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 9 – July 15, 2016 inclusive).


Class Actions: Jurisdiction
Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 (36087)

The fourth Van Breda factor promotes certainty by premising the determination of when a contract will be “made” in a given jurisdiction on the traditional rules of contract formation, and also promotes flexibility and commercial efficiency. As seen in Van Breda, all that is required is a connection between the claim and a contract that was made in the jurisdiction and “connection” does not necessarily require that alleged tortfeasor be a party to the contract. To narrow the fourth presumptive factor would undermine the flexibility required in private international law. The real and substantial connection test is not concerned with showing “the strongest” possible connection between the claim and the forum where jurisdiction is sought.

Constitutional Law/Telecommunications: Division of Powers
Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23 (36027)

The siting of a radiocommunication antenna system represents an exercise of federal jurisdiction. The municipal notice is therefore ultra vires in Québec. The notice is also is inapplicable to Rogers by reason of the doctrine of interjurisdictional immunity.

Criminal Law: Bestiality
R. v. D.L.W., 2016 SCC 22 (36450)

Penetration remains “as it has always been” an essential element of the offence of bestiality.

Criminal Law: Delay
R. v. Vassell, 2016 SCC 26 (36792)

Here the Crown chose to prosecute all seven accused jointly, as it was entitled to do, but having done so, was required to remain vigilant that its decision not compromise s.11 (b). Appellant’s counsel reviewed disclosure promptly, pushed for a pre-trial conference or case management, worked with the Crown to streamline issues at trial, agreed to admit an expert report, made Crown and Court aware of s. 11 (b) issues, and at all times sought early dates. In these circumstances, a more proactive stance on the Crown’s part was required. Delay was unreasonable.

Criminal Law: Delay – “New Framework”
R. v. Jordan, 2016 SCC 27 (36068)


  • the ceiling beyond which delay becomes presumptively unreasonable ̶ 18 months provincial court, 30 months superior court (or cases tried in provincial court after a preliminary); defence delay not count towards the presumptive ceiling.
  • once presumptive ceiling is exceeded, burden shifts to Crown to rebut presumption on basis of exceptional circumstances; exceptional circumstances outside the Crown’s control: (1) reasonably unforeseen or reasonably unavoidable, (2) cannot reasonably be remedied; if exceptional circumstance relates to a discrete event, delay reasonably attributable is subtracted; if exceptional circumstance arises from case’s complexity, the delay is reasonable.
  • below presumptive ceiling, in clear cases, defence can show delay is unreasonable; to do so, defence must establish: (1) it took meaningful steps demonstrating sustained effort to expedite proceedings; (2) case took markedly longer than reasonably should.

Criminal Law: New Delay Framework Applied
R. v. Williamson, 2016 SCC 28 (36112)

Applying the principles enunciated in R. v. Jordan, the delay here was unreasonable.

Criminal Law: Search Incident to Arrest
R. v. Saeed, 2016 SCC 24 (36328)

A penile swab does constitute a significant intrusion on the privacy interests of the accused, but police may nonetheless take a swab incident to arrest if reasonable grounds to believe search will reveal and preserve evidence of the offence for which the accused was arrested (here, sexual assault causing bodily harm), and swab conducted in a reasonable manner.

Labour Law: Dismissal; Standard of Review
Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (36354)

The Canada Labour Code offers an alternative statutory scheme for non-unionized employees consisting of expansive protections much like those available to employees covered by collective agreements. Nothing Dunsmuir says about the rule of law suggests that constitutional compliance dictates how many standards of review are required. The only requirement is that “there be judicial review in order to ensure, in particular, that decision-makers do not exercise authority they do not have” (emphasis in original).

Workers’ Comp/Torts: Standard of Review; Causation
British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 (36300)

Applicable standard of review requires curial deference, absent a finding of fact or law that is patently unreasonable: precludes curial re-weighing of evidence, or rejecting the inferences drawn by the fact-finder from that evidence, or substituting the reviewing court’s preferred inferences for those drawn by the fact-finder. Presence or absence of opinion evidence from an expert positing (or refuting) a causal link is not determinative of causation. It is open to a trier of fact to consider, as this Tribunal considered, other evidence in determining whether it supported an inference that the workers’ breast cancers were caused by their employment. Causation can be inferred ̶ even in the face of inconclusive or contrary expert evidence ̶ from other evidence, including merely circumstantial evidence.

Leaves to Appeal Granted

Aboriginal Law: Treaties: Interpretation; Implementation
The First Nation of Nacho Nyak Dun v. Yukon, 2015 YKCA 18 (36779)

How is the Umbrella Final Agreement herein to be interpreted and implemented by the Territorial Government.

Criminal Law: Release Pending Appeal
Oland v. R., 2016 NBCA 15 (36986)

Clarification of what are appropriate grounds for release pending appeal.

Insurance in Québec: Criminal Exclusion Clauses
Desjardins Sécurité financière, compagnie d’assurance-vie v. Émond, 2016 QCCA 161 (36919)

How are ‘criminal exclusion clauses’ in insurance policies to be interpreted.

Municipal Law/Police/Torts in Québec: Police Liability
Dorval v. City of Montréal, 2015 QCCA 1607 (36752)

When is a municipality liable for police action/inaction.

Professions in Québec: Fees
Pellerin Savitz, LLP v. Guindon, 2016 QCCA 138 (36915)

Are legal fees payable herein.

Real Property: Adverse Possession
Mowatt v. B.C. (Attorney General), 2016 BCCA 113 (36999)

Does adverse possession and escheat apply here.

Torts/Professions/Class Actions: Auditors’ Liability
Livent Inc. v. Deloitte & Touche, 2016 ONCA 11 (36875)

Is there auditor liability, and on what basis.

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