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NEWS

 In Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24, the Supreme Court of Canada held that Canadian airport authorities as well as NAV Canada were entitled to seize and detain aircraft operated by airlines that had incurred airport and air navigation charges until the charges were paid or suitable security was posted, notwithstanding the identity of the legal owner of the aircraft. This unanimous decision reversed parallel judgments rendered by the Ontario Court of Appeal and Quebec Court of Appeal in the wake of the bankruptcies of Canada 3000 and Inter-Canadian airlines. In both cases, the airport authorities and NAV Canada had sought court orders allowing them to seize and detain aircraft used by the airlines that had incurred the airport and air navigation charges. In each case, however, the aircraft did not belong to the airlines but to third parties that had leased the aircraft directly to the airlines or to some other parties that had subleased the aircraft to the airlines. The central issue in the appeals to the Supreme Court of Canada was whether these seizures could be invoked against the legal titleholders of the aircraft and, if so, to what extent. The Court answered the first question in the affirmative, approving the reasoning of the dissenting judges from the two appellate courts below. The Court also found that the statutory provision in issue did not distinguish between the charges attributable to specific aircraft operated by a defaulting owner or operator, with the result that the seized aircraft could be called upon to secure the payment of all outstanding charges incurred by the airline. The Court noted, however, that the motions judge had the discretion to determine a fair apportionment of the debt incurred by the airline as long as the aim of the provision, i.e., that the airport authorities and NAV Canada be fully paid, was met. Ogilvy Renault LLP acted for a number of airports in this case. For more information, please contact Richard L. Desgagnés or John T. Porter.

In Jesuit Fathers of Upper Canada v. Guardian Insurance Company, 2006 SCC 21, it was held that coverage is not necessarily available under a claims-made insurance policy, even when the injury is first discovered during the policy period. Coverage is conditional on an actual "claim" being made against the insured before the expiry of the policy. At common law, a claim is considered initiated only upon the communication by a third party that it intends to hold the insured liable for damages. While this communication may occur indirectly through an intermediary, it is only a legitimate claim if the intermediary is making such communication in accordance with the third party's intentions, knowledge and consent. While the ruling provides guidance on interpreting claims-made insurance policies, the prudent course is still to report any circumstances that might give rise to a claim to an insurer at the earliest opportunity in order to avoid coverage issues. For more information, please contact Peter J. Stanford.

In Buschau v. Rogers Communications Inc., 2006 SCC 28, the Supreme Court of Canada confirmed that common law trust principles do not apply to the termination of a pension plan. Given that pension plans, including their termination and the distribution of their assets, are heavily regulated, the Court held that the explicit provisions of the relevant legislation trump common law principles, including the common law rule that a trust can be varied or terminated with the consent of all the beneficiaries of the trust, being of full legal capacity.

The Court rejected the application of the common law rule regarding termination of a trust for a number of reasons. First, pension plans are heavily regulated. Second, the trust agreement and the pension plan are to be considered separately in that the application of trust principles alone to the plan would create an awkward juridical status. Third, employers establish the plans, yet the common law allows no room for the employer's interests to be considered. Fourth, pension plans have broad social purposes which should be considered by the appropriate regulator in the context of the applicable regulations. While the Court confirmed that the Pension Benefits Standards Act, 1985 is not a complete code, it should be used where it provides recourse to pension plan members. For more information, please contact J. David Vincent.

In Daviault c. Climatisation GR inc., 2006 QCCA 689 (French only), the Quebec Court of Appeal, reversing the decision of a motions judge, held that in spite of the fact that misrepresentations or wrongful inducements to enter into a contract contained individual subjective elements specific to each claimant, a class action was an appropriate vehicle to commence proceedings on behalf of consumers based on that cause of action. For more information, please contact Sophie Perreault.

On May 18, 2006, the Supreme Court of Canada granted leave to appeal the decision of the Quebec Court of Appeal in Experts en traitement de l'information (ETI) Montréal inc. (Syndic de) (French only), 2005 QCCA 1257. In that case, the Quebec Court of Appeal, reversing a decision of the Chief Justice of the Superior Court, held that, where neither the bankrupt, the creditors nor any other person have sought the protection of section 37 of the Bankruptcy and Insolvency Act within a reasonable time, section 37, despite its public policy status, cannot override an arbitration clause in a contract. In this case, the trustee had applied to the Bankruptcy Court to cancel a contract he had entered into with a tax adviser to prepare and file tax returns on behalf of the bankrupt debtor. For more information, please contact Sylvain Rigaud.

In Childs v. Desormeaux, 2006 SCC 18, it was held that, as a general rule, the host of a private party does not owe a duty of care to a third-party highway user injured by an intoxicated guest. While the unanimous decision of the Supreme Court is a welcome relief to social hosts and their insurers, the Supreme Court left open the possibility that there could be a potential finding of liability if the host's conduct implicates him or her in the creation or exacerbation of the risk. For more information, please contact Randy C. Sutton.

