Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

The Supreme Court concludes there is no need to prove psychiatric illness to establish mental injury: Saadati v. Moorhead

Posted in Case Comments, Personal Injury
Sam Rogers

Is a Plaintiff required to prove that they suffer from a recognized psychiatric illness in order to recover for mental injury? The Supreme Court has definitively said the answer is “no” in their recent decision in Saadati v Moorhead, a case that will be critically important to anyone who regularly prosecutes or defends personal injury claims.


To recover for mental injury, a Plaintiff must show that their injury is “serious and prolonged” and rises above the “ordinary emotional disturbances that will occasionally afflict any member of civil society without violating his or her right to be free of negligently caused mental injury.” (para 19)

Canadian courts had developed a requirement that a Plaintiff meet a threshold of proving a recognized psychiatric illness through expert medical evidence to recover for mental injury, but the Supreme Court had never addressed that requirement.

The Supreme Court’s last thorough consideration of mental injury claims was in 2008 in Mustapha v. Culligan of Canada Ltd., but that decision dealt with remoteness, and did not consider the ‘recognized psychiatric illness’ threshold.


Saadati arose out of a 2005 accident in which Mr. Moorhead hit Mr. Saadati’s tractor trailer. The accident was the second in a series of five accidents involving Mr. Saadati. He was taken to the Hospital, but had evidently suffered no physical injuries, and was not admitted for observation.

In 2007, Mr. Saadati brought an action against Mr. Moorhead and others for general damages and past income loss. At trial, the Defendants admitted liability for the accident, but said that Mr. Saadati suffered no damages. The Trial judge disagreed, and found, on the basis of the testimony from friends and family of Mr. Saadati, that the accident had changed Mr. Saadati’s personality for the worse and caused headaches. Mr. Saadati was awarded $100,000 in general damages, and no damages for past income loss.

The Defendants appealed and the Court of Appeal held that the trial judge erred in awarding damages for mental injury where Mr. Saadati had not met the threshold of proving a recognized psychiatric illness through expert medical evidence. Mr. Saadati appealed.


The Supreme Court overturned the Court of Appeal’s decision and restored the trial judgement.

The Court began its discussion on mental injury by confirming that there is no special proximity analysis for claims of mental injury as “the elements of the cause of action of negligence” furnish “principled and sufficient barriers to unmeritorious or trivial claims”. (para 21)

The Court then addressed the central issue on the appeal, i.e. whether establishing a recognized psychiatric illness through expert medical evidence is a threshold to recovering for mental injury. The Court held that it is not as “no cogent basis has been offered to this Court for erecting distinct rules which operate to preclude liability in cases of mental injury, but not in cases of physical injury.” (para 35)

The decision appears to be animated by fairness concerns, as the Court held:

requiring claimants who allege one form of personal injury (mental) to prove that their condition meets the threshold of “recognizable psychiatric illness”, while not imposing a corresponding requirement upon claimants alleging another form of personal injury (physical) to show that their condition carries a certain classificatory label, is inconsistent with prior statements of this Court, among others. It accords unequal — that is, less — protection to victims of mental injury. (para 36)

The Court acknowledged that mental injury may not be as readily demonstrable as physical injury, but “the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance.” (para 37) The Court also confirmed that expert evidence can assist in determining whether or not mental injury has been proven; it is just not a requirement. (para 38)


When considering the impact of Saadati it is important to remember that the Supreme Court was only answering the “narrow question of whether it is strictly necessary… for a claim to adduce expert evidence or other proof of a recognized psychiatric illness.” (para 13) Attempts to suggest that Saadati stands for any broader proposition should be met with scepticism.

As the Supreme Court noted, the requirement of establishing a recognized psychiatric illness is a recognized threshold in other common wealth jurisdictions including England, New Zealand, and Australia. (para 28) It will be interesting to see whether this decision has any impact on the threshold requirement in those other commonwealth jurisdictions.

Finally, the Supreme Court’s comments concerning the sufficiency of pleadings are noteworthy. The Claim in Saadati made no specific reference to mental injury beyond:

such further and other injuries as may become apparent through medical reports and examinations, details of which shall be provided as they become known;

and the effects or results of the said injuries upon the Plaintiff include headaches, fatigue, dizziness, nausea and sleeplessness. (para 10)

Nonetheless, the Supreme Court concluded that those allegations, along with an expert report diagnosing Mr. Saadati with mental disorders (although they may have arisen from other accidents), were sufficient to put the Defendants on notice that a claim would be made for mental injury.

