Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

The Supreme Court clarifies the role and nature of the “prudence” test in Canadian utility regulation

Posted in Case Comments, Energy
Héloïse Apestéguy-ReuxRenée Zatzman


The Supreme Court of Canada recently released its highly anticipated decisions on utility regulation in Ontario Energy Board v. Ontario Power Generation Inc., 2015 SCC 44 (noted as an Appeal to Watch in 2015 here) and ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45 . These regulatory decisions analyzed a utility’s ability to recover operating and capital costs from consumers through rate-setting, and the methodology to be used in approving rate increases.

The Ontario Power Generation Decision

In Ontario (Energy Board) v. Ontario Power Generation Inc., the Supreme Court reviewed the Ontario Energy Board (“OEB” or the “Board”)’s decision to disallow $145 million in labour compensation costs applied for by Ontario Power Generation (“OPG”) in its 2011-2012 rates application. The OEB had disallowed these costs, which were related to OPG’s nuclear operations, on the basis that OPG’s labour costs were not in line with comparable entities in the nuclear industry. The principal question on appeal was whether the Board should have used the “no-hindsight” prudence test to determine whether the labour compensation costs were reasonable.

Applying a standard of review of reasonableness,[1] the Court overturned the decision of the Ontario Court of Appeal and reinstated the decision of the OEB and the Divisional Court, holding that the OEB’s decision to disallow the $145 in labour compensation costs was reasonable.  The Court found that the costs in question were “best understood as at least partly committed”[2] (as opposed to entirely “forecast” costs) because they resulted from collective agreements entered into between OPG and two of its unions but were also subject to management discretion because OPG had some flexibility to manage total staffing levels by way of, among other things, attrition of the workforce.

The Court focused on the statutory language pursuant to which the OEB is tasked to review payment amounts applied for by OPG, namely the language that requires the OEB to set “just and reasonable” payments and the absence of any other language prescribing the manner or methods to be used by the OEB under the relevant statutory provisions and regulations.[3] The Court held that:

“[W]here a statute requires only that the regulator set “just and reasonable” payments, as the Ontario Energy Board Act, 1998 does in Ontario, the regulator may make use of a variety of analytical tools in assessing the justness and reasonableness of a utility’s proposed payment amounts.”[4]

The Court found that this was particularly true when, pursuant to section 6(1) of O. Reg. 53/05, the OEB is given express discretion over the “form, methodology, assumptions and calculations used in making an order that determines payment amounts for the purpose of section 78.1 [of the Ontario Energy Board Act].”[5]

The Court’s analysis included an examination of the “prudence test” or “prudent investment test” as it has evolved in utilities regulation in the United States and Canada. The Court highlighted that a benefit of the prudence test is to ensure utilities recover the cost of failed investments that appeared reasonable at the time the investment decision was made, because to disallow recovery of such failed investments could imperil the financial health of utilities and therefore chill the incentive to make such investments.  This would in turn have negative long-run implications for consumers.[6] Importantly, the Court found this key benefit of the prudence test applied particularly to capital costs as opposed to operational costs:

Prudence review of committed costs may in many cases be a sound way of ensuring that utilities are treated fairly and remain able to secure required levels of investment capital. […] [P]articularly with regard to committed capital costs, prudence review will often provide a reasonable means of striking the balance of fairness between consumers and utilities.[7]

With the above in mind, the Court found that it was not unreasonable, under the particular regime under section 78.1 of the Ontario Energy Board Act, for the Board to evaluate committed costs using “a method other than a no-hindsight prudence review.”[8] Considering the nature of the costs – i.e., that they were operational costs as opposed to capital costs – and the circumstances under which they became committed – that is, that they were committed under a context of a “repeat-player”, ongoing relationship between OPG and its unionized employees[9] – the Court found that the OEB had not acted unreasonably in not applying the prudent investment test in determining whether the labour compensation costs were just and reasonable.

In dissent, Abella J. found that because the Board had said that it would utilize a prudence test for committed costs, it was not reasonable for the Board to not apply the prudence test to the costs in question, which Abella J. found to be for the most part non-reducible in nature due to the legally binding nature of the underlying collective agreements.[10] Abella J. also points out a noteworthy aspect of the majority decision in respect of the use of the prudence test and the burden of proof set out in the Ontario Energy Board Act:

Applying a prudence review to these compensation costs would hardly, as the majority suggests, “have conflicted with the burden of proof in the Ontario Energy Board Act, 1998”. To interpret the burden of proof in s. 78.1(6) of the Ontario Energy Board Act so strictly would essentially prevent the Board from ever conducting a prudence review, notwithstanding that it has comfortably done so in the past and stated, even in its reasons in this case, that it would review committed costs using an “after-the-fact prudence review” which “includes a presumption of prudence”. Under the majority’s logic, however, since a prudence review always involves a presumption of prudence, the Board would not only be limiting its methodological flexibility, it would be in breach of the Act.[11]

The above aspect of the majority’s decision may indeed cause some confusion in future OEB rate cases.

