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Summaries Sunday: Supreme Advocacy

On one Sunday 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. (Nov. 16 to Dec. 13, 2013 inclusive).

APPEALS

Class Actions: Certification; Market Timing
AIC Limited v. Fischer (Ont. C.A. Jan. 27, 2012) (34738) Dec. 12, 2013
The preferable procedure inquiry must “focus on the underlying purpose and nature of the alternative proceeding as compared with the class proceeding” (quoting from the C.A. below), and the (preferability) analysis is not solely focused on procedural considerations but must, within the proper scope of the certification process, consider both substantive and procedural aspects.

Contracts In Quebec: Rectification
Quebec (Agence du Revenu) v. Services Environnementaux AES inc. (Que. C.A. Mar. 4 and May 20, 2011) (34393) (34235) Nov. 28, 2013
It is open to the courts to rectify contracts to find that the amendments made by the parties are legitimate and necessary, and reflect their common intention.

‘Criminal’ Law/Provincial Offences: Strict Liability; Due Diligence
La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers (Que. C.A., January 10, 2012) (34699) Nov. 21, 13
The Appellant argued the offence (it had authorized, permitted or consented to the distribution by its broker of insurance products for property located in Quebec although it knew the broker did not hold the licences required) required proof of mens rea and the subjective element of the offence was not proved beyond a reasonable doubt. The offence in question however is one of strict liability. The actus reus was established, and the due diligence defence not available in this case, because the appellant was relying on a pure mistake of law.

Criminal Law: Uttering Threats; Elements Of The Offence
R. v. McRae (Que. C.A., February 3, 2012) (34743) Dec. 6, 2013
The offence does not require proof that the accused’s threats were conveyed to the target or someone was actually intimidated by them; further, the Crown need not establish the accused intended the threats be conveyed or intimidate anyone. The fault element is made out if it is shown threatening words uttered or conveyed “were meant to intimidate or to be taken seriously”.

Employment Law: Termination; Deductibility Of Pension Benefits
IBM Canada Limited v. Waterman (B.C.C.A., August 2, 2011) (34472) Dec. 13, 2013
Pension benefits are not deducted from wrongful dismissal damages.

International Law: Jurisdictional Immunity
Amaratunga v. Northwest Atlantic Fisheries Organization (N.S.C.A., August 23, 2011) (34501) Nov. 29, 2013
NAFO has immunity from suit, with the exception of a claim concerning separation indemnity.

Pharmaceuticals: Generics
Katz Group Canada Inc. v. Ontario (Health and Long-Term Care) (Ont. C.A., December 23, 2011) (34647)(34649) Nov. 22, 2013
‘Private label’ generic drug pricing regulations are intra vires.

Securities: Regulation; “Secondary Proceedings”; Standard Of Review; Limitation Periods
McLean v. B.C. (Securities Commission) (B.C.C.A. Nov. 10, 2011) (34593) Dec. 5, 2013
The governing standard of review is reasonableness. While it is true that the application of s. 159 of the B.C. Securities Act to the secondary proceeding provisions such as s. 161(6)(d) will have the effect, as a practical matter, of extending the period under which the cloud of potential regulatory action hangs over a person, that, of itself, is not offensive to the legislative purpose of limitation provisions.

LEAVES TO APPEAL GRANTED

Criminal Law: Jury ‘Representativeness’
How representative do juries have to be.
R. v. Clifford Kokopenace (Ont. C.A., June 14, 2013) (35475) Nov. 21, 2013

Criminal Law: Long-Gun Registry
Can Quebec keep the federal long-gun registry data.
Attorney General of Quebec v. Attorney General of Canada et al. (Que. C.A., July 23, 2013) (35448) Nov. 21, 2013

Evidence: Admissibility Of Expert Reports
When can expert reports be admitted/expunged.
White Burgess Langille Inman, carrying on business as WBLI Chartered Accountants, et al. v. Abbott and Haliburton Company Limited, et al. (N.S. C.A., May 24, 2013) (35492) Nov. 21, 2013

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