Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

More Oil for a Slippery Slope: Quebec Court of Appeal Authorizes Class Action Against the Vehicle Manufacturer KIA

Posted in Case Comments, Civil Litigation, Class Actions, Manufacturing, Quebec Court of Appeal
Emira Tufo

On June 12th, in Martel c. KIA Canada inc. (2015 QCCA 1033), the Quebec Court of Appeal reversed a ruling of the Superior Court which had refused to authorize a class action against a vehicle manufacturer, KIA, for allegedly misrepresenting the frequency of servicing necessary for the proper maintenance of its vehicles. Looking for an economical vehicle, the Petitioner, Thérèse Martel, had purchased a KIA based on representations made in its official manual that servicing would be required only every 12,000 km. Having brought her vehicle in for its first inspection, however, Ms. Martel was informed by the dealer that more frequent servicing was required by Quebec’s harsh climate. At her second inspection, she was informed that an oil change was required more frequently still. The Petitioner instituted a motion for the authorization of a class action on behalf of all purchasers of KIA vehicles who had been victims of false representations contained in the manufacturer’s manual.

While it did find that the facts alleged appeared to justify the conclusions sought, the Superior Court nevertheless refused to authorize the action, primarily due to the fact that the Petitioner had failed to carry out the necessary inquiry in order to ascertain whether other class members actually existed. In particular, the Superior Court found that the Petitioner had failed to prove that other buyers of KIA had, in fact, been misled by the manufacturer’s manual.

The Court of Appeal reversed the decision, basing itself on the Supreme Court of Canada’s rulings in Infineon Technologies (2013 SCC 59) and Vivendi ([2014] 1 S.C.R. 3 , pursuant to which a petitioner is absolved of the need for any such proof, requiring instead a simple demonstration of a defensible cause. The Court’s role is simply to eliminate evidently frivolous actions.   Recalling Vivendi, the Court of Appeal stressed that even where circumstances varied from one class member to another, a class action could be authorized as long as all shared at least one not insignificant question. The Court also stressed that the extent of inquiry necessary regarding other class members depended on the circumstances of a given case, and that it was not particularly useful to identify other class members in cases where it was evident that they existed. Finally, the Court emphasized that in the context of a prohibited practice under the Consumer Protection Act, the prejudice in question was to be evaluated objectively, and not subjectively in terms of the experience of each affected consumer. The question was essentially that of whether a false representation had been made and whether this constituted a prohibited practice. In the case at hand, the Court ruled that those who considered themselves to have been injured by the alleged false representation could bring forward a claim. The Respondent Kia was presumed to possess sufficient data to estimate the number of consumers concerned and was also better placed than anyone to identify them.

The decision confirms the unfortunate ongoing trend toward leniency at the class action authorization stage in Quebec. Moving beyond (or, rather, beneath) the “one not insignificant question” threshold, the Court of Appeal has absolved the petitioner of the usual duty to identify a few others who share her woes. These woes can now seemingly be presumed from a given set of circumstances, just as the respondent can be presumed to possess sufficient data to estimate the number of consumers affected. Despite the fact that the authorization stage obeys to its own set of rules, the question that begs to be asked is whether these presumptions would constitute serious, precise and concordant presumptions as per the requirements of article 2849 of the Civil Code of Quebec. Without something a little more precise, it seems, woe is to the target of a prospective class action.

The SCC Monitor (18/06/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in Civil Procedure/Evidence, Class Actions, Health, The SCC Monitor
Sam Rogers

The Supreme Court of Canada has recently dismissed two leave applications and granted leave in one case that will be of interest to our readers. These cases touch on: case management and civil procedure in class actions (including when parent companies may be joined in an action); the standard of review and standing of administrative boards and tribunals; and interpretation of the federal Interest Act in regards to mortgage incentives and penalties.