The role of the Board in the appeal – tribunal standing and bootstrapping

The decision also considered the role an administrative decision-maker when  participating in the appeal or review of its own decisions. The Court reviewed the importance of ensuring that a tribunal’s participation in the appeal of its decisions not give rise to concerns over the tribunal’s impartiality while at the same time ensuring that a reviewing court’s decision is fully informed in respect of the specialized matters considered by a given tribunal.

The Court determined that tribunal standing in this context is to be determined by the court conducting the first-instance review “in accordance with the principled exercise of that court’s discretion”.[12] The Court provided the following non-exhaustive factors to assist courts in this respect:

  • If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.
  • If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.
  • Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.[13]

With the above factors in mind, the Court found that it was not improper for the Board to have participated by arguing in favour of the reasonableness of its decision on appeal: the Board was the only respondent in the initial review of its decision[14] and the Board is a public interest regulator with a broad mandate as opposed to a tribunal whose function is to adjudicate individual conflicts between two or more parties[15].

The Court then turned to whether the substance of the Board’s arguments amounted to “bootstrapping”, which occurs when a tribunal “seeks to supplement what would otherwise be a deficient decision with new arguments on appeal.”[16] The Court found that the OEB did not step impermissibly beyond the bounds of its original decision as its submissions either highlighted what was apparent on the face of the record or responded to parties’ arguments.[17]


The ATCO Decision

This appeal was brought by ATCO Gas and Pipelines Ltd. and ATCO Electric Ltd. (“ATCO”) from an Alberta Court of Appeal judgment affirming the Alberta Utilities Commission (the “Commission”) decision that rejected ATCO’s request to recover certain pension costs in the 2012 year.[18] Specifically, ATCO sought to recover the pension costs associated with setting the cost of living adjustment (“COLA”) at 100% of the annual consumer price index (“CPI”) up to a maximum of 3% for 2012. Instead, the Commission held that a COLA at 50% of annual CPI up to a maximum of 3% was reasonable as ATCO’s proposal was not “an acceptable standard practice” among comparator groups and a reduction in the COLA would not limit ATCO’s ability to attract new employees, or encourage existing employees to leave.[19]

The Supreme Court, using a standard of review of reasonableness,[20] unanimously dismissed ATCO’s appeal. In its analysis, the Court found that the Commission was entitled to set rates pursuant to the Alberta’s Electric Utilities Act and Gas Utilities Act (collectively, the “statutory framework”). This statutory framework permitted the Commission to set just and reasonable rates, and provided Utilities with a reasonable opportunity to recover costs, so long as the costs were prudent.[21]

In its analysis, the Court held that the prudence requirement is to be understood in its ordinary meaning, and that a prudent cost is a reasonable cost. [22] The Court rejected ATCO’s argument that the Commission must use a “prudence ” or “no-hindsight” test in qualifying the costs that a Utility is entitled to recover, and found that no specific methodology is set out by the statutory framework to determine whether costs are prudent. [23]  The Court went further and added that the Commission is permitted to use a variety of analytical tools and evidence to make that prudence determination, so long as the ultimate rates decided are just and reasonable to consumers and the utility.[24] The Court also rejected ATCO’s argument that a Utility’s costs are presumed to be prudent, and instead held that it is the Utility’s burden to establish prudence.[25] The Court also clarified that regulators are not permitted to “justify a disallowance of prudent costs solely because they would lead to higher rates for consumers”, but are permitted to consider the “magnitude” of any particular costs in determining whether that cost is prudent.[26]


These decisions are important because they serve as a clarification that as long as a regulator’s review of a utility’s rates is guided by the statute which gives the regulator its authority, it otherwise has the discretion to apply the methodologies it sees fit in order to determine whether rates are just and reasonable.  As the Court stated in the OPG case, the Court of Appeal had “made certain statements that suggest that the prudent investment test was a necessary approach to reviewing committed costs.”[27]  The OPG decision makes it clear that this is not the case.