Case Information

Saadati v. Moorhead, 2017 SCC 28

Docket: 36703

Date of Decision: June 2, 2017

The Final Word? The Ontario Court of Appeal denies nunc pro tunc relief in Pennyfeather v. Timminco

Posted in Case Comments, Class Actions, Securities
Jessica Laham

In Pennyfeather v. Timminco (“Pennyfeather”), the Ontario Court of Appeal delivered yet another ruling concerning the interaction between the limitation period for obtaining leave to commence an action for misrepresentation in the secondary securities market under s. 138.14 of the Ontario Securities Act (the “OSA”), and s. 28  of the Class Proceedings Act (the “CPA”), which suspends a limitation period in favour of class members for a cause of action asserted in a class proceeding upon commencement of the class proceeding.

Pennyfeather was previously found to be out of time in Sharma v. Timminco, 2012 ONCA 107, a decision that spawned a wave of litigation culminating in the Supreme Court of Canada’s ruling in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (“Green”).

In this most recent chapter, the Court of Appeal concluded that the appellant did not meet the test for nunc pro tunc relief, bringing the Pennyfeather action to an end once again.


Pennyfeather arose out of a proposed securities class action commenced in 2009 pertaining to alleged misrepresentations made by Timminco. At the time the Pennyfeather action was commenced, many believed that the limitation period in s. 138.14 of the OSA could be frozen upon the issuance of a claim in a putative class action pursuant to s. 28 of the CPA.

In Sharma v. Timminco, the Court of Appeal delivered (its words) a “bomb shell” ruling, holding that the limitation period in s. 138.14 of the OSA was not suspended upon the issuance of a putative class action.

A wave of litigation generated by the Court of Appeal’s surprise decision in Sharma v. Timminco ultimately culminated in the Supreme Court’s ruling in (“Green”), discussed at length here.

In Green, the Supreme Court found that in certain circumstances, notwithstanding that an action would otherwise be time barred for failure to obtain leave in the time required under s. 138.14 of the OSA, an order could be granted nunc pro tunc (“now for then”) for relief against the limitation period (meaning that an order for leave could be backdated to a date prior to the expiry of the limitation period).

Following the decision in Green, the appellant, whose action was otherwise time-barred, moved for a nunc pro tunc order for leave to commence an action under the OSA.

The Decision

Writing for the Court, Strathy C.J.O.  upheld the decision of the motion judge and denied the appellant’s motion for nunc pro tunc relief.

The Requirement to Seek Leave Prior to the Expiry of the Limitation Period

In Green, Côté J. held that for nunc pro tunc relief to be granted, leave must be sought prior to the expiry of the limitation period, otherwise, nunc pro tunc relief would not be of any benefit, since any order could only be backdated as far back as the date from which leave was sought (the so-called “red-line rule”).

This was the source of considerable argument in the Pennyfeather appeal, as the appellants had served a motion for “conditional leave” shortly before the potential expiry of the limitation period under the OSA (apparently prompted by a realization that s. 28 of the CPA might not in fact freeze the limitation period under the OSA). This was done at the direction of the case management judge, who had denied the appellant’s request for an expedited leave motion on the eve of the expiry of the limitation period and instead advised the appellant to bring a motion for “conditional leave”.

However, when the motion was argued, the focus was on whether the limitation period in s. 138.14 of the OSA was frozen by s. 28 of the CPA, and the appellant never argued the request for conditional leave, nor did he request nunc pro tunc relief.

The motion judge found that the motion for “conditional leave” did not constitute a leave motion, and therefore, because the appellant had not sought leave before the expiry of the limitation period under s. 138.14 of the OSA, he did not meet the “red-line rule”.

In a notable departure from the decision of the motion judge, the Court noted, in obiter, that the motion for “conditional leave” could serve as an anchor for nunc pro tunc relief in the circumstances.

However, the Court found that it was unnecessary to decide this issue, as it found that the motion judge had not erred in exercising his discretion not to grant the order for nunc pro tunc relief in any event.