Leave To Appeal Dismissed

François Deraspe v. Canadian Electrolytic Zinc Ltd., et al. (36295)

This class action was originally commenced in 2004 against Canadian Electrolytic Zinc Ltd. (“CEZ”), which operated a zinc refinery in Quebec. The allegations concerned the alleged release of sulphur trioxide into the air in April 2004. Fearing the CEZ was judgment proof, the plaintiff tried to join CEZ’s parent companies on the basis that they had operated the refinery through CEZ and used CEZ to “dissemble fraud or contravention of a rule of public order.”

The trial judge disagreed and found that CEZ had sole custody and was the sole operator of the refinery in April 2004. The Court of Appeal dismissed the appeal and condemned the “improper and outrageous” language used in the pleadings filed by counsel for the plaintiff.

The plaintiff’s grounds of appeal included whether the Court of Appeal had the power to sanction counsel directly, whether by so doing it had undermined public confidence in the justice system, and whether there was a miscarriage of justice for members of the class.

This litigation had a long and complex history, two previous leave applications were dismissed one in September 2011 and another in September 2013. This time around there were 6 motions in the Supreme Court before the leave application was decided, including one “for permission to file a sworn notice by the applicant denouncing a fraud on the administration of justice in Canada.” The 6 motions have all been dismissed by the Supreme Court.

Health Professions Review Board v. Alan Moore et al. (36272)

In 2009, a patient made a complaint to the College of Physicians and Surgeons of British Columbia against Dr. Alan Moore. The patient, an inmate at the Kent Institution in Agassiz, B.C. had been receiving Lyrica, a pain medication, for on-going leg and back pain resulting from a motor vehicle accident.

On July 16, 2008 a national directive was issued by Correctional Service of Canada advising that Lyrica would only be available in prison pharmacies in “exceptional circumstances” due to ongoing abuse. On July 18, 2008, Dr. Moore discontinued the patient’s Lyrica prescription and prescribed alternate pain medication because Lyrica was only helping with the patient’s leg pain.

The patient’s complained that his Lyrica prescription was terminated without medical reason. The Registrar of the College reviewed the complaint found that it had “no criticism” of Dr. Moore and, therefore, did not refer the complaint to the Inquiry Committee of the College.

The patient appealed to the B.C. Health Professions Review Board, which concluded that the College’s investigation of the complaint was inadequate both jurisdictionally and substantively. Jurisdictionally, the Board held that the Registrar of the College did not have the power to find that the College had no “criticism” of a physician. Substantively, the Board held that the College should have investigated apparent conflicts between the statement of the patient and the statement of Dr. Moore.

The B.C. Supreme Court set aside the Review Board’s decision and reinstated the decision of the College. On the jurisdictional point, the Board itself had already reconsidered the same issue in a subsequent decision (Decision No. 2011-HPA-0018(a)) and held that the Registrar of the College does have the jurisdiction to make a finding of no criticism. Substantively, the Court held:

The College does not have unlimited resources available to process complaints. Thus, it must use its resources wisely when it makes its initial assessment. Some complaints will be easily categorized as serious and put into the proper “stream” to be dealt with by the Inquiry Committee or Discipline Committee. Others will fall at the opposite end of the spectrum and will require little more than a fair assessment of a registrant’s response to the complaint to dispose of it.

It does not necessarily follow that simply because a complaint is disposed of in a summary way that the process warrants intervention by the Board. This is so even where there is a conflict between the complainant’s statement and the response of the registrant. (paras 119-120)

The Supreme Court’s decision also has an extensive discussion considering whether the Board had standing in the judicial review. Ultimately, the Court concluded that the Board did have standing, primarily due to the absence of the complainant or any other party opposing the relief sought by Dr. Moore.

The Court of Appeal dismissed the appeal for the reasons given by the B.C. Supreme Court.

