38 LEXPERT MAGAZINE
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JANUARY/FEBRUARY 2017
Otherwise, Daniels v. Canada estab-
lished that the rights of our country's Métis
peoples were on a par with the rights ac-
corded to First Nations, with significant
implications for the duty to consult; Wilson
v. Atomic Energy of Canada confirmed that
federally regulated employers can't dismiss
employees without cause; and Eastern Re-
gional Integrated Health Authority v. Asso-
ciation of Registered Nurses required health-
care practitioners in Newfoundland and
Labrador to disclose "quality assurance"
information relating to adverse incidents, a
decision that could impact other Canadian
provinces with similar health laws.
Six of our 10 judgments emanated from
the Supreme Court of Canada, including
five of the top six. e other four judg-
ments came from the Federal Court of Ap-
peal, the New Brunswick Court of Appeal,
the Newfoundland and Labrador Court of
Appeal, and the Ontario Court of Appeal.
From a geographical perspective, On-
tario produced six decisions, Alberta gen-
erated two, and British Columbia, Mani-
toba, New Brunswick, Newfoundland and
Labrador, Québec and Saskatchewan each
produced one. e total of 14 cases arises
from the fact that, as noted below in our
review of the individual cases, Green was a
trilogy and both Endean and Chambres des
notaires involved sister cases.
Cases that came close but didn't quite
make the list included the SCC's ruling in
CBC v. SODRAC, a key decision on repro-
duction rights under the Copyright Act that
casts further light on the principle of "tech-
nological neutrality" in intellectual proper-
ty law; Alberta v. Moloney, the lead case in a
trilogy characterized by the SCC's conclu-
sion that provincial legislation preserving
liabilities for unpaid fines aer bankruptcy
was unconstitutional — and one that dealt
a serious blow to insurers; Re Hecla Min-
ing, in which the securities commissions
of British Columbia and Alberta provided
their first guidance on the circumstances
in which a private placement was an inap-
propriate defensive tactic under the new
Canadian takeover bid regime that became
effective in May 2016; Midwest Properties
v. ordarson, where the OCA gave an
expansive interpretation of the statutory
right of compensation for spills under the
province's Environmental Protection Act,
suggesting that courts could rely on sec-
tion 99 of the statute to pierce the corpo-
rate veil; Ramdath v. George Brown College,
confirming Ontario courts' authority to
award aggregate damages in class actions;
and U.S. Steel Canada Inc. (Re), in which
the OCA appears to have closed the door
on claims of equitable subordination in
Companies' Creditors Arrangement Act
(CCAA) proceedings.
Also considered carefully were Howard
v. Benson Group, where the OCA held that
the obligation to pay dismissed fixed-term
employees their full wages and benefits for
the unexpired portion of their contracts
was not subject to mitigation; Canada v.
John Doe, in which the Federal Court of
Appeal reined in the expansion of indi-
vidualized privacy claims into the realm of
class actions against institutions and busi-
nesses; Krayzel Corp. v. Equitable Trust, an
SCC decision that held that rate increases
triggered by mortgage defaults offended
the Interest Act regardless of the form the
increase takes, whether by way of an in-
crease in the rate itself, fines, penalties or
lump-sum bonuses, so long as the effect was
to increase the interest on arrears beyond
the rate payable on default; and 1250264
Ontario Inc. v. Pet Valu Canada, a case that
limited the scope of franchisors' obliga-
tions under the province's Arthur Wishart
Act to deal fairly with franchisees.
Close calls aside, here's a review of Lex-
pert's Top 10 business decisions.
1
CIBC v. Green
(SCC, OCA)
Plaintiffs seeking leave to file secondary
market securities class actions in Canada
are now finding themselves on a road with
a significantly steeper gradient than they
have encountered in the past. For this, they
can thank the Supreme Court of Canada's
December 2015 decisions in this trilogy of
securities class action cases, all on appeal
from the Ontario Court of Appeal.
While the trilogy (which also included
Silver v. IMAX and Trustees v. Celestica)
dealt with a number of important issues,
including the limitation period under sec-
tion 138.3 of Ontario's Securities Act, the
rulings on the leave issue will have the most
lasting impact going forward.
Until Green was released, certitude was
decidedly not a feature of the leave test
for secondary-market class actions. In
February 2014, the Ontario Court of Ap-
peal stated that the statutory test, which
requires "a reasonable possibility that the
plaintiff will succeed at trial," was a "rela-
tively low threshold."
Two months later, the SCC threw more
than a little water on that fire in erat-
echnologies v. 121851 Canada Inc. Dealing
with the Québec equivalent of the Ontario
test, the high court ruled that leave was
intended to be a "meaningful screening
mechanism" designed to prevent "costly
strike suits with little chance of success."
Accordingly, plaintiffs had to show more
than a mere possibility of success, as some
courts had held; rather, the test required "a
reasonable or realistic chance that the ac-
tion will succeed." e test, therefore, ne-
cessitated a preliminary assessment of the
merits of the claims based on a review of
the evidence as well as the law.
eratechnologies, then, put some sub-
stance into the standard that plaintiffs
must meet to satisfy the leave threshold
for filing a securities class action. "e fact
that there is an arguable chance of success
is no longer sufficient to obtain leave," ex-
plained Pierre Lefebvre of Fasken Martin-
eau DuMoulin LLP at the time. Lefebvre,
with colleague Philippe Charest-Beaudry
in Montréal, represented the defendant
eratechnologies. "ere must be a deter-
mination of whether success is a reasonable
prospect — and that changes the whole di-
mension of the leave test."
Doubt remained, however, as to whether
or not eratechnologies applied across
Canada. "at doubt is gone," said Andrea
Laing, who with colleagues Nigel Camp-
bell and Ryan Morris of Blake, Cassels
& Graydon LLP in Toronto represented
Celestica. "e Green trilogy supports a
robust interpretation of the leave standard
throughout Canada, including a realistic
review of the evidence and meaningful le-
gal analysis."
Critics have argued that the Supreme
Court's interpretation of the rule could
result in unnecessarily complex, costly
and lengthy leave proceedings. But Alan
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