Guy J. Pratte

The appeal concerned whether submerged strips of privately owned land lying between sold riparian lots and a navigable lake were transferred with the lots under art. 1718 of the Civil Code of Québec.

The majority held that although the deeds of sale described only the riparian lots as principal property, the submerged parcels were accessories because they were destined to serve the lots and were necessary to their agreed use as private waterfront vacation properties with direct and exclusive shoreline access.

The Court formulated the applicable accessory analysis by focusing on the destination of the principal property, the accessory’s appropriation to that use, and the buyers’ legitimate expectations.

It further held that the contracts did not unequivocally exclude the accessory rule, particularly where the buyers were not informed of the submerged lands’ existence.

The appeal was dismissed with costs, over a dissent that would have held land cannot constitute an accessory in these circumstances and that the deeds excluded any such transfer.

A consulting firm contracted with a manufacturing company to implement an integrated management system, including a limitation of liability clause that had been freely negotiated between sophisticated commercial parties.

When the system implementation failed, the lower courts declared the non-liability clause inoperative on the basis of the doctrine of breach of a fundamental obligation in Quebec civil law.

The Supreme Court allowed the appeal, holding that neither of the two possible legal bases for the doctrine — public order or absence of an objective cause of the obligation — applied to render the clause inoperative in a contract by mutual agreement between sophisticated legal persons.

The Court confirmed that the Civil Code of Québec limits the doctrine of breach of a fundamental obligation to consumer contracts and contracts of adhesion under art. 1437 C.C.Q., and that the legislature deliberately chose not to extend such a mandatory rule to freely negotiated commercial contracts.

The clause did not deprive the debtor's obligation of its objective cause because specific performance and agreed damages remained available as sanctions for nonperformance.

A copyright collective society sought to enforce an interim tariff against a university that had refused to continue as a licensee, while the university counterclaimed for a declaration that its fair dealing guidelines protected its copying activities.

The Court held that Board-approved tariffs are not mandatory against users who choose not to be licensed, as the relevant statutory provision only gives a collective society the right to collect defaulted payments from voluntary licensees.

Because the tariff was unenforceable, there was no live dispute to ground the university's request for declaratory relief on fair dealing.

The Court nonetheless identified significant errors in the lower courts' fair dealing analysis, which wrongly focused exclusively on the institutional perspective rather than the perspective of the students as the ultimate users.

The Supreme Court considered whether article 35, paragraph 1 of Quebec's Code of Civil Procedure, which grants the Court of Québec exclusive jurisdiction over civil disputes valued at less than $85,000, is constitutional under section 96 of the Constitution Act, 1867.

The majority held that the provision unconstitutionally infringes on the core jurisdiction of the Superior Court by creating a prohibited parallel court, given the breadth of the jurisdiction, its exclusivity, the absence of accessible appeal to the superior court, and a monetary ceiling approximately 29 percent above the updated historical limit.

The second question, concerning whether the Court of Québec must apply judicial deference standards when hearing administrative appeals, was found to be moot following the combined effect of Vavilov and new legislation.

The Court dismissed the appeals but suspended the declaration of invalidity for 12 months to allow the Quebec legislature to enact a constitutional replacement.

The appellants appealed an arbitrator's decision to quash summonses issued to non-party lawyers in a commercial arbitration regarding referral fees.

The arbitrator had quashed the summonses on the basis that the requested client names and accounting information were protected by solicitor-client privilege.

The Superior Court dismissed the appeal, finding that the non-party lawyers were not bound by the arbitration agreement's expanded appeal rights, and under the Arbitration Act, 1991, there is no right of appeal for questions of mixed fact and law.

The court further held that the standard of review was reasonableness and the arbitrator's decision to quash the summonses and award costs was reasonable.

The appellant, ITP SA, appealed a Master's decision granting a stay of an Ontario action commenced by the respondent, Nexen Energy ULC.

The parties' contract contained a forum selection clause designating Ontario courts and Alberta law.

Following a pipeline rupture, Nexen commenced a multi-party action in Alberta and a protective action in Ontario against ITP.

ITP sought to use the Ontario action solely to determine two limitation of liability clauses under the forum selection clause, while agreeing the rest of the action could proceed in Alberta.

The Master stayed the Ontario action, finding 'strong cause' to deviate from the forum selection clause because ITP could not 'slice and dice' the litigation.

