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

Category Archives: Case Previews

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Northern Superior Appeals Dismissal of Aboriginal Consultation Claim Against Ontario

Posted in Aboriginal, Case Previews, Mining

A recent article, published on McCarthy Tétrault LLP’s Canadian ERA Perspectives blog may be of interest to readers of the Canadian Appeals Monitor blog.

Northern Superior Resources Inc. v. Ontario, now on its way to the Ontario Court of Appeal, raises the question of whether a resource company, rather than a First Nation, may bring a claim against the Crown arising out of an alleged breach of the Crown’s duty to consult Aboriginal peoples pursuant to s. 35 of the Constitution Act, 1982. Though the Court of Appeal is likely to limit its decision to the facts … Continue Reading

Appeals to Watch in 2015: The Appeals Monitor’s Top Ten

Posted in Case Previews, Features



I can’t predict the future and I don’t have respect for people who try to.
-Jackie Mason (1931-)

As part of the Appeals Monitor’s annual attempt to give lawyers something to talk about over the holidays other than the two traditional Canadian touchstones (weather and hockey), we are proud to once again this year present our top ten anticipated appeals for the new year.  Of course, we can’t control what the judges will actually do with these cases, but we think these are the ones worth watching.

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Securities Secondary Market Liability in Quebec To Be Discussed by the Supreme Court of Canada

Posted in Case Comments, Case Previews, Class Actions, Securities

On February 20, 2014, the Supreme Court of Canada granted leave to appeal from the first decision from the Québec Court of Appeal on the statutory secondary market liability regime adopted in 2007, pursuant to a reform of the Quebec Securities Act, R.S.Q. c. V-1.1 (“QSA”).

Material Facts

Under the QSA, Theratechnologies inc. (“Thera”) is a reporting issuer which must comply with continuous disclosure obligations. In 2009, Thera filed an application to the Food and Drug Administration (“FDA”) to commercialize a major drug called Tesamoreline. In the course of the approval process, on May 25, 2010, the FDA … Continue Reading

Appeals to Watch in 2014: The Appeals Monitor’s Top Ten

Posted in Case Previews, Features

The future ain’t what it used to be
-Yogi Berra (1925-)
Trying to predict the future is like trying to drive down a country road at night with no lights while looking out the back window.
-Peter Drucker (1909-2005)

For the second year in a row, the Canadian Appeals Monitor is arming our readers with our take on the most anticipated Supreme Court of Canada appeal decisions of the coming year.  2014 promises new guidance on key issues of public and private law affecting businesses across the country, and we have set out a Top Ten below of key cases … Continue Reading

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

A Further Limitation on the Ability of the Generic Drug Companies to Chase the Profits of Innovators?

Posted in Case Previews, Intellectual Property

Can a generic drug company bring an action for disgorgement of profits when an innovator pharmaceutical company is ultimately unsuccessful in invoking the Patented Medicines (Notice of Compliance) Regulations?  That question is now going to be determined by the Divisional Court, according to a recent decision that strikes another blow to generic drug companies in this ongoing debate.… Continue Reading

High Water Mark Test for Establishing Aboriginal Title to be Reviewed by the SCC

Posted in Aboriginal, Case Previews

The Supreme Court of Canada is set to revisit the test for Aboriginal title when it hears an appeal from the British Columbia Court of Appeal’s decision in William v. British Columbia this November. This appeal will be of particular significance to parties engaged in resource development, as it stands to affect the strength of claims to Aboriginal title over traditional territory, as well as claims to the right to fish and hunt in a given area. The trial judgment and the Court of Appeal took a restrictive view of the test for establishing Aboriginal title where proof of such … Continue Reading

Top Appeals of 2013: The Appeals Monitor Looks Forward

Posted in Bankruptcy and Debt, Case Previews, Class Actions, Features, Procedure, Professions, Torts

“Prediction is very difficult, especially about the future.”
– Niels Bohr (1885-1962)
“Weatherman wet-fingers the sky
He pokes it out, he pulls it in
He don’t know why.”
– Gordon Downie (1964- )


