Examinations 2023 ' The Evolution Of Appellate Law In The Post-Pandemic Era

Published date10 May 2023
Subject MatterGovernment, Public Sector, Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Constitutional & Administrative Law, Court Procedure, Indigenous Peoples
Law FirmLerners LLP
AuthorMs Rebecca Shoom, Carolyn Mckeen, Vanshika Dhawan, Anita Osmani, Miranda Brar and Earl Cherniak KC

There's no denying that the COVID-19 pandemic has had an unmistakeable impact on Canada's legal system. Over the last three years, the courts were faced with closures and forced to continually adapt to a situation that frankly, nobody saw coming.

You may remember last year's edition of examinations, where the topics of virtual hearings and remote legal practice were discussed along with the questions of their impact on access to justice, whether they would remain, and if so, to what extent. As we emerge from the pandemic, many of the practice directions laid out over the last few years remain, along with the efficiencies gained from the evolution of older rules.

Over the last year, a number of important decisions were made. Members of the Lerners Appellate Advocacy Group appeared before the Supreme Court of Canada on two occasions, and we saw the Honourable Michelle O'Bonsawin become the first indigenous judge to sit on the Supreme Court of Canada Bench.

It is with this that the Lerners Appellate Advocacy Group presents the fourth edition of Examinations, an annual review of noteworthy decisions and developments and a forecast of what's to come for the state of appellate law in the post-pandemic era.



In Anderson v Alberta (Attorney General), 2022 SCC 6, the Supreme Court of Canada (SCC) held that advanced costs may be available to a First Nation even where that Nation has funds to pay litigation fees. A First Nation seeking a remedy related to treaty rights need not be on the verge of insolvency to qualify for advanced costs. Notably, the SCC took the position that advancing costs determinations involving Indigenous peoples should include consideration of the process of reconciliation and the purpose of Aboriginal rights protections embedded in s. 35 of the Constitution Act, 1982 (Schedule B to the Canada Act 1982 (UK), 1982, c 11; Anderson, paras 25-27).

In Anderson, the SCC applied the test for advanced costs articulated in the SCC's decision in Little Sisters Book and Art Emporium v Canada, 2007 SCC 2. This test requires that the applicant: (i) demonstrate impecuniosity, (ii) present a prima facie meritorious case, and (iii) raise an issue of public importance (Little Sisters, para 37; see also Anderson, para 11).

In the action underlying the SCC's decision in Anderson, Beaver Lake Cree Nation ("Beaver Lake") claims against the Crown for infringement of its treaty rights and damages flowing from the Crown's decision to allow industrialization and natural resource development in the area. Under Treaty 6, Beaver Lake was promised that its people would be able to continue their way of life in their traditional territory.

In advancing this claim, Beaver Lake sought advanced costs to litigate the 120-day trial set for 2024 and estimated to cost $5,000,000. At the Court of King's Bench of Alberta, the case management judge held that even though Beaver Lake had approximately $3,000,000 in available funds, it could still satisfy the impecuniosity requirement of the test "given the impoverished state of the community and the other needs it was required to meet" (para 6). On appeal, this decision was reversed. The Court of Appeal of Alberta found there was insufficient evidence to support an advanced costs award.

In 2022, the SCC split the difference. Although the matter was ultimately referred back to the Court of King's Bench of Alberta, the SCC held that Beaver Lake could demonstrate impecuniosity where its resources are being directed toward addressing essential issues in its community.

From a practical point of view, this decision is very positive for First Nations. The SCC has opened the possibility of First Nations litigating crucially important treaty relationships and constitutional questions without allocating substantial portions of the community's revenues to litigation.


Released in late 2022, the SCC clarified the application of the two-part test establishing constructive expropriation.

Annapolis acquired land in Halifax and planned to develop it into residential communities. Halifax zoned these lands via municipal policy, which allowed residential development on these lands upon further policy resolution by the city. Annapolis repeatedly applied to permit residential development on the land, but the city refused its applications. Annapolis then sued Halifax for constructive expropriation (also known as constructive taking) in the Nova Scotia Supreme Court.

Halifax sought to have the action dismissed on summary judgment, but was unsuccessful.

The Nova Scotia Court of Appeal unanimously overturned the lower court's decision and granted partial summary judgment, dismissing the claim for constructive expropriation. This outcome was based on a finding that mere restriction of the land, in the absence of Halifax physically acquiring the land, would not satisfy the two-part test for constructive expropriation set out by the SCC in Canadian Pacific Railway Co. v Vancouver (City), 2006 SCC 5.

The SCC reversed the dismissal of the claim and ordered that the issue proceed to trial. In doing so, the Court affirmed the test laid out in Canadian Pacific Railway, confirming that constructive expropriation requires (1) acquisition of a beneficial interest in the property or flowing from it, and (2) removal of all reasonable uses of the property.

The SCC clarified that "acquiring beneficial interest" does not necessarily need to include acquiring the land itself. The analysis should focus on the effect of the regulatory measure, not whether the government acquired a proprietary interest. The Court further clarified that government intention is a relevant consideration in the second prong of the test: while intention alone is neither necessary nor sufficient, government objectives may constitute a material fact in context.

The majority's approach appears to expand the constructive expropriation test to include more situations where regulatory measures constrain land use absent the physical taking of land. In a pointed dissent, the minority criticizes this potential expansion. In their view, the majority unnecessarily raised the issue of whether the SCC should depart from precedent and alter the existing test, where lower courts have applied the test without difficulty and without concern.

Prior to this decision, a "refusal to up-zone" (i.e. a refusal to expand the permissible uses of land) was not considered to be "constructive taking". Practitioners should keep an eye out for future applications of this clarified constructive expropriation test, and consider whether it might engage other changes to existing understandings of constructive expropriation.


In a June 2022, the SCC released its decision in British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022...

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