last post, most of the judgments and successful applications
for leave decided by the Supreme Court have arisen from criminal
cases. The most notable exception was the judgment in Canadian
Imperial Bank of Commerce v. Green, 2015 SCC 60, concerning secondary market class
actions, which we have already
covered in detail.
This post will cover the very brief judgment in Canadian
Pacific Railway Co. v. Canada (Attorney General), 2016 SCC 1 and the successful application for
leave to appeal from Urban Communications Inc. v. BCNET
Networking Society, 2015 BCCA 297.
The Easy Way Out? Canadian Pacific Railway Co. v. Canada
This case was one of our
most anticipated of 2016. We anticipated that the Supreme Court
would give substantive reasons in this case, unlike the Federal
Court of Appeal, which dismissed CPR's motion for leave to
appeal without reasons. In particular, we were interested in how
the Supreme Court would address the requirements of independence
and impartiality of administrative bodies in the context of
In August 2014, the Canadian Transport Agency ("CTA")
enacted regulations extending the distances for interswitching in
the prairie provinces. Interswitching is a service where one
railway company collects a shipper's rail traffic and
transports to an interchange point with a second railway company.
Interswitching within 30 km of an interchange was subject to a
prescribed rate under the regulations; outside the 30 km range,
fees were commercially negotiated. The CTA extended the regulated
interswitching distance from 30 to 160 km in Alberta, Manitoba, and
Saskatchewan after the passing of Bill C-31 in May, 2014, which
empowered the CTA to make regulations extending interswitching
This case arose when CPR sought leave to appeal the new
regulation on two bases: (1) it was enacted after improper
interference and direction from the federal government; and (2) it
was enacted without any independent assessment regarding extending
the interswitching distance.
The Supreme Court's reasons are sparse and do not address the
substantive questions we raised in our list of Appeals to Watch.
The Court framed the issue before it as "whether the appellant
[had] adduced facts" rebutting the presumption that the Agency
acted properly in deciding to amend the Regulations Amending
the Railway Interswitching Regulations. It held that the
appellant did not rebut that presumption without further
explanation and dismissed the appeal.
Leave to Appeal in Urban Communications:
Sattva Part 2?
The Supreme Court granted leave to appeal from the judgment in
Urban Communications Inc. v. BCNET Networking Society, 2015 BCCA 297, which provides it with an
opportunity to expand on its landmark decision in Sattva
Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (see our post on Sattva
The litigants in Urban Communications were parties to
an option agreement. BCNET purported to exercise the option by way
of a letter. Urban did not reply for over a year and then took the
position that the option had not been validly exercised. Pursuant
to their agreement, the parties proceeded to arbitration. The
arbitrator found that BCNET had validly exercised the option and,
in the alternative, Urban was estopped from relying on any defects
due to its delay in responding.
In the B.C. Supreme Court, the chambers judge identified four
extricable questions of law, thereby permitting Urban to appeal the
arbitrator's decision. The chambers judge ultimately ruled in
favour of Urban on all four questions and allowed the appeal.
The B.C. Court of Appeal allowed BCNET's appeal and
reinstated the arbitrator's decision. The Court of Appeal held
that the case ultimately turned on the objective intentions of
parties in the option agreement and BCNET's objective
intentions in its letter purporting to exercise the option. Relying
on Sattva, the Court of Appeal held the interpretation of
both documents involved questions of mixed fact and law, such that
the arbitrator's decision was not reviewable. The Court of
Appeal found that the chambers judge had identified the four
alleged errors of law as a result of an implicit presumption that
the arbitrator misinterpreted both documents.
The Court of Appeal concluded its judgment by noting that the
result would have been the same even if the case was decided before
Sattva. Nevertheless, the case should provide the Supreme
Court with an opportunity to further clarify the difference between
questions of law and questions of mixed fact and law in the context
of commercial arbitrations and contractual interpretation.
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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