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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 closely watched case about a former equity partner’s mandatory retirement in McCormick v. Fasken Martineau DuMoulin LLP.

(Photo: Jamie McCaffrey)

Dec. 9 — Saskatchewan — Spencer v. R.

Charter of Rights and Freedoms: Matthew Spencer downloaded child pornography from the Internet using a peer-to-peer file-sharing software program and kept the files in his shared folder. When a police officer found his files, he couldn’t identify the owner of the folder but was able to determine that the IP address being used by the owner was assigned by Shaw Communications, which Shaw identified as Spencer’s sister. The police obtained a warrant to search her house and seized Spencer’s computer. Spencer was then charged with possession of child pornography and making child pornography available.

Read the Saskatchewan Court of Appeal’s decision.

Related news articles:

Court battle continues for child pornography collector, The StarPhoenix

Dec. 10 — Alberta — Martin v. Workers’ Compensation Board of Alberta

Labour and employment: Douglas Martin filed a labour complaint against his employer. Parks Canada then asked Martin to disclose information related to data on his work computer in order to comply with a request it received under the Access to Information Act. Martin claimed this request triggered a psychological condition that led to him taking leave and making a claim for compensation for chronic stress. The Workers’ Compensation Board found that Martin’s stress was ineligible for compensation because it failed to meet two of the criteria set out in the policy.

Read the Alberta Court of Appeal’s decision.

Related news articles:

Top court to hear former Banff warden’s compensation case, Calgary Herald

Dec. 11 — Quebec — Union Carbide Canada Inc. v. Bombardier Inc.

Evidence: Disputes arose between Union Carbide Canada Inc. and Bombardier Inc. in Quebec and the United States over gas tanks on personal watercraft; Bombardier claimed the tanks, which were supplied by Union Carbide, were unfit for normal use. A mediation agreement was signed, which contained the following clause: “Nothing which transpires in the mediation will be alleged, referred to or sought to be put into evidence in any proceeding.” Bombardier accepted an offer of $7 million, which Union Carbide stressed was a global settlement but Bombardier said it was limited to the Quebec dispute. Bombardier filed a motion in the Superior Court to homologate the transaction and Union Carbide sought to strike certain allegations from the motion that referred to the mediation.

Read the Quebec Court of Appeal’s decision (French).

Dec. 12 — British Columbia — Sattva Capital Corp. v. Creston Moly Corp.

Contracts: Sattva Capital Corp. introduced Creston Moly Corp. (formerly Georgia Ventures Inc.) to a potential molybdenum mining deposit in Mexico. Georgia purchased it and the parties agreed to a $1.5-million finder’s fee payable to Sattva but they could not agree on how the fee should be paid. The matter went to arbitration and the arbitrator awarded damages of $4.1 million against Georgia for breach of contract. Georgia tried to appeal the award but was denied by the chambers judge. The Court of Appeal overturned that decision and granted leave. That appeal was then dismissed. The appeal court allowed Georgia’s appeal of that decision and granted an order than that the finder’s fee had been paid.

Read the B.C. Court of Appeal’s decision.

Related news articles:

“What if They Get It Wrong?” Slaw

Dec. 13 — British Columbia — McCormick v. Fasken Martineau DuMoulin LLP

Human rights: Fasken Martineau DuMoulin LLP equity partner Michael McCormick was required to retire under the partnership agreement when he turned 65 in 2010. McCormick filed a complaint with the B.C. Human Rights Tribunal accusing the firm of age discrimination. Faskens sought to dismiss the complaint on the basis that the tribunal doesn’t have jurisdiction over the complaint. The firm argued McCormick was not an employee — he was an owner — and no employment relationship existed that could be the subject of a complaint under s. 13 of the B.C. Human Rights Code. McCormick argued Faskens and its management exerted control over most aspects of his working life and human rights legislation required a broad and liberal interpretation. The tribunal dismissed Faskens’ application and on judicial review, the B.C. Supreme Court sided with the tribunal.

The B.C. Court of Appeal, however, disagreed with the interpretation of McCormick as an employee, calling it a “considerable over-reading” of the code. The appeal court ruled while a firm’s management may exercise aspects of control over the partners, similar to a corporation, “that does not change the relationship from one of partners running a business to one of employment by one group of partners over an individual partner.”

Read the B.C. Court of Appeal’s decision.

Related news articles:

SCC to hear lawyer’s age discrimination case, Legal Feeds

B.C. Court of Appeal says partners not employees of law firm, Legal Feeds

A partner is not always just an owner, Legal Feeds


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