Discretionary Factors

On a review of discretionary factors for granting nunc pro tunc relief, the Court found that the motion judge had not erred in declining to grant nunc pro tunc relief for the following reasons:

  • the appellant had been “neither dilatory nor assiduous” in proceeding with the leave motion;
  • the merits of the case were a “neutral” factor as the merits had never been scrutinized in a leave motion;
  • the delay in bringing the leave motion was not caused by an act of the court, as it was unrealistic to expect the motion judge to schedule the leave motion on the eve of the potential expiry of the limitation period;
  • although the interests of putative class members must always be considered, any duty to protect the class needs to be balanced against the interest of the defendants and the overall policy goals of the legislation; and
  • the appellant had failed to show an absence of prejudice to the respondents if leave were to be granted nunc pro tunc. Although there was no specific evidence that the respondents would be prejudiced, the respondents had never abandoned their right to rely on a limitations defence, and the appellant had not demonstrated a lack of prejudice.


Although the particular circumstances of Pennyfeather are unlikely to arise in future given 2014 amendments to the OSA clarifying the limitation period for leave, the decision nonetheless sheds useful light on how the courts will apply the doctrine of nunc pro tunc post-Green.

Case Information

Pennyfeather v. Timminco, 2017 ONCA 369

Docket: C62284

Date of Decision: May 8, 2017

3rd Edition of E-Discovery in Canada is now available

Posted in Class Actions


Susan Wortzman, partner and Director of E-Discovery, and a team of experienced authors the third edition of E-Discovery in Canada. The book covers everything lawyers, in-house counsel and law clerks need to know about conducting e-Discovery, from preservation to proportionality to costs.

Learn from the professionals in Canada and find out how to leverage their know-how for better outcomes for your clients’ in this revised and updated edition. The third edition can be purchased here.

This article was original posted on the Canadian Class Actions Monitor blog on June 2, 2017

Can a Party get Special Costs based on Pre-Litigation Conduct?

Posted in Case Comments, Procedure, Real Property
Kate MacdonaldErin O'Callaghan

In Smithies Holdings Inc. v. RCV Holdings Ltd., 2017 BCCA 177, the BC Court of Appeal considered whether special costs can be awarded based on pre-litigation conduct.  The Court reviewed the conflicting jurisprudence and unanimously concluded that a bright line should be drawn: pre-litigation conduct should not be considered in determining whether to award special costs.

This case involved the termination of a joint venture agreement related to the development of a parcel of land. The respondent withdrew from the joint venture, triggering an option for the appellants to purchase the respondent’s interest in the land based on the fair market value to be determined by an appraiser.

While the appraisal process was ongoing, the appellants received an offer to purchase the land for $40 million.  The appellants did not disclose the offer to the respondent, and purposefully delayed the negotiations for the sale in an attempt to settle the buyout of the respondent’s interest first. The appellants and respondent could not agree on the fair market value of the land. The $40 million offer fell by the wayside. The appellants brought an action to attempt to re-start the failed appraisal process. The respondent discovered the $40 million offer, and counterclaimed for damages for loss of opportunity.

At trial, the respondent was the successful party. Among other things, the trial judge found that the appellants’ failure to disclose the $40 million offer was a breach of their fiduciary obligation to the respondent. In a separate costs decision, the trial judge ordered the appellants to pay the respondents special costs on account of the appellants’ pre-litigation conduct.  The costs award was in excess of $450,000.  The appellants successfully appealed from the costs decision.

The Court considered the law in relation to special costs, including the general principles, the role of other mechanisms such as punitive damages and how pre-litigation conduct has been treated by the Court of Appeal, the BC Supreme Court and appellate courts in other jurisdictions. It found that there was no consensus in the cases with respect to whether special costs can be ordered for pre-litigation conduct.  It also found that there was no sound policy reason to consider pre-litigation conduct in awarding special costs.

Ultimately, the Court concluded that a bright-line rule should be adopted, and special costs should not be awarded for pre-litigation conduct. As a result, trial judges in British Columbia may no longer account for pre-litigation conduct in exercising their discretion regarding whether to award special costs.  It remains to be seen whether other jurisdictions will adopt the same bright line rule.

