Written By Ranjan K. Agarwal and Ethan Z. Schiff

The Supreme Court of Canada’s fall term begins on October 2. Scheduled hearings that may interest the business community are described below:

• Standing in Administrative Tribunals: The Court will consider the law of standing in Delta Air Lines Inc v Gábor Lukács. The complainant argued that certain airlines’ policies regarding obese passengers is discriminatory under regulation 111(2) of the Air Transportation Regulations. The Canadian Transportation Agency (CTA) dismissed his complaint, holding he did not have standing. On judicial review, the Federal Court of Appeal held that the CTA’s decision dismissing the complaint based on standing was unreasonable because the law of standing ought not to be superimposed onto the otherwise independent regulatory scheme.
• Civility in the Legal Profession: Groia v Law Society of Upper Canada will consider the ability of a regulatory body to bring proceedings for misconduct. Joseph Groia acted as defence counsel in a proceeding with the Ontario Securities Commission (OSC). The OSC brought an application, arguing that Mr. Groia engaged in uncivil conduct in violation of the Law Society of Upper Canada’s Rules of Professional Conduct. The Court dismissed the OSC’s application. The Law Society, however, without receiving a direct complaint, later brought disciplinary proceedings against Mr. Groia for professional misconduct. The Law Society panel held that Mr. Groia engaged in professional misconduct and ordered a suspension of his licence to practise law for two months. The Law Society Appeal Panel varied the length of the suspension to one month. Both the Divisional Court and the Ontario Court of Appeal upheld the Law Society Appeal Panel’s decision, albeit with a strong dissent in the Court of Appeal.
• Trustee Obligations in Construction: The Court will consider the obligations of a trustee/obligee under a labour and material bond in Valard Construction Ltd v Bird Construction Co. The defendant engaged a subcontractor required to obtain a labour and material payment bond. The subcontractor named the defendant as the obligee. The subcontractor engaged the plaintiff, but did not provide full compensation. The plaintiff made a claim on the bond, but the bond issuer denied the claim for failure to make timely notice as required under the bond’s terms. The plaintiff sued the defendant, arguing that, as trustee, the defendant had an obligation to inform the plaintiff of the bond’s existence. The claim was summarily dismissed. A majority of the Alberta Court of Appeal upheld the determination that the defendant owed no legal duty to inform the plaintiff of the bond’s existence until the plaintiff inquired.
• Jurisdiction in Defamation Cases: The Court will consider jurisdiction and forum non conveniens in Haaretz.com v Goldhar. The appellant published on its Hebrew and English language websites an article criticizing Mr. Goldhar’s business practices. Mr. Goldhar brought a proceeding against the newspaper in Ontario alleging defamation. Haaretz moved to stay the proceeding, arguing that Ontario does not have jurisdiction or Israel is a clearly more appropriate forum. The motion judge held that Ontario had jurisdiction over the claim and that Israel was not a clearly more appropriate forum even though publication was much broader within Israel. A majority of the Ontario Court of Appeal upheld the motion judge’s decision.
• Religious Education: Bennett Jones is representing Trinity Western University (TWU) in Trinity Western University v Law Society of Upper Canada, which raises issues of freedom of religion in regulatory matters. The Law Society of Upper Canada denied accreditation to TWU’s proposed law school based on TWU’s Community Covenant. On judicial review, the Divisional Court held that the Law Society could deny accreditation under its public interest mandate. Though the decision breached the appellant’s right to freedom of religion, the decision struck a reasonable balance of the Charter protections at issue. The Ontario Court of Appeal upheld the Divisional Court’s decision. The Court will be hearing a companion appeal from the British Columbia Court of Appeal, which held that the Law Society of British Columbia’s decision denying accreditation to TWU was unconstitutional and unreasonable.
• Third-Party Liability in Workers’ Compensation: The Court will consider a claim of workers compensation against a non-employer in West Fraser Mills Ltd v Workers’ Compensation Appeal Tribunal. The British Columbia Workers’ Compensation Board investigated an accident resulting in the death of a worker caused by a rotting tree which fell on the deceased. The deceased worked for an independent contractor, but the accident occurred in an area of forest over which West Fraser Mills held a licence as owner. The Workers’ Compensation Board imposed an administrative penalty after finding that West Fraser Mills failed to ensure that activities in the forest were conducted according to regulations and failed to ensure safe work practices. West Fraser Mills appealed, arguing that the regulatory scheme only permitted imposition of an administrative penalty against a party acting in its duty as an employer. West Fraser Mills’ appeals and applications for judicial review were dismissed.
• The Duty of Good Faith: The contents of the duty of good faith in contract performance will be reviewed in Churchill Falls (Labrador) Corporation Limited v Hydro-Québec. The respondent contracted with the appellant to purchase almost all of the energy it produced for a 65-year term based on a fixed price. The appellant sued, arguing that the respondent’s profits were unforeseeable when the agreement was initially negotiated and that the respondent’s duty of good faith required it to renegotiate the agreement prior to its expiration. The Québec Superior Court and Court of Appeal dismissed the appellant’s action. Though guided by the imposed duty of good faith within the Civil Code of Québec, this case could provide guidance on the interpretation of the implied duty of good faith at common law.

Download PDF