This Week at the SCC (25/04/2014)

The Supreme Court of Canada released three judgments this week of interest to Canadian businesses and professions.

The first, Peracomo Inc. v. TELUS Communications Co., 2014 SCC 29, involved an action against a crab fisherman and his company brought after he deliberately cut a cable lying on a river bottom which, unbeknownst to him, was a live fiber-optic cable co-owned or used by several of the plaintiffs.  The defendant relied on s. 29 of the federal Marine Liability Act, which limits liability for property damage caused by the operation of ships of the defendant's class to $500,000.  In response, the plaintiffs relied on Article 4 of the Convention on limitation of liability for maritime claims given force by the same statute, which creates an exception to this limitation of liability provision where "the loss resulted from [the defendant's] personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result".  Cromwell J. for the majority of the Court held that this exception was inapplicable, since although the defendant intended to cut the cable, he did not intend to cause the loss incurred by the plaintiffs nor act recklessly and with knowledge that this loss would probably occur.

At the same time, Cromwell J. held that the defendant was barred from recovering under his insurance policy because his conduct engaged the statutory exclusion from marine liability insurance in s. 53(2) of the federal Marine Insurance Act, which applies where a loss is "attributable to the wilful misconduct of the insured".  According to Cromwell J., the test for wilful misconduct under this provision is less stringent than that applicable to the Marine Liability Act exclusion, and "does not require either intention to cause the loss or subjective knowledge that the loss will probably occur", but "simply misconduct with reckless indifference to the known risk despite a duty to know". (para. 67)  Given the many statutory and contractual contexts in which the expression "wilful misconduct" appears, the Peracomo decision could have broad implications when construing such language in the future.

The second decision is Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, which upheld a decision by Ontario's Information and Privacy Commissioner to order the disclosure of information from the sex offender registry established under Christopher’s Law (Sex Offender Registry), 2000 to a requester pursuant to Ontario's Freedom of Information and Protection of Privacy Act, despite a confidentiality provision in s. 10 of the former statute.  The Court's judgment touches on several interesting issues in the area of access to information requests, including the standard of judicial review applicable to Information and Privacy Commissioner decisions, and the intersection between access to information legislation and confidentiality restrictions in other statutory regimes.

The third decision of interest is Reference re Senate Reform, 2014 SCC 32, in which the Court considered a series of reference questions regarding the scope of Parliament's unilateral power to effect changes to the Canadian Senate.  The judgment is notable for its extensive textual and historical discussion of the constitutional amending procedures in Part V of the Constitution Act, 1982.  Among other things, the Court held that abolition of the Senate would require the unanimous consent of the Senate itself, the House of Commons and all the provincial legislative assemblies.  The Court also emphasized the important idea that the because the Constitution "has an architecture, a basic structure", amendments which engage the requirements of Part V of the Constitution Act, 1982 "are not confined to textual changes [but] include changes to the Constitution’s architecture". (para. 27)

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.

Peracomo; TELUS; wilful misconduct; marine liability; access to information; information and privacy commissioner; senate reference; Constitution



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