In Bisaillon v. Concordia University, 2006 SCC 19, the Supreme Court held, in a dispute concerning the application of a collective agreement, that the class action regime is incompatible with the exclusive jurisdiction of grievance arbitrators. Where a collective agreement governs the matter under dispute, grievances must be submitted by the union to a labour arbitration tribunal and, as such, individual employees lose their right to act independently or as representatives bringing forward class action suits. Instead, they entrust their representation to their union. The class action regime does not alter the jurisdiction of courts and tribunals or create new substantive rights, except as provided by law.

Similarly, in Pednault c. Compagnie Wal-Mart du Canada (French only), 2006 QCCA 666, the Quebec Court of Appeal held that the fact that workers were invoking rights protected by the Quebec Charter of Human Rights and Freedoms did not permit them to launch a class action against an employer, as the claim was to be heard by an arbitrator who had sole jurisdiction pursuant to the Canada Labour Code. For more information, please contact Sylvie Rodrigue or D. Michael Brown.

Members of Ogilvy Renault's Litigation Group will be speaking at the following events:

CHICAGO # Dana B. Fuller and Robert L. Armstrong will be leading a Martindale-Hubbell Counsel to Counsel Best Practices Summit in Chicago to be held on September 12 and 13. The topic of the summit will be Damage Control: Corporate Counsel's Role in Containing and Resolving Corporate Crises. For more information, please contact Dana B. Fuller or Robert L. Armstrong.

TORONTO # Martha A. Healey and Paul Prosterman will speak at the Canadian Institute's National Forum on Product Liability in the Pharmaceutical Sector: Practical Strategies to Reduce Risk and Ensure Compliance, to be held on September 18 and 19. Martha will speak on Reducing the Risk of Product Liability Claims Arising from Marketing and Advertising Products, while Paul will speak on Allocating Loss Arising from Product Liability Claims # An Insurance Perspective. For more information, please contact Martha A. Healey or Paul Prosterman.

OTTAWA # The Honourable Pierre A. Michaud, O.C., Q.C., will speak at the Association of Court Administrators conference on the topic of Independence and Accountability of Courts: Striking a Balance on September 19. For more information, please contact Pierre A. Michaud.

SAINTE-ADÈLE # The Honourable Pierre A. Michaud, O.C. Q.C., will speak to the Association des juges municipaux du Quebec on L'indépendance judiciaire et l'impartialité on September 22. For more information, please contact Pierre A. Michaud.

CHICAGO # Stephen L. Drymer will speak at the International Bar Association (IBA) Annual Meeting in Chicago, to be held between September 17 and 22, on the topic of Investment Treaty Arbitration. For more information, please contact Stephen L. Drymer.

OTTAWA # Martha A. Healey will speak at the Canadian Institute's 6th Annual Advanced Administrative Law and Practice Seminar on October 18 and 19 in Gatineau-Ottawa. Martha's topic is Getting Up to Speed: An Update on Key Administrative Law Decisions from Across Canada. For more information, please contact Martha A. Healey.

KINGSTON # Steve J. Tenai will speak at the Queen's University Symposiums on Class Actions on September 29. For more information, please contact Steve J. Tenai.

TORONTO # Randy C. Sutton recently spoke at the British Columbia Continuing Legal Education Society's Commercial Litigation Conference. Randy spoke about the use of technology in the management of documents in commercial litigation files. For more information, please contact Randy C. Sutton.

MONTRÉAL # Stephen L. Drymer has been recognized by the Global Arbitration Review as one of the leaders among lawyers under 45 practising in the area of international arbitration.

TORONTO and MONTRÉAL # Robert L. Armstrong and Pierre Bienvenu, both members of the Litigation Group, are two of the seven partners at Ogilvy Renault who appeared in the 2006 LEXPERT Guide to the 100 Most Creative Lawyers in Canada. The other Ogilvy Renault partners ranked in this guide are: Jacques Demers, Paul Raymond, James A. Riley, Norman M. Steinberg, and Derrick C. Tay. In addition, the magazine named 40 corporate lawyers and 25 litigators to watch over the next few years. Montreal's Sylvie Rodrigue and Toronto's Dany H. Assaf were highlighted on the litigators list, while Solomon Sananes was included on the corporate lawyers list.

MONTRÉAL # L. Yves Fortier C.C., O.Q., Q.C., Chairman of Ogilvy Renault, has been appointed as the negotiator for the Government of Quebec in comprehensive territorial negotiations with the Innu. Yves will head the government's negotiating team and will be assisted by Jean G. Bertrand, National Chair of Ogilvy Renault's Litigation Group.

L. Yves Fortier has been named Officer of the Ordre national du Québec, one of the most prestigious honours bestowed by the Government of Quebec. Each year, the Ordre recognizes exceptional Quebeckers who have contributed to the prosperity and renown of Quebec, and whose actions, qualities and abilities are a source of admiration for the province.

For further information, please contact one of the following lawyers:

Montréal

Richard L. Desgagnés    (514) 847-4431
rdesgagnes@ogilvyrenault.com

Toronto

Randy C. Sutton     (416) 216-4046
rsutton@ogilvyrenault.com

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