By Julius Melnitzer | January 20, 2025
Here is Law360 Canada’s annual list of the Top 10 business decisions in Canada for the year just ended. This is a two-part series, which begins below with our honourable mentions, followed by the cases ranked 6-10, in ascending order. Part II will deal with cases ranked 1-5.
Honourable mention #2: Canada (Attorney General) v. EllisDon Corporation, 2024 FCA 200
Appearances: Justice Canada, Cassidy Levy Kent
This Federal Court of Appeal ruling upholds the Canadian International Trade Tribunal’s jurisdiction to award losing bidders in the federal procurement bidding process compensation for lost opportunity on third-party contracts resulting from negligent delays and errors by the Public Works Department.
“This is a paramount case on the issue of damages for lost opportunities on third-party contracts and provides important lessons in how to manage a procurement process properly,” says Sahil Shoor, a litigation and dispute resolution partner in Gowling WLG’s Waterloo Region office.
Nailah Ramsoomair, an advocacy group associate in Gowling’s Ottawa office, cautions that the decision applies only to matters of procurement as opposed to matters of contract administration and that the compensation is not for additional revenues that the losing bidder might have negotiated after winning the contract, but rather for the delay caused by mishandling the procurement process.
However, she adds, these limitations don’t diminish the case’s significance.
“Bids on federal government contracts are worth billions annually and the case provides another avenue of redress for wronged bidders in an area where there is not a lot of judicial review.”
It remains to be seen, however, the extent to which EllisDon will affect procurement law at the provincial and municipal level.
“Generally speaking, bidders are not presently entitled to lost opportunity damages and this decision could well open the door,” says Marianne Smith, a commercial and public procurement partner in Blake, Cassels & Graydon LLP’s Toronto office.
Honourable mention #1: Barbiero v. Pollack, 2024 ONCA 904
Appearances: Roy O’Connor; Lenczner Slaght
In upholding a motion judge’s dismissal of a class proceeding for delay, the Ontario Court of Appeal reversed a 13-year-old precedent from the court finding that the passage of time established only a rebuttable presumption of prejudice in favour of a finding that the passage of time could, on its own, constitute sufficient prejudice to dismiss an action for delay.
Because the case involved a plaintiff who had not set down an action for trial for over 20 years, the question that arises is whether Barbiero will be an outlier. Alex Payne, a commercial litigation partner in Bennett Jones LLP’s Toronto office, believes the decision’s impact is significant, partly because the class action had already been certified.
“What’s striking to me is that the court reviewed the existing precedent on its own initiative and produced some pretéty strong language about the importance of pushing things forward in an era where the system is so bogged down,” he says. “There are a lot of quotable quotes in the reasons that defendants seeking dismissals can seize on, and although there may be a judicial instinct to keep cases alive, Barbiero significantly widens the opportunity for dismissal.”
10. Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13
Appearances: Loranger Marcoux Lawyers; Attorney-General of Quebec; Poudrier Bradet Avocats; Justice Canada; Attorney General of Ontario; Attorney-General of Alberta; Administrative Labour Tribunal; McCarthy Tétrault; Nelligan Law; Goldblatt Partners; Jones Pearce; Ryder Wright Holmes Bryden Nam; Lenczner Slaght; James Yap; RavenLaw; Lax O’Sullivan Lisus Gottlieb; Paliare Roland Rosenberg Rothstein; Pollack Tsimerman; Rivet Schmidt; Melançon Marceau Grenier Cohen
In a much-awaited decision, the Supreme Court of Canada decided that the general exclusion of management personnel from the definition of “employee” in Quebec’s Labour Code did not violate the Charter’s guarantee of freedom of association.
While recognizing the rights of the first-level managers involved to form an association independent of the employer and present collective demands that the employer was bound to consider in good faith, a majority of the court concluded that the legislative exclusion did not substantially interfere with those rights despite the fact that only “employees” were eligible for certification, labour standards protections, and the right to engage in collective bargaining.
“The case is significant from a labour law perspective because it draws the line on the legislature’s discretion on whether to exclude management from the definition of employee,” says Stéphane Beaulac, counsel in Dentons Canada LLP’s litigation group and a law professor at the Université de Montréal. “It affirmed earlier cases which suggested that freedom of association was not denied where there were other ways to find protection besides forming a union.”
9. St. John’s (City) v. Lynch, 2024 SCC 17
Appearances: Curtis Dawe; McInnes Cooper; Attorney-General of British Columbia; City of Surrey; Rayman Harris; McCarthy Tétrault; Ecojustice Canada
This decision, which deals with compensation for constructive expropriation of land, established that must be based on a factual determination of whether an enactment was made with the intent to expropriate or not.
“The Supreme Court confirmed that the expropriated land must be valued on the basis of the existing zoning unless the zoning has been put in place with the improper intention of expropriating the property and sets out the factors in determining whether an enactment was passed for a proper regulatory purpose,” says Ian Kelly of Curtis Dawe in St. John’s, Newfoundland, lead counsel for the City. “What it means is that public authorities can do important things in the public interest without running the risk of incurring excessive compensation costs.”
From a business perspective, however, the decision has the potential to severely restrict compensation for constructive expropriation.
