8 Appeals at the Supreme Court of Canada in the 2021 Winter Session

February 01, 2021

Written By Ranjan Agarwal, Ethan Schiff and Dylan Gibbs

The Supreme Court of Canada heard one appeal in January and will hear seven more in February and March that may interest the business community or organizations facing civil litigation:

January Decision of the SCC

• The Supreme Court of Canada allowed the appeal in the medical malpractice case, Armstrong v Royal Victoria Hospital, 2019 ONCA 963. The plaintiff underwent colon surgery and suffered injury to her ureter in the process due to it coming into close proximity with a LigaSure device. The surgeon was found negligent at trial. The Ontario Court of Appeal overturned the trial judge's decision, holding that he improperly applied the standard of care analysis by focusing on the goals that surgeons aim to achieve in performing surgery (i.e., keeping the LigaSure a certain distance from the ureter), rather than the means used to achieve those goals. The Supreme Court adopted the decision of the dissent at the Court of Appeal, which held that the trial judge appropriately weighed expert evidence in determining the surgeon erred in his use of the LigaSure.

Appeals to Be Heard by the SCC in February/March 2021

• Ward c Commission des droits de la personne et des droits de la jeunesse (Gabriel et autres), 2019 QCCA 2042 deals with Charter rights of freedom of expression and equality. The defendant is a standup comedian who made comments about the physical characteristics of the complainant who had Treacher Collins Syndrome. The Human Rights Tribunal concluded that the defendant's comments violated the complainant's right to dignity, and were not protected by the right to free expression. The Tribunal awarded damages to the complainant and to his mother (who was also a complainant). The Quebec Court of Appeal upheld the Tribunal's decision on the defendant's liability, but quashed the award of damages to the complainant's mother. 
• The appeal in Northern Regional Health Authority v Linda Horrocks, 2017 MBCA 98 engages workplace human rights issues. The employer terminated the complainant's employment for allegedly breaching an agreement to abstain from alcohol, which she entered into after being found to be intoxicated at work. The complainant succeeded at the Human Rights Tribunal, but the decision was set aside on judicial review on the grounds that the complaint should have been resolved by a labour arbitrator under the employee’s collective agreement. The Manitoba Court of Appeal allowed the appeal, holding that on a proper characterization of the complaint, the human rights tribunal had jurisdiction to decide it.
• The Supreme Court will consider the application of Charter rights to municipal elections in City of Toronto v Ontario, 2019 ONCA 732. Toronto at first succeeded in arguing that the province's decision to reduce the number of city council seats shortly before an election breached municipal voters’ rights to effective representation and freedom of expression. Ontario's Court of Appeal overturned the decision, with a narrow majority holding that the right to effective representation guaranteed in federal and provincial elections does not apply to municipal elections.
• The Court will consider the general anti-avoidance rule (GAAR) in R v Alta Energy Luxembourg SARL, 2020 FCA 43. Alta Energy Luxembourg is a Luxembourg resident that disposed of shares in its Canadian subsidiary for a capital gain in excess of $380 million. Before the Tax Court of Canada, Alta Energy successfully argued that its capital gain should be exempt from Canadian income tax based on the Canada-Luxembourg Tax Treaty. The Crown appealed to the Federal Court of Appeal, arguing that Alta Energy's use of the Treaty was an abuse captured by GARR. The Federal Court of Appeal concluded that the relevant Treaty provisions operated as they were intended to operate and therefore upheld the Tax Court's decision. 
• City of Corner Brook v Mary Bailey, 2020 NLCA 3 involves the interpretation of a release and the applicable standard of review for contract interpretation. The respondent was involved in a motor vehicle collision with a construction worker employed by the City of Corner Brook. The worker sued, and the respondent gave the claim to her insurer to defend. The respondent then commenced a separate action for damages against the City. The City and the respondent reached a settlement, under which the respondent signed a release. Years later, the respondent's insurer filed a defence against the worker's claim and commenced a third-party claim against the City. At first instance, the trial judge stayed the insurer's third-party claim because of the release. The Court of Appeal of Newfoundland and Labrador reversed the decision, concluding that the release contemplated the respondent's action against the City but did not contemplate the worker's action against the respondent.
• In Grant Thornton LLP v Province of New Brunswick, 2020 NBCA 18, the Court will determine when a limitation period begins to run based on the discoverability principle. New Brunswick commenced a claim against Grant Thornton alleging that it had negligently audited certain financial statements. Grant Thornton succeeded before the motion judge in arguing that the Province's action was out of time and therefore statute barred. The Court of Appeal of New Brunswick allowed the Province's appeal. In the Court of Appeal's view, while the Province had sufficient knowledge that the financial statements were erroneous, that was different from having sufficient knowledge that Grant Thornton's work was substandard. The limitation period could not start without the latter. While this appeal specifically involves interpretation of the New Brunswick Limitations Act, similarities between provincial statutes may give the Supreme Court of Canada's decision a wider reach.
• The Court will address Crown liability for tort claims in City of Nelson v Taryn Joy Marchi, 2020 BCCA 1. The plaintiff sustained a serious injury after falling into a snowbank and sued the City of Nelson for plowing snow in a manner that created a hazard. The City relied on the principle that government policy decisions, unlike operational decisions, are immune from liability so long as those decisions are bona fide. The trial judge accepted the City's argument, concluding that all of the City's decisions relating to snow removal were policy decisions. The trial judge also concluded that, in any event, the City's conduct was not the proximate cause of the plaintiff's injuries, as the plaintiff was the author of her own misfortune. The Court of Appeal rejected both of the trial judge's conclusions and ordered a new trial.

Please contact any of the authors or members of the Bennett Jones Commercial Litigation group for more information about any of the cases or issues discussed in this post.

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