Leave to Appeal Granted

Krayzel Corporation et al. v. Equitable Trust Company (Alta.) (36123)

The Supreme Court granted leave to appeal on May 21. We blogged about this case last September. The Alberta Court of Appeal had split on the question of whether incentives for prompt payment in a mortgage, which would be lost on default, are contrary to prohibition against penalties for non-performance contained in s.8 of the Interest Act, RSC 1985, c I-15.

A majority had decided no but the Supreme Court will now weigh in and settle the matter for good. The decision in this case may affect the structure of mortgages across the country.

 

 

Melting Pot or Mosaic? The Ongoing Culture Shift since Hryniak

Posted in Case Comments, Civil Procedure/Evidence, Procedural Rights, Procedure
Kelli McAllister

Over the past year, courts across Canada have responded to the Supreme Court of Canada’s clarion call in Hryniak v Mauldin (“Hryniak”) for a culture shift to promote access to justice including through summary judgment.[1] The latest word on this front has come from the Alberta Court of Appeal in two recent decisions which seemingly conflict on the threshold to be applied to summary judgment applications.[2] The inherent tension created by Hryniak in Alberta is that the summary judgment rule (Rule 7.3) reflects the 2006 views of the Supreme Court of Canada: that such applications should be used to weed out claims with no chance of success. Post-Hryniak, courts are to consider summary judgment as a legitimate alternative to trial which impliedly sets a lower bar or threshold. An interesting mélange of Ontario and Albertan law has become the order of the day in Alberta – a true cultural melting pot for summary judgment.

Hryniak and Its Legacy

As previously discussed, Hryniak calls on courts to use summary judgment as a legitimate alternative to trial to enhance access to justice and do away with unnecessary expense and delay:[3]

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

Summary judgment motions provide one such opportunity.

Because the decision in Hryniak was focused on Ontario’s procedure for summary judgment, courts across the country have since been addressing whether, and to what extent, Hryniak bears upon their summary judgment procedures. Notably, Nova Scotia, British Columbia and the Federal Courts have expressly rejected the direct application of Hryniak in their respective jurisdictions while generally acknowledging the values and principles discussed in Hryniak, a form of common law cultural mosaic.[4]

In Alberta, it is increasingly apparent that aspects of Ontario’s Rule 20 – as applied in Hryniak – have influenced the approach taken to summary judgment. Alberta was an early adopter of Hryniak: “the Supreme Court of Canada is preaching to the converted, if part of its target audience includes Alberta’s superior courts.”[5] Indeed, following on the heels of the decision in Hryniak, the Alberta Court of Appeal stated that it was consistent with Alberta’s summary judgment practice.[6]

Alberta: A Melting Pot of Summary Judgment Culture

However, the jurisprudence in Alberta with respect to summary judgment is not a straightforward application of Ontario’s Rule 20. Justice Wakeling of the Alberta Court of Appeal has commented that Hryniak did not jettison the “made-in-Alberta” summary judgment rule.[7] Alberta case law now presents something of a melting pot of summary judgment culture: it both adopts aspects of Hryniak and maintains aspects of the “made-in-Alberta” rule.

At present, there are at least two tensions within Albertan case law with respect to summary judgment. First, whether and to what extent Ontario’s Rule 20 holds sway in Alberta. Second, whether implementing the necessary culture shift and viewing summary judgment as an alternative to full trial means that the bar or threshold to obtain summary judgment remains as high as discussed by the Supreme Court of Canada in Canada v Lameman (“Lameman”):[8]

The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

Lameman and Hryniak present meaningfully different views of summary judgment applications. Hryniak represents the modern approach where summary judgment is a viable alternative to a full trial, thereby making summary judgment more accessible and moving the threshold for obtaining summary judgment lower. In contrast, the view expressed in Lameman requires an applicant on a summary judgment motion to meet a much more stringent test—no chance of success for a claim or defence. The Lameman view is arguably reflected in Alberta’s summary judgment rule which reads:[9]

7.3(1) A party may apply to the Court for summary judgment in respect of all or part of a claim on one or more of the following grounds:

(a) there is no defence to a claim or part of it;

(b) there is no merit to a claim or part of it;

(c) the only real issue is the amount to be awarded.

