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Category Archives: Procedure

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What’s “New” and What to Do About it? Supreme Court Sets High Bar to Appellate Courts Exercising Discretion to Raise New Issues

Posted in Case Comments, Charter of Rights, Criminal, Procedure

In R. v. Mian, the Supreme Court provided extensive comment on when an “appellate court can disrupt the adversarial system and raise a ground of appeal on its own” initiative.

The Court established a new test for the exercise of appellate courts’ discretion to raise a new issue on appeal. Appellate court judges will now ask themselves three questions when deciding whether to raise a new issue: 1) is the issue actually “new”?; 2) would failing to raise the issue “risk an injustice”?; and 3) can the new issue be raised in a way that will be fair to … Continue Reading

Preliminary Dismissal of Meritless Case: A Second Message of Encouragement from the Supreme Court

Posted in Case Comments, Procedure

The Supreme Court of Canada recently released an important decision regarding the preliminary dismissal of cases, this time through the doctrine of stare decisis, which dictates that a precedent case rendered by a higher court binds a lower court’s decision.  In Attorney General of Canada v. Confédération des syndicats nationaux, 2014 SCC 49 (“CSN 2014”), Justices Lebel and Wagner, writing for a unanimous Court, confirmed that the action of the plaintiffs unions had no reasonable chance of success and should be dismissed based on stare decisis.  The Court’s decision, in a case originating from Quebec, … Continue Reading

Summary Judgment on Trial: Ontario Court of Appeal Revisits the Risks of Summary Adjudication

Posted in Case Comments, Procedure

In a recent decision, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, the Ontario Court of Appeal reiterates some of the risks of summary adjudication and reminds parties that, despite the enthusiasm for summary judgment endorsed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, summary judgment may not be appropriate in all cases – specifically, those in which a staged fact-finding process raises the spectre of inconsistent findings at summary judgment and at trial.

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Class, Do Your Homework: Causation and Damages Methodologies at Certification

Posted in Case Comments, Class Actions, Corporate Law, Procedure, Torts

Overview

In Andriuk v. Merrill Lynch Canada Inc., the Alberta Court of Appeal affirmed a certification judge’s decision that an action, commenced pursuant to Alberta’s Class Proceedings Act, did not meet the requirements for certification of a class proceeding, based on a failure to demonstrate a viable methodology for establishing causation and damages on a class-wide basis.… Continue Reading

Simpler is Better: Third Party Claims Struck for Efficiency and Proportionality in Recent Court of Appeal Decision

Posted in Case Comments, Procedure, Torts

The “culture shift” to a more accessible civil justice system, as championed in Hryniak v. Mauldin, is alive and well. Courts are increasingly sensitive to the economy of cases, taking into account the efficiency and proportionality of substantive and procedural rights. Today’s emphasis is on reasonable not exhaustive measures.

In O’Connor Associates Environmental Inc. v. MEC OP LLC, the Alberta Court of Appeal overturned the decision of a case management judge who permitted the joinder of third party advisors to a main action between a purchaser and vendor of oil and gas assets. This appellate decision incorporates the HryniakContinue Reading

Explain yourself! The Ontario Court of Appeal Reminds Us of the Importance of Reasons in Barbieri v. Mastronardi

Posted in Case Comments, Procedure

Overview

Recently, the Ontario Court of Appeal reminded us of the importance of reasons for judgment in Barbieri v. Mastronardi. A unanimous Court allowed an appeal from an order granting summary judgment to a plaintiff who sued for breach of contract and negligence, holding that the lack of sufficient reasons in the motion judge’s endorsement left the Court with no choice:

24 Given the inadequacy of the endorsement of the motion judge, we cannot conduct a meaningful review of his decision.

25 In these circumstances, we have no alternative but to grant the appeal and set aside the declaration

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Summary Judgment: Come One, Come All

Posted in Procedural Rights, Procedure

This article by Sarit Batner, Moya Graham and Brandon Kain may be of interest to readers of this blog:

Summary Judgment: Come One, Come All

The Supreme Court of Canada released two decisions today that will make summary judgment more widely available to parties. The reasons in Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 signal a cultural shift in which summary judgment will be available whenever it involves less time and expense than a trial, provided it enables the motion judge to reach a fair and just determination … Continue Reading

Suspension Denied: ONCA Confirms that Automatic Stay Pending Appeal does not Suspend the Limitation Period

Posted in Bankruptcy and Debt, Case Comments, Procedure

The recent decision of the Ontario Court of Appeal in msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550 (“msi Spergel”) confirms that the Court will not suspend, extend or otherwise vary the general two-year limitation period under the Limitations Act, 2002 (the “Limitations Act”) unless there is express statutory authority to do so.

