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This Week at the SCC (22/03/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Hovsep Afarian

The Supreme Court of Canada heard arguments in a few cases likely to be of interest to Canadian businesses and professions.

In Sovereign General Insurance Company v. Autorité des marchés financiers, the Court was asked to consider whether s. 482 of Quebec’s Act respecting the distribution of financial products and services (the “Act”) – which prohibits an insurer from facilitating a contravention of the Act — creates a strict liability offence or requires proof of specific intent.  The case arises from charges against Sovereign (who is authorized to offer insurance in Quebec) for using a broker who is not licenced in Quebec. My colleague, Rachel Laferriere, had previously written a post in respect of the Quebec Supreme Court decision.

The Court also heard arguments in Patricia McLean v. Executive Director of the British Columbia Securities Commission.  This case involves the interpretation of a limitation provision in B.C’s Securities Act which prohibits a proceeding commenced “more than 6 years after the date of the events that give rise to the proceedings”.  In this case, the appellant entered into a settlement agreement with the OSC pertaining to acts which were outside the six-year window.  Another proceeding was commenced against the appellant within the six year period following the settlement agreement.  The Court will determine whether the limitation period is measured from the date of the settlement agreement or the date of the underlying acts which formed the subject of the settlement.  My colleague, Elder Marques, had previously written a post on the leave to appeal to the Supreme Court of Canada decision.

In a third case – Her Majesty the Queen in Right of the Province of British Columbia (as represented by the Ministry of Forests) v. Teal Cedar Products Ltd. — the Court will decide whether there is equitable jurisdiction to order compound interest to a plaintiff in the face of a statutory prohibition in B.C.’s Court Order Interest Act.

The Court reserved judgment in all three cases.

The Supreme Court of Canada also refused leave to appeal this week in several cases of interest to Canadian businesses and professions.

Of note, the Court refused leave in two “overtime” class actions against financial institutions which had been certified by the Ontario Court of Appeal:  Bank of Nova Scotia v. Cindy Fulawka and Canadian Imperial Bank of Commerce v. Dara Fresco.  The availability of an aggregate assessment of damages and the preferability of an alternative procedure created by the Canada Labour Code were among the live issues in this case.

The Court also refused leave in Philip Morris Products S.A., Rothmans, Benson & Hedges Inc. v. Marlboro Canada Limited, Imperial Tobacco Canada Limited.  In this case, the Federal Court of Appeal had ruled that a company’s design trademark had infringed a competitor’s word trademark.  Thus, the Supreme Court was asked — but declined — to consider the intriguing question of whether a validly registered trade-mark can give rise to an infringement, and whether design trademarks were to receive less protection than word trademarks. My colleague, Daniel Glover, had previously written a post in respect of the Federal Court of Appeal decision.

In another case of relevance to businesses, the Court refused leave in a Quebec case which raised the question of whether an employer can eschew its notice obligations when terminating an employee, on the basis of the employer’s economic hardship:  CMP Advanced Mechanical Solutions Ltd. v. Arthur Snow.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions. The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.