Department of Justice Canada Minister's Transition Book (Pocket version)

Litigation

Litigation strategy

The Government’s commitment to openness and transparency is promoted by outlining the principles that guide the litigation positions and decisions of the Attorney General of Canada.
We have published the Principles Guiding the Attorney General of Canada in Charter Litigation. They emphasize constitutionalism and the rule of law; parliamentary democracy; adjudication; continuity; consistent application of the Charter; and access to justice.
We have also recently released a Directive on Civil Litigation Involving Indigenous Peoples which represents the Government’s new guide on how our litigators will conduct civil litigation involving Aboriginal and treaty rights, and Crown obligations towards Indigenous peoples. It promotes an approach to conflict resolution that is consistent with the goal of achieving reconciliation with Indigenous peoples.
We have also published three annual reports on significant litigation involving the Government of Canada. The 2018 Litigation Year in review is now available.

Major Litigation

Administrative Segregation Litigation

(Minister of Immigration, Refugees and Citizenship, Minister of Border Security and Organized Crime)

Charter Challenges

Courts in Ontario and British Columbia have declared the statutory framework governing administrative segregation to be unconstitutional for violating the Charter.
Appeals of both decisions were heard in November 2018, and the Courts of Appeal in each case have yet to release their decisions.
The current legislation will remain in place until the Courts’ declarations of invalidity come into effect, not before April 20, 2019 in Ontario and June 17, 2019 in British Columbia.

Class Actions

Three class actions seeking damages for breach of the Charter rights have been brought against Canada concerning the Correctional Service of Canada’s use of administrative segregation: Brazeau, Galloneand Reddock.
The next steps involve Canada filing its written argument in Brazeau on January 15, 2019 with the hearing in that matter set to begin on February 11, 2019. The litigation steps in the other two cases are also proceeding, with a hearing in Reddock scheduled for July 2019.

Assembly of First Nations and Child and Family Caring Society

(Minister of Indigenous Services Canada)

The Assembly of First Nations and the First Nations Child and Family Caring Society, brought a complaint of discrimination in the funding and services provided by Canada to First Nations communities in relation to child welfare and related services in Canada.
The Government of Canada, through Indigenous Services Canada, has committed to substantial reforms in First Nations child and family services, both in funding and in service delivery.
Indigenous Services Canada is working closely with First Nations agencies, provinces and territories in this important work.
Department of Justice counsel are supporting Indigenous Services Canada in the Canadian Human Rights Tribunal proceedings.

Carbon Pricing References

(Minister of Environment and Climate Change Canada)

At issue is the constitutionality of the Greenhouse Gas Pollution Pricing Actintroduced on March 27, 2018, which implements a federal carbon pollution pricing system to be applied in Provinces and Territories that have no system, or whose system does not meet the federal benchmark for carbon pricing.
The Reference to the Saskatchewan Court of Appeal will be heard in February 2019 and the Reference to the Ontario Court of Appeal will be heard in April 2019.
As an intervener in both references, the Attorney General of Canada will defend the federal government’s constitutional authority to enact legislation to address climate change pursuant to the national concern branch of the peace order and good government power under section 91 of the Constitution Act, 1867.

Diversity Litigation

(Minister of National Defence, Minister of Public Safety and Emergency Preparedness)

The Government of Canada is deeply concerned about all allegations of harassment and discrimination. Canada benefits from its diversity and no individual should be made to suffer because they are perceived as different and therefore less worthy.
With that in mind, counsel and others from my department have played key roles in helping settle class actions alleging:
- harassment, intimidation or discrimination based on gender or sexual orientation against females within the Royal Canadian Mounted Police (Merlo and Davidson); and
- damages suffered by certain current and former public servants (CAF, RCMP, and other members of the federal public service) from what is known colloquially as the LGBT purge (Ross, Roy and Satalic).
In dealing with other diversity-related class actions we are facing, my Department continues to advocate positions that are consistent with our Canadian values and the Charter of Rights and Freedoms.

Indian Day Scholars Litigation

(Minister of Crown - Indigenous Relations and Northern Affairs)

McLean

This proposed class action relates to the mistreatment of Indigenous children who attended Indian Day Schools.
An agreement in principle has been reached and the settlement approval hearing has been scheduled for April 9 to 11, 2019 before the Federal Court.
The key elements of the agreement are: individual compensation to those who attended an Indian Day School and were subject to physical or sexual abuse; a $200 million investment to support healing, wellness, education, language, culture and commemoration; and the payment of legal fees.

Gottfriedson

Gottfriedson is a class actions brought by Indigenous children who attended residential schools as day scholars.
Canada is participating in judicial dispute resolution with the plaintiffs.
We continue to work to resolve this class action.

Medical Assistance in Dying (MAID) litigation

(Minister of Health)

Medical assistance in dying is a deeply personal issue for Canadians and must be addressed with the utmost compassion, empathy and respect for diverse viewpoints.
The Government remains committed to supporting access to medical assistance in dying for eligible Canadians who choose this service.
The legislation (Bill C-14 - An Act to amend the Criminal Code and to make related amendments to other Acts - medical assistance in dying) strikes a balance between the personal autonomy of those who freely choose an assisted death, the desire to protect vulnerable individuals, and other societal interests and values.
Through section 241.2 2 of the Criminal Code, Parliament has developed an appropriate and responsive regime relating to medical assistance in dying. Canada will provide expert evidence to demonstrate this before the Quebec and British Columbia courts in response to the challenges. ‎

Pipeline Reference

(Minister of Natural Resources, Minister of Fisheries and Oceans, Minister of Environment and Climate Change, Minister of Finance)

The Government of British Columbia has referred proposed legislation to the British Columbia Court of Appeal and asked the Court to provide its opinion on its validity and its applicability to an interprovincial pipeline.
Canada has intervened in the Reference and will argue that the draft legislation is inapplicable to interprovincial undertakings like the Trans Mountain Expansion Project, because it frustrates Parliament’s purpose set out in federal legislation to approve such projects
It is important to intervene in these references because the BC Court of Appeal will need to consider federal jurisdiction and federal legislation in order to render its decision.
The Reference is being heard starting on March 18, 2019. We do not expect a ruling from the British Columbia Court of Appeal before late spring or early summer.

Restoule/Whitesand - Robinson Treaties Annuities Litigation