Patrick Girard

A forest products company challenged the right of a state-owned electricity distributor to invoke a price adjustment clause in a 1926 power supply contract, arguing that the distributor was not a party to that contract.

The majority held that a 1965 bilateral contract between the distributor and the original contracting party effected a temporally limited assignment of the 1926 contract, with the assigned party's advance consent validly given in the original agreement.

As a result, the distributor was entitled to pass on to the forest products company the taxes and charges levied upon it by provincial legislation as increases in the cost of electricity generated from water power.

The dissent maintained that the trial judge had committed no reviewable error in finding that the 1965 contract created a mandate rather than an assignment, and that the Court of Appeal should not have intervened by analyzing the contract on a theory never advanced at trial.

On an appeal concerning a disciplinary investigator’s demand for an insurer’s claim file, the Court considered whether a statutory obligation to produce “any document” abrogates litigation privilege.

The Court held that litigation privilege is a class privilege distinct from solicitor-client privilege but fundamental to the administration of justice and the adversarial process.

It ruled that the privilege may be lifted only by clear, explicit and unequivocal legislative language, not by inference from a general production clause.

Because the governing provision lacked sufficiently specific wording, the insurer was entitled to withhold documents protected by litigation privilege.

The appeal was dismissed with costs.

The appellant regulator challenged judgments holding that pension plan clauses could limit employer funding obligations after partial termination.

During appellate proceedings, the legislature enacted declaratory amendments expressly reversing the interpretation adopted below.

The majority held declaratory legislation applies immediately to pending matters and that the dispute remained pending because substantive rights had been remitted for determination.

It concluded the administrative decision-maker had to apply the new provisions since prior appellate directions no longer reflected good law after legislative intervention.

The appeal was allowed, with dissenting reasons concluding appellate finality and res judicata barred reopening the legal issue.