The Supreme Court’s decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, is notable for two reasons: (1) it defines the scope of the “faulty workmanship” exclusion in builders’ risk insurance policies; and (2) it creates an exception to the holding in Sattva that contractual interpretation is a question of mixed fact and law subject to deferential review on appeal. The case involved an insurance claim by the general contractor and the owner of a newly constructed building for the replacement of windows scratched by cleaners prior to completion of the construction. The court restored the original trial decision that the faulty workmanship clause excluded only the cost of redoing the faulty work of the window cleaners, but not the $2.5 million cost of replacing the windows. On the issue of appellate interpretation of standard form contracts the court said:

In my view, where an appeal involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix that is specific to the parties to assist the interpretation process, this interpretation is better characterized as a question of law subject to correctness review. (para. 24)

For comments on the implications for the insurance industry see:

Faulty Workmanship Exclusion In A Builders’ Risk Policy Excludes Only The Cost Of Re-Doing The Faulty Work: Supreme Court Of Canada – Construction Law Canada

Supreme Court of Canada Ruling on "Faulty Workmanship" Exclusion – RBS

For comments on appellate standard of review see:

Top court widens scope for appeals of insurance contract disputes – Legal Feeds

Canadian Contractual Interpretation Just Got More Difficult – Bennett Jones

In Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, the court further clarifies the presumptive jurisdiction test articulated in Van Breda to find that Ontario courts had jurisdiction to hear the third-party claim of an Ontario law firm (sued in an Ontario-certified class action brought by GM dealers alleging negligent advice and representation respecting their wind down agreements) against several Quebec law firms who also advised the dealers. In particular, the court elaborates on the fourth connecting factor, under which jurisdiction is established when a contract connected with the dispute was made in the forum. The dissenting judge was critical of the majority’s broad approach to the issue of whether the wind-down agreements were connected with the third party claims, and noted at para. 133 that “there may be harmful commercial implications that flow from (it).” For commentary on the decision see:

Supreme Court of Canada Evolves Test for Taking Jurisdiction – Conflict of Laws.net

Have a Contract in Canada? Your Class Action Risk is Greater Than You May Think – Bennett Jones

The Supreme Court’s decision in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, preventing federal employers from dismissing employees without cause even where reasonable severance has been paid, is about more than employment law. The court also examines, but does not reach consensus on, reforming the standard of review in administrative appeals. Justice Abella, in obiter, goes so far as to propose that the two remaining standards of review post-Dunsmuir be collapsed into a single reviewing standard of reasonableness. The other majority judges either disagreed that an overhaul was needed or found it unnecessary “to endorse any particular proposal to redraw our current standard of review framework at this time.” (para. 70)

These articles discuss the administrative law issues in more detail:

Some Thoughts on Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 – Administrative Law Matters

Wilson v Atomic Energy: More Than Unjust Dismissals – The Court

In Sosnowicz v Manitoba Public Insurance, 2016 MBCA 75, the court declined to grant MPI leave to appeal an Automobile Injury Compensation Appeal Commission decision respecting the classification of an accident victim for the purpose of determining her income replacement benefits. MPI argued that the respondent (who, prior to the accident, had completed all her course work for her final year of the psychiatric nursing program but not all of her practicum shifts) was a “student” and not a “part-time earner” as determined by the Commission. The court found that MPI had not identified any extricable question of law with respect to how the Commission interpreted “student” under the Act, nor demonstrated that the question was sufficiently important to warrant consideration by the court.

The focus in a proceeding to determine which proposed class action should proceed and who should have carriage of it should always be on the resources and experience of proposed counsel to act in the best interests of the putative class and should never devolve to such unbecoming professional conduct as mudslinging at opposing counsel or complaints about the opposing law firms’ weaknesses or misconduct, according to the court in Thompson et al. v. Minister of Justice of Manitoba et al. and Meeches et al. v. The Attorney General of Canada, 2016 MBQB 169. The court reviews the principles at play in deciding a carriage motion (starting at para. 20), and concludes that permitting both actions to redress injuries arising from the 60s scoop to proceed would “unnecessarily complicate the process, may cause one of the defendants to file motions to strike, probably delay the matter proceeding to certification and would not be in the best interests of the putative class.” The Meeches action was selected and the Thompson action was stayed.

Guertin et al. v. Valley Builders, 2016 MBQB 144 – the court dismissed the homeowners’ application to extend the limitation period and to commence an action in tort and contract against the company they employed to build their $7,000,000 house. The homeowners argued that the builders were responsible for structural issues resulting in a $200,000 price reduction when the house later sold. The court found there were evidentiary issues as to the causation of the structural failure, as to breach of any standard of care, and as to any direct connection between the damage alleged and the reduction in purchase price.

Excel-7 Ltd. v. Nichols et al., 2016 MBQB 119 – a builder was only partially successful in his claim for the $80,000 balance owing under a $750,000 contract to construct a commercial boarding kennel with a residence on top. The homeowners counterclaimed and were awarded approximately $40,000 for numerous unresolved deficiencies.

Raymond v. M.P.I.C., 2016 MBQB 117 - the court upheld MPI’s decision to deny coverage to a Manitoba resident who had an accident in BC using a car he registered in Manitoba but kept in BC for business use a few times a year. The court found that the plaintiff was required to re-register in BC after the 30-day grace period expired, and that 30 days’ consecutive use was not required, as argued by the plaintiff.

The Problem of Competing Multi-Jurisdictional Class Proceedings: A New Call for Direction – this paper, from the 2016 Western Canada Class Actions Conference and written by an Alberta judge, addresses the growing problem of duplicative class actions and the inefficiencies inherent in not having an agreed upon or binding framework for resolving competing proceedings.

Litigation in the Facebook Age: Creative Discovery through Cutting-Edge Internet Research on Parties and Witnesses – this BC CLE paper reviews how social media evidence has been used in various types of litigation and considers the privacy and ethical concerns this raises.

Pokémon GO: Personal Injury, Safety Issues, And Liability – although Pokémon GO may already be past its prime, this practical review of personal injury liability for players, property and business owners, drivers and game developers is still both topical and instructive.

Complex Estate Litigation: An Example Arising from a Tragedy – the aim of this seminar is to provide registrants with the tools and precedents to use when faced with complex estate litigation. It takes place from noon to 2:00 pm on October 6, 2016 at the Law Society classroom.

Credit Counselling Society Webinars – the Law Society has partnered with the Credit Counselling Society to offer fundamental financial management webinars. Register to attend the first of two webinars, The Truth about Credit, on October 28, 2016. Financial educator, Tim St. Vincent, will discuss how credit cards and ratings can have a negative impact on financial status and how this can be repaired.

Plain Language Communication – Learn to communicate more effectively using plain language at this lunch program to be held November 23, 2016 at the Law Society classroom. Registration discounts apply to students and teleconference participants.

NEW Language Rights Rule – This program will examine ethical and professional obligations under the new Code of Professional Conduct rule on language rights and offer practical suggestions for both solicitors and litigators to meet those requirements. It will be held at the Law Society classroom on November 24, 2016.

You are Not Alone: The Lawyer’s Guide to Dealing with Anxiety – learn how to recognize and manage anxiety at this highly recommended program developed specifically for Manitoba lawyers by the Anxiety Disorders Association of Manitoba. Take advantage of our reduced rate and register to attend on November 29 or 30, 2016, from noon to 1:30 pm.