Case Information

Smithies Holdings Inc. v. RCV Holdings Ltd., 2017 BCCA 177

Docket: CA43570, CA43569

Date of Decision: May 9, 2017

Accounting for Preference: BCCA Reaffirms the Wide Discretion of Class Action Certification Judges

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

The BC Court of Appeal recently reaffirmed the principles of preferability in class action certification proceedings in the case of Vaugeois v Budget Rent-A-Car, wherein the certification judge had determined that a class proceeding was not the preferable forum to decide the disputes between vehicle renters who had allegedly been improperly  charged for vehicle repairs.

While the Court of Appeal indicated that the standard of review with respect to the preferability question was determinative of the appeal, Willcock JA’s reasons illuminated several key points.

First, the Court of Appeal restated that the standard of review is very high when an appeal court is reviewing a certification judge’s decision on preferability. Willcock JA stated that special deference should be paid to the weighing of factors by the chambers judge and the appeal court must determine whether any errors in principle are present which are directly relevant to the conclusions reached.

Second, where the certification judge considers the relevant elements of the three principal advantages of class proceedings, there will generally be no appealable error. In this case, the certification judge considered the three elements as follows:

  1. Judicial economy

While the difficulty in assessing individual claims factored heavily in the analysis, it was also clear to the Court of Appeal that the certification judge had considered the value of resolution of the common issues. The Court of Appeal also pointed out that the certification judge properly recognized that success for the class would fail to advance the cause of any individual plaintiff and the dismissal of the class action would not finally determine the claim of any class member. The Court of Appeal emphasized at para. 14 that the “fact the litigation would not finally determine the claims either way, must be weighed in assessing whether certification will serve the end of judicial economy” (emphasis in original).

2. Access to justice

The Court of Appeal noted the arguments of the proposed class members that a class proceeding is the only way for most members to obtain any remedy and in particular the relief sought from the BC Supreme Court (rather than in Provincial Court proceedings). However, the certification judge concluded that individual trials would have been inevitable in this case since individual trials would have been required to determine liability for each claimant even if the common issue of conspiracy was proven. Few plaintiffs would have been spared the expense and risk of trial.

The Court of Appeal also stated that the possibility that claims will not be advanced at all if the class action is not certified is a factor that should be considered at the certification stage. However, this depends on the respondents being inclined to settle claims if the common issues are determined in favour of the class and in this case it was apparent that the respondents would be unlikely to do so.

3. Behaviour modification

The Court of Appeal also deferred to the reasoning of the certification judge that behaviour modification could be achieved by obtaining relief in Provincial Court for those claims which were not statute barred. The Court of Appeal also concluded that it was not a reviewable error for the certification judge to place weight on the ability of the Director to bring an action pursuant to the Business Practices and Consumer Protection Act [BPCPA].

The Court of Appeal in this case approved of certification judges drawing certain assumptions in assessing the preferability of class action proceedings. In particular, Willcock JA held that the certification judge did not err:

  1. in assuming that the Provincial Court would fairly use the tools at its disposal to resolve the disputes of claimants including the discretion available to judges pursuant to the Small Claims Rules to determine evidence required and procedure to be followed including with respect to the production of relevant information; and
  2. in assuming that the officers of the Legislature would use the available tools to protect consumers and effect behaviour modification, including the ability of the Director to bring an action pursuant to the BPCPA even where, as in this case, there is no indication that the Director will in fact take up the cause.

This decision opens up the possibility of further permissible assumptions with respect to the preferability analysis, including where proposed class members may have alternate but uncertain avenues of relief.

Case Information

Vaugeois v Budget Rent-A-Car of B.C. Ltd., 2017 BCCA 111

Docket: CA42857

Date of Decision: March 8, 2017

In Which Ontario Court Do I Bring My Constitutional Challenge?

Posted in Constitutional, Procedure
Byron Shaw

“Can a litigant challenge the constitutional validity of subordinate legislation such as a provincial regulation by bringing an application under Rule 14.05 in Superior Court or is she required to proceed by way of an application for judicial review in the Divisional Court?” Justice Belobaba says “Yes” in Di Cienzo v. Attorney General of Ontario.[1]


Ms. Di Cienzo was a bus driver. Her bus license was automatically revoked pursuant to Ontario Drivers’ License Regulation after she lost one eye to cancer. She believed she could drive a bus as safely as a person with two eyes. Relying on Supreme Court precedent,[2] she challenged the constitutionality of the regulation, arguing that it discriminated on the basis of physical disability contrary to s. 15(1) of the Charter.

