Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

Where the Charter Ends: Supreme Court Will Not Hear Appeal on International Cooperation by Securities Regulators

Posted in Case Comments, Charter of Rights, Criminal, International rights, Securities
Adam Goldenberg

If there’s one thing that most non-lawyers know about being questioned by the authorities, it’s that “anything said can and will be used against [you] in court”.[1] And, if you’re already in court, then you can “take the Fifth” and refuse to answer a question whose answer may incriminate you.

Right? Not quite.

The privilege against self-incrimination operates differently in Canada than it does in the United States. Here, there is no “Fifth” for a witness to “take”. Unlike the Fifth Amendment to the U.S. Constitution, the Canadian Charter of Rights and Freedoms does not permit a witness to answer some questions but not others. Instead, it protects the accused from being compelled to testify in a criminal proceeding and prevents a witness’ evidence in one proceeding from being used to incriminate him in another.[2]

But what about when compelled testimony in a Canadian proceeding could potentially be used against the witness in a criminal prosecution in another country? Must the witness testify?

The Supreme Court of Canada might have addressed that question in Beaudette v. Alberta (Securities Commission).[3] Instead, it denied leave to appeal. The result is that, in Alberta at least, securities regulators may compel a witness to give evidence in a Canadian investigation without providing assurances that the compelled testimony will not be handed over to the authorities in the United States without notice or an opportunity to object.

Because of the distinctions between the Fifth Amendment and the Charter, the Alberta Court of Appeal decision leaves an inter-jurisdictional grey area between our countries’ respective constitutions. As the Court of Appeal for Ontario has stated:

[I]n Canada, a witness cannot refuse to answer a question on the grounds of self- incrimination, but receives full evidentiary immunity in return. In the United States, a witness can claim the protection of the Fifth Amendment and refuse to answer an incriminating question. Once the answer is given, however, there is no protection.[4]

In the context of cross-border securities regulation, these two variations on the privilege against self-incrimination do not fit neatly together. Between them lies the possibility that American investigators will attempt to do an end-run around the Fifth Amendment by relying on their Canadian colleagues to compel answers to questions that, if asked in the United States, would be greeted with constitutionally protected silence.

With leave to appeal denied, it will now be for U.S. courts, in U.S. proceedings, applying U.S. law, to decide whether and how the privilege against self-incrimination applies in that scenario. For the time being, that determination is beyond the reach of the Charter. Continue Reading

Whose Courtroom Is It Anyway – The Latest Instalment of Groia v The Law Society of Upper Canada

Posted in Administrative, Case Comments, Charter of Rights, Constitutional, Professions
Ryan MacIsaac

In a decision of interest to barristers, the Ontario Court of Appeal held that the Law Society of Upper Canada is entitled to deference when regulating a lawyer’s in-court conduct in Groia v The Law Society of Upper Canada, 2016 ONCA 471 (“Groia”). The Court of Appeal affirmed the Law Society’s holding that it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel, unless the allegations are made in good faith and with a reasonable basis.

Facts

Joseph Groia defended John Felderhof against securities charges brought by the Ontario Securities Commission (“OSC”). Felderhof had been a senior officer and director of Bre-X, a mining company that fraudulently claimed to have discovered a large gold deposit in the 1990s. At the end of his trial, Felderhof was acquitted of all charges (R v Felderhof, 2007 ONCJ 345).

The Felderhof trial and related interlocutory proceedings spanned 7 years and used 160 days of court time. It was characterized by intractable evidentiary disputes and acrimony from both sides.

Between days 52 and 70 of the trial, Groia made incessant allegations (the “Prosecutorial Misconduct Allegations”) that the OSC prosecutors were reneging on their earlier assertions that certain documents were relevant and authentic. The allegations were underlaid by Groia’s legally erroneous belief that any witness could be questioned on any document disclosed by the prosecution. Groia also kept referring to an OSC spokesperson’s statement that the OSC wished to secure a conviction. After a number of directions from the trial judge, and an admonishment from the Court of Appeal (R v Felderhof (2003), 68 OR (3d) 481 (CA)), Groia changed his course and the trial proceeded uneventfully after day 70.

