In two recent companion decisions, the Supreme Court of Canada affirmed the importance of litigation privilege and solicitor-client privilege to the Canadian legal system. In Lizotte v. Aviva Insurance Company of Canada (Lizotte), the Court recognized litigation privilege as a distinct and fundamental principle of the administration of justice, while in Alberta (Information and Privacy Commissioner) v. University of Calgary (Alberta (Information and Privacy Commissioner)), the Court focused on issues of solicitor-client privilege. These decisions both confirm that for the legislature to abrogate either litigation privilege or solicitor-client privilege, nothing less than clear and … Continue Reading
In Mennillo v. Intramodal Inc. 2016 SCC 51, the most recent consideration of the oppression remedy by the Supreme Court of Canada (released on November 18, 2016), the majority confirmed the oppression remedy’s equitable purpose, and held that a corporation’s failure to comply with the CBCA does not, on its own, constitute oppression.
This decision, with particular applicability to small, closely held corporations, reiterated oppression remedy principles set out in the 2008 Supreme Court decision of BCE Inc. v. 1976 Debentureholders, that the remedy is concerned with fairness and business realities, rather than narrow legalities.
Background… Continue Reading
Policyholders recently won a key victory at the Supreme Court of Canada in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. as the Supreme Court clarified the interpretation of a standard form faulty workmanship exclusion clause common in builder’s risk policies. The decision has wide-reaching significance to other insurance coverage disputes and to contract law generally.
The Supreme Court confirmed that only the cost to redo the faulty work is precluded from coverage by such an exclusion. Builder’s risk, or “course of construction” insurance policies seek to insure against certain defined risks which may occur during the construction process. Such … Continue Reading
For decades members of the judiciary have publicly raised concerns about the swelling length and complexity of criminal cases. In October 2005, Justice Michael Moldaver, then of the Ontario Court of Appeal, stated:
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Am I worried? You bet I am. Long criminal trials are a cancer on our criminal justice system and they pose a threat to its very existence. You see, ladies and gentlemen, if the criminal justice system does not enjoy the support and respect of those whom it is meant to serve; if criminal trials are seen by the public as little more than interminable games; if
It was widely hoped that the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”) would simplify the judicial review of administrative action by limiting the scope of review to two standards: reasonableness and correctness. The divided Supreme Court of Canada opinion in Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 shows that there is still a long way to go before coherence and uniformity is brought to this area of law.… Continue Reading
Leaves to Appeal Granted
Since our last post, the Supreme Court of Canada (SCC) has granted leave in a couple significant cases that will be of interest to our readers:
Douez v. Facebook: Like or Dislike?
A recent article published on McCarthy Tétrault LLP’s Consumer and Retail Advisor blog may be of interest to readers of the Canadian Appeals Monitor blog. Adam Ship, Anne-Marie Naud and Helen Fotinos recently published an update to their previous discussion about the Québec Court of Appeal’s decision in Dunkin’ Brands Canada Ltd. c. Bertico inc., 2015 QCCA 624, in particular its finding of implied obligations in franchise agreements. The Supreme Court of Canada (SCC) just announced their dismissal of Dunkin’ Brands Canada Ltd.’s application for leave to appeal from the judgment of the Quebec Court of Appeal. Notably, in … Continue Reading
Since our last post, most of the judgments and successful applications for leave decided by the Supreme Court have arisen from criminal cases. The most notable exception was the judgment in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, concerning secondary market class actions, which we have already covered in detail.
This post will cover the very brief judgment in Canadian Pacific Railway Co. v. Canada (Attorney General), 2016 SCC 1 and the successful application for leave to appeal from Urban Communications Inc. v. BCNET Networking Society, 2015 BCCA 297.… Continue Reading
Since our last post, the Supreme Court has released a number of judgments and granted leave to appeal in a number of cases of interest.
In September, the Court released two of the Canadian Appeal Monitor’s “Top Ten” Appeals to Watch in 2015; the much anticipated Chevron Corporation et al. v. Yaiguaje et al. and Ontario (Energy Board) v. Ontario Power Generation Inc. et al..… Continue Reading
Anyone involved or interested in commercial real estate should be aware of the relatively recent decision of the Supreme Court of Canada (SCC) in Société en commandite Place Mullins v Services immobiliers Diane Bisson inc, mentioned briefly in two prior blog posts, here and here. Although the Supreme Court reviewed a decision of the Quebec Court of Appeal involving a standard brokerage agreement in Quebec, the decision may arguably have wider application, including in Alberta.
In a unanimous decision authored by Wagner J. the Court explains well what constitutes an “agreement to sell” in the context of a … Continue Reading
The Supreme Court of Canada has recently dismissed two leave applications and granted leave in one case that will be of interest to our readers. These cases touch on: case management and civil procedure in class actions (including when parent companies may be joined in an action); the standard of review and standing of administrative boards and tribunals; and interpretation of the federal Interest Act in regards to mortgage incentives and penalties.… Continue Reading
Over the past year, courts across Canada have responded to the Supreme Court of Canada’s clarion call in Hryniak v Mauldin (“Hryniak”) for a culture shift to promote access to justice including through summary judgment. The latest word on this front has come from the Alberta Court of Appeal in two recent decisions which seemingly conflict on the threshold to be applied to summary judgment applications. The inherent tension created by Hryniak in Alberta is that the summary judgment rule (Rule 7.3) reflects the 2006 views of the Supreme Court of Canada: that such applications should be used … Continue Reading
In White Burgess Langille Inman v. Abbott and Haliburton Co., a must-read decision for anyone involved in litigation, the Supreme Court of Canada tackles some of the difficult questions associated with how to properly deal with the proposed evidence of potentially biased experts.… Continue Reading
The Supreme Court of Canada has released a number of significant decisions since our last update that are of interest to Canadian businesses and professions, addressing the level of evidence required of a material change to support a securities class action in Quebec, damages for wrongful conviction, and requirements for expert evidence.… Continue Reading
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