In the spirit of the season, Canadian Appeals Monitor has decided not only to look back on the key appeals of 2012, but also to make predictions about those Supreme Court of Canada appeals most likely to impact businesses and professionals in 2013. Predicting which appeal judgments are likely to have important and lasting effects before they are even decided involves a high degree of guesswork,

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SCC to Hear Appeal in Castonguay Blasting

Posted in Case Previews, Criminal, Environmental, Regulatory

The Supreme Court of Canada has granted leave to appeal in a case that could significantly expand the jurisdiction of environmental regulators, and increase the costs of compliance for the private sector. Castonguay Blasting will require the Court to determine whether the discharge of contaminants into the natural environment must be reported even if it does not cause an adverse environmental effect, but only results in property damage.

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What’s in a Name? Ontario Pharmacies Fight to Substitute Brand-Name Drugs with Private-Label Equivalents

Posted in Administrative, Case Previews

The Supreme Court of Canada has granted leave to appeal in a case that pits retail pharmacy chains in Ontario against the provincial government in a battle over generic drug reform. At the heart of this appeal is whether Ontario can lawfully prohibit pharmacies from selling private–label generic drugs by regulation, rather than by statute. Put another way, must the provincial government obtain the approval of the Legislature in order to prohibit the sale of certain drugs in Ontario? Engaging diverse issues at the intersection of health care policy and public finance, the outcome of this appeal could affect the

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SCC to Weigh-In on the Enforceability of Restrictive Covenants Where an Employment Relationship Follows the Sale of a Business

Posted in Case Previews, Contracts, Labour and Employment

This winter, the SCC will have the opportunity to clarify how the courts should go about determining how strictly to interpret restrictive covenants where they relate to both an employment agreement and the sale of a business. The opportunity arises from the Supreme Court’s decision to grant leave in Guay Inc. c. Yannick Payette et autres, where the Québec Court of Appeal upheld the enforceability of broadly-framed non-competition and non-solicitation clauses (or restrictive covenants), despite findings by the trial judge below that the employee, Mr. Payette, had been wrongfully terminated and that the restrictive covenants were too broad to

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What to expect when you’re expecting… An answer from a regulator: SCC to discuss the reasonable diligence defense in cases or strict liability offenses

Posted in Case Previews, Criminal, Financial Services, Insurance

Rachel LaferrièreThe Supreme Court of Canada recently granted leave to appeal in a case involving the Autorités des marchés financiers (“AMF”), the Quebec regulator regarding financial products and services. The most important issue discussed by the Court of Appeal concerns the possibility or not for Sovereign, General Insurance Company (“Sovereign”) to use the reasonable diligence defense because it made a mixed error of law and fact.

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UK Supreme Court to Pierce the Issue of the Corporate Veil

Posted in Case Previews, Conflict of Laws, Contracts, Corporate Law

The UK Supreme Court has granted permission to appeal in a case that raises important issues regarding the legal doctrine of “piercing the corporate veil”.  The decision in VTB Capital Inc. v. Nutritek International Corp. will give the Court an opportunity to clarify when the veil should be pierced, and whether the legal effect of doing so is to constitute the company’s controlling minds as actual parties to its agreements in derogation from the privity of contract doctrine.  Given the many contexts in which veil-piercing is relevant, and the lack of definitive guidance about it from the Canadian Supreme Court, … Continue Reading

Supreme Court of Canada to Rule on “Preferable Procedure” Inquiry in Class Actions

Posted in Case Previews, Class Actions, Procedure

The Supreme Court of Canada (SCC) recently granted leave to appeal the Ontario Court of Appeal’s decision in AIC Limited et al. v. Dennis Fischer et al.

The Fisher decision considers the important question of whether a successful OSC proceeding, resulting in the payment of $205 million in compensation to affected investor mutual funds, prohibits individual investors from suing for damages in civil courts.

