Written By Andrew Little, Ranjan Agarwal and Ethan Schiff

Although the Supreme Court has suspended hearing appeals, the Court continues to issue judgments both on appeals and applications for leave to appeal. Hearings scheduled for March, April and May were adjourned on March 25, 2020, tentatively until sometime in June 2020. The Court has not yet set any hearing dates in June, and it is possible that a further adjournment of hearings will be directed.

Since January, the Court has granted leave to appeal in seven cases that may have significant implications for the business community.

• The application of Charter rights to municipal elections will be considered 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 prior to 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 appeal in Northern Regional Health Authority v Linda Horrocks (2017 MBCA 98) engages workplace human rights issues. Here, the employer terminated the complainant's employment for allegedly breaching an agreement to abstain from alcohol. 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 a 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 Court will consider the Canada Revenue Agency's priority in bankruptcy proceedings in Canada v Canada North Group Inc. (2019 ABCA 314), a case dealing with proceedings under the Companies' Creditors Arrangement Act. In that case, the Alberta Court of Appeal upheld the Queen's Bench judge's decision that a statutory deemed trust in favour of the CRA for unremitted source deductions ranked below a court-ordered super-priority security interest deemed necessary for restructuring.
• In MediaQMI Inc. v Kamel (2019 QCCA 814), the Court will consider the right to access sealed documents in another case. In this case, a media company brought a motion to end a sealing order to access exhibits in a separate matter, which was discontinued soon after. The respondents filed applications to have certain materials remain under seal. The Québec Court of Appeal held that the pleadings had to be made public, but one of the respondents could withdraw certain exhibits from the record.
• Compagnie d'Assurances Générales Co-Operators c Coop Fédérée (2019 QCCA 1678) will bring cybersecurity insurance policies before the Court. In that case, an insured was victim to a phishing attack causing fraudulent transfer of $4.9 million. It was insured by two insurers, Co-operators General Insurance Company and Liberty International Underwriters. Co-operators denied coverage. The Québec Superior Court ordered Co-operators to cover the claim and to compensate Liberty for a proportional magnitude of coverage. The Québec Court of Appeal allowed the appeal with respect to compensation between insurers.
• In 6362222 Canada Inc. v Prelco Inc (2019 QCCA 1457), the Court will consider exclusion of liability clauses in civil law. In that case, the Québec Superior Court and the Court of Appeal declined to give effect to an exclusion of liability clause in a contract after the defendant failed to properly implement business management systems, resulting in damage to the plaintiff. The Courts distinguished the theory of essential obligation at civil law with that of fundamental breach at common law. It is unclear if the Supreme Court of Canada will consider both theories in the appeal.
• The Court will consider principles of equitable compensation in the Crown Indigenous context in Southwind v Canada (2019 FCA 171). In that case, Canada surrendered lands near the plaintiffs' reserve to build a dam, resulting in flooding rendering much of the reserve unusable. The Federal Court, upheld by the Federal Court of Appeal, awarded the plaintiffs $30 million in equitable compensation for breach of Canada's fiduciary duty. The plaintiffs appealed, arguing that the Federal Court incorrectly based compensation on the fair market value of the flooded land, rather than including the value of a revenue-sharing agreement they allege Canada should have negotiated on their behalf.

Please contact any of the authors for further information about any of the cases or issues discussed in this post, or visit the Bennett Jones Litigation group page.

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