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 21 – December 18, 2020 inclusive).

Oral Judgments

Banking: Fraud; Insurance
Co-operators General Insurance Co. v. Sollio Groupe Coopératif, 2019 QCCA 1678; 2020 SCC 41 (38938)

Kasirer J. “We are all of the opinion that the appeal should be dismissed, essentially for the reasons given by the Court of Appeal, with costs to the respondents. It should be made clear, however, having regard to para. 110 of the Court of Appeal’s reasons, that the result would not have been different had the account of the respondent La Coop Fédérée been in positive balance.”

Criminal Law: Sexual Assault
R. v. Delmas, 2020 ABCA 152; 2020 SCC 39 (39163)

Moldaver J.: ” A majority of the Court would dismiss the appeal. The trial judge did not engage in stereotypical reasoning in his assessment of the appellant’s evidence. To the extent he may have erred in drawing an illogical inference about the unlikelihood of the appellant having sex with the complainant while he was involved in a relationship with another woman, the error in the view of the majority was harmless having regard to the reasons as a whole, and it occasioned no wrong or miscarriage of justice. Likewise, while the failure to conduct a s. 276 voir dire (Criminal Code, R.S.C. 1985, c. C-46) regarding the complainant’s evidence of a past sexual relationship with the appellant was an error, it gave rise to no substantial wrong or miscarriage of justice. Justice Côté, dissenting, would allow the appeal for substantially the reasons of O’Ferrall J.A. She would not apply the curative proviso since she is not persuaded that there was no substantial wrong or miscarriage of justice in this case.”

Criminal Law: Sexual Assault
R. v. J.C.R., 2020 ABCA 76; 2020 SCC 44 (39082)

The Court: “We would dismiss the appeal. The parties did not dispute that the trial judge erred in dismissing the accused’s application under s. 276.1 of the Criminal Code, R.S.C. 1985, c. C-46, to cross‑examine the complainant. In our view, this error did not lead to a miscarriage of justice and falls within the curative proviso under s. 686(1)(b) because the evidence was otherwise overwhelming and a conviction was inevitable. We do not endorse Slatter J.A.’s application of s. 683(1). Neither party sought this remedy before the Court of Appeal, and in this Court, both parties as well as the intervener urged us to reject his approach.”

Criminal Law: Sexual Assault
R. v. Mehari, 2020 SKCA 37; 2020 SCC 40 (39109)

The Court: “This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law. In any event, we see no error in respect of this argument that would have warranted intervention on appeal. Accordingly, the appeal is allowed and the matter remitted to the Court of Appeal to decide the grounds of appeal the majority did not address.”

Criminal Law: Sexual Interference & Assault
R. v. W.M., 2020 ONCA 236; 2020 SCC 42 (39114)

The Chief Justice: “We are all of the view that the appeal must be allowed for the reasons of Justice Miller. The trial judge’s mistake regarding the specific year of the sex offender treatment did not have any material impact on his overall assessment of the similar fact evidence or the accused’s credibility when one considers the trial judge’s reasons as a whole. In the result, no miscarriage of justice occurred. The appeal is allowed and the conviction is restored.”


Contracts: Duty of Honest Performance
C.M. Callow Inc. v. Zollinger, 2020 SCC 45 (38463) 2018 ONCA 896

The duty to act honestly in the performance of contracts precludes active deception. Here Baycrest breached its duty by knowingly misleading Callow into believing the winter maintenance agreement would not be terminated; and by exercising the termination clause dishonestly, it breached the duty of honesty on a matter directly linked to the performance of the contract, even if the 10-day notice period was satisfied and irrespective of their motive for termination. Damages flow for the consequential loss of opportunity. The C.A. is overturned, and trial judge restored.

Contracts in Québec: Assignment
Resolute FP Canada Inc. v. Hydro‑Québec, 2020 SCC 43 (38544)

Conventional assignment of contract, which is viewed sometimes as the addition of an assignment of claims to a transfer of debts and sometimes as the transfer of a contract as a whole, has long been a source of uncertainty among jurists. In the unitary approach, the focus is in fact on the transfer of the contractual relationship as a whole — claims, debts, potestative rights and other undertakings. From this perspective, the operation is understood to involve a transfer of status as a contracting party to the assignee, while leaving the original contract intact. This approach is especially apposite in circumstances in which the parties are disputing the transfer not only of claims and debts, but also of other undertakings made in the original contract. The unitary approach is particularly helpful in making it clear that, if Hydro‑Québec acquired the status of party to the 1926 contract, that enabled it to demand, in its own name and by reason of its status, the increased price resulting from two levies. In conclusion, the words “tax or charge” in art. 20 of the 1926 contract encompass the two levies at issue that were imposed under s. 32 of the HQA and s. 68 of the WA, so that those levies are payable by Resolute to Hydro‑Québec under that agreement. And the Court of Appeal did not err in reaching this conclusion. Finally, it is noted that the Quebec government required Hydro‑Québec to pay the charges at issue and that the latter was entitled to apply them to the amount billed to Resolute.

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