Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

Short-Circuited Shortcut: The Ontario Court of Appeal Removes Alternative Method For Determining Jurisdiction Over Appeals

Posted in Case Comments, Procedure
Trevor Courtis

For a party wishing to appeal the decision of an Ontario judge or master, determining the appropriate Court to appeal to is occasionally not a straightforward matter. In some previous cases where there has been uncertainty between the parties as to the appropriate appeal route, single judges of appellate courts have been willing to provide direction to the parties on this question following a short chambers appearance.

In Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986 (“Assessment Direct”), Juriansz J.A. held that this practice is improper and a motion to a full three-member panel of the Court of Appeal is required in order to obtain a decision on the Court’s jurisdiction over a given appeal. It appears that parties will no longer be able to rely on the motion for directions shortcut to obtain an answer to the jurisdiction question.

Background: Jurisdictional Uncertainty

Assessment Direct involved the appeal of a Superior Court of Justice decision regarding privilege over documents and audio files seized by the Ontario Provincial Police during the execution of a Criminal Code search warrant. The parties disagreed with respect to whether the proceeding was civil in nature (with an appeal route to the Ontario Court of Appeal per section 6(1)(b) of the Courts of Justice Act) or criminal in nature (with the only appeal route being straight to the Supreme Court of Canada per section 40(1) of the Supreme Court Act).

Decision: Not So Fast

The appellants brought a motion for directions before Juriansz J.A. of the Ontario Court of Appeal sitting in chambers. While Juriansz J.A. recognized that single judges sitting in chambers had decided similar issues in the past, His Honour refused and referred the motion to a full panel of the Court. His Honour held that these motions were effectively requests for a declaration that the Court did (or did not) have jurisdiction over the appeal and an order that the appeal should not (or should) be quashed. His Honour noted that the Court of Appeal Practice Directions governing civil appeals and criminal appeals provides that only three-judge panels may hear motions to quash an appeal, including due to a lack of jurisdiction. Additionally, Rule 61.15(2.2) of the Rules of Civil Procedure provides that an order that “finally determines an appeal” may only be granted by a full panel of three judges or more.

While much of the decision is couched in terms of stopping a practice that the Rules do not permit, the decision of Juriansz J.A. appears to be directed more towards prohibiting a practice that has the potential to cause confusion and re-litigation. The Rules provide Ontario judges with broad discretion to control their own processes and provide direction to the parties where appropriate. The motion as pleaded appears to have been solely for directions, not an order quashing the appeal on jurisdictional grounds, and thus was technically within the bailiwick of a single judge sitting in chambers.

However, practically an order giving directions would only be effective if it was honoured by both parties. Either party would have the ability to appeal the decision to a full panel of the Court of Appeal in any event since it was issued by a single judge.[1] Furthermore, the order giving directions would not have the effect of dismissing the appeal and a further motion to a three-member panel would be required to quash the appeal if the opposing party did not agree to the appeal being discontinued in that forum.

Takeaway: Parties Should Bring Motion to a Full Panel at Early Stage

Following the decision of Juriansz J.A. in Assessment Direct, parties should no longer seek to use the shortcut of a motion for directions to determine the issue of whether an appeal was brought in the appropriate forum. The parties must proceed to a hearing before a full three-member panel. Fortunately, the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario provides that jurisdiction motions will be heard at an early stage of the appeal and the parties are not required to wait until they can proceed with a full appeal on the merits in order to get an answer to the jurisdiction question.[2]

Case Information

Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986

Docket: M48577

Date of Decision: December 15, 2017


[1] Courts of Justice Act, RSO 1990, c C.43, s. 7(5).

[2] Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 7.2.5.

Supreme Court: Conditional sentences not necessarily “serious criminality” under Immigration Act

Posted in Case Comments, Criminal, Immigration
Paulina BogdanovaCarole Piovesan

In order to be admissible to Canada, permanent residents and foreign nationals must avoid “serious criminality” as set out in s. 36(1)(a) of Canada’s Immigration and Refugee Protection Act[1]. That section provides that “serious criminality” is evidenced by being sentenced in Canada to a term of imprisonment of more than six months, or by being convicted of an offence punishable by a maximum term of imprisonment of at least 10 years.