Also notable is that the Court’s decisions in ATCO and OPG uphold a decision of the applicable province’s energy regulatory body to reduce a utility’s applied-for amounts after considering benchmarking or comparator group evidence which weighed in favour of the reduction in question. These decisions will therefore likely be seen as consistent with trend towards benchmarking as a key tool in utility regulation.

Finally, the OPG decision also provides helpful guidance in respect of the participation of administrative decision-makers in the review or appeal of their decisions.

Case Information

Ontario Energy Board v. Ontario Power Generation Inc., 2015 SCC 44

ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45

Date of Decisions: September 25, 2015


[1] Ontario Energy Board v. Ontario Power Generation Inc., 2015 SCC 44 [“OPG”] at para 73.

[2] OPG, para. 106.

[3] OPG, para. 103.

[4] OPG, para. 103.

[5] OPG, para. 103.

[6] OPG, para. 91.

[7] OPG, para. 104.

[8] OPG, para. 104.

[9] OPG, para. 109.

[10] OPG, para. 134.

[11] OPG, para. 151.

[12] OPG, para. 57.

[13] OPG, para. 59.

[14] OPG, para. 60.

[15] OPG, para. 61.

[16] OPG, para. 64.

[17] OPG, para. 70.

[18] ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45 at para. 1 [“ATCO”].

[19] ATCO at paras. 19-20.

[20] ATCO at paras. 26-28.

[21] ATCO at para. 29.

[22] ATCO at paras. 33-38.

[23] ATCO at paras. 30-31, 46-47.

[24] ATCO at paras. 42-45.

[25] ATCO at paras. 42 and 45.

[26] ATCO at paras. 60-62

[27] OPG at para. 100.

Can you be contractually bound to another party forever?

Posted in Case Comments, Contracts
Louis Fouquet

In Uniprix v. Gestion Gosselin et Bérubé Inc., 2015 QCCA 1427, the Quebec Court of Appeal addressed the previously unanswered question of whether the non-renewal clause in a fixed term contract may be stipulated to be for the benefit only of one of the contracting parties, such that in the eyes of the other contracting party the contract may in effect become perpetual. Continue Reading

Defamation Law – Quebec Court of Appeal Reiterates the Fine Line Between Defamatory and Reasonably Fair Comments

Posted in Case Comments, Charter of Rights, Labour and Employment
Marc-Andre Russell

Today we comment on a recent judgment of the Quebec Court of Appeal adding to the infinite quest for a fair balance between freedom of speech and protection of reputation. This case reiterates the fine line between a reasonably fair and a defamatory comment. Clients questioning the appropriateness of comments they are about to make in the public sphere are welcome to seek our opinion. As one of the parties in this case submitted a leave application to the Supreme Court of Canada, this case is being closely monitored. Continue Reading

Waiver of Privilege: The Danger of Pleading Lack of Informed Consent

Posted in Case Comments, Civil Procedure/Evidence
Timothy Froese

In a case that highlights the importance of carefully drafted pleadings, the Alberta Court of Appeal recently split over the question of whether pleading a lack of informed consent to an agreement resulted in the waiver of privilege over legal advice received during the negotiation of that agreement.  In Goodswimmer v Canada (Attorney General), the majority of the Court of Appeal found that the appellant had waived solicitor-client privilege by voluntarily placing its reliance on legal advice into issue in its Statement of Claim and by selectively disclosing certain privileged communications.  The dissenting Justice engaged in an interesting analysis of the requirements to imply a waiver of privilege and would have characterized the appellant’s claim in a way that would not put the content of the legal advice that it received into issue. Continue Reading

The SCC Monitor (21/10/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Kosta Kalogiros

Since our last post, the Supreme Court has released a number of judgments and granted leave to appeal in a number of cases of interest.

In September, the Court released two of the Canadian Appeal Monitor’s “Top Ten” Appeals to Watch in 2015; the much anticipated Chevron Corporation et al. v. Yaiguaje et al. and Ontario (Energy Board) v. Ontario Power Generation Inc. et al.. Continue Reading

A Tale of Two Citruses: BCCA weighs in on when an abuse of process claim is ripe for determination

Posted in Case Comments, Civil Litigation, Intellectual Property
Ryann Atkins

When will seeking injunctive relief against a non-party amount to abuse of process? At what stage in a proceeding should that determination be made? The British Columbia Court of Appeal addressed these questions in Tangerine Financial Products Limited Parternship v. The Reeves Family Trust, the result being that it is easier, both substantively and procedurally, for non-parties to oppose such remedies on a preliminary basis. Continue Reading

ABCA Cements Limitation Period for Third Party Contribution Claims and Weighs in on Still Unsettled Test for Summary Dismissal

Posted in Case Comments, Civil Litigation
Laurie Baptiste

There has been a longstanding dispute, or at least uncertainty, about the limitation period for third party claims for contribution in Alberta stemming back over 40 years or so, despite numerous efforts of the courts and the Alberta legislature to remedy it. The judgment in Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc, has ended all uncertainty, hopefully for good. This decision affects litigation of all variety and is very important as it provides firm confirmation of the limitation period for third party claims for contribution, which are common and important to many actions.

