Statutory interpretation, abuse of process, and election spending: Recent activity at the Supreme Court of Canada

Key takeaways

• Saskatchewan (Environment) v. Métis Nation – Saskatchewan: Indigenous peoples bringing multiple proceedings to enforce Aboriginal rights or claims may not be barred by the “abuse of process” doctrine, which otherwise prevents individuals from launching multiple distinct legal procedures on the same issue, where the litigation promotes the administration of justice.¹
• Ontario (Attorney General) v. Working Families Coalition (Canada) Inc.: An election spending cap on third parties was found unconstitutional because it restricted voters’ exposure to diverse viewpoints, undermining the right to an informed vote and creating an unequal playing field.²
• Multiple decisions on statutory interpretation: While meaning can be found in a provision to capture circumstances otherwise not contemplated by the legislature at the time of enactment, a modern approach to statutory interpretation cannot expand the meaning of the provision past the legislative intent apparent from the fact of the test. Furthermore, courts must consider the French and English official language versions of a provision as equally authoritative when deciding the meaning of the federal legislation.

Saskatchewan v. Métis Nation Saskatchewan

At issue was whether the Métis Nation of Saskatchewan’s (MNS) 2021 application for judicial review was an “abuse of process” because it re-litigates issues from actions previously commenced by the MNS. The SCC determined it was not.

In 1994 and 2020, the MNS sought declaratory relief through two separate legal actions to assert Aboriginal title and commercial harvesting rights. In 2021, Saskatchewan issued three uranium exploration permits to a company within MNS territory. The MNS applied for judicial review, challenging Saskatchewan’s refusal to consult regarding Aboriginal title and commercial harvesting rights. Saskatchewan successfully challenged the application for judicial review, arguing abuse of process was present, as the MNS was reasserting the same civil claims.

The SCC overturned the chambers judge’s decision, finding that the duplicative nature of the issues was insufficient to find that the 2021 application was an abuse of process. While multiple proceedings on the same issue can undermine the judicial process, there are occasions where it can enhance, rather than impeach, the integrity of the judicial system.

Accordingly, rather than look solely at whether the issues are the same, courts should take a principled approach in analyzing abuse of process by weighing principles of judicial economy, consistency, finality and the integrity of the administration of justice. In this case, these principles weighed in favour of allowing the 2021 application to proceed, especially as the MNS, as an Indigenous litigant, relitigated to enforce its Aboriginal rights and claims and uphold an ongoing duty to consult that was breached on separate occasions by Saskatchewan.

Ontario v. Working Families Coalition Inc.

The Working Families Coalition Inc. brought a constitutional challenge to the SCC, asking the court to determine whether subsection 37.10.1(2) under Ontario’s Election Finances Act (EFA), which restricted the amount that third parties can spend on political advertising in the year before a provincial election period by creating a spending cap, infringed the right to vote under section 3 of the Charter. The SCC determined the spending cap violated the right to vote and declared the EFA provision of no force or effect.

The spending cap limited spending on third-party advertising to $24,000 in any one electoral district and to $600,000 in total during the 12-month period before the election period. Political parties have a spending cap of $1 million in the six months leading up to an election. However, they have no spending cap before this six-month period.

The SCC’s judgment was guided by previous SCC case law that stated protecting the right to vote means Canadian elections must aim to achieve a balance in the political discourse and ensure a level playing field for those who wish to engage in it.³  The spending cap on third parties had the potential to severely curtail voters’ exposure to different views on the political issues impacting their communities, particularly as third-party interests were likely to be drowned out by political parties who did not face the same set of spending limitations. The SCC ultimately declared the spending cap provision of no force and effect.

SCC decisions on statutory interpretation

In Piekut v. Canada,⁴ at issue was the interpretation of when a student ceases to be a full- or part-time student under the Bankruptcy and Insolvency Act. The SCC concluded that this date had to be determined using the single date method, meaning students cease to be students once all of their education is completed.

In its decision, the SCC reminds lower courts to treat the French language version as equally authoritative when engaging in statutory interpretation of federal statutes. Specifically, a court must consider the shared meaning between the two official language versions. Where one version of a bilingual statute is broader than the other, the narrower version reflects the shared meaning.

In an SCC decision released shortly before Piekut, the SCC held that while courts must interpret broad or open-textured concepts with sensitivity to evolving circumstances, such an approach does not detract from enacting the legislature’s original will, that is otherwise apparent from the text.

This confirms the SCC’s holding in Quebec (Commission des droits de la personne et des roits de la jeunesse) v. Directrice de la protection de la jeunesse du CISS A,⁵ that “the text of the statute is the anchor of the modern approach.” The degree to which a provision can be applied to new circumstances is an interpretive question that must be answered by reading the text and context consistent with the legislature’s purposes.

What’s on the docket?

In May, the SCC will hear Attorney General of Quebec v. Bijou Cibuabua Kanyinda,⁶ which will consider the constitutionality of Quebec’s exclusion of women claiming refugee protection who have obtained a work permit from its subsidized childcare regime.

Businesses will be interested in the SCC’s judgment in Duncan Sinclair et al. v. Venezia Turismo et al.,⁷ which is currently under reserve but anticipated to be released before the end of 2025. The decision will impact businesses who seek to litigate a claim in the jurisdiction where the contract originated. While this currently acts as a presumptive factor weighing in favour of demonstrating a connection to a jurisdiction, how it is considered when determining the appropriate forum could change as a result of the SCC’s judgment.⁸

The SCC has recently granted leave in significant matters relating to Charter rights, section 35 Aboriginal rights, and the role of privative clauses in judicial review.

• The SCC will determine whether Quebec’s law prohibiting specific persons from wearing religious symbols in exercising their functions, including those that cover their faces, violates the Charter and the Quebec Charter, and consider the role of section 33 of the Constitution, the notwithstanding clause, in English Montreal School Board v. Attorney General of Quebec.
• In Société de l’Acadie du Nouveau-Brunswick v Le très honorable premier ministre du Canada, et al., the SCC will engage with novel questions relating to bilingualism requirements that apply to appointing the Lieutenant Governor of New Brunswick.
• The SCC will consider whether the Nisga’a Nation and the Tsetsaut/Skii km Lax Ha Nation can join the action brought by the Gitanyow Nation to assert Aboriginal rights and title over certain lands in British Columbia, in Nisga’a Nation v Malii et al. and Skii km Lax Ha et al. v Malii et al.
• In Democracy Watch v. Attorney General of Canada, the SCC will assess whether a partial privative clause in the Conflict of Interest Act limiting judicial review of the Conflict of Interest and Ethics Commissioner’s decisions to specific kinds of questions, bars Democracy Watch from requesting judicial review of the Ethics Commissioner’s report regarding Prime Minister Trudeau’s decision involving WE Charity.

Follow the firm’s insights on appellate law to stay informed of the SCC’s latest activity. Should you have any questions about any of the above appeals, please contact a member of our appellate team.

The authors would like to thank Madeline Heinke and Mey Chiali, students, for their contribution to preparing this legal update.