In its October 19, 2017 decision of Tran v. Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada held that:

  1. a conditional sentence constitutes a “term of imprisonment” under s. 36(1)(a) of the IRPA;
  2. the phrase “punishable by a maximum term of imprisonment of at least 10 years” in the IRPA refers to the maximum term of imprisonment available at the time the person was sentenced, not at the time that admissibility to Canada is determined.[2]


Mr. Tran is a citizen of Vietnam who acquired permanent resident status in Canada in 1989. In 2011, he was involved in a marijuana grow operation and was charged with production of a controlled substance, contrary to s. 7(1) of the Controlled Drugs and Substances Act.[3] On November 6, 2012, legislation came into effect increasing the maximum sentence applicable to this offence from 10 years of incarceration to 14 years. Three weeks later, on November 29, 2012, Mr. Tran was convicted and given a 12-month conditional sentence to be served in the community.

A CBSA officer prepared a report stating that Mr. Tran was inadmissible to Canada under s. 36(1)(a) of the IRPA. A delegate of the Minister of Public Safety and Emergency Preparedness (“Minister”) referred Mr. Tran’s case to an admissibility hearing before the Immigration Division – this referral was withdrawn due to legislative changes to appeal rights under s. 64(2) of the IRPA.

Mr. Tran argued in writing that he did not fall within the purview of s. 36. A second CBSA officer reviewed those submissions and concluded in another report that Mr. Tran should be referred to an admissibility hearing. This report canvassed conditions in Vietnam, Mr. Tran’s degree of establishment in Canada, and the best interests of his children. The report also considered Mr. Tran’s history of arrests and charges without conviction, ultimately concluding that Mr. Tran seemed not to have accepted responsibility of his actions. The Minister’s delegate endorsed this report and referred the matter to an admissibility hearing. The Minister’s delegate’s decision is the decision under review in this case.

Lower Court Decisions

On judicial review in the Federal Court, Justice O’Reilly found the Minister’s delegate’s decision to be unreasonable, ordering that another officer consider the question of Mr. Tran’s admissibility.[4] The Minister appealed.

At the Federal Court of Appeal, Justice Gauthier for a unanimous court allowed the Minister’s appeal.[5] Gauthier J. found that the reviewing judge failed to do what he was required to under a reasonableness standard of review: to assess whether the administrative decision-maker’s interpretation of s. 36 fell within the range of interpretations defensible on the facts and law.

Supreme Court Decision

This case went up to the Supreme Court for determination of the two main issues summarized below.

Issue 1: is a conditional sentence a “term of imprisonment”?

At the Supreme Court of Canada, Justice Côté, writing for the unanimous Court held that conditional sentences are not captured by the phrase “term of imprisonment” in s. 36(1)(a) of the IRPA for at least three reasons.

First, “length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of a permanent resident.”[6] Conditional sentences are crafted for less serious offences. In fact, there are cases in which mitigating factors have prompted courts to replace jail terms of less than 6 months with conditional sentences. There are also cases in which aggravating factors led courts to replace conditional sentences longer than 6 months with jail terms shorter than 6 months.[7]

Second, “the meaning of “term of imprisonment” varies according to the statutory context.”[8] For example, in some parts of the Criminal Code, “imprisonment” captures conditional sentences, but in other cases it does not. The Court noted that there is similarly no consistent meaning for what “imprisonment” entails in other statutory contexts.[9]

Third, including conditional sentences in the phrase “term of imprisonment” would lead to absurd results. Côté J. reasoned that it would be an absurd outcome if a “less serious and non-dangerous offender” sentenced to a 7-month conditional sentence in the community could be deported while a more serious offender serving a 6-month sentence in jail could be allowed to remain in Canada.[10] It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they could remain in Canada – as Mr. Tran had actually done before the Court of Appeal. This would sabotage the goals of conditional sentences which include encouraging rehabilitation, reducing the rate of incarceration, and improving the effectiveness of sentencing.