Ms. Di Cienzo brought an application in the Ontario Superior Court pursuant to rule 14.05(3) of the Rules of Civil Procedure,[3] which permits a proceeding to be commenced by Notice of Application in enumerated circumstances including where the relief claimed is “(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.”

The Attorney General of Ontario took the position that her application should have been brought in the Divisional Court, relying on the Judicial Review Procedure Act.[4] The JRPA provides that (with certain exceptions), an application for judicial review shall be made to the Divisional Court.[5] An “application for judicial review” includes proceedings for a declaration in relation to the exercise of a statutory power.[6] A statutory power includes a power or right conferred by or under a statute to make subordinate legislation, including regulations.[7] The AG argued that the application challenged the “exercise of a statutory power” to “make a regulation” such that it should be heard by a three-judge panel of the Divisional Court.

After canvassing the law on the jurisdiction of the Superior Court and Divisional Court and the jurisprudence, Justice Belobaba concluded that the AG was wrong. Ms. Di Cienzo was in the right Court.


As Belobaba J. observed, the use of rule 14.05 applications in Superior Court for constitutional challenges to the validity of statutes and regulations is a “long established and judicially accepted practice.”[8] The advantages of a Superior Court application include the potential for savings in time and expense. As Belobaba J. observed, rule 14.05 applications are at least initially, faster and less costly than applications for judicial review. If the application judge concludes that there are material facts in dispute, the application can be converted into an action, a risk that many litigants are willing to take in constitutional litigation of this nature.[9]

Ms. DiCienzo was challenging the validity of the regulation only. She did not challenge the regulation on the basis that it exceeded the statutory grant of authority. The decision confirms that an application to the Superior Court under rule 14.05(3)(h) continues to be the appropriate procedure in cases of this nature.

Di Cienzo does not provide a definitive answer on whether the Superior Court, Divisional Court or both have jurisdiction in cases involving constitutional and administrative law challenges to subordinate legislation. Belobaba J. cited a previous case[10] in which Borins J. cast doubt on the Divisional Court’s ability to grant a declaration of constitutional validity of subordinate legislation under the JRPA. Belobaba J. suggested that the JRPA was limited to “cases where the litigation is seeking a declaration that the impugned regulation is ultra vires the authority of the enabling statute” or “at most… to cases where the litigant is seeking a declaration that involves both an ultra vires claim and a Charter-breach claim.”[11] And he cautioned that an applicant cannot simply “tack on” a request for a declaration of constitutional invalidity to an application that is in substance an administrative law challenge, noting that the rule 14.05 procedure “should not be available where it is readily apparent on all the facts and circumstances that ‘the substance of [the] claim is for judicial review of the administrative decision of a public body.’”[12]

However, it is often the case that there is no singular “substance” to a public law challenge to subordinate legislation. Litigants frequently challenge regulations, bylaws, orders and other subordinate legislation by advancing both constitutional and administrative law grounds of review, either in the alternative or as cumulative remedies. Careful consideration will have to be given in each case to determine the best Court and to identify and carefully frame the relief sought. Failure to do so can contribute to unnecessary jurisdictional jockeying and contribute to delay and expense in cases that often call out for (if not require) a speedy remedy. Experience and expertise in constitutional and public law in these cases will often be invaluable.

About the Author

Byron Shaw is a Litigation Partner. His practice includes public law and constitutional law. He is the co-author of Constitutional Law with Deputy Attorney General Patrick Monahan and Padraic Ryan, which is frequently cited by Canadian Courts including the Supreme Court of Canada.


[1] 2017 ONSC 1351 [Di Cienzo].

[2] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868.

[3] R.R.O. 1990, Reg. 194.

[4] R.S.O. 1990, c. J.1 (“JRPA”).

[5] Ibid., s. 6(1).

[6] Ibid., ss. 1, 2(1)2.

[7] Ibid., s. 1.

[8] Di Cienzo, supra note 1 at ¶ 26.

[9] Ibid. at ¶ 25-26.

[10] Falkiner v. Ontario Ministry of Community and Social Services, 1996 CanLII 12495 (Ont. S.C. (Div. Ct.)).

[11] Di Cienzo, supra note 1 at ¶ 28.