Against this backdrop, earlier this year the Alberta Court of Appeal in 776826 Alberta Ltd v Ostrowercha (“Ostrowercha) considered the governing test for summary judgment and held:[10]

From the process perspective, summary judgment can be given if a disposition that is fair and just to both parties can be made on the existing record by using that alternative method for adjudication: Hryniak v Mauldin.

From a substantive perspective, summary judgment can be granted if, in light of what that fair and just process reveals, there is no merit in the claim. No “merit” means that even assuming the accuracy of the position of the non-moving party as to any material and potentially decisive matters – matters which would usually require ordinary forensic testing through a trial procedure with viva voce evidence and which could not be resolved through the fair and just alternative – the non-moving party’s position viewed in the round has no merit in law or in fact.

Further Confusion – Amack

More recently, in Amack v Wishewan (“Amack”), the Alberta Court of Appeal considered whether a chambers judge erred when he determined he could not conclude, on a balance of probabilities, whether the limitations defences advanced could be made out in an application for summary judgment (the reverse of the Ostrowercha).[11] Notably, a “balance of probabilities” is much lower threshold than finding that there is “no merit in law or in fact”.

Importantly, viewing summary judgment as an alternative to trial and conducting a merits-based analysis of the claim or defence is not necessarily mutually exclusive (as shown in Ostrowercha). The former may mean a greater willingness to entertain summary judgment applications, whereas the latter imposes a higher threshold for such applications to be successful. Nevertheless, if the culture shift as formulated in Hryniak is to be given full effect, viewing summary judgment as a legitimate alternative to trial (i.e., a valid means to justice) implies that the same threshold should be applied as at a full trial of the merits—whether the moving party establishes their case on the balance of probabilities. This view is impliedly supported in Amack. To hold an applicant to a higher threshold would arguably undermine a culture where summary judgment is a genuine alternative to trial. On the other hand, the approach to summary judgment reflected in Alberta’s Rules of Court, Lameman and Ostrowercha, reflects a different cultural approach where summary judgment is reserved for those claims or defences which have no chance of success in law or in fact. The real question for Albertan courts is how Hryniak has softened that higher threshold.

To confuse matters somewhat further, in Amack, the Court of Appeal re-stated the test for summary judgment as follows:[12]

Following the recent Supreme Court of Canada decision in Hryniak v Maudlin, this Court has held that summary judgment can be granted if a disposition that is fair and just to both parties can be made on the existing record. This does not, however, detract from the requirement that there be “no genuine issue for trial”. Rather the two concepts are themselves linked, as noted in Hryniak.

Alberta’s summary judgment rule does not currently contain any language which refers to a “genuine issue for trial”. This formulation is found in Ontario’s Rule 20 (“the court shall grant summary judgment if, the court is satisfied that there is no genuine issue requiring a trial”) and thus is woven throughout the analysis in Hryniak. In fact, Alberta’s Rules of Court were amended in 2010, prior to which the rule for summary judgment referred to whether there was “no genuine issue for trial.” Such a change is tantamount to reform (i.e., a change in the law).[13] Based on a strict reading of the Alberta Rules of Court according to canons of construction, whether there is a “genuine issue for trial” has been repealed and is now irrelevant. Recognition again by the courts in Alberta of a “genuine issue for trial” represents, in light of the changes to the Alberta Rules of Court, is both a reversal of the law (overriding legislation) and a confirmation of the existence of a melting pot for summary judgment applications in Alberta.

Significance

There can be no doubt that the Supreme Court of Canada has called on courts to be more willing to consider summary judgment as a viable alternative to a full trial. However, as can be expected, the practicalities of that shift in culture need to be worked out by lower courts, including those in Alberta. The melting pot approach to that culture shift in Alberta – with a little from Lameman, a little from Hryniak, a little from Ontario’s Rule 20, all grounded in Alberta’s Rule 7.3 – is an example of that work (still in progress).

