Posts Tagged ‘Canada’
April 18, 2013
Kent E. Thomson and Nicholas Van Exan (Davies Ward Phillips & Vineberg LLP) have posted a working paper entitled: “Unpacking Pandora’s Box: Consumer Arbitration Law after Seidel”. The abstract reads:
Until a few years ago, scholars and practitioners shared in the view that Canada was an “arbitration-friendly” jurisdiction. Canadian courts, and in particular the Supreme Court of Canada, earned this reputation through a series of important decisions in which arbitration clauses were enforced in the consumer protection law context. These decisions reflected an emerging consensus among jurists that arbitration was a system of equal importance and legitimacy to the judicial system policed by the courts. Or so it appeared.
In 2011, the Supreme Court of Canada released its decision in Seidel v. Telus Communications Inc., in which a narrow majority of the Court held that an arbitration clause contained in a standard consumer contract was void in respect of certain provisions of the British Columbia Business Practices and Consumer Protection Act. Superficially, Seidel signaled a small but innocuous change to the Supreme Court’s approach to adjudicating statutory rights. The implications of the Court’s decision, however, are potentially far-reaching. In Seidel, the Supreme Court re-ignited a longstanding debate over the legitimacy of arbitration as a means of resolving consumer-related disputes.
This paper explores the law of consumer arbitration both before and after the Supreme Court of Canada’s landmark decision in Seidel. The authors find that Seidel re-opened what appeared in Canada to be a firmly closed Pandora’s Box. Whereas before Seidel courts would not interfere with arbitration agreements absent clear and express legislative language to the contrary, today no such certainty prevails. Contrary to the direction recently taken by U.S. courts, Seidel permits Canadian courts to rule against the arbitration of consumer claims on the basis of implied legislative intent and even at the expense of the arbitrator’s jurisdiction. The resulting uncertainty created by this approach means that counsel should, now more than ever, draft arbitration agreements with a view to their eventual litigation.
Download a pdf copy of the paper via SSRN here.
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Tags:Arbitration clause, Canada, Class action, Consumer Protection, Court, Law, Supreme Court, Supreme Court of Canada
Posted in arbitrability, arbitration, Arbitration Act, arbitration clause, class action, class actions, consumer protection, Consumer Protection Act, Seidel v. Telus Communications Inc., Supreme Court of Canada | Leave a Comment »
April 5, 2013
The Supreme Court of Canada has just released a significant decision on issue estoppel and police disciplinary proceedings in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (SCC). (more…)
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Tags:British Columbia, Canada, Court of Appeal, estoppel, Supreme Court of Canada
Posted in administrative dismissals, administrative law, estoppel, issue estoppel, parallel proceedings, procedural fairness, Procedural Justice, procedural rights, procedure, Procedure vs. Substance, Supreme Court of Canada | 1 Comment »
March 27, 2013
All PIA flights are Non-smoking. (Photo credit: Wikipedia)
In Kazi v. Qatar Airlines, 2013 ONSC 1370 (CanLII), the plaintiff boarded Air Canada flight 856 travelling from Toronto Pearson Airport to London Heathrow, and thereafter boarding a connecting flight to Doha, Qatar on Qatar Airlines, with an ultimate destination of Dhaka, Bangladesh.
The trip was, to put it mildly, an eventful ride. (more…)
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Tags:Canada, Dhaka, Doha, London, Montreal Convention, Ontario, Qatar, Qatar Airlines, Qatar Airways
Posted in Club Resorts Ltd. v. Van Breda, forum non conveniens, jurisdiction, jurisdiction simpliciter, Muscutt factors, Van Breda, Van Breda v. Village Resorts Ltd. | Leave a Comment »
March 14, 2013
In Brown v. Belleville (City), 2013 ONCA 148 (Ont. C.A.), the Court of Appeal for Ontario has signalled that the common law doctrine of privity of contract, while not yet pronounced dead, struggles on life support. (more…)
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Tags:Canada, Canadian Contract Law, London Drugs, Privity of contract, Supreme Court
Posted in commercial law, commercial litigation, Common law, contract, contract interpretation, Court of Appeal for Ontario, courts, privity | 1 Comment »
March 7, 2013
The Supreme Court of Canada today granted leave to appeal in Estate of the Late Zahra (Ziba) Kazemi et al. v. Islamic Replubic of Iran et al. (Que.) (Civil) (By Leave) (35034) Coram: McLachlin / Abella / Cromwell.
