Podcast: Appealing Briefs

Hosted by partner Adam Goldenberg, Appealing Briefs provides brief updates on recent cases from Canada’s courts of appeal. Learn the key takeaways and discover how the decisions will affect businesses and industry in these short interviews with Canada’s leading lawyers and business advisors.

This podcast series qualifies for CPD credit under the mandatory education regimes in British Columbia and Ontario.

Appealing Briefs is available on Soundcloud, Spotify and Apple Podcasts.

McCarthy Tétrault LLP is providing this podcast as a public service, and while it may contain legal information, it is neither legal advice nor a legal opinion, recommendation or statement of policy of McCarthy Tétrault LLP. The information, views and personal opinions expressed by guests from outside of McCarthy Tétrault LLP are entirely their own and their appearance on the podcast does not express or imply an endorsement by McCarthy Tétrault LLP of the information, views or opinions expressed by any guest, or of any entity they represent.

In Chemtrade v. Superior Plus, Alberta’s Court of Appeal considered the extent to which courts can use evidence of a contract’s surrounding circumstances and parties’ “common understanding” to interpret the written terms of a contract. Adam Goldenberg speaks with McCarthy Tétrault partner Laura Gill and associate Emily Ward about the implications for businesses negotiating commercial agreements. (9:29)

When is litigation available to fight back against false and damaging online reviews? Adam speaks with McCarthy Tétrault partner Dorothy Charach and associate Lauren Weaver about the Court of Appeal for Ontario’s decision in Benchwood Builders, the use of anti-SLAPP legislation, and the implications for defamation law more generally. (10:31)

Could dishonesty during contractual negotiations or after a contract’s termination constitute a breach of the duty of honest performance? Adam speaks with McCarthy Tétrault partner Brandon Kain, author of Good Faith in Canadian Contract Law, about two recent appellate decisions that consider the duty’s temporal and legal limits. (12:51)

By a narrow majority, the Supreme Court of Canada has struck down Ontario's limits on electoral advertising spending by business associations, labour unions, and other "third parties". On this episode, Adam speaks with McCarthy Tétrault litigator Connor Bildfell about the implications of the Working Families decision for Canadian businesses and the constitutionally protected right to vote. (11:06)

Can a thumbs-up emoji create a binding contract? According to the Court of Appeal for Saskatchewan, it can, but context matters. On this episode of Appealing Briefs, Adam speaks with McCarthy Tétrault litigator Jocelyn Turnbull-Wallace about Achter Land and Cattle v. South West Terminal Ltd. and the factors that businesses and individuals should bear in mind when using informal methods of communication to discuss business transactions. (10:47)

Can internet users in Canada reasonably expect their IP addresses to remain private? Yes, says the Supreme Court of Canada, and law enforcement therefore requires a warrant to obtain IP addresses from third-party organizations. On this episode,  Adam Goldenberg speaks with litigator Natalie Kolos about the Supreme Court of Canada’s decision in R. v. Bykovets and its implications for businesses that collect Canadians' personal information. 

When will a court decline to enforce an arbitration clause in a standard form “click” contract? On this episode of Appealing Briefs, host Adam Goldenberg speaks with McCarthy Tétrault litigation partner Andrew Kalamut and litigation associate Meaza Damte about the Court of Appeal for Ontario’s decision in Lochan v. Binance and its implications for companies and consumers.

Are damages presumed once a court finds a breach of the duty of honest contractual performance? On this episode, Adam speaks with McCarthy Tétrault litigation partner Kosta Kalogiros about the Court of Appeal for Ontario's decision in Bhatnagar and its implications for parties to corporate transactions. (14:53)

How can a party to an arbitration agreement lose the right to enforce that agreement in court? Adam Goldenberg speaks to McCarthy Tétrault litigation associate Omair Jafrani about the Court of Appeal for Ontario’s judgment in RH20 North America Inc. v. Bergmann, and about the perils of defending an action in court in the face of an agreement to arbitrate. (9:39)

How should courts decide challenges to the legality of subordinate legislation, such as regulations, rules, and bylaws? This episode briefs you on the Supreme Court of Canada’s November 2024 judgments in Auer v. Auer and TransAlta Generation Partnership v. Alberta. Adam Goldenberg speaks to McCarthy Tétrault associate Emma Walsh about the implications of these decisions on the administrative law of judicial review and for those who may wish to challenge subordinate legislation (11:42).

Can legislatures prevent judges from reviewing government decisions? On this episode, Adam speaks to McCarthy Tétrault litigation partner Jamie Holtom about the Federal Court of Appeal's decision in Democracy Watch, and about what it means for those who seek to challenge administrative decisions in court. (12:59)

What does Dr. Jordan Peterson’s much-publicized – and unsuccessful – legal battle against the College of Psychologists of Ontario mean for professional regulation in Canada, and in particular for regulated professionals’ freedom to speak their minds online?

