Supreme Court of Canada Hearings

Eurobank Ergasias S.A., et al. v. Bombardier inc., et al. (40350)

Bombardier inc. entered into a procurement contract with the respondent branch of the Greek government (HMOD) for ten firefighting amphibious aircraft. There was also an Offsets contract by which Bombardier committed to offset programs inviting Greek suppliers as subcontractors for the work, for a total credited value of 110% of the main contract. Bombardier was to pay up to 10% of this amount as liquidated damages if the Offsets contract was not fulfilled, which was secured by a letter of guarantee with the appellant. Bombardier arranged a corresponding letter of counter-guarantee issued by National Bank of Canada in favour of the appellant.A dispute arose under the Offsets contract. Bombardier filed a request for arbitration under the rules of the International Chamber of Commerce (ICC) in Paris. It later amended its request to include the issue of whether the Offsets contract was null and void for violating the principle of the free movement of goods under the laws of the European Union. Although at one point HMOD made an undertaking not to seek payment under the letter of guarantee while arbitration was pending, it later demanded payment of the US $13,868,354 from the appellant under the letter of guarantee. Bombardier sought and received interim injunctions against payment from Quebec courts and through an Interim Order of the ICC Arbitral Tribunal, and the appellant obtained an interim injunction from a Greek court. When a further injunction was denied by a Greek court, and with the imminent release of the ICC Arbitral Tribunal Award, HMOD served the appellant with an Extrajudicial Invitation Protest, ordering it, under penalty of law, to make payment under the letter of guarantee. Shortly after the appellant paid HMOD, the Final Award of the ICC Arbitral Tribunal was released, ruling that the Offsets Contract, including its terms pertaining to the liquidated damages and to a letter of guarantee, violated EU law and was null and void ab initio. When National Bank refused payment to the appellant under the letter of counter-guarantee, the appellant sought recovery through the courts of Quebec.The Superior Court of Quebec confirmed its jurisdiction and rejected the appellant’s demand for payment under the letter of counter-guarantee on the basis of the fraud exception. It held that the letter of counter-guarantee was unenforceable and enjoined National Bank from paying pursuant to it. The court homologated the ICC Arbitral Tribunal Final Award and ordered the HMOD to comply with it. The Quebec Court of Appeal confirmed the trial court decision, except to strike out that part of the trial judgment ordering HMOD to comply with the Final Arbitral Award. Argued Date 2023-11-14 Keywords Commercial law - Commercial law — Banks and banking operations — Letters of credit — Bank’s obligation to pay on presentation of letter of guarantee and counter-guarantee — Fraud exception — Scope and availability of exception — Jurisdiction of Quebec courts — What are the proper limits to the fraud exception to the autonomous nature of letters of credit — Could the Quebec courts rule that the appellant’s conduct amounted to bad faith when it abided by the judgments rendered by the court of competent jurisdiction — How is risk to be apportioned between the parties to a complex commercial transaction scheme utilizing letters of credit — Bank of Nova Scotia v. Angelica-Whitewear Ltd., [1987] 1 S.C.R 59. Notes (Quebec) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Attorney General of Ontario, et al. v. Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all... (Day 2/2) (40024)