Practically speaking, in Alberta, Hryniak cannot be ignored. Given the state of Albertan appellate case law, when faced with a summary judgment application, it would be useful to emphasize the clear merit-based wording in Rule 7.3 and the necessity of a higher threshold for such applications. On the other hand, when bringing a summary judgment application, the approbation given by the Supreme Court of Canada in Hryniak and impliedly by the Court of Appeal in Amack as a legitimate alternative to full trial supports a valid argument for a lower threshold for success on such applications. Regardless, summary judgment ought to be taken seriously, as there can be little doubt that the melting pot culture currently embraced in Alberta has shifted the presumption away from a full trial as the only means to justice for all parties.

Case Information

Amack v Wishewan, 2015 ABCA 147

Docket: 1403-0293-AC

Date of Decision: April 29, 2015

776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49

Docket: 1403-0256-AC

Date of Decision: February 4, 2015

_____________________________________________________________________________

[1] Hryniak v Maudlin, 2014 SCC 7 at paras 2, 23-33 (“Hryniak”).

[2] 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49 (“Ostrowercha”); Amack v Wishewan, 2015 ABCA 147 (“Amack”)

[3] Hryniak, supra note 1 at paras 2-3.

[4] See e.g., Blunden Construction Ltd v Fougere, 2014 NSCA 52 at paras 6-7 (“the recent decision of [Hryniak], has little bearing upon the circumstances, analysis, reasoning or result in this case….[Ontario’s Rule 20] powers are foreign to the well-established procedures and settled law which operate in Nova Scotia”); Manitoba v Canada, 2015 FCA 57 at para 11 (“In my view, [Hryniak] does bear upon the summary judgment issues before us, but only in the sense of reminding us of certain principles resident in our Rules. It does not materially change the procedures or standards to be applied to summary judgment motions brought in the Federal Court under Rule 215(1))”); NJ v Aitken Estate, 2014 BCSC 419 at para 33 (“In my view, Hryniak v Mauldin does not change the law regarding summary trials in British Columbia, and does not render the jurisprudence from our Court of Appeal obsolete”).

[5] Can v Calgary (Police Service), 2014 ABCA 322 at para 77 (“Can”)

[6] Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 at paras 13-14.

[7] Can, supra note 5 at para 98 (per Wakeling JA, concurring in the result).

[8] Canada (Attorney General) v Lameman, 2008 SCC 14 at paras 10-11 [emphasis added].

[9] Can, supra note 5 at para 98; Alberta Rules of Court, Alta Reg 124/2010, r 7.3 [emphasis added].

[10] Ostrowercha, supra note 2 at paras 9-10 [citations omitted, emphasis added].

[11] Amack, supra note 2 at paras 8, 22.

[12] Ibid at para 26 [citations omitted].

[13] Pierre-André Côté, The Interpretation of Legislation in Canada, 4th Ed (Toronto: Thomson Reuters, 2011) at 113

Pick Your Poison: the Court of Appeal Clarifies the Distinction between the Oppression Remedy and the Derivative Action

Posted in Corporate Law
Anu Koshal

Introduction

On May 26, 2015, the Ontario Court of Appeal issued its decision in Rea et al v Wildeboer (“Wildeboer”). The decision clarifies the nature, purpose, and difference between two of the most widely-used shareholder remedies in Canadian corporate law: the oppression remedy and the derivative action. Continue Reading

The Supreme Court rules that the Charter permits courts to award damages against the Crown for wrongful non-disclosure absent proof of malice

Posted in Case Comments, Constitutional, Criminal
Renée Zatzman

Does s. 24(1) of the Canadian Charter of Rights and Freedoms authorize a court of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice?

