February 27, 2017;  Mark Veneziano, Margaret Robbins

The hardest mistake to fix in litigation may be missing the limitation period. Almost every other mistake can be fixed, but missing that critical window for bringing a claim can be catastrophic.

December 19, 2016;  Scott Rollwagen

Kierkegaard famously observed that life can only be understood backwards. Many a commercial lawyer finds this easy to understand. It is a reality of modern commercial life that increasingly complex and sophisticated transactions can have implications that are not understood or anticipated when they are executed, but only become clear later, and in hindsight. This may especially be the case where...

November 25, 2016;  Sam Johansen

All professionals deal with difficult clients from time to time. Difficult clients are often characterized by an aversion to receiving negative opinions and a refusal to heed the counsel of the professionals they have retained. A natural temptation when dealing with such clients might be to stop giving negative opinions to them and to instead focus on simply completing the tasks which the client...

November 18, 2016;  Scott Rollwagen

“Privacy is something you can sell, but you can't buy it back.” ― Bob Dylan

November 15, 2016;  Patrick Healy

Is it improper for an opinion expert to hire his or her own lawyer to help prepare an opinion? That was the issue in the recent decision of Justice Perell in Wright v. Detour Gold. Justice Perell ruled that there was nothing improper in an expert retaining counsel to assist with the preparation of the opinion. The reasons are interesting in their conceptualization of the expert’s overriding duty...

November 09, 2016;  Chris Kinnear Hunter

Businesses need to be able to resolve disputes quickly and effectively. For that reason, the Ontario Business Corporations Act (the “OBCA”) provides that any appeal of an order made under the OBCA lies to the Divisional Court (a special branch of the Superior Court of Justice), instead of the Court of Appeal. In theory, appeals to the Divisional Court are resolved more quickly than appeals to the...

August 02, 2016

Barrick Gold Corporation’s disclosure, on April 10, 2013, that a Chilean court had issued an interlocutory order suspending the construction of its Pascua-Lama mine led to a substantial drop in its share price. This was further exacerbated the following month, when Chilean environmental regulators found serious environmental violations and shut down the project. Both Rochon Genova LLP (“Rochon”)...

June 03, 2016;  Robert Trenker

Brevity is not always a virtue, especially when a trial judge’s decision leaves the palate of an appellate court dry. The line between insufficient reasons and succinctness was explored most recently in Dovbush v. Mouzitchka.

December 08, 2015

What happens when you take the unusual step of freezing your own assets with a Mareva injunction, but later find you need to access the funds? In Yan v. Chen, 2015 ONSC 4149, the Ontario Superior Court considered an unusual request — a motion by the plaintiffs to vary a Mareva injunction they obtained in respect of their own bank account.

September 15, 2015;  Chris Kinnear Hunter

The Supreme Court of Canada has released its highly anticipated decision in Chevron Corp. v. Yaiguage, 2015 SCC 42.

August 20, 2015;  Eli S. Lederman

In a recent decision, the Ontario Superior Court awarded costs on a partial indemnity scale which constituted 75% of the costs actually incurred by the successful party. The decision demonstrates the possibility of a generous costs award on a partial indemnity scale where the issues at stake are important and complex, and both written materials and oral submissions are of high calibre.

August 14, 2015

It is league table season. The various ratings agencies issue their lists of "best this" or "best that" in various categories, and simultaneously interview for next year's "best that" and "best this". The patent litigation lists remain strangely impervious to gender equality. I have been reflecting on why that should be.

August 11, 2015;  Constanza Pauchulo

The Court of Appeal for Ontario, in Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc., 2015 ONCA 465, recently affirmed that exceptions to the "fresh start" rule in bankruptcy must be construed narrowly and applied only in clear cases. The Court grounded its ruling in what it characterized as the "twin" goals of the Bankruptcy and Insolvency Act: (1) the equitable distribution of the...

July 29, 2015

In PDM Entertainment Inc. v. Three Pines Creations Inc and Louise Penny, the Ontario Court of Appeal had to decide who was entitled to produce the next television adaptation of the fictional Chief Inspector Gramache.

