Looking Back – The 10 Most Important Appeals Of 2016

The Appeals Monitor is pleased to present our annual review of the most significant appellate decisions of the past year. From criminal law to contracts, 2016 was full of exciting developments and we hope that you, our reader, will enjoy these summaries.

Endean: Justice to Go

In Endean v British Columbia, 2016 SCC 42, the Supreme Court of Canada ("SCC") addressed whether superior court judges may sit outside their home provinces to hear and decide a motion about a pan-national class action settlement. Endean was at the top of our Appeals to Watch in 2016 list from last year. The lower court decisions were previously discussed here and the SCC decision discussed here.

The SCC held that superior court judges in Ontario and British Columbia have a discretionary statutory power under their respective class actions legislation to sit outside their home provinces. The approach "reflected the inherent authority of judges to control procedure", and served the underlying purposes of administering class proceedings in an efficient manner. The SCC also held that, barring a clear statutory limitation in other jurisdictions, these principles extend to superior courts of other provinces as well.

However, this was a case in which personal and subject matter jurisdiction were conceded, and in which the hearing would proceed on a paper record. The SCC left for another day the more difficult questions of whether courts may assume jurisdiction over a national class without attornment, and whether joint hearings can be appropriate in instances where the exercise of coercive powers might prove necessary, such as compelling the attendance of a witness.

On a separate issue, the SCC also ruled that a video link between the out-of-province courtroom where the hearing takes place and a courtroom in the judge's home province is not a condition for a judge to be able to sit outside his or her home province. A superior court judge will need a "good reason" for not using video link technology when requested; however, video link technology is not required and its absence does not violate the open court principle.

Rogers: Signal Received on Federal Powers

In Rogers Communications Inc v Châteauguay (City), 2016 SCC 23, the SCC held that a municipality cannot intervene in the siting of a radiocommunication antenna system. Rogers Communications was listed as one of our Appeals to Watch in 2016 and was previously discussed here.

In this case, the municipality had issued a "notice of reserve" that would have prevented construction on a site where Rogers wanted to build a cellphone antenna system. Writing for the eight-member majority, Wagner and Côté JJ held that the notice of reserve was ultra vires the municipality and therefore unconstitutional. The pith and substance of the notice was directed at the location of the cellphone tower, which was within the exclusive jurisdiction of the federal government over radiocommunications. The SCC disagreed with the municipality's argument that the notice of reserve was, in pith and substance, within the municipality's jurisdiction to protect the health and well-being of its residents. The doctrine of interjurisdictional immunity applied because (1) the sitting of a cellphone tower is part of the core of federal jurisdiction over radiocommunications, and (2) the notice seriously and significantly impaired the orderly development of radiocommunications. Justice Gascon, concurring in the result, agreed with the majority on interjurisdictional immunity, although he felt that the pith and substance of the notice was in fact directed the health and well-being of the municipality's residents.

This decision develops the legal doctrines of pith and substance and interjurisdictional immunity, and clarifies the scope of the federal government's jurisdiction over radiocommunications.

Edmonton East (Capilano): The Age of Unreasonableness

In Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, the SCC majority departed from its prior jurisprudence and made it even more difficult for individuals and companies to obtain justice when subject to illegal government actions.

In a 5-4 split judgment, the SCC majority held that reviewing courts must defer to tribunals and other administrative decision-makers on questions of law, except where the question of law falls within one of the following...