Issue 2: how is “maximum term” determined?

Justice Côté held that a contextual reading of s. 36(1)(a) “supports only one conclusion”: that the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum penalty available at the time that the offence was committed.

The Supreme Court accepted Mr. Tran’s argument that a reading of the provision indicates that since section 36(1)(a) begins with “having been convicted”, the fact of a conviction precedes the two disjunctive clauses: the maximum term and the actual term imposed.

The Court rejected the conclusion of the Federal Court of Appeal that the phrase could be interpreted in the abstract, without reference to the particular individual. Rather, the phrase must be interpreted with reference to the actual offender or others in similar circumstances. This would accord with the purpose of the IRPA: to “permit Canada to obtain the benefits of immigration, while recognizing the need for security and outlining the obligations of permanent residents.”[11]

The Court explained that the IRPA establishes “mutual obligations” between permanent residents and Canadian society which must be knowable in order to apply. Individuals cannot be required to act in accordance with rules that do not yet exist.

Côté J. reasoned that while section 11(i) of the Charter (right to lesser punishment) did not apply to the decision of a Minister’s delegate because the proceedings were neither criminal nor penal, the presumption against retrospectivity is a rule of statutory interpretation that did apply. The presumption engages the rule of law by providing individuals with a “stable, predictable and ordered society in which to conduct their affairs,” in the words of Lord Denning.[12] The presumption also promotes fairness and respects decisions of sentencing judges, who are required to consider immigration consequences. It would offend fairness, the rule of law, and undermine a sentencing judge’s decision if, after a change in the law, a permanent resident who had already served a sentence 25 years ago could suddenly be found inadmissible.

Côté J. held that the presumption against retrospectivity was not rebutted in this case because there was no express language or necessary implication indicating that Parliament had turned its mind to the issue of retrospectivity.

Analysis of Tran

As to issue 1, the Supreme Court’s decision in Tran should provide certainty for lawyers acting for clients with criminal and immigration matters. Tran has harmonized s. 36 of the IRPA with criminal sentencing jurisprudence by clarifying that a conditional sentence is not indicative of “serious criminality” under the IRPA. Before Tran, a lawyer could be remiss to recommend a longer conditional sentence to be served in the community instead of a shorter sentence of incarceration due to potential deportation consequences. The Supreme Court has clarified that decisions to refer non-citizens to admissibility hearings under the IRPA should reflect the criminal law’s understanding of seriousness of offences.

The relationship between criminal law and immigration law in s. 36(1) of the IRPA means that a criminal offence may have serious consequences for the offender beyond criminal sanctions. Tran suggests that the possible immigration consequences of an offence should be considered as a factor by the sentencing judge when determining the appropriate sentence to impose. Negative immigration consequences may prompt judges to impose conditional sentences in cases where penal sentences of at least 6 months could also be imposed.

As to issue 2, this decision of the Supreme Court’s underscores that Canadian citizenship is not a right but a benefit that depends on mutual obligations between Canadian society and the individual. Part of Canadian society’s obligation is for the law to be intelligible and predictable in order for permanent residents to be able to “plan their lives”.

The Supreme Court’s emphasis on fairness, the rule of law, and the discretion of sentencing judges should provide certainty for non-citizens living in Canada. Although the Court held that s. 11(i) of the Charter did not apply to the decision since the proceedings were neither criminal nor penal, the principle behind that section – the presumption against retroactivity – was available. By applying the presumption of retrospectivity, the Court furthered the principles of fairness, predictability and intelligibility of the law. The Court’s application of the presumption of retrospectivity also seems to echo jurisprudence in the administrative law context suggesting that decision-makers should consider Charter values when making decisions.

Case Information

Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50

Docket : 36784

Date of Decision: October 19, 2017


[1] S.C. 2001, c. 27 [“IRPA”].

[2] 2017 SCC 50 [“Tran”].

