5 top cases before Supreme Court of Canada in 2016

Sherry Noik
Daily Brew

[The Supreme Court of Canada building is pictured, in Ottawa, on October 15, 2014. THE CANADIAN PRESS/Sean Kilpatrick]

Every year, the Supreme Court of Canada (SCOC) hears cases considered to be of national importance. They might pertain to constitutional questions, answer questions put to the court by the federal government or be the last resort in criminal and other appeals. Decisions by the country’s top court can trickle down to lower courts and govern their approach in future cases.

Here are five of the top cases to watch in 2016.

Jessica Ernst v. Alberta Energy Regulator
 
An Alberta woman whose water supply was contaminated by fracking sued the Alberta Energy Regulator (AER) for negligence and for allegedly trying to silence her by refusing to continue talks unless she stopped speaking out publicly. The regulator argued it is immune from such challenges under the Energy Resources Conservation Act (ERCA).

Jessica Ernst, of Rosebud, Alta., alleged that energy company Encana so polluted the community’s drinking water with natural gas and toxic chemicals that she could light her water on fire. She took legal action against Encana and the AER (then called the Energy Resources Conservation Board) in December 2007. In April 2011, she added Alberta (ministry of) Environment to the $33-million lawsuit.

An Alberta court sided with the AER, ruling in October 2013 that section 43 of the Act protects the regulator from private legal claims. It also agreed to the province’s request to strike out more than a dozen paragraphs in Ernst’s claim of negligence.

The essence of the case is whether the province can enact legislation – the ERCA – that protects itself. The SCOC heard Ernst’s request to appeal on Tuesday; it’s unclear when the court will hand down a decision.

Workers’ Compensation Appeal Tribunal v. Fraser Health Authority

Three female lab techs at a B.C. hospital were denied workers’ compensation for breast cancer, which they claimed was caused, or contributed to, by on-the-job exposure to chemicals.

Katrina Hammer, Patricia Schmidt and Anne MacFarlane were among six employees who developed breast cancer while employed at Mission Memorial Hospital between 1970 and 2004. The Workers’ Compensation Appeal Tribunal (WCAT), overruling two earlier decisions, said the women were entitled to compensation from their employer, the Fraser Health Authority.

“It found … it was at least as likely as not that the breast cancers were an occupational disease due to the nature of their employment,” court documents say. “The majority (of the panel) relied, in part, on the fact that there was a higher than expected rate of breast cancer amongst laboratory workers and that they had been exposed to carcinogens at work.”

Another WCAT panel denied the employer’s request for a review, but a B.C. Court of Appeal said WCAT did not have the authority to review its own decision.

In its submission to the SCOC, which was heard on Thursday, WCAT argued it does have jurisdiction to decide the matter, that it and other similar tribunals were expressly established to resolve such cases within their systems rather than waste the court’s time and expense.

The court reserved its decision and will make a ruling in a matter of weeks or months.

Her Majesty the Queen v. Oswald Oliver Villaroman
 
A Quebec man was acquitted for possessing child pornography, which was discovered on his computer by a repair shop technician. The Crown appealed and wants a new trial.

Oswald Villaroman successfully challenged his 2013 conviction on the grounds that the way the evidence was discovered violated his Charter rights, and that there was no way to prove someone else hadn’t downloaded the 36 child pornography files found on his computer, which was not password-protected.

The court, in its ruling last March, did not address the constitutional argument but agreed that there were gaps in the prosecutors’ case because, among other things, the number of files showed that downloading activity was “not very frequent,” and it would be “incautious” for someone to have put such material on a computer that bears only his user name.

That decision, the Crown argued in its application to the SCOC, “is an erroneous judgment with escalating implications. It is a matter of public importance to correct its errors and stem its implications.”

The Crown argued it sets a standard for proof that is “literally unattainable,” requiring it to disprove all other possibilities in order to get a conviction.

Villaroman’s case is scheduled for Feb. 24.

Gilles Gargantiel v. Attorney General of Quebec

A Quebec man whose car skidded off the road suffered hypothermia and had to have his leg amputated after police ignored several OnStar calls giving them the GPS co-ordinates of the car. The province argued he has already been compensated under Quebec’s no-fault auto insurance scheme, which prevents victims from suing a third party for damages.

On Oct. 18, 2009, Gilles Gargantiel careened off the road and into a patch of bushes. Unable to communicate with him, OnStar notified the Sûreté du Québec of the accident and pinpointed the location. Officers did not check the location provided and only did a “cursory” search over the next two hours, Gargantiel alleged.

He wasn’t found until two days later. He was taken to hospital, where doctor’s determined his right leg would have to be amputated below the knee. Gargantiel got a prosthetic and underwent four months of rehab, and “continues to suffer from permanent physical and mental incapacities.”

He got $103,000 from the Société d’assurance automobile du Québec (SAAQ) for “loss of enjoyment of life,” and a Quebec Court of Appeal ruled last February that the Automobile Insurance Act prevented Gargantiel from bringing legal action.

Gargantiel’s statement of claim alleged the officers’ actions caused “new or additional injuries to the said victim as a result of an intervening act of negligence.”

The “amputation was caused by suffering severe frostbite from being left out in the cold for over two days without being found, and not from the accident itself.”

Since there are several provinces that have no-fault insurance (Quebec, Manitoba, British Columbia, Saskatchewan), the top court is being asked to clarify if, and under what circumstances, an accident victim has the right to sue a third party, and whether accepting an insurance payout waives that right.

His case is scheduled to be heard Oct. 6.

Joseph Wilson v. Atomic Energy of Canada Limited

A fired Atomic Energy Canada employee says his employer – the federal government – dismissed him without cause, which violates the Canada Labour Code. The outcome of the case could affect the job security of half a million non-unionized federal workers.

Joseph Wilson was terminated on Nov. 19, 2009, and paid 24 weeks’ severance and benefits. He said he was fired for complaints he’d made about corrupt workplace procurement practices.

The Federal Court of Appeal ruled last January that federal employers may fire employees without cause but also failed to define exactly what constitutes unjust dismissal — a decision that “creates uncertainty that invites years of litigation as employers test the boundaries of what is a legally permissible basis for dismissal,” Wilson said in his application to the SCOC.

“That uncertainty over job security will weigh heavily upon individual employees.”

Wilson’s case is scheduled to be heard on Jan. 19.