42 LEXPERT MAGAZINE
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JANUARY/FEBRUARY 2017
we opened the door completely under the
protocols, and we had to, because we lacked
a procedural and technological framework
for what was ultimately involved," says D.J.
Miller, who with colleague John Finnigan
of ornton Grout Finnigan LLP in To-
ronto represented the creditors from the
United Kingdom. "It became a test case to
evaluate whether we could do a cross-bor-
der trial that was 'joint' in every respect."
e fact that the case went to appellate
courts in Canada and the United States,
whose individual decision had an impact
on the other, was also truly precedential.
"ere was no jurisdictional basis or formal
mechanism for the appellate courts to talk
to one another, but it happened," Miller
says. "It demonstrated that appellate courts
are going to be as open to issuing bold de-
cisions and having another appellate court
take that decision and have it impact in
their own jurisdiction."
With cross-border insolvency becoming
more and more complex, many predicted
they would ultimately become unmanage-
able. "What the courts demonstrated in
Nortel is that these cases will not be a mug's
game and that principles of comity really do
matter," Miller says. "at's going to be very
important in maintaining some sense of ef-
ficiency for businesses involved in this kind
of litigation — and I suspect it will spill out
into other kinds of commercial disputes."
6
Daniels v. Canada
(SCC, SKCA)
Daniels decided that the federal govern-
ment has legislative authority over Métis
peoples, resolving a longstanding constitu-
tional dispute. While the Court refused to
declare that the "duty to consult" applied
to Métis, it did so because, in its view, that
duty had already been established.
"e case doesn't fundamentally alter
underlying duties, but it does underline
that the SCC and other courts are putting
more meat on the bones of Métis rights,"
says Maxime Faille of Gowling WLG in
Vancouver, who with partner Paul Seaman
represented the Gi Lake Métis Associa-
tion. "What the Supreme Court is saying
is that Métis rights must be treated with
the same consideration as First Nations'
rights. at's quite significant in terms of
the responsibility of project proponents to
interface with Métis."
e federal government has taken no-
tice. In May 2016, less than two months
aer the Daniels judgment, it signed a
Memorandum of Understanding on Rec-
onciliation with the Manitoba Métis Fed-
eration that set out a "mutually agreeable
path on finding a shared solution in imple-
menting" Daniels. Carolyn Bennett, Min-
ister of Indigenous and Northern Affairs,
followed up in July by releasing a report on
the development of Métis rights authored
by omas Isaac of Cassels Brock & Black-
well LLP in Vancouver.
MAXIME FAILLE
GOWLING WLG
The case doesn't fundamentally
alter underlying duties, but it does
underline that the SCC and other
courts are putting more meat on
the bones of Métis rights. What
the Supreme Court is saying is
that Métis rights must be treated
with the same consideration
as First Nations' rights."
"
7
McGillivray
Restaurant v. Canada
(Federal Court, MBCA)
e Canadian tax community and its
clients have long awaited a clear legal test
for determining whether a person has "de
facto control" over a corporation for tax
purposes. "Business people feared the issue
because there was no red line in the juris-
prudence," says William Innes of Rueters
LLP in Toronto.
McGillivray should allay these fears.
"e FCA's clarification in McGillivray
should have the practical effect of provid-
ing a higher level of certainty and comfort
to taxpayers seeking advice on this impor-
tant and pervasive issue in a variety of cir-
cumstances," writes Matthew Peters in a
Bennett Jones LLP newsletter.
e case confirms a much narrower and
more practical test than existed previously
in deciding whether de facto control ex-
isted. "In this respect, the only relevant fac-
tors are those founded on a legally enforce-
able right and ability to effect a change to
the board of directors or its powers, or to
exercise influence over the shareholder or
shareholders who have that right and abil-
ity," Peters writes.
"In other words, factual operational con-
trol is irrelevant in the absence of a right
to undertake actions that are otherwise
within the exclusive purview of the share-
holders who have legal (de jure) control [of ]
the board."
8
Wilson v. Atomic Energy
of Canada (SCC, OCA)
For years, judges have confirmed that
federally regulated employers cannot ter-
minate employees without just cause. In
other words, the common-law rule that
non-unionized employees can be dismissed
without cause, if reasonable notice or pay in
lieu of notice is provided, did not apply in
the federal landscape.
In Wilson, however, the Federal Court
of Appeal shocked employers and employ-
ees by ruling that a proper reading of the
Canada Labour Code did allow dismissal
without just cause. e employee appealed,
and Wilson became the first time the SCC
had confronted the subject.
e high court overruled the FCA and
upheld the mainstream view. "Had the
decision gone the other way, it would have
undone decades of case law," says Steven
Barrett, who with colleague Louis Century
of Goldblatt Partners LLP in Toronto rep-
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