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Home > Our Insights > Supreme Court of Canada Decides Indian Bands Assessing Leased Reserve Lands for Property Tax Purposes Can’t Have it Both Ways in Musqueam Indian Band v. Musqueam Indian Band (Board of Review)
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Supreme Court of Canada Decides Indian Bands Assessing Leased Reserve Lands for Property Tax Purposes Can’t Have it Both Ways in Musqueam Indian Band v. Musqueam Indian Band (Board of Review)

Published:

September 12, 2016

Author(s):

  • Michael Crosbie, KC

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On September 9, 2016, the Supreme Court of Canada decided in Musqueam Indian Band v. Musqueam Indian Band (Board of Review) that an Indian band assessing the value of leased reserve lands for property tax purposes under its authority to tax reserve lands pursuant to a band by-law is still subject to the “highest and best use” (or HABU) principle, a basic principle of Canadian assessment law. And the use restriction in the lease was still placed “by the band” even though the Indian Act necessitated that the Band could only place it through the Crown’s intervention. Though the decision is a relatively specific exercise in interpreting the particular wording of a band by-law, the Court’s confirmation that the Highest and Best [legally permitted] Use (or HABU) is a basic principle of Canadian assessment law is of some interest beyond BC.

In 1957, the Musqueam Indian Band surrendered a portion of its reserve lands for lease to the Shaughnessy Golf and Country Club. Technically, however, the Indian Act mandated that the Band could only surrender the reserve lands to the federal Crown, which then entered into the lease to the Club on the Band’s behalf. Beginning in 1991, the Band exercises its right to tax, including to assess for tax purposes, its reserve lands under the Musqueam Indian Band Property Assessment Bylaw. In 1996, the Band amended the Bylaw to permit a property tax assessor to consider “any restriction placed on the use of the land and improvements by the band” instead of restrictions imposed by “an interest holder” when determining the property value for taxation purposes. Since then, the Band’s assessor consistently assessed the value based on use of the property as a golf and country club because the lease restricts the use to this purpose. But in 2011 the Band challenged this assessment before a review board, claiming the lands should be valued as residential and the lease’s use restriction wasn’t placed “by the band” because the lease was between the Crown and the Club. The Supreme Court of Canada, in a particularly short decision, disagreed:

The “highest and best use” principle applies. In a 1996 BC case, the BC Supreme Court decided the assessment of leasehold interests in Crown lands must be based on the actual value of the lands and improvements as if the occupier owned, rather than merely leased, them. But this led to an unfair result: a tenant of Crown land could be required to pay municipal property tax based on a use that the lease didn’t allow. BC legislation subsequently corrected this unfairness. In this case, the Band argued that the property used as a golf club should be assessed based on a possible, higher value use for residential purposes – a use that the lease, binding on the property, didn’t permit. This would result in a similar unfairness. The Court applied established legal principles and concluded that the Band’s position was incorrect, and the assessor was entitled to assess the golf club property based on its current use as a golf club – and not some potential future use as a residential property.

There was a restriction placed “by the band” when the Crown limited the use of the leased reserve land to that of a golf club. The legal mechanism the Indian Act necessitated to enable a lease to the Club (first a surrender of the land to the Crown for the purpose of leasing followed by a lease by the Crown to the Club) supported the conclusion that the Band itself placed the use restriction on the land because “the only way” the Band could have placed the use restriction in the lease was “through the Crown’s intervention.”

Though the decision is a relatively specific exercise in interpreting the particular wording of a band by-law, the Court’s comments about assessment law are of some interest beyond BC. The Court confirmed that Highest and Best [legally permitted] Use (or HABU) is a basic principle of Canadian assessment law. HABU is a basic first step in all property assessments in Atlantic Canada. Assessment based on current use rather than speculative potential use (unless the alternative use is a better than 50% probability) is the approach to property tax assessment in Atlantic Canada. For example, property used as a golf club is generally assessed based on use as a golf club and not on some alternative residential or commercial use. In Atlantic Canada, restrictions concerning the use of real property, which restrictions are binding upon that property’s title, are considered when a property is being assessed for property tax purposes.


