Summaries Sunday: 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. (Oct. 5 – Nov. 15, 2013 inclusive).


Class Actions/Competition Law: Price-Fixing
Sun-Rype Products Ltd. v. Archer Daniels Midland  (B.C.C.A., April 15, 2011) (34283) Oct. 31, 13
The inclusion of indirect and direct purchasers in the proposed class does not produce difficulties that would warrant dismissing the action; but this case cannot meet the certification requirements because there is not an identifiable class of indirect purchasers as required for certification under the B.C. Class Proceedings Act.

Class Actions/Competition Law: Price-Fixing
Infineon Technologies AG v. Option Consommateurs (Que. C.A., Nov. 16, 2011(34617) Oct. 31, 13
There is no reason to prevent Option consommateurs from continuing to represent the interests of both the direct and the indirect purchasers at this stage of the litigation. It would be more appropriate to deal with any actual conflict between the direct and indirect purchasers at subsequent stages of the proceedings, once any aggregate loss has been established.

Class Actions: Indirect Purchasers; Passing-On Defence; Commonality
Pro Sys Consultants Ltd. v. Microsoft (B.C.C.A., April 15, 2011) (34282) Oct. 31, 13
The S.C.C. held:

  • Indirect purchasers have a cause of action against the overcharging party.
  • The passing‑on defence is rejected, and that rejection is not limited to the context of the imposition of ultra vires taxes; the passing‑on defence is rejected throughout the whole of restitutionary law.
  • However, the rejection of the passing‑on defence does not lead to a corresponding rejection of the offensive use of passing on; so, indirect purchasers should not be foreclosed from claiming losses passed on to them.
  • The pleadings based on constructive trust must be struck; in order to find that a constructive trust is made out, the plaintiff must be able to point to a link or causal connection between their contribution and the acquisition of specific property.
  • There is contradictory law as to the question of whether the underlying tort needs to be established in order to sustain an action in waiver of tort; this appeal is not the proper place to resolve the details, nor the particular circumstances in which it can be pleaded.
  • The expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonality requirement; it must offer a realistic prospect of establishing loss on a class‑wide basis.
  • The question of whether damages assessed in the aggregate are an appropriate remedy can be certified as a common issue; however, this common issue should only be determined at the common issues trial after a finding of liability has been made.

Criminal Law: Motions to Adduce Fresh Evidence
R. v. Hay  (Ont. C.A., May 12, 2009) (33536) Nov. 8, 13
Fresh evidence that could reasonably be expected to have affected a jury’s verdict should be admitted.

Criminal Law: Provocation
R. v. Pappas (Alta. C.A., July 12, 2012) (34951) Oct. 25, 13
Before leaving the defence of provocation to the jury, the trial judge must find there is an air of reality on both the objective and subjective elements of the defence; the question is whether a properly instructed jury acting reasonably could be left in a state of reasonable doubt as to whether the accused is guilty of murder, on the basis of provocation; and there must be an evidential foundation for both the objective and subjective elements of the defence (which s. 232(3) of the Criminal Code states are questions of fact).

Criminal Law: Search and Seizure (Computers)
R. v. Vu  (B.C.C.A., December 28, 2011) (34687) Nov. 7, 13
The requirement of specific, prior authorization means that if police intend to search computers, they must satisfy the authorizing justice they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. If, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched.

Criminal Law: (Self-Induced) Provocation
R. v. Cairney (Alta. C.A., October 5, 2011) (34848) Oct. 25, 13
Self-induced provocation is where the accused initiates or invites the act or insult he says provoked him; it is not a special category of the defence of provocation; the fact the accused initiated or invited the provocation is simply a contextual factor in determining whether the subjective and objective elements are met.

Environmental Law: Duty to Report
Castonguay Blasting Ltd. v. Ontario (Environment) (Ont. C.A., March 16, 2012) (34816) Oct. 17, 13
Ontario’s Environmental Protection Act requires the Ministry of the Environment be immediately notified when a contaminant is discharged into the environment; there are two pre-conditions: the discharge must have been out of the normal course of events; it must have had, or was likely to have, an adverse environmental impact.

Health Law: End-Of-Life Decisions
Cuthbertson v. Rasouli (Ont. C.A., June 29, 2011) (34362) Oct. 18, 13
In the past, disputes between next of kin and physicians over consent regarding life support and other forms of medical treatment for incapable patients were resolved through the courts, under the common law; however, in Ontario, the Health Care Consent Act provides a statutory scheme for resolving such disputes.

Labour Law: Strikes; Personal Information; Privacy
Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 (Alta.C.A., April 30, 2012) (34890) Nov. 15, 13
Alberta’s Personal Information Protection Act is unconstitutional in the labour law context insofar as it prohibits unions from photographing and publicizing photographs of workers crossing picket lines, but the declaration of unconstitutionality is suspended for 12 months (to give the Alberta legislature time to decide how best to make the legislation constitutional).


Criminal Law: Legislative Retrospectivity
When can (federal) legislation be retrospective.
Clarke v. R. (Ont. C.A., Jan 11, 2013)(35487) this case to be heard with R. v. Carvery (35115) and R. v. Summers (35339). Oct. 17, 13

Employment Law: Termination
Was the Appellant constructively dismissed.
David Potter v. N.B. Legal Aid (N.B.C.A., April 25, 2013) (35422) Oct. 10, 2013

Labour Law: Essential Services Legislation
What public services are “essential”.
Sask. Federation of Labour, et al. v. Saskatchewan (Sask. C.A., Apr. 26, 2013) (35423) Oct. 17, 13

Professions: Access to Law Firm Information
Does federal money laundering/terrorist financing legislation trump solicitor-client privilege.
A.G. Can. v. Fed. of Law Societies (B.C.C.A, April 4, 2013) (35399) Oct. 10, 2013


Criminal Law: Sexual Offences
There is a publication ban in this case, as well as a publication ban on the name of the party, and the court file contains information not available for inspection by the police, in the context of an intellectually challenged accused charged with a series of sexual offences.
R.L. v. R. (Que. C.A, April 5, 2012) (34871) Oral judgment rendered Oct. 18, 2013
Justice LeBel: “Speaking for a majority of the Court … the Court of Appeal of Quebec did not err when … it dismissed the appellant’s application for an extension of time, and for those reasons, the appeal is dismissed”.

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