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

There are times when you don’t want to make partner…

Posted in Case Comments, Labour and Employment, Professions


Recently, the Supreme Court of Canada (“SCC”) and the Supreme Court of the United Kingdom (“UKSC”) both had cause to consider the nature of partnership, and when certain protections due to employees or workers are extended to partners. While the two cases presented very different scenarios – the Canadian case concerning human rights, and the UK decision concerning employment rights – both decisions suggested that partners may indeed be employees in certain situations.

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Can Civil Procedure Rules Limit Inherent Jurisdiction?

Posted in Case Comments, Procedure

This was an appeal by Burton Canada Company (“Burton”) of the decision of the Chambers Judge, Justice Gregory M. Warner, dismissing Burton’s application for summary judgment. The decision of Justice Warner was upheld, and the appeal dismissed. This decision may have far-reaching implications, as the majority of the Nova Scotia Court of Appeal holds that changing the Civil Procedure Rules can restrict the inherent jurisdiction of a Court. Although the decision was not made on this basis, this dicta may have radical implications for the inherent jurisdiction of superior courts to deal with their procedural rules.

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Different but Hopefully Equal? Federal and Provincial Employment Standards to be Considered by the Supreme Court

Posted in Administrative, Case Previews, Labour and Employment

The Supreme Court of Canada has granted leave in an appeal about whether provincial or federal legislation governs workplace compensation for federal workers.  If the decision of the Court of Appeal in Martin v. Alberta (Workers’ Compensation Board), 2012 ABCA 248 is upheld, federal workers may find that their claims for accident-related compensation will be determined by provincial standards rather than solely the provisions of the federal Government Employees Compensation Act. … Continue Reading

Aboriginal Rights – Whose rights are they anyways?

Posted in Aboriginal, Case Previews

The Supreme Court of Canada recently granted leave to appeal from the judgment of the BC Court of Appeal in Sally Behn et al. v. Moulton Contracting Ltd. et al.. This appeal addresses a critical issue in aboriginal law – do aboriginal rights belong to individuals, or only to communities? Aboriginal communities and commercial interests alike will closely watch this appeal.


The Behns are individual members of the Fort Nelson First Nation (the “First Nation”) who allegedly blocked a road required by Moulton Contracting Ltd (“Moulton”) to engage in logging activity. The Behns’ defence alleged that (i) Moulton … Continue Reading

Dunsmuir and the Demise of Deference – or – why Ministers just can’t get no respect

Posted in Administrative, Case Comments


In a judgment illustrating how the Dunsmuir analysis is to be applied to ministerial decisions, Mainville J.A. for the unanimous Federal Court of Appeal (the “FCA”) ruled that a Minister is not entitled to the same level of deference as an administrative tribunal when interpreting their ‘home’ statute(s). This decision arises out of an appeal brought by the Minister of Fisheries and Oceans (the “Minister”) of the Judgment of Justice Russell of the Federal Court (the “FC”) in 2010 FC 1233, in which Russell J. found the Minister’s discretion does not “‘legally protect’ critical habitat under s. 58

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The UK Supreme Court to Decide: Whither the Risk Free Injunction?

Posted in Case Previews, Corporate Law

The United Kingdom Supreme Court recently granted permission to Barclays Bank plc to appeal the decision of the Court of Appeal that the Financial Services Authority (the “FSA”) need not provide a cross-undertaking for damages in favour of third-parties impacted by an injunction requested by the FSA. This hearing promises to be closely watched by Canadian regulators and Courts alike, both of whom rely heavily on English injunction jurisprudence.

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When is it “Not Reasonable” to Deny the Cross-Examination of an Expert?

Posted in Aboriginal, Case Comments, Labour and Employment


Cross-examining experts is the primary way in which competing expert opinions are tested in the adversarial process.

The Alberta Court of Appeal in its recent decision in Johnson v. Alberta (Appeals Commission for Alberta Workers’ Compensation) recently determined that a decision not to allow a cross-examination may not be reasonable, in particular where without a cross-examination it may be difficult to resolve a difference of opinion between competing experts in a “fair, justified and transparent manner.”

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Regulating the Regulator – Pembina intervenes after the fact

Posted in Administrative, Case Comments, Energy

In a decision providing ammunition for public interest groups denied an opportunity to intervene before a regulator, the Alberta Court of Appeal denied leave to Pembina on the issue of whether the Alberta Utilities Commission made various errors in approving a power plant.

This blog entry, however, will address only the fact that Pembina was granted standing before the Court of Appeal, despite not having intervened in this matter before the Commission.

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The Law Related to Priority – Moot or Not Moot?

Posted in Bankruptcy and Debt, Case Previews

The Alberta Court of Appeal will hear the appeal of Transportaction Lease Systems Inc on the issue of whether a previous judge:

  1. ruled that the appeal in a CCAA matter was not moot; and
  2. concluded, in any event, that the appeal was not moot.

This confusing issue stems from the lease from Transportaction of vehicles and other equipment to Skyreach under a Master Lease Agreement. Companies leasing equipment will want to follow this appeal closely, as it may ultimately change how Courts will view priority.

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Is “Prejudice” in Security for Costs Only One Factor to Consider?

Posted in Case Comments, Procedure

The Alberta Court of Appeal’s decision, denying leave to appeal in Autoweld Systems Ltd. v. CRC-Evans Pipeline International Inc., provides authority for maintaining a security for costs order against a company with few assets. This decision will prove a useful authority to clients wishing to stop litigation where the plaintiff is a party unable to pay a costs award.

The Applicant, Autoweld Systems Limited, sought leave to appeal a security for costs order made by the case management judge in favour of the respondents CRC-Evans Pipeline International Inc., CRC-Evans Automatic Welding Inc., Malcom Timothy Carey and Richard Lee Jones.

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Litigating In the Dark: Providing Information to Interveners

Posted in Administrative, Case Previews, Energy

Taylor Processing Inc. applied for various approvals from the Energy Resources Conservation Board to operate a co-stream project at its Harmattan plant. Inter Pipeline Fund and BP Canada Energy Company were interveners. Both the Fund and BP opposed Taylor’s application. The Board gave conditional approval to Taylor’s project. This appeal will determine whether the Board gave adequate reasons when assessing the evidence, and whether the Board breached its duty of procedural fairness.

Decision Below

BP and the Fund were permitted to submit information requests to Taylor. The responses from Taylor were inadequate and some answers indicated that Taylor did not … Continue Reading