6. Litigation

General Note on Litigation

  1. Canada Alliance for Sex Work Law Reform (CASWLR)
  2. Commission scolaire francophone des Territoires-du-Nord-Ouest (TNO)
  3. Litigation–non-Justice lead

1. Canada Alliance for Sex Work Law Reform (CASWLR):

On March 29, 2021, CASWLR commenced a Charter application in the Ontario Superior Court of Justice, seeking to have all of the Criminal Code provisions relating to the commercial sex trade as they relate to adults, struck down as unjustifiable limitations of sections 7 (life, liberty and security of person), 15(1) (equality rights), 2(b) (freedom of expression), and 2(d) (freedom of association) of the Charter. Most of the provisions were enacted by the 2014 Protection of Communities and Exploited Persons Act (the “Act”).

Canada’s position is that the impugned provisions are a constitutionally permissible response to a highly complex and polarized policy issue. The provisions operate on the premise that the sex industry reflects and perpetuates structural and systemic inequalities and poses risks to those involved in it, risks borne disproportionately by women, girls, and racialized, Indigenous and/or vulnerable individuals. This approach, developed in direct response to the Supreme Court of Canada’s decision in Bedford v. Canada, is based on a legislative framework first implemented in 1999 in Sweden (the “Nordic approach”). Versions of this Nordic approach have since been adopted in several other international jurisdictions.

The Attorney General of Ontario intervened to adduce evidence and make submissions to defend the constitutional validity of the provisions. Seventeen different organizations or coalitions of organizations were granted leave to intervene on consent as a Friend of the Court and not to introduce evidence.

The hearing of the application took place October 3-7, 2022. A decision is anticipated six months following the hearing.

Question: Shouldn’t Canada decriminalize sex work to keep sex workers safe? Shouldn’t Canada strengthen former Bill C-36 to keep the most vulnerable safe?
Answer: The Government of Canada acknowledges that individuals may become involved and remain in the sex trade under very different circumstances, including by choice or through exploitation of their vulnerabilities, and that more must be done to address the risks and harms faced by all those engaged in the sex trade.

The Government also recognizes that the issue of which legislative framework ought to apply to the sex trade is divisive and engenders strongly held views.

Question: Aren’t the offences enacted by former Bill C-36 unconstitutional?
Answer: The constitutionality of all the offences enacted by former Bill C-36 is currently before the Ontario Superior Court of Justice in the Canadian Alliance for Sex Work Law Reform matter. Some of those offences have been deliberated on for Charter compliance in the context of prosecutions, with conflicting results at the lower court level. However, in its February 2022 R. v. NS decision, the Ontario Court of Appeal upheld the constitutionality of three of the offences challenged in the Alliance litigation: the material benefit (s. 286.2), procuring (s. 286.3), and advertising (s. 286.4) offences.

2. Commission scolaire francophone des Territoires du Nord-Ouest (TNO):

Several parents and the Commission scolaire francophone des Territoires du Nord-Ouest (TNO) have sought judicial review of the Minister of Education’s refusal to allow children to attend school in French even though they were not entitled to do so under s. 23 of the Charter or the NWT’s policy on the matter. The NWT Supreme Court allowed the claims, but the Court of Appeal reversed the judgment. Despite repeated requests by the School Board, the hearing was not conducted in French and English before a panel of three bilingual judges, instead the appellants’ arguments were translated.

The SCC granted the application for leave to appeal and allowed the School Board to present additional evidence as to the conduct of the hearing in the Court of Appeal and the quality of the simultaneous translation. The Board argued that the right to use English or French before the courts, recognized by the NWT Official Languages Act (and similar constitutional provisions applicable to federal or certain provincial courts), includes the right to be understood by a judge who understands the official language used by a party without the assistance of an interpreter, and asked the SCC to overturn its interpretation to the contrary in four cases from 1986 and 1988.

The hearing before the SCC took place on February 9, 2023.

Question: Why is the government advocating the status quo rather than promoting bilingualism among judges?
Answer: The AGC’s position recognizes that a person who uses English or French in court must be understood by the judge(s) who hear him or her, including through interpretation services. That said, in order to ensure equal access to justice in both official languages, the federal government has committed to promoting bilingualism among judges through concrete measures, such as appointing bilingual judges to the SCC. If passed, Bill C-13, will ensure Supreme Court of Canada judges hearing cases are able to understand, without the assistance of an interpreter, the official language(s) chosen by the parties, as is already the case for other federal courts. In fact, over the years, and in keeping with the principle of legislative progression towards equality of status or use of both official languages, the federal Parliament has enacted several legislative provisions to allow litigants to be heard by Provincial or Superior Court judges who speak their official language or both official languages, e.g., in the Criminal Code and the Divorce Act, or to be heard by Federal Court judges who understand the official language of the parties without the assistance of an interpreter, as provided for in the Official Languages Act.

Question: Why doesn’t the government appoint only bilingual judges?
Answer: The Government appoints bilingual judges after consulting with the Chief Justices on the needs of their respective courts. In accordance with the constitutional principle of legislative advancement towards the equality of the two official languages, the Government also takes into consideration the language requirements of the Criminal Code, the Divorce Act, the Official Languages Act and certain provincial statutes.

In some regions, the use of English or French is less widespread than in others, but the Government continues to promote knowledge of both English and French as an undeniable asset in interpreting and understanding federal legislation and the bilingual legislation of several provinces and the three territories.

The Government of Canada is committed to promoting equal access to justice in both official languages, and I would like to emphasize its ongoing commitment to achieving its objectives. To this end, in September 2017, we adopted the Action Plan: Improving the Bilingual Capacity of Superior Courts, one aspect of which is to collect and publish statistical information on the language proficiency of candidates and judicial appointments to a superior court. The government fully shares the objective of ensuring sufficient bilingual capacity to ensure that the language rights of litigants are respected and that Canadians have meaningful access to justice in both official languages. The bilingual capacity of candidates for appointment to the federal judiciary is an integral part of the judicial appointment process, and I am proud of the judicial appointments made by this government to date. The most recent annual statistics published by the Office of the Commissioner for Federal Judicial Affairs show that of the 58 new judges appointed in the year ending October 28, 2022, more than one-quarter of them are identified as competent in both official languages, according to 6 different abilities.