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Jurisdiction in International Commercial Contracts: New Guidance from the B.C. Court of Appeal

Posted in Case Comments, Conflict of Laws, Contracts, Corporate Law, Transportation
Sam Rogers

We live in an increasingly interconnected world with trade liberalization and globalization continuing unabated. These changes present many opportunities for businesses but also raise new challenges for businesses operating across borders.

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What Lies Beneath: The Unexpected Reach of Litigation Privilege

Posted in Case Comments, Civil Procedure/Evidence
Kate Findlay

In an interesting decision clarifying the reach of litigation privilege, the British Columbia Court of Appeal in No Limits Sportswear Inc. v. 0912139 B.C. Ltd., 2015 BCCA 193, has recently held that litigation privilege extends to communications between formerly adverse parties who have settled their dispute and are cooperating against a remaining co-defendant, even where the pleadings have not yet been amended to reflect this new reality.

Background Continue Reading

The “Bright Line” Rule is dimmed by the Alberta Court of Appeal in Statesman

Posted in Case Comments, Construction and Real Estate, Corporate Law, Professions
Ryan MacIsaac

Joint retainers are common in modern legal practice. But what happens when a dispute is brewing between two parties represented by the same law firm? How is a lawyer to know when the “bright line” of conflict of interest has been crossed? And when the duty of loyalty to a client is breached, when is disqualification of the law firm an appropriate remedy? The Alberta Court of Appeal addressed these issues in Statesman Master Builders Inc v Bennett Jones LLP, 2015 ABCA 142 (“Statesman”). Continue Reading

The SCC Monitor (25/05/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Byron Shaw

On Thursday, May 28, 2015, the Supreme Court of Canada will release judgment on several leave applications currently before the Court, including the following.

Mangal v. William Osler Health Centre (36174)

Mangal is a medical malpractice case in which a woman died in hospital several hours after a caesarean section. The case raises the question of whether a trial judge may adopt new theories of factual causation not advanced by the parties.

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Has the Supreme Court of Canada done away with the concept of apparent bias?

Posted in Case Comments, Civil Procedure/Evidence
Keegan Boyd

In White Burgess Langille Inman v. Abbott and Haliburton Co., a must-read decision for anyone involved in litigation, the Supreme Court of Canada tackles some of the difficult questions associated with how to properly deal with the proposed evidence of potentially biased experts.

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The SCC Monitor (19/05/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Renée Zatzman

The Supreme Court of Canada has released a number of significant decisions since our last update that are of interest to Canadian businesses and professions, addressing the level of evidence required of a material change to support a securities class action in Quebec, damages for wrongful conviction, and requirements for expert evidence.

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Solicitor-Client Privilege Wins Again Court of Appeal Endorses Restrictive Statutory Interpretation in University of Calgary v JR

Posted in Case Comments, Solicitor-Client Privilege
Roland HungKimberly Macnab

The privileged position that solicitor-client privilege occupies in our legal system was recently reiterated and reinforced in the context of access to information requests in University of Calgary v JR. On April 2, 2015, the Alberta Court of Appeal considered the authority delegated to the Office of the Information and Privacy Commissioner (“OIPC”) as it went head to head against solicitor-client privilege.[1]

Overview Continue Reading

To Comply or Not to Comply? When Experts Fall Outside the Scope of Rule 53.03

Posted in Case Comments, Civil Procedure/Evidence
Kosta KalogirosShanique Lake

On March 26, 2015, the Ontario Court of Appeal released its decision in Westerhof v. Gee Estate concurrently with its companion case McCallum v. Baker[1]. Both decisions were heard at the same time as Moore v. Getahun[2] and, together, form what has been referred to as the Expert Evidence Trilogy (“Trilogy”).