On this episode of Appealing Briefs, Adam Goldenberg speaks with Caroline Zayid, McCarthy Tétrault’s Regional Managing Partner for Ontario, who was lead counsel for the College in the Peterson case, about the implications of the Divisional Court’s decision. (10:29 minutes)

Do customs agents need reasonable suspicion to conduct searches of digital devices at the border? In the R. v. Pike and R. v. Scott, the Court of Appeal for Ontario answered “yes”, and struck down a provision of the federal Customs Act that permits searches on a lesser standard.

On this episode, Adam discusses the implications of this judgment for cross-border travellers and constitutional litigations. His guest is Aya Schechner, a member of McCarthy Tétrault’s National Appellate Litigation Group. (11:30 minutes)

How do Canadian courts reconcile the need to conduct proceedings publicly with the protection of police informers?

In this episode of Appealing Briefs, host Adam Goldenberg speaks with McCarthy Tétrault litigator Simon Bouthillier about the Supreme Court of Canada’s decision in Named Person, addressing how and to what extent courts must protect the identity of police informers while remaining faithful to the principle that Canadian courts must do their work in the open. (11:26 minutes)

Can governments in Canada be ordered to pay damages under section 24(1) of the Charter of Rights and Freedoms when a legislature has enacted unconstitutional legislation? The Supreme Court of Canada says “yes”, albeit only in limited circumstances.

In this episode of Appealing Briefs, host Adam Goldenberg and McCarthy Tétrault litigator Connor Bildfell discuss the decision in Canada v. Power. They explore the circumstances under which individuals may seek damages against the government for laws violating the Charter and the government's limited immunity from such claims. (10:23 minutes)

Legislatures often provide for appeals to court from government decisions, but only on questions of law (as opposed to questions of fact or of mixed fact and law). How should the court respond when a person who is unhappy with a government decision seeks judicial review on a question on which there is no right of appeal?

The Supreme Court of Canada addressed this issue of administrative law in Yatar v. TD Insurance Meloche Monnex. Host and appellate litigator Adam Goldenberg discusses the implications of the Yatar decision with McCarthy Tétrault partners Christine Lonsdale and James Holtom. (11:00 minutes)

Does Parliament have the power to give Indigenous-made laws priority over inconsistent provincial laws? In the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, the Supreme Court of Canada confirmed that it does.

On this episode, Adam Goldenberg speaks with litigator and Aboriginal law expert Bryn Gray and McCarthy Tétrault’s Legal and Strategic Advisor for Indigenous Initiatives, John Brown, about the implications of the Court’s decision for businesses that work with Indigenous communities. (11:35 minutes)

Are public school boards subject to the Charter of Rights and Freedoms? This question had never been answered definitively — until the Supreme Court of Canada’s June 2024 judgment in York Region District School Board v. Elementary Teachers Federation of Ontario. The answer: yes.

Adam Goldenberg speaks about the implications of the decision with Caroline Zayid, McCarthy Tétrault’s Regional Managing Partner for Ontario, who represented the Ontario College of Teachers in the York Region case. (8:33 minutes)

Mr. Neufeld, an elected official, made controversial comments about sexual orientation and gender identity. Mr. Hansman, a teacher and former union president, responded with harsh criticism. Mr. Neufeld sued Mr. Hansman for defamation — only to have the Supreme Court of Canada dismiss his claim as a “SLAPP”.

What does Hansman v. Neufeld mean for the protection of 2SLGBTQI+ people in the courts, for free speech, and for defamation law? Adam Goldenberg speaks with McCarthy Tétrault litigators Ljiljana Stanić and Solomon McKenzie about the Hansman case and its implications, on this special Pride month episode. (11:18 minutes)

How clearly must an exclusion clause limit liability under a contract in order to be effective? In the Earthco case, the Supreme Court of Canada held that it is the “objective meaning of the parties’ express agreement,” and not just the specific language that the parties have chosen in the contract, that determines the scope of an exclusion clause. To understand the implications for businesses – and for anyone else who enters into contracts – Adam Goldenberg speaks with Brandon Kain, McCarthy Tétrault partner and co-founder of the firm’s National Appellate Litigation Group. (12:36 minutes)

Must a regulator consider the Charter even when making a decision that does not engage a Charter right? In Commission scolaire francophone, the Supreme Court of Canada confirmed that the answer is "yes." In doing so, the Court reignited a long-running discussion about Charter rights and "Charter values" in administrative law. In this episode of Appealing Briefs, host Adam Goldenberg speaks with Caroline Zayid, McCarthy Tétrault’s Regional Managing Partner for Ontario and a leading administrative lawyer, about what regulators and regulated entities should take from this decision and how they should make sense of the Charter's role in administrative decision making and judicial review. (13:47 minutes)

On October 13, 2023, the Supreme Court of Canada released its decision on the constitutionality of the federal government’s Impact Assessment Act. It deemed parts of the law to be unconstitutional, setting the stage for changes to the federal environmental assessment process. So, what are the implications for businesses on the ground? What amendments might the federal government pursue? And are there opportunities to improve the process? Adam Goldenberg speaks with Kimberly Howard, McCarthy Tétrault partner and co-leader of the firm’s Environmental Group, and Wayne Wouters, Strategic and Policy Advisor to the firm and former Clerk of the Privy Counsel of Canada. (15 minutes)