The Supreme Court of Canada's Fall Term: the Internet Court?

The Supreme Court of Canada's Fall term, which began on October 3^rd, could probably be labelled the "internet term", with major cases involving both Google and Facebook. The Court will also be hearing a number of other cases that might be of interest to the business community:

• In Portage LaPrairie Mutual Insurance Co v Sabean, the Court will consider application of the contra proferentum doctrine in determining whether CPP is a policy of insurance for the purposes of deducting payments from a damages order. Application of the doctrine may result in greater liability for insurance companies when the extent of the damages exceeds the tortfeasor's insurance policy limit. The case could have implications for drafting insurance contracts.
• The Court will consider two cases dealing with the proper standard of review of an arbitrator's decision. British Columbia v Teal Cedar Products Ltd and Urban Communications Inc v BCNET Networking Society will give the Court a chance to revisit its decision in Sattva Capital Corp v Creston Moly Corp, particularly regarding distinguishing questions of law and questions of mixed fact and law when reviewing an arbitrator's decision.
• The Court will consider the validity of consent through acceptance of terms of service in Douez v Facebook Inc. The plaintiff claims that the defendant used her likeness in an advertisement. The defendant claims she consented by agreeing to terms of service. The defendant also argues that the forum selection clause in the terms of service precludes British Columbia courts from taking jurisdiction.
• In AstraZeneca Canada Inc v Apotex Inc, the Court will consider the promise doctrine in analyzing the validity of a patent. The Court will also consider how promises can impose utility requirements on a patent.
• The Court will revisit the oppression remedy in Black v Alharayeri. In that case, the plaintiff decided to negotiate the sale of his shares, but the board did not approve of the transfer. The board proceeded with a private placement, which significantly reduced the proportion of common shares owned by the plaintiff. The case considers director and officer liability in such circumstances.
• Aboriginal rights are on the docket in Chippewas of the Thames First Nation v Enbridge Pipelines Inc, Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA and Ktunaxa Nation Council v British Columbia (Minister of Forests, Lands and Natural Resource Operations). The cases deal with the responsibility of tribunals to consider the Crown's duty to consult. The Court will determine whether the Crown can rely on a tribunal's regulatory process to discharge its duty to consult. The third case also considers the potential to use freedom of religion under s. 2(a) of the Charter to restrain behaviour of others who do not hold the belief.
• The Court will hear an appeal of an injunction with global implications in Equustek Solutions Inc v Jack. The plaintiffs claimed that the defendants were profiting from stolen trade secrets. The plaintiffs successfully sought an interim injunction constraining Google, a third party to the litigation, from including the defendant's website in search results. The Court will consider the test for such an injunction and whether British Columbia courts hold in personam jurisdiction over Google, though it does not have resident employees, business offices or servers in the province.
• The Court will consider undue hardship and the duty to accommodate employees suffering from addiction disabilities in Stewart v Elk Valley Coal Corp. In that case a truck driver tested positive for cocaine after he struck another truck. His employer's policy allowed workers to seek help without fear of termination, so long as addiction was disclosed prior to an accident occurring. The driver was terminated, after which his union filed a complaint with the Human Rights Commission.

Of course, the Supreme Court has started the term at less than full strength, with Justice Cromwell retiring in September and no new justice having been appointed yet. The Prime Minister's new Advisory Board has apparently recommended five individuals for appointment, so the Court should be back sitting nine soon enough.

UPDATE: [Oct 19, 2016] On October 17, following publication of this piece, Prime Minister Trudeau nominated Justice Malcolm Rowe to the Supreme Court of Canada.

Download PDF