This week at the SCC

This week the Supreme Court of Canada will hear one civil case to do with governing principles of directors’ personal liability, a criminal case, and three cases dealing with Aboriginal rights (two concerning the National Energy Board’s consultations with Aboriginal groups, and one with freedom of religion).

November 29 – Quebec – Wilson v. Alharayeri

Civil: The respondent was chief executive officer and a major shareholder of a corporation, Wi2Wi, which specialized in manufacturing Wi-Fi modules. In 2007 Wi2Wi, which was suffering financially, decided to merge with another business. While negotiating the merger the respondent decided to negotiate separately the sale of his own shares in Wi2Wi, but when the Wi2Wi directors learned of this it triggered the respondent’s resignation as CEO, and no merger or share-purchase transactions resulted. The directors then proceeded with a private placement of convertible secured notes, and as a result the proportion of the common shares owned by the respondent was significantly reduced; he eventually brought an action for oppression against the corporate directors.

Read the Quebec appellate court decision

Related news stories:

Oppression remedy lawsuit against corporate directors reaches Supreme Court of Canada, Canadian Underwriter

Related law firm bulletins:

Oppression: Revisiting the Governing Principles of Directors’ Personal Liability, Irving Mitchell Kalichman

November 30 – Federal – Hamlet of Clyde River v. Petroleum Geo-Services

Constitutional law: The respondents (the project proponents) applied to the National Energy Board for authorization to undertake a marine seismic survey program in coastal waters off Nunavut. Local Inuit groups and communities objected to the project. The NEB issued the requested authorization to the project proponents, on specified terms and conditions, and provided an environmental assessment report which outlined the consultation steps and activities undertaken by the project proponents and by the NEB. The Inuit of Clyde River brought an application for judicial review of the authorization on grounds including inadequate consultation. The Federal Court of Appeal dismissed the application, finding that the Crown’s duty was discharged, the Inuit were meaningfully consulted on their rights, and that an appropriate level of accommodation was undertaken.

Read the Federal Court of Appeal appeal decision

Related bulletins:

The Crown’s duty to consult and accommodate - three upcoming cases at the SCC to watch, McCarthy Tétrault LLP

Federal Court of Appeal Upholds the National Energy Board's Authorization of Seismic Testing in Davis Strait and Baffin Bay, Borden Ladner Gervais LLP

The Federal Crown Fulfilled its Consultation Obligations when the National Energy Board Approved a Seismic Program in Baffin Bay, University of Calgary Faculty of Law

November 30 – Federal – Chippewas of the Thames First Nation v. Enbridge

Constitutional law: Enbridge applied to the National Energy Board to approve a pipeline project that would reverse the flow of one section of an existing pipeline, expand the capacity of the pipeline, and exempt the project from certain regulatory requirements and procedures to allow for the transportation of heavy crude oil. The NEB approved the project, on specified terms and conditions. The Chippewas of the Thames First Nation appealed the NEB’s decision, citing, among other things, inadequate consultation. The Federal Court of Appeal dismissed the appeal, finding that, in the absence of the Crown as a participant in the original application, the NEB was not required to determine whether the Crown was under a duty to consult, and if so, whether the duty had been discharged.

Read the Federal Court of Appeal decision

Related law firm bulletins:
New FCA decision creates dangerous loophole to the duty to consult and accommodate, Olthuis Kleer Townshend LLP

Supreme court to hear appeals on role of tribunals in duty to consult, Blake Cassels & Graydon LLP

Chippewas Of The Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222, McCarthy Tétrault LLP

December 1 – British Columbia – Ktunaxa Nation Council v. Minister of Forests, Lands and Natural Resource Operations

Charter of Rights and Freedoms: In 2012 the respondent Minister approved an agreement for the development of a ski resort by the respondent company on Crown land in Jumbo Valley, southeastern B.C. The applicants brought a petition for judicial review, arguing that it violated their freedom of religion guaranteed under the Charter and breached the Minister’s duty to consult and accommodate under the Constitution Act, 1982. The applicants say the proposed resort would lie at the heart of the Grizzly Bear Spirit’s home or territory, or “Qat’muk,” and that allowing the development of permanent overnight human accommodation within Qat’muk would constitute a desecration and irreparably harm their relationship with the Grizzly Bear Spirit. The Supreme Court of British Columbia dismissed the petition for judicial review, and the Court of Appeal for British Columbia dismissed the appeal.

Read the B.C. appellate court decision

Related news stories:
Ktunaxa Nation heading to Supreme Court of Canada, Cranbrook Townsman

Conrad Black: This isn’t religion, it’s madness, National Post

Related bulletins:
CMLA Granted Leave to Intervene by SCC in Ktunaxa Nation Council, Canadian Muslim Lawyers Association

SCC to consider spiritual beliefs under the Charter and Section 35, Fasken Martineau DuMoulin LLP

December 2 – Ontario – R. v. Antic

Charter of Rights and Freedoms: This case involves the right to reasonable bail; a publication ban is in effect.

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