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 June 26 – August 31, 2026 inclusive.

Appeal

Civil Litigation: Spoliation of Evidence
SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp, 2024 ONCA 675; 2026 SCC 29 (41543) July 31, 2026

Spoliation is the intentional destruction, alteration, mutilation, or concealment of evidence with a view to subverting the truth-finding process during litigation. It is a creature of abuse of process that comes in various degrees and forms (see Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2023 ONCA 412, 167 O.R. (3d) 321, at para. 22). The common thread unifying all findings of spoliation is a manifest disrespect for the trial process, the truth-seeking function of the court, and the justice system generally. Parties who commit spoliation should not be rewarded for the evidentiary vacuums they create. Rather, as the authors of their own misfortune, spoliators must carry the presumption that the impugned evidence would be unfavourable to their case. To successfully prove spoliation, the alleging party must prove the following elements on a balance of probabilities: (1) the evidence was intentionally destroyed, altered, mutilated, or concealed; (2) at the time of destruction, litigation was ongoing or reasonably contemplated; (3) the evidence was relevant to said litigation; and (4) it is reasonable to infer that the evidence was destroyed to affect the litigation. While the burden of proof rests on the party alleging spoliation, if relevant evidence is unjustifiably destroyed, altered, mutilated, or concealed in the context of reasonably contemplated or ongoing litigation, there should be little difficulty in concluding that this was done to affect the litigation. This test highlights the notion, implicit in the doctrine of spoliation, that at the time the spoliator destroyed the evidence, they were under an existing duty to preserve it. The consequences of the mandatory presumption associated with a finding of spoliation will depend on the facts of the case and the extent of the prejudice to the non-spoliating party. Even where a party successfully proves spoliation, it does not necessarily follow that the party will succeed on its broader claim. Spoliation, as it relates to the civil process, intersects with the rules of court and the court’s inherent power to control its processes, including preventing abuses of process. While the “principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator” (McDougall, at para. 29), this is usually not the end of the story. Trial judges must draw an adverse inference against the spoliating party that is capable of filling the gap left by spoliation, though this does not foreclose the possibility that other remedies are available. In most cases, such an adverse inference works to correct the imbalance created by spoliation, to undo some of the prejudice caused, to ensure the proper functioning of the court’s fact-finding role, and to remedy the abuse of the court’s process that spoliation represents. In crafting additional remedies, the court may find the following non-exhaustive list of considerations relevant: the level of culpability of the spoliator, the intention or reason behind the destruction of the evidence, the prejudice to the non-spoliating party, and the impact of the destruction of evidence on the court’s ability to fairly dispose of the issues.

Constitutional Law/Courts: Review of Delegated Powers
Democracy Watch v. Canada (Attorney General), 2024 FCA 158; 2026 SCC 28 (41576) July 30,2026

By virtue of features of our constitutional system, every exercise of public authority is subject to the courts’ supervisory jurisdiction to ensure that it does not exceed its legal limits. The availability of this “legality review” is constitutionally guaranteed. When read in its historical context, the jurisprudence is clear that the Constitution guarantees the availability of legality review of all aspects of an administrative decision. Section 66 of the Conflict of Interest Act infringes this guarantee by purporting to bar judicial review on questions of fact and law: to that extent, it is of no force and effect. The courts of Canada, like the courts of England, have consistently held that irrational administrative decisions are unlawful, insofar as they exceed the inherent limits of delegated authority. Irrational decisions raise the spectre of arbitrary exercises of public power; the power of the courts to protect against such arbitrariness lies at the very heart of the courts’ constitutionally protected jurisdiction under ss. 96 to 101.

