Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 6 minutes.

Latest News

  1. 👷‍♀️ The SCC will release its judgment in Earthco Soil Mixtures v. Pine Valley Enterprises on Friday, May 31, 2024. At issue is when parties can exclude statutory protections by way of contract. The Sale of Goods Act applies an imposed condition when parties are selling goods by description. Here, there was a dispute about whether soil sold by the appellant needed to correspond to its description or whether the obligation was on the respondent to inspect it to ensure it was suitable for their needs.
  2. ❌ On May 24, 2024, the SCC released its decision in R. v. T.W.W., 2024 SCC 19. In a 7:2 split, the SCC dismissed the appeal and confirmed the trial judge’s decision to refuse evidence of prior sexual activity between spouses in a sexual assault case.
  3. 🔮 78% of players correctly predicted the outcome.

Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the cases below.

Case to Predict: Interpreting Clauses Excluding Statutory Protections

Appeal by leave from Pine Valley Enterprises Inc. v. Earthco Soil Mixtures Inc., 2022 ONCA 265

SCC factums and webcast

What Happened?

Background: The respondent Pine Valley Enterprises Inc. contracted with the appellant Earthco Soil Mixtures Inc. for the supply of topsoil for use in a City of Toronto project. After reviewing some old test results for the soil, the respondent placed an order for what was described as “Screened topsoil with extra Organics added.” The contract contained exclusion provisions that allowed the respondent to test the soil prior to shipment, and that, if the respondent waived its right to testing, the appellant would not be responsible for the “quality” of the material. The respondent waived its right to test the soil. After delivery, testing revealed that the topsoil significantly differed from the earlier test results. The respondent was forced to remove the topsoil and sued the appellant.

Trial: The trial judge found that the contract was for a “sale by description” within the meaning of the Ontario Sale of Goods Act. He found that the topsoil delivered did not correspond to the description in the contract, contrary to s. 14 of the Act. The trial judge also found, however, that the parties had expressly agreed, as permitted by s. 53, to absolve the appellant of liability for description of goods issues. Therefore, he dismissed the respondent’s action.

Appeal: The Court of Appeal agreed with the trial judge that the contract was for a “sale by description” and that there was a discrepancy between the description of the goods in the contract and the goods delivered. However, the Court of Appeal held that the trial judge erred in using the factual matrix of the contract to determine that the exclusion clauses ousted s. 14 of the Sale of Goods Act. The Court of Appeal sided with the purchaser and unanimously allowed the appeal.

What Was Argued at the SCC?

Appellant: This was never a sale by description but a sale by inspection, which falls outside of s. 14 of the Sale of Goods Act. A sale by description is usually where a buyer does not see the item before it’s purchased and relies solely on the description. The respondent was given an opportunity to inspect and declined it, even though they knew they were otherwise relying on old test results. Even if it was a sale by description, the problems that arose relate to quality and again fall outside the scope of s. 14. In terms of the exclusion clauses, the Court of Appeal’s approach was too rigid and inconsistent with the purpose of s. 53 of the Act.

Respondent: The sale was by description pursuant to s. 14, so there was an implied condition in the agreement that the soil corresponded to the description. The soil delivered did not correspond to the description. The exclusionary clauses here don’t apply because they refer to the “quality of the material”, but do not refer to the description or identity of the soil. The exclusionary clauses do not refer clearly, directly, or explicitly to any statutory conditions.

What Else Should You Know Before Making a Prediction?

The Court seemed particularly interested in the standard of review to be applied here as it involved looking at both the statute and a particular agreement between parties. The judges also spent a lot of time asking about exclusionary clauses and the extent to which Hunter Engineering requires clear and direct language to contract out of implied conditions contained in a statute. I expect a close split decision, but I’m leaning towards appeal allowed with the Court relying on Sattva which requires a more contextual approach to contractual interpretation.

Previous Prediction: Evidence of Sexual Activity

On May 24, 2024, the SCC released its decision in R. v. T.W.W., 2024 SCC 19.

Held (7:2): Appeal dismissed. Trial judge properly excluded evidence of prior sexual activity.

Key Points:

  • Section 278.97 of the Criminal Code states that an appeal from a trial judge’s determination to admit or refuse evidence of other sexual activity is a question of law. This provision limits the issues that can be raised on appeal but does not prescribe a standard of review.
  • Under the s. 276 regime, a trial judge may only admit evidence of other sexual activity when it is not used to support twin-myth reasoning; is adduced for specific, relevant and permissible purposes; and when its probative value to the trial is not substantially outweighed by its prejudice.
  • Other sexual activity evidence may be admissible for issues of credibility or context, but the applicant must establish a specific use for this information that is permitted by the s. 276 regime. The relevance and probative value of the evidence in each case must go beyond a general ability to undermine the complainant’s credibility or to add helpful context to the circumstances of the case; it must respond to a specific issue at trial that could not be addressed or resolved in the absence of that evidence.
  • The appellant failed to discharge his burden as the prior sexual activity evidence had no permissible purpose for either context or credibility.
  • Côté and Moreau JJ. in dissent found that the trial judge should have allowed the accused to cross‑examine the complainant about specific previous consensual sexual activity for limited purposes.

Predictions: 78% of players correctly predicted that the appeal would be dismissed.

-Tom Slade

Thanks for reading and playing Fantasy Courts. If you liked today’s newsletter, we’d love for you to share it with a friend, or you can sign up to receive it as an email: https://mailchi.mp/37b20ffd0198/fantasycourts