[12] Ibid., at ¶ 29, citing J.N. Durham Regional Police Service, [2012] O.J. No. 2809 (C.A.), at ¶ 16.

No Place To Hide: Service In States That Are Not Signatories To The Hague Convention

Posted in Case Comments, Procedure
Eric Pellegrino

On February 23, 2017, the Supreme Court of Canada refused leave to appeal the Court of Appeal’s decision in Xela Enterprises Ltd. v. Castillo: a case in which the Court determined that it is acceptable to serve parties in accordance with the Rules of Civil Procedure in states that are not signatories to the Hague Convention. Continue Reading

Municipalities Can’t Bike Around Risk Management

Posted in Case Comments, Occupiers Liability Act
Shanique Lake

On February 16, 2017, the Supreme Court of Canada refused leave to appeal the 2016 decision of the Ontario Court of Appeal in Campbell v. Bruce (County): a case in which an Ontario municipality that operated a mountain biking adventure park (the “Bike Park”)  was found liable, as occupier, for the accident that rendered cyclist Stephen Campbell a quadriplegic.

Continue Reading

No Jury Trial for Securities Offences: Economic Penalties Are Not A “More Severe Punishment” Under Section 11(f) of the Charter

Posted in Case Comments, Charter of Rights, Constitutional, Criminal, Procedural Rights, Securities, Supreme Court of Canada
Timothy Froese

Is a $5 million fine a less severe punishment than a night in jail?  Are hefty financial penalties for quasi-criminal or regulatory offences able to trigger the procedural protections of the Canadian Charter of Rights and Freedoms when combined with the threat of imprisonment? The Supreme Court of Canada had the opportunity to address these questions when it recently released the twin decisions of R v Peers, 2017 SCC 13 and R v Aitkens, 2017 SCC 14. Continue Reading

The Supreme Court of Canada Searches for Goldilocks: Is the Jurisdiction of the Federal Court Narrow, Broad, or Just Right?

Posted in Case Comments, Statutory
Meghan S. Bridges

One of the first lessons I remember being taught as a law student about statutory interpretation was to look at both the words of the statute and the purpose Parliament intended in enacting the statute. I quickly learned that statutory interpretation can be somewhat of a headache because, sometimes, the words and the purpose of the statute are at odds with each other. What to do then? Continue Reading

Edmonton East (Capilano): Standard of Review Heads South

Posted in Aboriginal, Administrative, Constitutional, Municipal
Ryan MacIsaac

The Supreme Court of Canada released its administrative law decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (“Edmonton East”) in late 2016.[1] The decision was one of our Top Ten Appeals of 2016. It marked a significant shift in how courts determine the standard of review for questions of law on judicial review. The result is that it will be more difficult for individuals and companies to challenge the acts and decisions of government actors, even if the government actors have stepped outside of their legislated authority. Continue Reading

The Supreme Court of Canada provides limited guidance on the constitutionality of immunity clauses for tribunals

Posted in Charter of Rights
Patrick Williams

In Ernst v. Alberta Energy Regulator, 2017 SCC 1, the Court split 4-4-1 over the constitutionality of an immunity clause in favour of the Alberta Energy Regulator (the “Board”). The case was resolved largely on procedural grounds. For example, Justice Abella—the “1” in the 4-4-1 split—held that Ms. Ernst’s failure to provide notice of her constitutional challenge to the immunity clause was fatal to her claim. Meanwhile, the remaining eight judges divided over the issue of whether to accept Ms. Ernst’s concession that the immunity clause actually barred her claim against the Board. As a result, the Court largely left the constitutionality of immunity clauses to another day and Ernst has questionable precedential value. Continue Reading

The Year Ahead: Ten Top Appeals to Watch in 2017

Posted in Features
Sara D.N. Babich


The coming year will see our highest court decide a host of appeals of interest to Canadian businesses and professions. The Appeals Monitor is pleased to present our annual forecast of the top ten appeals expected in 2017.

10Remedies for Breach of Modern Treaties: First Nation of Nacho Nyak Dun v Government of Yukon

This case involves a modern treaty known as the Umbrella Final Agreement (“UFA”) between First Nations in the Yukon, the Crown, and the Yukon Government. Under the UFA, the parties are to engage in a collaborate land use planning process. At issue before the SCC is the remedy for breach of modern treaties and the remedy after quashing a flawed decision. Continue Reading

Looking Back – The 10 Most Important Appeals of 2016

Posted in Features
Ryan MacIsaac

Top 10 header


The Appeals Monitor is pleased to present our annual review of the most significant appellate decisions of the past year. From criminal law to contracts, 2016 was full of exciting developments and we hope that you, our reader, will enjoy these summaries.

