Canada: Canadian Appeals Monitor – SCC Monitor Post For July 2016

We may be into the lazy days of midsummer, but the Supreme Court of Canada ("SCC") has been busy, releasing a number of important decisions in the areas of insurance, contract, labour & employment, constitutional, property, evidence and administrative law.

Judgment

Since our last SCC Monitor post, the SCC has released the following judgments of interest:

• Jurisdiction Over Radiocommunications: Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23 ( 36027) – One of McCarthys' Top 10 Appeals to Watch in 2016, in this decision the SCC confirmed the Federal government's jurisdiction over the location of radiocommunication infrastructure and held that the municipality's notice of reserve, which prevented Rogers from constructing an antenna system on a certain property, was ultra vires. The majority provided important guidance on the scope of the doctrines of cooperative federalism and interjurisdictional immunity. Read our blog post on this decision here.
• Right to a Speedy Trial: R. v. Jordan, 2016 SCC 27 ( 36068) – The SCC overhauled the Charter s. 11(b) right to a trial in a reasonable time. Effectively, the accused in a criminal case is entitled to a trial within 30 months (in a superior court action), or within 18 months (in a provincial court action), from the date of the charge. Any delay longer than that presumptively breaches s. 11(b). This recent blog post contains an excellent summary and discussion of the decision, including of the potential impact to corporate defendants facing criminal or quasi-criminal prosecutions.
• Terminal Discord on Standard of Review: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 ( 36354) – The SCC held that non-unionized federal employees can only be terminated for cause, if those employees choose to challenge their termination under the Canada Labour Code (unless the employee was laid off because of lack of work or discontinuance of a function). If the non-unionized employee opts to challenge the termination in court, the normal common law remedies continue to apply (notice or pay in lieu). The case is significant because the SCC justices displayed sharply divergent views on the administrative law standard of review analysis; see this previous blog post for a discussion of the decisions below.
• Presumptive Jurisdiction Over Dispute: Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 ( 36087) – Another one of McCarthy's Top 10 Appeals to Watch in 2016, in this decision the SCC provided clarity on the fourth Van Breda connecting factor, which provides a court with presumptive jurisdiction when a contract connected with the dispute was made in the province. The majority adopted a broad approach to this fourth factor, finding that it did not require the alleged tortfeasor to be a party to the contract or that the tortfeasor's liability flows directly from its contractual obligations. Justice Côté, dissenting, was critical of the majority's broad approach.
• Legal Causation ≠ Scientific Causation: British Columbia (Workers' Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 ( 36300) – This case (previously discussed here) involved claims that breast cancer was caused by the workplace environment. At the tribunal hearing of the appeal of the workers' compensation claims, medical experts opined that there was not sufficient scientific evidence to causally link the cancer to the employment. The tribunal applied a different standard of causation than the experts, holding that the cancers were caused by the employment. The SCC upheld the tribunal's decision, ruling that the tribunal could apply a lower threshold of causation under the Workers Compensation Act than the scientific threshold applied by the experts.
• Circumstantial Evidence Clarified: R. v. Villaroman, 2016 SCC 33 ( 36435) – This decision clarifies the difference between direct and circumstantial evidence, and how circumstantial evidence may be used in criminal cases. A jury must be cautioned about "jumping to conclusions" or "filling in the blanks" with circumstantial evidence. Circumstantial evidence (reasonable inferences based on facts or evidentiary gaps, "assessed logically, and in light of human experience and common sense") is different than reasonable doubt (a degree of persuasion, or lack thereof, based on reason and common sense). The Crown may need to negative reasonable alternative theories or possibilities—but not merely speculative possibilities—where the evidence is circumstantial. "[T]o justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative". This decision will likely be cited in many future civil lawsuits as the clearest articulation of the law governing circumstantial evidence. It will also be applicable where corporate defendants are facing criminal or quasi-criminal charges.