In 2009, the Law Society, on its own initiative, commenced disciplinary proceedings against Groia. The Law Society alleged that the Prosecutorial Misconduct Allegations constituted professional misconduct. Specifically, the Law Society alleged that Groia failed to treat the court with courtesy and respect, undermined the integrity of the profession, and failed to act with courtesy and in good faith.

Proceedings Below

At first instance, the Law Society hearing panel held that the Prosecutorial Misconduct Allegations fell below the standards of civility and good faith (Law Society of Upper Canada v Joseph Peter Paul Groia, 2012 ONLSHP 0094; 2013 ONLSHP 0059). An Appeal Panel of the Law Society affirmed that decision as it related to Groia’s professionalism (the “Conduct Decision”). However, the Appeal Panel reduced the initial penalty against Groia to a one-month suspension plus $200,000 in costs (the “Penalty Decision”) (Law Society of Upper Canada v Joseph Peter Paul Groia, 2013 ONLSAP 0041; 2014 ONLSTA 11).

Groia applied for judicial review. The Divisional Court, applying a correctness standard of review, varied the Appeal Panel’s test for misconduct, focusing on whether the in-court conduct would undermine (or have a realistic prospect of undermining) the proper administration of justice. The Divisional Court held that the Appeal Panel’s application of the law to the facts, and the Penalty Decision, were reasonable (Joseph Groia v The Law Society of Upper Canada, 2015 ONSC 686; previously discussed on this blog here). Groia appealed.

Court of Appeal Majority Decision

In a split decision comprising 444 paragraphs, a majority of the Court of Appeal held that the Appeal Panel’s Conduct Decision and Penalty Decision were reasonable.

The Court of Appeal majority upheld the Appeal Panel’s test, namely that it is professional misconduct for a lawyer:

  • To make allegations:
    • of prosecutorial misconduct, or
    • that impugn the integrity of opposing counsel,
  • Unless the allegations are made:
    • in good faith, and
    • with a reasonable basis.

In reaching her conclusion, Cronk JA (MacPherson JA concurring) for the majority made the following points:

  1. Existing jurisprudence establishes that reasonableness is the proper standard of review for a court reviewing a law society’s discipline decision. The Divisional Court erred by substituting its own test for that of the Appeal Panel.
  2. Justice Cronk rejected Groia’s argument that trial judges should have primary responsibility for managing their courtrooms, to the exclusion of the Law Society’s rules except in narrow circumstances. Judges and the Law Society have differing but complementary roles, with different remedial powers available to each. The Law Society’s jurisdiction over in-court conduct clearly flows from its enabling act.
  3. The fact that a lawyer’s commitment to her or his client’s cause is a principle of fundamental justice under s. 7 of the Charter does not give a lawyer licence to breach her or his professional obligations of courtesy, civility and good faith. In short, a lawyer’s duty of zealous advocacy does not override his or her duties to the profession and the courts.
  4. The Charter s. 2(b) right to freedom of expression is not incompatible with professional conduct obligations, including the duty of civility. The Appeal Panel reasonably balanced Groia’s expressive rights with his professional obligations.
  5. Justice Cronk rejected Groia’s argument that the Appeal Panel’s formulation of the incivility test was vague. A test for incivility needs to be contextual and fact-specific, and the Appeal Panel’s formulation of the test was reasonable. The test is designed to address the serious and repetitive nature of the Prosecutorial Misconduct Allegations. The test should not be limited to conduct that results in trial unfairness.
  6. Fearless advocacy (passionate, brave and bold language) is permissible; unfounded, direct attacks on the integrity of opposing counsel are not. Similarly, isolated lapses in judgment or the occasional disparaging comment should generally not trigger disciplinary action.

