Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

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

The Ontario Court of Appeal Confirms Scrutiny for Leave in Securities Class Actions

Posted in Case Comments, Class Actions, Securities
Paul DavisMiranda Lam

At the end of 2005, Ontario legislation came into effect which enabled aggrieved shareholders to bring a statutory action for secondary market misrepresentation against issuers and their directors and officers (and others) without the requirement to establish individual reliance. In order to commence such an action, however, a shareholder must first obtain leave from the Superior Court. Much of the jurisprudence in secondary market securities class actions has been devoted to examining the standard for leave.

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Canadian Appeals Monitor Finalist for Best Canadian Law Blog

Posted in Awards and Recognitions

We are pleased to share that Canadian Appeals Monitor was a finalist for Best Canadian Law Blog at this year’s Clawbies, which celebrates the best in Canadian legal blogging. We are proud of this achievement and we wish to thank our dedicated team of lawyers / bloggers who are committed to bringing you the most relevant and interesting appellate and litigation developments from across the country.

More importantly we wish to thank you, our readers, for continuing to support us and engage with our work. We hope that you will continue making the Canadian Appeals Monitor one of your sources for appellate and litigation news and analysis.

If you are a fan of our blog we encourage you to visit one of McCarthy Tétrault’s 10 other practice group blogs. You can find the list by viewing the blogroll section on the right hand side of this page.

We look forward to more great blogging in 2015. Thanks for reading!

The Second Opinion: Bad Faith Possessor … Take My Land, Please

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion
Martin Boodman

In Dupuy v. Gauthier 2013 QCCA 774, the Quebec Court of Appeal has confirmed that a person who possesses immovable property for 10 years can acquire ownership of it whether or not the possessor knew the property belonged to another.

In the instant case, a shed owned by the defendants, situated on their land, partially encroached on the land of the plaintiff, their neighbour. As a result of deterioration in the relations between the neighbours, the plaintiff sought and obtained in first instance an injunction to have the defendants move or demolish the shed to eliminate the encroachment. The first instance judgement rejected the defendants’ argument that they had acquired the ownership of the plaintiff’s land under the shed by acquisitive prescription through long-term possession. In particular, the first instance judgement held that the defendants could not have had the intention to possess as owners and their possession could not be unequivocal because at the time they acquired the shed and part of the land under it, they were aware that part of the shed was located on land owned by the plaintiff. In the deed under which the defendants purchased the land and shed from a seller other than the plaintiff, the seller expressly identified the encroachment. The encroachment had also been recognized in the deed under which a previous buyer had purchased the land and shed from the plaintiff.

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Appeals to Watch in 2015: The Appeals Monitor’s Top Ten

Posted in Case Previews, Features
Elder MarquesLaurie BaptisteMarie-Hélène BeaudoinPaul Davis

 

 

I can’t predict the future and I don’t have respect for people who try to.
-Jackie Mason (1931-)

As part of the Appeals Monitor’s annual attempt to give lawyers something to talk about over the holidays other than the two traditional Canadian touchstones (weather and hockey), we are proud to once again this year present our top ten anticipated appeals for the new year.  Of course, we can’t control what the judges will actually do with these cases, but we think these are the ones worth watching.

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10 Most Important Appeals of 2014

Posted in Case Comments, Features
Ryan MacIsaacBrooke MacKenzieKatie SzilagyiRenée Zatzman

The Appeals Monitor is pleased to present our annual review of the most significant appeals of the past year that can be expected to impact Canadian businesses for years to come.

In Kaynes v BP, PLC, 2014 ONCA 580 (previously discussed here), the Court of Appeal for Ontario stayed a proposed secondary market securities class action due to forum non conveniens. Although the Court held that Ontario could assume jurisdiction over claims by Canadian residents who had purchased securities on foreign exchanges, it held Ontario should nonetheless decline jurisdiction as foreign courts were “clearly more appropriate” venues.

