This week at the SCC

This week, the Supreme Court of Canada will hear six appeals, including cases that will test the ability of energy boards to regulate electricity rates in the face of negotiated union benefits. The court will also hear the case of lawyer Duncan Thompson, who denied a tax information request on the grounds of solicitor-client privilege.

Dec. 1 – Quebec – Theratechnologies v. 12851 Canada Inc.

Civil: A class action was authorized against the applicant, a pharmaceutical company, on the basis it failed to disclose questions the U.S. Food and Drug Administration had about a new drug awaiting approval. When the FDA published that information, the stock dropped precipitously. Shareholders who sold out lost a significant percentage of their investment. Subsequently, however, the FDA approved the drug and the stock returned to its previous level. The SCC will review whether the appeal court erred in its assessment that the applicant failed to disclose material information.

Read the Quebec Court of Appeal’s decision

Related law firm bulletins:
Screening secondary market liability actions in Quebec: the Court of Appeal weighs in, McCarthy Tétrault LLP

An unprecedented decision of the Court of Appeal: a judgment authorizing a class action under the Securities Act may be appealed, Lavery de Billy LLP

Dec. 2 – British Columbia – Association des parents de l’école Rose-des-vents v. British Columbia

Charter of Rights: In 2010, parents of students at École Rose-des-vents, a French-language elementary school in British Columbia, signed a petition in the Supreme Court of British Columbia seeking a declaration their s. 23 Charter rights had been violated because the school’s facilities were not equivalent to those of a nearby English-language school. The SCC will determine whether their rights were violated.

Read the British Columbia Court of Appeal’s decision

Related news stories:
Vancouver francophone school conditions violate minority rights, CBC

Francophone parents take province, school board to court, Vancouver Courier

Dec. 3 – Ontario – Ontario Energy Board v. Ontario Power Generation

Administrative law: Ontario Power Generation Inc., the province’s largest electricity generator, made a routine application to the Ontario Energy Board to have electricity rates fixed for the 2011 year. The OEB determined that OPG’s staffing levels and employment costs were too high, and so denied OPG the rates it had sought. OPG, however, had already negotiated staffing levels and salaries with its unionized workforce, so it was not in a position to reduce those costs. The court of appeal ruled that the OEB’s denial was unjustified. The SCC will review that decision.

Read the Ontario Court of Appeal’s decision

Related news stories:
OPG fights order to cut pay packets, Toronto Star

Energy rate hike back on table in Ontario, The Globe and Mail

Dec. 3 – Alberta – ATCO Gas and Pipelines v. Alberta Utilities Commission

Administrative law: ATCO, which participates in pension plans that have accumulated unfunded liabilities of $157.1 million, applied to the Alberta Utilities Commission for annual increases to its funding in order to help pay down the liability. The commission reviewed other pension plans and determined ATCO’s policy of providing a 100-per-cent cost-of-living adjustment, up to a maximum of three per cent, was excessive. The application was dismissed on appeal.

Read the Alberta Court of Appeal’s decision

Dec. 4 – Federal – Canada v. Thompson

Taxation: The Canada Revenue Agency demanded lawyer Duncan Thompson provide documentation as part of an enforcement proceeding. Thompson provided some, but not all, of the information required. In particular, Thompson refused to hand over a list of accounts receivable, arguing it would be a violation of solicitor-client privilege and, in any event, the order also infringed on his Charter right to protection from unreasonable search and seizure. The SCC will review whether the Federal Court of Appeal erred in denying the CRA order.

Read the Federal Court of Appeal’s decision

Related law firm bulletin:
Supreme Court of Canada to decide if a lawyer subject to enforcement proceedings can claim solicitor-client privilege, Bennett Jones LLP

Dec. 5 – Federal – Guindon v. R.

Charter of Rights: The appellant was fined penalties of $546,747 by the Canada Revenue Agency, under s. 163.2 of the Income Tax Act, for evasion relating to a charitable donation program. Guindon argued the third-party penalty imposed under that section of the Income Tax Act contains true penal consequences and therefore falls under the Charter of Rights and Freedoms. Therefore, she claimed she should have been entitled to the rights afforded by the Charter, including the right to be presumed innocent. The Tax Court accepted Guindon’s argument, but the Court of Appeal reversed that decision.

Read the Federal Court of Appeal’s decision

Related news story:
SCC consideration of adviser penalties significant for lawyers, Law Times

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