Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

The SCC Monitor (25/05/2015)

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.

In Mangal, the trial judge concluded that one of the physicians involved in Ms. Mangal’s care breached his duty of care by failing to promptly notify an obstetrician about Ms. Mangal’s condition at a critical stage. However, because the trial judge found that Ms. Mangal died due to an untreatable blockage in her lung, he dismissed the plaintiffs’ claim. At the Court of Appeal, the plaintiffs argued that the trial judge’s blockage in the lung theory was not supported by the evidence nor pleaded by the parties and that they were prejudiced because they could not have reasonably anticipated a judge-made causation theory or have responded to it at trial. The plaintiffs requested a new trial.

A majority of the Ontario Court of Appeal dismissed the appeal. According to the majority, the trial judge “was not engaged in an either-or-exercise where he was obliged to accept one theory of liability or the other.  Rather, the trial judge’s function was to determine if the appellants had met their onus of proving on a balance of probabilities that, but for the negligence of the respondents, Ms. Mangal would not have died. In so doing, it was open to the trial judge to accept some, none, or all of a witness’s evidence, including an expert witness’s evidence.”[1]

Feldman J.A. dissented, concluding that the trial judge had: (1) committed a palpable and overriding error and misapprehended the evidence in determining the cause of death; and (2) committed an error of law by finding a cause of death that was not put forward by the parties or the witnesses at trial, contrary to the Court of Appeal’s earlier ruling in Grass (Litigation Guardian of) v. Women’s College Hospital.[2]

Flanagan v. Attorney General of Canada (36316)

Do members of the RCMP have a contract-based employment relationship with the Crown? If so, does the grievance procedure in the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 constitute a member’s sole remedy for breach of that contract or can they proceed by civil action? These are the questions raised in Flanagan, a case involving a 25 year member of the RCMP who received a voluntary discharge in 2005 after a dispute with his superiors regarding his alcohol consumption. Officer Flanagan contends that the discharge constitutes a constructive, wrongful dismissal and commenced an action for damages. Both the motion judge and the B.C. Court of Appeal[3] held that Officer Flanagan’s sole remedies lay in pursuing the grievance procedure under the legislation or seeking administrative injunctive or other relief while he remained a member of the force.

[1] Mangal v. William Osler Health Centre, 2014 ONCA 639, at para. 61, citing Grass (Litigation Guardian of) v. Women’s College Hospital (2005), 75 O.R. (3d) 85 (C.A.).

[2] Ibid at paras. 105-106.

[3] Flanagan v. Canada (Attorney General), 2014 BCCA 487.

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.

The Court clarifies how concerns of bias and partiality should be dealt with in the existing admissibility framework and also provides guidance about what is required to meet the threshold to have expert evidence excluded altogether.


This appeal arises out of a professional negligence action brought by the respondents (the “Shareholders”) against the appellants, the former auditors of the Shareholders’ company (the “Auditors”).

The Shareholders started the action after they had retained a new accounting firm to perform various accounting tasks, which allegedly revealed problems with the Auditors’ prior work. The central allegation in the underlying action is that the Auditors’ failure to apply generally accepted auditing and accounting standards caused financial loss to the Shareholders.

The Auditors brought a motion for summary judgment, which prompted the Shareholders to retain a forensic accounting expert (the “Shareholders’ Expert”), a partner at the accounting firm that revealed the alleged problems with the Auditors’ work. The Shareholders’ Expert opined that the Auditors had not complied with their professional obligations and delivered an affidavit to this effect in response to the motion for summary judgment.

The Auditors then applied to strike the affidavit of the Shareholders’ Expert on the grounds that the expert was not impartial.

Procedural History

The motions judge at the Nova Scotia Supreme Court essentially agreed with the Auditors and decided to strike the affidavit of the Shareholders’ Expert in its entirety. The motions judge found that her opinion did not meet the threshold requirements for admissibility, noting that an expert’s evidence “must be, and be seen to be, independent and impartial”.

The majority at the Nova Scotia Court of Appeal allowed the Shareholders’ appeal. While the Court of Appeal agreed that the court has a discretion to exclude expert evidence due to actual bias or partiality, it held that the threshold test adopted by the motions judge – that an expert must be, and be seen to be, independent and impartial – was wrong in law. As there was no finding of actual bias or partiality, the motions judge ought not to have struck the affidavit of the Shareholders’ Expert.

The Supreme Court Decision

Cromwell J., writing for a unanimous seven-judge panel, clarified that experts must be aware of their overriding duty to the court to give fair, objective, and non-partisan opinion evidence, and must be able and willing to carry out this duty. This is a threshold consideration that should be included as part of the “properly qualified expert” inquiry in the Mohan framework for admissibility.

