Highlights from the Supreme Court of Canada

  • 01 octobre 2012
  • Eugene Meehan, Q.C.

JUNE 20 – AUGUST 28, 2012.

Here’s a super-tight summary of all appeals and all leaves to appeal. For leaves I’ve specifically added in both the date the SCC granted leave and the date of the CA judgment.

If you’d like previous reports so you’re right-up-to-date, or if you’d like an electronic copy (so you can click n’ go) email me: emeehan@supremeadvocacy.ca

APPEALS

CRIMINAL LAW: WHEN NEW TRIAL ORDERED

R. v. Bellusci (Que.CA November 18, 2010) (34054) Aug. 3, 2012

Continuation of a trial will not always be preferable or even possible, and can properly be made only where interests of justice require.

CRIMINAL LAW: COMMON SENSE INFERENCES

R. v. Walle (Alta. CA, Dec. 13, 2010) (34080) July 27, 2012

Where a judge believes an accused was fully aware of consequences, a “common sense inference” can be read.

CRIMINAL LAW: ISSUE ESTOPPEL

R. v. Punko (BCCA, Feb. 10, 2011) (34135, 34193) July 20, 2012

The Crown is not estopped from proving something because it was decided adversely to the Crown in a prior jury trial.

CRIMINAL LAW: KIDNAPPING; PARTIES

R. v. Vu (BCCA, Mar. 11. 2011)(34286) July 26, 2012

Kidnapping is a continuing offence.

CRIMINAL LAW: POSSESSION FOR THE PURPOSES; CONSTRUCTIVE/JOINT POSSESSION

R. v. Venneri (Que. CA, Oct. 6, 2011) (34523) July 6, 2012

“In association with” captures offences that advance, at least to some degree, the interests of a criminal organization.

CRIMINAL LAW: PROVOCATION

R. v. Mayuran (Que. CA, Oct. 4, 2011) (34526) June 28, 2012

A defence should only be put to the jury if it has an “air of reality”.

CRIMINAL LAW: PROBATION

DWK v. R.(BCCA, Aug. 26, 2010) (33911) July 31, 2012

The fitness of probation orders in particular cases are best left to be dealt with by the courts on a case-by-case basis.

INSURANCE IN QUEBEC: MOTOR VEHICLES

Westmount v. Rossy (Que. CA, Nov. 27, 2010) (34060) June 22, 2012

An accident arising out of the use of a vehicle as a means of transportation will fall within the definition of a MV “accident”.

INTELLECTUAL PROPERTY: “FAIR DEALING” EXCEPTION

Alberta v. CCLA (Fed. CA, July 23, 2010) (33888) July 12, 2012

Photocopies made by teachers as part of class instruction can qualify as fair dealing under the Copyright Act.

INTELLECTUAL PROPERTY: VIDEOGAME DOWNLOADS

Entertainment Software Association v. SOCAN (Fed. CA Sept. 2, 2010) (33921) July 12, 2012

The Copyright Board’s conclusion that a separate “communication” tariff applied to downloads of musical works violates the principle of technological neutrality”.

INTELLECTUAL PROPERTY: “SOUND RECORDING”

Sound v. Motion Picture Theatre Associations of Canada (Fed. CA Feb. 25, 2011) (34210) July 12, 2012

A pre-existing sound recording that is part of a soundtrack cannot be the subject of a tariff when the soundtrack accompanies the cinematographic work.

INTELLECTUAL PROPERTY: ONLINE MUSICAL DOWNLOADS

Rogers v. SOCAN (Fed. CA, Sept. 2, 2010) (33922) July 12, 2012

The transmission of any file containing a musical work from an online service’s website to a customer at the customer’s request, constitutes “communicat[ing] the work to the public by telecommunication”.

INTELLECTUAL PROPERTY: “FAIR DEALING” EXCEPTION (MUSIC DOWNLOADS)

SOCAN v. Bell (Fed. CA, May 14, 2010) (33800) July 12, 2012

Previews satisfy the requirements of fair dealing and online service providers do not infringe copyright.

TORTS: CAUSATION

Clements v. Clements (BCCA, Dec. 17, 2010) (34100) June 29, 2012

The basic rule of recovery: the “but for” test. Exceptionally, “material contribution”.