The Divisional Court dismissed the appeal, finding the Master applied the correct test and made no palpable and overriding error.

The Director of Military Prosecutions applied for judicial review of a decision by the Deputy Chief Military Judge not to assign a replacement military judge to preside over the court martial of the Chief Military Judge following a recusal.

The Federal Court held that it had jurisdiction to review the decision and dismissed the application, finding that the decision not to assign another judge due to reasonable apprehension of bias and language constraints was reasonable.

The appellants sought leave to appeal a Quebec Court of Appeal decision that denied leave to appeal a Superior Court authorization of a class action against automobile manufacturers for punitive damages arising from non-compliance with environmental standards.

The Superior Court had authorized the class action with respect to punitive damages only, declining to authorize the compensatory damages claim.

A majority of the Supreme Court found the Court of Appeal judge did not err in exercising her discretion to deny leave.

The minority would have granted leave on the basis that a question of law warranting appellate review had been raised, and would have remanded the matter to the Court of Appeal for a decision on the merits.

Nexen Energy commenced identical actions in Alberta and Ontario against ITP SA for damages arising from a pipeline rupture.

While the Purchase Order specified Ontario as the exclusive dispute resolution forum, ITP SA defended the Alberta action and sought to use the Ontario forum selection clause to have a discrete issue of law (interpretation of liability limits) adjudicated in Ontario via a Rule 21 motion before the Ontario action was stayed.

Nexen Energy moved to stay its own Ontario action.

The Master found "special circumstances" overriding the forum selection clause, preventing ITP SA from "slicing and dicing" the case.

The Master granted Nexen Energy's motion, permanently staying the Ontario action, and directed ITP SA's motion to Alberta, citing judicial economy, efficiency, and consistency, given the active case management in Alberta and the multi-party nature of the dispute.

Canadian National Railway Company moved for a stay of the Court of Appeal's June 2018 order requiring CN to reopen the James Street Bridge in Thunder Bay for vehicle traffic and maintain it in accordance with a 1906 agreement between Grand Trunk Pacific Railway Company and the Town of Fort William.

CN sought the stay pending its application for leave to appeal to the Supreme Court of Canada.

The motion judge declined to grant the stay, finding that CN's leave application lacked sufficient merit to warrant a stay despite CN's potential irreparable harm from financial commitments to reconstruction work.

A power producer sought judicial intervention to force renegotiation of a long-term fixed-price electricity contract after market changes generated large resale profits for the purchaser.

The Court held Quebec civil law did not provide a basis to imply a duty to renegotiate, to apply unforeseeability in these circumstances, or to redistribute contractual benefits through good faith or equity.

The agreement allocated price fluctuation risk and remained enforceable as written.

The appeal was dismissed, with a dissent that would have recognized a relational-contract duty to cooperate.

In an appeal from judicial review proceedings, the appellants challenged a law society decision refusing accreditation to a proposed law school because of a mandatory covenant restricting sexual intimacy to marriage between a man and a woman.

The majority held that the regulator had statutory authority to consider the covenant’s impact on equal access, diversity in the profession, and potential harm to LGBTQ prospective students.

Applying the Doré/Loyola framework, the Court found the decision proportionately balanced freedom of religion with statutory public-interest objectives and was reasonable.

The appeal was dismissed, with concurring reasons and a dissent that would have allowed the appeal.

The City of Thunder Bay appealed a decision dismissing its application for a declaration that Canadian National Railway Company breached a 1906 agreement by refusing to reopen the James Street Swing Bridge for motor vehicle traffic following a 2013 fire.

The bridge is a combined railway and roadway structure.

The application judge found that the parties intended the bridge to be maintained only for the type of traffic existing in 1906 (streetcars, horses, and carts), not modern motor vehicles.

The Court of Appeal allowed the appeal, finding the application judge's interpretation was unreasonable and tainted by extricable errors of law.

The court held that the perpetual right to cross the bridge for "vehicle traffic" and the obligation to maintain it "in perpetuity" must include modern motor vehicles, not merely those existing in 1906.

The court also found the application judge erred in placing the onus on Thunder Bay to provide specific proposals for making the bridge safe for vehicles, when that obligation rested with CN as the bridge operator.