The Court noted that this threshold requirement is “not particularly onerous” and that it will likely be “quite rare” that a proposed expert’s evidence would be ruled inadmissible for failing to meet this threshold. There must be an actual lack of independence or impartiality for expert evidence to be excluded at this stage. Cromwell J. states (at para. 49):

I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion…

However, even if the “properly qualified expert” threshold is met, concerns about an expert witness’ independence or impartiality may still lead to exclusion of the expert’s evidence at the gatekeeper stage of the analysis, as outlined by the Ontario Court of Appeal in Abbey. That is, the judge must still take concerns about the expert’s independence and impartiality into account in its determination of whether the proposed evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm.

The Relevance of Apparent Bias

While the Court confirmed that the concept of apparent bias has no role to play at the threshold stage of the admissibility inquiry, it is unclear whether apparent bias alone may nevertheless lead to evidence being excluded at the gatekeeper stage.

The Court noted (at para. 50) that apparent bias is not relevant to the question of whether an expert witness is able and willing to fulfill his or her overriding duty to the court:

As discussed in the English case law, the decision as to whether an expert should be permitted to give evidence despite having an interest or connection with the litigation is a matter of fact and degree. The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.

These observations were made in Cromwell J.’s discussion of the threshold consideration. However, he subsequently notes (at para. 57):

There was no finding by the motions judge that [the Shareholders’ Expert] was in fact biased or not impartial or that she was acting as an advocate for the [Shareholders]… On the contrary, she specifically recognized that she was aware of the standards and requirements that experts be independent. She was aware of the precise guidelines in the accounting industry concerning accountants acting as expert witnesses. She testified that she owed an ultimate duty to the court in testifying as an expert witness… To the extent that the motions judge was concerned about the “appearance” of impartiality, this factor plays no part in the test for admissibility, as I have explained earlier.

While, arguably, Cromwell J.’s comments could be interpreted to mean that ‘apparent bias’ should not come into play at any stage in the admissibility framework, it is important to remember that the underlying action was brought in Nova Scotia, where judges do not have the power to weigh evidence on motions for summary judgment. If the Court intended to do away with the concept of ‘apparent bias’ altogether, one would expect a more clear statement to this effect.

However, it is significant that the Court finds that the mere fact that an expert has an interest in or a connection to the litigation is insufficient to preclude the expert from meeting the relatively low threshold for admissibility. In applying that principle to the facts of this case, the Court holds (at para. 60):

The fact that one professional firm discovers what it thinks is or may be professional negligence does not, on its own, disqualify it from offering that opinion as an expert witness. Provided that the initial work is done independently and impartially and the person put forward as an expert understands and is able to comply with the duty to provide fair, objective and non-partisan assistance to the court, the expert meets the threshold qualification in that regard.

It remains unclear whether the apparent bias in this situation would have any relevance at the gatekeeper stage at a trial in Nova Scotia or at a summary judgment motion in a different jurisdiction, such as Ontario, where judges are permitted to weigh evidence. Arguably, it is still open to litigants to challenge evidence where the nature and extent of an expert’s interest in or connection with the litigation, in and of itself, gives rise to concern.


This case will be important in actions that involve issues relating to the admissibility of expert opinion, for reasons of bias and partiality or otherwise. The Court ties together its decision in Mohan with several other decisions that have guided the determination of whether expert evidence should be excluded. While the Court’s decision in White Burgess does not entirely revamp the framework to be applied, several nuances have been adopted that will almost certainly affect how judges approach the evaluation of expert evidence going forward.

Case Information

White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23

Docket: 35492

Date: 2015-04-30

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.

First, the Court released a unanimous decision in Theratechnologies inc., v. 121851 Canada inc., 2015 SCC 18, allowing an appeal from the Québec Court of Appeal. This decision held that the authorization requirement for actions for damages under the Québec Securities Act requires more than a mere possibility of success. The Court agreed with both lower courts that the reasonable possibility of success requirement in the Act imposes a higher standard than the general threshold for the authorizing of class actions under the Québec Code of Civil Procedure but disagreed with the lower courts’ findings that the requirement was met in this case. The SCC ruled on whether a material change had occurred, whereas the lower courts had decided that this question should be left for the merits stage. Read our post on the Supreme Court decision here.

Shareholders of Theratechnologies inc. (Thera), a pharmaceutical research and development company, sought authorization to bring a class action for damages under the Act, alleging that Thera breached its statutory disclosure obligations by failing to disclose its dealings with the United States Food and Drug Administration (FDA) relating to the approval of a new drug application. 121851 sought the court’s authorization under the Act to pursue a class action proceeding for damages, claiming that information disclosed about the increased risk of diabetes amounted to a material change in Thera’s business, operations or capital, requiring disclosure under s. 73 of the Act.

