Are lower courts obliged to follow precedents of the Supreme Court of Canada, even if those precedents are decades-old and have been the subject of extensive criticism? And when should the Court overrule one of its own precedents? The Court recently addressed both of these questions in Canada v. Craig, a tax case involving the deductibility of losses from a lawyer’s horse racing business. Notably, in this case the Court overruled a precedent from 1977, on the basis that there were compelling reasons indicating that the precedent was wrongly decided. At the same time, the Court held that the
The Supreme Court has granted leave to appeal in a case that may elucidate the scope of discovery under Nova Scotia’s “semblance of relevance” test, in addition to the scope of settlement privilege and the entitlement of non-settling parties to know the settlement amounts under a Pierringer agreement in advance of the trial.
The constitutionalization of private international law has been one of the major projects of the Supreme Court of Canada since the decision in Morguard. However, the precise relationship between the Constitution, and the “real and substantial connection” test, has yet to be fully defined. In the Van Breda Trilogy, the Supreme Court returned to this issue, and sought to provide private international law with a clearer constitutional foundation. Paradoxically, the result is a new approach to the role of superior courts and provincial legislatures in the Canadian federation, which raises more questions than it answers.
The Supreme Court of Canada agreed earlier this summer to hear the appeal in Patricia McLean v. Executive Director of the British Columbia Securities Commission, an interesting case that raises several legal issues relevant to provincial securities commissions and the extra-provincial reach of securities litigation. With the Court’s decision last week to dismiss the leave application in Torudag, McLean provides the Court with a unique opportunity to opine on extra-provincial issues in the securities regulation context. The specific issues in McLean deal with the scope of the “public interest” power of securities commissions as it relates to out-of-province
This winter, the SCC will have the opportunity to clarify how the courts should go about determining how strictly to interpret restrictive covenants where they relate to both an employment agreement and the sale of a business. The opportunity arises from the Supreme Court’s decision to grant leave in Guay Inc. c. Yannick Payette et autres, where the Québec Court of Appeal upheld the enforceability of broadly-framed non-competition and non-solicitation clauses (or restrictive covenants), despite findings by the trial judge below that the employee, Mr. Payette, had been wrongfully terminated and that the restrictive covenants were too broad to