There was an exceptional degree of interest by the Ontario bar in the Trilogy, with six parties intervening in the appeals: The Advocates’ Society; The Holland Group; the Ontario Trial Lawyers Association; the Canadian Defence Lawyers Association; the Canadian Institute of Chartered Business Valuators and the Criminal Lawyers’ Association. Facta of the parties and all interveners are available here. Our coverage of the Moore v. Getahun decision, which was released earlier this year, is available here.

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Court of Appeal Rules on Privilege over Regulator’s Investigation File

Posted in Case Comments, Class Actions
William D. BlackShane C. D'Souza

Does privilege shield a regulator’s investigation file that has not been produced to a respondent? The Ontario Court of Appeal recently grappled with whether or not to compel a regulator to produce its investigation file of its member to plaintiffs in a class action against that member. There are important lessons in the Court’s determination that case-by-case privilege did not apply in the circumstances. Nevertheless, the Court held that plaintiffs did not need the regulator’s documents to prove their allegations in the class action, and on that basis declined to order production. Continue Reading

The SCC Monitor (24/04/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Katherine Booth

Since our last post, the Supreme Court has released a number of significant decisions, including a decision about the standard of review applicable to statutory appeals and the test for civil contempt. It also dismissed two applications for leave to appeal in cases of particular interest to Canadian businesses, regarding what constitutes sufficient proof of illegal insider trading and whether Canadian courts have jurisdiction over secondary market misrepresentation class actions when the shares were purchased on a foreign exchange. Finally, it granted leave to appeal in a class actions case dealing with a provincial court’s jurisdiction over out-of-province third party defendants.

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Screening Secondary Market Liability Actions: the Supreme Court Raises the Bar for Plaintiffs

Posted in Case Comments, Class Actions, Securities
Miranda LamPierre-Jerome BouchardLaure Fouin

On April 17, 2015, the Supreme Court of Canada (SCC) rendered its opinion in Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18 (Theratechnologies), its first decision on the Quebec statutory secondary market liability regime adopted in 2007 pursuant to a reform of the Quebec Securities Act (QSA).  Like its sister statutes in other provinces, although the QSA regime facilitates a plaintiff’s burden, mostly by presuming that variation in market price is linked to a misinformation or omission, it also imposes an authorization process under which a claimant must establish that its action is brought in good faith and has a reasonable possibility of success.

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Negligence of Public Authorities – “We have been using a screwdriver to turn a bolt”, Federal Court of Appeal says

Posted in Administrative, Case Comments
Marc-Andre Russell

The majority decision (Stratas and Nadon, J.A.) of the Federal Court of Appeal (“FCA”) in Paradis Honey Ltd. v. Canada, 2015 FCA 89 calls for a complete overhaul of the law governing public authority liability. In a surprising obiter, the Court expressed its view that the well-known analytical framework used for negligence is an anomaly when applied to public authorities, and that the last decades of case law using private law tools to solve public law problems should be revisited. The case can be seen as an open invitation for the Supreme Court of Canada to grant leave to appeal and elaborate a new test for negligence of public authorities. Continue Reading

Like a prayer: How the Supreme Court’s freedom of religion decision in Saguenay affects administrative law and the admissibility of expert evidence

Posted in Administrative, Case Comments, Civil Procedure/Evidence
Brooke MacKenzie

The Supreme Court of Canada’s recent decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (“Saguenay”) is undoubtedly of interest to all Canadians with respect to the Court’s conclusion ordering a municipality and its mayor to cease the recitation of a prayer at city council meetings, on the basis that it breached the state’s duty of neutrality and was thus a discriminatory interference with an individual’s freedom of conscience and religion.

