general, aggravated, and punitive damages for battery.
MISCELLANEOUS
Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805
(Trusts and Trustees; Breach of Trust) There was clearly a relationship of trust
between the appellant and D., a trust which D. clearly breached. The bank's resulting
enrichment was unjust, rendering it liable to the appellants as a constructive
trustee.
Geffen v. Goodman Estate, [1991] 2 S.C.R. 353
(Trusts and Trustees; Undue Influence) A concurring judgment: Mrs. Goodman's
relationship was not a close one and the three brothers had no influence on their
sister at all.
Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403
(Access to Information; Privacy) Dissenting: Both the Access to Information Act and
the Privacy Act recognize that with respect to 'personal information', privacy is
paramount over access. The requested access in this case is personal information.
Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534
(Damages; Breach of Fiduciary Duty) A judgment for the majority: The breach of a
fiduciary duty in the case at bar was sufficient to call upon the jurisdiction of equity
to compensate the appellant for the breach. Compensation for breach of a fiduciary
duty, however, is not akin to compensation in trust cases.
Longueuil (City) v. Lambert-Picotte, [1991] 2 S.C.R. 401
(Expropriation; Indemnity) A judgment for the majority allowing the appeal: There
is no evidence to suggest that prior to the expropriation proceeding the parties had
entered into a transaction. The Expropriation Tribunal's decision should not have
been reversed.
McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475
(Extradition; Extradition hearings) A judgment for the majority: The role of the
extradition judge was limited to determining whether a prima facie case exists that
the conduct of the fugitive constitutes an 'extradition crime' according to Canadian
law. It is unnecessary to determine whether it also constitutes an extradition crime
under foreign law.
United States v. Allard, [1987] 1 S.C.R. 564
(Extradition; Jurisdiction; Charter of Rights) A judgment for the majority; Acting in
an extradition matter is not a court of competent jurisdiction for the purposes of
s. 24(1) of the Charter. S. 11 (b) of the Charter does not apply in this case because the
actions were by a foreign government in a foreign county. Extradition does not per
se violate s. 7 of the Charter.
United States of America v. Lepine, [1994] 1 S.C.R. 286
(Extradition; Jurisdiction) A judgment for the majority: An extradition judge is not
vested with the function of considering the jurisdiction of the requesting state to
prosecute the offence. The extradition judge must determine whether the act would
be a crime under Canadian law.
Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
(Immigration; Convention Refugee) Dissenting: The court did not decide whether
the Refugee Board could decide that the appellant was a member of a particular
social group. The matter should be remitted back to the Board to be decided.
Scott v. Wawanesa Mutual Insurance Co., [1989] 1 S.C.R. 1445
(Insurance; Exemption Clause) A judgment in dissent: In construing an insurance
policy courts must be guided by the reasonable expectations of an ordinary person,
and the language used given its ordinary meaning. In this case, 'insured' did not
refer to the appellant’s son.
National Bank of Greece (Canada) v. Katsikonouris, [1990] 2 S.C.R. 1029
(Insurance; Misrepresentation) A judgment for the majority: An insurer cannot
refuse to honour a separate and distinct contract with an hypothecary creditor upon
discovering that its contract with the hypothecary debtor was null ab initio by
reason of misrepresentation.
Canada Labour Code (Re), [1992] 2 S.C.R. 50
(International Law; Labour Relations) A judgment for the majority: It is a necessary
consequence of Canada's commitment to policies of international comity and
reciprocity that sovereign immunity deprives employees of their right to the
protection of labour relations laws.
Dayco (Canada) Ltd v. CAW-Canada, [1993] 2 S.C.R. 230
(Labour Law; Judicial Review) A judgment for the majority: In answering the
question whether a promise in a collective agreement can survive the expiry of the
collective agreement in which the promise was made, the arbitrator was not acting
within his jurisdiction.
K.M v. H.M., [1992] 3 S.C.R. 6
(Limitations of Actions; Torts; Equity) A judgment for the majority: Incest is both a
tortious assault and a breach of fiduciary duty. The tort claim, although subject to
limitations legislation, does not accrue until the plaintiff is reasonably capable of
understanding the wrongful nature of the defendant's acts and the link between
those acts and the plaintiffs injuries. Incest, however, does not consist in a distinct
tort, separate from assault and battery.
Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683
(Maritime Law; Agency) A judgment for the majority: Under the common law
principles of agency and contract the issue of whether and agent contracted
personally or solely as an agent is a matter of construction. Here Chartwell clearly
acted solely as an agent and is not personally responsible.
Canada (Director of Soldier Settlement) v. Snider Estate, [1991] 2 S.C.R. 481
(Mines and Minerals; Land Title) A judgment in dissent: the rule under the Soldier
Settlement Act was that the mines and minerals in lands transferred under the Act
continued to vest in the Government of Canada, as it should be in the case at bar.
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170
(Municipal Law; Municipal Corporations) A judgment in dissent: The city of
Winnipeg was precluded from adopting the zoning by-law in question without first
amending Plan Winnipeg.
Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213
(Municipal Law; Municipal Corporations) A concurring judgment: A closed mind,
provided it isn't a corrupt mind, should not disentitle an alderman from
participating in the electoral process.
143471 Canada Inc. v. Québec (A.G.); Tabah v. Québec (A.G.), [1994] 2 S.C.R 339
(Procedure; Interlocutory Relief) Dissenting: A prima facie case, irreparable harm
and the balance of convenience are the three criteria relevant in determining
whether interlocutory relief should be granted. The requirements aren't met in this
case and the appeal should be allowed.
Canadian Pacific Hotels v. Bank of Montreal, [1987] 1 S.C.R 711
(Banking; Forged Cheques; Concurrency of Tort and Contract Law) A concurring
judgment; to introduce a wider duty today into banking business and contract law
generally, under the rubric of negligence would affect the uncertainties perceived by
earlier authorities.
Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727
(Bills of Exchange; Cheques; Conversion) Dissenting on the appeal: The 114 cheques
payable to D. Lam, J. Lam or R. Lam were payable to non-existent persons within the
meaning of s. 20(5) of the Bills of Exchange Act. The respondent bank is accordingly
a holder in due course of these cheques and has a complete defence against the
action of the appellant.
Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571
(Civil Rights; Discrimination; Judicial Review) A concurring judgment: To attract
antidiscrimination protection from the Human Rights Code a service must create a
public relationship between the service provider and the service user. In this case
the defendant is not engaged in providing services to the public that attracts
protection.
Godbout v. Longueuil (City), [1997] 3 S.C.R. 844
(Civil Rights; Right to Privacy) A judgment for the majority: Since municipalities
cannot but be described as government entities, they are subject to the Charter. The
right to choose where to establish one's home falls within the scope of the liberty
interest protected by s. 7. The residence requirement of the municipality violates s. 7
in a manner contrary to the principles of fundamental justice and is not justified
under s. 1.
LAC Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574
(Commercial Law; Confidentiality; Fiduciary Duty) A concurring judgment: LAC
breached a duty of confidence owed to Corona. A constructive trust is the only just
remedy. A fiduciary relationship does not ordinarily arise between commercial
parties, but the facts here supported the imposition. Finding a fiduciary obligation
here will not create undue uncertainty in commercial law.
Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022
(Conflict of Laws; Torts; Traffic Accident) A judgment for the majority: The nature
of Canada's constitutional arrangements supports a rule that is certain and that
ensures that an act committed in one part of this country will be given the same legal
effect throughout the country. This supports duly the lex loci delicti rule.
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