Criminal Law: Police Misconduct Disclosure
Edmonton (Police Service) v. McKee, 2023 ABKB 698; 2026 SCC 24 (41110) June 26, 2026

Under McNeil and in the context of first party disclosure, the police triage misconduct files for “obvious relevance” and transmit them to the Crown. It is the Crown who reviews, assesses, inquires as needed, decides whether the legal standard for relevance is met, and discloses in accordance with its Stinchcombe obligations. The Crown is best positioned to make assessments about relevance because the constitutional disclosure duty rests with the Crown, its quasi-judicial mandate demands fair and principled decision-making, and its file-wide perspective enables a reviewable balancing of trial fairness and residual privacy interests. Police must provide not only misconduct materials that are related to the investigative file but also any information outside the file that is “obviously relevant” — that is, the information relates to the accused’s ability to meet the Crown’s case, advance a defence, or inform defence conduct. Relevance is a low, utility-based threshold. Accordingly, police will generally provide records relating to findings of misconduct to the Crown; withholding such information from the Crown on the basis that it is not relevant is likely to be exceptional. If police withhold information, they must advise the Crown what was withheld and why it was withheld. To satisfy its Stinchcombe obligations, the Crown may require particulars from the police, which must be provided, to ensure the Crown is well placed to conduct an independent review of the relevance of the misconduct materials for disclosure purposes. Thus, as between the police and the Crown, the Crown makes the ultimate determination about what relevant information should be given to the defence. The Alberta Police Service Regulation s. 22 applies only to disciplinary-related proceedings in respect of police officers and does not govern criminal disclosure obligations. Accordingly, s. 22 does not authorize police disciplinary records to be “removed” and “destroyed” permanently and irreversibly. Interpreting “destroyed” as permanent erasure for all purposes would impermissibly allow the regulation to defeat constitutional disclosure principles. If a record is permanently destroyed and becomes unavailable for disclosure in a criminal proceeding, the accused may seek recourse through a lost or destroyed evidence application, including the remedial framework in Carosella.

Intellectual Property: Patents
Pharmascience Inc. v. Janssen Inc., 2024 FCA 23; 2026 SCC 26 (41209) July 17, 2026

Under Canadian law, a physician’s professional skill and judgment cannot be patented because this would be inconsistent with the purpose of the Patent Act. The Act seeks to incentivize desirable inventiveness by granting a temporary monopoly to those who share their new knowledge with the public. Physicians already benefit from a state-granted monopoly to practise and share their skills for the public benefit and do not require the prospect of extracting monopoly profits under a patent to do so. The Court also rejects the invitation to broaden the test for an unpatentable method of medical treatment. A patent impermissibly claims a method of medical treatment only if it seeks to monopolize professional medical skill and judgment. Although some drug-dosing patents may seek to do so, the trial judge’s findings support the conclusion that the 335 Patent does not and, therefore, claims patentable subject matter.

Sentencing: Mandatory Minimums
Denis v. R., 2024 QCCA 647; 2026 SCC 25 (41401) July 10, 2026

The sentence imposed in a given case should tend to be similar to “sentences imposed on similar offenders for similar offences committed in similar circumstances” (s. 718.2(b)). This principle of parity is an expression of proportionality and gives meaning to it (Friesen, at paras. 31-33). In Québec, there is a concentration of sentences at six to eight months, depending on the offenders’ level of rehabilitation, for men, often middle-aged, who communicate with the police for the purpose of obtaining sexual services from a 16-year-old girl. Because of the offender’s youth, a five-month sentence would be sufficient to reflect society’s condemnation of his actions but would still avoid hampering his chances of rehabilitation. This is “the shortest possible sentence that is proportionate to the gravity of the offence” (Hills, at para. 165). Re “the extent of the disparity between [the appropriate sentence and the mandatory minimum sentence] and determin[e] whether that disparity is such that it meets the constitutional standard of gross disproportionality” (Senneville, at para. 41). This analysis must be guided by three crucial components that it is essential to consider: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (para. 44; Hills, at para. 122). After analyzing the three components of gross disproportionality, the S.C.C. cannot conclude that, in the case of the sixth scenario, the six-month sentence would be “so excessive as to outrage standards of decency”, would be “abhorrent or intolerable” to society or would “shock the conscience” of Canadians (Hills, at para. 109). While the six-month minimum sentence is certainly not entirely proportionate, it falls far short of meeting the test for gross proportionality, which, we reiterate, is a demanding standard. Accordingly, the mandatory minimum sentence does not infringe s. 12 of the Charter, and there is therefore no need to consider whether this infringement is justified under s. 1.