In 1850, the respondents, the Anishinaabe of the northern shores of Lakes Huron and Superior, entered into two treaties with the Crown: the Robinson-Huron Treaty and the Robinson-Superior Treaty (“Treaties”). The Treaties provided for cessation of a vast territory in northern Ontario, and for payment, in perpetuity, of an annuity to the Anishinaabe. The initial agreed-upon sum was paid and an Order-in-Council declared them ratified and confirmed. In 1875, the annuity was increased to $4 (£1) per person, and, in 1877, the Huron and Superior chiefs petitioned successfully for arrears on the increase since the conditions for increasing the annuity had been met long before the increase. The annuity has not changed since.The Huron respondents initiated an action against Canada and Ontario seeking declaratory and compensatory relief related to the interpretation, implementation and alleged breach of the annuity provisions in the Robinson-Huron Treaty; the Superior respondents made the same claims under the Robinson-Superior Treaty. The actions were tried together, split into three stages. At Stage One, the Treaties were interpreted, at Stage Two, the defences of Crown immunity and limitations were addressed, and, at Stage Three, the remaining issues (inter alia, damages and the allocation of liability) stood to be addressed. This appeal relates to Stages One and Two. Stage Three of the trial commenced in February 2023, but a settlement of that stage was reached. Argued Date 2023-11-08 Keywords Aboriginal law - Treaty rights, Fiduciary duty, Appeals, Standard of review - Aboriginal law — Treaty rights — Interpretation of treaty promises— Fiduciary duty —Appeal — Standard of review — Robinson-Huron Treaty of 1850 — Robinson-Superior Treaty of 1850 — Duty of diligent implementation — Proper approach to interpretation of treaties — Appropriate standard of review for interpretation — Proper interpretation of augmentation provision in Robinson Huron and Robinson Superior Treaties of 1850 —Whether Crown’s obligation to implement augmentation promise mandates specific outcomes capable of judicial determination — Whether Crown’s failure to implement augmentation promise in accordance with honour of Crown is appropriately remedied by a declaration — How limitations legislation is to be viewed given Robinson Huron and Robinson Superior Treaties of 1850 polycentric exercise of discretion — Whether fiduciary duty can coexist with duty of diligent implementation — Whether trial judge erred in finding “procedural” ad hoc fiduciary duty — Whether elements of sui generis fiduciary duty present. Aboriginal law —Appropriate standard of review — Existence of fiduciary duty — Whether appeal court was correct to overturn finding of ad hoc fiduciary duty — Whether appeal court erred in failing to find existence of sui generis fiduciary duty — Whether majority on appeal was correct in observing that generalized fiduciary obligation has been largely replaced by honour of Crown. Notes (Ontario) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Dow Chemical Canada ULC v. His Majesty the King (40276)

A corporate taxpayer requested that the Minister of National Revenue exercise her discretionary power under s. 247(10) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (“ITA”) to adjust the value of a non-arm’s length transaction downward, which would, in turn, reduce the amount of the taxpayer’s assessment. The Minister declined to do so. The taxpayer wished to challenge the Minister’s decision, but it was unclear whether the Tax Court or Federal Court had jurisdiction to do so. The parties put a stated question to the Tax Court to determine the jurisdictional issue: Where the Minister of National Revenue has exercised her discretion pursuant to s. 247(10) of the ITA to deny a taxpayer’s request for a downward transfer pricing adjustment, is that a decision falling outside the exclusive original jurisdiction granted to the Tax Court of Canada under s. 12 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2 and s. 171 of the ITA?The Tax Court judge determined that the Tax Court had exclusive jurisdiction to review the Minister’s decision. She held that the decision directly affected the computation of income, and was therefore part of the assessment. Appeals of assessments are within the Tax Court’s jurisdiction.The Federal Court of Appeal reached the opposite conclusion and allowed the Crown’s appeal. The decision is part of the process of the assessment, and the Tax Court only has the power to hear appeals of the product of that process. Furthermore, correcting an error in the Minister’s decision requires a power to quash or issue an order of mandamus, and the Tax Court does not have those powers. Argued Date 2023-11-09 Keywords Courts - Jurisdiction, Income tax - Courts —Jurisdiction — Income tax — Whether review of exercise of Minister’s power under subsection 247(10) of Income Tax Act is within Tax Court’s exclusive original jurisdiction. Notes (Federal) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Attorney General of Ontario, et al. v. Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all Members of the... (40024)

