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This week at the SCC

|Written By Heather Gardiner

The Supreme Court of Canada will hear seven appeals this week. Three of the cases relate to the rights of indirect purchasers (consumers) to sue companies for anti-competitive behaviour. Another case touches on a growing area of importance regarding access to private text messages.

Oct. 15 — Ontario — Telus Communications Co. v. R.

Criminal law: Telus is seeking to quash a general warrant and assistance order, which required the company to produce copies of all text messages sent and received by two of its subscribers over a 14-day period. The police didn’t act in accordance with an authorization to intercept private communications. The motions judge upheld the general warrant except for the part requiring Telus to reproduce the text messages. The central issue in this case is whether general warrants can be used to seize the content of private text messages from telecommunication service providers.

Oct. 16 — Quebec — R. v.  Rochon

Criminal law: In her absence, Nicole Rochon entrusted her property to her son who then grew marijuana on her land. Twice she asked him to remove the plants but she didn’t want to report him to the police. However, given her knowledge of the situation, she was obliged to report her son. At issue is whether complicity by omission requires a legal duty to act and if a person who has authority over another person or property fails to act can constitute actus reus.

Oct. 17 — British Columbia — Pro-Sys Consultants Ltd. v. Microsoft Corp.

Procedural law: Pro-Sys claimed that Microsoft violated the Competition Act and as a result, was able to charge higher prices for some of its products. Pro-Sys didn’t get its Microsoft products or software licences directly from Microsoft, but instead acquired them as “indirect purchasers” from re-sellers or “direct purchasers.” Pro-Sys accused Microsoft of intentional interference with economic interests and conspiracy, and claimed unjust enrichment and waiver of tort. Pro-Sys launched a class action lawsuit against Microsoft after it was granted by the B.C. Supreme Court, but the B.C. Court of Appeal reversed that ruling and dismissed the class action. The main question is whether indirect purchasers in Canada have any legal power when it comes to illegal and anti-competitive conduct. There is a sealing order in the case.

Oct. 17 — British Columbia — Sun-Rype Products Ltd. v. Archer Daniels Midland Co.

Procedural law: Sun-Rype sued Archer Daniels Midland, claiming it illegally engaged in a secret conspiracy to fix the price of high fructose corn syrup and then overcharged direct purchasers like Sun-Rype. The overcharge was then passed onto the consumers. The direct purchasers and consumers launched a class action against Archer Daniels Midland, which was granted by the B.C. Supreme Court. The B.C. Court of Appeal set aside the certification order for the consumers and remitted the direct purchasers’ application to the trial court. At the centre of this case is the corollary principle that bars customers’ claims and whether a constructive trust can be ordered if there is no direct link or proprietary nexus.

Oct. 17 — Quebec — Samsung Electronics Co. Ltd. v. Option Consommateurs

Civil procedure: In 2004, Samsung and other electronic manufacturing companies pleaded guilty in the United States to charges of conspiring to restrict competition in the sale of D-RAM. Direct purchasers and consumers tried to launch a class action lawsuit against the appellants for allegedly artificially inflating the price of D-RAM and other related devices. The Quebec Superior Court refused to authorize the class action but the Court of Appeal overturned this decision. The main issue is whether consumers in Quebec can sue to recover a price increase resulting from anti-competitive behaviour.

Oct. 18 — Federal Court — Agraira v. Minister of Public Safety and Emergency Preparedness

Immigration law: Muhsen Ahemed Ramadan Agraira is a Libyan citizen who came to Canada in 1997. He applied for convention refugee status based on his membership in the Libyan National Salvation Front but his application was denied due to lack of credibility. Agraira married a Canadian who sponsored his application for permanent residence but it was denied for security reasons. The legislation changed significantly during the time of his application and the minister of Public Safety and Emergency Preparedness became responsible for these decisions. Agraira filed an application for ministerial relief, but the minister refused. The Federal Court granted Agraira’s application for judicial review, however, the Federal Court of Appeal then reversed this ruling and dismissed his application. In question is whether the Federal Court of Appeal was wrong to find that a change in ministerial responsibility was the determinative factor in interpreting s. 34(2) of the IRPA and if the court unlawfully restrained the discretion of the minister by limiting the interpretation of “national interest” to issues of national security and public danger.

Oct. 19 — New Brunswick — Picot v. R.

Criminal law: Charles Picot was acquitted on an indecent assault charge from 1975, partially because the complainant’s testimony wasn’t corroborated and wasn’t consistent with the evidence. The New Brunswick Court of Appeal allowed the appeal and ordered a new trial. The main question surrounds the trial judge’s decision to acquit Picot on the ground of reasonable doubt and if the judge’s failure to specifically consider testimony on incidental matters, which could have strengthened the complainant’s credibility, raises the question of law alone and gives the Attorney General the right to appeal.


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