10Endean: Justice to Go

In Endean v British Columbia, 2016 SCC 42, the Supreme Court of Canada (“SCC”) addressed whether superior court judges may sit outside their home provinces to hear and decide a motion about a pan-national class action settlement. Endean was at the top of our Appeals to Watch in 2016 list from last year. The lower court decisions were previously discussed here and the SCC decision discussed here. Continue Reading

The Alberta Court of Appeal clarifies the organizing principle of good faith with style

Posted in Case Comments, Contracts

In Styles v Alberta Investment Management Corporation (“Styles”),[1] the Alberta Court of Appeal provided useful guidance on the application of the organizing principle of good faith in contractual performance, established by the Supreme Court of Canada in its landmark decision Bhasin v Hrynew (“Bhasin”).[2] Since Bhasin, there has been a lack of clarity on how to apply and consider the organizing principle. In Styles, the Alberta Court of Appeal (1) expressly declined to expand the organizing principle to create a “common law duty of reasonable exercise of discretionary contractual powers”, (2) recognized other key limitations to the organizing principle, and (3) confirmed the extent of an employer’s duty of good faith when terminating an employee. Styles is the latest example of an appellate court applying Bhasin with caution and restraint. Continue Reading

The Supreme Court of Canada (Clearly and Expressly) Affirms the Importance of Solicitor-Client and Litigation Privilege

Posted in Case Comments, Privilege
Jessica Laham

In two recent companion decisions, the Supreme Court of Canada affirmed the importance of litigation privilege and solicitor-client privilege to the Canadian legal system. In Lizotte v. Aviva Insurance Company of Canada[1] (Lizotte), the Court recognized litigation privilege as a distinct and fundamental principle of the administration of justice, while in Alberta (Information and Privacy Commissioner) v. University of Calgary[2] (Alberta (Information and Privacy Commissioner)), the Court focused on issues of solicitor-client privilege. These decisions both confirm that for the legislature to abrogate either litigation privilege or solicitor-client privilege, nothing less than clear and express statutory language will suffice. Continue Reading

Business Realities v. Narrow Legalities: The Supreme Court considers the oppression remedy in Mennillo v. Intramodal Inc., 2016 SCC 51

Posted in Case Comments, Corporate Law
Michael O'Brien

In Mennillo v. Intramodal Inc. 2016 SCC 51, the most recent consideration of the oppression remedy by the Supreme Court of Canada (released on November 18, 2016), the majority confirmed the oppression remedy’s equitable purpose, and held that a corporation’s failure to comply with the CBCA[1] does not, on its own, constitute oppression.

This decision, with particular applicability to small, closely held corporations, reiterated oppression remedy principles set out in the 2008 Supreme Court decision of BCE Inc. v. 1976 Debentureholders,[2] that the remedy is concerned with fairness and business realities, rather than narrow legalities.[3] Continue Reading

Indeterminate Liability of Auditors and the Dangers of Partial Summary Judgment

Canadian Imperial Bank of Commerce v Deloitte & Touche, 2016 ONCA 922

Posted in Case Comments, Procedure, Professions
William D. BlackEli MogilLeah Ostler

In a decision released on December 8, 2016, the Ontario Court of Appeal allowed an appeal from partial summary judgment, holding that issues of indeterminate auditor liability should proceed to trial.


In 1998, an accounting fraud was discovered at Philip Services Corp. (“Philip”), a publicly traded company. The Plaintiffs alleged that Philip’s auditors, Deloitte and Deloitte Touche Tohmatsu (“Deloitte”) gave unqualified opinions in connection with its audits of Philip’s consolidated financial statements for the financial years ending December 31, 1995 and 1996. Continue Reading

English Court of Appeal Rejects the “Organizing Principle of Good Faith”

Posted in Case Comments, Contracts
Paul Davis

The Supreme Court of Canada’s decision in Bhasin v. Hrynew[1] – on which this blog has commented – marked a sea change in Canadian contract law. In Bhasin, the Court recognized an “organizing principle of good faith” in contractual relations that underpins numerous specific doctrines, including, for example, unconscionability and the treatment of discretionary contractual powers.