In addressing the potential of Groia’s conduct to impact public confidence in the administration of justice, Cronk JA stated:

“[C]ourtrooms are not just places where advocates and judges come to work. They are the community’s chosen forum for public dispute resolution and the administration of the criminal law.” (para 212)

Court of Appeal Dissent

In a dissent echoing of Diceyan influences, Brown JA focused on the constitutional divide between the courts, which are empowered through s. 96 of the Constitution Act, 1867 or otherwise statutorily empowered, and regulators such as the Law Society, which are given delegated powers from provincial and federal legislatures. Justice Brown held that existing precedents did not establish a standard of review for law societies regulating in-court conduct. He would have scrutinized the Conduct Decision on a correctness standard of review, given the quotidian responsibility of the independent judiciary for maintaining control of their courtrooms. Justice Brown preferred a test for in-court professional misconduct that considers three factors: (i) what the barrister did; (ii) what the presiding judge did about the conduct and how the barrister responded; and (iii) whether the conduct undermined, or threatened to undermine, the fairness of the court proceeding. Applied to the Felderhof trial, the trial judge and Court of Appeal issued directions which Groia heeded. And the Prosecutorial Misconduct Allegations did not seriously affect the fairness of Felderhof’s trial. Justice Brown would have held that Groia did not commit professional misconduct.

Justice Brown agreed with the majority that:

“Civility is… an essential pillar of the effective functioning of the administration of justice.” (paras 119, 254)

Although he acknowledged the inherent limits on civility:

“But courtrooms are not populated by saints; they are populated by flawed human beings who enter them each day to argue and adjudicate cases. … To hold either counsel or judges to a standard of perfection is unreasonable, because it is unattainable. Judges and counsel are human beings, not machines.” (para 417)

The dissent did not suggest that the courts’ inherent jurisdiction ousts the role of the Law Society as regulator. Rather, Brown JA preferred a test for in-court professional misconduct that gives great weight to how the trial judge handled the conduct.

Commentary

There are three key takeaway points from the Court of Appeal’s decision in Groia.

First, lawyers cannot assume that the standard for incivility is what they can “get away with” in the courtroom. Law societies have concurrent jurisdiction to punish incivility, even if the trial judge chooses not to. Lawyers must always be mindful of law society codes of conduct.

Second, lawyers should not make allegations against the integrity of fellow members of the bar, unless there is good reason to do so.

Third, the split judgment demonstrates the fraying of the standard of review framework in Canada. (See this recent blog post for a more fulsome discussion.) In particular, Groia demonstrates the difficulty in the first stage of the Dunsmuir two-step analysis, in which the court looks to existing jurisprudence to determine whether the standard of review has already been determined for that particular “issue” (the problem being—how narrowly do you define an “issue”?).

Joseph Groia has said that he intends to appeal the Court of Appeal’s ruling. If the Supreme Court decides to weigh in, the last word in this saga is yet to come.

Case Information

Groia v The Law Society of Upper Canada, 2016 ONCA 471

Docket: C60520

Date of Decision: June 14, 2016

The Supreme Court Protects Accounting Records of Lawyers from the CRA

Posted in Case Comments, Charter of Rights, Privacy, Quebec Court of Appeal, Solicitor-Client Privilege, Tax
Sam Rogers

Solicitor-client privilege is nearly sacrosanct in Canada. The circumstances in which it can be breached are limited and specific. Courts will not abide attempts by the Government to do away with privilege for expediency’s sake or overreach when limiting the application of the privilege. This was recently reinforced by the Supreme Court of Canada in two decisions that considered the CRA’s powers to compel information from lawyers and notaries: Canada (Attorney General) v. Chambre des notaires du Quebec and Canada (National Revenue) v. Thompson. Continue Reading

R. v. Jordan – The Supreme Court of Canada Dramatically Alters the Framework Applicable to the Right to a Criminal Trial Within a Reasonable Time

