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

Monthly Archives: September 2011

Will Your Companies’ Creditors Arrangement Act Superpriority Still Be that Super once the Scheme of Collocation is Drawn Up?

Posted in Bankruptcy and Debt, Case Comments, Construction and Real Estate, Financial Services

Rachel LaferrièreIn the context of an arrangement plan pursuant to the Companies’ Creditors Arrangement Act, a financial institution was granted a superpriority on all moveable and immoveable debtors’ assets following an additional $2,150,000 loan to the debtor, in order to allow it to complete some construction projects it had already started and for which it already owed $720,000 to construction subcontractors and providers.

The same financial institution was already a creditor for more than $4,000,000 guaranteed by hypothecs on various immoveable properties belonging to the debtor.… Continue Reading

OCA Finds Judges Cannot Decide Issues Not Before the Court

Posted in Case Comments, Procedure

The latest round in a high-profile fight over National Hockey League sponsorship rights ultimately turned on a point of civil procedure and underscored need for judgments to be tied to the submissions of the parties.  In turn, this decision provides an answer to the question of what to do when the judge reaches a conclusion that was not urged by any of the parties.

Following the expiration of its sponsorship deal with the NHL, Labatt sought to negotiate a new agreement.  Labatt had a 60-day exclusive negotiation period.  Ultimately, the NHL sided with rival beer company Molson.  Labatt sought an … Continue Reading

SCC to Reconsider the “Material Contribution” Test for Causation

Posted in Case Previews, Class Actions, Professions, Torts

The Supreme Court of Canada has granted leave in an appeal that may significantly limit liability in tort.  The case, Clements v. Clements, will require the Court to reconsider the “material contribution” test for causation, and in particular, whether it should be restricted to two narrow situations.

Decisions Below

In the judgment below, Clements (Litigation Guardian of) v. Clements, the British Columbia Court of Appeal found that the driver of a motorcycle was not liable to his passenger for injuries sustained as the result of an accident.  The driver was travelling at excessive speeds, and had overloaded the

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SCC to Rule on Movie Soundtracks

Posted in Case Previews, Intellectual Property

In the appeal of Re:Sound v. Motion Picture Theatre Associations of Canada, the Supreme Court of Canada will be called upon to determine whether there is a right to equitable remuneration under section 19 of the Copyright Act when a pre-existing sound recording is incorporated in the soundtrack that accompanies a motion picture or a television program. The Copyright Board of Canada decided that there is no such right in this situation, and the Federal Court of Appeal dismissed the application for judicial review.… Continue Reading

FCA to Consider Deductibility of Contributions to a Sickness and Accident Insurance Plan for Single Employee

Posted in Case Previews, Tax

Are contributions to a particular sickness and accident insurance plan for a single employee deductible for tax purposes?  The Federal Court of Appeal will decide that issue when it hears the taxpayer’s appeal in Labow v. R. in Ottawa on October 4th.

The taxpayer, Dr. Labow, is a surgeon and professor of surgery. With the help of an Ottawa lawyer, he set up a trust to provide employee sickness and accident insurance and to pay medical, dental and vision care expenses. Dr. Labow had three employees in his office in the relevant taxation years, one of whom was his wife. … Continue Reading

OCA to Consider Contractual Termination Right Due to Tarnished Reputations

Posted in Case Previews, Contracts, Media

The Ontario Court of Appeal will consider whether a party to a sponsorship agreement can terminate the agreement where the counterparty suffers a loss of public reputation.

This case involved a sponsorship relationship between the Canadian Soccer Association and Hyundai Auto Canada Corporation. Hyundai agreed to be a sponsor of the Association, agreeing to pay annual fees for broadcast and related rights.

In late 2007, the Association suffered adverse media coverage after it hired and then within a very short period of time terminated its chief operating officer. The president of the Association resigned shortly thereafter, leading to press reports

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OCA to Consider ESA Obligations In CCAA Proceedings

Posted in Bankruptcy and Debt, Case Previews, Labour and Employment

The Court of Appeal will be called upon to determine whether Employment Standards Act obligations, such as termination and severance pay, can be discharged by a Debtor-in-Possession in a CCAA proceeding.

In Windsor Machine, Justice Morawetz heard an application by the union representing the employees of a debtor company. The debtor company had terminated all its employees after being placed into CCAA protection.

The union asserted the statutory rights of the employees to severance and termination pay under the Employment Standards Act (ESA), and argued that the statutory right ought to be discharged out of the assets of the

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Is “Prejudice” in Security for Costs Only One Factor to Consider?

Posted in Case Comments, Procedure

The Alberta Court of Appeal’s decision, denying leave to appeal in Autoweld Systems Ltd. v. CRC-Evans Pipeline International Inc., provides authority for maintaining a security for costs order against a company with few assets. This decision will prove a useful authority to clients wishing to stop litigation where the plaintiff is a party unable to pay a costs award.

The Applicant, Autoweld Systems Limited, sought leave to appeal a security for costs order made by the case management judge in favour of the respondents CRC-Evans Pipeline International Inc., CRC-Evans Automatic Welding Inc., Malcom Timothy Carey and Richard Lee Jones.

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FCA to Review Discretion to Decline Band Members Retroactive Tax Relief

Posted in Aboriginal, Administrative, Case Previews, Tax

On September 1, the Attorney General of Canada appealed the finding of the Federal Court in Abraham v. Canada, that the Minister of National Revenue had erred in denying members of the Sagkeeng Band tax relief on wages earned while working in a mill located on former reserve lands.

The Band members had contended that relief was due because of the surrounding circumstances surrounding the sale of the reserve land. In 1926, the Band received an offer to sell part of their Reserve land for the purposes of building a mill. The Band initially rejected the offer, saying that … Continue Reading