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 (November 12 — December 21, 2016 inclusive).

Oral Judgment

Labour Law: Collective Bargaining
British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49 (36500)

The Chief Justice: “The majority of the Court would allow the appeal, substantially for the reasons of Justice Donald. Justices Côté and Brown would dissent and dismiss the appeal, substantially for the reasons of the majority in the Court of Appeal.”


Banking/Privacy: Disclosure
Royal Bank of Canada v. Trang, 2016 SCC 50 (36296)

There must be disclosure to comply with a court order, or a party has impliedly consented. While not essential to have both of these bases to order Scotiabank to disclose a mortgage discharge statement to the Royal Bank, both are present herein, and each one of them, on its own, would suffice.

Business/Corporate Law: Oppression Remedy
Mennillo v. Intramodal Inc., 2016 SCC 51 (36124)

Based on the trial judge’s findings of fact, the oppression claim herein cannot proceed. Though not strictly speaking necessary, three corporate law points:

  • not possible to retroactively cancel an issuance of shares by way of simple oral consent
  • whether some of the CBCA corporate formalities were complied with by the parties when a share transfer is registered cannot in and of itself invalidate the transfer
  • conditions attaching to shares need to be specified in the articles and in the securities register, and the resolution authorizing the issuance needs to specify their conditional status.

Constitutional/Municipal Law: Division of Powers
Windsor (City) v. Canadian Transit Co., 2016 SCC 54 (36465)

As to whether the Federal Court has jurisdiction to decide whether the bridge corporation here must comply with the City’s by-laws and repair orders, the answer is no. Whether the City’s by-laws apply to the corporation’s acquired residential properties, that issue must be decided by the Ontario Superior Court of Justice. Provincial superior courts recognized by s. 96 “have always occupied a position of prime importance in the constitutional pattern of this country”, and the Federal Court, by contrast, “has only the jurisdiction conferred by statute”, and being a statutory court, created under the constitutional authority of s. 101, does not have inherent jurisdiction (emphasis in original).

Contracts in Québec/Tax: Amendments
Jean Coutu Group (PJC) Inc. v. Canada (Attorney General), 2016 SCC 55 (36505)

The written or oral expression of a contract can be amended if there is a discrepancy between it and the parties’ true agreement, and cannot (be amended) where there is no such discrepancy but that true agreement merely produces unintended or unanticipated consequences. When unintended tax consequences result from a contract whose desired consequences, whether in whole or in part, are tax avoidance, deferral or minimization, amendments to the expression of the agreement in accordance with art. 1425 C.C.Q. is available only under two conditions: (a) if the unintended tax consequences were originally and specifically sought to be avoided, “through sufficiently precise obligations which objects, the prestations to execute, are determinate or determinable”; (b) “when the obligations, if properly expressed and the corresponding prestations, if properly executed, would have succeeded in doing so”.

Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 (36606)

Rectification is limited to cases where the agreement between the parties was not correctly recorded in the instrument that became the final expression of their agreement; it does not undo unanticipated effects of that agreement: “… a court may rectify an instrument which inaccurately records a party’s agreement respecting what was to be done, it may not change the agreement in order to salvage what a party hoped to achieve”. Two types of error may permit rectification: (a) both parties subscribe to a common mistake that it accurately records the terms of their antecedent agreement; rectification is predicated on the applicant showing the parties had reached a prior agreement whose terms are definite and ascertainable; the agreement was still effective when executed; the document fails to record accurately that prior agreement; and, if rectified as proposed, the document would carry out the agreement: (b) where the claimed mistake is unilateral ̶ either because the document formalizes a unilateral act (such as the creation of a trust), or where intended to record an agreement between parties, but one party says that it does not accurately do so, while the other party says it does.

Professions/Insurance: Solicitor-Client/Litigation Privilege
Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 (36373)

Although there are differences between solicitor-client and litigation privilege, the latter is nonetheless a fundamental principle of the administration of justice, central to the justice system both in Québec and in other provinces and territories. It is a “class privilege” exempting communications and documents falling within its scope from compulsory disclosure, except where one of the limited exceptions to non-disclosure applies.

Professions/Privacy: Solicitor-Client Privilege
Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (36460)

Section 56(3) of the Alberta Freedom of Information and Protection of Privacy Act does not require a public body to produce to the Information and Privacy Commissioner documents over which solicitor-client privilege is claimed. Solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. The provision here does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege.

Solicitor-client privilege is no longer merely a privilege of the law of evidence, but has evolved into a substantive protection.

Leaves to Appeal Granted

Criminal Law: Dangerous Offenders; Constitutionality
R. v. Boutilier, 2016 BCCA 235 (37168)

Is an aspect of s. 753(1), and 753(4.1), constitutional.

Criminal Law: Joint Trials for Criminal Code & Highway Traffic Act Offences
R. v. Sciascia, 2016 ONCA 411 (37155)

When can/should there be joint trails for federal Criminal Code and provincial/territorial Highway Traffic Act offences.

Labour Law: Pay Equity
Centrale des syndicats du Québec v. Québec (Procureure générale), 2016 QCCA 424 (37002)

Is a provision of Québec pay equity legislation constitutional?

Wills & Estates: Undue Influence; Resulting Trusts; Proprietary Estoppel
Cowper-Smith v. Morgan, 2016 BCCA 200 (37120)

Do the concepts of undue influence, resulting trusts, and “proprietary” estoppel apply here?

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