Please contact your McInnes Cooper lawyer or any member of the Real Estate Team @ McInnes Cooper to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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    Dec 20, 2016

    As 2016 draws to a close, Oil & Gas Team @ McInnes Cooper offers its picks for the top three legal developments of 2016 that impacted the…

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  • Newfoundland & Labrador’s New Public Procurement Act

    Dec 19, 2016

    On December 14, 2016, Bill 46 and the Newfoundland and Labrador Public Procurement Act became law. The new Act isn’t yet in effect, however,…

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    Publication
  • Time to Shine: Nova Scotia to Launch Solar Energy Pilot Program in 2017

    Dec 15, 2016

    On December 13, 2016, the Province of Nova Scotia released for comment draft regulations that will establish the Solar for Community Buildings…

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    Publication
  • Supreme Court of Canada Speaks on the Rectification of Transactions

    Dec 14, 2016

    On December 9, 2016, the Supreme Court of Canada clarified when a court can rectify a transaction that has had unintended tax consequences for…

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    Publication
  • 10 Steps to Anticipate Citizens’ Challenges to New Developments

    Dec 7, 2016

    Recently, the Nova Scotia Supreme Court denied a motion for a temporary stay of proceedings to prevent the deployment of certain tidal devices…

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    Publication
  • Newfoundland & Labrador: A New Public Procurement Act for 2017

    Dec 5, 2016

    It’s been a long time coming, but Newfoundland and Labrador is finally getting new public procurement legislation. On November 29, 2016, Bill…

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    Publication
  • Supreme Court of Canada Says Privilege Wins Again – Twice in Lizotte v. Aviva Insurance Company of Canada & Alberta (Information and Privacy Commissioner) v. University of Calgary

    Nov 28, 2016

    On November 25, 2016, the Supreme Court of Canada decided privilege wins again - twice. In two separate decisions - Lizotte v. Aviva Insurance…

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    Publication
  • This Bridge is not for (Lien) Sale: N.S. Court decides Macdonald Bridge Cannot be Liened in Certification Coating Specialists v. Cherubini et.al.

    Nov 22, 2016

    There is an old expression about “selling the Brooklyn Bridge”. Recently, a bankrupt subcontractor attempted to register a lien against the…

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    Publication
  • Public & operator interests in offshore petroleum resources data: Where will the balance be struck? in Geophysical Service Incorporated (GSI) v. Encana Corporation

    Nov 9, 2016

    The balance between the public’s interest in accessing offshore petroleum resources data and operators’ commercial interests is at the heart…

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    Publication
  • NB Court Clarifies Mortgage Lenders’ Rights on Default: 5 Steps for NB Mortgage Lenders to Consider

    Sep 23, 2016

    On September 15, 2016, the New Brunswick Court of Appeal clarified the province’s statutory regime governing both the exercise of a lender’s…

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    Publication
  • Supreme Court of Canada Gives a Lesson in Insurance Contract Interpretation in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.

    Sep 19, 2016

    On September 15, 2016, the Supreme Court of Canada decided certain damage to a building under construction was covered under the relevant…

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    Publication
  • DFO Decides “Last In, First Out” Policy (LIFO) is Out

    Jul 7, 2016

    On July 6, 2016, the Federal Department of Fisheries and Ocean’s (DFO) accepted the Ministerial Advisory Panel (MAP) recommendation in the…

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    Publication
  • Municipal Liability for ByLaw Enforcement: A Bylaw’s Not a Bylaw in Vlanich v. Typhair

    Jul 5, 2016

    The Ontario Court of Appeal has re-ignited the discussion about when a municipality will be held liable for its shoddy bylaw enforcement…

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    Publication
  • Common Ground: Retail & Commercial Condominium Financing

    Jun 30, 2016

    The condo real estate market, both retail and commercial, is hot. But condo developers and unit buyers need funding. Here’s the legal…