Question: Why is the government intervening against the Francophone minority?
Answer: The AGC intervenes only with respect to the right to use English or French in court. It does not intervene in the conduct of the NWT Board or in the attendance of French schools in the NWT.

3. Litigation—non-Justice lead

If asked about litigation led by other Ministers, I would defer to my colleagues.

Background:

As of January 31, 2023, the Attorney General of Canada had been engaged in approximately 40,000 litigation files for 2022-2023, which is on pace to be similar to the number of files in 2021/2022.

The Directive on Civil Litigation Involving Indigenous Peoples:

The Attorney General of Canada continues to implement The Directive on Civil Litigation Involving Indigenous Peoples, which is coming up on its three-year anniversary. The Directive and the Principles highlight that the way that we conduct litigation with Indigenous peoples matters from the perspective of reconciliation.

Canada continues to be committed to fundamentally transforming its relationship with Indigenous peoples based on the recognition of rights, respect, cooperation and partnership. As part of this commitment, the Attorney General’s Directive on Civil Litigation Involving Indigenous Peoples continues to be implemented to promote consistency in Canada’s approach to civil litigation involving Indigenous peoples, one that supports a stronger, more positive and respectful Crown-Indigenous relationship.

As you know, the Directive establishes twenty Litigation Guidelines that every counsel considers in the approaches and positions taken in civil litigation involving Indigenous peoples. Starting in 2018 and continuing today, comprehensive training on the Directive and its underlying Principles has been provided to Justice counsel and client departments who are engaged in Indigenous litigation across Canada. Since its development and implementation, 41 guidance sessions have been provided to Justice employees across the country, and more than 2,000 Justice employees have now been trained.

Over the last three years, legal proceeding that engages litigation with Indigenous Peoples has been approached through the lens of the Directive.

Counsel continue to engage in efforts for resolution early and often, exploring all reasonable avenues for narrowing the issues and settling the dispute. While the Directive does not require Canada to abandon valid legal positions or reach settlement in each case, all Indigenous litigation is advanced in a principled way that considers the implications for the law, government operations, and Canada’s relationship with Indigenous peoples.

Of course, Indigenous groups and Indigenous peoples are entitled to choose their preferred forum to resolve their legal issues. Where litigation is unavoidable, the Guidelines provide direction on how counsel prepare their pleadings and submissions, including the language and terminology to be used and the admissions to be made. All pleadings are an important opportunity to further communication and relationship building with First Nations. This has resulted in, for example, the consistent practice of concisely stating Canada’s position and narrowing the issues in Canada’s court documents to explain plainly Canada’s position, including what is in issue and what is not in issue at the outset. It has also resulted in new admissions made by Canada, where it is possible to narrow the scope of the litigation.

This work is ongoing and will continue to shape how the Government of Canada is managing litigation involving Indigenous peoples, including the way arguments are framed, defences are advanced, and emphasis is placed on resolving rather than litigating claims when possible.

Wrongful Convictions and a New Independent Miscarriage of Justice Review Commission:

Currently, individuals who have exhausted their rights of appeal but believe they have been wrongfully convicted can apply to the federal Minister of Justice to have their convictions reviewed. The process is set out in the Criminal Code and administered by the Criminal Conviction Review Group within the Department of Justice. The Minister of Justice has made several high-profile decisions over the years. More are expected in the near future. Several countries have independent commissions to address wrongful convictions that are arm’s length from government. On February 16, 2023, the Minister of Justice introduced Bill C-40, the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) which would reform the miscarriage of justice review process and establish a new independent commission, outside the Department of Justice, to review, investigate and decide which cases should be referred back to the justice system on the grounds of potential miscarriage of justice.

If asked about any miscarriage of justice application:

Question: Could you confirm whether a miscarriage of justice application has been received?
Answer: For privacy reasons, we cannot comment on specific applications.

The criminal conviction review process is handled by the Criminal Conviction Review Group (CCRG) within the Department of Justice Canada. Individuals who have exhausted their rights of appeal can apply to have their convictions reviewed. Should an application be made, the CCRG conducts a review on my behalf and advises me on the appropriate remedy, if any. I will then review relevant material and decide on the basis of the facts and the law, whether a review application should be dismissed or allowed.

Annex 1: Other matters

  1. First Nations Child and Family Caring Society of Canada (FNCFCS) and Assembly of First Nations and Attorney General of Canada (AFN)
  2. Kahentinetha et al. v. Société québécoise des infrastructures et al.
  3. Dominique (Pekuakamiulnuatsh) v. Public Safety Canada (CHRT) / AGC v. Dominique (FC) / Pekuakamiulnuatsh Takuhikan c. PGC et PGQ (QCA) / Kiashke Zaaging Anishnaabek (KZA) (Gull Bay First Nation) v. HMTK (FC) / Micmacs of Gesgapegiag First Nation and al. v. AGC and AGQ / Corps de police des Abénakis / Indigenous Police Chiefs of Ontario v. Public Safety Canada
  4. Thompson et al. v. HMQ
  5. BOLOH v. HMTQ
  6. AA/AB and BC
  7. Doe/Zareri v. Islamic Republic of Iran et al. (PS752)
  8. La Société de l’Acadie du Nouveau-Brunswick (SANB)
  9. Firearms related litigation
  10. Emergencies Act litigation
  11. Justice for Québec et al. v. AGC
  12. Canadian Council for Refugees (Safe Third Country Agreement) (SCC)
  13. Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (C-92 Litigation) (SCC)
  14. Reference Re Impact Assessment Act (SCC)

ANNEX: 2023-24 Main Estimates – General Note on Litigation

I. Ongoing litigation

A. First Nations Child and Family Caring Society of Canada (FNCFCS) and Assembly of First Nations and Attorney General of Canada (AFN)

Lead Minister: Indigenous Services Canada

Highlights: Comparability of federal government funding of on-reserve services with provincial government funding of off-reserve services.