Continue Reading

Key Banking Decisions of 2016: The Supreme Court of Canada releases its decision in Royal Bank of Canada v. Trang

Posted in Case Comments, Privacy
Daniel G.C. GloverCharles MorganRenee ReicheltBarry B. SookmanKirsten Thompson

A recent article, published by McCarthy Tetrault LLP may be of interest to readers of the Canadian Appeals Monitor blog.

The Supreme Court of Canada released a landmark decision on November 17, 2016 giving important guidance on how Canada’s federal privacy law, the Personal Information Protection and Electronic Documents Act, should be interpreted in Royal Bank of Canada v. Trang, 2016 SCC 50.

Policyholders stay tuned: final word on the LEG 2/96 defective workmanship exclusion yet to come

Posted in Case Comments, Contracts, Insurance
Ariel DeJongLindsay Burgess

As we reported here, the BC Court of Appeal in Acciona Infrastructure Canada Inc. v. Allianz Global Risks US Insurance Company grappled with the proper interpretation of the LEG 2/96 defective workmanship exclusion common in many builder’s risk insurance policies. Applying general principles of contract interpretation the Court held that the exclusion is restricted to denying only those costs that would have been incurred to prevent the damage from happening. Having been unsuccessful on the appeal, the Insurers filed an application for leave to the Supreme Court of Canada. Continue Reading

The Supreme Court of Canada Clarifies the Test and Procedure for Joint Submissions on Sentencing

Posted in Case Comments, Criminal
David PorterAndrew MathesonTrevor Courtis

In R. v. Anthony‑Cook, 2016 SCC 43, the Supreme Court of Canada recently confirmed that trial judges should only depart from a joint submission in very limited circumstances, where the sentence proposed would bring the administration of justice into disrepute, or is otherwise not in the public interest.

Resolution negotiations are a prevalent and necessary feature of our criminal justice system. They allow the Crown and the accused to avoid the uncertainty, stress and legal costs associated with trials where the accused admits guilt and is not exercising his right to make full answer and defence. Resolutions also save the court system precious time, resources, and expenses. Indeed, without resolutions the criminal justice system would collapse under its own weight.[1] Continue Reading

Hamilton City’s Attempt to Stamp Out Community Mail Delivery Ruled Unconstitutional (Sort of)

Posted in Case Comments, Constitutional
Byron ShawHakim Kassam

In response to Canada Post’s announcement that it was restructuring its mail delivery and doing away with home delivery services, the City of Hamilton passed a by-law giving the City control over the installation of equipment on municipal roads, including Canada Post’s community mailbox (“CMB”) delivery systems. Last week, the Ontario Court of Appeal held[1] that the by-law was constitutionally inoperative to Canada Post since it conflicted with the federal Canada Post Corporation Act[2] and the Mail Receptacles Regulations.[3] The Court of Appeal’s decision highlights a tension in the pith and substance jurisprudence between the principle of colourability on the one hand and the motive and purpose of the enacting body on the other. Furthermore, the decision reveals a preference for resolving division of powers disputes through the paramountcy doctrine, which gives rise to a narrower constitutional remedy. Continue Reading

The Ontario Court of Appeal Weighs in on the Jordan Framework for Trial Within a Reasonable Time

Posted in Case Comments, Criminal
Trevor CourtisPeter BradyMichael Rosenberg

As discussed in our previous post, the Supreme Court of Canada recently dramatically altered the framework applicable to the right to a criminal trial within a reasonable time in R. v. Jordan, 2016 SCC 27. This decision has already had a significant impact on the operation of criminal courts in Ontario.

In light of this decision, the Ontario Court of Appeal requested further submissions on two s. 11(b) appeals that had already been argued before the Court under the previous framework. On September 28, 2016, the Court released its decisions in R. v. Manasseri, 2016 ONCA 703 and R. v. Coulter, 2016 ONCA 704. These decisions provide some helpful guidance on how the Courts of Ontario will apply the new framework to “transitional” cases in the system, particularly cases where 1) the delay is just below the presumptive ceilings established in Jordan, and 2) the delay is primarily caused by a co-accused. Continue Reading