36 LEXPERT MAGAZINE
|
JANUARY/FEBRUARY 2017
FEATURE
AFTER THE DISAPPOINTING
jurisprudential results experienced by Canadian business in 2015,
the landscape more than evened out this past year — which is not to say that Canadian appellate courts
ignored anti-business arguments: while five of our top 10 business decisions can be regarded as decidedly
pro-business, four do not favour the business community, and one decision can be regarded as mixed.
e decision that topped the list, CIBC v. Green, significantly raised the bar for leave to appeal applica-
tions in secondary-market securities class actions, and is huge in its impact. Our second choice, Ledcor
Construction v. Northbridge Indemnity Insurance, was regarded in many quarters as even more impactful
than Green, albeit for its negative impact on business. e decision creates greater exposure to liability for
businesses that use standard-form contracts, especially in the insurance and construction industries. Still,
it's the only one in the top five that doesn't favour business.
e next three — Canada v. Chambre des notaires du Québec; Endean v. BC; and Nortel Networks Corp.
(Re) — were all welcomed by the business community: Chambre des notaires enshrined the constitutional
protection our courts afford to solicitor-client privilege; Endean will allow judges and parties much greater
flexibility in dealing with national class actions, something that should decidedly impact their efficiency
and cost; and Nortel provides a procedural and technological framework for the management of multi-
jurisdictional insolvencies.
From that point on, however, it's downhill for business: only McGillivray Restaurant v. Canada, which
provides a higher level of certainty and comfort to taxpayers and advisors seeking guidance on the im-
portant and pervasive issue of "de facto control" over a corporation for tax purposes, can be regarded as
pro-business among the remaining five cases. For its part, Keough v. Sandfire Capital produced a mixed
result: although it created greater certainty for New Brunswick mortgagees in the event of default, it also
broadened their potential liability.
10
Top
OF
2016
Business
Decisions
LAST YEAR'S TOP DECISIONS REFLECT
THE CONTINUATION OF A BALANCED
APPROACH TO BUSINESS. COURTS DID,
HOWEVER, BREAK GROUND WHEN
IT CAME TO JURISDICTIONAL
ISSUES AND CLASS ACTIONS
BY JULIUS MELNITZER
PHOTO:
SHUTTERSTOCK
