This Week at the SCC (23/05/14)

This week, the Supreme Court issued several rulings, and dismissed one application for leave to appeal, in cases likely to be of interest to Canadian businesses and professionals.

The most eagerly awaited decision is likely McCormick v. Fasken Martineau Dumoulin LLP, addressing the right of law firms to impose mandatory retirement on their partners.  The Court concluded that the plaintiff, Mr. McCormick, could not take advantage of the B.C. Human Rights Code because -- in the circumstances of the case -- he could not be characterized as an "employee" of his law firm.  The Court was careful to note that, in other circumstances, a partner might be an employee of a law firm, and therefore able to assert rights under the Code.  In any event, Mr. McCormick enjoyed the protection of the fiduciary duties owed to him by his partners.  The Court concluded, however, that these duties had not been violated:

[A]bsent special circumstances, it is difficult to see how the duty of good faith would preclude a partnership from instituting an equity divestment policy designed to benefit all partners by ensuring the regenerative turnover of partnership shares.

The Court also issued its ruling in Canadian National Railway Co. v. Canada (Attorney General), confirming that, in circumstances where the federal Governor in Council (i.e., the cabinet) exercises its statutory jurisdiction, on a point of law, to vary a decision of the Canadian Transportation Agency -- relating to transportation tariffs -- the cabinet decision is entitled to deference and should be judicially reviewed on the liberal standard of reasonableness.

The Court had previously issued a ruling from the Bench -- with written reasons to follow -- overturning the decision of the Federal Court of Appeal in Canadian Artists’ Representation v. National Gallery of Canada.  The majority of the FCA had concluded that the Gallery had not breached any duty to negotiate in good faith vis-à-vis fees for the right to make use of existing works of art.   Pending the release of the Supreme Court's reasons, the parties’ facta can be found here, and a recording of the hearing can be found here.

In addition, the Supreme Court refused leave to appeal from MHR Board Game Design Inc., Marc Ribeiro v. Canadian Broadcasting Corporation, a ruling in which the Ontario Court of Appeal had dismissed an entrepreneur’s claim relating to his unsuccessful appearance on “Dragons’ Den.”  In light of the agreement signed by the plaintiff, his allegations of breach of contract, defamation, negligence and injurious falsehood could not be sustained.

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 and Hovsep Afarian.

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