The Court in this case also provided brief comments on the proper test for summary dismissal, noted to be a “still somewhat unsettled” area of the law. However, it is an area of increasing importance as both parties and the courts turn more and more frequently to summary judgment to bring a faster and cheaper conclusion to lawsuits without having to go through a full trial.

Background and Decision Below

The plaintiff, Whitecourt Power Limited Partnership (“Whitecourt”), is the owner of a generator at an electrical generating plant in Northern Alberta. Whitecourt hired the defendant Interpro Technical Services Ltd. (“Interpro”) to carry out a scheduled overhaul of its generator. In connection with that, Elliott Turbomachinery Canada Inc. (“Elliott”) was retained to clean and balance the turbine rotor (a significant component of the generator). After the overhaul, Whitecourt noticed a serious vibration problem and eventually issued its claim against Interpro for ~$6.7 million in damages alleged to have been suffered as a result of Interpro’s overhaul of the generator.

In its defence, Interpro alleged that some of the work was performed by other contractors, including Elliott. Interpro issued a third party claim against Elliott, claiming mainly contribution at common law and under the Tort-feasors Act, RSA 2000, c T-5 (“TFA”), and also for breach of an alleged independent duty of care. Elliott applied to set aside the third party claim because it was filed out of time or, alternatively, for summary dismissal of the third party claim. The Master and the Queen’s Bench judge were not persuaded to set aside or summarily dismiss the third party claim. Elliott appealed.

The Limitation Period for Third Party Claims for Contribution – The Final Chapter

In considering whether the claim for contribution under the TFA was time-barred, the Court noted the recent amendments which had been made to the Limitations Act, RSA 2000, c L-12. Those amendments had come into force on Dec. 17, 2014 (although, they were made retroactive to 1999) and expressly and purposefully clarified when the discovery limitations period begins for a claim for contribution under the TFA. The Court quoted Hansard to highlight that the clarifications had been brought forward by the Law Society, which had worked with members of the Alberta bar on the wording of the amendments.

The Court confirmed that the Limitations Act now clarifies that defendants have two years from the later of the date when served with the statement of claim and discoverability to seek contribution and indemnity from other third party tort-feasors. The Court held that the amendments now make it clear who, as between the plaintiff and the defendant, “ought to have known” that the third party was jointly liable for the claimant’s injury in order to satisfy the discoverability requirements under the Limitations Act – the defendant.

To be even more precise, the Court confirmed that expiration of the limitation period as between the plaintiff and the third party no longer prevents the defendant from claiming contribution from another tort-feasor under the TFA. This, consequently, seems to finally put to bed the issue of the “late-suing plaintiff”, and the long history of this issue, as described in Dean v Kociniak, 2001 ABQB 412 (“Dean”). That was a problem which arose for defendant tort-feasors when plaintiffs sued very late in the limitation period, meaning that the defendant may not find out about the claim and be in a position to advance a claim for contribution until the limitation period had already expired.

The Court further confirmed that the earliest possible date that the limitations period can begin is the date of service of the statement of claim, absent a right of contribution independent of the claimant’s suit (which did not arise in this particular case). Further, that there “must be circumstances when the discoverability limitation period post-dates service of the statement of claim” (at para. 41). The Court found this would be the case with respect to discoverability of both statutory and common law claims for contribution (at para. 42).

The Court rather delicately stated (at para. 36) that the amendments made to the Limitation Actovercome the difficulties addressed by this court in Howalta and in Arcelormittal Tubular Products Roman SA v Fluor Canada Ltd, 2013 ABCA 279 (CanLII), 556 AR 188, and state the law as it was interpreted in Dean per Slatter J (as he then was)” [emphasis added]. Given that the decision in the Arcelormittal Tubular case was issued in August 2013 and given that, in it, the ABCA held (effectively) the opposite of what was clarified by the new amendments and the law as it was interpreted in Dean, it is clear that the Alberta legislature acted relatively swiftly to correct the prior erroneous decision of the ABCA on this point.

