The SCC Monitor (30/07/2015)

Following our last post, the Supreme Court has released its decision in Strickland v. Canada (Attorney General), 2015 SCC 37. The Court’s decision in Strickland, referenced in more detail in this blog post, speaks to the circumstances in which a federal court can decline to exercise its jurisdiction to grant judicial review remedies. The appellants in Strickland sought a declaration that the Federal Child Support Guidelines were invalid and ultra vires the Divorce Act, R.S.C. 1985, c. 3. The Federal Court declined to exercise its jurisdiction holding that the matter should be brought before a provincial superior court. The Federal Court of Appeal and Supreme Court both upheld the Federal Court’s decision. The Supreme Court held that provincial superior courts can grant judicial review relief against federal entities in appropriate circumstances. The Court also held that a court should decline to hear an application for judicial review if an adequate alternative remedy exists elsewhere, as was found to exist in the superior court in this instance.

In addition, the Supreme Court has recently released its judgment in a number of leave applications submitted to the Court of interest to Canadian businesses:

The Court has granted leave to appeal in Royal Bank of Canada v. Phat Trang et al. (36296), a case dealing with the application of the Personal Information and Electronic Documents Act, R.S.C. 2000, c. 5 (“PIPEDA”) and the process by which in the absence of consent of the mortgagor, a third party judgment creditor should bring a motion to obtain a mortgage discharge statement from a mortgagee. RBC has a judgment against the Trangs, who own a property mortgaged to Scotiabank. The Sheriff refused to sell the property without a mortgage discharge statement. RBC sought to obtain this statement by examining the Trangs, who failed to appear. Thereafter, Scotiabank took the position that PIPEDA precluded it from disclosing the statement. RBC brought a motion to compel production by Scotiabank, which was dismissed. The Court of Appeal quashed RBC’s appeal as the motion judge’s order was interlocutory and found RBC should seek to examine Scotiabank pursuant to Rule 60.18(6)(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Scotiabank appeared voluntarily on examination and maintained its refusal to produce the statement. RBC brought a motion to compel production by Scotiabank but the Court of Appeal held that the failure to do so under Rule 60.18(6)(1)(a) was fatal and dismissed RBC’s appeal.

In addition, the Court has dismissed the applications for leave on two significant cases. First, the Court declined leave to appeal in Daniel J. MacIsaac v. Royal Bank of Canada et al. (36369), a case involving the registration of a judgment against the vendor of property after the agreement of purchase and sale was executed, but prior to closing. Byers, the vendor, entered into an agreement of purchase and sale with Marmura, the buyer, on March 11, 2009 with a  closing date of June 30, 2009. TD Bank and RBC separately obtained default judgments against Byers, neither of which was recorded on the judgment roll until the period following the execution of the agreement of purchase and sale but prior to the closing date. The Supreme Court of Nova Scotia granted an Order that the property was subject to judgment rendered against the vendors prior to closing. The applicant’s appeal was dismissed by the Court of Appeal.

Second, the Court has declined leave to appeal in Bell Mobility Inc. v. James Douglas Anderson et al.(36336), a case where a class action was initiated against Bell Mobility on the basis that Bell Mobility bills in the Northwest Territories, Yukon and Nunavut bore a fee of $0.75 for 911 calls, despite the fact that 911 calls in these territories were answered by a recorded message. The trial judge answered the certified question as follows:

Issue 1: Do the service agreements between the class members and Bell Mobility expressly require Bell Mobility to provide 911 live operator service to class members? No, but Bell Mobility cannot charge the 911 emergency service fee in the absence of this service.

Issue 2: Do the service agreements of Bell Mobility have an implied term based on custom or usage or as the legal incidents of a particular class or kind of contract, to provide 911 live operator service? No.

Issue 3: Did Bell Mobility provide 911 live operator service? No.

Issue 4: Did Bell Mobility breach the contracts with the class members? Yes.

Issue 5: Has Bell Mobility been unjustly enriched for no juristic reason, or has there been a failure of consideration? Yes.

Issue 6: Is Bell Mobility liable to the class members on the basis of waiver of tort? No.

Issue 7: Was the conduct of the Defendant such that they ought to pay to the class punitive or exemplary damages, and if so, the quantum of such damages? No.

An appeal on substantive issues was subsequently dismissed the Court of Appeal.

class action Federal Child Support Guidelines Federal Court mobility 911 fees mortgage discharge statement PIPEDA registration of judgment against the vendor



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