Key Date: December 31, 2022 – The parties signed Agreements in Principle which committed to work to final settlement agreements that would end the CHRT’s jurisdiction. On April 3, 2023, the parties reached a revised final settlement agreement to compensate those harmed by discriminatory underfunding of First Nations child and family services and those impacted by the federal government’s narrow definition of Jordan’s Principle. By June 30, 2023, the parties must report to the Federal Court of Appeal on the abeyance of the appeal related to the CHRT order awarding compensation. Further, by June 30, 2023, the parties are to report to the Federal Court with respect to the status of the judicial review of the CHRT’s refusal to find the settlement reached on compensation satisfied its compensation orders.

Canadian Human Rights Tribunal

In 2016, the CHRT determined that Canada’s funding of First Nations and family services on reserve and in the Yukon was discriminatory. It also determined that Canada’s definition of Jordan’s Principle was too narrow and resulted in gaps, delays and denials of necessary services for children. The CHRT has maintained oversight over Canada’s efforts to end the discrimination and issued numerous orders providing immediate relief.

In 2019-2020, Canada sought judicial review of two further CHRT decisions: an order for compensation to indeterminate classes of children and their caregivers (Compensation Decision); and an order defining who is a First Nations child for purposes of Jordan’s Principle (First Nations Child Decision). The Federal Court rejected Canada’s application for judicial review in September, 2021, and Canada has filed an appeal of this decision which is currently in abeyance pending settlement negotiations.

On October 24, 2022, the CHRT rejected the AFN and Canada’s motion to find a settlement reached on compensation in the context of related class actions satisfied its compensation orders. Canada and AFN filed a judicial review of this decision on November 23, 2022. On December 20, 2022, the CHRT released its full reasons for its decision. The applications are being held in abeyance pending negotiations between the parties.

On the appeal, Canada’s position is that the CHRT did not reasonably apply the principles of causation and proportionality in granting compensation pursuant to the Canadian Human Rights Act. With respect to the judicial review of the CHRT’s decision related to the settlement agreement, among other errors, Canada is of the view that the CHRT erred by holding that it was legally unable to amend its compensation order to reflect the settlement reached.

On April 3, 2023, the parties reached a revised final settlement agreement with respect to the CHRT compensation orders and the related class actions.

Class Actions:
Moushoom-AFN

In 2019 and 2020, Xavier Moushoom and the AFN respectively commenced proposed class actions seeking damages based on the discriminatory underfunding of child and family services on reserve and in the Yukon and the denial, delay of or gaps in services or products to First Nations children dating back to 1991.

The Federal Court consolidated the Moushoom and AFN class actions, certifying the consolidated action on November 26, 2021, and removed the pre-2007 Jordan’s class (Trout), which was certified on February 11, 2022.

Trout

This proposed class action concerns the denial, delay of or gaps in services or products to First Nations children from 1991 to 2007 (class members were previously members of the putative classes in the Moushoom/AFN class action).

Agreements in Principle:

Agreements in Principle were reached on December 31, 2021, in the AFN CHRT and class actions. A Final Settlement Agreement on compensation in the Class Actions was signed on June 30, 2022, and was conditional on the CHRT issuing an order that its compensation order is fully satisfied by the agreement. The CHRT refused to issue this order on October 24, 2022.

On April 3, 2023, the parties reached a revised final settlement agreement with respect to the CHRT compensation orders and the related class actions to compensate those harmed by discriminatory underfunding of First Nations child and family services and those impacted by the federal government’s narrow definition of Jordan’s Principle. The next step is for all the Parties to bring the final settlement agreement to the Tribunal, asking for confirmation that the proposed revised settlement fully satisfies the 2019 compensation orders. After that step, the agreement will be brought to the Federal Court for approval. If approved, the process to implement the settlement will begin.

B. Kahentinetha et al. v. Société québécoise des infrastructures et al

Lead Minister: Crown-Indigenous Relations and Northern Affairs Canada

Highlight: Forensic and archeological investigation on the site of the Royal Victoria Hospital and Allan Memorial Institute.

Key Dates: McGill filed motion to lift the injuction on the excavation work on February 9. Judicial settlement conference on March 22, April 4, and 6, 2023. Hearing to lift the injunction heard on April 20 and 21, 2023.

The Applicants brought an application for declaratory relief and injunction by six members of the Kahnawake community. They are requesting Canada to provide funds for a forensic and archeological investigation on the site of the Royal Victoria Hospital and the Allan Memorial Institute (the “site”), located on the Mount Royal mountain in Montreal.

The Applicants request immediate stop of all renovation work on the site and allege that they will suffer irreparable harm if the projected works proposed by the McGill University go forward. Canada has no involvement in the projected work. According to the Applicants, there would be evidence the site contains archeological remains from precolonial Iroquoian villages. The Applicants further allege that Indigenous children were buried on site between 1954 and 1963, and they contend that the site must be investigated for potential unmarked graves of atrocities committed during the MK-Ultra program by the CIA and Canada.

On October 27, 2022, the Court orally issued an order to stop the excavation work. The interlocutory order contains no order against Canada.

On April 6, 2023, the parties entered into a settlement agreement through which an archaeological plan was established and a discontinuance of the injunction was agreed upon. As per the agreement, confirmed by Court order, Canada will (1) provide on a best efforts basis and as permitted by law an expedited access to Library and Archives Canada and (2) fund two contracts entered into between the Plaintiffs and the historian firm Know History Inc., for the collection of testimonies and design a detailed archival plan. Canada also agreed to give due regard to funding for further archival work once a detailed research plan and budget is received.

C. Dominique (Pekuakamiulnuatsh) v. Public Safety Canada (CHRT) / AGC v. Dominique (FC) / Pekuakamiulnuatsh Takuhikan v. PGC and PGQ (QCA) / Kiashke Zaaging Anishnaabek (KZA) (Gull Bay First Nation) v. HMTK (FC) / Micmacs of Gesgapegiag First Nation and al. v. AGC and AGQ / Corps de police des Abénakis / Indigenous Police Chiefs of Ontario v. Public Safety Canada

Lead Minister: Public Safety Canada

Highlight: Discrimination in the agreements entered into with the First Nations Policing Program.

