Appeals To Watch In 2014: The Appeals Monitor’s Top Ten

The future ain't what it used to be

-Yogi Berra (1925-)

Trying to predict the future is like trying to drive down a country road at night with no lights while looking out the back window.

-Peter Drucker (1909-2005)

For the second year in a row, the Canadian Appeals Monitor is arming our readers with our take on the most anticipated Supreme Court of Canada appeal decisions of the coming year. 2014 promises new guidance on key issues of public and private law affecting businesses across the country, and we have set out a Top Ten below of key cases to watch. Not only do we hope this information is useful professionally, but if you need to escape an awkward conversation with a loved one over the holidays, bringing up the subject of pending appeals may provide a handy exit.

10 - Canadian National Railway Company, et al. v. Attorney General of Canada, et al.

In January, the Supreme Court will hear the appeal of the unanimous Federal Court of Appeal judgment of Dawson J.A. in Canadian National Railway, which deals with the proper standard of review for decisions of cabinet when exercising a statutory power to "vary or rescind" administrative decisions. At issue was a decision by the Governor-in-Council to over-rule the Canadian Transportation Agency in a dispute between Canadian National Railway Company (CN) and Peace River Coal Inc. (Peace River) about freight rates for coal shipping. The freight rates had been agreed in a contract between CN and Peace River and the Agency agreed with a preliminary motion by CN that it had no jurisdiction to effectively amend the terms of that contract despite its statutory jurisdiction over the reasonableness of freight tariffs in certain circumstances. The Federal Court, applying a standard of correctness on judicial review, set aside the order-in-council.

The Court of Appeal, relying on its judgment in Globalive Wireless Management Corp. v. Public Mobile, 2011 FCA 194, found that the appropriate standard of review was reasonableness because the question was one of mixed fact, policy and law. Applying this standard, it then found that cabinet acted reasonably and reached a conclusion supported by the evidence, and that the Federal Court judge had erred in over-ruling it. The Supreme Court's decision in CNR will be interesting given that it denied leave to appeal the much-discussed Globalive decision in 2012 and that it has traditionally taken a very deferential approach towards cabinet decisions (most famously in Inuit Tapirisat and Thorne's Hardware ).

9 - Michael McCormick v. Fasken Martineau Dumoulin LLP

In a case that will affect all kinds of professional services firms, the Supreme Court heard the appeal this month in McCormick v. Fasken Martineau Dumoulin LLP. At issue is the question of whether a limited liability partnership can be treated as an employer of a partner for the purposes of human rights legislation. The British Columbia Court of Appeal held that although the Human Rights Code deserves a broad, liberal and purposive interpretation, this cannot extend to an interpretation that a partner is in an employment relationship with the...