Canada: Canadian Appeals Monitor – SCC Monitor Post For July 2016

Last Updated: August 11 2016
Article by Katherine A. Booth and Ryan MacIsaac

Most Read Contributor in Canada, September 2018

We may be into the lazy days of midsummer, but the Supreme Court of Canada ("SCC") has been busy, releasing a number of important decisions in the areas of insurance, contract, labour & employment, constitutional, property, evidence and administrative law.

Judgment

Since our last SCC Monitor post, the SCC has released the following judgments of interest:

  • Jurisdiction Over Radiocommunications: Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23 ( 36027) – One of McCarthys' Top 10 Appeals to Watch in 2016, in this decision the SCC confirmed the Federal government's jurisdiction over the location of radiocommunication infrastructure and held that the municipality's notice of reserve, which prevented Rogers from constructing an antenna system on a certain property, was ultra vires. The majority provided important guidance on the scope of the doctrines of cooperative federalism and interjurisdictional immunity. Read our blog post on this decision here.
  • Right to a Speedy Trial: R. v. Jordan, 2016 SCC 27 ( 36068) – The SCC overhauled the Charter s. 11(b) right to a trial in a reasonable time. Effectively, the accused in a criminal case is entitled to a trial within 30 months (in a superior court action), or within 18 months (in a provincial court action), from the date of the charge. Any delay longer than that presumptively breaches s. 11(b). This recent blog post contains an excellent summary and discussion of the decision, including of the potential impact to corporate defendants facing criminal or quasi-criminal prosecutions.
  • Terminal Discord on Standard of Review: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 ( 36354) – The SCC held that non-unionized federal employees can only be terminated for cause, if those employees choose to challenge their termination under the Canada Labour Code (unless the employee was laid off because of lack of work or discontinuance of a function). If the non-unionized employee opts to challenge the termination in court, the normal common law remedies continue to apply (notice or pay in lieu). The case is significant because the SCC justices displayed sharply divergent views on the administrative law standard of review analysis; see this previous blog post for a discussion of the decisions below.
  • Presumptive Jurisdiction Over Dispute: Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 ( 36087) – Another one of McCarthy's Top 10 Appeals to Watch in 2016, in this decision the SCC provided clarity on the fourth Van Breda connecting factor, which provides a court with presumptive jurisdiction when a contract connected with the dispute was made in the province. The majority adopted a broad approach to this fourth factor, finding that it did not require the alleged tortfeasor to be a party to the contract or that the tortfeasor's liability flows directly from its contractual obligations. Justice Côté, dissenting, was critical of the majority's broad approach.
  • Legal Causation ≠ Scientific Causation: British Columbia (Workers' Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 ( 36300) – This case (previously discussed here) involved claims that breast cancer was caused by the workplace environment. At the tribunal hearing of the appeal of the workers' compensation claims, medical experts opined that there was not sufficient scientific evidence to causally link the cancer to the employment. The tribunal applied a different standard of causation than the experts, holding that the cancers were caused by the employment. The SCC upheld the tribunal's decision, ruling that the tribunal could apply a lower threshold of causation under the Workers Compensation Act than the scientific threshold applied by the experts.
  • Circumstantial Evidence Clarified: R. v. Villaroman, 2016 SCC 33 ( 36435) – This decision clarifies the difference between direct and circumstantial evidence, and how circumstantial evidence may be used in criminal cases. A jury must be cautioned about "jumping to conclusions" or "filling in the blanks" with circumstantial evidence. Circumstantial evidence (reasonable inferences based on facts or evidentiary gaps, "assessed logically, and in light of human experience and common sense") is different than reasonable doubt (a degree of persuasion, or lack thereof, based on reason and common sense). The Crown may need to negative reasonable alternative theories or possibilities—but not merely speculative possibilities—where the evidence is circumstantial. "[T]o justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative". This decision will likely be cited in many future civil lawsuits as the clearest articulation of the law governing circumstantial evidence. It will also be applicable where corporate defendants are facing criminal or quasi-criminal charges.

