Summaries Sunday: Supreme Advocacy

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 as well as leaves to appeal granted so you will know what the SCC will soon be dealing with (June 21 to July 11, 2019 inclusive).


Criminal Law: Complainant’s Sexual Activity
R. v. Goldfinch, 2019 SCC 38 (38270)

To be admissible, relationship evidence that implies sexual activity must satisfy requirements of s. 276 of the Code, and the evidence here did not meet those requirements: the relationship served no purpose other than to support the inference that because the complainant had consented in the past, she was more likely to have consented on the night in question. The evidence was therefore barred by s. 276(1); nor could it satisfy the conditions of admissibility under s. 276(2). While the sexual aspect of the relationship was evidence of “specific instances of sexual activity”, it was not “relevant to an issue at trial”.

Criminal Law: Peace Bonds; Bail Bonds
R. v. Penunsi, 2019 SCC 39 (38004)

The Criminal Code arrest and bail provisions apply, with necessary modifications, to peace bond proceedings.

Financial Institutions/Banks: Fiscal Law Enforcement
1068754 Alberta Ltd. v. Québec (Agence du revenu), 2019 SCC 37 (37999)

The fundamental issue in this appeal is whether the federal Bank Act limits the authority of the Québec Tax Agency under the Québec Tax Administration Act to issue a formal demand pursuant to s. 39. It does not. Because s. 462(2) of the Bank Act does not treat a bank’s branches as distinct from the bank itself, what matters is that Québec has the jurisdiction to make a Demand of National Bank, a corporate entity operating within its borders. In another case, if a corporate entity had no operations in Québec, it is not clear whether there would be such authority. On the facts here however Québec had the authority to issue the Demand to National Bank and send the Demand letter via the Calgary Branch. Because Québec properly sent the Demand to National Bank, and because the effect of s. 462(2) is to require a document be sent to the branch account, doing so fixes the bank with notice of the Demand. Thus, here, National Bank had notice of the Demand, and the Demand is binding on the bank as a whole.

Leaves to Appeal Granted

Bankruptcy & Insolvency: Anti-Deprivation Rule
Chandos Construction Ltd. v. Capital Steel Inc., 2019 ABCA 32 (38571)

What is liquidated damages v. a penalty.

Civil Procedure in Québec: Enforcement of International Arbitration Awards
Republic of Iraq v. Instrubel, 2019 QCCA 78 (38562)

Can this international arbitration award be enforced in Québec.

Class Actions in Québec: Contractual and Extra-Contractual Liability
Desjardins Financial Services Firm Inc. v. Asselin, 2017 QCCA 1673 (37898)

Can this financial services class action proceed.

Contracts: Duty of Honest Performance
C.M. Callow Inc. v. Zollinger, 2018 ONCA 896 (38463)

Was there a breach of the contractual duty of honest performance here.

Real Property in Québec: Servitudes
Hydro Québec v. Matta, 2018 QCCA 1189 (38254)

Are the servitudes here valid.

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