The Supreme Court of Canada released two decisions this week of
interest to Canadian businesses and professions.
The first, Sable Offshore Energy Inc. v. Ameron
International Corp., 2013 SCC 37, addresses the scope of
settlement privilege in the context of multi-party
litigation. In cases where a plaintiff sues several
defendants, it is common for the plaintiff to settle with only
some of them, and agree to pursue the non-settling defendants only
for their proportionate share of liability. This type of
arrangement, known as a Pierringer agreement, has the
benefit of releasing the settling defendants not only from the
plaintiff's claims, but also from potential contribution
claims brought by the non-settling defendants (who can only be held
severally, and not jointly, liable with the settling ones).
In Sable, the plaintiffs entered into
multiple Pierringer Agreements, and disclosed all the
terms of those agreements to the non-settling defendants, except
the amounts agreed to. The non-settling defendants brought an
application to compel the plaintiffs to disclose the settlement
amounts, which was denied at first instance, but subsequently
granted by the Nova Scotia Court of Appeal. In a
unanimous decision written by Abella J., the Supreme
Court of Canada overturned the Court of Appeal's judgment, and
held the application should be rejected on the basis of settlement
Abella J. held that settlement privilege protects all
communications made in the course of negotiations undertaken
for the purpose of settling the action, whether or not they are
marked "without prejudice", and whether or not they
result in a settlement. Therefore, settlement privilege
extends to both failed negotiations and the content of
successful negotiations, including the negotiated settlement
amounts. While Abella J. recognized there could be
exceptions to the privilege where a competing public interest
outweighs the public interest in encouraging settlement (e.g., to
address allegations of fraud or prevent overcompensation), she
found there was no prejudice to the non-settling defendants in
withholding the settlement amounts that met this
test (particularly since the plaintiffs in
Sable had disclosed all the non-financial terms
of the Pierringer agreements).
The second case is Agraira v. Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36. It involved a judicial
review application of a decision by the Minister of Public Safety
and Emergency Preparedness to deny the appellant's request for
permanent residence in Canada. The Court's decision
transcends this context, however, and is important to a broad
spectrum of administrative law cases for two reasons.
First, the Court clarified the standard of appellate of
review on an appeal from a judicial review decision of a lower
court. LeBel J. confirmed that on such an appeal, the
Court's job is to determine "whether the court below
identified the appropriate standard of review and applied it
correctly". In other words, the appellate
court does not afford deference to the lower court's
findings on judicial review.
Second, the Court addressed the role of the legitimate
expectations doctrine in the context of the duty of procedural
fairness. LeBel J. held that because the Minister
followed a comprehensive procedural process set out in
publicly available guidelines for dealing with the appellant's
application, the appellant's legitimate expectations
and right to procedural fairness were fulfilled, even though
the guidelines were not published by the Minister's own
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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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