Since our last post, the Supreme Court has released a number of significant decisions, including a decision about the standard of review applicable to statutory appeals and the test for civil contempt. It also dismissed two applications for leave to appeal in cases of particular interest to Canadian businesses, regarding what constitutes sufficient proof of illegal insider trading and whether Canadian courts have jurisdiction over secondary market misrepresentation class actions when the shares were purchased on a foreign exchange. Finally, it granted leave to appeal in a class actions case dealing with a provincial court’s jurisdiction over out-of-province third … Continue Reading
On April 17, 2015, the Supreme Court of Canada (SCC) rendered its opinion in Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18 (Theratechnologies), its first decision on the Quebec statutory secondary market liability regime adopted in 2007 pursuant to a reform of the Quebec Securities Act (QSA). Like its sister statutes in other provinces, although the QSA regime facilitates a plaintiff’s burden, mostly by presuming that variation in market price is linked to a misinformation or omission, it also imposes an authorization process under which a claimant must establish that its action is brought in good … Continue Reading
Since our last update, the Supreme Court of Canada denied leave to appeal in nine cases, heard one of the most highly anticipated appeals of the year, and released a judgment that impacts lawyers across the country.
In Canada (Attorney General) v. Federation of Law Societies of Canada the Supreme Court ended a 15 year legal battle between the federal government and the various Canadian Law Societies. At issue was whether certain anti-money laundering legislation was unconstitutional to the extent it applied to lawyers and documents in the hands of legal counsel. The majority of the court held that … Continue Reading
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.
The Appeals Monitor is pleased to present our annual review of the most significant appeals of the past year that can be expected to impact Canadian businesses for years to come.
In Kaynes v BP, PLC, 2014 ONCA 580 (previously discussed here), the Court of Appeal for Ontario stayed a proposed secondary market securities class action due to forum non conveniens. Although the Court held that Ontario could assume jurisdiction over claims by Canadian residents who had purchased securities on foreign exchanges, it held Ontario should nonetheless decline jurisdiction as foreign courts were “clearly more appropriate” venues.… Continue Reading
The Supreme Court of Canada has released a precedent-setting judgment in which it recognized, for the first time, that there is a general organizing principle of good faith in the performance of contracts throughout Canada: Bhasin v. Hrynew, 2014 SCC 71. The Bhasin case, which was successfully argued by Neil Finkelstein and Brandon Kain of McCarthy Tétrault’s Toronto litigation group, will be very important for Canadian businesses going forward. As a result of Bhasin, all contracts throughout Canada are now subject to a duty of, at a bare minimum, honest performance, which cannot be excluded by the terms … Continue Reading
The Supreme Court of Canada this week issued a judgment in one case, granted leave to appeal in one case, and denied leave to appeal in one case of interest to Canadian businesses.
In Thibodeau v. Air Canada, 2014 SCC 67, the Supreme Court of Canada ruled that the claims of airline passengers arising from a breach of an airline’s obligation to provide services in French under the federal Official Languages Act was precluded by the Convention for the Unification of Certain Rules for International Carriage by Air.… Continue Reading
The Supreme Court this week issued a number of leave-to-appeal rulings likely to be of interest to Canadian businesses and professionals. Four such leave-to-appeal requests were refused, and one was remanded.
The following applications were refused:
- Leave-to-appeal from the Alberta ruling in Somji v. Wilson, 2014 ABCA 35, was dismissed. The Court of Appeal had affirmed the striking of claims against both (i) a trial judge (who had granted default judgment against the appellants), and (ii) the respondents (who were alleged to have acted deceitfully in obtaining the default judgment).
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
The Supreme Court of Canada issued a judgment in one case and denied leave to appeal in another case of interest to Canadian businesses and professions.
In Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), a majority of the Court ruled that a provincial rule requiring the payment of court hearing fees, with limited exemptions, was unconstitutional, as it infringed litigants’ right to access to justice. The majority of the Court ruled that, in order to pass constitutional muster, such fees cannot be so high as to cause litigants to “sacrifice reasonable expenses in order to … Continue Reading
The Supreme Court of Canada granted leave to appeal in one case, and refused leave in several other cases, likely to be of interest to Canadian businesses and professions.
