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 (November 16 – December 13, 2019 inclusive).


Constitutional/Maritime Law: Division of Powers; Sale of Marine Parts
Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58 (37873)

The federal maritime law at issue here is non-statutory; so a modified pith and substance test must be applied at the characterization stage: one that looks at the substantive law at issue and to the particular fact situation, rather than to purpose and effect. At the classification stage, the integral connection test is the proper method for determining whether the matter is subject to the federal power over navigation and shipping and thus would not come exclusively within provincial jurisdiction. In sum: the sale of marine engine parts intended for use on a commercial vessel is integrally connected to navigation and shipping so as to come within federal legislative authority; it follows that federal maritime law extends to that matter, but this does not mean there is no provincial law that can also validly govern such a sale; the Québec C.A. below should have considered whether the provincial law (in this case, art. 1733 of the Civil Code) was valid, applicable and operative; when one applies the relevant constitutional doctrines, one concludes the rule expressed in the Civil Code governs.

Contracts/Environmental Law: Indemnity Agreements
R. v. Resolute FP Canada Inc., 2019 SCC 60 (37985)

Properly construed, the 1985 Indemnity was intended to cover only pollution claims brought by third parties. First party regulatory claims do not fall within the scope of the 1985 Indemnity.

The motion judge here made palpable and overriding errors of fact and failed to give sufficient regard to the factual matrix when interpreting the scope of the 1985. The 1985 Indemnity was intended to cover only proceedings arising from the discharge or continued presence of mercury in the related ecosystems, not those related to the mere presence of mercury contained in the waste disposal site. The motion judge erred by failing to read the 1985 Indemnity as a whole; properly interpreted, the 1985 Indemnity only applies to third party claims.

Municipal Law in Québec: Contracts
Montréal (Ville) v. Octane Stratégie inc., 2019 SCC 57 (38066)(38073)

The S.C.C. agreed with the Québec C.A.’s conclusions re application of the rules on restitution of prestations in the municipal context, but said the C.A. erred in according deference to the trial judge’s findings concerning the existence of a contract between the City and Octane (a public relations and communications firm, with regard to an event concept for the municipality’s transportation plan). The mandate given to Octane was not authorized by a resolution of the municipal council or by an officer acting under a delegation of powers; so no contract for the production of the launch event came into existence between the City and Octane. Because it is not possible to annul a juridical act that never came into existence, the trial judge here erred in ordering that the parties be restored to their previous positions on this basis. The rules on receipt of a payment not due apply in this case, which means that the restitution of prestations is nonetheless necessary. Because the City has not shown the trial judge erred in assessing the fair value of the services provided, or in declining to exercise discretion to refuse restitution or modify scope or modalities under para. 2 of art. 1699 of the Civil Code, there is no basis for reviewing his conclusion in this regard; the City must therefore restore the sum of $82,898.63 to Octane.

Police: Civil Liability in Québec
Kosoian v. Société de transport de Montréal, 2019 SCC 59 (38012)

A reasonable police officer in the same circumstances as here would not have considered failure to hold a handrail an offence. Police committed a fault by taking hold of Ms. Kosoian in order to prevent her from leaving and detaining her. The municipal subway committed a fault by teaching police officers that the pictogram in question imposed an obligation to hold the handrail, a fault that explains — at least in part — police conduct. As the police officer’s principal, the City must be held liable for his fault. Ms. Kosoian was entitled to refuse to obey an unlawful order, and therefore committed no fault that would justify an apportionment of liability.

Oral Judgments

Class Actions in Québec: Authorization
Volkswagen Group Canada Inc. v. Association québécoise de lutte contre la pollution atmosphérique, 2018 QCCA 1034; 2019 SCC 53 (38297)

The Chief Justice: “A majority of the Court finds that the Court of Appeal judge did not err in exercising her discretion, and the appeal is therefore dismissed with costs. Justices Moldaver, Brown and Rowe would have allowed the appeal on the basis that the Court of Appeal judge should have granted leave to appeal on the question of law raised by the appellants. They would have remanded the case to the Court of Appeal for a decision on the merits. Justice Côté would have allowed the appeal with costs.”

Criminal Law: Jury Verdict
R. v. Shlah, 2019 ABCA 184; 2019 SCC 56 (38661)(38677)

Moldaver J.: “The appeal is dismissed substantially for the reasons of Chief Justice Fraser. We agree with the majority of the Court of Appeal that the charge to the jury does not disclose reviewable error, and the jury’s verdict was not unreasonable. However, we do not endorse para. 27 of the majority’s reasons to the extent it may be taken as suggesting that the reviewing court must identify an extricable error as a precondition to concluding that the jury’s verdict was unreasonable. A determination that the jury’s verdict was unreasonable is itself an error of law warranting appellate intervention.”

Criminal Law: Search & Seizure
R. v. James, 2019 ONCA 288; 2019 SCC 52 (38616)

The Chief Justice: “A majority of the Court would allow the appeal and order a new trial, substantially for the reasons of Justice Nordheimer, to the extent that he concluded that there was no breach of s. 8 of the Canadian Charter of Rights and Freedoms. Justices Abella, Karakatsanis, Brown and Martin would have dismissed the appeal, substantially for the reasons of Justice Pardu.”

Leaves to Appeal Granted

Real Property: Positive Covenants
Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation, 2019 BCCA 145 (38741)

Scope, content, and enforceability of positive covenants.

Torts: Misfeasance in Public Office; Police v. Prosecutors
Ontario (Attorney General) v. Clark, 2019 ONCA 311 (38687)

Police sue AG in negligence and misfeasance in public office.

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