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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 (August 8 to September 26, 2019 inclusive).

Appeals

Class Actions: Certification; Limitation Periods; Discoverability; “Plain and Obvious”
Pioneer Corp. v. Godfrey, 2019 SCC 42 (37809)(37810)

Is it plain and obvious that the claim under s. 36(1) (a) of the Competition Act of so-called “umbrella purchasers” who bought ODDs or ODD products manufactured and supplied by someone other than the defendants, but who allege that the defendants’ price-fixing conduct raised the market price of the product, cannot succeed? This depends on whether these umbrella purchasers have a cause of action under s. 36(1) (a). The S.C.C. agrees with the courts below that they do, and it therefore follows that it is not plain and obvious that their claim cannot succeed. In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, such that discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from “the accrual of the cause of action”, discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury. Indeed, clear statutory text is necessary to oust its application. Discoverability continues to apply where the legislature has shown its intent that a limitation period shall run from “when the cause of action arose (or other wording to that effect)” or where the event triggering the limitation period requires the plaintiff’s knowledge of his or her injury. Conversely, discoverability does not apply where that triggering event does not depend on the plaintiff’s knowledge or is independent of the accrual of the cause of action.

Copyright: Crown Copyright
Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43 (37863)

Determining whether a work was published with sufficient governmental direction or control to comply with s. 12 of the Copyright Act necessitates an inquiry into the Crown’s interest in the works at the time of publication since this interest will demonstrate the degree of direction or control exercised by the Crown over the publication process; the Crown must wield direction or control over the publication process, regardless of whether the works are published “by” the Crown itself, or by a third party under the Crown’s “direction or control”. In determining whether a work was published “by” the Crown for the purposes of s. 12, relevant indicia of governmental direction or control may include: the presence of a statutory scheme transferring property rights in the works to the Crown; a statutory scheme which places strict controls on the form and content of the works; whether the Crown physically possesses the works; whether exclusive control is given to the government to modify the works; the opt-in nature of the statutory scheme; and the necessity of the Crown making the works available to the public. These same factors are relevant to the inquiry of whether a work is published “under the direction or control” of the Crown when a third party is involved in the publication process. When it is a third party who does the actual publishing, however, it will also be necessary to examine the direction or control exercised by the Crown over the third party publisher. Re publication, one has to ask: are the registered and deposited plans of survey published by or under the direction or control of the Crown? Answering this question requires an examination into the degree of direction or control exercised by the Crown over the publication process culminating in the published work.

Leaves to Appeal Granted

Charter: s. 15; NCR
Ontario (Attorney General) v. G., 2019 ONCA 264 (38585)

Are the particular provisions in these sex offender registries constitutionally valid.

Commercial Law: Insolvency
9354-9186 Québec Inc. (formerly Bluberi Gaming Technologies Inc.) et al. v. Callidus Capital Corporation et al., 2019 QCCA 171 (38594)

Does insolvency law allow a creditor to vote on its own plan of arrangement.

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