In 1850, the respondents, the Anishinaabe of the northern shores of Lakes Huron and Superior, entered into two treaties with the Crown: the Robinson-Huron Treaty and the Robinson-Superior Treaty (“Treaties”). The Treaties provided for cessation of a vast territory in northern Ontario, and for payment, in perpetuity, of an annuity to the Anishinaabe. The initial agreed-upon sum was paid and an Order-in-Council declared them ratified and confirmed. In 1875, the annuity was increased to $4 (£1) per person, and, in 1877, the Huron and Superior chiefs petitioned successfully for arrears on the increase since the conditions for increasing the annuity had been met long before the increase. The annuity has not changed since.The Huron respondents initiated an action against Canada and Ontario seeking declaratory and compensatory relief related to the interpretation, implementation and alleged breach of the annuity provisions in the Robinson-Huron Treaty; the Superior respondents made the same claims under the Robinson-Superior Treaty. The actions were tried together, split into three stages. At Stage One, the Treaties were interpreted, at Stage Two, the defences of Crown immunity and limitations were addressed, and, at Stage Three, the remaining issues (inter alia, damages and the allocation of liability) stood to be addressed. This appeal relates to Stages One and Two. Stage Three of the trial commenced in February 2023, but a settlement of that stage was reached. Argued Date 2023-11-07 Keywords Aboriginal law - Treaty rights, Fiduciary duty, Appeals, Standard of review - Aboriginal law — Treaty rights — Interpretation of treaty promises— Fiduciary duty —Appeal — Standard of review — Robinson-Huron Treaty of 1850 — Robinson-Superior Treaty of 1850 — Duty of diligent implementation — Proper approach to interpretation of treaties — Appropriate standard of review for interpretation — Proper interpretation of augmentation provision in Robinson Huron and Robinson Superior Treaties of 1850 —Whether Crown’s obligation to implement augmentation promise mandates specific outcomes capable of judicial determination — Whether Crown’s failure to implement augmentation promise in accordance with honour of Crown is appropriately remedied by a declaration — How limitations legislation is to be viewed given Robinson Huron and Robinson Superior Treaties of 1850 polycentric exercise of discretion — Whether fiduciary duty can coexist with duty of diligent implementation — Whether trial judge erred in finding “procedural” ad hoc fiduciary duty — Whether elements of sui generis fiduciary duty present. Aboriginal law —Appropriate standard of review — Existence of fiduciary duty — Whether appeal court was correct to overturn finding of ad hoc fiduciary duty — Whether appeal court erred in failing to find existence of sui generis fiduciary duty — Whether majority on appeal was correct in observing that generalized fiduciary obligation has been largely replaced by honour of Crown. Notes (Ontario) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

York Region District School Board v. Elementary Teachers’ Federation of Ontario (40360)

The private communications of two teachers, recorded on their personal, password-protected log were read and captured by screenshots taken by their school principal, and then used by the respondent school board (“Board”) to discipline them. The union filed a grievance against the written reprimand issued to the teachers (“Grievors”) claiming the Board violated the Grievors right to privacy by assessing private digital information without reasonable cause and using that information as the basis for an investigation that led to the discipline.By the time the grievance was heard, the written reprimands had been removed from the Grievors’ records. But the parties agreed to move forward with the issue of the alleged breach of the right to privacy.The arbitrator dismissed the grievance against the Board. The majority of the Divisional Court upheld the arbitrator’s decision and dismissed the appeal. The Court of Appeal allowed the appeal and quashed the award of the arbitrator. Argued Date 2023-10-18 Keywords Canadian charter (Non-criminal) - Charter of Rights — Unreasonable search and seizure — Reasonable expectation of privacy — Private communications of teachers captured by screenshots taken by school principal and used for discipline purposes — What standard of review applies to labour arbitrator’s decision adjudicating employee’s privacy claim — Whether Charter applies to school boards — Scope and content of employee’s privacy rights in workplace, either under s. 8 of Charter or common law. Notes (Ontario) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Don Johnson v. His Majesty the King (40330)

