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This week at the SCC

|Written By Heather Gardiner

The Supreme Court of Canada will hear five appeals this week, including the highly anticipated conflict of interest case Canadian National Railway v. McKercher LLP on Thursday.

Jan. 21 — Newfoundland and Labrador — R. v. W.H.

Criminal law: W.H. was convicted of sexually assaulting a child. On appeal, the Court of Appeal found there were unexplained inconsistencies and improbabilities in the child’s testimony and acquitted W.H.

Jan. 22 — Nova Scotia — Chehil v. R.

Charter of Rights and Freedoms: Mandeep Singh Chehil was arrested after a police sniffer dog found a large quantity of cocaine in his suitcase at the Halifax airport. At trial, the drugs were excluded as evidence and Chehil was acquitted after the judge held that the search violated his Charter rights.

Jan. 22 — Saskatchewan — MacKenzie v. R.

Charter of Rights and Freedoms: After stopping him for speeding, police officers became suspicious that Benjamin Cain MacKenzie possessed a controlled substance. They had their sniffer dog conduct a search of his vehicle and found a large quantity of marijuana. The judge held the search was unreasonable and excluded the evidence. The Court of Appeal overturned the decision and remitted the case to the Court of Queen’s bench for a trial on evidence.

Jan. 23 — Quebec — Payette v. Guay Inc.

Labour and employment: Guay Inc. bought the assets of Yannick Payette’s companies. The contract of sale stated that Payette would still be employed by Guay and be bound by a non-competition clause and companion non-solicitation clause for five years after the end of his employment. Payette was dismissed in 2009 and in 2010 he started working for competitor Mammoet. Guay applied for an injunction. The Superior Court found that the dismissal was wrongful and wouldn’t apply the non-competition clause. The Court of Appeal reversed that decision.

Jan. 24 — Saskatchewan — Canadian National Railway v. McKercher LLP

This highly anticipated appeal involves Saskatchewan law firm McKercher LLP. In 2008, Gordon Wallace retained McKercher to represent him as the leading plaintiff in a class action lawsuit on behalf of Prairie farmers against Canadian National Railway, Canadian Pacific Railway, and others for allegedly overcharging them for grain transportation over 25 years. When the class action was launched, McKercher was also acting for CN Rail in a number of other unrelated matters. As a result, CN Rail sought to have McKercher removed from the class action. The central issue is whether it’s a conflict of interest for a law firm to accept a retainer to sue a current client on an unrelated matter without first obtaining their consent.


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