This Week At The SCC

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Newfoundland and Labrador v. AbitibiBowater Inc., 2012 SCC 67, the majority of the Court held that environmental protection orders issued under provincial legislation, which required an insolvent company to undertake remediation measures but which were not expressed in monetary terms, nonetheless amounted to "claims" under the Companies' Creditors Arrangement Act ("CCAA") that could be stayed and subject to a claims procedure order in the context of CCAA proceedings. The Court observed that not all environmental protection orders will qualify as claims under the CCAA, only those which can be treated as monetary claims pursuant to the following three-part test: (1) there is a debt, liability or obligation owing to a creditor; (2) the debt or obligation is incurred before the debtor becomes bankrupt; and (3) it is possible to attach a monetary value to the debt, liability or obligation. These requirements were met on the facts before the Court, since: (1) a regulatory body had exercised its enforcement power against the debtor, thus emerging as a "creditor"; (2) the environmental damage caused by the debtor occurred before the time of the CCAA proceedings; and (3) even though the existence of a monetary claim remained contingent, since the regulatory body had not yet formally exercised its power to ask for the payment of money, there was sufficient certainty that the regulatory body would ultimately perform remediation work and assert a monetary claim against the debtor. The Court also rejected the argument that Parliament lacked the constitutional authority to subject environmental protection orders issued under provincial legislation to the federal CCAA. We discussed the AbitibiBowater case in a previous post.

Cases Heard

The Court heard arguments in two cases of interest this week, and reserved judgment in each.

The first, an appeal from Ediger v. Johnston, 2011 BCCA 253, concerns the circumstances in which the "material contribution" test for causation should be applied in preference to the "but for" causation test, and whether a trial judge may draw an inference of causation when both parties have led expert evidence on the issue. We discussed the Ediger case in a previous post. The oral arguments before the Court may be viewed here.

The second case is an appeal from Irving Pulp & Paper Ltd. v. Communications...