8. Dow Chemical Canada ULC v. Canada, 2024 SCC 23; Iris Technologies v. Canada (Attorney General), 2024 SCC 24
Appearances: EY Law; Borden Ladner Gervais; LST Tax Law; Dahab Law; Justice Canada
These sister cases highlight a serious and continuing issue in tax disputes.
“The question of whether the Tax Court of Canada (TCC) or the Federal Court is the proper forum for review when the Minister is alleged to have exercised discretion unreasonably has vexed lawyers and courts for a long time,” says Bobby Solhi, a tax and trusts partner in Cassels Brock & Blackwell LLP’s Toronto office. “Unfortunately, the case gives us guidance rather than a solution and highlights the need for Parliamentary intervention in updating the TCC rules, which as currently formulated can handcuff that court.”
In two decisions that each split 4-3, the majority differentiated between a challenge to an assessment itself and a challenge to the minister’s discretionary decision related to a tax assessment: the former was the purview of the TCC, while the latter came under the jurisdiction of the Federal Court.
“But that doesn’t solve the problem because a discretionary decision can also be a decision that results in an assessment,” Solhi says. “So, while the cases are significant in telling us where to go once we determine what kind of decision is involved, it doesn’t tell us how to differentiate between the categories.”
7. Auer v. Auer, 2024 SCC 36; TransAlta Generation Partnership v. Alberta, 2024 SCC 37
Appearances: JSS Barristers; Ronald Robinson; Paul Daly; Lawson Lundell; Michael Sobkin; TransAlta Corporation; Huizinga Coles & Layton; Justice Canada; Brownlee LLP; Attorney General for Ontario; Attorney General of Quebec; Attorney General of British Columbia; Attorney General of Saskatchewan; Hunter Litigation Chambers; Paliare Roland Rosenberg Rothstein; Jamie Liew; Kamaljit Lehal Legal Services; The City of Calgary, Law Department; Conway Baxter Wilson; Shores Jardine; Consumer Law Group; Hasa Avocats; Worksafe BC; Legal Aid Ontario; Landings LLP; Henein Hutchison Robitaille; Ecojustice Canada;
The importance of these cases lies in clarifying and resolving the standard by which regulations and other subordinate legislation can be challenged.
“The decision provides certainty in resolving the different standards applied by various courts throughout the country, and in clarifying the analytical framework for challenging subordinate legislation,” says Jennifer King, a litigation and regulatory law partner at Gowling WLG in Toronto who is national co-head of the administrative law practice group.
Some courts applied a hyper-deferential standard (particularly the Alberta Court of Appeal) that made it very difficult to challenge regulations while other courts (particularly the Federal Court of Appeal) applied a more flexible standard that measured validity on the basis of a reasonableness standard that approximated the Vavilov standard (Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65) enunciated by the Supreme Court for reviewing administrative decisions.
As the SCC saw it, the Vavilov reasonableness standard was the “default standard” for determining the validity of subordinate legislation. The court specifically stated that the pre-existing thresholds that required regulations to be “irrelevant,” “extraneous,” or “completely unrelated” to the governing legislation were no longer valid and did not inform the reasonableness review.
“The test enunciated by the Supreme Court is whether the regulators interpreted their own authority in a reasonable way when drawing up the subordinate legislation,” King says. “But the presumption of validity survives and it’s still a high standard.”
So, what does it all mean going forward?
“We’ll see more challenges and more transparency from regulators to ensure that they lay a record for justification,” King says. “That doesn’t mean they’ll be giving reasons, but it does mean they’ll be thinking about what the record of their decision-making looks like.”
6. Riot Platforms, Inc v. Bitfarms Ltd., 2024 ONCMT 27
Appearances: Davies Ward Phillips & Vineberg; McMillan LLP; Peterson McVicar; Ontario Securities Commission
In one of the rare cases in which a shareholder’s rights plan has been challenged in Ontario in recent years, the province’s Capital Markets Tribunal took the opportunity to rewrite the rules and clarify the circumstances in which it would exercise its public interest jurisdiction in the context of such plans.
“The public interest jurisdiction looms large in many cases before the tribunal, so this case will likely be cited in every instance going forward in which the issue is raised,” says Kent Thomson, the Toronto-based head of Davies Ward Phillips & Vineberg LLP’s litigation group, who was lead counsel to the applicant Riot.
Going forward, in considering the public interest jurisdiction, the Tribunal will consider whether the applicant has shown that the plan substantially undermined any of the “animating principles” under the applicable provisions of Ontario securities law and whether the plan’s existence has an effect with a public dimension that calls for the Tribunal’s intervention.
“The decision brings consistency to the standard and provides more predictability than the case-by-case assessment that marked the pre-2016 era before the takeover regime was amended,” says John Emanoilidis, the Toronto-based co-head of Torys LLP’s M&A practice.
This is the first in a two-part series.
Julius Melnitzer is a Toronto-based freelance legal affairs journalist and communications and media consultant to the legal profession. He can be reached by email directly at [email protected] or at his website, www.legalwriter.net.
RELATED ARTICLES
Top 10 business decisions of 2023, Part I – and the law firm players
Top 10 business decisions of 2023, Part II – and the Law Firm Players
Top 10 business decisions of 2022, Part I – – – and the law firm players
Top 10 business law decisions of 2022, Part II – – – and the law firm players