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Ontario Court of Appeal refuses to read down or sever general release clause in franchise agreement

Posted in Case Comments, Franchise and Distribution
Adam ShipBrooke MacKenzieApril Engelberg

The following post by Brooke MacKenzie on our Consumer & Retail Advisor Blog may be of interest to our readers: Ontario Court of Appeal refuses to read down or sever general release clause in franchise agreement

This post addresses the Ontario Court of Appeal’s decision in 2176693 Ontario Ltd. v. Cora Franchise Group Inc, 2015 ONCA 152, upholding a decision striking down a general release clause in a franchise agreement on the basis of section 11 of the Arthur Wishart Act (Franchise Disclosure), 2000, SO 2000, c 3, which provides that any purported release of a franchisee’s statutory rights is void. Even though the franchisor sought only a release from non-statutory claims, the Court of Appeal refused to read down or sever the provision, holding that to do so would subvert the purpose of the Act.

Ontario Court of Appeal Again Narrowly Interprets the Resale Exemption in Ontario’s Franchise Legislation

Posted in Case Comments, Franchise and Distribution
Adam ShipBrooke MacKenzie

The following post by Adam Ship and Brooke MacKenzie on our Consumer & Retail Advisor Blog may be of interest to our readers: Ontario Court of Appeal Again Narrowly Interprets the Resale Exemption in Ontario’s Franchise Legislation.

The post addresses the Ontario Court of Appeal’s decision in 2147191 Ontario Inc. v. Springdale Pizza Depot Ltd., 2015 ONCA 116, upholding a finding on summary judgment that a franchisor could not rely on the “resale exemption” from the disclosure requirements found in Ontario’s franchise legislation, the Arthur Wishart Act (Franchise Disclosure), 2000, SO 2000, c 3.

The B.C. Court of Appeal on Implied Waiver of Privilege: Do Process LP v. Infokey Software Inc., 2015 BCCA 52

Posted in Case Comments, Civil Procedure/Evidence
Scott GriffinMiriam Isman

This post by OnPoint Legal Research may be of interest to readers of this blog. The article addresses the B.C. Court of Appeal’s recent decision, Do Process LP v. Infokey Software Inc., 2015 BCCA 52, which established an important point of law – namely, an affirmative plea of an absence of legal advice made in conjunction with a plea of duress, which is said to render an agreement unenforceable, constitutes an implied waiver of privilege over legal advice previously received on the subject of the agreement. This article also includes comments from counsel on both sides of the appeal, including Scott Griffin and Miriam Isman, counsel for the successful appellant Do Process LP.

BC Court of Appeal Rules Bhasin Framework is Distinct from Implication of Contract Terms for Business Efficacy

Posted in Case Comments, Contracts
Dharshini Sinnadurai

A few months ago, the Supreme Court of Canada released its decision in Bhasin v Hrynew, a precedent-setting judgment, recognizing a general organizing principle of good faith in contract law.[1] More recently, the BC Court of Appeal in Moulton Contracting Limited v. British Columbia,[2] considered and elaborated upon Justice Cromwell’s discussion in Bhasin about the doctrines of good faith and implied contractual terms for “business efficacy,” clarifying that the two frameworks are distinct and not to be conflated.

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Two Big Wins for Unions at the SCC

Posted in Case Comments, Charter of Rights, Constitutional, Labour and Employment
Angela Juba

Earlier this year, the Supreme Court of Canada delivered a pair of big wins to Canadian unions. Both judgments relate to public sector unions, but may have important implications for labour law more generally. In both cases, the Court has undermined its own precedent.

Mounted Police Association of Ontario v. Canada (Attorney General) Continue Reading

The SCC Monitor (18/03/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Dina Awad

Since our last post, the Supreme Court sat during the weeks of February 23 and March 16, 2015 and heard a few important appeals to take note of. The Court also released judgment in three appeals, including Potter v. New Brunswick Legal Aid Services Commission, an important constructive dismissal case.

Potter, 2015 SCC 10, is a notable decision for employers and employees everywhere as it clarifies the two branches of the constructive dismissal test.  Mr. Potter was suspended indefinitely with pay and had his powers delegated to another worker. In unanimously finding that Mr. Potter had been constructively dismissed, the Court overturned the trial judge and Court of Appeal and revisited the applicable test.

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