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    Publication
  • Weigh Now or Weight Later: New Cargo Container Verified Gross Mass (VGM) Rules Effective July 1, 2016

    Jun 20, 2016

    As of July 1, 2016, packed cargo containers to which the International Convention for the Safety of Life at Sea (SOLAS), Chapter VI, Regulation…

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    Publication
  • Realtor Risk Management: 10 Practical Tips to Help Realtors Manage Litigation Risk

    Jun 20, 2016

    Real estate vendors and purchasers have high expectations of their realtors – and they don’t often hesitate to pursue legal action against…

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    Publication
  • The Parameters of Municipal Power: Supreme Court of Canada Decides Municipality Can’t Block Radiocommunication Tower Construction

    Jun 17, 2016

    In its June 16, 2016 decision in Rogers Communications Inc. v. Châteauguay (City), the Supreme Court of Canada decided a municipality’s…

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    Publication
  • FAQs About AMPs (Administrative Monetary Penalties) in the Canadian Offshore

    Jun 10, 2016

    Administrative monetary penalties, or “AMPs”, are a new phenomenon in the Canadian offshore. AMPs were introduced to the Newfoundland &…

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    Publication
  • Supreme Court of Canada Decides Income Tax Act Sections are Unconstitutional – and Strengthens Solicitor-Client Privilege in Canada (Attorney General) v. Chambre des notaires du Québec & Canada (National Revenue) v. Thompson

    Jun 6, 2016

    On June 3, 2016, the Supreme Court of Canada, in two related decisions, strengthened the legal protection of solicitor-client privilege in…

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    Publication
  • Assertion of Aboriginal Right Does Not Automatically Confer Eligibility to Appeal a Regulatory Approval

    Jun 6, 2016

    On June 2, 2016, the Supreme Court of Canada denied an Alberta First Nation’s request to appeal the Court of Appeal’s dismissal of its bid…

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    Publication
  • The East Coast Duty to Consult Indigenous Peoples

    Jun 6, 2016

    Each Provincial government is under the legal duty to consult; the manner in which each carries out its legal duty to consult differs depending…

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    Publication
  • Newfoundland & Labrador Crown Immunity for Mechanics’ Lien Holdbacks: 3 Key Risks for Subcontractors in Brook Construction (2007) v. Blackwood Contractors Ltd.

    May 24, 2016

    It’s now certain: in Newfoundland & Labrador, liens can’t be placed on Crown land or holdbacks with the possible exemption allowing for…

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    Publication
  • A Red Flag for Municipalities & Developers: Supreme Court of Canada Decides Not Every Positive Covenant Under a Development Agreement Runs With the Land in Heritage Capital Corp. v. Equitable Trust Co.

    May 10, 2016

    On May 6, 2016, the Supreme Court of Canada generally affirmed the common law rule that positive covenants do not run with the land. More…

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    Publication
  • The Legal Defence of Due Diligence: Top 5 FAQs

    May 2, 2016

    “Due diligence” is a legal defence to many charges under occupational health and safety (OHS) laws. Here are five of the most…

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    Publication
  • The New Nova Scotia Mineral Resources Act: The Good, The Risky & The Neutral

    Apr 21, 2016

    On April 15, 2016, Bill No. 149, The Mineral Resources Act (2016) (2016 Act), passed its second reading in the NS House of Assembly. Although…

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    Publication
  • Supreme Court of Canada Decides Federal Government Has Legislative Authority Over Métis & Non-Status Indians

    Apr 19, 2016

    On April 14, 2016, the Supreme Court of Canada decided that Métis and “non-status Indians” are “Indians” under section 91(24) of the…

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    Publication
  • From Watershed Decision to Watershed Law: Government Proposes Physician-Assisted Dying Law in Bill C-14 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)

    Apr 15, 2016

    On April 14, 2016, Canada’s federal Justice Minister proposed legislation setting out the conditions that a person wishing to undergo…