Key Dates: Federal Court Hearing in Dominique took place on November 15, 2022. On March 1, 2023, the Federal Court dismissed Canada’s judicial review application of the CHRT’s decision. Canada appealed the decision on March 31, 2023. Canada’s memorandum of fact and law is due on July 17, 2023.

The Québec Court of Appeal rendered the decision in Pekuakamiulnuatsh Takuhikan on December 15, 2022. Quebec sought leave to appeal it before the Supreme Court and named Canada an Intervener. Awaiting decision on the leave application. No litigation deadlines yet for the other cases.

Dominique

The complainant, Mr. Gilbert Dominique, Chief of the Pekuakalminuatsh First Nation in Mashteuiatsh, filed a complaint with the Canadian Human Rights Commission alleging that Public Safety Canada discriminated against him (s. 5 of the Canadian Human Rights Act). More specifically, the First Nation was allegedly discriminated against in the tripartite agreements entered into under the First Nations Policing Program, due to lower funding and service levels than other police forces in Quebec and the imposition of one-year agreements. Canada argued that in terms of funding and services, the First Nation had access to services equal to or better than those of the surrounding communities, in addition to receiving support, free of charge, from the Sûreté du Québec. In its decision, the Canadian Human Rights Tribunal concluded that there was unfavourable treatment based on a ground of discrimination, particularly in that the level of funding granted to the First Nation did not correspond to its real needs.

On March 2, 2022, Canada filed an application for judicial review of the decision of the Canadian Human Rights Tribunal in the Federal Court. The application was heard on November 15, 2022.

On March 1, 2023, the Federal Court dismissed Canada’s application for judicial review of the Canadian Human Rights Tribunal’s (CHRT) decision in the Dominique case. The Federal Court found that the CHRT did not commit any error warranting the Court’s intervention when it found that the First Nation had suffered discrimination on a prohibited ground in the provision of a service by the federal government. The Court notes that the Tribunal conducted a rigorous analysis of the evidence and that its decision is coherent and rational. The Federal Court notes the persuasive force of the Quebec Court of Appeal’s decision in the related Takuhikan case. Canada appealed the Dominique decision to the Federal Court of Appeal on March 31, 2023.

Pekuakamiulnuatsh Takuhikan

This case is also the subject of a related decision before the Superior Court of Quebec where the Court rejected the First Nation’s claims of breach of honour of the Crown, fiduciary duty and breach of the duty to negotiate in good faith. The First Nation appealed the decision from the Superior Court of Quebec before the Quebec Court of Appeal (QCA). On December 15, 2022, the QCA ruled in favour of the First Nation by concluding that Canada and Quebec had failed to act honourably towards the First Nation by providing insufficient funding and ordered Canada and Quebec to pay damages in the amount of approximately $1.6M, the total deficit claimed by the First Nation for the operation of its police service.

On February 13, 2023, Québec sought leave to appeal this decision before the Supreme Court, Canada did not. However, Québec named Canada as an intervernor to the leave application.

Canada did not provide substantial submissions on the application for leave for appeal but reserved the right to to raise any appropriate means to participation in appeal should the court grant leave. A decision by the Supreme Court on whether it grants leave or not to appeal the QCA’s decision is expected in the next few months.

Kiashke Zaaging Anishnaabek (Gull Bay First Nation)

On December 5, 2022, another underfunding claim of police services was filed in Federal Court. The Kiashke Zaaging Anishnaabek (KZA) (Gull Bay First Nation) allege that Canada failed to provide sufficient and equitable funding of KZA’s Policing in Northern Ontario. KZA claims (i) that Canada breached its fiduciary duty to provide appropriate police funding to the First Nation; (ii) that Canada’s funding model constitutes discrimination contrary to s. 15 of the Charter; and (iii) that the funding model was negligent. Canada’s statement of defence was filed on February 28, 2023. It is a community a few hours from Thunder Bay with an agreement under the older Ontario-based system Ontario First Nation Policing Agreement (a bi-lateral funding agreement with Canada and Ontario). Canada funds its portion under the First Nations Inuit Policing Program.

Canada’s position is that there is no cause of action against Canada in the circumstances of this case, as the responsibility to provide adequate police services falls to the province of Ontario. Further, Ontario is responsible for providing adequate police services is undisputed and set out in s. 19 of Ontario’s Police Services Act and also expressed in a tripartite agreement between Kiashke Zaaging Anishinaabek, Ontario and Canada. Finally, the claim ought to have been brought against Ontario in the Superior Court, not against Canada in the Federal Court.

Gesgapegiag Police Force

On April 28, 2023, Canada received service of an Originating Application from the Micmacs of Gesgapegiag First Nation and its band council seeking reimbursement of deficits caused by the underfunding of the Gesgapegiag Police Service.

Based on the recent Takuhikan decision of the Court of Appeal of Quebec, the Plaintiffs allege that Canada has made a solemn promise to the Plaintiffs to fund the Gesgapegiag Police Service by adopting its Policy. However, they argue that the funding provided under the agreements with the Plaintiffs was set arbitrarily and contrary to the provisions and objectives of the Policy and the mission of Indigenous police forces as set out in s. 93 of the Police Act, in that the funding is not based on the costs of policing in surrounding communities characterized by similar conditions, nor is it set in such a way as to ensure an effective, professional and culturally appropriate police service for the Micmacs of Gesgapegiag. The Plaintiffs thus submit that Canada and Quebec breached their obligations to act with honour and good faith towards them in maintaining and funding the Gesgapegiag Police Service. They are claiming a total amount of $1,024,777 representing the deficit incurred by their police service for the period from April 1, 2012 to March 31, 2022, namely $532,884.04 in respect of Canada (52%) and $491,892.96 in respect of Quebec (48%), with interest and additional indemnity. A Case Protocol is to be filed on June 12, 2023. In the interim, on May 17, 2023, Québec indicated that they intend to seek a temporary stay of the Gesgapegiag proceedings, along with Corps de police des Abénakis. The proposed duration of the stay is until 60 days following final judgment to be rendered in the Pekuakamiulnuatsh Takuhikan matter before the Supreme Court of Canada.

