This Week at the SCC (17/01/14)

The Supreme Court of Canada rendered judgment in Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, a case of great interest to Canadian businesses.  Vivendi involved the “commonality” of issues test for authorizing class actions in Quebec.  The Supreme Court of Canada ruled that the Quebec test for “commonality” was broader and more flexible than its common law counterparts.  A similar question of fact or law is, the Court ruled, “common” if it resolves a “not insignificant portion of the dispute”.  Common issues need not lead to common answers.  Moreover, the Court ruled that the multitude of legal schemes potentially applicable to the class (comprised of employees who worked in six different provinces) was not a bar to authorization.  The Court also pronounced that the proportionality principle – a general rule of Quebec’s Code of Civil Procedure –  cannot serve as a basis to deny authorization of a class action if the other conditions of authorization are met.  Finally, the Court ruled that the existence of subgroups is not fatal to authorization as a class proceeding as long as the members of the groups do not have conflicting interests.

The Supreme Court of Canada also denied leave to appeal in three cases of interest to Canadian businesses.

In Barclays Bank PLC v. Metcalfe & Mansfield Alternative Investment VII Corp., the Supreme Court of Canada declined leave to appeal from an Ontario Court of Appeal decision applying the implied contractual duty of good faith.  My colleague Geoff Hall posted an earlier blog discussing the Ontario Court of Appeal decision.

The Supreme Court of Canada refused leave to appeal the Alberta Court of Appeal’s decision in 321665 Alberta Ltd. v. Husky Oil Operations Ltd., a case which affirmed that companies in an industry could rationalize their operations by ceasing to do business with a service provider, without violating the provisions of the Competition Act.

Leave to appeal was also denied in Lombard General Insurance Company of Canada v. Aviva Insurance Company of Canada, which involved the principle of equitable contribution among insurers who had responded to a single loss.

The Supreme Court of Canada also heard arguments in two cases of interest to Canadian businesses.

The arguments in Canadian National Railway Company v. Attorney General of Canada centered on whether the standard of review framework set out in Dunsmuir applies to decisions of the Governor in Council (the “GIC”), and whether the GIC has authority to vary or rescind an administrative tribunal decision on questions of law or jurisdiction.

And, of course, the Supreme Court of Canada also heard arguments as to whether the appointment of Justice Nadon to the Supreme Court is valid:  In the Matter of Section 53 of the Supreme Court Act.

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.

321665 Alberta Ltd. v. Husky Oil Operations Ltd. Barclays Bank PLC v. Metcalfe & Mansfield Alternative Investment VII Corp. Canadian National Railway Company v. Attorney General of Canada In the Matter of Section 53 of the Supreme Court Act Justice Nadon Lombard General Insurance Company of Canada v. Aviva Insurance Company of Canada This Week at the SCC Vivendi Canada Inc. v. Dell’Aniello 2014 SCC 1

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