Though this newsletter typically focuses on risk, practice management and loss prevention, we are regularly asked to write on substantive topics. So we are returning to something we last did a couple years ago, a short list of, in our opinion, impactful decisions from the past year. We have limited this list to ten cases. Though those from provincial appellate courts outside Nova Scotia may have limited applicability here, they are interesting nonetheless and you never know.

  1. Data Breach Class Actions

Setoguchi v. Uber B.V., 2023 ABCA 45, leave to appeal to SCC denied 2023 SCC 40681 – in a decision consistent with Owsianik v. Equifax Canada, 2022 ONCA 813, the Alberta Court of Appeal declined to certify a class action against Uber because the negligence claim disclosed no compensable loss or harm to the claimants. The Court rejected a novel first loss theory of damages and affirmed that a risk of future harm or risk of increased harm is generally insufficient to constitute compensable harm in Canadian tort law.

  1. Contract Force Majeure

Niagara Falls Shopping Centre Inc. v. LAF Canada Company, 2023 ONCA 159 – the use of Force Majeure clauses significantly increased during the pandemic and the court here noted the importance when drafting these clauses of looking ahead at the types of events it should cover (ask what are the foreseeable events) and clearly setting out which risks the parties are responsible for.

  1. Spoliation and Government retention of documents

Trillium Power Wind Corp v. Ontario, 2023 ONCA 412 – the Court affirmed that spoliation arises out of the destruction of potentially relevant evidence occurring where a party intentionally destroys evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. The Court held that Ontario’s deliberate spoliation of documents relevant to the litigation amounted to an abuse of process.

  1. Human Rights and Employment

Imperial Oil v. Haseeb, 2023 ONCA 364 – though employees must be legally authorized to work in Canada, a requirement for employment that requires proof of citizenship or permanent residency is discriminatory.

  1. Anti-SLAPP (Strategic Lawsuits Against Public Participation) Applications

Hansman v. Neufeld, 2023 SCC 14 – to defeat an anti-SLAPP motion, the plaintiff must demonstrate actual harm caused by the defendant’s expression. It is more than a bare assertion that the defendant’s statements caused harm.

  1. Arbitration Clauses and Void Agreements

Ismail v. First York Holdings Inc, 2023 ONCA 332 – the Court affirmed that where an agreement is breached and becomes unenforceable or invalid, that does not rescind the agreement to arbitrate, the provision surviving  to allow the dispute to be referred to an arbitrator to determine jurisdiction, and if there is jurisdiction, to decide the dispute. To hold otherwise would undermine the intent and effect of including an arbitration clause in an agreement. However, an agreement to arbitrate cannot survive where there is no contract or agreement for it to survive from.

  1. Constitutional law

Reference re Impact Assessment Act, 2023 SCC 23 – in determining the constitutionality of a law, the focus is on the purpose and effects of the law as written, not just how it is administered

  1. Privilege

Continental Currency Exchange Canada v. Sprott, 2023 ONCA 61 and Vecchio Longo Consulting Services Inc v. Aphria Inc., 2023 ONSC 6336 – these decisions contain discussion on the law of staying proceedings where there is unauthorized access to privileged information.

  1. Vicarious Liability

Ari v. ICBC, 2023 BCCA 331 – in holding the employer liable for an employee’s breach and disclosure of private customer information the Court held that the employer created the risk and provided the opportunity for the employee to commit the wrong. Moreover, the employee’s conduct was sufficiently related to her authorized duties to justify the imposition of vicarious liability.

  1. Administrative Law

Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 – the Court reaffirmed Doré v. Barreau du Québec, 2012 SCC 12 on judicial review of discretionary administrative decisions that engage the Charter. The reviewing court must first determine whether the decision limits Charter protections and the Doré framework applies not only where an administrative decision directly infringes Charter rights but also where it simply engages a value underlying one or more Charter rights.