Corps de police des Abénakis

On April 28, 2023, the Abenakis of Odanak First Nation and its band council served an application on Canada claiming reimbursement of losses caused by underfunding of the Abenaki Police Force (CPDA).

Since 2009, the Abenakis of Odanak First Nation and the governments of Canada and Quebec have entered into various agreements to fund the CPDA and thus enable them to benefit from professional, efficient police services adapted to their culture, pursuant to the First Nations Policing Policy adopted by Canada in 1991. Relying on the recent Takuhikan judgment of the Quebec Court of Appeal (CAQ), they allege that Canada solemnly undertook to the plaintiffs to finance the CPDA by adopting its Policy.

The Plaintiffs maintain that the funding granted under the agreements entered into was fixed arbitrarily and contrary to the provisions and objectives of the Policy and to the mission of the Aboriginal police forces set out in s. 93 of the Police Act. They are claiming a total amount of $1,442,047 representing the deficit incurred by their police force for the period from April 1, 2012 to March 31, 2022. On May 17, 2023, Québec indicated that they intend to seek a temporary stay of the Abénakis proceedings, along with Gesgapegiag Police Force. The proposed duration of the stay is until 60 days following final judgment to be rendered in the Pekuakamiulnuatsh Takuhikan matter before the Supreme Court of Canada.

D. Nicholas Marcus Thompson et al. v. HMQ

Lead Minister: Treasury Board Secretariat

Highlight: Systemic inequalities and racism faced by Black Canadians within the Public Service.

Key Dates: September 22, 2023 – Canada’s Certification factum due; October 16-25, 2023 – Certification motion hearing.

The proposed class action is brought on behalf of all Black individuals who worked for, or applied to work for, Canada as part of the Public Service (as defined in a schedule to the Claim) at any time after 1970. The listed departments include all government departments listed in schedules I, IV and V of the Financial Administration Act, as well as the RCMP, and the Canadian Armed Forces. The claim alleges that despite efforts and legislative actions intended to remedy systemic inequality for Black Canadians the measures put in place have failed to redress these harms and have instead exacerbated the systemic inequalities and racism faced by Black Canadians, particularly in the hiring and promotion practices within the Public Service.

Canada is opposing the plaintiffs’ motion for certification (Plaintiffs’ certification factum due August 25, 2023). Canada has brought a motion to strike the claim on jurisdictional grounds for being barred by s. 236 of the Federal Public Sector Labour Relations Act, as the plaintiffs could have availed themselves of grievance rights. The motion will be heard at the same time as the motion for certification. Canada has also brought a motion to stay portions of the claim that overlap with other certified and proposed class actions alleging racial discrimination, racism and race-based harassment against the Royal Canadian Mounted Police, Canadian Armed Forces, Department of National Defence, Staff of Non-Public Funds, and Correctional Service Canada.

Cross-examinations of affiants on the certification records began in April 2023 and were to continue into July but have been stopped by the Plaintiffs. On May 16, 2023, the plaintiffs brought a motion alleging that Canada is obstructing the cross-examinations and seeking, among other things, in person judicial oversight of the cross-examinations and an order for Canada’s affiants to re-attend further cross-examinations. The motion will be in writing and Canada’s responding motion record is due May 26. In the meantime, the court has ordered that the cross-examinations continue while the motion is being decided. Canada’s certification and motion to strike facta are due September 22, 2023 and the hearing of the motion to strike, motion to stay, and the certification motion are scheduled for October 16-25, 2023.

E. BOLOH et al v. HMTQ et al

Lead Minister: Global Affairs Canada

Highlight: An order of mandamus for Canadians currently in detention camps or prisons under the control of Syrian Kurdish forces.

Key Dates: No upcoming dates.

The Applicants are 27 Canadians currently in detention camps or prisons under the control of Syrian Kurdish forces, as well as their family members in Canada. They sought an order of mandamus, to compel the federal government to facilitate the repatriation of these detained individuals based on legal obligations under the Charter, statute and international law. In response, Canada asserted that it has no legal obligation to repatriate the Applicants.

On January 20, 2023, the Federal Court granted the application in respect of four men currently in detention camps or prisons under the control of the Autonomous Administration of North and East Syria (ANNES). Specifically, it declared that the men are entitled: (a) as soon as reasonably possible for Canada, to make formal requests to ANNES to allow their voluntary repatriation; (b) to passports or emergency travel documents; and (c) to the appointment by Canada of a representative(s) to attend within ANNES controlled territory to hand over the Applicants for their repatriation to Canada.

On February 10, 2023, Canada appealed the Federal Court’s order for Canada to facilitate the repatriation of four men currently in detention camps or prisons under the control of ANNES. Canada also sought to stay the Federal Court’s order and to expedite the appeal. Canada obtained a stay of the FC order though is required to continue making formal requests to the detaining authority for the repatriation of the BOLOH men unless doing so would be to their detriment. The Court has expedited the appeal that was heard on March 27, 2023. While they did not oppose the expedition of the hearing, the Respondents opposed the stay. In their reply, the AGC asked that the current interim stay be maintained.

The Federal Court has made pronouncements on s. 6 of the Charter that expand the right of entry to include a right of return, creating wider implications in particular for Passport Canada and Consular Services. The women and children detainees and their family members in Canada have discontinued their application because Canada agreed to repatriate them.

F. AA/AB et al. v. Attorney General of Canada (AGC), Minister of Citizenship and Immigration (MCI) & Minister of Foreign Affairs (MFA) (IMM-8945/8944-22), B.C., and U.V., W.X. and Y.Z. (by their litigation guardian B.C.) v. Minister of Citizenship and Immigration (MCI) (Court File: IMM-4575-23)

Lead Department: Immigration, Refugees and Citizenship Canada

Highlight: Applicants seek orders of mandamus compelling Canada to issue them Temporary Resident Permits (TRP).

Key Dates:

These are two separate immigration applications (AB and BC) seeking mandamus in relation to TRP applications brought by two foreign national mothers of Canadian children in Syria. These TRP applications were made in February 2023 and the within litigation commenced a month and half later.

In both cases, the children are also named as applicants but do not seek a TRP as they have been accepted as citizens (based on their father’s Canadian citizenship). While the Applicants allege the children are part of the BOLOH settlement agreement, they were not in fact parties to that litigation. Instead, the children have been found eligible for return to Canada under the Framework (for extraordinary assistance in North Eastern Syria).

