Case information
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41473
William Richard Clayton, et al. v. Attorney General of Canada
(Ontario) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2025-04-17 | Close file on Leave | |
| 2025-04-17 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2025-04-17 | Judgment on leave sent to the parties | |
| 2025-04-17 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number COA-23-CV-0026, 2024 ONCA 581, dated July 24, 2024, is dismissed with costs. Dismissed, with costs |
|
| 2025-03-03 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2024-11-08 | Applicant's reply to respondent's argument, (Book Form), Completed on: 2024-11-08, (Printed version filed on 2024-11-12) | William Richard Clayton |
| 2024-10-29 | Certificate (on limitations to public access), (Letter Form), Form 23B, (Printed version filed on 2024-11-01) | Attorney General of Canada |
| 2024-10-29 | Certificate (on limitations to public access), (Letter Form), Form 23A, (Printed version filed on 2024-11-01) | Attorney General of Canada |
| 2024-10-29 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2024-10-31, (Printed version filed on 2024-11-01) | Attorney General of Canada |
| 2024-10-02 | Letter acknowledging receipt of an incomplete application for leave to appeal, FILE OPENED | |
| 2024-10-02 | Notice of name, (Letter Form), (Printed version filed on 2024-10-02) | William Richard Clayton |
| 2024-10-01 | Certificate (on limitations to public access), (Letter Form), Form 23A, (Printed version filed on 2024-10-02) | William Richard Clayton |
| 2024-10-01 |
Application for leave to appeal, (Book Form), Missing: - Proof of service (Rec'd 2024-10-02), Completed on: 2024-10-02, (Printed version filed on 2024-10-03) |
William Richard Clayton |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Clayton, William Richard | Applicant | Active |
| Clayton, Douglas | Applicant | Active |
| Clayton, Daniel | Applicant | Active |
| Bilcon of Delaware Inc. | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Attorney General of Canada | Respondent | Active |
Counsel
Party: Clayton, William Richard
Counsel
John A. Terry
505 Burrard Street
Suite 1710, Box 31
Vancouver, British Columbia
V7X 1M6
Telephone: (604) 669-7350
Email: greg.nash@nashlitigation.com
Agent
66 Lisgar Street
Ottawa, Ontario
K2P 0C1
Telephone: (613) 501-5350
Email: dshuhaibar@ovcounsel.com
Party: Clayton, Douglas
Counsel
John A. Terry
505 Burrard Street
Suite 1710, Box 31
Vancouver, British Columbia
V7X 1M6
Telephone: (604) 669-7350
Email: greg.nash@nashlitigation.com
Agent
66 Lisgar Street
Ottawa, Ontario
K2P 0C1
Telephone: (613) 501-5350
Email: dshuhaibar@ovcounsel.com
Party: Clayton, Daniel
Counsel
John A. Terry
505 Burrard Street
Suite 1710, Box 31
Vancouver, British Columbia
V7X 1M6
Telephone: (604) 669-7350
Email: greg.nash@nashlitigation.com
Agent
66 Lisgar Street
Ottawa, Ontario
K2P 0C1
Telephone: (613) 501-5350
Email: dshuhaibar@ovcounsel.com
Party: Bilcon of Delaware Inc.
Counsel
John A. Terry
505 Burrard Street
Suite 1710, Box 31
Vancouver, British Columbia
V7X 1M6
Telephone: (604) 669-7350
Email: greg.nash@nashlitigation.com
Agent
66 Lisgar Street
Ottawa, Ontario
K2P 0C1
Telephone: (613) 501-5350
Email: dshuhaibar@ovcounsel.com
Party: Attorney General of Canada
Counsel
Andrea Bourke
Department of Justice Canada, Ontario Regional Office
120 Adelaide Street West, Suite #400
Toronto, Ontario
M5H 1T1
Telephone: (647) 256-7498
FAX: (647) 256-7471
Email: roger.flaim@justice.gc.ca
Agent
National Litigation Sector
50 O'Connor Street, Suite 500
Ottawa, Ontario
K1A 0H8
Telephone: (613) 295-0765
FAX: (613) 954-1920
Email: SCCAgentCorrespondantCSC@justice.gc.ca
Summary
Keywords
Arbitration — Commercial arbitration — Standard of Review — Relevance of Public Policy — Whether administrative law standard of review continues to apply in deciding whether commercial arbitration award exceeds terms of submission to arbitration under art. 34(2)(a)(iii) of Commercial Arbitration Code, R.S.C. 1985, c. 17 (2nd Supp.), Schedule I — Meaning of “public policy of Canada” in relation to commercial arbitration awards under art. 34(2)(b)(ii).
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The Claytons sought to develop a quarry in Nova Scotia. As part of the approvals process, a federal-provincial joint review panel acknowledged a number of benefits the project could have, and it recommended rejection of the quarry for a number of reasons. The federal and provincial Ministers followed this recommendation. The Claytons commenced an arbitration under Chapter 11 of the NAFTA. The arbitration was bifurcated into a liability and a damages stage. At the liability stage, the Tribunal held that the provincial and federal Ministers had breached their obligations under art. 1102 and 1105 of the NAFTA by, respectively, failing to treat the investments no less favourably than it had treated the investments of its own investors, and by failing to treat the investments fairly and equitably. Generally speaking, the Tribunal concluded that the joint review process was flawed.
At the damages stage, the Claytons sought damages for the profits they would have earned if the project had gone ahead. The Tribunal found that the breach of the NAFTA cost the Claytons a chance to have a fair environmental assessment process, but that they had failed to prove that they would have received the necessary approvals to develop and operate the quarry. It awarded damages in the amount of US$7 million for deprivation of a fair and non-arbitrary environmental assessment. The Claytons sought to have the decision set aside.
The trial judge dismissed the Claytons’ application to set aside the arbitral award. The Court of Appeal dismissed their appeal.
Lower court rulings
Application to set aside arbitral award made by tribunal constituted under chapter 11 of North American Free Trade Agreement as being contrary to public policy dismissed
Appeal dismissed
Filed documents
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
Not available