July 15, 2015;  Anne E. Posno

The Ontario Court of Appeal ruled in P.A.R.C.E.L. Inc. v. Acquaviva, 2015 ONCA 331 that section 8 of the Interest Act may apply to a promissory note even where it is not directly secured by a mortgage.

July 08, 2015;  Jaan Lilles

The Quebec Court of Appeal affirmed the trial decision in Dunkin' Brands Canada Ltd v. Bertico Inc. establishing a duty on franchisor Dunkin' Brands to take reasonable steps to protect and enhance the brand in the face of competition. The effect of the decision will have a lasting and potentially far reaching impact on the duties of parties to franchise agreements.

June 26, 2015;  Mark Veneziano

Lo Faso brings up the tension between fair and just court process and ensuring that all facts are available to adjudicate a dispute.

June 23, 2015

In Chandra v. CBC, 2015 ONSC 2980, Justice Graeme Mew rejected the CBC's argument that the jury notice should be struck because the issues and the expert evidence were too complex for the six randomly-drawn members of the public. However, the Court held that it might revisit that ruling as the trial progressed – the "wait and see" approach.

May 27, 2015;  Nina Bombier

The Liquor Control Board of Ontario has lost a protracted dispute with the Information and Privacy Commissioner ("IPC") over its right to collect the personal information of wine club members in the recent case of Liquor Control Board of Ontario v. Vin De Garde Wine Club, 2015 ONSC 2537.

May 21, 2015;  Anne E. Posno

In summer 2013, Bell announced the November launch of its Relevant Ads Program (RAP). RAP involved the use of Bell customer personal information for the purpose of delivering targeted ads to Bell customers. Bell would charge a fee to advertisers engaged in the program.

May 07, 2015;  Chris Kinnear Hunter

Whose law governs contractual disputes when the parties are in different jurisdictions and the contract itself is silent on the matter?

May 05, 2015;  Scott Rollwagen

It is commonly accepted that the evidence of expert witnesses must be impartial and that they owe a duty to the court to give fair, objective and non-partisan opinion evidence.

April 30, 2015

In Ledcor Construction Limited v. Northbridge Indemnity Insurance Company, 2015 ABCA 121, the Alberta Court of Appeal was required to rule on the meaning of a provision of an insurance policy covering all loss suffered during the construction of an office tower (the "Policy").

April 22, 2015;  Andrew Parley, Constanza Pauchulo

A fundamental purpose of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the "Act") is the financial rehabilitation of the "honest but unfortunate" debtor. One way that this purpose is achieved is through the automatic stay of proceedings granted under section 69(1)(a) of the Act.

April 16, 2015;  Nina Bombier

The recent decision of the Ontario Superior Court in Versa Fittings v. Berkley Insurance Co. (2015 ONSC 1756) reinforces that a Rule 21 motion is an expedient way to secure a ruling on whether an insurer's duty to defend has been triggered.

April 08, 2015;  Peter J. Osborne

Bankruptcy provides debtors with a fresh start. A clean slate, free from previous financial obligations. The general rule is that all previous debts are extinguished, subject to a very narrow band of exceptions, where the onus is on the creditor to establish the survival of the debt obligation post-bankruptcy.

April 07, 2015;  Lindsay Beck

The political blogosphere is rude, aggressive and insulting, but the ruling in Baglow v. Smith (2015 ONSC 1175) suggests that it is nonetheless a tough forum in which to make out a case of defamation.

April 02, 2015;  Lawrence E. Thacker

The Ontario Divisional Court has recently affirmed the importance of access to justice as a factor in determining whether to certify a proposed class action.

April 01, 2015;  Anne E. Posno

At trial, the Judge held that the plaintiff and the defendant real estate agents should share the 10% commission on the sale of a plaza and gas station.

March 30, 2015;  Matthew B. Lerner

An ongoing insolvency proceeding under the Companies' Creditors Arrangement Act can now be added to the short list of circumstances in which a court will decline to follow a forum selection clause in a commercial contract.

