Law Times

Page 14 December 5, 2016 • Law Times www.lawtimesnews.com Supreme Court of Canada ALTERNATIVE DISPUTE RESOLUTION APPEAL FROM ARBITRATION AWARDS Question of law Leave to appeal under arbitration legislation ought not to have been granted Parties entered agreement by which petitioner, U Inc., leased fibre optic strands to BNS. By let- ter, BNS sought to exercise renewal option and requested that peti- tioner waive six months' notice requirement. BNS did not include payment of $1.00 renewal fee. Pe- titioner later claimed that letter did not constitute valid exercise of option. Arbitrator found that BNS exercised option and that proposed modification of option was tendered only after making of new bilateral contract. Arbitrator found, in alternative, that if letter was not effective exercise of op- tion, petitioner was estopped from relying on any defects in letter. Pe- titioner sought leave to appeal, and appealed. Leave was granted and appeal was allowed. Chambers judge found, in part, that arbitrator erred by failing to follow principle that qualified acceptance of offer constitutes counter-offer. Judge found, in part, that arbitrator erred by failing to accept parties' agreement as to required consid- eration. Judge found, in part, that petitioner had no obligation to ad- vise BNS that its purported exer- cise of option was defective. Judge ordered that award be amended to find that agreement required $1.00 as consideration for exercise of option; letter was qualified ac- ceptance of option offer and was thus counter-offer extinguish- ing original offer; and, petitioner was not estopped from relying on defects in purported exercise of option. BNS appealed. Appeal was allowed, order was set aside, application for leave to appeal award was dismissed, and award was reinstated. Court of Appeal (C.A.) found that petitioner could not establish pure question of law arising from arbitrator's interpre- tation of article of agreement and letter. C.A. found that threshold requirement for granting of leave to appeal under arbitration leg- islation was not met and leave to appeal ought not to have been granted. C.A. found that there was no consensus between par- ties on meaning of words in con- tractual documents. C.A. found that arbitrator had to determine true meaning of words in context and surrounding circumstances in which they were written. C.A. found that this engaged questions of mixed fact and law, which were not reviewable under statute pro- vision. Petitioner appealed. Ap- peal dismissed. Court was of view that appeal should be dismissed substantially for reasons of C.A.. Urban Communications Inc v. BCNET Networking Society (2016), 2016 CarswellBC 3056, 2016 CarswellBC 3057, 2016 SCC 45, 2016 CSC 45, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gas- con J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1785, 2015 BCCA 297, D. Smith J.A., Bennett J.A., and Willcock J.A. (B.C. C.A.). BUSINESS ASSOCIATIONS SPECIFIC MATTERS OF CORPORATE ORGANIZATION Shareholders Oppression claim was properly dismissed R and M incorporated company but rarely complied with require- ments of Canada Business Cor- porations Act. In May 2005, M resigned as officer and director of corporation. Corporation alleged M had also resigned as sharehold- er and accordingly transferred his shares to R. M applied for oppres- sion remedy under s. 241 of Act, alleging he was still shareholder. Trial judge dismissed M's claim, rejecting M's version of events and finding that as of May 2005, M did not wish to be shareholder and asked to be removed. Court of Appeal dismissed M's appeal. M appealed to Supreme Court of Canada. Appeal dismissed. Op- pression claim was properly dis- missed. Trial judge's factual find- ings were not reviewable because no palpable and overriding error had been made. Fact that corpora- tion fails to comply with require- ments of Act does not, on its own, constitute oppression. M could have had no reasonable expecta- tion of being treated as sharehold- er: he no longer was and expressly demanded not to be so treated. Corporation's failure to observe corporate formalities in removing M as shareholder in accordance with his wishes could not be char- acterized as unfairly prejudicial to extent that omission deprived him of shareholder status. Mennillo v. Intramodal inc (2016), 2016 CarswellQue 10615, 2016 CarswellQue 10616, 2016 SCC 51, 2016 CSC 51, McLach- lin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2014), 2014 CarswellQue 10625, 2014 QCCA 1515, Gagnon J.C.A., Vézina J.C.A., and St- Pierre J.C.A. (C.A. Que.). HEALTH LAW MALPRACTICE Negligence Trial judge committed no error of law in causation analysis Chest X-ray performed in No- vember 2005 revealed that there was 1.5 to 2 cm ill-defined opac- ity in patient's right lung. Follow- up chest X-ray performed in Jan- uary 2006 revealed no change in opacity and patient's physicians did not further investigate into it. In December of 2006, another chest X-ray revealed that lesion had increased in size. It was then discovered that patient had stage IV lung cancer and that cancer was incurable. Patient received chemotherapy treatments, but eventually died on June 6, 2008. His common–law spouse and their young son brought action for damages against patient's physicians. Trial judge concluded that, while physicians were negli - gent in failing to properly diag- nose patient's cancer, evidence did not establish on balance of probabilities that their negli- gence caused patient's death. In her view, evidence showed that patient's cancer was likely al- ready at stage III by November 2005 and was likely incurable. Spouse and her son successfully appealed. Majority of Quebec Court of Appeal held that trial judge erred in law by failing to draw adverse inference of causa- tion given that physicians' neg- ligence undermined spouse's ability to prove causation. Physi- cians appealed. Appeal allowed. Trial judge committed no error of law in her causation analysis, nor did she commit a palpable and overriding error of fact. Pre- sumptions of causation can be drawn only when they are seri- ous, precise and concordant and trial judge did not think that these criteria were met. She was not required by law to draw pre- sumption of fact simply because it was impossible to prove causa- tion as result of physicians' fault. Further, it was for trial judge to decide what weight, if any, to give to statistical evidence in this case and it was open to trial judge to find that general correlation be- tween fortuitous discovery and early stage cancer was poor basis from which to draw inference. She committed no palpable and overriding error in disregarding it and deference to her conclu- sion was in order. Benhaim v. St-Germain (2016), 2016 CarswellQue 10215, 2016 CarswellQue 10216, 2016 SCC 48, 2016 CSC 48, McLach- lin C.J.C., Abella J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); re- versed (2014), 2014 CarswellQue 12131, 2014 QCCA 2207, Bé- langer J.C.A., Kasirer J.C.A., and Fournier J.C.A. (C.A. Que.). Federal Court of Appeal ADMINISTRATIVE LAW STANDARD OF REVIEW Miscellaneous Decision to issue notice of compliance was reasonable Reasonableness. Minister of Health made decision to issue no- tice of compliance (NOC) to TC Inc. for exemestane tablet, which was generic version marketed by PC Inc.. Minister of Health made decision to issue NOC to HH Inc. for its 100 mg/vial inf lixmab powder solution, which was ge- neric version marketed by J Inc. . PC Inc. brought application to challenge issuance of NOC. Fed- eral judge found that standard of review of minister's decision was correctness, that minister's interpretation of regulations was incorrect and thus, decision to issue NOC was set aside. J Inc. also brought application to chal- lenge issuance of NOC and on consent of parties, federal judge set aside decision to issue NOC. PC Inc. and J Inc. appealed and appeals were consolidated. Ap- peal allowed. Federal judge erred by reviewing minister's decisions on standard of correctness. Ap- plying standard of reasonable- ness, decision to issue NOC was reasonable. Contextual analysis did not rebut presumption of rea- sonableness. While regulations were enacted pursuant to Patent CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. CASELAW REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-4 1 2016-11-29 3:07 PM

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