The appellant, Don Johnson, was found guilty of two counts of first degree murder by a jury. The majority of the Court of Appeal for Ontario dismissed his appeal, finding that it was open to the trial judge to leave party liability with the jury. Nordheimer J.A., dissenting, would have allowed the appeal, set aside the conviction, and ordered a new trial. In his view, there was an insufficient evidentiary foundation to leave the route of party liability with the jury, as there was no air of reality to the suggestion that, if the appellant was not the shooter, he aided the actual shooter in the commission of the murders. The instructions were also inadequate, as the trial judge did not adequately set out the requirements that had to be met to prove that route. Argued Date 2023-10-13 Keywords Criminal law - Charge to jury - Criminal law — Charge to jury — Party liability — Did the majority of the Court of Appeal err in finding that party liability was properly left to the jury as a route to conviction? — In the alternative, did the majority of the Court of Appeal err in finding that the trial judge’s instructions to the jury on party liability were adequate?. Notes (Ontario) (Criminal) (As of Right) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc. (40197)

Pine Valley Enterprises Inc. (“PVE”) contracted with Earthco Soil Mixtures Inc. (“Earthco”) for the supply of topsoil for use in a project. After reviewing dated test results for “R Topsoil,” it placed an order for 3,678 cubic yards of “Screened topsoil with extra Organics added.” The contract included exclusion provisions that allowed PVE to test the soil prior to shipment, and that, if PVE waives its right to testing, Earthco is not responsible for the “quality” of the material.PVE waived its right to test the soil. After delivery, testing revealed that the topsoil significantly differed from the earlier test results. PVE was forced to remove the topsoil and then sought compensation from Earthco, which in turn disclaimed responsibility because PVE had waived its right to test the soil before shipment. PVE brought an action against Earthco for damages.The trial judge found that the contract was for a “sale by description” within the meaning of the Sale of Goods Act, R.S.O. 1990, c. S.1. He held that the topsoil delivered did not correspond to the description in the contract, contrary to s. 14 of the Sale of Goods Act. The trial judge also found, however, that the parties had expressly agreed to absolve Earthco of liability for variations in soil composition that amount of discrepancies in the description of the goods, as permitted by s. 53 of the SGA. Therefore, he dismissed PVE’s action.The Court of Appeal agreed with the trial judge that the contract was for a “sale by description” and that there was a discrepancy between the description of the goods in the contract and the goods delivered. However, the Court of Appeal held that the trial judge erred in using the factual matrix of the contract to determine that the exclusion clauses ousted s. 14 of the Sale of Goods Act. The Court of Appeal unanimously allowed PVE’s appeal. Argued Date 2023-10-17 Keywords Sale of goods - Sale of goods — Sale by description — Implied condition as to description — Goods described with reference to quality — Whether statements as to quality can form part of an item’s description Appeals — Courts — Standard of review — Contractual interpretation — Standard of appellate review applicable to trial judge’s interpretation of exclusion clauses — Did the trial judge err in law by relying on the factual matrix of the contract to interpret the exclusion clauses? — Did the Court of Appeal err in reviewing the trial judge’s decision on a standard of correctness? Notes (Ontario) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Jim Shot Both Sides, et al. v. His Majesty the King (40153)

On September 22, 1877, the Blackfoot Confederacy and the Crown executed Treaty 7, which established Reserve No. 148, the largest reserve in Canada. It is the home of the Kainai, or Blood Tribe. Under the Treaty, the size of the reserve was to be established through a formula promising “one square mile for each family of five persons, or in that proportion for larger and smaller families”. The Blood Tribe has long claimed that the actual size of its reserve did not accord with that promised by the Treaty and, in 1980, commenced an action in the Federal Court.For decades the action sat in abeyance. In 2016, the court held phase I of the trial of the action, for the purpose of receiving oral history evidence from aging members of the Blood Tribe. Phase II commenced in 2018 to hear fact and expert witness evidence, and to make a determination on liability.At the completion of phase II, the trial judge found that the Blood Tribe’s claims were discoverable more than six years before the action was commenced in 1980 and, with the exception of a claim for breach of treaty, were therefore time-barred through the operation of The Limitation of Actions Act, R.S.A. 1970, c. 209 and s. 39 of the Federal Courts Act, R.S.C. 1985, c. F-7.The trial judge held that an action for breach of a treaty commitment could not be pursued in a Canadian court prior to the advent of s. 35 of the Constitution Act, 1982. Therefore, for the purposes of the limitations statute, time for a breach of treaty claim only began to run in 1982.The trial judge found that Canada was in breach of its treaty commitment, and that the size of the Reserve was understated by 162.5 square miles. The Crown appealed. The Federal Court of Appeal allowed the appeal and varied the Federal Court’s judgment to state that all claims of the Blood Tribe were time-barred. Argued Date 2023-10-12 Keywords Aboriginal law - Treaty rights, Limitation of actions - Aboriginal law — Treaty rights — Treaty 7 — Limitation of actions — Breach of treaty as cause of action —Whether breach of treaty was actionable in Canadian courts prior to the coming into force of s. 35 of the Constitution Act, 1982 — Whether limitation periods for breach of treaty claims began to run prior to the passage of s. 35 — Limitation of Actions Act, R.S.A. 1970, c. 209; Federal Courts Act, R.S.C. 1985, c. F-7 . Notes (Federal) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Attorney General for Ontario v. Information and Privacy Commissioner of Ontario, et al. (40078)