March 26, 2015;  Rebecca Jones

In Salasel v. Cuthbertson (2015 ONCA 115), the Court of Appeal provided welcome clarification on the doctrine of absolute privilege, in a decision that revisited the case of Hassan Rasouli.

March 23, 2015;  Dena N. Varah

Administrative lawyers and regulators should take note: in Swart v. College of Physicians and Surgeons of Prince Edward Island the Prince Edward Island Court of Appeal provided express guidance in the prosecution of complaints against doctors.

March 16, 2015

In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Supreme Court clarified and reformulated the law on constructive dismissal.

March 12, 2015;  Anne E. Posno, Chris Kinnear Hunter

On an appeal from a Rule 21 motion, the Court of Appeal ruled that the Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A (PHIPA) does not create an exhaustive code precluding a civil action for intrusion upon seclusion.

March 10, 2015;  William C. McDowell

As the internet continues to develop into the primary forum for expression in our society, defamation actions increasingly involve comments made online.

March 06, 2015;  Lindsay Beck

Score one for science, zero for journalistic integrity and a point for an interesting advance in the law of defamation.

March 05, 2015;  Jaan Lilles

The Nova Scotia Supreme Court ruled late in January that the Nova Scotia Barristers Society ("NSBS") must accredit law degrees granted by Trinity Western University ("TWU") in Langley, British Columbia.

March 03, 2015;  Lawrence E. Thacker

The Sino-Forest class action has been certified, and leave was granted to bring a claim under the Securities Act for secondary market misrepresentations.

March 02, 2015;  Monique Jilesen

The "corporate veil" is an old and well-establish concept. Corporations are separate legal entities under the law and, generally, liability will not flow through the corporation and onto the owners and directors. This is why a corporate bankruptcy doesn't result in a flurry of debt collectors knocking on the door of every shareholder.

February 23, 2015

The Ontario Court of Appeal recently had a chance to consider the law regarding exclusion clauses in the lease context.

February 20, 2015;  Anne E. Posno

On an appeal from an arbitration under the Condominium Act, in 90 George Street Ltd. v. Ottawa Carleton Standard Condominium Corporation No. 815, 2015 ONSC 336, Justice Patrick Smith applied a correctness standard of review.

February 12, 2015;  Nina Bombier, Jaclyn Greenberg

The Court of Appeal recently released a decision that serves as a reminder to all counsel: never lose sight of who you act for.

February 05, 2015

The Court of Appeal has affirmed the robust gatekeeping function to be exercised by trial courts in the admission of expert evidence (Meady v. Greyhound, 2015 ONCA 6).

February 03, 2015;  Anne E. Posno, Jaclyn Greenberg

An Ontario decision has expanded the application of public policy to void a will, and in so doing has raised concerns of floodgates and abuse. In Spence v. BMO Trust Company, 2015 ONSC 615, Justice Gilmore determined that the deceased, who was black, disinherited his adult daughter because she had a child with a Caucasian man – "a clearly stated racist principle".

February 02, 2015

In what circumstances is a failure to disclose a breach of the duty of honesty? A recent decision of the Ontario Superior Court, Lavrijsen Campgrounds Ltd. v. Reville, 2015 ONSC 103, provides an occasion to reflect on this issue, arising from the Supreme Court of Canada's ruling in Bhasin v. Hrynew, 2014 SCC 71. In Bhasin, the Court recognized the "general organizing principle of good faith" in...

January 27, 2015

The Supreme Court in Tervita Corp. v. Canada (Commissioner of Competition) held that a merger between landfill operators would prevent competition but provide efficiency gains, and allowed the deal to proceed. In so doing, it has provided important guidance on three issues:

January 23, 2015;  Paul-Erik Veel

In its recent decision in Gutowski v. Clayton, 2014 ONCA 921, the Ontario Court of Appeal provided helpful advice to two sets of professionals: municipal councillors and lawyers. First, the Court confirmed for municipal councillors that they do not enjoy absolute privilege for defamatory statements they make during municipal council meetings. Second, the Court signalled to litigators that a Rule...