In this case, since discoverability is largely a question of fact, the issue of knowledge of the existence of a claim warranting a third party claim for contribution was an issue of merit which required a trial so summary dismissal was not appropriate.

The Test for Summary Judgment – Expanded by Hryniak

In reviewing the lower courts’ decision on Elliott’s application for summary dismissal of the third party claim against it, the ABCA commented on the proper approach to summary judgment. The Court noted that the application of Hryniak v Mauldin, 2014 SCC 7, in Alberta was “still somewhat unsettled” (at para. 11). Then the Court adopted the expanded formulation of the test as stated in Hyrniak, as had been adopted in the prior decision of the ABCA in Ostrowercha, over the more restrictive formulation of the test as stated by the ABCA in Amack v Wishewan (see our previous blog posting on this topic here, entitled “Melting Pot or Mosaic? The Ongoing Culture Shift since Hryniak”).

The Court also touched on the issue of the extent of fact-finding powers of the court in summary judgment applications, noting the view of the Master was that summary judgment could not be granted in Alberta if there were conflicting affidavits. However, the Court appeared to support the broader view of the Chambers Judge, finding that she “appreciated that the court was not as restricted in its fact findings as the Master had suggested” [emphasis added] (para. 11). We are sure to hear more on this issue; some authorities suggest that legislative change is needed “so that the sun that rose in the east with Hryniak” does not “set in the west” due to such evidentiary issues: Rai v 1294477 Alberta Ltd, 2015 ABQB 349, at para. 13.

In this case, the Court found no reviewable error in the findings of the Chambers Judge that there were issues going beyond the courts’ ability to determine in summary form and that a fair and reasonable adjudication was not possible in the circumstances – complex litigation where there were contract and tort claims, multiple parties and no written contract.

Case Information

Whitecourt Power Limited Parntership v Elliott Turbomachinery Canada Inc, 2015 ABCA 252, per Paperny and Rowbotham JJ.A. and Eidsvik J., on appeal from an Order of Nation J.

Date of Decision: July 24, 2015


Chevron Corp v. Yaiguaje: SCC Decision Highlights Increased Litigation Risk for Canadian Companies for Misdeeds of their Foreign Affiliates

Posted in Case Comments, International rights
Neil FinkelsteinBrandon KainMarc-Andre RussellDharshini SinnaduraiShea Small

The Supreme Court of Canada’s most recent decision in Chevron Corp. v. Yaiguaje has significantly increased the litigation risk for companies with assets in Canada from plaintiffs seeking to enforce foreign judgments obtained against the foreign affiliates of such companies. The SCC decision in Chevron will have significant cross-border implications, as enforcement in Canada can now be pursued against foreign companies and their Canadian affiliates even if neither party to the original dispute has a “real and substantial” connection to Canada. Continue Reading

You Only Get to Eat What You Kill: Real Estate Brokers as Hunters and Brokerage Contracts as Hunting Licences

Posted in Case Comments, Civil Litigation, Real Property
Laurie Baptiste

Anyone involved or interested in commercial real estate should be aware of the relatively recent decision of the Supreme Court of Canada (SCC) in Société en commandite Place Mullins v Services immobiliers Diane Bisson inc, mentioned briefly in two prior blog posts, here and here. Although the Supreme Court reviewed a decision of the Quebec Court of Appeal involving a standard brokerage agreement in Quebec, the decision may arguably have wider application, including in Alberta.

In a unanimous decision authored by Wagner J. the Court explains well what constitutes an “agreement to sell” in the context of a conditional real estate deal and some of the circumstances in which a brokerage will be entitled to be paid its commission.

Continue Reading

What’s the “Connection”? Ontario Court of Appeal Confirms Continuing Divide Between Jurisdiction and Choice of Law

Posted in Case Comments, Contracts
Paul Davis

Two companies based in different provinces enter into a contract. One company sues the other for breach of that contract. If the contract does not say which province’s laws govern the agreement, how does a court determine which law to apply? The Ontario Court of Appeal recently addressed this question – the choice of law rule for contracts – in Lilydale Cooperative Limited v. Meyn Canada Inc. (“Lilydale”).[1]

Fire in A Poultry Plant Continue Reading

The SCC Monitor (30/07/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Kate Findlay