TORTS/CIVIL PROCEDURE: FORUM CONVENIENS

Club Resorts v. Van Breda (Ont. CA, February 2, 2010) (33692, 33606) April 18, 2012

Litigation arising from holiday accidents in Cuba can be commenced in Ontario.

TORTS/CIVIL PROCEDURE: FORUM CONVENIENS

Éditions Écosociété v. Banro (Ont. CA, June 7, 2010)(33819) April 18, 2012

A corporation based in Quebec can, in this case, be sued in Ontario.

TORTS/CIVIL PROCEDURE: FORUM CONVENIENS

Breeden v. Black (Ont. CA, August 13, 2010) (33900) April 18, 2012

Six libel actions, though with U.S. connections, can be continued in Ontario.

TAX: PRIOR S.C.C. DECISIONS

Canada v. Craig (Fed. CA, Jan. 21, 2011) (34144) Aug. 1, 2012

The SCC can overrule a prior SCC decision. Farming, in combination with a law practice, can be a chief source of income, so that the loss deduction limitation in s. 31(1) of the Income Tax Act does not apply.

LEAVES TO APPEAL GRANTED

CIVIL PROCEDURE: “PIERRENGER SETTLEMENT” DISCLOSURE

When some defendants enter into proportionate share settlement agreements do these have to be disclosed?
Sable Offshore Energy, et al. v. Ameron International, et al. (NS CA, Dec. 22, 2011) (34678) June 28, 2012

CIVIL PROCEDURE: SUMMARY JUDGMENTS

How should new Rule 20 be interpreted?
Bruno Appliance v. Hryniak (Ont. CA, Dec. 5, 2011) (34645) June 28, 2012
Hryniak v. Mauldin, et al (Ont. CA, Dec. 5, 2011) (34641) June 28, 2012

CLASS ACTIONS IN QUEBEC: EMPLOYEE INSURANCE PLANS

Can a successor corporation change employee insurance plans?
Vivendi v. Dell’Aniello (Que. CA, Feb. 29, 2012) (34800) Aug. 9, 2012

CLASS ACTIONS: “MARKET TIMING” LOSSES

Can a class action be certified for “market timing” losses?
AIC, et al. v. Fischer, et al. (Ont. CA, Jan. 27, 2012) (34738) June 28, 2012

CRIMINAL LAW: HOMICIDE

Does eyewitness ID and circumstantial evidence confirm a second shooter?
Hay v. R. (Ont. CA, May 12, 2009) (33536) July 19, 2012

EXTRADITION

Can the Czech Republic extradite on charges alleged committed nine years before.
AG Canada v. Zajicek (Ont. CA, Feb. 14, 2012) (34767) June 28, 2012

EXTRADITION

There is a publication ban (involving the extradition to Canada of a Canadian national living in India).
R. v. EFM (NS C.A., Dec. 8, 2011) (34650) June 28, 2012

FORESTRY: EXPROPRIATION

What is the legal status (and damages) of a forestry licence in a location later declared to be a provincial park?
BC v. Teal Cedar Products (BCCA, Feb. 13, 2012) (34769) July 26, 2012

INSURANCE LAW IN QUEBEC: BROKERS

Who is a “broker” in Quebec law?
Sovereign General Insurance v. Autorité des marchés financiers (Que. CA, Jan. 10, 2012) (34699)

POLICE OFFICERS; RIGHT TO COUNSEL

What is the regulatory regime with respect to the rights and duties of police officers involved in SIU investigations?
Police Constable Wood, et al. v. Schaeffer, et al. (Ont. CA, Nov. 15, 2011) (34621) June 28, 2012

SECURITIES: LIMITATION PERIODS

What is the limitation period for securities offences?
McLean v. Exec. Dir. of BC Securities Commission (BCCA, Nov. 10, 2011) (34593) June 28, 2012

TAXATION: CAPITAL COST ALLOWANCE

How is CCA to be calculated in a corporate amalgamation?
Envision Credit Union v. R. (Fed. CA, Nov. 21, 2011) (34619) June 21, 2012


Eugene MeehanAbout the Author

Eugen Meehan, Q.C., is a litigation partner at Supreme Advocacy LLP, Ottawa. emeehan@supremeadvocacy.ca

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