The Supreme Court of Canada winter term has begun. While the court will be hearing mostly criminal law matters, in January through March, it will consider four cases that may interest the business community or organizations facing civil litigation:
- In an appeal of Entertainment Software Association v Society
of Composers, Authors and Music Publishers of Canada, 2020
FCA 100, the Court will consider whether making musical works
available for download or streaming results in payable royalties.
The Society of Composers, Authors and Music Publishers of Canada
administers tariffs for the "communication" of musical
works on behalf of copyright owners. Amendments in
the Copyright Modernization Act, SC 2012 c. 20, added
section 2.4(1.1) to the Copyright Act, which defines
"communication" to include making a work available to the
public by telecommunication. A few days after these amendments took
effect, the Supreme Court of Canada released Entertainment Software Association v. Society
of Composers, Authors and Music Publishers of Canada, 2012
SCC 34, in which the Court decided that the transmission of a work
over the internet that results in a download is
not a communication by telecommunication. In this matter,
however, the Copyright Board determined that section 2.4(1.1) of
the Copyright Act deems the transmission of a
work over the internet that results in a
download is a communication by
telecommunication. Following a judicial review of that decision,
the Federal Court of Appeal quashed the decision of the Board. On
appeal, the Supreme Court of Canada is expected to determine
whether, given section 2.4(1.1) of the Copyright
Act and the Court's previous decision, making musical
works available for download or streaming results in payable
royalties to SOCAN.
- Petrowest Corporation v Peace River Hydro
Partners, 2020 BCCA 339, addresses the intersection of
insolvency principles and domestic arbitration law. Petrowest
Corporation entered into a partnership agreement, forming Peace
River Hydro Partners, and subcontracted some work to various
Petrowest Affiliates. Petrowest Corporation and its affiliates
became insolvent, and Ernst & Young Inc. was appointed as the
receiver. The receiver started a civil claim on behalf of Petrowest
Corporation and the Petrowest Affiliates to recover receivables
owed under the partnership agreement and various purchase orders
and subcontracts. These agreements include arbitration clauses.
Peace River Hydro Partners applied for a stay of the claim under
section 15 of the Arbitration Act, RSBC 1996, c. 55.
The Supreme Court of British Columbia dismissed the application,
finding that the court had jurisdiction to find that the receiver
ought not to be bound by the arbitration clauses and be forced to
undergo multiple arbitration proceedings that could otherwise be
resolved in one litigation, which would conflict with the
objectives under the Bankruptcy and Insolvency Act,
RSC 1985, c B-3. The British Columbia Court of Appeal dismissed the
appeal, finding that the arbitration clauses were separable from
the rest of the agreements and the receiver could therefore
exercise its right to disclaim agreements with respect to those
arbitration clauses. The Supreme Court of Canada is expected to
determine whether, and when, receivers should be bound to
arbitration clauses in contracts they are not party to. Bennett
Jones acts as counsel for the respondents, Petrowest Corporation,
the Petrowest Affiliates and Ernst & Young Inc.
- In an appeal of Annapolis Group Inc. v Halifax Regional
Municipality, 2021 NSCA 3, the Supreme Court of Canada
will consider de facto expropriation by a
municipality. Annapolis Group Inc. sought to develop lands that it
owns within the boundary of Halifax Regional Municipality. Halifax
declined to start a planning process or amend a by-law, both of
which would have been required for the proposed development.
Annapolis commenced a claim alleging that Halifax had encouraged
the public to use the land as a public park and deliberately
obstructed Annapolis' development attempts, leading
to de facto expropriation. Halifax sought
summary judgment dismissing the de
facto expropriation claim, which was dismissed by a
chambers judge. The Nova Scotia Court of Appeal granted the appeal
and summarily dismissed the de
facto expropriation claim. The Supreme Court is expected
to consider and clarify the test of de
facto expropriation and whether summary judgment is
appropriate in this case.
- Canada (Transportation Safety Board) v Carroll-Byrne, 2021 NSCA 34, concerns statutory interpretation principles. The Transportation Safety Board investigated the crash of a commercial flight, which landed short of the runway in Halifax during a snowstorm. The Board's investigation and report considered the on-board cockpit voice recording (the black box), but it has not released the black box to the public, citing statutory privilege. Some of the passengers commenced a class action alleging negligence on the part of various defendants in relation to the airplane crash. As part of that action, the passengers applied for disclosure of the black box based on section 28(6) of the Canadian Transportation Accident Investigation and Safety Board Act, SC 1989, c. 3, which permits disclosure if the court "concludes in the circumstances of the case that the public interest in the administration of justice outweighs in importance the privilege attached to the on-board recording." The Board intervened, and sought the opportunity to make ex parte, in camera submissions about the disclosure. A judge of the Supreme Court of Nova Scotia denied the Board's request for ex parte submissions, and granted the disclosure subject to confidentiality restrictions. The Nova Scotia Court of Appeal dismissed the Board's appeal, confirming that the Act did not confer any right to ex parte submissions. The Supreme Court of Canada is expected to clarify the interpretation of section 28(6) of the Act, in particular whether it entitles the Board to make confidential ex parte submissions, and what threshold to apply when considering whether disclosure is required given "the public interest in the administration of justice."
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.
