Norton Rose Fulbright, BD&P, BLG argue cases before Supreme Court of Canada

Norton Rose Fulbright, Burnet, Duckworth & Palmer, and Borden Ladner Gervais were all in the Supreme Court of Canada this week for cases involving tax assessments and drunk driving lawsuits. Borden Ladner Gervais also appeared in the Federal Court of Appeal alongside Davies Ward Phillips & Vineberg and McMillan, representing the defendants in a proposed class action dealing with a conspiracy to limit the supply of an electronic memory chip, with Koskie Minsky and Orr Taylor counselling the representative plaintiffs in the matter.

Supreme Court of Canada

Yves Des Groseillers and BMTC Group Inc. filed a lawsuit involving the assessments made by the Agence du revenu du Québec (ARQ). In the course of tax audits, the ARQ added amounts to Des Groseillers taxable income as additional employment income and these amounts were also added to BMTC’s payroll. Although the transactions were subject to the special rules on the issuance of securities to employees, the trial court said, Groseillers had not received any benefit and he had not paid anything to acquire the options. The case reached the SCC where Yves Des Groseillers and BMTC Group Inc. were represented by Norton Rose Fulbright Canada LLP.

Burnet, Duckworth & Palmer acted for Deans Knight Income Corporation, a Canadian public corporation that had approximately $90 million of unused non-capital losses and other deductions. The company sought to realize the value of these tax attributes so it entered into an agreement with a corporation that had expertise in arranging such transactions. Between 2009 and 2012, Deans Knight deducted most of its tax attributes to reduce its liability, but these deductions were denied. Deans Knight challenged this denial in the SCC.

Borden Ladner Gervais LLP represented Walker McColman, who was convicted of impaired operation of a motor vehicle and operating a motor vehicle while “over 80.” The police did not see any signs of impairment prior to stopping McColman on private property and there was nothing unusual about his driving. It was only when the officer approached him and spoke to him that the officer observed obvious signs of impairment and, consequently, McColman was arrested. McColman was acquitted on appeal. The Crown, in turn, elevated the case to the SCC.

Federal Court of Appeal

Koskie Minsky LLP and Orr Taylor LLP acted for Chelsea Jensen and Laurent Abesdris, the representative plaintiffs in a proposed class action lawsuit against tech manufacturers, Samsung Electronics Co. Ltd, SK Hynix Inc., and Micron Technology Inc. The case stemmed from an allegation that these manufacturers conspired to limit the supply of Dynamic Random Access Memory (DRAM) – a memory chip used in electronics—resulting in increased prices for the product. Borden Ladner Gervais LLP represented Samsung Electronics, Davies Ward Phillips & Vineberg LLP acted for SK Hynix Inc., and McMillan LLP represented Micron Technology.

Major Sobiski Moffat LLP represented Animakee Wa Zhing #37 (AWZ) First Nation in an action against the Federal Government and Manitoba Hydro concerning the Manitoba-Minnesota Transmission Project. The indigenous community asserted that the Crown failed to discharge its duty to consult AWZ with respect to the project’s impact on the tribe’s treaty and aboriginal rights. Thompson Dorfman Sweatman LLP acted for Manitoba Hydro in the proceedings before the court.

Aird and Berlis LLP represented Dr. Kevin L. Davis Dentistry Professional Corporation in its claim of input tax credits in 2015 and 2016. The Tax Court allowed the claim. The Crown elevated the case to the Federal Court of Appeal, where it argued that the Tax Court judge committed an error in law by failing to consider the status of the supply of the orthodontic appliances when provided as part of the orthodontic service, among other arguments.

Federal Court

Gowling WLG (Canada) LLP acted for Petro Plastics Corporation Ltd., Oregon Precision Industries Inc, and Responsible Plastic Use Coalition in an application for judicial review of three decisions which resulted in the adoption of regulations prohibiting the manufacture and use of “single use plastics” under the Canadian Environmental Protection Act (CEPA). The companies argued that the ban was an overall strategy to regulate the lifecycle of plastic substances, including the manufacture, use and disposal of all plastics. This purpose, according to the plaintiff companies, was ultra vires or beyond the powers of the Federal Government because under the CEPA, a substance must be shown to be “toxic” before it can be subject of regulations.

Bergman & Associates represented some Federal employees who were not vaccinated against COVID-19. These employees challenged the constitutionality of the vaccine policy for the core public administration, including the Royal Canadian Mounted Police (RCMP) issued by the Treasury Board of Canada. These unvaccinated employees alleged that the vaccine policy was a form of state coercion and state sanction imposed against them by suspending them without pay and depriving them of any employment insurance benefits. They asserted that the vaccine policy denied them the right to live free of state control of their bodily integrity.

Goodmans LLP represented Arterra Wines Canada in its application for judicial review of the refusal by the Minister of Public Safety to grant the company’s drawbacks claim for bulk spirits that it had imported into Canada and subsequently exported.

Borden Ladner Gervais LLP acted for Ocean Marine Transportation in its $3-million claim against J.P. Forestry & Environmental Ltd. for breach of contract in relation to a charter party agreement. J.P. Forestry & Environmental was represented by Baker & Cole.