Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Quebec (Commission des droits de la personne et des droits de la jeunesse) v Directrice de la protection de la jeunesse du CISSS A [2024] SCC 43 (20 December 2024)
Partly successful appeal from Quebec CA – Following young person’s stay in rehabilitation centre, she and parents applied to Youth Division of Court of Québec (tribunal) for declaration of encroachment upon rights under s 91 para 4 Youth Protection Act (YPA) – Section 91 said tribunal could order situation encroaching upon rights of child in difficulty corrected – Encroachment upon rights occurred when child’s rights not respected –
Tribunal identified four situations encroaching upon young person’s rights – Recommended and ordered series of corrective measures – Director of youth protection (DYP) challenged four – DYP said measures went beyond corrective powers conferred on tribunal because measures did not relate directly to young person’s situation – First two orders directed at individualised treatment units where young person stayed – Other two directed at Centre intégré de santé et de services sociaux A (CISSS A) –
Tribunal ordered youth workers, educators and intervention officers who worked in individualized treatment units be able to receive specific training on mental health and be able to obtain support from healthcare professional specialising in mental health – Also ordered CISSS A to implement protocol within reasonable time period to set out steps to be taken when child spat during intervention and to adapt all isolation rooms so were safer including walls covered with material preventing injury –
Superior Court allowed DYP’s appeal in part, saying four challenged orders went beyond powers legislature matter – Superior Court judge varied tribunal’s orders because orders applied to children other than young person involved here – Young person, her parents and Commission des droits de la personne et des droits de la jeunesse (Commission) appealed – CA majority said four challenged orders general in nature, went beyond child’s situation and had to be narrowed – Commission appealed to SC –
SC allowed appeal in part – Said legislature intended to confer on tribunal corrective powers needed to ensure fullest protection of interests and rights of child whose situation referred to it – Said protection applied to both present and future and had to take account of circumstances at source of encroachment upon rights as well as impact of encroachment on child’s psychological and physical state – Tribunal could order corrective measures with purpose to put end to encroachment to remedy psychological or physical consequences for child resulting from encroachment and to prevent recurrence of encroachment for child – Preventive corrective measure could be ordered only if child whose rights have been encroached upon at risk of being subjected to encroachment again, if corrective measure could effectively help to prevent encroachment recurring, and if measure related to protecting interests and rights of child whose situation referred to tribunal – Appeal partly allowed.
R v Hanrahan [2025] SCC 1 (25 January 2025)
Unsuccessful appeal from Newfoundland and Labrador CA – H not guilty of sexual assault following jury trial – Central issue whether complainant consented to sexual activity when she was sleeping at H’s home –
Crown appealed H’s acquittal, asking for new trial – Said trial judge wrongly restricted Crown counsel’s examination of complainant on text messages exchanged between her and H – Crown said trial judge’s restrictions went beyond what was necessary to ensure jury used text messages properly –
Crown also said trial judge wrong to allow jury to hear certain evidence related to complainant’s prior sexual history – Trial judge had allowed evidence finding it relevant to material inconsistency between complainant’s testimony and statement to police – Inconsistency about how close she was to H – Crown said trial judge wrong to conclude inconsistency and in any event evidence irrelevant and should not have been admitted –
CA majority dismissed appeal – Agreed with Crown trial judge restricted use of text messages during complainant’s testimony more than needed to prevent jury from improperly using messages – However, said trial judge’s interventions reasonable exercise of power to manage trial, therefore no basis for new trial –
Majority also said trial judge made no error to rule jury could consider prior sexual history evidence – Said no error regarding finding inconsistency between complainant’s evidence on cross-examination and her prior statement to police – Further, trial judge made no error in ultimately allowing jury to consider prior sexual history evidence in circumstances and no error in refusing to allow Crown counsel to question complainant about inconsistency –
SC majority dismissed appeal for substantially same reasons as CA – Appeal dismissed.
Hirachand v Hirachand [2024] UKSC 43 (18 December 2024)
Successful appeal from CA – Issue on appeal is whether order for financial provision under Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act) could include litigation success fee payable by successful claimant to their solicitors –
H (Deceased) died, leaving widow (Widow), daughter (Daughter) and son (Son) – Under Deceased’s will, Widow received entire estate – Daughter had severe health problems and did not have sufficient income or assets to support herself – Daughter claimed for financial provision from Deceased’s estate under 1975 Act, saying “the disposition of the deceased’s estate by his will…is not such as to make reasonable financial provision for the applicant” (s1(1) 1975 Act) – Reasonable financial provision defined in s1(2)(b) 1975 Act as “such financial provision in all the circumstances of the case for the applicant to receive for his maintenance” –
Daughter entered conditional fee arrangement (CFA) with solicitors to fund claim – CFA stipulated if Daughter’s claim failed, her solicitors and counsel would be entitled to no fees – However, if claim succeeded, Daughter would be liable to pay their fees plus 72 per cent uplift (Success Fee) –
HC said Deceased’s will did not make reasonable financial provision for Daughter and awarded Daughter £138,918 – As Daughter’s claim successful, was liable to pay Success Fee to her solicitors – However, s 58A(6) Courts and Legal Services Act 1990 (1990 Act) precluded HC from providing for Success Fee in any costs order – Judge included £16,750 contribution towards Success Fee as part of substantive £138,918 award under 1975 Act – Said, as Daughter had no choice but to pay Success Fee to solicitors, it formed part of her “financial needs” to which court required to have regard in determining order under 1975 Act –
Widow appealed to CA on grounds which included court had no power to provide for Success Fee in substantive award under 1975 Act – CA dismissed appeal and Widow appealed to SC –
SC unanimously allowed appeal and excluded any sum for Success Fee from order in favour of Daughter under 1975 Act – SC said when determining appropriate relief to be awarded in 1975 Act claim, judge could not include directly or indirectly any allowance for success fee –
SC said CFAs allowed in all proceedings, other than criminal and family, since 30 July 1998 but approach towards recovery had varied since then – Said logical position, which gave effect both to general principle as to treatment of costs and relevant policy was success fees not recoverable as part of substantive award in any civil proceedings, including those under 1975 Act –
Base costs under 1975 Act subject to costs regime in Civil Procedure Rules (CPR) – Dealt with under CPR as costs order – Would undermine costs regime and produce incoherent result if party could recover base costs as part of substantive award – Appeal allowed.
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