Posted in Case Comments, Criminal
Peter BradyMichael RosenbergTrevor Courtis

For decades members of the judiciary have publicly raised concerns about the swelling length and complexity of criminal cases. In October 2005, Justice Michael Moldaver, then of the Ontario Court of Appeal, stated:

Am I worried? You bet I am. Long criminal trials are a cancer on our criminal justice system and they pose a threat to its very existence. You see, ladies and gentlemen, if the criminal justice system does not enjoy the support and respect of those whom it is meant to serve; if criminal trials are seen by the public as little more than interminable games; if the public comes to view the system with distain and contempt, then the system will have lost its reason for being. And the consequences, I fear, will be serious.[1]

Continue Reading

Right Back Where You Came From: Does the law of your birthplace govern your estate without you even knowing it?

Posted in Case Comments, Conflict of Laws
Trevor CourtisBreanna Needham

If an individual is born in Alberta, lives and works in BC for more than a decade, then lives and works in Saskatchewan for more than a decade, then moves back to BC temporarily, while simultaneously searching for a residence in Costa Rica, where is this person domiciled?

If you answered Saskatchewan (where the individual had lived and worked for the past decade), British Columbia (where the individual was currently laying his head), or Costa Rica (where the person intended to live and work for the remainder of his days), your common sense has indeed betrayed you. The answer is actually Alberta (the place where the individual had not lived for several decades and had no intention of returning to). Welcome to the antiquated law of domicile. Continue Reading

Northern Superior Appeals Dismissal of Aboriginal Consultation Claim Against Ontario

Posted in Aboriginal, Case Previews, Mining
Bryn GrayAdam Goldenberg

A recent article, published on McCarthy Tétrault LLP’s Canadian ERA Perspectives blog may be of interest to readers of the Canadian Appeals Monitor blog.

Northern Superior Resources Inc. v. Ontario, now on its way to the Ontario Court of Appeal, raises the question of whether a resource company, rather than a First Nation, may bring a claim against the Crown arising out of an alleged breach of the Crown’s duty to consult Aboriginal peoples pursuant to s. 35 of the Constitution Act, 1982. Though the Court of Appeal is likely to limit its decision to the facts in this case, its reasoning could provide important guidance for both project proponents and governments as they work with each other and with First Nations to develop Canada’s natural resources.

When is a Settlement Agreement Reached? Federal Court of Appeal Provides Guidance in Apotex Inc v Allergan Inc, 2016 FCA 155

Posted in Case Comments, Intellectual Property
Kelli McAllister

In today’s litigation landscape 95% to 97% of all civil cases are settled without a trial.[1] Settlement negotiations increasingly happen informally, over email, through a back-and-forth dialogue between counsel. What happens when one party steadfastly believes a settlement was reached and moves to enforce that settlement and the other party disagrees? This was the situation before the Federal Court of Appeal in Apotex Inc v Allergan Inc, where a collection of “without prejudice” letters and emails formed the basis for Allergan Inc (“Allergan”) to argue that Apotex Inc (“Apotex”) had agreed to settle a patent infringement case. It was against this backdrop the Federal Court of Appeal clarified the objective test for when a settlement agreement is reached, cautioning:[2]

The requirement of an objective, mutual intention to create legal relations does not mean that there must be formality. Settlements need not be reached through counsel or in pre-planned, formal negotiations….Sometimes much to the surprise of clients and lawyers alike—seemingly idle conversations can have binding, legal consequences. Binding settlements can arise from impromptu, informal communications in relaxed, non-business settings.

