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
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
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
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
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 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.
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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