(SEALING ORDER) (CERTAIN INFORMATION NOT AVAILABLE TO THE PUBLIC)A journalist with the CBC made an application under the Act for disclosure of the mandate letters addressed from the Premier of Ontario to each minister setting out’s the Premier’s policy priorities for the minister’s mandate. The Cabinet Office opposed the disclosure on the basis of s. 12(1) of the Act, the introductory language of which provides that a government head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees.In Order PO-3973, the Information and Privacy Commissioner of Ontario ordered disclosure of the mandate letters to the CBC. He determined that a record not listed at subparagraphs (a) to (f) will qualify under the opening words of s. 12(1) if the context or other information would permit accurate inferences to be drawn as to actual Cabinet deliberations at a specific Cabinet meeting. The words do not encompass the outcome of the deliberative process, such as policy choices. The Commissioner found that Cabinet Office must provide sufficient evidence to establish a linkage between the content of the record and the actual substance of Cabinet deliberations, and concluded that neither the content and context of the letters nor the evidence and representations of Cabinet Office met the test under section 12(1). The Ontario Superior Court of Justice dismissed the appellant’s application for judicial review and the Court of Appeal for Ontario dismissed the appeal, with Lauwers J.A. dissenting. Argued Date 2023-04-18 Keywords Access to information - Exemptions, Mandate, Legislation, Interpretation - Access to Information – Access to records – Exemptions – Cabinet records – Mandate letters – Legislation – Interpretation – Whether confidential communications in respect of policy initiatives and development, prepared by the Premier of Ontario for his Cabinet ministers, are protected by the Cabinet records exemption – Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31, s. 12(1). Notes (Ontario) (Civil) (By Leave) (Sealing order) (Certain information not available to the public) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

His Majesty the King v. Olivier Chatillon (40331)

(PUBLICATION BAN)After a trial in the Court of Québec, the respondent, Olivier Chatillon, was convicted of one count of sexual assault of a child. The trial judge held that the prosecution’s case could be based on the admissions made to the professionals who had assessed him, although he had met with them during an entirely voluntary therapeutic process to receive treatment for problems associated with substance abuse and sexual deviance. The Court of Appeal, for the reasons given by Vauclair J.A. and concurred in by Healy J.A., granted the motion for leave to appeal, allowed the appeal and acquitted the respondent. It declared that the admissions were inadmissible in evidence based on its analysis of the Wigmore criteria for privilege. Mainville J.A., dissenting, would have dismissed the respondent’s appeal on the ground that the admissions were admissible because they were not privileged. By consenting to the disclosure of his admissions, the respondent had expressly waived their confidentiality. Argued Date 2023-03-15 Keywords Criminal law - Evidence, Admissibility - Criminal law — Evidence — Admissibility — Admissions — Wigmore test — Whether majority of Quebec Court of Appeal erred in law in finding respondent’s admissions inadmissible on ground that they were privileged under Wigmore test. Notes (Quebec) (Criminal) (As of Right) (Publication ban in case) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).