Following our last post, the Supreme Court has released its decision in Strickland v. Canada (Attorney General), 2015 SCC 37. The Court’s decision in Strickland, referenced in more detail in this blog post, speaks to the circumstances in which a federal court can decline to exercise its jurisdiction to grant judicial review remedies. The appellants in Strickland sought a declaration that the Federal Child Support Guidelines were invalid and ultra vires the Divorce Act, R.S.C. 1985, c. 3. The Federal Court declined to exercise its jurisdiction holding that the matter should be brought before a provincial superior court. The Federal Court of Appeal and Supreme Court both upheld the Federal Court’s decision. The Supreme Court held that provincial superior courts can grant judicial review relief against federal entities in appropriate circumstances. The Court also held that a court should decline to hear an application for judicial review if an adequate alternative remedy exists elsewhere, as was found to exist in the superior court in this instance.

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More Than One Way To Skin A Privacy Breach: The Ontario Court of Appeal ‘s Decision in Hopkins v. Kay

Posted in Case Comments, Privacy
Justin Nasseri


Earlier this year, the Ontario Court of Appeal released its decision in Hopkins v. Kay, 2015 ONCA 112, in which it held that the mere existence of a legislative scheme to address privacy-related breaches of personal health information does not preclude a private action from being brought to address said breaches. Continue Reading

Liability for Opinions: Omnicare’s Lessons for Canadian Securities Lawyers

Posted in Case Comments, Civil Litigation, Securities
Mira Novek

When might a wrong opinion give rise to prospectus misrepresentation? The U.S. Supreme Court recently addressed this question in its much-anticipated decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund.[1] Its answer provides a useful point of comparison and discussion for Canadian securities lawyers. Continue Reading

“I don’t wanna hear it!” Supreme Court affirms Federal Court’s refusal to exercise jurisdiction in Strickland v Canada (Attorney General)

Posted in Case Comments, Civil Procedure/Evidence
Ryan MacIsaac

Parliament created the Federal Courts system in 1970 to consolidate judicial supervision of federal boards, commissions and tribunals. The goal was to reduce the multiplicity of inconsistent judicial review rulings in provincial superior courts across the country. The Federal Courts Act hence gives the Federal Courts “exclusive original jurisdiction” to grant judicial review remedies against federal boards, commissions and tribunals (e.g., quashing a Minister’s decision). But can superior courts grant such remedies too? And if so, how is a litigant to know when to go to the Federal Court, and when to go to a superior court? The Supreme Court of Canada has provided a framework for answering these questions in Strickland v Canada (Attorney General), 2015 SCC 37.

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Have Mercy! Supreme Court Clarifies Mercy Power under Criminal Code

Posted in Administrative, Case Comments, Criminal
Byron Shaw

In “Burning Love”, Elvis pleaded with the Lord to have mercy. It was coming closer. The flames were lickin’ his body. He felt like he was slipping away. It was hard to breathe. His chest was a heavy. He was burning a hole where he lay. Burning a hole with burning love. In short, Elvis was just a hunk. A hunk of burning love.[1]

Continue Reading

The SCC Monitor (07/07/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Ryan MacIsaac

It has been a busy couple of weeks since our last post. The SCC has released two judgments and six leave decisions of interest. In addition, a pending judgment of interest will be released this week. One of the released judgments and four of the leave decisions will be of interest to those involved in real estate development, management and sales. The other judgment involves government liability and how to apportion damages where the plaintiff has reached settlements with non-parties relating to the same injury. The remaining leave decisions involve an order to a foreign whistleblower to produce documents in a prosecution for foreign corrupt practices, and the finality of tribunal decisions. Finally, the SCC will release a decision this Thursday that will address when a legal action should move forward in Federal Court versus in a provincial superior court. Continue Reading

The Ontario Court of Appeal Finds Franchise Disclosure Document Fatally Deficient

Posted in Case Comments, Franchise and Distribution
Helen FotinosSam KhajeeiAdam Ship

On McCarthy Tétrault LLP’s Consumer & Retail Advisor blog, Helen Fotinos, Sam Khajeei and Adam Ship recently published a helpful discussion of the Ontario Court of Appeal’s decision in 2240802 Ontario Inc. v Springdale Pizza Depot Ltd., which will be of interest to readers of the Canadian Appeals Monitor.

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

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

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

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The SCC Monitor (18/06/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

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

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

Melting Pot or Mosaic? The Ongoing Culture Shift since Hryniak

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

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

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

Posted in Corporate Law
Anu Koshal


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

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

Posted in Case Comments, Constitutional, Criminal
Renée Zatzman

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

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