Leaves to Appeal Granted

The SCC granted leave to appeal the following decision:

  • Adverse Possession: Mowatt v. British Columbia (Attorney General), 2016 BCCA 113 ( 36999) – In a rare modern case considering adverse possession, the petitioners claimed ownership of land on Kootenay Lake relying on the doctrine of adverse possession. The judge found that the petitioners had not proved continuous possession of the land for the years 1916 to 1920, and that this gap broke the continuity required to make out a claim. The BCCA allowed the appeal, holding that the requirement to prove "inconsistent use" with the true owner's intended use of the land does not apply in British Columbia, and that the gap in possession between 1916 and 1920 was actually shorter than found by the judge and, having regard to evidence available, it was more likely than not that the squatters had continuous possession during these years. The appeal to the SCC raises the issues of whether a distinct approach to fact-finding should be applied for claims that involve facts occurring beyond living memory, and whether the doctrine of inconsistent use is part of the law of adverse possession in Canada.

Leaves to Appeal Refused

Finally, the SCC refused leave to appeal the following decisions:

  • Regulator can Ban Loyalty Points for Pharmacies: Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41 ( 36917) – The College council passed bylaws prohibiting pharmacies from making incentive programs available to customers. The applicant pharmacies challenged the bylaws on the grounds that there was no risk of harm from the loyalty programs. The pharmacies sought to introduce new evidence in the judicial review, in addition to the documents that the College council considered when making its policy decision. The BCCA held that (i) the chambers judge erred by admitting evidence that was not before the College council when it passed the bylaws; and (ii) although the evidence supporting the need for the bylaws was "thin", the bylaws were still "within the range of reasonable outcomes" available to the College council. The College council was not obligated to pass the "narrowest" bylaw to achieve the outcome, as this was not a Charter challenge but rather a judicial review.
  • Unconscionability in Contract: Bank of Montreal v. Javed, 2016 ONCA 49 ( 36902) – Shah was a director of a corporation and he (along with Mr. Jahved) provided a personal guarantee to BMO to secure a small business loan. Mr. Shah subsequently resigned as director from the company and his subsequent requests for access to the company's account information with BMO were refused. The corporation then defaulted on the loan and BMO sought to enforce the guarantee against Mr. Shah. The ONCA rejected Mr. Shah's argument that the duty of honest performance recognized in Bhasin extended the doctrine of unconscionability beyond the equities of the contract itself, to apply to performance of a contract. It also found that, while the bank had breached its obligation to Mr. Shah in not providing him information regarding his liability under guarantee, this breach did not discharge the guarantee. See our post on the ONCA's decision here.
  • Sexist Blog Post Not Workplace Harassment: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495 ( 36647) – During a period of labour unrest, a unionized employee wrote a blog post and permitted the posting of a comment, both of which targeted his female manager by alleging nepotism and incompetence. The manager complained to the Human Rights Tribunal that the blog post and comment were discrimination or harassment in the workplace, contrary to the Human Rights Code. The Tribunal weighed the Charter values of freedom of expression and association and noted that, while the blog post and comment were sexist and offensive, there was no evidence that the postings were made from the workplace. The Tribunal concluded that the blog post and comment were not made "with respect to employment" under the Code. The Tribunal's decision was upheld by the Divisional Court and ONCA. Both courts held that the Tribunal did not err by considering Charter values in reaching its decision.
  • Obligations Regarding Exculpatory Clauses: Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33 ( 36887) – The plaintiff jewelry business claimed that the security and alarm system supplied by the defendant failed when it was robbed. The defendant was granted summary judgment on the basis that the contract included an exculpatory clause which noted that the system might fail and provided that the defendant would not be liable in any way for any loss arising from the provision of the products and services. The ONCA dismissed the plaintiff's appeal. In an ordinary commercial contract between two corporations, there is no obligation on the defendant to draw an exculpatory clause to the specific attention of the plaintiff. One of the issues raised in the application for leave to appeal to the SCC was whether the duty of good faith in contract created a duty of disclosure for any party proffering an exculpatory clause.
  • Insurance Contracts and Disclosing Material Facts: Swiss Reinsurance Company v. Camarin Limited, 2015 BCCA 466, 2016 BCCA 92 ( 36967) – At issue was the availability of a reinsurance policy following losses from settling a class action for defective tile. The reinsurer argued that the insured had failed to provide material information, rendering the insurance policy voidable. The BCCA held that the trial judge erred by failing to consider the information available to the reinsurer during each policy year and then analyzing the materiality of that information. A new trial was ordered.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions