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Page 14 November 27, 2017 • Law Times www.lawtimesnews.com CASELAW Supreme Court of Canada Public Law CROWN Practice and procedure involving Crown in right of Canada Crown not required to submit to discovery in proceedings in which it is not a party Crown immunity. Over period of ten years, investigation was conducted regarding determi- nation of gasoline price by cer- tain oil companies and retailers. In course of that investigation, more than 220,000 commu- nications were recorded. Class action was commenced against those oil companies and retail- ers, claiming that latter had con- spired to fix gasoline price. Rep- resentative in that action applied for permission to examine chief investigator and access commu- nications intercepted in course of investigation. Trial judge granted permission to summon chief investigator to be exam- ined on discovery. In his view, Supreme Court of Canada had confirmed, in previous decision, that judge could order Crown to disclose all communications in- tercepted during investigation. Court of Appeal was instead of view that question of Crown immunity remained unresolved and, therefore, undertook its own interpretation of Crown Liability and Proceedings Act (CLPA) (Can.). Court of Appeal ultimately found that absence of clear language expressly limit- ing application of s. 27 of CLPA to proceedings against Crown supported absence of Crown immunity and that chief inves- tigator could be examined on discovery even though Crown was not party in proceedings. Attorney General of Canada ap- pealed before Supreme Court of Canada. Appeal allowed. Based on wording of the Interpreta- tion Act (Can.), unless immu- nity is clearly lifted, Crown con- tinues to have it. Here, section 27 of CLPA does not indicate clear and unequivocal inten- tion on Parliament's part to lift Crown's immunity by requiring Crown to submit to discovery in proceedings in which it is not a party. Legislative and parlia- mentary history also supported that conclusion. Therefore, chief investigator could refuse, on basis of Crown's immunity, to submit to examination on dis- covery at issue in this case. Canada (Procureur gé- néral) c. Thouin (2017), 2017 CarswellQue 8001, 2017 Car- swellQue 8002, 2017 SCC 46, 2017 CSC 46, McLachlin C.J.C., Abella J., Moldaver J., Wagner J., Gascon J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellQue 12468, 2015 Car- swellQue 13777, 2015 QCCA 2159, Mainville J.C.A., Émond J.C.A., and Parent J.C.A. (C.A. Que.). Remedies DAMAGES Damages in tort No necessary relationship between reasonably foreseeable mental injury and diagnostic classification Plaintiff, through his litiga- tion guardian, brought action for damages for injuries suf- fered in motor vehicle accident. Liability was admitted. Trial judge awarded $100,000 in non- pecuniary damages for psycho- logical injury, including per- sonality change and cognitive difficulties, sustained as result of accident. Defendants success- fully appealed. Appellate court agreed with defendant that trial judge erred by awarding dam- ages for mental injury where plaintiff had not proven medi- cally recognized psychiatric or psychological illness or condi- tion and added that such illness must be demonstrated by expert medical opinion evidence. Ap- pellate court observed that trial judge erred by deciding case on basis neither pleaded nor argued by plaintiff. Plaintiff appealed. Appeal allowed and trial judge's award restored. It was implicit in 2008 Supreme Court of Canada decision that ordinary duty of care analysis was to be applied to claims for negligently caused mental injury. It was unneces- sary and futile to re-structure that analysis so as to mandate formal, separate consideration of certain dimensions of prox- imity. Confining compensable mental injury to conditions that were identifiable with ref- erence to diagnostic tools was inherently suspect as matter of legal methodology. There was no necessary relationship be- tween reasonably foreseeable mental injury and diagnostic classification scheme. View that recognizable psychiatric illness requirement was necessary to prevent indeterminate liability was untenable. Robust applica- tion of elements of cause of ac- tion of negligence should be sufficient to address concerns for indeterminate liability. No cogent basis had been offered for erecting distinct rules which operated to preclude liability in cases of mental injury, but not in cases of physical injury. Requir- ing claimants who alleged one form of personal injury (men- tal) to prove that their condition met threshold of "recognizable psychiatric illness" while not imposing corresponding re- quirement upon claimants al- leging another form of personal injury (physical) to show that their condition carried certain classificatory label was incon- sistent with prior statements of this Court. There was no legal error in trial judge's treatment of evidence of plaintiff 's symp- toms as supporting finding of mental injury. Saadati v. Moorhead (2017), 2017 CarswellBC 1446, 2017 CarswellBC 1447, 2017 SCC 28, 2017 CSC 28, McLachlin C.J.C., Abella J., Moldaver J., Karakat- sanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellBC 2694, 2015 BCCA 393, Saunders J.A., Chiasson J.A., and Frankel J.A. (B.C. C.A.). Federal Court of Appeal Business Associations NATURE OF BUSINESS ASSOCIATIONS Nature of corporation Licence exploitation fees were exempt from seizure D Ltd. sold military aircraft equipment to Eritrea in 2003 but did not receive full pay- ment. Under terms of contract, D ltd. commenced arbitration proceeding before Arbitration Institute of Stockholm Cham- ber of Commerce with Eritrea not fully participating. D Ltd. obtained arbitration award of $2,175,775 (US). Amount owed was increased to $4,062,428.70 (US) to include arbitral fees and interest and award was regis- tered as judgment in recogni- tion order following ex parte proceeding. D Ltd. obtained provisional garnishment order providing for attachment of any debts owed by S corp. to Eritrea. S corp. was Canadian com- pany involved in joint venture mining project in Eritrea, who through state-owned company, exercised legal right to acquire significant equity interest. Pro- thonotary issued final order on basis that S corp. owed certain licence exploitation fees to Er- itrea and also found issuance of shares was effectively sale valued at $4.3 million that should have attached in D. Ltd.'s favour. On appeal, Federal court conducted de novo hearing that resulted in finding that licence exploitation fees were exempt from seizure and that finding debt was owed by S corp. directly to Eritrea aris- ing from share issuance would involve impermissible piecing of corporate veil. D Ltd. appealed. Appeal dismissed. Federal Court did not err in conducting de novo hearing, as it effectively resulted in reviewing questions of law underlying Prothonota- ry's decision on standard of cor- rectness. No error arose respect- ing questions of fact, as issue of piercing corporate veil was not determined by Prothonotary. There was no error in conclud- ing no debts owed or accrued from S corp. to Eritrea was capa- ble of garnishment. Any transfer from S corp. to Eritrean state- owned company arising from share transfer did not create debt obligation capable of attachment under provisional garnishment order. Rather, obligation was in nature of creating equity interest in project acquired by Eritrea. It was not necessary to determine whether corporate veil should be pierced in relation to share issu- ance. Delizia Limited v. Sunridge Gold Corp. (2017), 2017 Car- swellNat 5228, 2017 FCA 188, Wyman W. Webb J.A., D.G. Near J.A., and J. Woods J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 1062, 2016 Car- swellNat 3000, 2016 FC 392, 2016 CF 392, Henry S. Brown J. (F.C.). 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. Complete the survey online at canadianlawyermag.com/surveys and make your picks. It's time to rank… THE TOP 10 QUEBEC REGIONAL FIRMS SURVEY IS OPEN NOVEMBER 27TH - DECEMBER 29TH Untitled-6 1 2017-11-20 9:06 AM

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