Oct 27, 2016

Leaves to Appeal are generally decided in one of two ways: granted or dismissed – with or without costs. On October 20, 2016, the Supreme Court of Canada took the relatively rare step (in one day) of remanding three Leave to Appeal applications back to their respective Courts of Appeal for disposition in accordance with Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37:

  1. Allianz Global Risks US Insurance Company/Compagnie d’assurance Allianz risques mondiaux E.-U. et al. v. Acciona Infrastructure Canada Inc. et al. (S.C.C. file no. 36660, C.A. citation: 2015, BCCA 347).
  2. Celia Sankar v. Bell Mobility Inc. (S.C.C. file no. 37045, C.A. citation: 2016 ONCA 242).
  3. Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc. (S.C.C. file no. 37039, C.A. citation: 2016 ONCA 436).

Each of these matters dealt with an approach to standard of review issues set out in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53. In Ledcor, however, the Court held there was a modification to the Sattva standard of review analysis for standard form contracts.

Standard of review concerns having been allayed, by Ledcor the SCC exercised its discretion under subsection 43(1.1) of the Supreme Court Act: “Notwithstanding subsection (1), the Court may, in its discretion, remand the whole or any part of the case to the court appealed from or the court of original jurisdiction and order any further proceedings that would be just in the circumstances.” As such, the Courts of Appeal can now rehear (or “order any further proceedings”) the above three cases with the benefit of the Supreme Court’s guidance in Ledcor.

We note the Supreme Court of Canada did not remand Chicago Title Insurance Company of Canada v. Paul MacDonald et al.– even though it too dealt with standard of review. Instead, the Leave to Appeal in that matter was dismissed with costs. (S.C.C. file no. 36830, C.A. citation: 2015 ONCA 842).

The language of the Supreme Court Act provides little instruction for litigants as to the Court’s justification for remanding one decision but not others. That being said, it may be that the reasons of the Ontario Court of Appeal in Chicago Title are more consistent with the Supreme Court’s judgment in Ledcor. For instance, at para. 32 of Chicago Title, the Court of Appeal expressed the view that the relative importance of the surrounding circumstances is largely dependent on the nature of the contract. Similar language is in the Ledcor decision (see, for example, para. 31).