Real Property: Riparian Rights
Zardev Inc. v. Dydzak, 2024 QCCA 347; 2026 SCC 27 (41291) July 24, 2026

The general scheme of the deeds herein, including the immatriculation number of the lots, their area and the “Lake . . .” boundary, indicates that the principal object of the contracts — the lots sold — is in fact the riparian lots, without any mention of the submerged lots. That being said, the obligational content of a contract is not limited to its express provisions, but also includes “what is incident to it according to its nature and in conformity with usage, equity or law” (art. 1434 C.C.Q.). Since the accessory rule is a rule of suppletive law in the general law of sale, it can apply when the parties make no mention of the accessory. For the purposes of applying the accessory rule in Québec’s law of sale, an accessory is property that is destined to serve the principal property sold and that, by reason of this destination, is necessary for the agreed use of the latter. This test in fact relies on the concept, well known in Québec law, of the “destination” of property, as established by the parties. Thus, the destination of the principal property sold — here the riparian lots — should be determined in order to ascertain whether the property that is potentially “accessory” — here the submerged lots — is necessary to fulfill this destination established in the deeds of sale. For accessory property to be presumed to be transferred with the principal property, it must be necessary for the use contemplated by the parties, so [translation] “that the buyer is able to derive from it the enjoyment they may legitimately expect” (P.-G. Jobin and M. Cumyn, La vente (4th ed. 2017), at para. 105). In all cases, the characterization of property as an accessory is a contextual exercise that must yield a conclusion consistent with the legitimate expectations of the parties. In summary, what distinguishes the accessory from the principal lies in their respective destinations. The accessory’s purpose is not to serve the user directly, but to serve other property. An accessory isolated from its principal is rendered useless and loses its raison d’être (Goubeaux, at pp. 76-77). This test makes it possible to quickly distinguish accessories from items of property that are merely related, but are independent of the principal. When a chair is placed in a house, serving the house itself is not its direct and sole destination: it has its own destination, utility and value. It serves its owner directly by enabling the owner to rest, and it can be moved outside the home without losing its utility. In contrast, a window’s destination is to serve other property: the house. It complements the house by protecting it from inclement weather, while allowing light to pass through. A window in isolation from the building into which it is incorporated is [translation] “incomplete. It lacks something essential that the principal brings to it” (Goubeaux, at p. 44).

Leaves to Appeal Granted

Administrative Law/Police: Mandamus
Royal Canadian Mounted Police External Review Committee, et al. v. Benison, et al., 2026 FCA 53 (42332) July 23, 2026

Mandamus in administrative law & police context.

Bankruptcy: Contempt
Lymer v. Jonsson, 2025 ABCA 423 (42227) July 9, 2026

Civil contempt issues in bankruptcy.

Civil Litigation/Arbitration: Standard of Review
Buffalo Point First Nation, et al. v. Buffalo Point Cottage Owners Association Inc., 2025 MBCA 72 (42053) July 23, 2026

Standard of review re commercial arbitration.

Civil Litigation: Contempt; Charter s. 11 (c)
Estate of Craig Sutherland, et al. v. Murphy, 2025 ONCA 227 (41818) July 9, 2026

Civil contempt issues in injunctions and Anton Piller.

Professions: Mandatory New Lawyer Oath
His Majesty the King in Right of Alberta v. Wirring, 2025 ABCA 413 (42224) Aug. 6, 2026

Constitutionality of new lawyer oath.

Torts: Future Care Needs; Deductibility of Provincial Payments
H.D v. British Columbia (Ministry of Children and Family Development), 2025 BCCA 457 (42219) July 2, 2026

Future care needs; provincial payments deductibility.