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Federal Court of Appeal affirms that the Federal Court has limited jurisdiction over the province of Alberta

Posted in Administrative, Case Comments, Conflict of Laws, Constitutional, Procedure

Generally speaking, the Federal Court does not have jurisdiction over the provincial Crown. Confusion arises when the subject matter of a claim is within the realm of the Federal Court and the claim is an in personam. The recent Federal Court of Appeal decision of Canada v. Toney, 2013 FCA 217 affirms that there remain limited instances where the Federal Court has jurisdiction over a province, even if other factors suggest that a claim would be properly put before the Federal Court.

Background

The Toney family experienced a boating malfunction when sailing in Alberta. The rescue vehicle, which

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When is a Decision Final?

Posted in Administrative, Bankruptcy and Debt, Case Comments, Procedure

Introduction

It is now easier for Parliament to enact legislation to override judicial decisions that it does not like. The Supreme Court has held that declaratory legislation –i.e. legislation that “clarifies” already existing legislation– can apply retroactively and can circumvent the binding directives of an appellate court. In Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, the majority of the Supreme Court has begun to water down the principles of res judicata.

Background

The appellant, Régies des rentes du Québec (“Régie”), is a government agency responsible for applying Quebec’s Supplemental Pension Continue Reading

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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Screening Secondary Market Liability Actions in Quebec: the Court of Appeal Weighs In

Posted in Case Comments, Class Actions, Procedure, Securities

On July 17, 2013, the Quebec Court of Appeal rendered its first decision on the statutory secondary market liability regime adopted in 2007 pursuant to a reform of the Quebec Securities Act[1] (“QSA”). Although the QSA regime facilitates a plaintiff’s burden, it also imposes an authorization process under which a claimant must establish that its action is brought in good faith and has a reasonable possibility of success. In Theratechnologies inc. v. 121851 Canada inc., 2013 QCCA 1256 (“Theratechnologies”), the Court of Appeal upheld the Superior Court’s decision to authorize a claim pursuant to

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A Lawsuit Isn’t Always the Best Revenge: JCPC Rules that the Tort of Malicious Prosecution is now Available for Civil Litigants

Posted in Case Comments, Procedure, Torts

In a recent decision, the Judicial Committee of the Privy Council ruled for the first time that the tort of malicious prosecution is available in the context of civil proceedings. In most jurisdictions, including Canada, the current view is that malicious prosecution is only available against the Attorney General or Crown prosecutors following criminal proceedings instituted for an improper purpose.

Background

The result was driven by the peculiar facts of the case. Mr. Paterson was a chartered surveyor resident in the Cayman Islands. He was appointed by Sagicor to act as a loss adjuster for a claim for property

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Back to Class on Class Arbitrations: What About Economic Feasibility?

Posted in Case Comments, Competition, Procedure

What happens when the parties to an arbitration agreement expressly contract out of the possibility of proceeding to a class arbitration, and this means that plaintiffs will have to incur great expense to each make proof of their claim individually, well above the amounts they may obtain as a result of their proceedings? Should a court not interfere and decide to hear the dispute because “effective vindication” could not be attained through arbitration? This was the question put to the Supreme Court of the United States in American Express Co. v. Italian Colors Restaurant (June 20, 2013). The six justices

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Government Cannot Withhold a Hidden Agenda in its Dealing with the Courts

Posted in Administrative, Case Comments, Procedure, Tax

A case recently decided by the Federal Court of Appeal reiterates the very high standard of good faith to which the Minister of National Revenue (the “Minister”) must be held when dealing with the courts in the context of an ex parte application provided by the Income Tax Act (“ITA”). For example, the Minister cannot ignore and omit to mention internal evidence which it knows weakens its position, or hide ulterior motives.

Context: Third-Party Information Concerning “10-8” Plans

In Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50 (“RBC Life”)[1], the

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Don’t Mess with Texas – The Supreme Court of the United States Reaffirms Deference to Administrative Tribunals

Posted in Administrative, Case Comments, Procedure

In City of Arlington, Texas v. Federal Communications Commission, 569 U.S. (2013), the unanimous Supreme Court of the United States clarified the limits of judicial deference to administrative tribunals’ decisions. In doing so, it reaffirmed a conceptual rift between Canadian and American jurisprudence on the issue.

