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

Author Archives / Byron Shaw

Byron Shaw Byron Shaw is a partner in our Litigation Group in Toronto and is currently at Paul, Weiss, Rifkind, Wharton & Garrison LLP as a visiting lawyer.

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BCCA Rules Civil Jury Fees Are Constitutional

Posted in Case Comments


On September 15, 2017, the B.C. Court of Appeal rejected a challenge by the Trial Lawyers Association of British Columbia (“TLA”) to the constitutionality of legislation requiring civil litigants opting for a jury trial to pay the fees and expenses of the jury and jury process. TLA 2017[1] holds that provinces may impose such fees without interfering with the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867.[2]… Continue Reading

In Which Ontario Court Do I Bring My Constitutional Challenge?

Posted in Constitutional, Procedure

“Can a litigant challenge the constitutional validity of subordinate legislation such as a provincial regulation by bringing an application under Rule 14.05 in Superior Court or is she required to proceed by way of an application for judicial review in the Divisional Court?” Justice Belobaba says “Yes” in Di Cienzo v. Attorney General of Ontario.[1]… Continue Reading

Hamilton City’s Attempt to Stamp Out Community Mail Delivery Ruled Unconstitutional (Sort of)

Posted in Case Comments, Constitutional

In response to Canada Post’s announcement that it was restructuring its mail delivery and doing away with home delivery services, the City of Hamilton passed a by-law giving the City control over the installation of equipment on municipal roads, including Canada Post’s community mailbox (“CMB”) delivery systems. Last week, the Ontario Court of Appeal held[1] that the by-law was constitutionally inoperative to Canada Post since it conflicted with the federal Canada Post Corporation Act[2] and the Mail Receptacles Regulations.[3] The Court of Appeal’s decision highlights a tension in the pith and substance jurisprudence between the principle of … Continue Reading

Supreme Court Revisits Test for Federal Paramountcy

Posted in Bankruptcy and Debt, Case Comments

The principle of federal paramountcy provides that valid provincial legislation will be rendered inoperative to the extent it conflicts with valid federal legislation where: (1) there is an operational conflict such that it is impossible to comply with both laws; or (2) operation of the provincial law frustrates the purpose of the federal law.[1]

Like many constitutional principles, the paramountcy test is easy to state yet more difficult to apply. According to the minority of the Supreme Court in Alberta (Attorney General) v. Moloney,[2] decided together with the companion case of 407 ETR Concession Co. v. Canada (Superintendent of Continue Reading

Have Mercy! Supreme Court Clarifies Mercy Power under Criminal Code

Posted in Administrative, Case Comments, Criminal

In “Burning Love”, Elvis pleaded with the Lord to have mercy. It was coming closer. The flames were lickin’ his body. He felt like he was slipping away. It was hard to breathe. His chest was a heavy. He was burning a hole where he lay. Burning a hole with burning love. In short, Elvis was just a hunk. A hunk of burning love.[1]Continue Reading

The SCC Monitor (25/05/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor

On Thursday, May 28, 2015, the Supreme Court of Canada will release judgment on several leave applications currently before the Court, including the following.

Mangal v. William Osler Health Centre (36174)

Mangal is a medical malpractice case in which a woman died in hospital several hours after a caesarean section. The case raises the question of whether a trial judge may adopt new theories of factual causation not advanced by the parties.… Continue Reading

Supreme Court Overrules Rodriguez; Physician-Assisted Death Legal in Canada

Posted in Case Comments, Supreme Court of Canada

Physician-assisted death is permissible in Canada, for competent adults who: (1) clearly consent to the termination of life; and (2) have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of their condition. In Carter v. Canada (Attorney General),[1] a unanimous Supreme Court of Canada overruled its 1993 decision in Rodriguez v. British Columbia,[2] in which a majority of the Court upheld the blanket prohibition on assisted suicide.… Continue Reading

Ontario Court of Appeal Confirms Privilege Over Counsel and Expert Communications

Posted in Case Comments, Civil Procedure/Evidence

A little over one year ago, the Ontario Superior Court’s decision in Moore v. Getahun sent a chill through the litigation bar in Ontario. During a medical negligence trial, the trial judge criticized an expert witness for discussing a draft expert report with counsel and required disclosure of all his drafts and notes of his communications with counsel during the course of the trial.[1] The Court of Appeal’s decision has been among the most eagerly anticipated appellate decisions of this year. The decision, released on January 29th, confirms and clarifies the law prior to the trial … Continue Reading

Can I Sue the Federal Government? If so, in What Court and Where?

Posted in Case Comments

The forum in which to litigate is a difficult decision in any case that crosses provincial or national borders. It is even more complicated in claims against the federal government. The Federal Court has exclusive jurisdiction in some cases; in others, the Federal Court and the provincial Superior Court in which the claim “arises” have concurrent jurisdiction. Where the jurisdiction is concurrent and the plaintiff elects to sue in Superior rather than Federal Court, the question becomes: in which province does the claim “arise”?