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Ontario Court of Appeal Clarifies Test To Be Applied At Rule 48.14 Status Hearings

Posted in Case Comments, Procedure
Kosta KalogirosTrevor Courtis

In Kara v. Arnold, 2014 ONCA 871, the Ontario Court of Appeal seized an opportunity to revisit its recent jurisprudence regarding status hearings and to clarify the interrelation between its recent status hearing decisions (i.e., 1196158 Ontario Inc.[1] and Faris[2]) and the line of jurisprudential authority stemming from motions to set aside registrar’s dismissals for delay (i.e. Scaini [3]) which call for an overarching “contextual approach” to determine what outcome is just in the circumstances.

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Apprehending Reasonable Apprehension of Bias

Three Recent Reasonable Apprehension of Bias Findings by the Ontario Court of Appeal

Posted in Case Comments
Dharshini Sinnadurai

Careful observers may have noticed that the Ontario Court of Appeal has allowed three civil appeals on the basis of reasonable apprehension of bias in the last few months.  This presents an opportunity to reflect on what conduct constitutes reasonable apprehension of bias and what it means for an appeal court to make such a finding.

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The U.K. Supreme Court revisits equitable compensation in commercial transactions

Posted in Bankruptcy and Debt, Case Comments, Contracts, Corporate Law, Financial Services
Sam Rogers

Trusts are widely used in commercial transactions. But, as creatures of equity, trusts raise issues that may not be immediately familiar to everyone who relies on them in the commercial world. Indeed, the interrelationship between equitable doctrines and remedies and common law principles and remedies is complicated. Fortunately, the U.K. Supreme Court has revisited the issue in its recent decision in AIB Group (UK) Plc v. Mark Redler & Co Solicitors, [2014] UKSC 58.

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Can I Sue the Federal Government? If so, in What Court and Where?

Posted in Case Comments
Byron Shaw

The forum in which to litigate is a difficult decision in any case that crosses provincial or national borders. It is even more complicated in claims against the federal government. The Federal Court has exclusive jurisdiction in some cases; in others, the Federal Court and the provincial Superior Court in which the claim “arises” have concurrent jurisdiction. Where the jurisdiction is concurrent and the plaintiff elects to sue in Superior rather than Federal Court, the question becomes: in which province does the claim “arise”?

The question is further complicated where there are multiple causes of action asserted. One claim may be said to “arise” in one province and another claim somewhere else, even where the claims are related and stem from the same facts. The Ontario Court of Appeal’s decision in David S. LaFlamme Construction Inc. v. Canada demonstrates the jurisdictional jockeying that can result from electing to sue the federal Crown in Superior Court.

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What tangled webs we weave: The BCCA provides guidance on the tort of deceit and exclusion of liability clauses

Posted in Construction and Real Estate, Contracts, Torts
Ryan MacIsaac

The British Columbia Court of Appeal’s decision in Roy v Kretschmer, 2014 BCCA 429 provides guidance on the element of reliance in the tort of deceit. It also holds that a contractual clause limiting liability is unenforceable even where the breaching party did not commit a criminal act or egregious fraud.

This decision is of interest to Canadian businesses because it suggests that where a contract has been breached, the breaching party can be sued in tort for hiding the circumstances of the breach if the non-breaching party relies on the breaching party’s fraudulent silence or misrepresentations. Further, in such circumstances, the breaching party may not be able to rely on the protection of a limitation of liability clause.

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This Week at the SCC (21/11/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Anthony Alexander

This was a busy week at the Court, with the release of one oral decision, and eight leave-to-appeal rulings, all likely to be of interest to Canadian businesses and professionals.

The Court granted an oral decision in British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association, 2014 SCC 70.  The SCC reversed the ruling of the BCCA on the grounds that the lower court had failed to give adequate deference to an arbitrator’s interpretation of a collective agreement, and had failed to recognize the differences between the purposes underlying pregnancy benefits and parental benefits.