Background

At issue in Arlington was the provision of the Telecommunications Act of 1996 in which Congress required state and local governments to act on wireless “siting applications within a reasonable period of time after the request is duly filed”. “Siting applications” are applications by telecommunications networks to place towers and antennae

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Coulda, Shoulda? The SCC Expands the Abuse of Process Doctrine in Behn v. Moulton Contracting Ltd.

Posted in Aboriginal, Case Comments, Procedure

In Behn v. Moulton Contracting Ltd., 2013 SCC 26, the Supreme Court of Canada (the “Court”) expanded the doctrine of abuse of process to preclude parties which employed self-help remedies from raising as a defence various arguments which could and should have been advanced by commencing formal legal proceedings instead of taking self-help steps. Unlike in cases of res judicata, where similar principles arise, it was of no concern to the Court that there was no pre-existing litigation or proceeding in which the various legal arguments could have been advanced originally. In other words, the party was estopped from … Continue Reading

The Second Opinion: Does Seven Minutes Matter? It Does in Marathons, Flight Schedules…and if You Are Commencing an Appeal

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

Posted in Bankruptcy and Debt, Procedure, The Second Opinion

The BC Court of Appeal  was recently invited to turn back time, by a mere 7 minutes, for the purpose of saving an appeal. At stake in Temple Consulting Group Ltd. v. Abakhan & Associates Inc., 2013 BCCA 119 was the $500,000 claim of a creditor against the bankrupt estate of Steven Friedland, a B.C. man banned from trading after admitting to illegally raising more than $12 million in an alleged Ponzi scheme.

In declining to turn back the clock, the Court observed that this case “may be an illustration of the adage: what can go wrong, will go … Continue Reading

Interlocutory Injunctions in the Public Interest: The UK Supreme Court Considers When an Undertaking In Damages Is Required

Posted in Case Comments, Financial Services, Procedure

In a recent decision, the UK Supreme Court considered whether public authorities, acting in fulfillment of their statutory mandate, have to give an undertaking in damages when they seek an interlocutory injunction. The case arose in the context of a share sale scheme that the Financial Services Authority (“FSA”) alleged to be a fraud, involving the sale of shares to third party investors, without an approved prospectus, in Sinaloa Gold plc (“Sinaloa”). In December 2010, the FSA initiated proceedings against Sinaloa and two other defendants. Shortly before doing so, the FSA had obtained without notice an interlocutory injunction freezing

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Give This Post Superpriority – Supreme Court Decides Sun Indalex Finance, LLC v. United Steelworkers

Posted in Bankruptcy and Debt, Case Comments, Financial Services, Labour and Employment, Procedure

Introduction

The Supreme Court has issued its much-anticipated decision in Sun Indalex Finance, LLC v. United Steelworkers.

The Supreme Court has issued its much-anticipated decision in Sun Indalex Finance, LLC v. United Steelworkers (“Indalex”). The decision has significant implications for lenders, employers and pension plan administrators of Ontario-registered defined benefit (“DB”) pension plans. First, it clarifies the scope of the deemed trust obligation arising out of subsection 57(4) of the Pension Benefits Act (Ontario) (“PBA”). Second, it confirms the priority of debtor-in-possession (“DIP”) lenders’ security interests under the Companies’ Creditors Arrangement Act (“CCAA”) over claims by pension … Continue Reading

UK Supreme Court Declines to Recognize Legal Advice Privilege for Accountants

Posted in Case Comments, Procedure, Tax

In a watershed ruling that is sure to have implications throughout Canada, the UK Supreme Court has held that legal advice (or “solicitor-client”) privilege does not attach to communications between accountants or other non-legal professionals and their clients. The decision in Prudential holds this to be the case even where the communications involve legal advice which the professional person is qualified to give, and that advice is given in circumstances where it would be privileged were it provided by a lawyer.

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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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Third time’s the charm – The United States Supreme Court to consider the availability of class arbitration for the third time in American Express Company v. Italian Colors Restaurant

Posted in Case Comments, Class Actions, Procedure, Torts

Introduction

The United States Supreme Court has granted leave to appeal in a case that will clarify whether federal arbitration law permits the invalidation of arbitration agreements on the basis that they do not permit class arbitration.  This decision will have implications on the development of class arbitration, an emerging area of both American and Canadian class actions law.

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