At years end lawyers often review top decisions of the SCC. While the final legal word, are they interesting? And, if not, are they amusing? Two examples.
1. Bruker married Ms. Marcovitz in 1969. Divorce proceedings commenced in 1980. Three months later, a negotiated resolution, included an agreement to appear before a Rabbi to obtain a Jewish religious divorce . The civil divorce was finalized in 1981. Pursuant to Rabbinical Law, B must agreed to give a Get; without it, M remained wife, unable to remarry. Despite repeated requests for 15 years, B refused to provide the Get. M sued B for damages for breach of contract. B argued his agreement to provide a Get was not valid under Provincial law and his right of religious freedom protected him against damages for breach. The trial judge held it was a binding and valid agreement; damages based on a breach of civil obligation are within domain of civil Courts. The Court of Appeal said the substance of the obligation was religious in nature, the obligation a moral one, thus unenforceable by Civil Courts. The SCC overturned that decision and reinstated the Trial decision. Thus, agree to give a Get; then recant; gets you Gleders!
2. Kingstreet Investments v. New Brunswick is a constitutional, tax law and remedies case rolled into one. Kingstreet operated nightclubs and purchased their alcohol from the Province, who required them to pay a surcharge, of up to 11 % over retail. The Court of Appeal found this unconstitutional, as an indirect tax, beyond Provincial jurisdiction. The SCC agreed and went on to deal with Kingstreet claim that the money collected, be returned, on the basis of unjust enrichment. Simplistic analysis suggest that Kingstreet should get its money back. Not so fast! Kingstreet was subjected to a legislative reaction. While the SCC ordered the Province to return the taxes totalling almost $1,000,000.00. Within months, the Province passed new legislation, retroactively imposing a different tax (now in line with the SCC decision), equal to the fees that had been wrongfully collected. The theory being: rather than return wrongfully collected fees on alcohol, better to spend that money on education and health care. No doubt causing Kingstreet to conclude: the more things change, the more they stay the same.
Interesting? Amusing? All depends on whose ox is being gored.
R. Keith Simpson is a partner in, and Counsel to, the law firm of Cobb & Jones. If you have legal questions, direct them to the Reformer or consult a lawyer of your choice.