New decisions from the Supreme Court of Canada

The following decisions were released on the Supreme Court of Canada Judgments website since the last InForum. The subject headings and summaries have been prepared by the Supreme Court of Canada. This notice has been prepared by Society staff in Library & Information Services.

May 9, 2014
John Doe v. Ontario (Finance)
Neutral Citation: 2014 SCC 36 (CanLII)
File No.: 34828.
2013: November 6; 2014: May 9.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
On Appeal from the Court of Appeal for Ontario

Access to information — Exemptions — Advice or recommendations of public servant — Government institution applying exemption for advice or recommendations at s. 13(1) of Freedom of Information and Protection of Privacy Act and denying access to information request — Information and Privacy Commissioner ordering disclosure — Whether Commissioner’s disclosure order reasonable — Whether s. 13 (1) exemption for advice or recommendations applies to policy options that do not suggest course of action — Whether s. 13(1) exemption applies to information that is not communicated — Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 13(1).

After the Ministry of Finance amended a provision of the Corporations Tax Act, R.S.O. 1990, c. C. 40, John Doe made an access to information request for its records about the issue of retroactivity and the effective date of the amendments. The Ministry determined that disclosure of the records would reveal advice or recommendations of a public servant and denied John Doe access to them under s. 13(1) of the Freedom of Information and Protection of Privacy Act (“FIPPA”). An Adjudicator in the Office of the Information and Privacy Commissioner of Ontario (“IPC”), however, ordered their disclosure and denied the Ministry’s application for reconsideration. While the Superior Court later dismissed the Ministry’s subsequent application for judicial review, the Court of Appeal found the disclosure order was unreasonable, allowed the appeal and remitted the matter to the IPC.

Held: The appeal should be dismissed.


May 8, 2014
Union Carbide Canada Inc. v. Bombardier Inc.
Neutral Citation: 2014 SCC 35 (CanLII)
File No.: 35008.
2013: December 11; 2014: May 8.

Present: McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
On Appeal from the Court of Appeal for Quebec

Civil procedure — Offer to settle — Settlement privilege — Exception — Allegations in motion for homologation of settlement opposed on ground that mediation contract prevented parties from referring to events taking place during mediation process — Whether mediation contract with absolute confidentiality clause can displace common law settlement privilege, including exception to privilege where party seeks to prove existence or scope of settlement — Whether clause permitted parties to use confidential information to prove terms of settlement — Code of Civil Procedure, CQLR, c. C25, art. 151.21.

The parties are entangled in a decades‑long, multimillion dollar civil suit about defective gas tanks used on Sea‑Doo personal watercraft. B claimed that the tanks supplied by D were unfit for the use for which they had been intended and commenced an action for damages against D in Montréal, in the Quebec Superior Court. The parties agreed to private mediation and a standard mediation agreement was signed. It contained the following clause regarding the confidentiality of the process: “Nothing which transpires in the Mediation will be alleged, referred to or sought to be put into evidence in any proceeding”. The next day D submitted a settlement offer which B subsequently accepted. Two days after B’s acceptance, counsel for D stated that his client considered this to be a global settlement amount. Counsel for B replied that the settlement amount was for the Montréal litigation only. D did not send the discussed settlement amount, and B then filed a motion for homologation of the transaction in the Superior Court. D brought a motion to strike out the allegations contained in six paragraphs of the motion for homologation on the ground that they referred to events that had taken place in the course of the mediation process.

The motion judge held that in light of the confidentiality clause in the mediation agreement, the mediation proceedings were covered by art. 151.21 of the Code of Civil Procedure. She granted D’s motion to strike in part, ordering that four of the six allegations be struck because they referred to discussions that had occurred or submissions that had been made in the context of the mediation. The Court of Appeal allowed the appeal and found that the rules of the Code of Civil Procedure with respect to confidentiality do not apply to extrajudicial mediation proceedings. It observed that when mediation has resulted in an agreement, communications made in the course of the mediation process cease to be privileged and held that settlement privilege does not prevent a party from producing evidence of confidential communications in order to prove the existence of a disputed settlement agreement arising from mediation or to assist in the interpretation of such an agreement. The court declined to strike the allegations and left it to the judge hearing the motion for homologation to consider whether the impugned paragraphs were relevant to the identification of the terms of the agreement, in which case the exception to the common law settlement privilege would apply.

