8 Appeals At The Supreme Court Of Canada In The 2021 Winter Session

• Published date: 03 February 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Human Rights, Personal Injury, Fiscal & Monetary Policy
• Law Firm: Bennett Jones LLP
• Author: Mr Ranjan Agarwal, Ethan Schiff and Dylan Gibbs

The Supreme Court of Canada heard one appeal in January and will hear seven more in February and March that may interest the business community or organizations facing civil litigation:

January Decision of the SCC

• The Supreme Court of Canada allowed the appeal in the medical malpractice case, Armstrong v Royal Victoria Hospital, 2019 ONCA 963. The plaintiff underwent colon surgery and suffered injury to her ureter in the process due to it coming into close proximity with a LigaSure device. The surgeon was found negligent at trial The Ontario Court of Appeal overturned the trial judge's decision, holding that he improperly applied the standard of care analysis by focusing on the goals that surgeons aim to achieve in performing surgery (i.e., keeping the LigaSure a certain distance from the ureter), rather than the means used to achieve those goals. The Supreme Court adopted the decision of the dissent at the Court of Appeal, which held that the trial judge appropriately weighed expert evidence in determining the surgeon erred in his use of the LigaSure.

Appeals to Be Heard by the SCC in February/March 2021

• Ward c Commission des droits de la personne et des droits de la jeunesse (Gabriel et autres), 2019 QCCA 2042 deals with Charter rights of freedom of expression and equality. The defendant is a standup comedian who made comments about the physical characteristics of the complainant who had Treacher Collins Syndrome. The Human Rights Tribunal concluded that the defendant's comments violated the complainant's right to dignity, and were not protected by the right to free expression. The Tribunal awarded damages to the complainant and to his mother (who was also a complainant). The Quebec Court of Appeal upheld the Tribunal's decision on the defendant's liability, but quashed the award of damages to the complainant's mother.
• The appeal in Northern Regional Health Authority v Linda Horrocks, 2017 MBCA 98 engages workplace human rights issues. The employer terminated the complainant's employment for allegedly breaching an agreement to abstain from alcohol, which she entered into after being found to be intoxicated at work. The complainant succeeded at the Human Rights Tribunal, but the decision was set aside on judicial review on the grounds that the complaint should have been resolved by a labour arbitrator under the employee's collective agreement The Manitoba Court of Appeal allowed the appeal, holding that on a proper characterization of the...