There is current ongoing litigation in BOLOH concerning the repatriation of four men currently in detention camps or prisons under the control of the Autonomous Administration of North and East Syria. Canada appealed the Federal Court’s order to facilitation the men’s repatriation. The appeal was heard on March 27-28, 2023. No decision has been rendered in the TRP applications.

G. PS752 Litigation: Arsalani v. UIA, Doe/Zarei v. Iran et al. Smith v. Iran

Lead Minister: Global Affairs Canada

Highlight: Various actions brought by families of the victims of Iran’s downing of Flight 752 (Canada is not a party in the individual or class actions).

Key Dates: No forward timetable.

Zarei et al. v. Islamic Republic of Iran (previously referred to as the John Doe action) is an action brought by six plaintiffs who are family members of the victims of PS 752 that proceeded as an individual action seeking damages from Iran, following the carriage decision. The Court ordered a bifurcation of liability and damages on a default summary judgment motion. On May 20, 2021, the Superior Court granted default judgment against Iran, and found that the downing of flight PS752 was an act of terrorism and constitutes “terrorist activity” under Part II.1 of the Criminal Code and the State Immunity Act (‘SIA’).

The Court found Iran does not benefit from state immunity, and that Iran is liable to the plaintiffs under the Justice for Victims of Terrorism Act. Iran took no steps to defend this action. On December 31, 2021, the Ontario Superior Court of Justice released its summary judgment decision on damages, awarding $107 million to the plaintiffs.

On February 9, 2022, the plaintiffs brought a motion for Canada to enforce the default judgment against property certified by the Minister of Foreign Affairs as continuing to enjoy diplomatic status despite the suspension of diplomatic relations in 2012. However, on January 10, 2023, the Superior Court of Justice held that Iran’s diplomatic properties certified by the Minister were immune from execution. The Court also held that the executive branch was best placed to make foreign policy decisions concerning the diplomatic status of certain Iranian assets within Canada. The plaintiffs have appealed this decision to the Ontario Court of Appeal. On March 28, 2023 Canada was granted leave to intervene as a party, and Canada filed its intervenor factum for the appeal on April 27, 2023.

Related claims:

On January 6, 2022, a statement of claim was issued in Smith v. Iran, a representative action on behalf of 100 unnamed family members of victims of the downing of flight PS752. On May 17, 2022, the Deputy Minister of Foreign Affairs certified transmission of the claim to Iran. Iran had until July 18, 2022 (60 days pursuant to the SIA) to defend the action. The defendants have not defended the action. On October 5, 2022, the OSCJ directed the Registrar to note the defendants in default.

On March 25, 2022, a statement of claim was issued in Dhirani et al. v. Islamic republic of Iran et al., an action brought by the family of a passenger, wherein the Plaintiffs are seeking $35M in damages under the Justice for Victims of Terrorism Act.

H. La Société de l’Acadie du Nouveau-Brunswick (SANB)

Lead Minister: Privy Council Office, The Honourable Bill Blair, President of the King’s Privy Council

Highlight: Official Languages challenge to the appointment of the Lieutenant Governor of New Brunswick.

Key Dates: Hearing of this appeal to take place on June 15, 2023.

On September 5, 2019, Ms. Murphy was appointed as the Lieutenant Governor of New Brunswick by the Governor General of Canada, on the recommendation of the Prime Minister. The SANB filed an application challenging the appointment, alleging that the Prime Minister, in recommending Ms. Murphy, breached his statutory obligations as they are framed under the Official Languages Act (“OLA”) and the Charter. It also alleges that Ms. Murphy is non-compliant to the obligations under OLA as she is not fluent in French. Finally, it also alleges that the Charter imposes an obligation that the Lieutenant Governor of New Brunswick be fluently bilingual.

On April 14, 2022, the New Brunswick Court of Queen’s Bench rendered its decision. While recognizing that subsections 16(2), 16.1(2) and 20(2) of the Charter create obligations of an institutional nature, the Court held that, given the Lieutenant Governor of New Brunswick’s unique role as Head of State, these provisions require that she be personally bilingual. However, the Court did not overturn the appointment, preferring to leave it to the government to determine the timing and extent of the steps that will need to be taken to correct the situation. The AGC appealed this decision to the New Brunswick Court of Appeal.

On June 10, 2022, SANB filed a cross-appeal, alleging that the Court erred in not concluding that the appointment was also contrary to paragraphs 18(2), and 16.1(1) of the Charter and refusing to quash the appointment, as an appropriate remedy.

Canada takes the position that section 58 of the Constitution Act, 1867, which created the office of Lieutenant Governor of the provinces and the power to appoint them, contains no bilingual requirement. The power to nominate the lieutenant governors is highly discretionary. Further, the institutions and offices Government of New Brunswick must implement the substantive equality of existing language rights under the Charter. There is not requirement for those that represent them to be proficient in both official languages. Finally, the trial court exceeded its authority and substituted its opinion with that of the Governor General in Council and the Premier who recommended the candidate.

II. Anticipated decisions

I. Firearms-related litigation (Federal Court)

Lead Minister: Public Safety Canada

Highlight: Firearms ban

Key Dates: Applications hearing from April 11-20, 2023.

The merits of the FC applications were heard on April 11-20, 2023, and the decision is under reserve.

The other application before the Alberta Court of King’s Bench was argued on November 2, 2022. The court rendered its decision on April 18, 2023, allowing Canada’s application to dispose of the proceedings for the following reasons: 1) the applicants’ administrative law claims fall within the exclusive jurisdiction of the Federal Court; and 2) the Alberta Court of King’s Bench declines to assert jurisdiction over the constitutional law claims. The court declined Canada’s alternative request to strike the applicants’ constitutional law claims, finding that it was not “plain and obvious” those arguments could not succeed as the point was not fully argued during the hearing. The appeal period expired on May 18, 2023, and the applicants did not file such appeals.

