The Year Ahead: Ten Top Appeals To Watch In 2017

The coming year will see our highest court decide a host of appeals of interest to Canadian businesses and professions. The Appeals Monitor is pleased to present our annual forecast of the top ten appeals expected in 2017.

Remedies for Breach of Modern Treaties: First Nation of Nacho Nyak Dun v Government of Yukon

This case involves a modern treaty known as the Umbrella Final Agreement ("UFA") between First Nations in the Yukon, the Crown, and the Yukon Government. Under the UFA, the parties are to engage in a collaborate land use planning process. At issue before the SCC is the remedy for breach of modern treaties and the remedy after quashing a flawed decision.

The UFA establishes a land use planning commission (the "Commission") for First Nations and the Yukon government with each party having decision-making authority in respect of land use plans. The Yukon government, using its decision-making authority, opted to modify the land use plan. These modifications included a number of substantive changes to the Final Recommended Plan. The Yukon Supreme Court concluded that the Yukon government's modifications to the Final Recommended Plan did not respect the planning process and remitted the matter for consultation: 2014 YKSC 69. The Yukon Court of Appeal allowed an appeal in part, and held that the appropriate remedy was return the parties to the point at which the failure began: 2015 YKCA 18. At issue before the SCC will be the appropriate remedy for the breach of the UFA.

This case will represent the latest effort by the SCC to address the honour of the Crown with respect to First Nations, here, in the context of modern treaty provisions. This case could have wide-ranging impacts for the ongoing reconciliation of Aboriginal and non-Aboriginal Canadians. It is scheduled to be heard on March 22, 2017.

The Duty to Consult: Hamlet of Clyde River v Petroleum Geo-Services Inc

In the appeal from Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179, which was heard by the SCC on November 30, 2016, the SCC is considering whether the Crown discharged its duty to consult despite the failure of the National Energy Board ("NEB") to refer to Aboriginal rights or the duty to consult in its reasons for its decision to approve a marine seismic survey program. The Federal Court of Appeal had held that the Crown was entitled to rely on the NEB's regulatory process, which included the requirement to undertake certain Aboriginal consultation activities, in order to help satisfy its duty to consult, which in this case was found by the Federal Court of Appeal to be at the high end of the duty to consult spectrum. This decision will be relevant to future NEB decisions where Aboriginal rights are engaged, and in particular the impact those decisions have on the broader duty on the Crown to consult affected Aboriginal groups.

A Whole New World to Discover: Attorney General of Canada v Daniel Thouin

In this case, the Québec Superior Court allowed the plaintiffs in a class action to compel the Competition Bureau's chief investigator to be examined on discovery on facts relevant to the investigation of allegations of price fixing against oil companies and gasoline retailers, despite the common law immunity...