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    Publication
  • The Small Business Deduction: Key Proposed Changes & Strategic Solutions

    Apr 12, 2016

    Federal Budget 2016 proposed to significantly reduce the benefit of and access to the Small Business Deduction. The Small Business Deduction…

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    Publication
  • Doing Business With the Public Sector: Key Confidentiality Risks & 3 Risk Management Strategies

    Mar 24, 2016

    When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these…

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    Publication
  • Construction Project Manager Sentenced to 3½ Years for Workplace Accident in R. v. Vadim Kazenelson (aka “Metron”)

    Mar 9, 2016

    In what appears to be the first case of the conviction of a front line supervisor under section 217.1 of the Criminal Code and sentencing to a…

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    Publication
  • Energy Safety and Security Act (ESSA): 7 Key Changes Toughen Up Atlantic Offshore and North Oil & Gas Regulatory Regime

    Feb 15, 2016

    On February 26, 2016, the bulk of the offshore-related amendments of the Energy Safety and Security Act (ESSA, formerly known as Bill C-22) take…

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    Publication
  • NB Kicks-off First Request for Expressions of Interest from Aboriginal Businesses Under New Electricity from Renewable Resources Regulation

    Feb 1, 2016

    On January 29, 2016, the New Brunswick Power Corporation (NB Power) kicked-off compliance with its obligations under the new Electricity from…

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  • Offshore Oil and Gas Decommissioning Best Practices

    Dec 21, 2015

    A practical and current guide created to help you navigate the increasingly important issues surrounding offshore decommissioning and…

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    Publication
  • It Gets Worse: 5 Key Proposed Changes to Section 55 of the Income Tax Act

    Oct 23, 2015

    Subsection 55(2) of the Income Tax Act (Canada) is an anti-avoidance provision intended to prevent capital gains stripping by deeming an…

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    Publication
  • Tax Implications of Personal Services Businesses (PSB) Status & Strategies to Avoid It

    Oct 23, 2015

    Incorporation offers legal advantages to sole proprietors of small businesses, including certain tax advantages. However, when a corporation…

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    Publication
  • A Glimpse Into The Future of Privacy Law: Medical Marijuana Privacy Breach Class Action Lawsuit Can Go Ahead in John Doe and Suzie Jones v. Her Majesty the Queen

    Jul 29, 2015

    On July 27, 2015, the Federal Court of Canada decided a lawsuit by medical marijuana program participants against the Federal Government…

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    Publication
  • The Changing Face of Aboriginal Law: 1 Short Year, 2 Big Court Decisions, 3 Key Implications for the Energy & Natural Resources Sector

    Jul 17, 2015

    On the heels of National Aboriginal Day, we pause to take a look back at two significant Aboriginal law cases decided in the last year, how…

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    Publication
  • Unproven Aboriginal Rights Enough For Lawsuit Against Private Industry

    Jul 10, 2015

    On April 15, 2015, British Columbia’s Court of Appeal confirmed that First Nations can make certain legal claims grounded in Aboriginal rights…

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    Publication
  • 3 Reasons for Directors, Officers and Supervisors To Take Occupational Health and Safety Personally

    Jun 25, 2015

    Most people know that a company itself has OHS obligations, and that it risks corporate liability if it violates those obligations. However, not…

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    Publication
  • Tread Carefully: 10 Considerations for Right of Way Agreements

    May 25, 2015

    This publication has been updated as at July 21, 2022. Every party to a Right of Way has some idea of what that Right of Way is – but many…

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    Publication
  • SCC Gives Municipalities (& Other Government Authorities) 3 Reasons Not to Say A Little Prayer in Mouvement laïque québécois v. Saguenay (City)

    Apr 15, 2015

    On April 15, 2015 the Supreme Court of Canada decided the City of Saguenay’s recitation of a religious - though non-denominational – prayer…

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    Publication
  • More than a Mere Nuisance – 5 Snow Loading FAQs

