At the Court: Cuerrier and Antares/Amchem Products Revisited at the SCC
At the Court is a biweekly feature profiling appeals that are scheduled to be heard at the Supreme Court of Canada.
R v DC and R v Mabior: Revising Cuerrier?
The Supreme Court will be revisiting the highly contentious Cuerrier decision on February 8 when it hears R v DC and R v Mabior together. Given the tremendous progress in the medical field in the treatment of HIV since 1998, the Court must address the meaning of “significant risk of harm” as the legal test in R v Cuerrier,  2 SCR 371.
In both DC and Mabior, the respondents were convicted by their respective trial judges for failing to disclose their positive HIV statuses to their partners. DC was charged with aggravated sexual assault in Quebec, and Mabior was charged with aggravated sexual assault in Manitoba. Both cases were overturned on appeal because the viral loads during the course of the sexual contact in question had not had the effect of exposing the partner to a significant risk of contracting the virus, or in the words of the Court in Cuerrier, “serious bodily harm.” On August 25, 2011, the Supreme Court granted leave to appeal for DC, holding that it would be heard with Mabior.
The Cuerrier court narrowly sided with Cory J to articulate a test for determining when fraud vitiates consent. In order for fraud to vitiate consent the dishonesty had to have resulted in actual harm or “a significant risk of serious bodily harm.” In this sense, knowingly exposing a sexual partner to HIV amounts to aggravated assault. But might it be time for the Supreme Court to revisit the issue?
AIDSLaw has invited Canadian and international organizations and professionals working on issues related to HIV/AIDS and in the fields of public health and law to endorse a statement establishing that people living with HIV are not criminally liable in cases where the threshold of significant risk is not met. They suggest that the criminal law be based on the best available scientific evidence, not on assumptions, prejudice or fear. In fact, studies suggest that this type of criminalization results in HIV victims being less likely to disclose. This defies the very purpose of the law laid out in Cuerrier, with the objective of making it mandatory to disclose.
While HIV still poses serious health concerns, these two cases invite Canada’s top court to determine what constitutes significant bodily harm in the context of recent medical breakthroughs in HIV/AIDS treatment.
Read more about these cases on TheCourt.ca here.
Trying for Home-field Advantage
In Momentous.ca v Canadian American Association of Professional Baseball Ltd, the Supreme Court will have the opportunity to revisit the jurisdiction test it set out in Antares Shipping Corp. v The Ship “Capricorn” et al.,  2 SCR 422 (based on the leading House of Lords decision in Spiliada Maritime Corp v Cansulex Ltd,  3 WLR 972, 3 All ER 843,  AC 460) and later clarified in Amchem Products Inc. v BC (Worker’s Compensation Board),  1 SCR 897 [Amchem Products].
Encouraged partly by a dead-last finish in standings and partly by the financial difficulties that ensued, Rapidz Baseball applied to dissolve the team it operated in Ottawa from its contract with the Can-Am Baseball League (based in North Carolina). In response, the League terminated the team’s membership, denied their application of voluntary withdrawal, and seized the team’s $200,000 surety. Based on the forum selection clause in the contract and agreement to resolve all disputes in North Carolina, the League brought a motion under Rule 21.01(3)(a) of the Rules of Civil Procedure, RRO 1990, Reg 194, to have any proceedings stayed or dismissed, claiming that an Ontario court did not have jurisdiction over the matter.
An Ontario court could gain jurisdiction if a defendant consented, was present in Ontario, or could pass the “real and substantial connection” test to explain why the case should be heard in this jurisdiction. Once any of these conditions is fulfilled, the court must then determine whether they should, in fact, take jurisdiction based on established considerations, like where the contract was signed, and what legal system it falls under (Young v Tyco International of Canada Ltd. (2008), 92 OR (3d) 161 (CA)). In this case, because the parties had agreed to resolve disputes in North Carolina, the onus shifted to the plaintiff-appellant to demonstrate why that forum is no longer suitable.
At issue for the Supreme Court now is whether, given the terms of the agreement, the Ontario Court of Appeal erred in upholding the Superior Court decision that Ontario was a forum non conveniens, having already established that the province had jurisdiction. In Amchem Products, Sopinka J addressed the dangers and injustice related to allowing parties to shop for the forum most judicially advantageous, instead of proceeding with the case in the forum most closely connected with the matter. This is to ensure that the court can contribute to creating fair and equitable results in an increasingly globalized commercial world.
It will be interesting to see whether the Supreme Court uses this case to simply reiterate its position on discouraging forum shopping, or suggest a revised test that accommodates parties with equally meritorious arguments, particularly when not one or the other will result in some kind of injustice (cf. Recherches Internationales Québec v Cambior Inc.,  QJ No. 2554, para 82).
Read more about this case on TheCourt.ca here.