The Supreme Court of Canada's Fall term, which began on
October 3rd, could probably be labelled the
"internet term", with major cases involving both Google
and Facebook. The Court will also be hearing a number of other
cases that might be of interest to the business community:
In Portage LaPrairie Mutual Insurance Co v Sabean, the
Court will consider application of the contra proferentum
doctrine in determining whether CPP is a "policy of
insurance" for the purposes of deducting payments from a
damages order. Application of the doctrine may result in greater
liability for insurance companies when the extent of the damages
exceeds the tortfeasor's insurance policy limit. The case could
have implications for drafting insurance contracts.
The Court will consider two cases dealing with the proper
standard of review of an arbitrator's decision. British
Columbia v Teal Cedar Products Ltd and Urban
Communications Inc v BCNET Networking Society will give the
Court a chance to revisit its decision in Sattva Capital Corp v
Creston Moly Corp, particularly regarding distinguishing
questions of law and questions of mixed fact and law when reviewing
an arbitrator's decision.
The Court will consider the validity of consent through
acceptance of terms of service in Douez v Facebook Inc.
The plaintiff claims that the defendant used her likeness in an
advertisement. The defendant claims she consented by agreeing to
terms of service. The defendant also argues that the forum
selection clause in the terms of service precludes British Columbia
courts from taking jurisdiction.
In AstraZeneca Canada Inc v Apotex Inc, the Court will
consider the promise doctrine in analyzing the validity of a
patent. The Court will also consider how promises can impose
utility requirements on a patent.
The Court will revisit the oppression remedy in Black v
Alharayeri. In that case, the plaintiff decided to negotiate
the sale of his shares, but the board did not approve of the
transfer. The board proceeded with a private placement, which
significantly reduced the proportion of common shares owned by the
plaintiff. The case considers director and officer liability in
Aboriginal rights are on the docket in Chippewas of the
Thames First Nation v Enbridge Pipelines Inc, Hamlet of
Clyde River v TGS-NOPEC Geophyssical Company ASA and
Ktunaxa Nation Council v British Columbia (Minister of Forests,
Lands and Natural Resource Operations). The cases deal with
the responsibility of tribunals to consider the Crown's duty to
consult. The Court will determine whether the Crown can rely on a
tribunal's regulatory process to discharge its duty to consult.
The third case also considers the potential to use freedom of
religion under s. 2(a) of the Charter to restrain
behaviour of others who do not hold the belief.
The Court will hear an appeal of an injunction with global
implications in Equustek Solutions Inc v Jack. The
plaintiffs claimed that the defendants were profiting from stolen
trade secrets. The plaintiffs successfully sought an interim
injunction constraining Google, a third party to the litigation,
from including the defendant's website in search results. The
Court will consider the test for such an injunction and whether
British Columbia courts hold in personam jurisdiction over
Google, though it does not have resident employees, business
offices or servers in the province.
The Court will consider undue hardship and the duty to
accommodate employees suffering from addiction disabilities in
Stewart v Elk Valley Coal Corp. In that case a truck
driver tested positive for cocaine after he struck another truck.
His employer's policy allowed workers to seek help without fear
of termination, so long as addiction was disclosed prior to an
accident occurring. The driver was terminated, after which his
union filed a complaint with the Human Rights Commission.
Of course, the Supreme Court has started the term at less than
full strength, with Justice Cromwell retiring in September and no
new justice having been appointed yet. The Prime Minister's new
Advisory Board has apparently recommended five individuals for
appointment, so the Court should be back sitting nine soon
UPDATE: [Oct 19, 2016] On October 17, following publication of
this piece, Prime Minister Trudeau nominated Justice Malcolm Rowe
to the Supreme Court of Canada.
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