[3] S.C. 1996, c. 19 [“CDSA”].

[4] 2014 FC 1040, 31 Imm. L.R. 160 (F.C.).

[5] 2015 FCA 237.

[6] Tran at para. 25.

[7] Tran at para. 27.

[8] Tran at para. 29.

[9] Tran at para. 29.

[10] Tran at para. 32.

[11] Tran at para. 40.

[12] Tran at para. 45.

Supreme Court Dismisses Aboriginal Spiritual Rights Charter Claim

Posted in Aboriginal, Supreme Court of Canada
Brandon KainBryn GrayStephanie Axmann

The Supreme Court of Canada (SCC) released a decision on November 2, 2017 dismissing a novel Aboriginal freedom of religion Charter claim that was raised in opposition to a ski resort development in British Columbia: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (Ktunaxa).  This is a significant case as it is the first time the SCC has been asked to consider an Aboriginal spiritual rights claim and the protections that may be afforded to it under s. 2(a) of the Charter in addition to s. 35 of the Constitution Act, 1982. McCarthy Tétrault LLP (Neil Finkelstein, Brandon Kain, and Bryn Gray) intervened in this case on behalf of the Canadian Chamber of Commerce.

Ktunaxa limits the scope of potential Aboriginal spiritual rights claims that may be protected under s. 2(a) of the Charter, which is significant given that there are Aboriginal spiritual rights claims across Canada that are attached to vast tracts of land.  The decision also importantly confirms once again that Aboriginal groups do not have a veto over projects and that developments can proceed without consent if adequate consultation has occurred, except in limited cases of established rights, such as established Aboriginal title.


In this appeal, the Ktunaxa Nation Council sought to overturn the approval of a Master Development Agreement (MDA) for a new ski resort in the Jumbo Valley in the BC interior on two grounds: (i) the project violated the Ktunaxa’s freedom of religion under s. 2(a) of the Charter and (ii) the government breached it duty to consult.  In both instances, the Ktunaxa argued that the development was taking place in a sacred area called Qat’muk that was home to the Grizzly Bear Spirit and that no accommodation of their spiritual rights was possible.

The approval at issue was the last in a serious of approvals granted over 20 years, in which Aboriginal consultation had been undertaken at every stage. Significant accommodation measures were also made to the project in response to concerns raised by the Ktunaxa, including reducing the size of the recreational area by 60 per cent.  The First Nation located closest to the project was satisfied with these changes and indicated their support but the Ktunaxa Council, representing three other First Nations, remained opposed.  Despite their opposition, the Ktunaxa Council continued to engage in lengthy discussions with the Crown in an effort to find mutually satisfactory accommodation of their concerns.  Several accommodation offers were rejected by the Ktunaxa Council but these rejections did not explicitly identify the Grizzly Bear Spirit or the sacred nature of the Jumbo Valley as outstanding concerns that needed to be addressed.

After several years, the Minister advised the Ktunaxa Council that a reasonable consultation process had occurred and that approval for the resort could be given while accommodation discussions continued. The Ktunaxa Council subsequently adopted a “very different and uncompromising position” that the process had not properly considered the sacred nature of the Jumbo Valley and that their spiritual concerns could not be accommodated.  This was because a ski resort with lifts to glacier runs and permanent structures would drive the Grizzly Bear Spirit from Qat’muk and irrevocably impair their religious beliefs and practices.

Similar to the BC Supreme Court and BC Court of Appeal, the SCC dismissed the Ktunaxa’s appeal on both grounds.

Freedom of Religion

Majority decision

Chief Justice McLachlin and Justice Rowe for the majority concluded that the Ktunaxa’s spiritual rights claim is not protected by s. 2(a) of the Charter.  They held that there are two aspects of the right to freedom of religion, namely the freedom to (i) hold religious beliefs and (ii) manifest those beliefs and that neither were infringed upon in this case.  The Minister’s decision did not interfere with the Ktunaxa’s freedom to believe in the Grizzly Bear Spirit or to manifest this belief.  Instead, the Ktunaxa were seeking to protect the Grizzly Bear Spirit itself and the subjective spiritual fulfillment that they derive from it, neither of which are protected by s. 2(a) of the Charter.

Concurring reasons

In a concurring in result opinion, Justice Moldaver held that the Minister’s decision infringed s. 2(a) of the Charter because it would interfere with the Ktunaxa’s ability to act in accordance with a religious belief or practice in more than a trivial or insubstantial manner.  He held that where state conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom.  In this case, he held that the development would render the Ktunaxa’s religious beliefs related to the Grizzly Bear Spirit devoid of any spiritual significance.

Yet despite his finding that the Minister’s decision infringed s. 2(a) of the Charter, he concluded that the Minister’s decision was reasonable because it reflected a proportionate balancing between the Ktunaxa’s s. 2(a) Charter right and the Minister’s statutory objectives, to administer Crown land and dispose of it in the public interest.  The Minister tried to limit the impact of the development on the substance of the Ktunaxa’s s. 2(a) right as much as reasonably possible given these objectives with significant accommodation measures.  Granting the Ktunaxa a power to veto development over the land would effectively give transfer to them a significant property interest – namely a power to exclude others from constructing permanent structures on public land and regulating a vast area of public land so that it conforms to the Ktunaxa’s religious beliefs.  Justice Moldaver concluded that allowing the Ktunaxa to dictate the use of  50 square kilometres of public land in accordance with their religious belief was not consistent with the Minister’s statutory mandate and would significantly undermine if not completely compromise it.

Duty to Consult

The SCC unanimously held that the Minister’s conclusion that the Crown had met its duty to consult and accommodate with the Ktunaxa under s. 35 of the Constitution Act, 1982, and thus his decision to approve the MDA, were reasonable.

The SCC held that the Crown’s consultation with the Ktunaxa was properly characterized by the Minister as “deep” consultation and was adequate, even though the Ktunaxa ultimately did not achieve their desired outcome to cancel development of the resort in Qat’muk to protect the Grizzly Bear Spirit. In so finding, the Court highlighted several important principles of consultation. It noted that the steps in the consultation and accommodation process (first articulated by the SCC in Haida Nation), are “offered as guidance to assist parties in ensuring that adequate consultation takes place”, but the process is not intended as a “rigid test or a perfunctory formula.”[i] Rather, what matters is “whether in fact the consultation that took place was adequate” and whether the process was consistent with the honour of the Crown.[ii] The SCC noted, for example, that it is possible for the Crown to mischaracterize a right and still fulfill the duty to consult.[iii] In addition, “the s. 35 obligation to consult and accommodate is a right to a process, not to a particular outcome” and “s. 35 does not give unsatisfied claimants a veto over development.”[iv]

The SCC also found that the Ktunaxa’s petition for a declaration that Qat’muk is sacred and that permanent construction should be banned from the site was an improper use of the judicial review process. A court that is in judicial review of an administrative decision which centres on the adequacy of consultation, is not equipped to pronounce on the validity of an unproven claim to a sacred site and associated spiritual practices. Similarly, administrative decision-makers may need to assess the prima facie strength of unproven claims, but proving Aboriginal rights claims requires a trial in which evidence can be tested, and “with the benefit of pleadings, discovery, evidence and submissions.”[v] The SCC recognized the concerns raised by the Ktunaxa if their claimed right were not protected, but noted that “in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket.”[vi] The SCC also commented that injunctive relief to delay a project may also be available in such cases.[vii]


This decision is significant for a number of reasons:

  1. It restricts Aboriginal spiritual rights claims under the Charter

First, it restricts the types of Aboriginal spiritual rights claims that will engage freedom of religion protections under the Charter. In particular, the fact that certain land is sacred to an Aboriginal group does not mean that any development of that land would violate the freedom of religion of the specific group. The development must interfere in a non-trivial way with the Aboriginal group’s ability to hold or manifest a particular religious belief, such as interfering with an Aboriginal group’s ability to engage in a particular spiritual practice on a specific area of land.

