Corporation of the Canadian Civil Liberties Association v. Canada (Attorney General), (1998) 111 O.A.C. 51 (CA)

• Judge: Abella, Austin and Charron, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 09, 1998
• Jurisdiction: Ontario
• Citations: (1998), 111 O.A.C. 51 (CA)

Civil Liberties Assoc. v. Can. (A.G.) (1998), 111 O.A.C. 51 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. JL.054

The Corporation of the Canadian Civil Liberties Association (applicant/appellant) v. The Attorney General of Canada (respondent)

(C11823)

Indexed As: Corporation of the Canadian Civil Liberties Association v. Canada (Attorney General)

Ontario Court of Appeal

Abella, Austin and Charron, JJ.A.

July 9, 1998.

Summary:

The Corporation of the Canadian Civil Liberties Association (the Association) was granted standing to bring an application challenging the constitutional validity of certain investigative powers contained in the Canadian Security Intelligence Service Act and seeking injunctive relief (74 O.R.(2d) 609). Following a hearing, the applica­tion was dismissed (8 O.R.(3d) 289). The Asso­ciation appealed from the dismissal of the application. The Attorney General of Canada cross-appealed on the issue of stand­ing.

The Ontario Court of Appeal, Abella, J.A., dissenting in part, held that the motions judge erred in granting the Association standing to bring its application. The court allowed the Attorney General's cross-appeal and dismissed the Association's application on the ground of no standing. The court also dismissed the Association's appeal on the same ground. Abella, J.A., agreed with the disposition of the appeal on the merits, but disagreed with the conclusion that standing ought not to have been granted.

Practice - Topic 221

Persons who can sue and be sued - In­dividuals and corporations - Status or standing - Public interest standing - Re­quirements of - A motions judge granted the Corporation of the Canadian Civil Liberties Association (the Association) standing to bring an application challeng­ing the constitutional validity of investiga­tive powers contained in certain sections of the Canadian Security Intelligence Service Act - The motions judge, in considering the "serious issue" criteria for public inter­est standing, did not rule on the substantive merits of the application, but rather con­sidered whether the application raised issues of general public importance - The Ontario Court of Appeal held that the motions judge erred in refusing to consider the substantive merits of the application - See paragraphs 32 to 34.

Practice - Topic 221

Persons who can sue and be sued - In­dividuals and corporations - Status or standing - Public interest standing - Re­quirements of - A motions judge granted the Corporation of the Canadian Civil Liberties Association (the Association) standing to bring an application challeng­ing the constitutional validity of investiga­tive powers contained in certain sections of the Canadian Security Intelligence Service Act on the basis that they violated ss. 2(b), 2(c), 2(d) and 8 of the Charter - The On­tario Court of Appeal held that this was not a proper case to grant public interest standing - Upon considering the merits of the application, the court concluded that a serious issue of invalidity was not raised based on s. 2 of the Charter - With respect to the alleged infringement of s. 8, there was another reasonable and effective way to bring the issue before the court - See paragraphs 76 to 92.

Cases Noticed:

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, appld. [paras. 17, 95].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85; 55 D.L.R.(3d) 632; 32 C.R.N.S. 376, appld. [para. 17].

Borowski v. Canada (Minister of Justice) and Canada (Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; [1982] 1 W.W.R. 97; 24 C.R.(3d) 352; 24 C.P.C. 62; 64 C.C.C.(2d) 97; 130 D.L.R.(3d) 588, appld. [paras. 17, 95].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338; 33 D.L.R.(4th) 321, appld. [paras. 19, 95].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 88 D.L.R.(4th) 193, appld. [paras. 21, 95].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 160 N.R. 161; 67 O.A.C. 81; 107 D.L.R.(4th) 634, appld. [paras. 23, 95].

Hy and Zel's Inc. et al. v. Ontario (Attor­ney General) - see Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General).

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, consd. [para. 25].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, consd. [para. 25].

R. v. Atwal et al., [1988] 1 F.C. 107; 79 N.R. 91; 36 C.C.C.(3d) 161 (F.C.A.), refd to. [para. 38].

Energy Probe et al. v. Canada (Attorney General) et al. (1989), 33 O.A.C. 39; 68 O.R.(2d) 449 (C.A.), refd to. [paras. 82, 98].

R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 74 C.C.C.(3d) 289, consd. [para. 85].

Authors and Works Noticed:

Ontario Law Reform Commission, Report on Standing (1989), pp. 79 [para. 106]; 92 [para. 102].

Siegel, Jonathan R., Chilling Injuries as a Basis For Standing (1989), Yale Law Journal 906, generally [para. 103].

Counsel:

Ian J. Roland, Martin J. Doane and Pamela Shime, for the appellant;

Donald MacIntosh and David Sgayias, for the respondent.

This appeal and cross-appeal were heard on November 4 and 5, 1997, before Abella, Austin and Charron, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was delivered on July 9, 1998, including the following opinions:

Charron, J.A. (Austin, J.A., concurring) - see paragraphs 1 to 93;

Abella, J.A., dissenting in part - see paragraphs 94 to 110.