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This Week at the SCC (12/04/2013)

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

Posted in This Week at the SCC
Brandon Kain

The Supreme Court of Canada granted leave to appeal this week in three cases of interest to Canadian businesses and professions.

The first involves a series of related appeals from Banque de Montréal c. Marcotte, 2012 QCCA 1396, Fédération des caisses Desjardins du Québec c. Marcotte, 2012 QCCA 1395  and Amex Bank of Canada c. Adams, 2012 QCCA 1394.  The appeals arise in the context of class actions alleging that the defendant banks failed to disclose foreign exchange conversion charges on credit cards in the way required by the Quebec Consumer Protection Act.  They raise the questions of whether the Consumer Protection Act is constitutionally inapplicable or inoperative to regulate bank-issued credit cards based on the doctrines of interjurisdictional immunity or paramountcy.  The Supreme Court’s decision in these appeals could be important for any businesses that are subject to provincial consumer protection legislation if they are also involved in federal works and undertakings, or are governed by an overlapping federal statutory regime.

The second case is an appeal from Canada (A.G.) v. Canadian National Railway Company, 2012 FCA 278.  It asks whether the Governor in Council’s authority to vary or rescind decisions of the Canadian Transportation Agency on petition under s. 40 of the Canada Transportation Act can be exercised where the decision involves a question of law or jurisdiction.  As well, the case raises the issue of whether the standard of review applicable to the Governor in Council on such matters should be determined by the legal framework established in Dunsmuir v. New Brunswick, 2008 SCC 9.  Given the wide variety of statutory provisions which enable the federal and provincial cabinets to overturn administrative decisions, and the lack of post-Dunsmuir jurisprudence addressing them (the current leading case being Canada (A.G.) v. Inuit Tapirisat, [1980] 2 SCR 735), the Canadian National Railway decision could prove to be a milestone in modern administrative law, and will likely have a significant impact on businesses throughout Canada.

The third case from which leave to appeal was granted is Bombardier inc. c. Union Carbide Canada inc., 2012 QCCA 1300.  At issue before the Supreme Court will be whether a party can make allegations in relation to a failed mediation in its pleadings, in order to prove the existence of a disputed transaction.  The mediation in Bombardier was carried out under a mediation agreement that precluded the parties from alleging, referencing or seeking to put into evidence in any proceeding anything that transpired at the mediation.  On March 25, 2013, the Supreme Court of Canada reserved judgment in a case involving the scope of settlement privilege: Sable Offshore Energy Inc. v. Ameron International Corporation, which we discussed in a previous post.  It will be interesting to see what approach the Court takes in these two cases to confidentiality rights in alternative dispute resolution processes.

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.