Moreover, even if there is an infringement of freedom of religion, this does not mean a development cannot proceed because the religious freedoms of the particular Aboriginal group must be balanced with the relevant statutory objectives at issue. The majority reasoning did not address this balancing exercise because they concluded that freedom of religion was not engaged in this case. However, the minority concurring opinion did so and the reasoning suggests that broad Aboriginal spiritual rights claims that effectively amount to a power of exclusive use or veto over land use will not meet a proportionality test. While this is in the Charter context, the decision further underscores the balance and compromise that is necessary on both sides in Aboriginal rights disputes and the risk that Aboriginal groups take in putting forward absolutist positions.

  1. It emphasizes that consultation is a “two-way street”

The SCC repeated the well-established principle that there are reciprocal obligations on Aboriginal groups to facilitate the process of consultation and accommodation by, among other things, setting out claims clearly and as early as possible, not frustrating the Crown’s reasonable good faith attempts at consultation, and not taking unreasonable positions to thwart the Crown from making decisions where agreement cannot be reached, despite meaningful consultation.[viii]

In its review of the facts, the SCC noted the extensive consultation that took place over two decades, and which in the Minister’s view, had come to a conclusion in 2009. The SCC noted that there had been multiple occasions up to that point in which the Crown offered accommodation and the Ktunaxa had the opportunity to raise concerns, but they did not raise any specific concerns regarding the Grizzly Bear Spirit and the sacred nature of the Jumbo Valley. Rather, by 2009, the Minister had concluded that the Ktunaxa’s outstanding concerns related primarily to interests other than their asserted Aboriginal rights and title claims.[ix]

Only after the Minister had concluded consultation was complete, did the Ktunaxa first raise the specific concerns regarding the Grizzly Bear Spirit and take the new position that no accommodation was possible and that a complete rejection of the resort was the only solution. At that late stage, the Ktunaxa indicated that there was no point in any further consultation, although the Minister attempted to further consult. The late and uncompromising approach taken by the Ktunaxa in asserting their new claim was noted by all three levels of court, and in our view was not an insignificant factor in assisting the courts with reaching their decision. This decision therefore sets a strong example of the importance placed by the courts on the reciprocal obligations of Aboriginal groups in consultation.

  1. It re-confirms that s.35 provides a right to a process, not to a veto or the right to consent

The SCC confirmed that the process of consultation does not provide any guarantee that the specific accommodation sought by an Aboriginal group will be warranted or possible. The ultimate obligation, rather, is that the Crown act honourably.[x] The Court went on to emphasize that the duty to consult does not provide Aboriginal groups a veto over development and that “where adequate consultation has occurred, a development may proceed without the consent of an Indigenous group”.[xi] The SCC reiterated that “consent is required only for proven claims, and even then only in certain cases”, such as in cases of established Aboriginal title.[xii]

Justice Moldaver’s concurring reasons regarding freedom of religion also recognized the difficult position that the Minister was placed in to either fulfill his statutory objectives or to provide the Ktunaxa with what would amount to a veto right against any development over fifty square kilometres of Crown land, on the basis of unproven claims. In his view, the Minister’s rejection of such a veto right was reasonable in light of his statutory objectives, while limiting the Ktunaxa’s right as little as reasonably possible.[xiii]

[i] Para. 81.

[ii] Paras. 81, 83.

[iii] Para. 104, citing Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at paras. 38-39.

[iv] Para. 83.

[v] Paras. 84, 85.

[vi] Para. 86.

[vii] Para. 86.

[viii] Paras. 79, 80

[ix] Para. 31.

[x] Para. 79.

[xi] Para. 83.

[xii] Para. 80.

