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

Monthly Archives: May 2012

Aboriginal Rights – Whose rights are they anyways?

Posted in Aboriginal, Case Previews

The Supreme Court of Canada recently granted leave to appeal from the judgment of the BC Court of Appeal in Sally Behn et al. v. Moulton Contracting Ltd. et al.. This appeal addresses a critical issue in aboriginal law – do aboriginal rights belong to individuals, or only to communities? Aboriginal communities and commercial interests alike will closely watch this appeal.


The Behns are individual members of the Fort Nelson First Nation (the “First Nation”) who allegedly blocked a road required by Moulton Contracting Ltd (“Moulton”) to engage in logging activity. The Behns’ defence alleged that (i) Moulton … Continue Reading

Order in the Court? The Van Breda Trilogy – Part III – Forum Non Conveniens

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

Among the significant changes introduced by the Van Breda Trilogy is guidance from the Supreme Court of Canada on the forum non conveniens test. Although in many respects the judgments in Van Breda, Black and Éditions Écosociété would appear to simply reaffirm the existing forum law, LeBel J.’s judgments are notable for three reasons. First, the language in the Trilogy suggests that motion courts will continue to be given considerable discretion in decisions on forum non conveniens and that reviewing courts will not have a clear framework with which to assess the propriety of decisions at first instance. The

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Providing Debt Financing Does Not Necessarily Equal Control: “Canadian-Controlled” under s.16(3)(c) of the Telecommunications Act Clarified

Posted in Case Comments, Communications

Subsections 16(1) and 16(3) of the Telecommunications Act currently require most telecommunications common carriers operating in Canada to be Canadian-owned and controlled. While the interpretation of Canadian-owned is fairly uncontroversial, there has been much debate about the meaning of Canadian-controlled.

Globalive Wireless Management Corp. v. Public Mobile Inc. is a long-running case that has considered whether several factors, and particularly majority debt financing by a non-Canadian entity, contravene the Canadian-control requirement and thus the eligibility to operate as a Canadian telecommunications carrier.

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Dunsmuir and the Demise of Deference – or – why Ministers just can’t get no respect

Posted in Administrative, Case Comments


In a judgment illustrating how the Dunsmuir analysis is to be applied to ministerial decisions, Mainville J.A. for the unanimous Federal Court of Appeal (the “FCA”) ruled that a Minister is not entitled to the same level of deference as an administrative tribunal when interpreting their ‘home’ statute(s). This decision arises out of an appeal brought by the Minister of Fisheries and Oceans (the “Minister”) of the Judgment of Justice Russell of the Federal Court (the “FC”) in 2010 FC 1233, in which Russell J. found the Minister’s discretion does not “‘legally protect’ critical habitat under s. 58

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U.S. Supreme Court Refuses to Adopt a Bright-Line Rule on Limitation Periods for Corporate Insider Profit Claims

Posted in Case Comments, Corporate Law, Procedure, Securities

There is little law in Canada regarding if and how limitation periods applicable to statutory causes of actions in securities legislation can be tolled. For many public companies, this can create uncertainty regarding whether investor lawsuits are statute-barred.

For example, the limitation period in s. 138 of the Ontario Securities Act, which covers causes of action brought in respect of misrepresentations in prospectuses, offering memoranda and circulars, is the earlier of 180 days after the plaintiff first had knowledge of the facts giving rise to the cause of action, or three years after the date of the transaction that

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