J. Emergencies Act Litigation (Federal Court)

Lead Minister: Privy Council Office, The Honourable Bill Blair, President of the King’s Privy Council

Highlight: Judicial review applications to the lawfulness and constitutionality of the invocation of the Emergencies Act.

Key Dates: Canada filed its response to Alberta’s intervenor factum on March 28, 2023, and the hearing on the merits and Canada’s motions respecting mootness and standing was heard on April 3-5, 2023. Decision under reserve.

The Governor in Council declared a public order emergency under the Emergencies Act on February 14, 2022, in response to an urgent and volatile situation of escalating, unlawful protests and illegal blockades across Canada between January 29, 2022 and February 14, 2022. That declaration was revoked on February 23, 2022. The AGC is now defending four applications for judicial review in the Federal Court seeking to challenge the use of the Emergencies Act. The Applicants are Jost, Canadian Constitution Foundation (CCF), Canadian Frontline Nurses (CFN), and the Canadian Civil Liberties Association (CCLA). The four judicial review applications are being heard together. The Applicants argue that the invocation of the Emergencies Act was unlawful and unconstitutional.

In January 2023, the Federal Court allowed CCLA, CCF, and Jost to admit evidence from the Public Order Emergency Commission (POEC). Canada appealed this decision on February 3, 2023, but asked the Court hold the appeal in abeyance pending the Federal Court’s final order on the merits of the underlying judicial review. On March 1, 2023, Canada was largely successful on its motion to file additional responding POEC evidence.

In all four judicial review applications, Canada is pursuing a motion to strike the applications for mootness because the declaration was revoked. Canada also challenges the applicants’ standing to bring the applications (with the exception of two Jost applicants who were directly affected because their accounts were suspended). Canada filed its response to Alberta’s intervenor factum on March 28, 2023, and the hearing on the merits and Canada’s motions respecting mootness and standing was heard on April 3-5, 2023.

Canada’s position is that the judicial review applications are moot and the applicants do not have standing. Alternatively, Canada argues that the invocation of the Emergencies Act was reasonable, lawful, and constitutionally compliant.

K. Justice for Québec et al. v. Attorney General of Canada (Québec Superior Court)

Lead Minister: Privy Council Office, The Honourable Bill Blair, President of the King’s Privy Council

Highlight: Challenge of the validity of the appointment of the Governor General based on language rights.

Key Dates: November 25, 2022 – The AGC filed an application asking the QuébecSuperior Court to dismiss the file for lack of jurisdiction. Hearing of the application was held on April 27, 2023, and the decision is under reserve.

The plaintiffs have filed an application in the Quebec Superior Court challenging the appointment of the current Governor General. They argue that the appointment contravenes subsections 16(1) and 20(1) of the Canadian Charter because, they allege, at the time of her appointment as Governor General, she did not have a sufficient command of the French language. They ask the Court to declare the instrument of appointment, the report of the Advisory Panel for the Selection of the Governor General, and the advice of the Prime Minister of Canada recommending the appointment of the current Governor General, void, invalid and unenforceable.

Canada’s position is that the case should be dismissed at a preliminary stage due to lack of jurisdiction of the Quebec Superior Courts. Without recognizing that the issue is justiciable, Canada argues that the Federal Court has exclusive jurisdiction over what is essentially an attempt to seek judicial review of the decision to appoint the Rt. Hon. Simon as Governor General.

L. Canadian Council for Refugees (Safe Third Country Agreement) (Supreme Court of Canada)

Lead Department: Immigration, Refugees and Citizenship Canada / Canada Border Services Agency

Highlight: Constitutional challenge to Safe Third Country Agreement.

Key Dates: SCC appeal hearing was on October 6, 2022. Awaiting decision.

In 2002, Canada and the US concluded the Safe Third Country Agreement (STCA), which came into force on December 29, 2004. Pursuant to s. 102 of the Immigration and Refugee Protection Act (IRPA), the federal government promulgated s. 159.3 of the Immigration and Refugee Protection Regulations and designated the US as a safe third country. Therefore, most refugee claimants arriving from the US at a land port of entry (POE) are not eligible for refugee protection in Canada (s. 101(1)(e) of the IRPA) and are returned to the US. Claimants coming in through non-POEs or POEs other than land POEs, and those who have family or face death penalty, are not ineligible.

This is the second challenge to the STCA. In this case, the collective applicants argue that the designation violates ss. 7 and 15 of the Charter and is not saved under s. 1; that the Governor in Council did not have the power to designate the US in 2004 (in legal terms, that the designation is ultra vires the GIC’s power), an argument that the Federal Court of Appeal dismissed in the first challenge; that the continued designation of the US is unreasonable, namely considering the deficiencies of the ongoing review mechanisms and the Minister of Citizenship and Immigration’s failure to report to the GIC for reconsideration of the designation. The Federal Court ruled that the designation violates s. 7 and is not saved under s. 1 of the Charter, declined to rule upon the s. 15 arguments, and dismissed the administrative law arguments. The Federal Court of Appeal reversed the Federal Court judgment as to the invalidity of the designation, found that the s. 15 argument in reality is a claim that US authorities act discriminately against refugee claimants, confirmed the Federal Court’s ruling on administrative law grounds, and dismissed all applications for judicial review. As a result, s. 101(1)(e) of the IRPA and s. 159.3 of the IRPR are valid.

Canada takes the position that removing foreign nationals who claim protection at the Canada-US land border so that their need for protection is assessed within the US system does not shock the conscience and does not infringe s. 7 of the Charter. STCA returnees are not automatically detained upon removal to the US and if detained, they have access to pro bono counsel or counsel and are represented in the vast majority of cases. The US immigration scheme allows for many occasions to have their need for protection assessed; the court system is accessible and independent; STCA returnees cannot be removed from the US unless their need for protection has been assessed. Canada further argues that the SCC need not rule upon the s. 15 argument since discrimination, if any, was committed by the US authorities, not Canadian authorities, and the Charter does not apply extraterritorially.

Canada’s arguments based on administrative law (i.e. the reasonableness of the continued designation of the US as a safe third country) were in the same vein with an emphasis on the thorough reviewing mechanisms IRCC put in place to ensure that the designation continuously complies with the IRPA.

M. Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (C-92 Litigation) (Supreme Court of Canada)

Lead Minister: Indigenous Services Canada

Highlight: Bill C-92 – Reference challenging the constitutionality of the Act.

Key Dates: December 7 – 8, 2022 – Hearing of the AGC and AGQ’s appeal to the Supreme Court of Canada. Awaiting decision.

The First Nations, Inuit and Métis Child, Youth and Family Services Act, S.C. 2019, c. 24 (the Act), which came into force on January 1, 2020, sets out basic principles and minimum standards for Aboriginal child welfare. It affirms the inherent right of self-government for Aboriginal peoples, including jurisdiction over children’s services, and establishes a mechanism for them to transition to the partial or full exercise of that jurisdiction.

On December 20, 2019, the AGQ instituted a reference to the Quebec Court of Appeal (QCA) challenging the constitutionality of the Act on the grounds that (1) Parliament had no jurisdiction to legislate on how provinces deliver services to children; and (2) the Act unilaterally defines the inherent right of self-government protected by section 35 of the Constitution Act. The Attorney General of Canada and the five interveners supported the constitutionality of the Act.

On February 10, 2022, the QCA issued its decision on the Reference. The Court concluded that the Act is valid, except for sections 21 and 22(3), which provide that Aboriginal laws made under the Act have the force of federal law and prevail over provincial laws. The national standards in Part I were declared valid.

The hearing took place on December 7 and 8, 2022.

Canada argued that the pith and substance of Act as a whole is to protect and ensure the well-being of Indigenous children, families and communities by encouraging culturally appropriate child services with the goal of putting an end to the over-representation of Indigenous children in child services systems. These provisions clearly fall under the federal authority set out in subsection 91(24) of the Constitution Act, 1867 since they concern relationships within Indigenous families and communities and aim to ensure the survival of Indigenous peoples’ distinctive cultures and their Indigenous character.

A decision by the Supreme Court will ensure that the Act applies uniformly across Canada, reducing jurisdictional complexity and confusion on the ground. In addition, this decision is linked to an important government priority to improve services for Aboriginal children and families. The decision will have significant implications for future federal legislative initiatives.

N. Reference Re Impact Assessment Act (Supreme Court of Canada)

Lead Department: Impact Assessment Agency of Canada

Highlight: Constitutional challenge to Impact Assessment Act.

Key Dates: SCC appeal hearing on March 21-22, 2023.

On August 28, 2019, Bill C-69, the Impact Assessment Act and Physical Activities Regulations came into force. Alberta brought a reference to the Alberta Court of Appeal (ABCA) to determine whether the Act and the Regulations were unconstitutional in whole or in part as being ultra vires the legislative authority of the federal government.

On May 10, 2022, the ABCA released its opinion on this reference. The majority found the Act and Regulations ultra vires Parliament and that they fatally intrude into provincial jurisdiction and provincial property rights over public lands and resources, and cannot be classified as falling within federal jurisdiction on the basis of any head of federal power. Justice Greckol issued a dissenting opinion that the Act and Regulations are intra vires Parliament.

On June 8, 2022, Canada filed an appeal of the opinion of the ABCA with the Supreme Court of Canada. Canada argues that the ABCA erred in characterizing the Act and Regulations as intruding into provincial jurisdiction over property rights and natural resources. Canada’s position is that the Act and Regulations are a valid exercise of federal authority, designed to safeguard against adverse environmental effects in relation to matters within federal jurisdiction.

The Attorneys General for British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Quebec, Ontario and Saskatchewan are intervening in the appeal to the SCC. In addition, the SCC has permitted 22 interveners, or groups of interveners, to intervene.

On August 31, 2022, Canada filed its factum. On November 23, 2022, Alberta filed its factum. The factums of the provincial Attorneys General and interveners were filed on December 21, 2022. Canada and Alberta filed their reply facta on February 1, 2023. The SCC appeal is scheduled to be heard March 21-22, 2023.

Canada’s position is that the Act and Regulations are constitutional and within federal jurisdiction. The ABCA erred in its characterization of the Act by incorrectly identifying the pith and substance of the Act, by artificially narrowing the characterization analysis, improperly focusing on the Act’s efficacy or practicality, and dismissing the effectiveness of judicial oversight. The SCC in Oldman River, held that, with respect to the environment, federal authority flows from whether a proposed project has effects that impinge on an area of federal jurisdiction. The ABCA erred by failing to apply this analytical framework and instead relying on discredited reasoning by categorizing resource projects as “provincial” or “federal”. The correct approach to determining the constitutionality of the Act and Regulations is an effects-based approach. Where a proposed project may have effects that impact areas of federal jurisdiction, those projects are proximate to a federal head of power and Parliament may validly legislate.

General Note on Litigation Costs:

The federal government continues to support open, transparent and accountable government by sharing total legal costs where it is possible to do so while supporting the proper functioning of our legal system.

Question: Have the litigation costs increased in the last few years?
Answer: Yes, litigation costs have increased in the last few years. The COVID-19 pandemic and the corresponding reduced operations of decision-making bodies has had some impact on legal services costs, particularly in 2020-21. But, overall, the level of effort on litigation files is increasing.

Question: Where does the increase come from? Is it limited to one area?
Answer: The increase comes from a variety of client departments and agency files. It has been more pronounced in some areas, including in support of tax, Indigenous and Immigration matters and in class proceedings.

Background:

Specific Requests for Legal Costs

In the last year the federal Crown has waived solicitor-client privilege to the extent of disclosing the total legal costs associated with certain files or groups of files in response to a number of Parliamentary Questions seeking legal costs information and we continue to respond to these requests.

Total Legal Costs include Notional Amounts and Actual Costs

Department of Justice lawyers, notaries and paralegals are salaried public servants and therefore no legal fees are incurred for their services. A “notional amount” can, however, be provided to account for the legal services they provide. The notional amount is calculated by multiplying the total hours recorded in the responsive files for the relevant period by the applicable approved internal legal services hourly rates. Actual costs are composed of file related legal disbursements paid by the Department and then cost-recovered from the client-departments or agencies, as well as the costs of legal agents who may be retained by the Minister of Justice to provide litigation services in certain cases.