Leaves to Appeal Granted

The SCC granted leave to appeal the following decision:

• Adverse Possession: Mowatt v. British Columbia (Attorney General), 2016 BCCA 113 ( 36999) – In a rare modern case considering adverse possession, the petitioners claimed ownership of land on Kootenay Lake relying on the doctrine of adverse possession. The judge found that the petitioners had not proved continuous possession of the land for the years 1916 to 1920, and that this gap broke the continuity required to make out a claim. The BCCA allowed the appeal, holding that the requirement to prove "inconsistent use" with the true owner's intended use of the land does not apply in British Columbia, and that the gap in possession between 1916 and 1920 was actually shorter than found by the judge and, having regard to evidence available, it was more likely than not that the squatters had continuous possession during these years. The appeal to the SCC raises the issues of whether a distinct approach to fact-finding should be applied for claims that involve facts occurring beyond living memory, and whether the doctrine of inconsistent use is part of the law of adverse possession in Canada.

Leaves to Appeal Refused

Finally, the SCC refused leave to appeal the following decisions:

• Regulator can Ban Loyalty Points for Pharmacies: Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41 ( 36917) – The College council passed bylaws prohibiting pharmacies from making incentive programs available to customers. The applicant pharmacies challenged the bylaws on the grounds that there was no risk of harm from the loyalty programs. The pharmacies sought to introduce new evidence in the judicial review, in addition to the documents that the College council considered when making its policy decision. The BCCA held that (i) the chambers judge erred by admitting evidence that was not before the College council when it passed the bylaws; and (ii) although the evidence supporting the need for the bylaws was "thin", the bylaws were still "within the range of reasonable outcomes" available to the College council. The College council was not obligated to pass the "narrowest" bylaw to achieve the outcome, as this was not a Charter challenge but rather a judicial review.
• Unconscionability in Contract: Bank of Montreal v. Javed, 2016 ONCA 49 ( 36902) – Shah was a director of a corporation and he (along with Mr. Jahved) provided a personal guarantee to BMO to secure a small business loan. Mr. Shah subsequently resigned as director from the company and his subsequent requests for access to the company's account information with BMO were refused. The corporation then defaulted on the loan and BMO sought to enforce the guarantee against Mr. Shah. The ONCA rejected Mr. Shah's argument that the duty of honest performance recognized in Bhasin extended the doctrine of unconscionability beyond the equities of the contract itself, to apply to performance of a contract. It also found that, while the bank had breached its obligation to Mr. Shah in not providing him information regarding his liability under guarantee, this breach did not discharge the guarantee. See our post on the ONCA's decision here.
• Sexist Blog Post Not Workplace Harassment: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495 ( 36647) – During a period of labour unrest, a unionized employee wrote a blog post and permitted the posting of a comment, both of which targeted his female manager by alleging nepotism and incompetence. The manager complained to the Human Rights Tribunal that the blog post and comment were discrimination or harassment in the workplace, contrary to the Human Rights Code. The Tribunal weighed the Charter values of freedom of expression and association and noted that, while the blog post and comment were sexist and offensive, there was no evidence that the postings were made from the workplace. The Tribunal concluded that the blog post and comment were not made "with respect to employment" under the Code. The Tribunal's decision was upheld by the Divisional Court and ONCA. Both courts held that the Tribunal did not err by considering Charter values in reaching its decision.
• Obligations Regarding Exculpatory Clauses: Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33 ( 36887) – The plaintiff jewelry business claimed that the security and alarm system supplied by the defendant failed when it was robbed. The defendant was granted summary judgment on the basis that the contract included an exculpatory clause which noted that the system might fail and provided that the defendant would not be liable in any way for any loss arising from the provision of the products and services. The ONCA dismissed the plaintiff's appeal. In an ordinary commercial contract between two corporations, there is no obligation on the defendant to draw an exculpatory clause to the specific attention of the plaintiff. One of the issues raised in the application for leave to appeal to the SCC was whether the duty of good faith in contract created a duty of disclosure for any party proffering an exculpatory clause.
• Insurance Contracts and Disclosing Material Facts: Swiss Reinsurance Company v. Camarin Limited, 2015 BCCA 466, 2016 BCCA 92 ( 36967) – At issue was the availability of a reinsurance policy following losses from settling a class action for defective tile. The reinsurer argued that the insured had failed to provide material information, rendering the insurance policy voidable. The BCCA held that the trial judge erred by failing to consider the information available to the reinsurer during each policy year and then analyzing the materiality of that information. A new trial was ordered.

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