Held: The appeal should be dismissed.


May 2, 2014
Immeubles Jacques Robitaille inc. v. Québec (City)
Neutral Citation: 2014 SCC 34 (CanLII)
File No.: 35295.
2014: February 20; 2014: May 2.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.
On Appeal from the Court of Appeal for Quebec

Municipal law — Bylaws — Offences — Estoppel — Operation of commercial parking lot by company in zone where such use prohibited — Statement of offence issued against company for nonconforming use under zoning bylaw — Company admitting to nonconforming use but raising doctrine of estoppel — Circumstances in which defendant can rely on doctrine of estoppel to avoid penal liability — Cities and Towns Act, CQLR, c. C19, s. 576 — Act respecting land use planning and development, CQLR, c. A19.1, s. 227.

The City issued a statement of offence against the company IJR for operating a commercial parking lot on its property, a use that violated the applicable zoning by‑law in the sector in question. The company admitted to the non‑conforming use but raised the doctrine of promissory estoppel. In support of its argument, the company relied on a number of actions of the City, including: the wording of a clause in a contract of sale entered into with the City, which provided for the preservation of the company’s existing rights; the nature of certain work done by the City; compensation paid to the company by the City for loss of parking income due to freeway construction work next to the property; the collection by the City of municipal taxes, at a non‑residential rate, on the property in question; and the installation of a sign on the public road to indicate the existence of the public parking lot. At trial, the company was convicted of violating the zoning by‑law. The company appealed to the Superior Court, which acquitted it, but the Court of Appeal subsequently restored the conviction.

Held: The appeal should be dismissed.


May 1, 2014
Dionne v. Commission scolaire des Patriotes
Neutral Citation: 2014 SCC 33 (CanLII)
File No.: 34854.
2014: January 13; 2014: May 1.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver and Karakatsanis JJ.
On Appeal from the Court of Appeal for Quebec

Employment law — Occupational health and safety — Unsafe workplace — Contract of employment — Whether pregnant supply teacher qualifies as eligible “worker” for Preventive Withdrawal and earningsreplacement indemnity under applicable provincial legislation — Whether refusal to perform work in unsafe workplace precludes formation of contract of employment — Act respecting occupational health and safety, CQLR, c. S2.1, ss. 1 “worker”, 2, 4, 11, 12, 14, 30, 40, 41 — Civil Code of Québec, art. 2085.

Quebec’s Act respecting occupational health and safety is designed to provide financial security when workers are required to withdraw temporarily from the workforce to avoid unsafe work. It sets out specific health and safety protections for pregnant women whereby they can refuse to perform work under conditions that present a health or safety danger to themselves or their fetus, and to have a reassignment of work to avoid those risks. If that reassignment is not possible, they have the right to take Preventive Withdrawal during which they stop working and receive income replacement benefits during their pregnancy.

D, a pregnant supply teacher, learned from her doctor that she was vulnerable to contagious viruses which can harm the fetus. Because these viruses can be spread by groups of children, a classroom posed a risk. The School Board offered her a one‑day teaching position, which she accepted. Due to the health risk in the workplace, the Commission de la santé et de la sécurité du travail told D that she was entitled to reassignment or Preventive Withdrawal. The School Board appealed to the Commission des lésions professionnelles (“CLP”), which concluded that D was ineligible for Preventive Withdrawal because of her inability to go into the classroom. D was therefore outside the scope of the protection provided by the Act. On judicial review, the Superior Court found the CLP decision to be reasonable. A majority in the Quebec Court of Appeal agreed with the Superior Court.

Held: The appeal should be allowed.