Here is the SCC summary:
Canadian Charter of Rights and Freedoms – Public International Law – Jurisdictional immunity – Applicants beginning legal proceedings in Quebec against Iran, Iranian Head of State and other state officials in relation to alleged detention, torture and death of Canadian citizen in Iran – Defendants bringing motion to dismiss action as barred by State Immunity Act – Whether State Immunity Act bars civil actions initiated in Canada against a foreign State for acts of torture – Whether Canada’s obligation under United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment requires it to provide civil remedy to victims of torture occurring in foreign state – Whether s. 3(1) of State Immunity Act infringes s. 2(e) of Bill of Rights or s. 7 of the Charter by barring proceedings filed by Applicants – Whether the psychological harm caused to a victim of torture by inability to seek redress is sufficient to attract protection of s. 7 of Charter – Whether jurisdictional bar created by s. 3(1) of State Immunity Act is compatible with principles of fundamental justice enshrined in Bill of Rights and Charter – Whether the Court of Appeal erred in determining that state immunity applies to lower level state officials allegedly responsible for acts of torture – Canadian Bill of Rights, S.C. 1960, c. 44, ss. 2(e) – State Immunity Act, R.S.C., 1985, c. S-18, ss. 3 and 6 – Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85
In 2003, Zahra Kazemi, a Canadian citizen, was allegedly arrested, detained, tortured and killed by State authorities in Iran. Against the wishes of her family and of Canadian authorities, her remains were buried in Iran.
Her son, Stephan Hashemi, acting in his capacity as liquidator of his mother’s estate as well as in his personal capacity subsequently filed a civil liability claim in Quebec against Iran, the Head of State, the Chief Public Prosecutor as well as the former Deputy Chief of Intelligence for the prison in which Mrs. Kazemi was held. The claims of the Estate were for damages for the pain and suffering of Mrs. Kazemi in relation to her abuse, sexual assault, torture and death. The claim filed by Mr. Hashemi in his personal capacity sought damages for his pain and suffering provoked by the arrest, torture and death of his mother. Exemplary and punitive damages were also sought by the Estate and by Mr. Hashemi for the alleged unlawful and intentional interference with the rights and freedoms of both Mrs. Kazemi and her son. Lastly, the action sought an order that the respondents be required to disinter and release Mrs. Kazami’s remains so that they may be returned to Canada for an autopsy and burial.
The respondents brought a motion to dismiss the action on the ground that the suit was unfounded in law, alleging that the action was barred due to the application of s. 3 of the State Immunity Act of Canada, R.S.C. 1985 c. S-18 (“SIA”) which, as a general principle, prohibits lawsuits against foreign States before Canadian courts. Mr. Hashemi and the Estate countered with a constitutional challenge alleging that, if the State Immunity Act barred their claims, that Act was contrary to s. 2(e) of the Canadian Bill of Rights as well as s. 7 of the Charter insofar as it would deprive them of the right to seek a civil remedy against Iran in Canada.
For an analysis of the Quebec Court of Appeal decision in Kazemi, see my previous post: Quebec Court of Appeal Upholds State Immunity for Torture.
Stay tuned.
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Tags:Canada, Canadian Bill of Rights, Evin Prison, International Court of Justice, Iran, Kazemi, Quebec, Quebec Court of Appeal, Supreme Court of Canada, Tehran, Zahra Kazemi
Posted in abuse, International, international human rights, international litigation, jurisdiction, jus cogens, justice, Quebec Court of Appeal, state immunity, State Immunity Act, Supreme Court of Canada, torts, torture, Zahara Kazemi | Leave a Comment »
Antonin I. Pribetic
