This week at the SCC

The Supreme Court of Canada will hear four appeals this week, including two class action lawsuits, one against TELUS Communications for not disclosing a pricing practise to customers, and the second against a religious order and an oratory in Montreal, alleging sexual abuse. The remaining appeals concern how trusts are handled under the Excise Tax Act in the event of insolvency, and whether an Ontario man should have been convicted of bank robbery based on DNA evidence.

November 6 – Ontario – TELUS Communications v. Wellman

Civil law, class actions: Avraham Wellman, the representative plaintiff, claims that TELUS overcharged customers by rounding up calls to the next minute without disclosing this practice. TELUS conceded that the effect of the Consumer Protection Act is that consumer-contract claims can proceed in court, but that non-consumer (i.e., business customer) claims are governed by TELUS’s mandatory arbitration clause in its contracts and should have been stayed. The Ontario Court of Appeal concluded that the motions judge was correct in refusing to stay the non-consumer claims pursuant to the Arbitration Act.

Civil procedure, class actions: The respondent attended the Notre-Dame-des-Neiges elementary school from 1951 to 1955, when he and his family were living in a dwelling owned by the appellant and the intervener La Province canadienne de la Congrégation de Sainte-Croix, near L’Oratoire Saint-Joseph du Mont-Royal in Montreal. J.J. alleges he was sexually assaulted by members of the Congrégation de Sainte-Croix during that time, at the elementary school and the Oratoire. After watching a television report in 2011 on sexual assaults committed by members of the Congrégation, he asked the Quebec Superior Court to authorize a class action against the appellants and interveners and to appoint him as representative plaintiff. The Superior Court refused to certify the class, but the appellate court overturned that decision.

Read the Court of Appeal of Quebec decision here.

Related news story:
Supreme Court to hear St. Joseph's Oratory appeal in class action case; CTV News

Related bulletin:
The Quebec Court of Appeal overturns yet another refusal to authorize a class action; McCarthy Tétrault LLP

November 8 – Federal – Callidus Capital v. R.

Civil law, taxation: Callidus Capital Corporation was a secured creditor of Cheese Factory Road Holdings Inc. Pursuant to a trust agreement, Cheese Factory held all funds received in trust for Callidus and remitted all funds to Callidus to be applied to its debt. Cheese Factory collected harmonized sales tax and goods and services tax and remitted those tax proceeds to Callidus. Callidus applied those proceeds to Cheese Factory’s debt. The Crown demanded payment of the tax proceeds; Cheese Factory made an assignment in bankruptcy. The Crown began a proceeding against Callidus, which asked the Federal Court to determine whether the bankruptcy of a tax debtor and subsection 222(1.1) of the Excise Tax Act rendered the deemed trust under section 222 of the ETA ineffective as against a secured creditor who received, prior to the bankruptcy, proceeds from the assets of the tax debtor that were deemed to be held in trust?

The Federal Court said yes, but a majority of the Federal Court of Appeal allowed an appeal.

Read the Federal Court of Appeal decision here.

Related bulletin:
Supreme Court Of Canada To Rule On CRA Superpriorities; Borden Ladner Gervais LLP

Are Forbearance Agreements On The Endangered Species List? The Effect Of Canada v. Callidus Capital On Lenders’ Dealings With Insolvent Borrowers; Torkin Manes LLP

November 9 – Ontario – Youssef v. R.

Criminal law, evidence: The appellant was charged with robbery and related offences after a bank branch in London, Ontario was robbed. The main issue at trial was the identity of the robber. The evidence against the appellant was circumstantial; his DNA was found on a pocket knife left in an area of the bank accessed only by the bank employees and the robber, and on a T-shirt found in the getaway car. The appellant appealed his convictions, arguing that the trial judge’s finding that he was the robber was not the only rational inference on the evidence. A majority of the appellate court dismissed the appeal.

Read the Court of Appeal of Ontario decision here.

Related news story:
DNA on knife helps convict Abdullah Youssef, 22; The London Free Press


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