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This Week at the SCC (24/05/2013)

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

Posted in This Week at the SCC
Anthony Alexander

The Supreme Court of Canada has released two judgments and one leave-to-appeal ruling likely to be of interest to Canadian business and professionals.

In Cojocaru v. British Columbia Women’s Hospital and Health Centre, a unanimous Supreme Court overturned (in part) a ruling of the British Columbia Court of Appeal.  The BCCA had ruled that the trial judgment must be set aside because the trial judge had, in his reasons, incorporated very large portions of the submissions made by counsel for the plaintiff.  Chief Justice McLachlin concluded that the incorporation of parties’ submissions in judgments is common practice in both Canada and abroad.  Such practice is only problematic if a reasonable person would conclude that, in thus utilizing the parties’ submissions, the trial judge failed to put her mind to the issues and thereby failed to decide them impartially and independently.  The ruling in question did not rise to this level.  The Supreme Court went on to affirm the Court of Appeal’s decision that the findings of liability against several physicians, a nurse and the hospital should be set aside.

In Daishowa-Marubeni International Ltd. v. Canada, a taxpayer had sold forestry property to a purchaser.  The property was subject to a binding legal obligation to undertake reforestation.  The purchaser agreed to assume this liability.  The MNR required the taxpayer to include, in its “proceeds of disposition,” the estimated costs of reforestation thus assumed by the purchaser.   The Federal Court of Appeal had sided with the tax authority.   The Supreme Court reversed this ruling, concluding that the future reforestation expense assumed by the purchaser of the property was an obligation embedded in the tenure itself, and was not a separate existing debt of the taxpayer that had been assumed by the purchaser as part of the sale price.

In Robert G. Leonidas v. Treat America Limited, the Court refused leave to appeal from a ruling of the Ontario Court of Appeal.   In the context of competition law class actions commenced in the United States (and an investigation by the Canadian Commissioner of Competition), letters of request had been sent to the Ontario Superior Court by the U.S. plaintiffs, seeking to compel a senior officer of a Canadian corporation to provide oral testimony under oath.  Both the Superior Court and Court of Appeal had ordered that the letter of request be enforced.

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.