Litigation 2019 - Trends & Developments


In the past year in Canada, and in British Columbia specifically, recent legal developments have further altered the status quo, in an effort to address reconciliation with indigenous peoples over the use of the country's natural resources, and to increase access to justice outside the traditional courtroom setting. In the recent federal election, the incumbent Liberal government under Prime Minister Justin Trudeau retained a minority, which may affect its ability to bring about legislative changes to further its mandate.

The provinces and territories in Canada (other than Québec) are common law jurisdictions, with a hierarchical court system, made up of both provincially and federally constituted courts. The federal parliament appoints judges to the provinces' superior courts, for example, the British Columbia Supreme Court (BCSC) and Court of Appeal (BCCA), as well as to the federal courts (both trial and appellate levels).

The Canadian constitution dictates the subject-matter jurisdiction of the country's courts (as well as of provincial and federal regulatory tribunals). The jurisdiction of the federal courts is restricted to those matters governed by federal statutes, which expressly confer jurisdiction on these courts.

Focusing on British Columbia (BC), the BCSC is a superior court of inherent jurisdiction. The majority of commercial litigation cases in the province are determined in the BCSC and, if appealed, by the BCCA. The decisions of the provinces' appellate courts and the Federal Court of Appeal (FCA) are ultimately subject to review by the Supreme Court of Canada (SCC), which sits in the national capital, Ottawa. As part of its continued commitment to increasing access to justice, in late September 2019, for the first time in its history, the SCC sat in Winnipeg, Manitoba to hear two appeals and meet with members of the public.

The BC Provincial Court, whose judges are appointed by the provincial government, hears civil claims valued between CAD5,001 and CAD35,000 (as well as criminal, family and youth, and traffic matters). In BC, the Civil Resolution Tribunal (CRT), Canada's first online administrative tribunal, has jurisdiction to resolve civil disputes up to CAD5,000 (among other things).

Canada is a country rich in natural resources. In the 21st century, the Canadian government has made efforts to attempt to address reconciliation with the country's indigenous peoples. Tensions have long existed between the commercial interest in utilising the country's natural resources, and environmental concerns about doing so. Indigenous rights and claims over lands where the resources are located also form part of this delicate balance. In 2019, the Canadian government overhauled the federal environmental assessment regime for major projects. Among the stated objectives underlying this overhaul is reconciliation with indigenous peoples. A number of recent prominent court cases involving the expansion of the highly publicised Trans Mountain oil pipeline illustrate the complexity of resolving disputes in this area of law.

In 2014, the SCC confirmed the existence of an "overarching organizing principle of good faith" in contract law, namely, that parties to a contract must perform their contractual obligations honestly and reasonably and not capriciously or arbitrarily. In July 2019, the SCC granted leave to appeal in two cases to be heard together, one from the BCCA, the other from the Ontario Court of Appeal, in which the appellate courts considered how far the principle of good faith in contract performance could be extended. Later in this article, we discuss the BCCA's decision in Greater Vancouver Sewerage and Drainage District v Wastech Services Ltd, 2019 BCCA 66 (Wastech).

Canada has a robust regulatory culture and disputes are resolved by provincial and federal administrative tribunals. The BC government established the CRT in 2012 as a way to increase access to justice, and it came into operation in 2016. Parties using the CRT are generally required to represent themselves. The CRT was initially given jurisdiction over civil claims to a value of CAD5,000 (with the value expected to increase in future), as well as strata-related disputes (ie, condominiums) of any value. In 2019, the BC government expanded the CRT's jurisdiction to include the resolution of motor vehicle injury claims up to CAD50,000, as well as disputes involving societies and co-operative associations of any value.

In this article we highlight some notable cases and developments in Canada over the past year in...

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