At issue in the appeal was whether there was a “reasonable possibility” of success within the meaning of the Act. The Court found that a reasonable possibility of success requires the claimant to offer a plausible analysis of the applicable legislative provisions, and some credible evidence to support the claim. The Court also found that Thera did not breach its obligation under s. 73 of the Securities Act to provide timely disclosure of material changes to investors as 121851 failed to point to any evidence that could qualify as a material change in Thera’s business, operations or capital as described under the Act. Accordingly, there was no reasonable possibility that 121851’s action under the Securities Act could succeed. The Court commented on the expected knowledge of a reasonable investor and concluded that such an investor should have known that the questions raised by the FDA were not material.

The Court also released its decision in Henry v. British Columbia (Attorney General), 2015 SCC 24. The Court was unanimous in holding that section 24(1) of the Canadian Charter of Rights of Freedoms permits courts to award damages against the Crown for prosecutorial misconduct absent proof of malice. However, there was an interesting split decision about the proper scope of prosecutorial liability, with the majority calling for a slightly more narrow net.  The majority of the Court found that a claimant must convince the Court on a balance of probabilities that the he or she suffered a legally cognizable harm as a result of the Crown intentionally withholding information when the Crown knew or ought reasonably to have known that the withheld information was material to the accused’s defence and that failing to disclose the information would likely impact an accused’s ability to make a full answer and defence. As part of the required test, a claimant would also have to establish that withholding the information was a breach of his or her Charter rights.

In White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, on appeal from the Nova Scotia Court of Appeal, the Court considered when trial judges, in the exercise of their role as a gatekeeper, should exclude a proposed expert for lack of required independence and impartiality. A unanimous Supreme Court, in considering both the importance and special dangers posed by expert evidence, reaffirmed that independence and impartiality was one of the basic standards for admissibility of expert evidence and that expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. The Court set out a two-step inquiry to determine the admissibility of expert opinion and found that an expert’s lack of independence and impartiality should be considered at both stages. The Court reaffirmed the R v. Mohan threshold admissibility test at the first step. At the second stage, the Court held that a cost-benefit analysis should be conducted by the trial judge to determine that the expert evidence is sufficiently beneficial to the judicial process despite the potential harm.

The Court emphasized that “A proposed expert witness who is unable or unwilling to comply with this duty [of independence and impartiality] is not qualified to give expert opinion evidence and should not be permitted to do so.” However, exclusion at the threshold stage of the inquiry should occur only in very clear cases and less fundamental concerns about the expert’s impartiality and independence should not lead to exclusion, but should be weighed as part of a cost-benefit analysis at the second stage of the admissibility inquiry.

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]


In University of Calgary v JR, the Court of Appeal considered the appeal from a chambers judge’s decision ruling in favour of the OIPC regarding its demand that the University to produce records over which it asserted privilege, pursuant to an access to information request made by JR in 2008.[2]

JR had commenced a wrongful dismissal claim in 2008 against the University, which was eventually resolved in JR v University of Calgary by the Court of Queen’s Bench in 2012.[3] At the same time, JR had also made an access to information request pursuant to s. 7 of the Alberta Freedom of Information and Protection of Privacy Act (“FOIPPA”). In the request, JR sought all relevant emails, file information, letters, records of discussion, third party correspondence, personal notes, and internal meeting notes in the University’s possession. The University disclosed some documents, but withheld certain records on the basis that they were protected by solicitor-client privilege.

Office of the Information and Privacy Commissioner

The Information and Privacy Commissioner (the “Commissioner”) commenced a formal inquiry, appointing a delegate with inquiry powers pursuant to s. 61 of FOIPPA. In the course of this inquiry, the University was asked to produce unredacted copies of the requested records over which it was asserting privilege, for the purpose of verifying the claim of privilege. The delegate invoked s. 56 of FOIPPA in issuing a “notice to produce records”, which states:

“Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection…”

The University sought judicial review of the delegate’s decision to issue the notice to produce.

Court of Queen’s Bench

The chambers judge found that the plain meaning of s. 56 allowed the Commissioner to compel the production of records, despite the privilege asserted by the University. The University appealed the decision, arguing that the chambers judge erred in interpreting s. 56 of FOIPPA as empowering the Commissioner to compel production of records over which solicitor-client privilege is asserted. The Law Society of Alberta also intervened at the Court of Appeal, submitting similarly that a contextual interpretation of s. 56 would take into account the importance of solicitor-client privilege in our legal system.