    Mar 3, 2015

    Snow can be a big nuisance at this time of year, but snow load - the weight of the snow, usually measured in pounds per square foot - can be…

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    Publication
  • No More Criminalization of Physician-Assisted Dying: The Ripple Effects of A Watershed Decision in Carter v. Canada (Attorney General)

    Feb 9, 2015

    NOTE: On April 14, 2016, the federal government proposed legislation setting out the conditions that a person wishing to undergo…

    Read More
    Publication
  • Supreme Court of Canada Says the Charter Protects the Right to Strike in Saskatchewan Federation of Labour v. Saskatchewan

    Feb 2, 2015

    On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…

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    Publication
  • 5 “Legal” Reasons Why Natural Resource Companies Should Care About Corporate Social Responsibility (CSR)

    Dec 10, 2014

    “Corporate Social Responsibility” (CSR) as a concept has been floating around in business-speak for years – but stakeholders in the mining…

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    Publication
  • Complying with Canada’s Anti-Spam Legislation (CASL): A blueprint for the construction industry

    Dec 1, 2014

    The construction industry - project owners, contractors, subcontractors and trades - might be relaxing, ignoring the hype around Canada’s…

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    Publication
  • Egg Films Epilogue: 5 Key Implications of NS Union Certification Based on “Industry” Dependence

    Nov 27, 2014

    Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence…

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    Publication
  • Canadian Treaty Shopping Proposal Shelved Pending Final OECD Recommendation, First To Be Released September 16

    Sep 11, 2014

    The Canadian federal government has been concerned for some time about “treaty shopping” by non-residents – the practice of non-residents…

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    Publication
  • SCC Sets Test for – and Defines Rights of – Aboriginal Title in Canada

    Jun 26, 2014

    On June 26, 2014, in its groundbreaking decision on Aboriginal title in Read the SCC’s decision in Tsilhqot’in Nation v. B.C., 2014 SCC 44,…

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    Publication
  • Court Orders Feds to Reconsider Canadian Forces Housing Compensation Policy in Brauer v. The Queen

    May 26, 2014

    On May 23, 2014 the Federal Court of Canada decided the Federal Treasury Board Secretariat’s interpretation of the policy for compensating…

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    Publication
  • Estate Planning Solutions: 5 FAQs About Alter Ego & Joint Partner Trusts

    May 22, 2014

    This publication has been updated as at February 17, 2021. Trusts offer a very useful estate planning solution for a wide variety of special…

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    Publication
  • What’s In The Pipe? Municipal Liability for Flood & Sewage Back-Up Claims

    May 2, 2014

    April showers bring … flood and sewage back-up claims. Flooding and sewage back-up can result in significant damage for municipal ratepayers,…

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    Publication
  • Privacy Trumps Safety: SCC Strikes Down Mandatory Random Alcohol Testing Policy

    Jul 2, 2013

    On June 14, 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp…

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    Publication
  • Legal Update: The Duty to Consult – Important Lessons from Canada’s Mining Sector

    Mar 15, 2013

    Recent developments in Ontario and Yukon are an important reminder of the practical implications of the Crown’s legal Duty to Consult with…

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    Publication
  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

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    Publication
  • Court Confirms Reviewing Courts Should Give Early Due Deference to Administrative Decision-Makers

    Jul 10, 2012

    On March 16, 2012, the Supreme Court of Canada (“SCC”) confirmed the decision of the N.S. Court of Appeal, reinstating the N.S. Human Rights…

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    Publication
  • Comment on Copthorne Holdings Limited V. The Queen

    Dec 16, 2011

    In a unanimous decision rendered by Justice Rothstein, the Supreme Court of Canada today dismissed the appeal of Copthorne Holdings Limited,…

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    Publication
  • DFO Announces that Corporations May Own Fishing Licenses

    Mar 7, 2011

    Effective April 1, 2011, the fishing licensing policy for the Atlantic Canada and Quebec inshore fishery will change to allow inshore fishing…

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    Publication

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