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, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all appeals and leaves to appeal granted, so you know what the S.C.C. will soon be dealing with (June 17 to July 19, 2017 inclusive).


Civil Procedure/International Law: Forum Selection Clauses

Douez v. Facebook, Inc., 2017 SCC 33 (36616)

While s. 4 of the B.C. Privacy Act does not override forum selection clauses, strong reasons not to enforce the clause has been established here: the grossly uneven bargaining power between the parties and the importance of adjudicating quasi-constitutional privacy rights in the province are reasons of public policy that are compelling, and when considered together, are decisive. In addition, the interests of justice, and the comparative inconvenience and expense of litigating in California, all support a finding of strong cause here.

Civil Procedure/Technology: Worldwide Interlocutory Injunctions

Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (36602)

Can Google can be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company. Classic interlocutory injunction jurisprudence: is there a serious issue to be tried; would irreparable harm result if the injunction were not granted; and does the balance of convenience favour granting or refusing the injunction. The ultimate question is whether granting the injunction would be just and equitable in all the circumstances of the case. When a court has in personam jurisdiction, and where necessary to ensure the injunction’s effectiveness, it can grant an injunction enjoining that person’s conduct anywhere in the world. Because the Internet has no borders, the only way to ensure the interlocutory injunction attained its objective is to have it apply where Google operates — globally. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is free to apply to the B.C. courts to vary the interlocutory order accordingly. This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. The S.C.C. has not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.

Contracts/Arbitration/Natural Resources: Standard of Review

Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (36595)

In B.C. the scope of appellate intervention in commercial arbitration is narrow: there is limited jurisdiction for appellate review of arbitration awards because B.C. is statutorily limited to questions of law (Arbitration Act, s. 31); even where such jurisdiction exists, the S.C.C. held that a deferential standard of review — reasonableness — “almost always” applies to arbitration awards (Sattva Capital v. Creston Moly Corp., [2014] 2 S.C.R. 633, at paras. 75, 104 and 106).

Corporations: Oppression Remedy

Wilson v. Alharayeri, 2017 SCC 39 (36689)

Section 241(3) of the C.B.C.A. allows a court to “make any interim or final order it thinks fit” to rectify matters complained of in an action for corporate oppression, and this includes finding a director personally liable.

Criminal Law: DUI

R. v. Alex, 2017 SCC 37 (36771)

When ss. 258(1)(c) and 258(1)(g) are analyzed in accordance with modern principles of statutory interpretation, the Crown need not prove the demand was lawful in order to take advantage of statutory “shortcuts”; if sample taking is subjected to Charter scrutiny, and evidence of the breath test results found to be inadmissible by virtue of ss. 8 and 24(2), that ends the matter, and resort to the evidentiary shortcuts a non-issue. But if the breath test results are found to be admissible (either because no s. 8 breach occurred or because the evidence survived s. 24(2) scrutiny), the shortcuts remain available to the Crown.

Criminal Law: Hearsay

R. v. Bradshaw, 2017 SCC 35 (36537)

Hearsay may exceptionally be admitted under the principled exception when it meets the criteria of necessity and threshold reliability.

In deciding whether corroborative evidence is of assistance in a substantive reliability inquiry, trial judges should:

  1. Identify the material aspects of the hearsay statement tendered for their truth.
  2. Identify the specific hearsay dangers raised in the particular circumstances of the case.
  3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.
  4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

Criminal Law: Mistake of Age Defence

R. v. George, 2017 SCC 38 (37372)

It is a criminal offence to sexually touch a child aged 14 or more but younger than 16 when one is five or more years their senior, even if one honestly believes they are older than 16, unless one has taken “all reasonable steps” to ascertain their age; nothing more is required. To suggest that exploitation is a requirement for the offence belies: the scheme of the Code, which already prohibits sexual exploitation (s. 153 ) and sexual activity where “consent” is procured through abuse of trust, power or authority (s. 273.1(2) (c)); Parliament’s recognition that adult/youth sexual relationships are inherently exploitative. Overt indicia of exploitation may diminish the credibility of an accused’s purported mistaken belief in the complainant’s age, or the reasonableness of the steps taken by that accused, but they are not required for the offence itself.

Pharmaceutical Patents: “Promise of the Patent” Doctrine re Utility

AstraZeneca Canada Inc. v. Apotex Inc., 2017 SCC 36 (36654)

The Promise Doctrine is not the correct approach to determine whether a patent has sufficient utility. To determine whether a patent discloses an invention with sufficient utility under s. 2, courts should: identify the subject matter of the invention as claimed in the patent; ask whether that subject matter is useful — is it capable of a practical purpose (i.e. an actual result). A single use related to the nature of the subject-matter is sufficient, and the utility must be established by either demonstration or sound prediction as of the filing date. Case law has imposed a requirement that an invention’s usefulness be demonstrated or soundly predicted at the time of application, rather than at some later point; though utility of the subject-matter is a requirement of patent validity, a patentee is not required to disclose the utility of the invention to fulfill the requirements of s. 2.

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