Court of Appeal

The sanctity and fundamental importance of solicitor-client privilege in the Canadian legal system is undeniable and was undisputed in this case; the presumption with regard to solicitor-client privilege is that the protected information lies beyond the reach of all others, including the state.[4] The essential issue for the Court of Appeal was whether, in enacting s. 56, the legislature intended to displace this common law principle. The Commissioner’s position was that FOIPPA had clearly delegated the ability to collect the records at issue and assess the privilege claimed; the University’s position was that the Commissioner did not have the authority it claimed to possess.

In determining whether the legislature had intended to displace solicitor-client privilege in s. 56 of FOIPPA, the Court of Appeal discussed the applicable principles of statutory interpretation at length. It held that because of the central and fundamental importance of solicitor-client privilege to our legal system, and the necessity of preserving the solicitor-client relationship that is integral to the administration of justice, any statute that may be interpreted as trenching on that privilege must be interpreted restrictively.[5]

The Court considered the Supreme Court of Canada decision in Canada (Privacy Commissioner) v Blood Tribe Department of Health and found that it ousted the modern, purposive approach to statutory interpretation in cases where the legislation could be interpreted to trench on principles of privilege.[6] Not only did the Court of Appeal reject the ubiquitous “modern approach to statutory interpretation” in cases where solicitor-client privilege is at issue, but it also rejected the middle ground of using the restrictive interpretation as a “presumption of last resort”, as had been endorsed by the Supreme Court of Canada in certain cases.[7]

Applying the restrictive interpretation to the present case, because s. 56 of FOIPPA failed to clearly and explicitly discuss abrogation of solicitor-client privilege, it could not be interpreted to provide the Commissioner or the delegate to order a public body to produce records over which solicitor-client privilege was asserted. The Court of Appeal commented on a few other considerations that strongly militated against an interpretation that would allow disclosure in the case at bar: (i) neither the Commissioner or the delegate must be a lawyer, and as a result may lack the expertise necessary to evaluate claims of privilege; (ii) records disclosed to the Commissioner may be further disclosed in certain circumstances to the Minister of Justice and Solicitor General; and (iii) the language of s. 56, in using the word “organization”, would include law firms.[8]


University of Calgary v JR is another strong reaffirmation of the essential nature of solicitor-client privilege in our legal system, and a message to legislators and governmental bodies: in order for a statute to authorize infringement of privilege, its language must be abundantly clear. The Alberta Court of Appeal and the Supreme Court of Canada have both endorsed an extremely restrictive interpretive approach to legislation where privilege is at stake. At its core, the University of Calgary v JR decision is a statement by the court that threats to solicitor-client privilege will be carefully evaluated and interpreted, in order to ensure that this key legal principle enjoys the highest level of protection possible. The importance of solicitor-client privilege is such that a legislature may not abrogate it by mere inference.

As information and privacy legislation continues to evolve across Canada, businesses and legislators alike should pay careful attention to the wording of statutes that may infringe on various types of common law privilege. However, the University of Calgary v JR decision demonstrates that, absent clear and unambiguous wording, the courts will continue to uphold the sacrosanctity of privilege in our legal system.

*Kim Macnab is an articling student at the McCarthy Tétrault Calgary office.

Case Information

University of Calgary v JR, 2015 ABCA 118

Docket: 1301-0368-AC

Date of Decision: April 2, 2015


[1] University of Calgary v JR, 2015 ABCA 118 [JR].

[2] University of Calgary v JR, 2013 ABQB 652.

[3] JR v University of Calgary, 2012 ABQB 342.

[4] JR at para 26.

[5] JR at para 40.

[6] JR at paras 38-40, citing Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 SCR 574 at paras 2, 18, 25-26.

[7] JR at para 28, distinguishing Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24 and Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, [2002] 2 SCR 559.

[8] JR at para 50.

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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The Court as tie-breaker: Atomic Energy and how “persistent discord” begets a correctness standard of review

Posted in Administrative, Case Comments
Brooke MacKenzie

In its recent decision in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, the Federal Court of Appeal held that the rule of law can require the Court to apply a correctness standard of review to administrative decisions concerning the interpretation of the governing statute in certain cases, such as where adjudicators have long held conflicting interpretations of a particular provision.

Acknowledging that a labour adjudicator’s interpretation of a labour statute would be typically subject to a reasonableness review, the Court held that, where adjudicators have disagreed on a point of statutory interpretation for many years, the court must use the correctness standard to “act as a tie-breaker” and “determine the legal point once and for all”.

