Sunday Summaries: Supreme Advocacy

On the second Sunday in each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, SupremeAdvocacyLett@r, to which you may subscribe.

Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with). For leaves, both the date the S.C.C. granted leave and the date of the C.A. judgment below are added in, in case you want to track and check out the C.A. judgment. (June 13 to July 11, 2013 inclusive).


Civil Procedure: Settlement Privilege; Pierringer Agreements
Sable Offshore Energy Inc. v. Ameron International Corp.(N.S.C.A., December 22, 2011) (34678) June 21, 2013
Settlement privilege promotes settlements. What is said during negotiations will be more open, and more fruitful, if the parties know it cannot be subsequently disclosed. Settlement privilege extends beyond documents and communications expressly designated to be “without prejudice”. There are exceptions to the privilege. To come within those exceptions, a defendant must show that, on balance, “a competing public interest outweighs the public interest in encouraging settlement”. In Pierringer Agreements non-settling defendants can only be held liable for their share of the damages and are severally, and not jointly, liable with the settling defendants. Pierringer Agreements are not required to be disclosed.

Criminal Law: Sufficiency of Reasons; Burden of Proof
R. v. Vuradin (Alta. C.A., October 7, 2011) (35143) June 27, 2013
An appellate court tasked with determining whether a trial judge gave sufficient reasons must follow a functional approach. Do the reasons, read in context, show why the judge decided as he did. In this case, the trial judge’s reasons satisfy this threshold. The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt. The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused’s evidence and the Crown’s evidence. However, trial judges are not required to explain in detail the process they followed to reach a verdict. The trial judge properly applied the burden of proof in this case.

Criminal Law: Hearsay; Implied Assertion of Factual Propositions
R. v. Baldree (Ont.C.A, Mar. 2, 2012) (34754) June 19, 2013
The hearsay exclusionary rule applies to both “express hearsay” and to “implied hearsay”. In both instances, the relevance of the out-of-court statement is not that the statement was made, but rather what the content of the statement purports to prove. [quotes and italics in original].

Immigration: Refugees
Agraira v. Canada (Public Safety and Emergency Preparedness)(Fed. C.A., March 17, 2011) (34258) June 20, 2013
It is not in the national interest to grant refugee status to those who have had sustained contact with known terrorist and/or terrorist‑connected organizations.

Labour Law: Mandatory Random Alcohol & Drug Testing
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited (N.B.C.A., July 7, 2011) (34473) June 14, 2013

A unilaterally imposed policy of mandatory, random and unannounced testing for all employees is not appropriate. Random testing in a dangerous workplace may be OK if it represents a proportionate response in light of both legitimate safety concerns and privacy interests. An employer is always free to negotiate drug and alcohol testing policies with the union.

Professions: Conflicts of Interest
Canadian National Railway Co. v. McKercher LLP (Sask. C.A., September 28, 2011) (34545) July 5, 2013
The ‘bright line rule’ is engaged when two separate clients are adverse in legal interests. Failing to obtain consent breaches the bright line rule. In addition to its duty to avoid conflicts of interest, a law firm is under a duty of commitment to the client’s cause which prevents it from summarily and unexpectedly dropping a client in order to circumvent conflict of interest rules, and a duty of candour which requires the law firm to advise its existing client of all matters relevant to the retainer.

Real Property: Resulting Trust v. Unjust Enrichment
Nishi v. Rascal Trucking Ltd. (B.C.C.A., August 17, 2011) (34510) June 13, 2013
A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property. Where the person advancing the funds is unrelated to the person taking title, the law presumes the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution. There is a long settled doctrine of resulting trust in favour of unjust enrichment.


Charter: Freedom of Conscience & Religion
Is an ethics and religious culture program mandatory in Quebec schools, replacing Catholic and Protestant programs of religious and moral instruction.
Loyola High School, John Zucchi v. Attorney General of Quebec (Que. C.A., Dec. 4, 2012) (35201) June 14, 2013

Competition Law: Mergers
Can a merger between hazardous waste companies be blocked as preventing real and substantial competition in that marketplace.
Tervita Corporation, et al. v. Commissioner of Competition (Fed. C.A., Feb. 11, 2013) (35314) July 11, 2013

Criminal Law: Forfeiture
There is a sealing order in this case, in the context of wiretap disclosure.
Director of Civil Forfeiture v. Hells Angels Motorcycle Corporation, et al. (B.C.S.C., Oct. 19, 2012) (35134) June 13, 2013

Criminal Law: Impaired; Higher Sentences
Should there be a greater punishment by reason of previous convictions for alcohol related driving offences.
R. v. Frederick Anderson (N.L. C.A., Jan. 10, 2013) (35246) June 27, 2013

Criminal Law: Right To Counsel
What are the rights to counsel and seizure rights where a cell phone (and it’s electronic/digital content) is seized by police.
Kevin Fearon v. R. (Ont. C.A., Feb. 20, 2013) (35298) July 11, 2013

Can Canadian law enforcement send Canadian wiretaps or information to U.S. law enforcement.
Andrew Gordon Wakeling, et al. v. Attorney General of Canada on behalf of the U.S.A., et al. (B.C.C.A., Oct. 9, 2012) (35072) June 13, 2013

Immigration: Refugees
Is a person who has been convicted of a serious non‑political crime outside of Canada and prior to his admission to Canada as a refugee excluded from refugee protection.
Luis Alberto Hernandez Febles v. Minister of Citizenship and Immigration (Fed. C.A., Dec. 7, 2012) (35215) July 4, 2013

Municipal Law in Quebec: Non-Conforming Uses
Was there a legal non-conforming use here based on prior acquired rights.
Immeubles Jacques Robitaille Inc. v. City of Québec (Que. C.A., Feb. 7, 2013) (35295) July 11, 2013


  1. The last sentence of the summary of Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 – “Pierringer Agreements are not required to be disclosed. – is wrong.

    What didn’t have to be disclosed, before trial, was the amount of the settlement.

    This is the last paragraph of the headnote.

    “The non-settling defendants have received all the non-financial terms of the Pierringer Agreements. They have access to all the relevant documents and other evidence that was in the settling defendants’ possession. They also have the assurance that they will not be held liable for more than their share of damages. As for any concern that the non-settling defendants will be required to pay more than their share of damages, it is inherent in Pierringer Agreements that non-settling defendants can only be held liable for their share of the damages and are severally, and not jointly, liable with the settling defendants. The defendants remain fully aware of the claims they must defend themselves against and of the overall amount that Sable is seeking. There is therefore no tangible prejudice created by withholding the amounts of the settlements which can be said to outweigh the public interest in promoting settlements.”

    The related portions of the ratio are paras. 25-27.

    The SCC stated the issue in para.3:

    “[3] Sable Offshore Energy Inc. sued a number of defendants. It settled with some of them. The remaining defendants want to know what amounts the parties settled for. The question before us is whether those negotiated amounts should be disclosed or whether they are protected by settlement privilege.”

    This is para. 25:

    “[25] The non-settling defendants have in fact received all the non-financial terms of the Pierringer Agreements. They have access to all the relevant documents and other evidence that was in the settling defendants’ possession. They also have the assurance that they will not be held liable for more than their share of damages. Moreover, Sable agreed that at the end of the trial, once liability had been determined, it would disclose to the trial judge the amounts it settled for. As a result, should the non-settling defendants establish a right to set-off in this case, their liability for damages will be adjusted downwards if necessary to avoid overcompensating the plaintiff.”