[xiii] Paras. 119, 120


BCCA Rules Civil Jury Fees Are Constitutional

Posted in Case Comments
Byron Shaw


On September 15, 2017, the B.C. Court of Appeal rejected a challenge by the Trial Lawyers Association of British Columbia (“TLA”) to the constitutionality of legislation requiring civil litigants opting for a jury trial to pay the fees and expenses of the jury and jury process. TLA 2017[1] holds that provinces may impose such fees without interfering with the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867.[2]
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The duty to disclose Mary Carter agreements immediately: new guidance from the BC Court of Appeal

Posted in Case Comments
Connor Bildfell

Mary Carter agreements are settlement agreements between a plaintiff and defendant in multiparty litigation wherein the defendant ostensibly remains an active party to the litigation while the plaintiff’s claim in fact targets the other parties. On September 5, 2017, the B.C. Court of Appeal (the “Court“) released its decision in Northwest Waste Solutions Inc. v. Super Save Disposal Inc., 2017 BCCA 312 affirming that Mary Carter agreements must be disclosed immediately and outlining potential remedies for a failure to make such disclosure. Parties and their counsel will need to keep this in mind when considering the merits of entering into a Mary Carter agreement. In the event that such agreements are entered into, parties must act quickly to discharge their now-clear duty of disclosure.

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Does the Duty to Inform Apply Solely to the Contracting Parties?

Posted in Case Comments, Contracts
Gabrielle BaracatPaul Blanchard

In Camions Daimler Canada ltée v. Camions Sterling de Lévis inc., 2017 QCCA 798, the Quebec Court of Appeal confirmed that the duty to inform that exists between contracting parties, which has been recognized as a general principle of Quebec contractual law since the early 1980s, may also apply to third parties, insofar as they might be impacted by the contractual relationship.

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Ivic. v. Lakovic: vicarious liability is no short-cut to compensation

Posted in Case Comments, Criminal, Employment Law
Kosta Kalogiros

On June 2, 2017, the Ontario Court of Appeal decided, in what it described as a case of first impression, that a taxi company was not vicariously liable for a sexual assault allegedly committed by one of its employees, absent any evidence of fault on its part.

Following the Court’s review and affirmation of the leading jurisprudence on vicarious liability, it is doubtful that any car passenger service company could be found liable for the independent and wrongful criminal conduct of its drivers.


The Appellant was intoxicated and feeling unwell while at a party. The Appellant’s friend ordered her a taxi from the Respondent company. A taxi was dispatched and arrived at the party to transport the Appellant. The Appellant subsequently alleged that she was sexually assaulted in the taxi, by the taxi driver.

The driver had no criminal record. There was no evidence that he had, or that the taxi company had any knowledge that he might have, a propensity for, or history of, sexual or other violence.

The Appellant sued the driver and taxi company, alleging vicarious liability, negligence, and breach of fiduciary duty. She did not allege breach of contract.

The Respondent company brought a successful summary judgment motion. Notably, for the purpose of the summary judgment argument, it was assumed that the accused driver was an “employee” of the Respondent company, even though evidence had been filed to suggest he was an employee of the owner of the taxi.

The Appellant only challenged the motion judge’s dismissal of the claim of vicarious liability.

The Motion Judge’s Decision

The motion judge relied on the Supreme Court of Canada’s decision in Bazley v. Curry to dispose of the vicarious liability argument. The motion judge noted that the wrongful acts at issue were “only coincidentally linked” to the Respondent taxi company’s activities and that imposing vicarious liability in the circumstances did not accord with common sense notions of fairness.

The motion judge did not, as Appellant argued and the Court accepted, undertake an express analysis of the five factors established by the Supreme Court of Canada in Bazley.

The Court’s Decision

The Court held that deference was not owed on the proper application of the law of vicarious liability to the facts of the case. As such, the Court undertook its own analysis of the Bazley factors before affirming the motion judge’s decision.

Before conducting the Bazley analysis, the Court revisited the two major policy rationales for imposing vicarious liability: victim compensation and deterrence of future harm.

The Court, relying on Bazley, considered the imposition of liability for wrongs that were only “coincidentally linked” to employer activity as incompatible with the policy goals. Quoting McLachlin J. (as she then was), the Court noted that: “where vicarious liability is not closely and materially related to a risk introduced or enhanced by the employer, it serves no deterrent purpose, and relegates the employer to the status of an involuntary insurer.”