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Appeals Court Overturns Damages Award to Proponent for Aboriginal Blockade

Posted in Aboriginal, Environmental, Mining

The following post by Bryn Gray and Stephanie Axmann on our Mining Prospects blog may be of interest to our readers of this blog: Appeals Court Overturns Damages Award to Proponent for Aboriginal Blockade

The article addresses the BC Court of Appeal’s recent decision, Moulton Contracting Ltd. v. British Columbia, 2015 BCCA 89, which overturns a significant trial decision that had ordered the province of British Columbia to pay damages to a logging company arising from a blockade by members of a Treaty 8 First Nation.

Advocacy, Incivility and Professional Misconduct: Groia v The Law Society of Upper Canada

Posted in Case Comments, Professions
Timothy Froese

Are the legal profession’s rules regarding civility at odds with a lawyer’s duty to zealously advocate on behalf of his or her client? Debate on this point has recently focused on the Law Society of Upper Canada’s discipline of Toronto lawyer Joseph Groia for uncivil conduct during his defence of former Bre-X mining officer John Felderhof. The Ontario Divisional Court grappled with this question, and on February 2, 2015, upheld the Law Society’s finding that Mr. Groia’s conduct amounted to professional misconduct.

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The SCC Monitor (25/02/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Robert GlasgowKatie Szilagyi

Since our last update, the Supreme Court of Canada denied leave to appeal in nine cases, heard one of the most highly anticipated appeals of the year, and released a judgment that impacts lawyers across the country.

In Canada (Attorney General) v. Federation of Law Societies of Canada the Supreme Court ended a 15 year legal battle between the federal government and the various Canadian Law Societies. At issue was whether certain anti-money laundering legislation was unconstitutional to the extent it applied to lawyers and documents in the hands of legal counsel. The majority of the court held that ss. 62, 63, 63.1 and 64 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act infringe on s. 8 of the Charter.

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Supreme Court Overrules Rodriguez; Physician-Assisted Death Legal in Canada

Posted in Case Comments, Supreme Court of Canada
Byron Shaw

Physician-assisted death is permissible in Canada, for competent adults who: (1) clearly consent to the termination of life; and (2) have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of their condition. In Carter v. Canada (Attorney General),[1] a unanimous Supreme Court of Canada overruled its 1993 decision in Rodriguez v. British Columbia,[2] in which a majority of the Court upheld the blanket prohibition on assisted suicide. Continue Reading

SCC Undoes the Competition Tribunal and FCA Decisions in Tervita

Confirms Tribunal Cannot Try to Predict the Future or Weigh Undetermined Effects to Prevent Competition

Posted in Case Comments, Competition
Laurie Baptiste

The highly anticipated judgment of the Supreme Court of Canada (SCC) in Tervita Corporation, et al v Commissioner of Competition is finally here (leave was granted back in July 2013 and argument heard in March 2014; reported on previously here and here).  Many expressed concerns about potential problems arising from the Tribunal and Federal Court of Appeal (FCA) decisions in this case, including greater complications and less predictability in merger assessment and the reach of the Bureau, regardless of the size of the merger.  The SCC decision seems to have brought some clarity and addresses the central problematic aspects of the underlying decisions.

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The SCC Monitor (09/02/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Justin Nasseri

The Supreme Court of Canada recently released several judgments that are of interest to Canadian businesses and professions.

In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, a majority of the Supreme Court upheld the right to strike pursuant to the s. 2(d) freedom of association right under the Canadian Charter of Rights and Freedoms (the “Charter”). It consequently found that The Public Service Essential Services Act, which contained an absolute ban on the right to strike for “essential services employees” was unconstitutional. In its ruling, the majority underscored the importance of the right to strike in promoting equality in labour bargaining processes. This case sends a strong message to policy makers throughout Canada that any legislation limiting the right to strike will come under careful Charter scrutiny by the courts.

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Ontario Court of Appeal Confirms Privilege Over Counsel and Expert Communications

Posted in Case Comments, Civil Procedure/Evidence
Byron ShawPaul Davis

A little over one year ago, the Ontario Superior Court’s decision in Moore v. Getahun sent a chill through the litigation bar in Ontario. During a medical negligence trial, the trial judge criticized an expert witness for discussing a draft expert report with counsel and required disclosure of all his drafts and notes of his communications with counsel during the course of the trial.[1] The Court of Appeal’s decision has been among the most eagerly anticipated appellate decisions of this year. The decision, released on January 29th, confirms and clarifies the law prior to the trial judge’s decision. Communication between counsel and experts is both appropriate and necessary to ensure effective presentation of expert evidence at trial. It is only where there is a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert’s opinion that disclosure of drafts and communications between counsel and expert will be warranted. Continue Reading