Appealing Briefs

Can governments in Canada be ordered to pay damages under section 24(1) of the Charter of Rights and Freedoms when a legislature has enacted unconstitutional legislation? The Supreme Court of Canada says “yes”, albeit only in limited circumstances.

In this episode of Appealing Briefs, host Adam Goldenberg and McCarthy Tétrault litigator Connor Bildfell discuss the decision in Canada v. Power. They explore the circumstances under which individuals may seek damages against the government for laws violating the Charter and the government's limited immunity from such claims.

Legislatures often provide for appeals to court from government decisions, but only on questions of law (as opposed to questions of fact or of mixed fact and law). How should the court respond when a person who is unhappy with a government decision seeks judicial review on a question on which there is no right of appeal?
The Supreme Court of Canada addressed this issue of administrative law in Yatar v. TD Insurance Meloche Monnex. Host and appellate litigator Adam Goldenberg discusses the implications of the Yatar decision with McCarthy Tétrault partners Christine Lonsdale and James Holtom.

Does Parliament have the power to give Indigenous-made laws priority over inconsistent provincial laws? In the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, the Supreme Court of Canada confirmed that it does.

On this episode, Adam Goldenberg speaks with litigator and Aboriginal law expert Bryn Gray and McCarthy Tétrault’s Legal and Strategic Advisor for Indigenous Initiatives, John Brown, about the implications of the Court’s decision for businesses that work with Indigenous communities.

Are public school boards subject to the Charter of Rights and Freedoms? This question had never been answered definitively — until the Supreme Court of Canada’s June 2024 judgment in York Region District School Board v. Elementary Teachers Federation of Ontario. The answer: yes.

Adam Goldenberg speaks about the implications of the decision with Caroline Zayid, McCarthy Tétrault’s Regional Managing Partner for Ontario, who represented the Ontario College of Teachers in the York Region case.

Mr. Neufeld, an elected official, made controversial comments about sexual orientation and gender identity. Mr. Hansman, a teacher and former union president, responded with harsh criticism. Mr. Neufeld sued Mr. Hansman for defamation — only to have the Supreme Court of Canada dismiss his claim as a “SLAPP”. 

What does Hansman v. Neufeld mean for the protection of 2SLGBTQI+ in the courts, for free speech, and for defamation law? Adam Goldenberg speaks with McCarthy Tétrault litigators Ljiljana Stanić and Solomon McKenzie about the Hansman case and its implications, on this special Pride month episode.

How clearly must an exclusion clause limit liability under a contract in order to be effective? In the Earthco case, the Supreme Court of Canada held that it is the “objective meaning of the parties’ express agreement,” and not just the specific language that the parties have chosen in the contract, that determines the scope of an exclusion clause. To understand the implications for businesses – and for anyone else who enters into contracts – Adam Goldenberg speaks with Brandon Kain, McCarthy Tétrault partner and co-founder of the firm’s National Appellate Litigation Group.

Must a regulator consider the Charter even when making a decision that does not engage a Charter right? In Commission scolaire francophone, the Supreme Court of Canada confirmed that the answer is "yes." In doing so, the Court reignited a long-running discussion about Charter rights and "Charter values" in administrative law. In this episode of Appealing Briefs, host Adam Goldenberg speaks with Caroline Zayid, McCarthy Tétrault’s Regional Managing Partner for Ontario and a leading administrative lawyer, about what regulators and regulated entities should take from this decision and how they should make sense of the Charter's role in administrative decision making and judicial review.

On October 13, 2023, the Supreme Court of Canada released its decision on the constitutionality of the federal government’s Impact Assessment Act. It deemed parts of the law to be unconstitutional, setting the stage for changes to the federal environmental assessment process. So, what are the implications for businesses on the ground? What amendments might the federal government pursue? And are there opportunities to improve the process? Adam Goldenberg speaks with Kimberly Howard, McCarthy Tétrault partner and co-leader of the firm’s Environmental Group, and Wayne Wouters, Strategic and Policy Advisor to the firm and former Clerk of the Privy Counsel of Canada.