LEXPERT MAGAZINE
|
NOVEMBER/DECEMBER 2018 33
| RECENT LITIGATION OF IMPORTANCE |
APPEAL TO SUPREME COURT OF CANADA
Justice Russell Brown, writing for the Su-
preme Court, identified and corrected three
errors in the decisions of the courts below:
(1) the lower courts failed to examine the
true scope of the protection from disclosure
contained in the Act; (2) they allowed the rel-
evance of the databases to supplant the oper-
ation of the text of the Act; and (3) they read
the phrase "particular individual insured
persons" synonymously with "identifiable in-
dividual insured persons," to bring the data-
bases outside of the protection of the Act.
e Court corrected the errors first by
confirming that the databases sought by
Philip Morris essentially compiled the type
of individual records that are not compellable
in an aggregate action, and that placing that
information in databases for administrative
purposes did not change the nature of the
underlying information. Second, the Court
held that the Legislature could have, but did
not, condition the non-compellability of the
records by "relevance," and the Act renders
even relevant documents non-compellable.
ird, the Court held that the principles
of statutory interpretation and the scheme
of the Act did not permit reading "particu-
lar individual" as "identifiable individual,"
which meant the databases, even anonym-
ized, fall within the protection of the Act.
Philip Morris argued, as it had in the
courts below, that the trial would be rendered
unfair if it did not receive production of the
databases. e Supreme Court held that this
concern was addressed in its 2005 decision,
British Columbia v. Imperial Tobacco Can-
ada Ltd., which upheld the constitutionality
of the Act. Justice Brown found that Philip
Morris's argument "effectively seeks to reliti-
gate this Court's earlier conclusion in rela-
tion to the Act."
e Court also stated, "To be clear, the da-
tabases will be compellable once 'relied on by
an expert witness': s. 2(5)(b). A 'statistically
meaningful sample' of the databases, once
anonymized, may also be compelled on a suc-
cessful application under ss. 2(5)(d) and 2(5)
(e)" of the Tobacco Damages and Health Care
Costs Recovery Act.
Her Majesty the Queen in Right of British
Columbia was represented by Bennett Jones
LLP, Siskinds LLP, Duvall Law Firm,
LLC and the Attorney General of British
Columbia, with a team including Jeffrey
Leon, Preet Bell, Scott Azzopardi, James Vir-
tue, André I. G. Michael, James Duvall and
Peter Lawless.
McCarthy Tétrault LLP was counsel
to the respondent, with a team including
Michael A. Feder, Emily MacKinnon and
Robyn Gifford.
e intervener the Attorney General of
Ontario was represented by a team including
Sunil S. Mathai, Farzin Yousefian and An-
tonin I. Pribetic.
e intervener the Samuelson-Glushko
Canadian Internet Policy and Public Inter-
est Clinic was represented by David Fewer of
the University of Ottawa.
Written submissions were made for the
intervener the Information and Privacy Com-
missioner for British Columbia by Angela R.
Westmacott, QC, of Lovett Westmacott.
CORPORATE ASSETS INC. ET AL. V.
9214-6463, L.P. ET AL.
DECISION DATE: MAY 16, 2018
Aer eight years of litigation, plaintiff Cor-
porate Assets Inc. (CAI) was awarded close
to $17 million in capital and interest from
a group of corporate defendants formed by
9214 6463 L.P., 9214-6463 Québec Inc.,
Counsel RB Capital LLC, CIA CPCC,
S.E.N.C., CIA CPCC Inc., Maynards In-
dustries Ltd., Hilco Industrial LLC, Hilco
Assets Sales Canada, and Tim Martinez.
All parties in the case carried on activities
in the field of industrial auctions and all par-
ticipated in the same auction process for the
bulk sale of the assets of the Aleris aluminum
smelting plant in Québec, from which arose
this litigation.
Aer securing the going concern offer of
Koenig and Vits, a company represented at
the time by defendant Tim Martinez, the
trustee conducting the bid process wanted to
secure, as a "plan B," a contingent offer by a
liquidator to provide for the sale of the assets
if that of Koenig and Vits was to fail.
e trustee chose CAI, a specialist in in-
dustrial plant auctions, appraisals and asset
management programs, as contingent offeror
over the corporate defendants, which none-
theless submitted further offers aer the bid
deadline and tried to have the trustee restart
the bidding process.
e hearing before Justice Martin Cas-
tonguay shed light on the corporate defend-
ants' knowledge of CAI's pre-contract with
the trustee and its scope. In disregard of that
binding pre-contract, the corporate defend-
ants had devised a scheme involving multiple
undisclosed agreements in order to use the
first offeror, Koenig and Vits, as a prête-nom
or undisclosed agent to submit — on behalf
of the corporate defendants whose previous
offers had been rejected by the trustee — a
revised offer providing for the purchase and
liquidation of the assets, thereby usurping
CAI's rights over such assets.
e Court concluded that the defendants'
unrelenting attempt to win the bid, while
knowing about the pre-contract, led the
trustee to breach its pre-contract with CAI.
e defendants were held jointly and sever-
ally liable towards CAI for its loss of profits
in connection with the sale of the assets.
is case distinguishes itself as marking
the first time in Québec that the Superior
Court rendered a comprehensive judgment
liing the litigation privilege on the basis of
a prima facie showing of actionable miscon-
duct on the part of the defendants.
CAI, Galaxie Corporation and National
Machinery Exchange Inc. were represented
by Marc-André Coulombe, Frédéric Paré,
Jean Fontaine and Marie-Laurence Mi-
gneault of Stikeman Elliott LLP.
9214 6463 L.P., 9214-6463 Québec Inc.,
Counsel RB Capital LLC, CIA CPCC,
S.E.N.C., CIA CPCC Inc., Maynards In-
dustries Ltd, Hilco Industrial LLC and
Hilco Assets Sales Canada Corp. were repre-
sented by Marc Duchesne, Patrick Plante and
Anaïs Bussières-McNicoll of Borden Lad-
ner Gervais LLP.
Tim Martinez was represented by Em-
manuelle Demers of BCF LLP.
STEAM WHISTLE BREWING INC.
V. ALBERTA GAMING
AND LIQUOR COMMISSION
DECISION DATE: JUNE 19, 2018
e liquor market in Alberta is privatized.
However, before any liquor makes its way
to retailers, it first passes through the Al-
berta Gaming and Liquor Commission (the
"AGLC"), a corporation established under
the Gaming and Liquor Act, RSA 2000, c
G-1 ("GLA"). e AGLC collects a mark-up
on the liquor it then sells to private retailers.