January 21, 2015;  Rebecca Jones

The Ontario Superior Court of Justice has reinforced the principle that a person's privileged communications with his or her lawyer should be strictly protected, except in narrow circumstances.

January 07, 2015;  Jaclyn Greenberg

Defendants in consumer class actions should be on notice, following two recent decisions that used consumer protection legislation as a basis to award damages.

November 28, 2014;  Paul-Erik Veel

It's trite law that an unsuccessful litigant generally pays the successful party's costs. But what happens when the winner hired lawyers from out-of-town who had to travel regularly for the case? Does the losing party have to pay the travel costs incurred by the winner because they chose to hire out-of-town lawyers? In Matheson v. CIBC Woody Gundy, the Nova Scotia Supreme Court held that the...

November 06, 2014

The Ontario Securities Commission has vacated a 2007 settlement agreement reached between Marc McQuillen and Regulation Services (now the Investment Industry Regulation Organization of Canada ("IIROC")) [In Re McQuillen]. In February 2007, IIROC charged McQuillen and his superior at Scotia Capital, David Berry, with violations of sections 6.4 (off-market trading) and 7.7(5) (soliciting client...

October 30, 2014;  Paul-Erik Veel

Canadian Courts have been faced in recent years with a number of class actions in which employees allege that their employer improperly misclassified them as ineligible for overtime pay. The Ontario Court of Appeal's recent decision in Brown v. Canadian Imperial Bank of Commerce makes it more difficult for such claims to proceed as class actions.

October 14, 2014;  Jaclyn Greenberg

Lazy litigants beware: not only is your (in)action subject to a dismissal motion under Rule 24 of the Rules of Civil Procedure, it is also subject to the court's inherent jurisdiction. According to the Ontario Court of Appeal in Wallace v. Crate's Marine Sales Lotd, 2014 ONCA 671, inordinate delay in pursuing an action could be construed as an abuse of process, and as undermining the...

September 25, 2014;  Lindsay Beck

At least one Superior Court judge seems to think so. In a decision on costs, Justice David Brown made the following comment regarding the claims for photocopying:

September 22, 2014;  Jaclyn Greenberg

Call it what you want: unethical tactics, improper, vexatious, or Organized Pseudolegal Commercial Arguments (OPCA) – the term coined by one Alberta judge – but actions engineered to frustrate the legal rights of governments, corporations and individuals will be rebuked for what they are: a shake down.

September 18, 2014;  Paul-Erik Veel

The British Columbia Supreme Court's decision in Low v. Pfizer Canada Inc., 2014 BCSC 1469 could radically change the legal landscape for patent law in Canada. Patent law has thus far been entirely statutory rather than a product of the common law; courts had not recognized any common law rights or remedies in relation to patents. The decision of Justice Smith changes that, and in so doing...

September 16, 2014 (Toronto);  Brian Kolenda

The Supreme Court of Canada's decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 ("Sattva") appeared to herald a new era of deference to arbitrators: on at least ordinary questions of law, courts are now to review arbitration awards on a reasonableness standard. Saatva also confirmed that questions of contractual interpretation are usually questions of mixed law and fact. This...

September 12, 2014;  Jaclyn Greenberg

Relief from campaign finance rules may not be hard to come by if the wrongdoing was done in good faith. In Obina v. City of Ottawa, aspiring city councillor Lilly Obina was granted relief from penalty, despite contravening rules under the Municipal Elections Act ("MEA") regarding the filing of financial statements for her 2010 campaign.

September 11, 2014

The tort of unlawful interference with economic relations is surprisingly slippery, especially when pleaded alongside defamation. Earlier this year, the Supreme Court of Canada in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 referred to the tort's scope as "unsettled" before departing from several recent appellate decisions on the topic. In Resolute Forest Products Inc. et al. v...

September 09, 2014

Avoiding a written contract is no assurance that parties can maintain maximum flexibility in their dealings. In S & J Gareri Trucking v. Onyx Corporation, 2014 ONSC 476, Onyx was successful in a tender with the City of Mississauga (the "City") to provide five years of snow removal services. In so doing, Onyx indicated that it would allocate 19 trucks to providing services under the contract.