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, Oral Judgments and Leaves to Appeal granted from May 16 – June 20, 2024 inclusive.

Appeals

Contracts: Sale of Goods; Exclusion Clauses; Standard of Review
Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2022 ONCA 265; 2024 SCC 20 (40197)

The principles in Sattva apply to the contracts herein, subject to the Sales of Goods Act. These recent restatements of contract law principles give priority to the parties’ intentions in a manner that modifies and relaxes some of the stricter and more technical approaches which found expression in certain prior cases. As stated in Sattva, “the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine ‘the intent of the parties and the scope of their understanding’” (para. 47, citing Jesuit Fathers of Upper Canada). All contract terms, including exclusion clauses, “should be given their natural and true construction so that the meaning and effect of the exclusion clause the parties agreed to at the time the contract was entered into is fully understood and appreciated” (Hunter Engineering Co., at p. 510). Ultimately, when courts are faced with applying a combination of s. 53, the principles of contractual interpretation and the law concerning exclusion clauses, it is the objective intention of the parties that must be the paramount consideration. In the commercial circumstances of this case, the objective meaning of the parties’ express agreement is that the buyer accepted the risk that the soil would not meet the previously supplied compositional specifications if it failed to test what it knew was an organic and changing substance. Some confusion has arisen about what it means for an agreement to be “express” under s. 53. Some think “express” speaks to specific language that must be used to remove the parties from the SGA. That is not the correct approach. The term “express” qualifies the word “agreement” and is directed to how that agreement must be made. Express does not define what the agreement must say or the required level of clarity of specific contractual clauses. Because s. 53 requires an “express agreement”, and not the use of “express language”, it does not constitute, let alone call for, a qualitative requirement about the specificity of language that is needed to vary or negative an otherwise applicable legal liability. While s. 53 insists that the agreement must be express, it imposes no prerequisite about the precision of the words used to manifest such an agreement. The common law pertaining to agreements, contractual interpretation and exclusion clauses does not serve to “fill gaps” in the statute but, instead, is better viewed as being purposefully incorporated into the SGA. No improper conflation between the interpretative approaches to legislation or contracts arises when, as here, the statute calls for reliance upon governing common law principles. Such principles include the modern approach to contractual interpretation and, if the parties intended to exclude or negative something like an implied statutory condition, the three-step approach to exclusion clauses in Tercon will also apply. In conclusion, because s. 53 requires an express agreement and s. 57(1) confirms the applicability of the common law as it exists from time to time, the principles from Sattva and Tercon extend to contracts for the sale of goods. While recognizing the need to balance protections for parties, freedom of contract and commercial certainty, exclusion clauses in sales contracts are not categorically distinct or subject to different or stricter rules of construction. The SGA must be read as a whole and while the legislature wanted to provide presumptive protections to parties, it also expressly allowed parties to opt out entirely from the implied statutory conditions. The “express agreement” contemplated by s. 53 of the SGA is to be interpreted and applied accordingly.

Criminal Law: Homicide; Party Liability
R. v. Lozada, 2023 ONCA 221; 2024 SCC 18 (40701)(40709)

The jury here was accurately instructed on the issue of causation. The instructions conveyed the proper test: whether the particular appellant’s conduct was a significant contributing cause of death. Moreover, on the particular facts of this case, the trial judge properly equipped the jury with appropriate analytical tools described in R. v. Maybin to assist the jury in determining whether the stabbing could be considered to be an intervening act that would absolve the appellants of legal responsibility for manslaughter. The functional approach to appellate review of jury instructions requires that the charge be read as a whole (Abdullahi, at para. 35). The trial judge’s two statements that it “may be enough” to establish legal causation if the continuation of assaults on Mr. Khalid was reasonably foreseeable should be understood in the context of the full instructions. The jury would not have found this factor to be adequate to establish legal causation without also accepting that the continuation of assaults was of the same general nature as the stabbing, or that the stabbing flowed reasonably from the appellants’ conduct. The causation inquiry is case-specific and fact-driven. There is no single test or measure for determining whether a particular act has broken the chain of causation. The issue in considering joint liability as co-principals under s. 21(1)(a) is whether the unlawful acts of the accused were a significant contributing cause of the victim’s death (Maybin, at paras. 18-29). Strathdee leaves open the prospect of an instruction addressing “a discrete or intervening event” even in the case of co-participants in a group assault.

