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 5 minutes.

Latest News

  1. 🤫 The SCC will release its judgment in CBC et al v. Named Person & His Majesty the King on Friday, June 7, 2024. At issue is the interplay between the open court principle and informer privilege. In this case, a police informer was on trial and the proceedings were kept completely secret.
  2. 🚧 On May 31, 2024, the SCC released its decision in Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20. In a 6:1 split, the SCC allowed the appeal and clarified what is required for an exclusion clause in a contract to exempt a seller from an implied condition under the Sale of Goods Act.
  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: Informer Privilege & Open Court Principle

Appeal by leave from Re Personne désignée c. R., 2022 QCCA 984

SCC factums and webcast

What Happened?

Background: A police informant was convicted of participating in a crime that he or she had revealed to police.

Trial: The informant was prosecuted entirely in secret in Quebec. The trial did not appear on the court docket, the trial judge’s decision was not released, and all details of the proceedings were unknown to the public, including the nature of the crime and where it allegedly took place, the name of the judge involved and the names of the lawyers. The informant was found guilty.

Appeal: The existence of the trial came to light because the informant appealed. The Court of Appeal released a redacted judgment in which it allowed the appeal and stayed criminal proceedings against the informer. The Court of Appeal however ruled it could not release any information, saying the right of informants to remain anonymous supersedes the principle of court proceedings being open to the public.

After the Court of Appeal issued the redacted judgment, the media appellants filed a motion to have the confidentiality orders concerning the appeal record and the trial record lifted in whole or in part. The Attorney General of Quebec also filed a motion to vary the sealing order applicable to the appeal record. The Court of Appeal dismissed the motions.

What Was Argued at the SCC?

Appellants: The media organizations argued that having a secret trial of this nature is contrary to the basic open court principle that governs our justice system. To allow lower court judges to decide that a case can be held in complete secrecy undermines confidence in the justice system. At a minimum, Canadians should know a trial is taking place and notice given so that there can be a debate about the secrecy of the proceedings. The Quebec AG asked to have the case sent back to the Court of Appeal so it could release additional information.

Respondents: The courts below properly applied the law as set out in Named Person v. Vancouver Sun, 2007 SCC 43. Calls for a change in the law should be rejected because it would allow for the disclosure of sensitive information to people outside the circle of privilege. It would also eliminate judicial discretion to decide the most appropriate procedure to protect the identity of informers. Overall, this would inappropriately weaken informer privilege.

What Else Should You Know Before Making a Prediction?

The whole second day of the SCC hearing in which the respondents made their submissions was not made public, making it difficult to form an accurate prediction. This case is at the extreme end of these types of secret proceedings in terms of the extent of the information that was kept from the public. I could see that raising concerns for the Court and wanting them to expand upon their decision in Named Person v. Vancouver Sun. I’m leaning towards appeal allowed with the Court sending the matter back to the Court of Appeal.

Previous Prediction: Exclusion Clauses

On May 31, 2024, the SCC released its decision in Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20

Held (6:1): Appeal allowed and trial judge’s judgment restored. The exclusion clauses were an express agreement pursuant to section 53 of the Sale of Goods Act.

Key Points:

  • The SGA provides statutory protections to contracting parties by implying various rights, duties and liabilities in contracts for the sale of goods, including conditions and warranties. When goods are sold by description, s. 14 of the SGA provides an implied condition that the goods correspond with their description.
  • Section 53 permits parties to vary obligations imposed by the SGA. The parties must have expressly and unambiguously used language that signals their intention to override the SGA. Despite the requirement for an express agreement, s. 53 does not require express language; there is no requirement for particular magic words.
  • There has been a shift away from a method of contractual interpretation dominated by technical rules of construction towards one that requires that words be understood in their factual matrix, with the paramount goal of ascertaining the parties’ objective intention.
  • The modern contractual interpretation principles from Sattva apply to contracts containing exclusion clauses.

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

-Tom Slade

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