Continue Reading

Suing the Provincial Crown in the Federal Court: The Federal Court of Appeal Upholds Attornment Clause in First Nations Settlement Agreement against Saskatchewan

Posted in Aboriginal, Case Comments
Mira Novek

In an important decision regarding the jurisdiction of the Federal Court in aboriginal claims, the Federal Court of Appeal has affirmed the right of the Pasqua First Nation to sue the Government of Saskatchewan in the Federal Court for breach of a settlement agreement on the basis of an attornment clause.  In Canada v Peigan, 2016 FCA 133,[1] Saskatchewan argued that notwithstanding the attornment clause, which directed that any disputes arising under the settlement agreement be determined by the Federal Court, it was immune from suit in the Federal Court and, alternatively, that the suit did not fall within the Court’s subject matter jurisdiction.  The Federal Court of Appeal rejected both arguments, finding that the Federal Court possesses exclusive jurisdiction over the portions of the claim alleging a breach of Saskatchewan’s obligations under the settlement agreement. Continue Reading

Hot Off the Press – Canadian Contractual Interpretation Law 3rd Edition

Posted in Class Actions, Contracts

Canadian_Contractual_Interpretation_Law_Book

Geoff Hall, senior litigator at McCarthy Tétrault, authors the newly published third edition of Canadian Contractual Interpretation Law. The book clearly sets out the principles governing the interpretation of contracts in Canada, particularly in light of the landmark decisions of the Supreme Court of Canada in Sattva and Bhasin.

These two cases – both of which cited the second edition of Mr. Hall’s book, and were successfully argued by litigators from the firm – transformed contractual interpretation in fundamental ways, firstly by recognizing contractual interpretation as a highly fact-driven exercise and secondly by recognizing an organizing principle of good faith in Canadian contract law.  The third edition can be purchased here.

 

Quebec Court of Appeal holds Aboriginal tax exemption not an exemption from remitting tax

Posted in Aboriginal, Case Comments, Tax
Kate Macdonald

In Rice v. Agence du revenu du Québec, 2016 QCCA 666, the Quebec Court of Appeal addressed arguments by status Indians that they should be exempt from the obligation to collect and remit gas taxes which are collected by the Agence du revenu du Quebec (“ARQ”) on behalf of both the province and the federal government.  In doing so, the Court made it clear that status Indians who sell goods to non-Indian consumers cannot avoid the administrative burden of collecting and remitting taxes from their customers who are not exempt from taxation.

Continue Reading

Do What You Say, Not Just What You Write: Subsequent Oral Amendments to Written Contracts

Posted in Case Comments, Civil Litigation, Contracts
Richard Lizius

Globe Motors, Inc. & Ors v. TRW Lucas Varity Electric Steering Ltd. & Anor, [2016] EWCA Civ. 396 is the latest statement of the England and Wales Court of Appeal with respect to whether parties can make an oral amendment to a contract, notwithstanding a clause requiring any amendment to be in writing (an “anti-oral amendment” clause).

Continue Reading

Québec Court of Appeal to hear its first case on the scope of lobbying legislation

Posted in Case Comments, Civil Litigation, Lobbying law
Gabriel Querry

The Québec Court of Appeal recently granted leave to appeal from Directeur des poursuites criminelles et pénales c. Cliche, 2016 QCCS 1288. To our knowledge, it is the first time the Court of Appeal agrees to rule on the scope of the Québec Lobbying Transparency and Ethics Act (“LTEA”).

Cliche, a windfarm business’ executive, was charged under the LTEA for failing to register as a lobbyist after he asked municipal officials to endorse his employer’s bid to a third party’s RFP and to champion the project before environmental regulators. The endorsement was meant to demonstrate the bid’s “social acceptability” and to prevent negative media coverage. Continue Reading

Is your Clearly Descriptive Place of Origin Mark Distinctive? Prove it!

Posted in Case Comments, Civil Litigation, Trade-mark
Dharshini Sinnadurai

The Federal Court of Appeal recently clarified the applicable test for challenging a trade-mark that is clearly descriptive of a good’s place of origin, pursuant to s. 12(1)(b) of the Trade-marks Act, RSC 1985, c. T-13 (the “Act”). The Court also articulated how such a trade-mark could still be ruled distinctive, and, accordingly valid: good old fashioned proof!