The question is further complicated where there are multiple causes of action asserted. One claim may … Continue Reading

The Importance of Borders in a Borderless World: Ontario Court Stays Action for U.S. Transportation Taxes

Posted in Case Comments, Class Actions, Conflict of Laws, Tax

In Prince v. ACE Aviation Holdings Inc., the Ontario Court of Appeal stayed a class action based on allegations that Air Canada had improperly collected transportation taxes levied under the U.S. Internal Revenue Code (the “Code”). The Court’s decision highlights the difficulty in predicting the outcome of jurisdictional disputes involving e-commerce transactions. In addition, it illustrates the reluctance of our courts to permit class actions based on claims that engage the territorial sovereignty of other nations.

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Vancouver Student Protesters “Stripped” of Class Proceeding

Posted in Case Comments, Charter of Rights, Class Actions

The British Columbia Court of Appeal recently upheld the denial of certification of a proposed class action involving routine strip searches at a Vancouver city jail. Thorburn v. British Columbia (Public Safety and Solicitor General) illustrates the difficulty of certification in cases that require an individual inquiry into the facts and circumstances unique to each class member.

On April 1, 2003, Vancouver students Elise Thorburn and Christopher Jacob were arrested on charges of mischief for peacefully protesting outside the U.S. Consulate in Vancouver. Thorburn and Jacob were taken to a city jail (the “Jail”) where they received a pat-down search … Continue Reading

A Duty of Diligent Fulfillment? SCC Rules that Land Grants to Métis Children Breached Honour of Crown

Posted in Aboriginal, Case Comments

Canada breached the Honour of the Crown in the manner in which it distributed parcels of land to the children of the Métis people of Manitoba in the 1870s, according to a majority of the Supreme Court of Canada. The Court’s 6-2 decision in Manitoba Métis Federation Inc. v. Canada (Attorney General) has the potential to spur major negotiations between Canada and the Métis people over vast tracts of land in Manitoba, including what now comprises modern-day Winnipeg. The decision may also have more wide-ranging implications for federal and provincial governments in their dealings with Aboriginal peoples.


Section 31 … Continue Reading

Federal Court of Appeal Holds that Competition Act Claims are Arbitrable

Posted in Case Comments, Class Actions

In a decision released on February 14, 2013, the Federal Court of Appeal stayed a proposed class action alleging breaches of the Competition Act on the basis that the parties had agreed to a mandatory arbitration process. The Court of Appeal’s decision in Murphy v. Amway Canada Corporation deals with the difficult issue of federal and provincial court jurisdiction where the parties have chosen to incorporate a statutory regime to govern arbitrations in an arbitration agreement. The decision also grapples with the controversial issue of the validity of class action waiver provisions.


Kerry Murphy was registered as an “Independent … Continue Reading

Order in the Court? The Van Breda Trilogy – Part V – Constitutional Issues

Posted in Conflict of Laws, Constitutional, Features, Media, Procedure, Torts, Van Breda Trilogy

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.

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Order in the Court? The Van Breda Trilogy – Part IV – Choice of Law

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

At the Supreme Court of Canada, choice of law has always been the poor cousin of private international law. While the Court has shown fascination with jurisdiction simpliciter, forum non conveniens and the recognition and enforcement of foreign judgments – cases such as Morguard, Amchem, Hunt, Beals, Pro Swing and Teck Cominco come to mind – it has issued but a single judgment, Tolofson, that addresses choice of law in the modern era. The comments of American scholar Laurence Tribe, cited by the Supreme Court of Canada in Unifund, describe the traditional situation

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SCC to Determine Whether Provincial Workplace Safety Legislation Bars Negligence Claims for Deaths and Accidents at Sea

Posted in Case Previews, Labour and Employment, Torts, Transportation

Newfoundland (Workplace Health, Safety and Compensation Commission) v. Ryan Estate will provide an opportunity for the Supreme Court of Canada to reconsider the constitutional issues of interjurisdictional immunity and paramountcy since its landmark decision in Ordon Estate v. Grail.

