Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

Monthly Archives: August 2011

SCC to Consider the Relevance of Attornment to the Analysis of an Ontario Court’s Jurisdiction

Posted in Case Previews, Procedure

Should an Ontario court refuse to assume jurisdiction over the plaintiffs’ claims in the face of choice of (foreign) forum and arbitration clauses, even though the non-Ontario defendants attorned to the jurisdiction of the Ontario court? The Supreme Court of Canada will examine this issue when it hears the appeal in Momentous.ca Corporation v. Canadian American Association of Professional Baseball Ltd.

In this case, Rapidz Baseball operated a team in the Can-Am League during the 2008 season, but lost over $1 million and applied under the League’s by-laws to withdraw voluntarily because of financial hardship. The League’s Board of Directors

Continue Reading

SCC to Address Test for “Federal Undertakings” Under the Constitution

Posted in Case Previews, Communications, Constitutional, Labour and Employment, Transportation

When do parties qualify as federal transportation undertakings for purpose of s. 92(10) of the Constitution Act, 1867?  The Supreme Court of Canada will answer this question in the Tessier case, for which it recently granted leave to appeal.

Decisions Below

The appeal comes before the Supreme Court from the ruling of the Quebec Court of Appeal in Tessier ltée c. Québec (Commission des lésions professionnelles). The applicant carried on the business of renting cranes for various purposes within Quebec, including the loading and unloading of ships, along with road transportation and maintaining and repairing equipment. A small

Continue Reading

SCC to Consider the Residence of Trust for Tax Purposes

Posted in Case Previews, Corporate Law, Financial Services, Tax

The residence of trusts and other business entities for income tax purposes has long been a source of confusion.  The Supreme Court of Canada will attempt to resolve that confusion in the St. Michael Trust cases, from which it recently granted leave to appeal.

Decisions Below

The cases arise as conjoined appeals from the decision of the Federal Court of Appeal in St. Michael Trust Corp. v. Canada (sub nom. Garron (Trustee of) v. Canada). In both cases, the applicant was a Barbados-resident corporation that was the trustee of a trust with Canadian beneficiaries, which was settled by … Continue Reading

Franchisor’s Implicit Obligation of Good Faith and Loyalty

Posted in Case Comments, Corporate Law

The decision in Automobile Cordiale Ltée v. DaimlerChrysler Canada Inc., J.E. 2010-164 raises the question of the implicit obligation of good faith and loyalty in an exclusive dealership contract.

Automobile Cordiale Ltée (the Franchisee) and DaimlerChrysler Canada Inc. (the Franchisor) entered into an agreement in 1994 whereby the Franchisee was granted exclusive right to sell and lease Jeep and Eagle vehicles in the city of St-Jérôme. Between 1996 and 2003, three dealerships located near St-Jérôme sold and leased Jeep vehicles although they had no rights with respect to the Jeep banner. The Franchisee advised the Franchisor of such behaviour … Continue Reading

Litigating In the Dark: Providing Information to Interveners

Posted in Administrative, Case Previews, Energy

Taylor Processing Inc. applied for various approvals from the Energy Resources Conservation Board to operate a co-stream project at its Harmattan plant. Inter Pipeline Fund and BP Canada Energy Company were interveners. Both the Fund and BP opposed Taylor’s application. The Board gave conditional approval to Taylor’s project. This appeal will determine whether the Board gave adequate reasons when assessing the evidence, and whether the Board breached its duty of procedural fairness.

Decision Below

BP and the Fund were permitted to submit information requests to Taylor. The responses from Taylor were inadequate and some answers indicated that Taylor did not … Continue Reading

Claims for Appropriation of a Foreign Corporate Opportunity: Do Ontario Courts Have Jurisdiction?

Posted in Case Previews, Corporate Law, Procedure

On August 23, 2011, the Ontario Court of Appeal will hear an appeal on the question of whether Ontario courts have jurisdiction over a claim for appropriation of a foreign opportunity.

Decision Below

In Dundee Precious Metals Inc. v. Marsland, Corrick J. dismissed a claim by an Ontario mining company, Dundee, against an employee, Marsland, on the basis that the Ontario courts lacked jurisdiction. Dundee alleged that Marsland misappropriated a mining project in Serbia through the use of improper use of confidential information while working in Bulgaria.

Is There a Tort of Invasion of Privacy in Ontario?

Posted in Case Previews, Torts

Is there a tort of invasion of privacy in Ontario? The Ontario Court of Appeal may finally settle this stirring question in an appeal scheduled to be heard on September 29, 2011.

In Jones v. Tsige, Jones and Tsige worked at different branches of the Bank of Montreal (BMO). Jones did her personal banking with BMO. Over the course of four years and on 174 occasions, Tsige accessed and reviewed Jones’ banking records using her computer at work. Tsige admitted that she reviewed the records and that she had no legitimate work-related reason for doing so. Jones brought a

Continue Reading

Personal Liability of Class Counsel for the Costs of a Class Proceeding

Posted in Case Previews, Class Actions, Procedure, Professions

On September 26, 2011, the Ontario Court of Appeal will hear an appeal from a decision of Cullity J., who rightly characterized the issue on the motion before him as one “of considerable importance for the proper conduct of class proceedings.” The decision will be important to class counsel since it addresses the duty to explain and clearly document the risks of adverse costs consequences to their representative plaintiff clients. If upheld, the decision may also provide a potential avenue for defendants in successful class actions to seek costs where class counsel have not discharged their burden.

In Attis v.

Continue Reading

Defence Contractor Appeals Disclosure of Contractual Information

Posted in Administrative, Case Comments, Intellectual Property

In a case that will be of interest to any parties involved in government procurement, Top Aces Consulting Inc. is appealing the decision of the Federal Court to permit the disclosure of pricing information pursuant to s. 44 of the Access to Information Act. Top Aces is an airborne training services contractor that had been awarded several contracts through a standing offer process at the Department of National Defence (DND). In October 2009, the DND received an access to information request for all standing offers and contracts awarded to Top Aces since 2003. This led to a judicial review … Continue Reading

Should Redeemable-Upon-Demand Shares Be Included in Paid-Up Capital or Long-Term Debt?

Posted in Case Comments, Financial Services, Tax

Rachel LaferrièreOn January 29, 2010, the Appeal division of the Court of Quebec determined that Credit Ford Canada Ltd. did not have to include the $1,170,000,000 worth of retractable shares issued in its paid-up capital (and thus be taxed on it) and could, instead, consider it as a long-term debt. This decision alone made a $2,416,767 difference in the tax payable by Credit Ford Canada Ltd. to the Quebec government for the 2001 year only (other contestations had been filed for the 2002 and 2003 years as well).

The appeal was mainly decided on the fact that the Quebec Taxation

Continue Reading