The context for the decision in MC Imports Inc. v. AFOD Ltd., 2016 FCA 60 [1] was a dispute between two importer-distributors of bagoong, a fish and shrimp based condiment from the Philippines. Continue Reading

Ontario Court of Appeal Recognizes Potential Liability of the Corporate Parent of a Franchisor Under the Duty of Good Faith

Posted in Case Comments, Civil Litigation, Franchise and Distribution
Adam ShipSarah Ahsan

On May 3rd, 2016, the Court of Appeal for Ontario (the “OCA”) overturned a decision of the Ontario Superior Court which had held that a franchisor’s parent company could never be liable to a franchisee of its subsidiary for breach of the duty of good faith under the Arthur Wishart Act (the “Act”). Continue Reading

Certification of an “Uncommon” Class Action based on a “Central Commonality”

Posted in Case Comments, Class Actions
Sara D.N. Babich

The Ontario Court of Appeal recently reiterated several key principles in the context of class action certification motions. In Good v Toronto Police Services Board, 2016 ONCA 250 [Good], the Court of Appeal upheld the Divisional Court decision to certify the claim of Ms. Sherry Good as representative plaintiff (the “Representative Plaintiff”) in the proposed G20 class action against the Toronto Police Services Board (the “TPS”). The decision in Good reminds us of two very important considerations in class action proceedings: Continue Reading

Standard of review of administrative action: coherence post-Dunsmuir?

Posted in Administrative, Case Comments
Louis Fouquet

It was widely hoped that the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”) would simplify the judicial review of administrative action by limiting the scope of review to two standards: reasonableness and correctness. The divided Supreme Court of Canada opinion in Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 shows that there is still a long way to go before coherence and uniformity is brought to this area of law. Continue Reading

The SCC Monitor (19/04/2016)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Laurie BaptisteRyann AtkinsShanique Lake

Leaves to Appeal Granted

Since our last post, the Supreme Court of Canada (SCC) has granted leave in a couple significant cases that will be of interest to our readers:

Douez v. Facebook:  Like or Dislike?

The SCC recently granted leave to appeal from the judgment of the B.C. Court of Appeal in Douez v. Facebook (“Douez”), which likely garnered “dislikes” from online businesses and service providers who rely on choice of law and forum selection clauses in their Terms of Use agreements. Continue Reading

Missing the Mark – Federal Court of Appeal set aside dismissal in passing off and copyright case

Posted in Case Comments, Intellectual Property
Ryann AtkinsKaitlin Soye

In Sadhu Singh Hamdard Trust v. Navsun Holdings Ltd. (2016 FCA 69), the Court of Appeal set aside the Federal Court’s (2014 FC 1139) decision dismissing Hamdard Trust’s claim of copyright infringement and passing off against Navsun Holdings and remitted the matter to the Federal Court for redetermination, with some guidance. Continue Reading

Abuse of Process: Carbon Copy Class Actions Stayed by Courts Coast to Coast

Posted in Case Comments, Civil Litigation, Class Actions, Multijurisdictional
Kelli McAllister

A recent article, Abuse of Process: Carbon Copy Class Actions Stayed by Courts Coast to Coast, published on McCarthy Tétrault LLP’s Class Actions Monitor blog may be of interest to readers of the Canadian Appeals Monitor blog. Kelli McAllister recently published on update to her previous discussion about the ongoing systems access fee class action.

This unusual class action was launched in nine provinces in 2004 by the same counsel on behalf of the same plaintiffs. This class action has now been found to be an abuse of process by the Nova Scotia Court of Appeal in BCE Inc. v Gillis, 2015 NSCA 32, the Alberta Court of Appeal in Turner v Bell Mobility Inc, 2016 ABCA 21 and the Manitoba Court of Appeal in Hafichuk-Walkin et al v BCE Inc et al, 2016 MBCA 32. The Nova Scotia decision has been appealed to the Supreme Court of Canada and the decision on the leave application is pending. The Supreme Court of Canada is faced with a unique situation: not only is same issue being considered by courts across Canada, but, in fact, the exact same case. It remains to be seen whether bringing carbon copy class actions across Canada as part of a litigation strategy and without the intention to pursue the action (except in one province), will likewise be condemned by the Supreme Court of Canada. We will update you on that leave decision in our regular SCC Monitor blog posts.