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Is one “common issue” enough to authorize a class action in Canada? SCC grants leave to appeal in Vivendi Canada Inc. v. Dell’Aniello

Posted in Case Previews, Class Actions, Labour and Employment

On August 9, 2012, the Supreme Court of Canada granted leave to appeal from the Quebec Court of Appeal’s decision in Vivendi Canada Inc. v. Dell’Aniello, a case concerning the requirement that there be “identical, similar, or related questions of law or fact” when authorizing a class action in Quebec. While this requirement is found in article 1003(a) of Quebec’s Code of Civil Procedure, an analogous “common issues” requirement applies on certification in other provinces as well. Accordingly, the Vivendi appeal could have important implications for class actions throughout Canada.

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Back to Basic: US Supreme Court to Hear Amgen and Clarify “Fraud-on-the-Market” Reliance Presumption in Class Actions

Posted in Case Previews, Class Actions, Corporate Law, Securities, Torts

The Supreme Court of the United States has announced it will hear the appeal in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, setting the stage for an important clarification of the use of the “fraud-on-the-market” reliance presumption in U.S. securities class actions. The Court first set out the presumption in its 1988 landmark decision in Basic Inc. v. Levinson, 485 U.S. 224 (1988). The Amgen decision will have an impact in Canada, where courts have grappled with the question of reliance in such cases. Generally, Canadian courts have been sceptical about importing a “fraud-on-the-market” approach, but … Continue Reading

SCC to Consider Conflict of Interest Rule

Posted in Case Previews, Professions


The Supreme Court of Canada has granted leave to appeal in Canadian National Railway v. McKercher LLP et al., which raises significant issues relating to conflicts of interest, legal ethics, and the appropriate balance to be struck between the courts and the law societies in regulating the legal profession.

Perhaps most importantly, the case will require the Court to consider the “bright-line rule” and the related “professional litigant exception.” This rule was first articulated in R. v. Neil, and was subsequently re-affirmed in Strother v. 3464920 Canada Inc.. It provides:

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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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A Rascal of a Doctrine: The Elusive Definition of Resulting Trust

Posted in Bankruptcy and Debt, Case Previews, Class Actions, Contracts

The Supreme Court of Canada has recently granted leave to appeal from the judgment of the British Columbia Court of Appeal in Edward Sumio Nishi v. Rascal Trucking Ltd. This appeal focuses on the test for a resulting trust in the commercial context. The decision will be of interest to a broad range of business enterprises and commercial counsel.


The action arose out of a purchase of land by two business partners. Hans Heringa, a successful civil engineer and owner of Rascal Trucking Ltd. (“Rascal”) developed a property located in Nanaimo, British Columbia, with Cidalia Plavetic, a

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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

How Clear Must the Legislature Be to Set Aside a Final Judgment?

Posted in Case Previews, Labour and Employment

Rachel LaferrièreThe Supreme Court of Canada (Deschamps, Abella, Cromwell JJ.) has granted leave in a pension litigation case, in which the Court could potentially revisit the principles underlying democratic dialogue. This case may offer the Supreme Court the opportunity to provide an updated statement on the doctrines of retroactivity and res judicata, particularly on the differences between the authority of final judgments and the “cogency” of final judgments. It may also explain the impact of an application for leave to appeal to the Supreme Court of Canada on the status of a case. This appeal may also deal with

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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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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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The Backside of a Truckstop: SCC to Rule on Balancing Competing Interests in Nuisance Cases

Posted in Case Previews, Construction and Real Estate, Torts, Transportation

The Supreme Court of Canada has granted leave to appeal in Antrim Truck Centre Ltd. v. Her Majesty the Queen in Right of the Province of Ontario, a case that is expected to provide clarity about the law of nuisance, particularly in cases where the social utility of the defendant’s activity is arguably very high. The case, alongside Smith v. Inco, is one of two in which the Ontario Court of Appeal has recently dealt comprehensively with the law of nuisance. In Antrim Truck, the Ontario Court of Appeal emphasized the importance of assessing whether a substantial

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