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Putting Practice into Theory: Ruth Sullivan’s Contribution to Legislative Scholarship, Practice, and Teaching

John Mark Keyes
This article provides an account of Ruth Sullivan’s contribution to legislative scholarship and practice as a law professor and a legal practitioner, perhaps most notably as the author of five editions of the most widely cited text on legislative interpretation in Canada: The Construction of Statutes.Her writing on the methodology for drafting and interpreting legislation, and her teaching of these subjects has had an enormous impact and continues to be felt in the continuing citation of her work. Legislative methodology receives far too little scholarly attention in Canada despite the permeation of legislation in nearly every area of law. Ruth Sullivan’s work is a powerful reminder of its significance and the need to pay attention to its practice and evolution.

Les modifications de fond à la Loi sur les langues officielles du Canada expliquées

Renée Soublière, Mathieu Tovar-Poitras and Sandrine L’Homme
On June 20, 2023, Bill C-13, An Act for the Substantive Equality of Canada’s Official Languages, received Royal Assent. This Act modernized Canada’s Official Languages Act (OLA) and enacted the Use of French in Federally Regulated Private Businesses Act (UFPBA). This text presents the substantive amendments resulting from Bill C-13: the introductory section provides a brief overview of the context leading to Bill C-13, followed by the main body of the text, mainly structured according to align the different parts of the OLA, and then the whole concludes with a section on the main components of the UFPBA. For each of the sections, we flesh out the reasoning and factors behind the choices of substantial amendments brought to the OLA. These factors include, in particular, developments in jurisprudence, proposals from various stakeholders, an official languages reform document, and work of parliamentary committees.

Security of Tenure in Foreclosure Proceedings: The Judicial Role when Borrowers are Absent or Self-Represented

Anna J Lund
The right to adequate housing requires that individuals not be evicted from their homes without being provided appropriate legal or other protections. In Canada, the federal government has promoted housing through mortgage-financed homeownership. Individuals risk losing their homes if they default on their mortgage. When an individual can no longer afford their mortgage payments, the law must reconcile the individual’s right not to be evicted without appropriate legal protections with a lender’s right to be paid. In a mortgage law system that prioritizes the economic interests of a lender, this is no easy task. This balance becomes especially difficult in court-based foreclosure proceedings because lenders are typically present and represented, and borrowers are frequently absent or self-represented.Through observing 105 residential foreclosure proceedings at the Edmonton Law Courts, this article explores the role of courts in preserving the integrity of the adversarial system and thereby promoting security of tenure. It examines how judges can adjust their role in the adversarial model to better protect self-represented and absent borrowers. It identifies nine strategies used by judges: scrutinizing the lender’s evidence, seeking additional information from the parties, scrutinizing the relief sought, raising new legal issues, enforcing consistency across cases, providing advice to borrowers, offering referrals to borrowers, encouraging negotiations, and assuming a problem-solving role. This article reveals that judges often assume an active role in an attempt to rectify the power imbalance in foreclosure proceedings. Furthermore, the mere presence of the borrower improves the judge’s ability to account for their interests in the proceedings and thereby safeguard their security of tenure.

Freedom of Association and the Resurrection of Effective Impossibility? A Comment on Société des casinos du Québec

Bethany Hastie and Keegan Nicol
In April 2024, the Supreme Court of Canada released its decision in Société des casinos du Québec, which centres on a challenge to the managerial exclusion under Quebec’s Code du travail. This case is the latest in a growing body of Supreme Court decisions that revisit the scope, content, and threshold for claims under section 2(d) of the Charter, which guarantees freedom of association, and works to enlarge the content of section 2(d) as well as its applicability in contexts outside of traditional labour relations regimes.As we discuss in this comment, Société des casinos du Québec risks undoing much of this work—especially for workers who fall outside of those regimes. We argue that this decision may have implicitly resurrected the threshold of effective impossibility for establishing infringement of section 2(d) in non-statutory contexts. In doing so, it has the potential to create a higher threshold for accessing and exercising rights for workers who are not subject to a legislative framework for labour relations, and thus risks creating a tiered approach to accessing associational rights under section 2(d).

Assessing Gross Disproportionality in Climate Change Litigation: The Case for a Justificatory Approach

Eva Linde
Canadian climate change litigation is testing the scope of section 7 of the Charter. The young claimants in La Rose v Canada and Mathur v Ontario argue that governments’ insufficient efforts to reduce greenhouse gas emissions violate their right to life, liberty, and security of the person.This article addresses a central challenge in such litigation. Neither international law nor the Charter provides clear criteria for quantifying the obligations of individual states to reduce greenhouse gas emissions. Under these circumstances, how can courts assess whether Canada’s or Ontario’s policies are insufficient and infringe section 7 interests in a grossly disproportionate manner?The article proposes that courts should not attempt to define absolute mitigation obligations. Rather, the inquiry must be a relative one. Courts should begin by determining the global warming trajectory with which Canada’s and Ontario’s emissions align and then ask whether the harm to section 7 interests expected at that level of warming is justified in light of the cost of achieving further emissions reductions. Because such an evaluation depends on risk assessment and political priority-setting, courts should afford governments a broad measure of deference while demanding that they clearly articulate and justify their choices.