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SCC Delivers Ground-Breaking Decision in Canadian Contract Law

Posted in Contracts
Brandon KainNeil Finkelstein

The Supreme Court of Canada has released a precedent-setting judgment in which it recognized, for the first time, that there is a general organizing principle of good faith in the performance of contracts throughout Canada: Bhasin v. Hrynew, 2014 SCC 71.  The Bhasin case, which was successfully argued by Neil Finkelstein and Brandon Kain of McCarthy Tétrault’s Toronto litigation group, will be very important for Canadian businesses going forward.  As a result of Bhasin, all contracts throughout Canada are now subject to a duty of, at a bare minimum, honest performance, which cannot be excluded by the terms of an agreement.  Businesses will need to carefully consider whether they are discharging this duty when performing their contracts. You can read more about the decision and its impact on McCarthy Tétrault’s website. 

The Second Opinion: “Use it or Lose it” — The BCCA Warns Parties to Act Quickly in Response to a Fundamental Breach (or Suffer the Consequences)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion
Anthony Alexander

A recent ruling of the British Columbia Court of Appeal, A & G Investments Inc. v. 0915630 B.C. Ltd., 2014 BCCA 425, provides a useful primer on the available mechanisms for bringing a contract to an end.  These include:

  1. the committing of a fundamental breach (leading to termination of the agreement if the breach is acted upon by the innocent party);
  2. the triggering of an express termination provision; and
  3. the acceptance by the innocent party of a repudiation (thereby causing the agreement to be rescinded).

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This Week at the SCC (31/10/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Hovsep Afarian

The Supreme Court of Canada this week issued a judgment in one case, granted leave to appeal in one case, and denied leave to appeal in one case of interest to Canadian businesses.

In Thibodeau v. Air Canada, 2014 SCC 67, the Supreme Court of Canada ruled that the claims of airline passengers arising from a breach of an airline’s obligation to provide services in French under the federal Official Languages Act was precluded by the Convention for the Unification of Certain Rules for International Carriage by Air.

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Illegal Contracts Does Not Preclude Discrimination Claims

Posted in Case Comments, Contracts
Marc-Andre Russell

In Hounga v Allen, the U.K. Supreme Court addressed an issue that has not received much attention from the courts recently: the defence of illegality, also called the “ex turpi causa” doctrine. The U.K. Supreme Court had the opportunity to shed light on this defense in the context of employment discrimination towards an illegal immigrant.

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This Week at the SCC (24/10/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Anthony Alexander

The Supreme Court this week issued a number of leave-to-appeal rulings likely to be of interest to Canadian businesses and professionals.  Four such leave-to-appeal requests were refused, and one was remanded.

The following applications were refused:

  • Leave-to-appeal from the Alberta ruling in Somji v. Wilson, 2014 ABCA 35, was dismissed.  The Court of Appeal had affirmed the striking of claims against both (i) a trial judge (who had granted default judgment against the appellants), and (ii) the respondents (who were alleged to have acted deceitfully in obtaining the default judgment). Continue Reading

What’s “New” and What to Do About it? Supreme Court Sets High Bar to Appellate Courts Exercising Discretion to Raise New Issues

Posted in Case Comments, Charter of Rights, Criminal, Procedure
Lisa Jorgensen

In R. v. Mian, the Supreme Court provided extensive comment on when an “appellate court can disrupt the adversarial system and raise a ground of appeal on its own” initiative.

The Court established a new test for the exercise of appellate courts’ discretion to raise a new issue on appeal. Appellate court judges will now ask themselves three questions when deciding whether to raise a new issue: 1) is the issue actually “new”?; 2) would failing to raise the issue “risk an injustice”?; and 3) can the new issue be raised in a way that will be fair to both parties?

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This Week at the SCC (17/10/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Brandon Kain

The Supreme Court of Canada released one judgment this week of interest to Canadian businesses and professions.

In Imperial Oil v. Jacques, 2014 SCC 66, the Court held that a private litigant can request the disclosure of recordings of private communications from third parties to the civil action, which were intercepted by the government during a criminal investigation, without the consent of either of the communicating parties.

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