Criminal Law: Informer Privilege; Open Court Principle
Canadian Broadcasting Corp. v. Named Person, 2022 QCCA 984; 2024 SCC 21 (40371)

Recognition of the non-discretionary and thus virtually absolute nature of informer privilege means that the interests protected by the open court principle yield to those protected by informer privilege. This is a difficult societal choice in the sense that it may, in some circumstances, prevail over other very important public interest objectives — for example, promoting the accountability of the judiciary through open justice, favouring adversarial proceedings and ensuring the pursuit of truth — but it is a choice that is essential in guaranteeing the effectiveness of police investigations, the maintenance of public order and the protection of the Canadian public. The Court was not convinced that there is any reason to depart from the current state of the law, under which as much information as possible should be disclosed to interested third parties, but never any information that might compromise the police informer’s anonymity. “Named Person” was not convicted following a secret criminal proceeding. The controversy that arose after the release in March 2022 of the Court of Appeal’s judgment in which it denounced the holding of a “secret trial” is unfortunate and could have been avoided. First and foremost, it could have been avoided if the trial judge had proceeded in camera by creating a parallel proceeding completely separate from the criminal proceeding in which Named Person had been appearing publicly until that time. The magnitude of the controversy could also have been limited if the Court of Appeal had not used the expression “secret trial” to describe what were actually in camera hearings held in a proceeding that began and initially moved forward publicly. In addition to being inaccurate, this expression is needlessly alarming and has no basis in Canadian law. Moreover, the Court reiterates the relevance of the Vancouver Sun procedure and the importance of rigorously applying its guiding rule requiring a court to protect informer privilege while minimizing, as much as possible, any impairment of the open court principle. For this purpose, the courts must be flexible and creative. What is in issue is the maintenance of public confidence in the administration of justice and respect for the rule of law. The S.C.C. allowed the appeals in part and remanded the case to the Quebec Court of Appeal to make public a redacted version of the trial judgment included in the appeal record, after consulting the respondents on a proposal for partial unsealing and redaction.

Criminal Law: Sexual Assault
R. v. T.W.W., 2022 BCCA 312; 2024 SCC 19 (40406)

The appellant argued that the trial judge erred in refusing to admit the evidence for context and credibility purposes. The S.C.C. disagreed. The appellant failed to sufficiently identify a specific use for the evidence that did not invoke twin-myth reasoning and that was essential to his ability to make full answer and defence. Before a trial judge may grant an application for an admissibility hearing, they must be satisfied that the application “set[s] out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial” (Criminal Code, s. 278.93(2)). As the majority noted on appeal below, “[s]pecificity is required so judges can apply the scheme in a way that protects the rights of the complainant and ensures trial fairness” (para. 97, quoting Goldfinch, at para. 53). The applicant need not include so many details that the witness’s privacy is unnecessarily intruded upon, but there must be a sufficient factual and evidentiary basis for the trial judge to properly consider and weigh the factors set out in s. 276.

Leaves to Appeal Granted

Criminal Law: Prosecutor Agreements
R. v. Di Paola, 2023 QCCA 750 (40777) May 23, 2024

Issues re prosecutor agreements and sentencing.

Family Law: Jurisdiction
Dunmore v. Mehralian, 2023 ONCA 806 (41108) June 13, 2024

Jurisdiction issues in family law litigation.

Family Law: Tort of Domestic Violence/Coercive Control
Ahluwalia v. Ahluwalia, 2023 ONCA 476 (41061) May 16, 2024

New tort(s) of domestic violence/coercive control.

Insurance: Declaration of Death
Riddle v. Ivari, 2023 QCCA 1111 (40986) May 16, 2024

Declaration of death in insurance context.