In Ordon Estate, the Supreme Court held that provincial legislative provisions providing for derivative claims for dependents of injured persons in tort did not apply to claims based on federal maritime law, which was part of the “core” of navigation and shipping under s. 91(10) of the Constitution Act, 1867. Following Ordon Estate, Parliament enacted s. 6

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Order in the Court? The Van Breda Trilogy – Part III – Forum Non Conveniens

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

Among the significant changes introduced by the Van Breda Trilogy is guidance from the Supreme Court of Canada on the forum non conveniens test. Although in many respects the judgments in Van Breda, Black and Éditions Écosociété would appear to simply reaffirm the existing forum law, LeBel J.’s judgments are notable for three reasons. First, the language in the Trilogy suggests that motion courts will continue to be given considerable discretion in decisions on forum non conveniens and that reviewing courts will not have a clear framework with which to assess the propriety of decisions at first instance. The

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Order in the Court? The Van Breda Trilogy – Part II – A New Test for Jurisdiction Simpliciter

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

The Supreme Court of Canada’s Van Breda Trilogy – and its judgment in Van Breda in particular – endorses a new approach to jurisdiction simpliciter focused on categories of prima facie jurisdiction. Building on the Ontario Court of Appeal’s judgment, which revised the old Muscutt test, the Court has attempted to introduce greater clarity and predictability to disputes about assumed jurisdiction. Whether this will come to pass remains to be seen; it may be that Van Breda will simply change the language of assumed jurisdiction, but that actual outcomes will remain as unpredictable as ever. The list of presumptive

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Order in the Court? The Van Breda Trilogy – Part I – An Overview

Posted in Conflict of Laws, Constitutional, Features, Procedure, Torts, Van Breda Trilogy

Order in the Court? The Van Breda Trilogy – Part I – An Overview

In three cases released on April 18, 2012, the Supreme Court of Canada substantially reformulated the common law principles of private international law. In the coming weeks, Canadian Appeals Monitor will provide in-depth coverage of the Court’s judgments in Van Breda, Black, and Éditions Écosociété (the “Van Breda Trilogy”), addressing the implications of these judgments for jurisdiction simpliciter, forum non conveniens, choice of law and constitutional principles regarding the territorial jurisdiction of the superior courts and provincial legislatures. In this post

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SCC Grants Leave to Appeal in Medical Negligence Case on Causation

Posted in Case Previews, Health, Torts

The Supreme Court of Canada has granted leave to appeal in Ediger v. Johnston, a medical negligence case that addresses the test for factual and legal causation.


In Ediger, an infant suffered acute and severe hypoxia-ischemic encephalopathy (damage to the central nervous system caused by inadequate oxygen) during delivery. The injury was caused by compression of the umbilical cord. The asphyxia in turn caused a deceleration in the fetal heart rate (fetal bradycardia), which persisted until delivery. Upon delivery, the infant was non-responsive and severely brain damaged.

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ONCA to Consider Whether Non-Party to Arbitration Agreement Can Move to Stay

Posted in Case Comments, Procedure

In Shaw Satellite G.P. (c.o.b. Shaw Direct) v. Pieckenhagen, Perell J. concluded that a defendant who denies that it is a party to an arbitration agreement has no ability to move to stay an action in favour of arbitration pursuant to s. 7 of the Arbitration Act, 1991. In other words, you cannot have your cake and eat it too. The Ontario Court of Appeal will hear the appeal from Perell J.’s decision on March 21, 2012.

Decision Below

Shaw Satellite brought an action against various defendants alleged to have been involved in satellite signal theft. The Shaw

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OCA Recognizes Privacy Tort of Intrusion Upon Seclusion

Posted in Case Comments, Torts

Those of you patiently awaiting the answer to the question posed in my previous post: “Is There a Tort of Invasion of Privacy in Ontario?”, shall wait no longer. The Ontario Court of Appeal has now answered the question with a resounding, albeit slightly qualified “Yes”, in an extremely thorough judgment authored by Sharpe J.A.


In a previous post, I commented on the decision of the motion judge in Jones v. Tsige. The facts of Jones v. Tsige were summarized in my previous post as follows:

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A Full Appreciation of Rule 20: Ontario Court of Appeal Establishes New Test for Summary Judgment

Posted in Case Comments, Procedure

The Ontario Court of Appeal has now released its long-awaited reasons on the scope of the amended rule 20 of the Ontario Rules of Civil Procedure. In Combined Air Mechanical Services Inc. v. Flesch, the Court introduced a “full appreciation” test designed to provide guidance on the circumstances in which it will be appropriate for the court to resolve issues on a motion for summary judgment. As discussed below, in our view, more may be required for a “full appreciation” of the scope of amended rule 20.

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Don’t be an Ostrich: Justice Posner Opines on Appellate Advocacy in the 7th Circuit Court of Appeals

Posted in Case Comments, Procedure

The United States Court of Appeals for the Seventh Circuit released a decision on November 23, 2011 that literally illustrates an important point in appellate advocacy: don’t be an ostrich.


Monica del Carmen Gonzalez-Servin v. Ford Motor Company et al. was a consolidated appeal from two decisions concerning forum non conveniens motions. In No. 11-1665, the appellants failed to cite a decision called Abad in their opening brief or their reply brief, even though the defendants repeatedly and accurately stated that it was nearly identical to the case at bar. In No. 08-2792, the appellants discussed Abad “only a … Continue Reading