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

This Week at the SCC (17/05/2013)

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

Posted in This Week at the SCC
Brandon Kain

Cases Heard

The Supreme Court of Canada heard arguments this week in three cases of interest to Canadian business and professions, and reserved judgment in each.

The first involved two related appeals from Shoppers Drug Mart Inc. v. Ontario (Health and Long-Term Care), 2011 ONCA 830.  As we discussed in a previous post, the appeals turn on whether Ontario can enact regulations prohibiting pharmacies from selling private-label generic drugs, or whether this may only be done by statute.  The Supreme Court’s decision is likely to address several interesting legal issues regarding the vires of subordinate legislation, including whether a statutory power to regulate includes a power to prohibit, the boundaries of the administrative law discrimination doctrine, and the presumption against interference with vested and commercial rights.  The oral arguments before the Court may be viewed here and here, and the written arguments may be viewed here and here.

The second case was an appeal from Telecommunication Employees Association of Manitoba Inc. v. Manitoba Telecom Services Inc., 2012 MBCA 13.  It involves a claim by the employees and retirees of a former Crown corporation, who went from being members of its statutory pension plan to members of its new private plan.  The plaintiffs allege the employer used an initial pension surplus in a way contrary to the terms agreed upon by the parties.  The oral arguments before the Court may be viewed here, and the written arguments may be viewed here.

The third appeal heard by the Supreme Court this week was from Ontario (Environment) v. Castonguay Blasting Ltd., 2012 ONCA 165, a case we also discussed in a previous post.  The Castonguay appeal involves whether the discharge of contaminants into the natural environment must be reported under s. 15(1) of the Ontario Environmental Protection Act even if it does not cause a non-trivial adverse environmental effect, but results only in property damage.  The Supreme Court’s decision could have broad ramifications for businesses whose operations involve a significant environmental component.  The oral arguments before the Court may be viewed here, and the written arguments may be viewed here.

Leave Applications Decided

The Court also denied leave to appeal this week from several cases of interest, including the following:

(1) Fairview Donut Inc. v. The TDL Group Corp., 2012 ONCA 867, where the Ontario Court of Appeal affirmed Strathy J.’s decision to certify but grant summary judgment dismissing a class action by Tim Hortons’ franchisees.  The appeal issues proposed to the Supreme Court included the scope and effect of the franchisor’s statutory duty of fair dealing, and whether special interpretive rules apply to franchise agreements given the power imbalance in franchise relationships.

(2) Pluri Vox Media Corp. v. Canada, 2012 FCA 295, where the Federal Court of Appeal affirmed assessments under the Income Tax Act and Canada Pension Plan which held the appellant failed to withhold and remit employee taxes and make CPP contributions on behalf of an employee who the applicant claimed was an independent contractor.  The applicant argued the Supreme Court should grant leave to clarify the legal test for determining whether a worker is an employee or an  independent contractor.

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.