Lexpert Magazine

44 LEXPERT MAGAZINE | JANUARY/FEBRUARY 2018 | TOP CASES | the jurisdiction of Canadian courts to hear consumer protection cases. Rounding off the top five is AstraZeneca Canada v. Apotex, where the SCC settled a long-running controversy in Canadian pat- ent litigation by watering down our unique "promise of the patent" doctrine, which made a high degree of "usefulness" one of the basic requirements for the patentability of an invention. Similarly, the high court's ruling in RBC v. Trang provided businesses with much-needed guidance on when they could legitimately disclose personal infor- mation under federal privacy legislation. Disappointment reigned for the business community, however, when the SCC set a high standard for taxpayers seeking recti- fication of their documents to avoid unin- tended tax consequences in the sister cases of Canada v. Fairmont Hotels and Jean Coutu Group v. Canada. Meanwhile, the Yukon Court of Appeal (YCA) shook the financial world when the court's reasons in Mulacek v. InterOil questioned the role of fairness opinions in M&A transactions. In Yarmouth v. Nickerson, our ninth- rated case, the Nova Scotia Court of Ap- peal (NSCA) ruled that limitation periods set out in individual statutes could not be extended by applying the province's previ- ous general limitations statute. In doing so, the court removed the spectre of the revival of actions long believed to be dormant and provided some guidance as to how it would interpret the current general limitations statute, which came into effect in 2015. Certainty on the national class action scene, however, took a hit with the release of Ammazzini v. Anglo American, where the Saskatchewan Court of Appeal ruled that out-of-province representative plain- tiffs had limited rights in the certification and settlement approval proceedings. Six of our top 10 judgments emanated from the SCC, although our lead decision, BP Canada, came from the Federal Court of Appeal. e last three rulings on our list came from the Yukon Court of Appeal, the Nova Scotia Court of Appeal, and the Sas- katchewan Court of Appeal. From a geographical perspective, our de- cisions were spread fairly evenly across the country. ree cases originated in Ontario, with Alberta, BC and Quebec following with two decisions each in the top 10. Nova Scotia, Saskatchewan and the Yukon each lion Ecuadorean judgment against Chev- ron for polluting the rainforest. Close calls aside, here are Lexpert's Top 10 business decisions in detail. 01 BP Canada Energy v. Canada, 2017 FCA 61 Corporate taxpayers breathed a collective sigh of relief when this decision put the brakes on the Canada Revenue Agency's (CRA) attempt to force taxpayers to pro- vide the Agency with the very ammunition it needed to challenge tax returns. e decision overturned an earlier rul- ing from a Federal Court judge compelling BP Canada Energy Co. to disclose the re- serves it was taking for contingent liabili- ties. What that meant was that the compa- ny would effectively be providing the CRA with a list of so spots in their returns and an estimate of the extra tax the company might have to pay should CRA decide to challenge the returns. "is may be one of the most important cases in several years on the extent of the power CRA has in gathering private tax information compiled by Canadian busi- nesses," says tax specialist William Innes of Rueters LLP in Toronto. "e Chief Jus- tice of the Federal Court of Appeal, who is a noted tax expert, has written an intellec- tually compelling decision." To comply with their reporting obliga- tions, public companies' consolidated fi- nancial statements must calculate reserves to account for contingent tax liabilities, in- cluding an estimate of the liability the com- pany and its subsidiaries would face if the CRA challenged uncertain positions in the tax returns. e calculations are supported by working papers that identify the issues that the company knows might be subject to challenge. ese are known as "issues lists" and represent the areas at highest risk for loss of tax revenue. Historically, CRA has not sought pro- duction of the issues lists while conducting audits of corporations. But in May 2010, the government effected a policy change requiring production of "tax accrual work- ing papers," including those relating to reserves for contingent tax liabilities. e policy stated that these documents were had one. e total of 12 here arises from the fact that two sets of sister cases popu- lated our list. Otherwise, cases that fell just short of making the list (including some eliminated because they were under appeal at press time) were (in alphabetical order) Bristol- Myers Squibb Canada v. Teva Canada, 2017 FCA 76, in which the FCA provided much-needed certainty on the "obvious to try" test and meaning of "inventive con- cept" in patent litigation; the companion cases of Clyde River v. Petroleum Geo- Services, 2017 SCC 40, and Chippewas of the ames First Nations v. Enbridge Pipe- lines, 2017 SCC 41, where the SCC ruled that governments could rely on regulatory processes to fulfill their duty to consult; Garcia v. Tahoe Resources, 2017 BCCA 39, where the British Columbia Court of Ap- peal substantially opened Canada's courts to civil claims by foreign victims of alleged human-rights abuses against Canadian corporations for acts committed abroad; Godey v. Sony, 2017 BCCA 302, where the BCCA made several significant rulings that set back defendants in competition class actions; and Mennillo v. Intramodal, 2016 SCC 51, where the SCC explained the operation of the oppression remedy in closely held corporations. Also considered were Orphan Well As- sociation v. Grant ornton, 2017 ABCA 124, in which the Alberta Court of Ap- peal confirmed that bankruptcy trustees may disclaim non-producing oil wells and sell the producing ones; Renvoi relatif à la réglementation pancanadienne des valeurs mobilières, 2017 QCCA 756, in which the Québec Court of Appeal found the gover- nance framework for the proposed co-op- erative capital markets regulatory regime to be unconstitutional, but also held that the Capital Markets Stability Act was sub- stantially within federal competence; Uni- prix v. Gestion Gosselin et Bérubé inc., 2017 SCC 43, in which the SCC confirmed the validity of perpetual contracts in Québec; Wilson v. Alharayeri, 2017 SCC 39, where the SCC generated guidelines governing corporate directors' personal liability un- der the oppression remedy; and Yaiguaje v. Chevron Corp., 2017 ONCA 827, where the Ontario Court of Appeal reversed a se- curity for costs order against Ecuadorean plaintiffs seeking to enforce a US$9.5-bil-

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