The applicants sought to stay a decision of the Ontario Labour Relations Board pending judicial review.

The Board had certified the respondent union, finding the applicants were the true employer of construction labourers on the application date, and had refused to admit post-application evidence regarding the workers' roles.

The Divisional Court dismissed the motion for a stay, holding that the 'strong prima facie case' test applied and that the applicants failed to meet this threshold, as the Board's refusal to admit the evidence was a valid exercise of its statutory discretion rather than a denial of natural justice.

The City of Thunder Bay applied for declaratory orders and specific performance to compel Canadian National Railway Company (CN) to reopen and perpetually maintain the James Street Swing Bridge for vehicular traffic.

The City argued that CN's perpetual maintenance obligation included upgrading the bridge to modern safety standards.

CN contended its obligation was limited to the original 1906 design and that reopening required significant structural reconfiguration beyond maintenance.

The Fort William First Nation supported the City's position.

The court dismissed the application, finding the City's proposals for reopening the bridge vague and lacking specificity, and that the evidence did not clearly define the required work or establish that such work fell within CN's contractual maintenance obligation.

This decision addresses costs following two motions where the Bank of Montreal and Surgeson Carson Associates, Inc. (the Receiver) successfully obtained summary judgment dismissing claims by Jean-Luc Cardinal, Linda Cardinal, The Estate of Raymond Cardinal, and Ferme Lanidrac (the Borrowers), and successfully defended the Borrowers' motion to set aside a consent judgment.

The Bank and Receiver sought substantial indemnity costs, citing the complexity, importance, and unfounded allegations of fraud and abuse of process made by the Borrowers.

The Borrowers argued for partial indemnity costs, claiming shared success on a legal test and that the defendants' evidence was excessive.

The court awarded substantial indemnity costs to the Bank ($110,000) and the Receiver ($50,000), finding the Borrowers' conduct in re-litigating settled claims and making serious, unsubstantiated allegations of dishonesty warranted higher costs, despite acknowledging minor success on a legal argument.

Trinity Western University (TWU), an evangelical Christian university, sought accreditation from the Law Society of Upper Canada for its proposed law school.

TWU requires students to sign a community covenant prohibiting sexual intimacy outside of heterosexual marriage.

The Law Society denied accreditation, finding the covenant discriminated against the LGBTQ community.

TWU appealed the Divisional Court's dismissal of its judicial review application.

The Court of Appeal dismissed the appeal, holding that the Law Society's decision was subject to a reasonableness standard of review.

The Court found that while the denial of accreditation infringed TWU's freedom of religion under s. 2(a) of the Charter, the Law Society reasonably balanced this infringement against its statutory mandate to protect the public interest and ensure equal access to the legal profession.

Following a successful appeal in an estate litigation matter, the appellants sought costs for both the motion below and the appeal.

The Court of Appeal awarded the appellants their full requested costs for the motion below, totaling approximately $319,000, noting these were less than the costs originally awarded to the respondents.

For the appeal, the court awarded partial indemnity costs of $100,000 and $75,000 to the respective appellants.

The court rejected the argument that the issues were sufficiently novel to depart from the normal costs rules, and held that the public policy considerations for a blended costs award payable from the estate were not engaged.

The borrowers brought a motion to set aside a consent order terminating a receivership, alleging that the Bank and the court-appointed Receiver made misrepresentations during settlement negotiations.

The Bank and the Receiver brought a motion for summary judgment to dismiss the borrowers' subsequent action for damages.

The court found no evidence of misrepresentation, noting that the borrowers had independent legal advice, received full disclosure, and signed multiple full and final releases.

The court dismissed the motion to set aside the consent order, denied retroactive leave to sue the Receiver, and granted summary judgment dismissing the borrowers' action on the basis of res judicata.

The appellants challenged the validity of the testator's 2010 wills on the basis of lack of testamentary capacity and undue influence.

The respondents successfully moved to dismiss the challenges on the basis that they were barred by the equitable doctrines of estoppel by representation and estoppel by convention.

The Court of Appeal allowed the appeal, holding that the equitable doctrines of estoppel do not apply to bar a challenge to the validity of a will.

The Court also held that an interested person does not have an automatic right under rule 75.01 of the Rules of Civil Procedure to require that a will be proved in solemn form, as the court retains discretion over whether and how a testamentary instrument is proved.