Feb 23, 2017
Legal affairs writer Julius Melnitzer has compiled the list of the top 10 business decisions from 2016, drawing the overall conclusion that they reflect the Canadian judiciary’s “balanced approach to business” given that half of the decisions are pro-business, four do not favour the business community and one is “mixed.” The list is topped by the Supreme Court of Canada’s decisions in the trilogy of securities class action cases commonly referred to as CIBC v. Green and includes other landmark judgments such as Ledcor Construction v. Northbridge Indemnity Insurance, Daniels v. Canada and McGillivray Restaurant v. Canada.
In his analysis of the Ledcor judgment, Melnitzer draws on insight from Osler litigation partner, Mary Paterson – specifically her comments about the 2014 Supreme Court of Canada decision in Sattva v. Creston which examined contractual interpretation and ruled that it involves mixed fact and law. At the time, Mary predicted that “[s]o many things depend on whether an issue is a question of law or of mixed fact and law, including the availability of civil appeals and reviews of arbitrators’ decisions, that it will be a while before we see the full scope of this judgment.” In Ledcor, the court reconsidered Sattva in the context of standard form contracts and ruled that a “correctness” standard was preferable to a “reasonableness” standard in certain contexts.
Melnitzer relies on another Osler litigation partner, Chris Naudie, in his discussion of the twin decisions in Endean v. BC and Parsons v. Ontario in which the Supreme Court of Canada held that no video link back to a courtroom in a judge’s home province is required in a multijurisdictional class action. According to Chris, the full impact of this decision remains to be seen. “Judges do like to have an open courtroom to accommodate last minute objections,” he says. “In these cases, a video link may be the answer.”
Chris further suggests that “[t]he decisions also leave open questions about whether the power to sit outside of a home jurisdiction extends to joint hearings involving oral evidence, joint hearings in a cross-border class proceeding or to cases that are not class actions.”
For more details about last year’s most relevant rulings, read Julius Melnitzer’s full article “Top 10 business decisions of 2016” in the January/February 2017 issue of Lexpert Magazine.