2017: The SCC Year In Review

This article summarizes the 10 most important Supreme Court of Canada decisions from 2017, as selected by Gowling WLG's Supreme Court of Canada Services Group.

1. Ernst v Alberta Energy Regulator, 2017 SCC 1

   This appeal arose in the context of a claim by a property owner, Ms. Ernst, who was seeking various remedies for harm done to her property as a result of hydraulic fracturing activities, including advancing a claim against the Alberta Energy Regulator (the “Board”), a statutory, quasi-independent energy regulator. Among other grounds for relief, Ms. Ernst alleged she was “punished” for publicly criticizing the Board and prevented by the Board from speaking out for a period of sixteen (16) months. Ms. Ernst argued that the Board breached her right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms and claimed Charter damages to remedy that breach. Both the Alberta Court of Queen's Bench and the Court of Appeal found that the immunity clause pursuant to section 43 of the Energy Resources Conservation Act (the “Act”), barred Ms. Ernst's claim for Charter damages and struck out her claim. On appeal to the SCC, Ms. Ernst reformulated her claim to include a challenge to the constitutional validity of section 43 of the Act, which immunizes the Board from civil claims for actions it takes pursuant to its statutory authority.

   In a divided 5-4 decision, the majority (per Cromwell J.) concluded that Ms. Ernst's claim for Charter damages must be struck out as, to them, it was plain and obvious that section 43 of the Act on its face barred Ms. Ernst's claim for Charter damages and that Ms. Ernst had succeeded in establishing that the section was unconstitutional. Therefore, they dismissed the appeal. The minority (per McLachlin C.J.) felt it was not immediately obvious that section 43 barred Ms. Ernst's claim, and stated that the application to strike should be set aside. The “swing judge” (Abella, J.), in a concurring judgment, dismissed the appeal on the basis that Ms. Ernst failed to provide notice of her section 43 constitutional challenge until her SCC appeal. Justice Abella held that this failure was problematic because the Court is limited in its abilities to answer newly raised constitutional questions. The test for whether new issues should be considered is a stringent one, and the discretion to hear new issues should only be exercised exceptionally and only when there is no prejudice to the parties.

   On the issue of Charter remedies, the Court stated that section 24(1) of the Charter confers on the courts a broad remedial authority. However, it clarified that Charter breaches should not always, or even routinely, be remedied by damages. The Court cited Vancouver (City) v Ward, 2010 SCC 27, the leading case on determining when Charter damages are an appropriate and just remedy. The Court reiterated that, if damages further one or more of the objectives of compensation, vindication, and deterrence, it would be open to the state to raise countervailing factors to establish that damages are not an appropriate and just remedy. The Court concluded that in Ms. Ernst's case, when such countervailing factors were considered collectively, they negated the appropriateness of an otherwise functionally justified award for Charter damages against the Board. It followed that the immunity clause must be applied and Ms. Ernst's claim for Charter damages struck out.

2. Saadati v Moorhead, 2017 SCC 28

   The plaintiff, Mr. Saadati, suffered damages as a result of multiple motor vehicle accidents. At a trial concerning the second accident, for which the defendants had admitted liability, the trial judge awarded damages for psychological injuries, based on the testimony of Mr. Saadati's friends and family but in the absence of expert evidence from a psychologist and of any diagnosis of a recognized psychiatric or psychological illness. The Court of Appeal reversed the trial judge's decision on the basis that a claimant is required to prove, with medical opinion evidence, that he or she suffered a “recognizable [or recognized] psychiatric illness”.

   On appeal to the SCC, with leave, Justice Brown, for a unanimous Court, held that claimants are not required to demonstrate a recognizable psychiatric illness as a precondition to recovery for mental injury. He cautioned courts from allowing “dubious perceptions of psychiatry and of mental illness” to govern judicial decision-making in such matters and further criticized historical attempts to “control recovery for mental injury” on such grounds. While a claimant must still establish the basic elements for recovery in negligence law, such as demonstrating that the defendant owed a duty of care to the claimant and that the injury in question was caused by the negligent actions of the defendant, “the trier of fact's inquiry should be directed to the level of harm that the claimant's particular symptoms represent, not whether a label could be attached to them.” Justice Brown allowed the appeal and restored the trial judge's award. The Court did note that leading expert evidence, including reference to a recognized diagnosis, might make it easier to establish damages and causation, but it is not a necessary precondition. It is also open to the defendant to rebut a claim for mental injury by leading expert evidence to the contrary.

3. Google Inc. v. Equustek Solutions Inc., 2017 SCC 34

   This was an appeal by Google Inc. (“Google”) from a judgment of the British Columbia Court of Appeal, which affirmed an interlocutory injunction granted against Google in the respondents's favour. Equustek Solutions Inc. (“Equustek”), a small technology company in British Columbia, had commenced an action against Datalink. Equustek alleged that Datalink, while acting as Equustek's product distributor, began to re-label their products and pass it off as its own. Equustek also claimed that Datalink acquired confidential information and trade secrets belonging to Equustek, using them to design and manufacture a competing product. Datalink subsequently failed to comply with court orders which, among other things, prohibited it from referring to Equustek or any of Equustek's products on its websites and required it to post a statement on its websites informing customers that Datalink was no longer a distributor of Equustek products. Datalink continued to carry on its business from an unknown location, selling its impugned product on its websites all over the world. Further court proceedings by Equustek against Datalink and its principal proved to be ineffective, as well as steps taken by Google, a non-party, to de-index specific webpages associated with Datalink. Equustek discovered that Datalink simply moved the objectionable content to new pages within its websites, circumventing the court orders. The de-indexing also did not have the necessary protective effect since Google had limited the de-indexing to searches conducted on google.ca.

   Accordingly, Equustek sought and obtained an interlocutory injunction enjoining Google from displaying any part of the Datalink websites on any of its search results worldwide. The British Columbia Court of Appeal dismissed Google's appeal, concluding that the Court had in personam jurisdiction over Google and could, therefore, make an order with extraterritorial effect. The Appeal Court upheld the lower court's ruling that courts of inherent jurisdiction could grant equitable relief against non-parties.

   Writing for the majority in a 7:2 split decision, Justice Abella dismissed Google's appeal. She held that there was no reason to interfere with the lower court's discretionary decision. She found that the test, as set out in the Court's RJR-MacDonald decision, for determining whether the court should exercise its discretion to grant an interlocutory injunction against Google had been met in these circumstances: there was a serious issue to be tried; Equustek was suffering irreparable harm as a result of Datalink's...