Canada: This Week At The SCC (27/06/14)

Last Updated: July 3 2014
Article by Anthony M.C. Alexander

Most Read Contributor in Canada, September 2018

This has been a particularly busy week at the Supreme Court of Canada vis-à-vis cases likely to be of interest to Canadian businesses and professionals. The Court issued two significant rulings, and refused leave to appeal in another seven cases.

In Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, the Court addressed the contentious issue of aboriginal title, and the interaction of that title with provincial land-use regulation. In overturning the ruling of the BCCA, a unanimous court ruled that Aboriginal title flows from occupation of land, in the sense of regular and exclusive use, and that it confers on First Nations the right to use and control the land and to reap the benefits flowing from it. Where title is claimed (but has not yet been established), s. 35 of the Constitution Act, 1982 requires the Crown to consult with the First Nation and, if appropriate, to accommodate its interests. Once Aboriginal title has been established, s. 35 of the Constitution Act, 1982 permits incursions only with the consent of the Aboriginal group, or if such incursions are justified by a compelling and substantial public purpose and are not inconsistent with the Crown's fiduciary duty to the Aboriginal group. The Court further ruled that, when determining the validity of provincial legislative incursions on lands held under Aboriginal title, the doctrine of interjurisdictional immunity is displaced by the foregoing approach. In the case at hand, the trial judge was found to have appropriately identified those lands subject to Aboriginal title. Moreover, the Province's land use planning and forestry authorizations were inconsistent with its duties owed to the Tsilhqot'in people. The ruling has been the subject of a separate comment by McCarthy Tétrault LLP, which can be accessed here.

In United Food and Commercial Workers, Local 503 v. Wal Mart Canada Corp, 2014 SCC 45, the Court considered the conduct of a corporate employer in shuttering a store location following the certification of a union at that location. The arbitrator at first instance had ruled that the company had violated provincial labour law by "changing the employees' conditions of employment" during the negotiation of a collective agreement. A 5-2 majority of Supreme Court reversed the ruling of the QCCA, and restored the arbitrator's finding. The matter was remanded to the arbitrator to determine the appropriate remedy against the employer.

The Court also refused leave to appeal in seven rulings likely to be of interest:

  • In HOOPP Realty Inc. v. A.G. Clark Holdings Ltd., the SCC refused to grant leave from a ruling of the Alberta Court of Appeal, which had refused to stay an action (based on a contractual right to arbitrate) where the right to arbitrate had been extinguished by the expiry of a limitation period.
  • In Coopers & Lybrand v. RSM Richter inc., the SCC refused to grant leave from a ruling of the Québec Court of Appeal, which had ruled that the litigants had submitted to the jurisdiction of the Québec Superior Court, and that such jurisdiction should not be declined in favour of either the Ontario courts or the rules of the Bankruptcy and Insolvency Act (Canada).
  • In Committee on Health and Safety v. Transit Du Roy inc., the SCC refused to grant leave from a second ruling of the Québec Court of Appeal, which had concluded that a personnel agency providing drivers to federally regulated transportation companies fell under provincial labour and employment jurisdiction.
  • In Shoppers Drug Mart Inc. v. 6470360 Canada Inc., (Energyshop Consulting Inc./Powerhouse Energy Management Inc.), the SCC refused to grant leave from a ruling of the Ontario Court of Appeal, which had found it appropriate to pierce the corporate veil by making a personal award against a corporation's sole officer, director and shareholder.
  • In Caton v. Devecseri Estate, the SCC refused to grant leave from a second ruling of the Ontario Court of Appeal, which had rejected a challenge to a jury charge and confirmed the dismissal of a pre-trial determination regarding the extent of insurance coverage.
  • In Nardulli v. C-W Agencies Inc., the SCC refused to grant leave to appeal from a ruling of the British Columbia Court of Appeal, which had rejected an employee's claim to participate in his employer's profit-sharing arrangement.
  • In Harle v. 101090442 Saskatchewan Ltd., the SCC refused to grant leave from a ruling of the Saskatchewan Court of Appeal, which had awarded damages — but not a right to specific performance — flowing from a breached contract to purchase real property.

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