The Court granted leave from the ruling of the Saskatchewan Court of Appeal in Lemare Lake Logging Ltd v 3L Cattle Company Ltd, 2014 SKCA 35. That constitutional law decision had addressed the alleged operational conflict between the federal Bankruptcy and Insolvency Act and the Saskatchewan Farm Security Act, regarding the appointment of a receiver. The Court of Appeal had found the provincial enactment to be inoperative pursuant … Continue Reading
The Supreme Court of Canada has granted leave to appeal in a case that will determine how to apply the statutory limitation period for investors in Ontario who decide to sue public issuers and their executives under the Securities Act. Given similar legislation in other provinces, the case will be significant for investors and public issuers across Canada.… Continue Reading
In the world of contractual interpretation, the decision of the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp. is a blockbuster. Sattva does three significant things. First, it determines that contractual interpretation generally involves a mixed question of fact and law, not a question of law alone. That holding has major implications for appellate review of decisions involving issues of contractual interpretation, and represents the resolution of an issue that had previously divided provincial appellate courts. Second, Sattva emphasizes the importance to contractual interpretation of evidence of the surrounding circumstances or the factual matrix in which … Continue Reading
Lower courts in both Canada and the US have been deeply divided on the application of their respective Supreme Courts’ precedents on whether the police need a warrant to search the contents of a smart/cell phone seized during a lawful arrest. On June 25, 2014, the US Supreme Court unanimously settled US law in Riley v. California, No. 13-132. The court found that privacy interests at stake outweigh any legitimate governmental interest, absent any “exigent circumstances”.
The saga of North America’s first unionized Wal-Mart has taken a significant turn in favour of its former employees, nine years after they lost their jobs when the store in Jonquière, Quebec was permanently shut. Much ink has been spilled telling the story of the Jonquière store, its successful unionization in 2004, and its closure in 2005, which was announced on the very day that an arbitrator had been appointed in relation to the what was to have been the store’s first collective agreement. Now, the Supreme Court of Canada in United Food and Commercial Workers, Local 503 v. Wal-Mart … Continue Reading
The following post on the snIP/ITs blog may be of interest to readers of this blog: The Aereo Decision – Canadian Content?
On June 25, 2014, the United States Supreme Court ruled in a 6-3 decision in American Broadcasting Cos., Inc. et al v. Aereo, Inc. that Aereo’s Internet retransmission service infringes copyright. McCarthy Tétrault played a small role by filing an amicus brief on behalf of a coalition of international rights holders and copyright scholars that drew the Court’s attention to the need to interpret the US Copyright Act in a technologically neutral way, as similar copyright laws have … Continue Reading
The Supreme Court of Canada has released a much anticipated administrative law decision interpreting the scope of Cabinet’s powers to overrule tribunals. In Canadian National Railway Co. v. Canada (Attorney General), the Supreme Court clarified that reasonableness review applies to Ministerial decisions made pursuant to a “cluster” of economic regulatory statutes, including the Canada Transportation Act, S.C. 1996, c. 10. These economic statutes empower the Governor in Council to vary or rescind decisions of the tribunals administering the legislation, requiring reviewing courts to employ deference even on issues of law.
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.
The Supreme Court of Canada denied leave to appeal this week in two cases of interest to Canadian business.
In Re Nortel Networks Corporation, the Supreme Court of Canada refused leave to appeal a decision of the Ontario Court of Appeal addressing whether a stay of proceedings granted under the federal Companies’ Creditors Arrangement Act stays remediation orders issued by the Ministry of the Environment.
Leave to appeal was also declined by the Supreme Court of Canada in Association des pompiers professionnels de Québec inc. c. Québec (Ville de), an administrative law case emanating from the Quebec Court … Continue Reading
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”).
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
A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP
The contours of the tort of unlawful interference with economic relations have, heretofore, been “unsettled”, “confusing” and “inconsistent”. The tort essentially provides redress when party “A” intentionally inflicts economic injury on party “B” by use of unlawful means against party “C”. What is the nature of the “unlawful” activity that can ground the tort? What degree of intentionality is required to give rise to the tort? Is the tort available concurrently with other causes of action? These are the central questions that the Supreme Court of … Continue Reading
The first judgment of 2014 rendered by the Supreme Court of Canada, Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1 (“Vivendi”), deals with the conditions for authorization of a class action in Quebec. The judgment has several important implications for Canadian businesses that are likely to be involved in class action proceedings.
First, the Court held that the “commonality of issues” test for authorization is satisfied by even a single common question, as long as it can serve to advance the resolution of a “not insignificant portion of the dispute”. Second, the Court stated that the answer … Continue Reading
A recent ruling of the British Columbia Court of Appeal — Byatt International SA v. Canworld Shipping Company Limited, 2013 BCCA 558 — provides useful guidance regarding the unique test to be applied on a motion to stay an appeal court’s ruling, pending the conclusion of a leave-to-appeal application before the Supreme Court of Canada. In so doing, the BCCA also shed indirect (but useful) light on the somewhat opaque test applied by the SCC in determining such applications for leave to appeal.
As is well known, most appeals to the Supreme Court of Canada can only be commenced … Continue Reading