The Supreme Court of Canada granted leave to appeal this week in three
cases of interest to Canadian businesses and professions.
The first involves a series of related appeals from Banque
de Montréal c. Marcotte, 2012 QCCA 1396, Fédération
des caisses Desjardins du Québec c. Marcotte, 2012 QCCA 1395 and Amex Bank of Canada c.
Adams, 2012 QCCA 1394. The appeals arise in the
context of class actions alleging that the defendant banks failed
to disclose foreign exchange conversion charges on credit cards in
the way required by the Quebec Consumer Protection Act.
They raise the questions of whether the Consumer Protection
Act is constitutionally inapplicable or inoperative to
regulate bank-issued credit cards based on the doctrines of
interjurisdictional immunity or paramountcy. The Supreme
Court's decision in these appeals could be important for any
businesses that are subject to provincial consumer protection
legislation if they are also involved in federal works and
undertakings, or are governed by an overlapping federal statutory
The second case is an appeal from Canada (A.G.) v. Canadian
National Railway Company, 2012 FCA 278. It asks whether the Governor in
Council's authority to vary or rescind decisions of the
Canadian Transportation Agency on petition under s. 40 of the
Canada Transportation Act can be exercised where the
decision involves a question of law or jurisdiction. As well, the
case raises the issue of whether the standard of review applicable
to the Governor in Council on such matters should be determined by
the legal framework established in Dunsmuir v. New
Brunswick, 2008 SCC 9. Given the wide variety of
statutory provisions which enable the federal and provincial
cabinets to overturn administrative decisions, and the lack of
post-Dunsmuir jurisprudence addressing them (the current
leading case being Canada (A.G.) v. Inuit Tapirisat,  2 SCR 735), the Canadian National
Railway decision could prove to be a milestone in modern
administrative law, and will likely have a significant impact on
businesses throughout Canada.
The third case from which leave to appeal was granted is
Bombardier inc. c. Union Carbide Canada inc., 2012 QCCA 1300. At issue before the Supreme
Court will be whether a party can make allegations in relation to a
failed mediation in its pleadings, in order to prove the existence
of a disputed transaction. The mediation in Bombardier was
carried out under a mediation agreement that precluded the parties
from alleging, referencing or seeking to put into evidence in any
proceeding anything that transpired at the mediation. On March 25,
2013, the Supreme Court of Canada reserved judgment in a case involving the
scope of settlement privilege: Sable Offshore Energy Inc. v.
Ameron International Corporation, which we discussed in a
previous post. It will be interesting to see what approach the
Court takes in these two cases to confidentiality rights in
alternative dispute resolution processes.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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