Careful Putting Your Best Foot Forward: Alberta Court of Appeal Eases Access to Summary Dismissal

Posted in Case Comments, Civil Litigation, Contracts
Timothy Froese

The Alberta Court of Appeal strengthened the post-Hryniak judicial trend in favour of the summary disposition of litigation without trial by upholding the decision of a chambers judge to grant summary dismissal without strict adherence to the applicable Rules of Court.  In Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12, the plaintiff applied for summary judgment but failed to make its case. It saw not just its application, but its entire claim, dismissed, even though the defendant had not brought a cross-application for summary dismissal. Continue Reading

Dunkin’ Donuts: The Supreme Court of Canada puts an end to the saga

Posted in Case Comments, Civil Litigation, Franchise and Distribution
Adam ShipAnne-Marie NaudHelen Fotinos

A recent article published on McCarthy Tétrault LLP’s Consumer and Retail Advisor blog may be of interest to readers of the Canadian Appeals Monitor blog. Adam Ship, Anne-Marie Naud and Helen Fotinos recently published an update to their previous discussion about the Québec Court of Appeal’s decision in Dunkin’ Brands Canada Ltd. c. Bertico inc., 2015 QCCA 624, in particular its finding of implied obligations in franchise agreements. The Supreme Court of Canada (SCC) just announced their dismissal of Dunkin’ Brands Canada Ltd.’s application for leave to appeal from the judgment of the Quebec Court of Appeal. Notably, in a very rare move, Côté J. dissented on the decision to deny the application for leave.

Cook or Get Out of the Kitchen: Legitimate Interest Required to Enforce a Restrictive Covenant

Posted in Case Comments, Civil Litigation, Franchise and Distribution
Shanique Lake

MEDIchair LP v DME Medeqip Inc., 2016 ONCA 168 is a case with important implications for all franchisors and franchisees. In the decision released on February 29, 2016, the Ontario Court of Appeal struck down a non-competition covenant because the franchisor had no intention of operating a competing business within the geographical area covered by the covenant.  Overturning the lower court decision, the Court of Appeal held that a legitimate proprietary interest is necessary to enforce a restrictive covenant. Continue Reading

“Crossing the Rubicon” Against Corporations: Authorities Cannot Investigate Corporations Under the Guise of an Audit

Posted in Case Comments, Charter of Rights, Competition, Constitutional, Criminal, Securities, Tax
Julie-Martine LorangerGabriel QuerryPatrick Ostiguy

Authorities must relinquish their broad compulsory auditing powers when engaging in an adversarial determination of penal liability or, as stated by the Supreme Court in R. v. Jarvis, [2002] 3 SCR 757 [1] when they “cross the Rubicon”. This flows from the protection against self-incrimination enshrined under section 7 of the Canadian Charter of Rights and Freedom, a protection which, traditionally, only benefits individuals. However, according to a recent Court of Québec decision in Agence du revenu du Québec c. BT Céramiques inc., 2015 QCCQ 14534 [2] the protection of the Rubicon is not exclusive to individuals: it also shields corporations. This decision’s pending appeal is one to keep an eye out for, as it might revisit the scope of corporations’ rights during regulatory audits and penal investigations. Continue Reading

The SCC Monitor (04/03/16)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Patrick WilliamsMeghan S. Bridges

Since our last post, most of the judgments and successful applications for leave decided by the Supreme Court have arisen from criminal cases. The most notable exception was the judgment in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, concerning secondary market class actions, which we have already covered in detail.

This post will cover the very brief judgment in Canadian Pacific Railway Co. v. Canada (Attorney General), 2016 SCC 1 and the successful application for leave to appeal from Urban Communications Inc. v. BCNET Networking Society, 2015 BCCA 297. Continue Reading