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 (July 19 to August 23, 2017 inclusive).


Aboriginal Law: Duty to Consult
Clyde River (Hamlet) v. Petroleum Geo Services Inc., 2017 SCC 40 (36692)

The content of the duty [to consult] once triggered, falls along a spectrum ranging from limited to deep consultation, depending upon the strength of the claim, and seriousness of the potential impact; each case must be considered individually; flexibility is required, as the depth of consultation required may change as the process advances and new information comes to light. While the Crown may rely on steps undertaken by a regulatory agency to fulfill its duty to consult in whole or in part and, where appropriate, accommodate, the Crown always holds ultimate responsibility. Where the regulatory process does not achieve adequate consultation or accommodation, the Crown must take further measures to meet its duty. The NEB is the vehicle through which the Crown acts; it does not matter whether the final decision maker on a resource project is Cabinet or the NEB; in either case, the decision constitutes Crown action that may trigger the duty to consult.

Aboriginal Law: Duty to Consult
Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (36776)

As explained in Clyde River, the Crown may rely on regulatory processes to partially or completely fulfill its duty to consult. The NEB’s written reasons (in this case) were sufficient to satisfy the Crown’s obligation. Unlike the NEB’s reasons in Clyde River, the discussion of consultation here was not subsumed within an environmental assessment.

Administrative Law in Québec: Arbitral Jurisdiction; Standard of Review; Standing
Québec (Attorney General) v. Guérin, 2017 SCC 42 (36775)

The council of arbitration here decided that Dr. Guérin’s objection could not give rise to an arbitrable dispute under the Act and Framework Agreement and, in any event, only the Fédération has standing. The council’s award is restored: it was reasonable for the council to conclude that, under the Framework Agreement, the Protocol and the Act, Dr. Guérin’s proceeding did not raise an arbitrable dispute, because the Fédération and the Ministère had reserved for themselves the full discretion to designate the medical imaging laboratories that would be eligible to receive the digitization fee; and also reasonable for them to conclude that, in any event, Dr. Guérin did not have standing. Physicians who feel aggrieved are not without recourse: sue the organization representing them if it has breached its duty of fair representation. The courts below were right to apply the reasonableness standard: when an arbitrator interprets his or her enabling legislation to determine whether a dispute is arbitrable, applying the reasonableness standard undermines neither the rule of law nor the other constitutional bases of judicial review.

Contracts in Québec: Renewal Clauses
Uniprix inc. v. Gestion Gosselin et Bérubé inc., 2017 SCC 43 (36718)

No matter what approach is taken in analyzing the situation, the trial judge made no palpable and overriding error in concluding the contract of affiliation here is for a fixed term and that, under clause 10, the member pharmacists have a unilateral option to renew every five years, and Uniprix is unable to oppose such a renewal. Because the contract is not for an indeterminate term, Uniprix may not resiliate it on reasonable notice, and art. 1512 C.C.Q. cannot be applied to fix a term. Nothing in the Code prohibits contracts such as the contract of affiliation from having effects that could be perpetual; nor is there any basis for concluding such contracts are contrary to public order.


Leaves to Appeal

Civil Procedure: Tobacco Litigation; Disclosure; Privacy
HMTQ v. Philip Morris International Inc., 2017 BCCA 69 (37524)

What information from health databases has to be disclosed.

Constitutional Law: Parliamentary Privilege
Chagnon v. Syndicat de la fonction publique et parapublique du Québec (SFPQ), 2017 QCCA 271 (37543)

Does parliamentary privilege (here, provincial) apply in the context of this case.

Family Law: Life Insurance; Constructive Trusts
Moore v. Sweet, 2017 ONCA 182 (37546)

When can a constructive trust be used for life insurance proceeds re family law.


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