This Week at the SCC (02/05/2014)

This week the Supreme Court of Canada released two decisions and granted leave to appeal in one case likely to be of interest to Canadian businesses.

The Supreme Court dismissed an appeal from the Quebec Court of Appeal in Immeubles Jacques Robitaille inc. v. Québec (City), 2014 SCC 34. The appellant developer had challenged an offence notice issued by the municipality for permitting or tolerating non-conforming parking use contrary to the municipality’s zoning and planning by-law. The developer, in challenging the notice, relied in part on acquired rights based on the use of the parking lot. The question that was raised was whether the doctrine of estoppel could be pleaded by a defendant in penal proceedings dealing with an application of a provision of a municipal zoning by-law.

In dismissing the appeal, the Supreme Court reviewed the test for promissory estoppel in public law but went on to say that the doctrine of estoppel must yield to an overriding public interest and cannot be invoked to challenge the application of a specific provision in the law.

In a second decision, the Supreme Court reversed the decisions of three lower courts when it extended maternity leave benefits to contract workers in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33.

This case involved a substitute teacher who had just become pregnant when she signed a contract for a few days of work with the respondent school board. Just prior to signing the contract,  the teacher’s physician had determined that her unborn child was vulnerable to a virus common in schools and the teacher should have an alternate placement. The province’s health and safety commission informed her that she was entitled to receive maternity leave benefits due to her condition. The school board challenged the decision, arguing that the teacher’s inability to enter a classroom negated the contract.

Three lower tribunals and courts had held that the teacher’s inability to fulfil her contractual duties from the outset rendered the contract null and void and that she therefore had no working relationship with the school board and no entitlement to benefits.

The Supreme Court, however, took an expansive view of the occupational health and safety regime in the province, and held that the legislated right of a pregnant worker to withdraw from an unsafe workplace cannot be used to conclude that such withdrawal negates the formation of the contract of employment. The Supreme Court went on to say that the teacher’s pregnancy was not an incapacity that prevented her from performing the work, it was the dangerous workplace that prevented it.

Finally, the Court granted leave to appeal from the Quebec Court of Appeal’s unanimous decision in Bombardier inc. (Bombardier Aerospace Training Center) c. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 1650. This decision will mark the first time the Supreme Court will consider the degree to which Canadian companies that are subject to U.S. security standards must evaluate the impact of such standards on Canadians in order to comply with Canadian laws.

The case involves a Pakistani Canadian pilot employed by Bombardier, who was to receive training that was offered by Bombardier in Texas and Quebec. The pilot, who held both US and Canadian pilot’s licences, used his US licence to apply for the training in Texas. However , Bombardier received notice from the U.S. Department of Justice stating that the pilot was considered by the US to be a threat to aviation security. The pilot then used his Canadian licence to apply for the training in Quebec but Bombardier refused to provide the Canadian training, on the grounds that the company had to submit to the American decision and that he could only be trained if the U.S. authorities granted him clearance.

The Quebec Human Rights Tribunal found Bombardier had discriminated against the pilot but the Court of Appeal of Quebec reversed the Tribunal's decision, noting that it had "no jurisdiction to issue the order."

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions. The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.


Estoppel extraterritorial reach Occupational Health and Safety Act security



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