The Court applied the five non-exhaustive Bazley factors and concluded that the Respondent taxi company did not significantly or “materially” increase the risk of the Appellant being sexually assaulted by permitting the accused driver to drive the taxi and dispatching him to drive the Appellant. As such, the link required to impose vicarious liability and further the primary policy goals was absent.

With respect to the first Bazley factor—the opportunity that the enterprise afforded the employee to abuse his or her power—the Court was of the view that this was a question of degree and that the opportunity provided to the accused driver was not as significant as that found in other cases. While the opportunity afforded to the driver to abuse his or her power was “not negligible” (in that taxi drivers often have power over intoxicated lone passengers), it was not as substantial as the opportunity in Bazley where child caregivers were alone with vulnerable children for extended periods of time and during intimate activities, such as bathing or toileting.

As for the second and third factors—the extent to which the wrongful act may have furthered the employer’s aims and the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise—the Court found no connection between the driver’s conduct and the taxi company’s aims or any friction, confrontation or intimacy inherent in the taxi driver and passenger relationship. The Court noted that the taxi company’s Rules and Regulations specifically sought to prevent physical contact and harassment by prohibiting the touching of passengers or crossing of other boundaries.

As for the fourth factor—the extent of power conferred on the employee in relation to the victim—the Court found that no power was conferred other than for the driver to drive the Appellant. According to the Court, “the relationship between the driver and the Appellant was that of adult driver and adult fee-paying passenger… what power the driver had, he arrogated to himself through his own decisions.”

Finally, with respect to the fifth factor—the vulnerability of potential victims to wrongful exercise of the employee’s power—the Court accepted that the passenger was vulnerable, but noted that the power wrongfully exercised by the driver was not predicated on his employment. Vulnerability alone, according to the Court, was not enough to provide the “strong link” necessary to impose no-fault vicarious liability.

The Court concluded that the Bazley factors did not support the imposition of vicarious liability and that the Appellant had not demonstrated how the broader policy rationales of fair compensation and deterrence would have been furthered by imposing liability.

Significance of the Court’s Decision

As more consumers rely on car based transport services, the Court’s decision provides welcome clarity to the division of liability between a transport company and its drivers (assuming the latter are actually employees, which may not be the case in all instances) for wrongful conduct on the latter’s part.

To the extent any aggrieved passenger intends to make a claim against a passenger service company for the conduct of its drivers, it will simply have to rely on traditional grounds of direct liability.

The Court has also sent a clear message that vicarious liability is not meant to be a “deep-pockets” rule that assures a wronged party obtains some compensation when other remedies either do not exist or are not effective. Although the Court acknowledged that the lack of an effective remedy for survivors of sexual assault was a matter of public concern, it was not prepared to address this concern by passing the burden to employers on a no-fault basis.

While the Court’s decision no doubt has broad implications for a whole host of other enterprises, each instance of employee misconduct will have to be assessed on its own accord. To that end, we know the Bazley factors remain the guiding principles for the task and that no-fault vicarious liability will not be awarded in the absence of a strong and material connection between the misconduct and the employer’s enterprise.

Case Information

Ivic v Lakovic, 2017 ONCA 446

Docket: C62820

Date of Decision: June 2, 2017

The SCC versus the “culture of complacency”: R. v. Cody

Posted in Case Comments, Criminal
Emily MacKinnonAdriana Forest

In R v. Cody, 2017 SCC 31, the Supreme Court of Canada reiterated its earlier call for reform to the criminal justice system, criticizing a “culture of complacency” toward delays. The Court’s insistence on reform may be good news for participants in the civil justice system, too, who have seen many civil actions delayed as courts devote their limited resources to clearing their criminal dockets. Continue Reading

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. Continue Reading

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. Continue Reading

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. Continue Reading

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. Continue Reading

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] Continue Reading

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

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