Appeals To Watch In 2016: The Appeals Monitor's Top Ten

With each new year comes a new slate of interesting appeals for Canadian businesses and professions. Without further ado, the Appeals Monitor is pleased to present our annual forecast of the top ten appeals to watch in 2016.

10. Royal Bank of Canada v. Trang

    Last July, the Supreme Court of Canada granted leave from the Ontario Court of Appeal's decision in Royal Bank of Canada v. Trang, 2014 ONCA 883, and has now tentatively set it down for a hearing date of April 27, 2016. The appeal concerns the extent to which a judgment creditor who seeks personal financial information about a debtor from a mortgagee must first obtain a court order permitting it to examine representatives of the mortgagee, along with the circumstances in which the debtor's consent to such disclosure can be implied.

    The case will require the Supreme Court to examine the intersection between the federal Personal Information Protection and Electronic Documents Act and provincial rules of civil procedure. It raises important issues about the conflict between access to justice and privacy rights in the debtor-creditor context, which provoked a 3-2 split in the Court of Appeal below. The Supreme Court's judgment is likely to clarify how these interests should be weighed, and will be of significance to a broad array of participants in the financial services industry.

9. Rogers Communications Inc. v. City of Châteauguay

   Can a municipality prevent a company, who has authorization from the federal government, from constructing a cell-phone tower on municipal land? That is the question the Supreme Court of Canada considered on October 9, 2015, when it heard this appeal from the decision of the Quebec Court of Appeal in White c. Châteauguay (Ville de), 2014 QCCA 1121, in which judgment remains on reserve.

   The facts giving rise to this appeal are the following: Rogers surveyed land in the Châteauguay area and located a site on which to build a cell-phone tower and fill gaps in the company's network coverage. The City initially opposed the project but eventually granted a construction permit. However, construction was stalled when City residents mobilized and the public consultation process required by Industry Canada resumed. The City then proposed an alternate site for the tower within Rogers' original search area. However, the City did not own the land. It issued a notice of expropriation to the owner, who opposed the expropriation. After months of discussion, Rogers asked Industry Canada to break the stalemate and Rogers was given permission to proceed with installation at the original site. The City then served Rogers with a notice of land reserve that prevented construction of the tower. The Quebec Court of Appeal upheld the validity of both the expropriation notice and the notice of land reserve, finding that the City was acting for a legitimate municipal purpose.

   The appeal raises important constitutional division of powers issues regarding the scope of the federal government's jurisdiction over radiocommunications. It will be interesting to see how the Supreme Court defines the scope of federal jurisdiction in the context of the wireless era, in which wireless services (and the national networks and infrastructure required to support them) have become increasingly central to the lives of Canadian individuals and businesses. The appeal also provides an important opportunity for the Supreme Court to provide guidance on the application of the doctrine of cooperative federalism.

8. Canadian Pacific Railway Co. v. Canada (A.G.)

   On December 9, 2015, CP's attempt to appeal from the Regulations Amending the Railway Interswitching Regulations was heard by the Supreme Court of Canada, whose decision remains under reserve and is scheduled to be delivered this Friday, January 15. In this appeal, the Supreme Court will tackle an important (and politically-charged) constitutional question: To what degree must administrative bodies be free from interference by the executive branch of government when exercising legislative functions that have been delegated to them?

   CP sought leave to appeal regulations enacted by the Canadian Transportation Agency (the "CTA") in August 2014. Interswitching is a service in which one railway company collects a shipper's rail traffic and transports it to an interchange point with a second railway company. The existing Railway Interswitching Regulations require federally regulated companies such as CP to perform interswitching services for all shippers' facilities (e.g., grain elevators) that are located within 30 km of an interchange, at the rate prescribed in the regulation. Interswitching outside the prescribed 30 km distance is performed on commercially negotiated terms. In 2014, various Federal Ministers expressed an intention to extend the...