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Contracting Out: Court finds contract applies over Limitations Act
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Lenczner Slaght’s SCC Leave Project Receives Precedent Innovation...View article
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November 29, 2021November 29, 2021
On the Docket
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The recent patent infringement case of Kobold Corporation v NCS Multistage Inc is interesting for two reasons: (1) it shows how a summary judgment motion can advance a case even if certain issues require a full trial; and (2) it is the first time a court has interpreted the defence of prior use since the 2018 amendments to section 56 of the Patent Act. This post considers the use of summary adjudication. Click here to read our companion post which considers the substance of the prior use defence.
January 13, 2022On January 7, 2022, the Federal Court released the public reasons in Kobold Corporation v NCS Multistage Inc. This summary judgment motion is the first judicial consideration of the prior use defence since the substantial amendments to section 56 of the Patent Act in 2018. Our comments on the procedural aspects of this summary judgment motion are available in a companion post here.
January 13, 2022The Competition Bureau’s focus on greenwashing continues to grow. This past week, the Bureau announced in a news release that it had reached a $3 million settlement agreement with Keurig Canada Inc. in respect of concerns over misleading and false claims about the recyclability of its single use Keurig K-Cup Pods. The agreement marks a growing trend in enforcement activities against “greenwashing”, the practice of making false or misleading environmental ads or claims about a product’s environmental benefits.
January 12, 2022Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on January 13, 2022.
January 10, 2022In 2021, the Canadian pharmaceutical and life sciences industries were once again at the forefront of innovation, developing and commercializing new vaccines, drugs, and medical devices. The media continued to shine a light on the advances made to protect the public from COVID-19, including regulatory approvals for new mRNA and adenovirus vector vaccines. In the pharmaceutical patent litigation arena in particular, we saw some new trends develop. There were important developments in proceedings relating to pharmaceutical patents, advances in cases and legislative developments relating to the Patented Medicine Prices Review Board (“PMPRB”) as well as judicial review applications and appeals in patent-related fields.
January 6, 2022Many of you have seen our weekly blog posts that provide predictions as to how likely it is that particular cases will get leave to the Supreme Court of Canada. Those predictions are based on a dataset of every Supreme Court leave application decision from January 1, 2018 to the present. While those predictions are one use of our data, it’s not the only use. Here we present another: a quantitative year in review of leave applications decided by the Supreme Court of Canada in 2021.
January 5, 2022At the outbreak of the COVID-19 pandemic, a buyer of any business, particularly a theater operation heavily affected by public health restrictions, might understandably ask themselves; “Can I walk away from the deal?”
December 15, 2021The bench and bar have long recognized that lengthy trials decrease access to justice. That is no surprise: trials are expensive, long trials more so, and lawyers generally think that the longer the trial, the longer it takes to receive a decision.
December 1, 2021Interventions have long been extremely common at the Supreme Court of Canada. Most cases will have at least a few interveners while particularly high profile or contentious cases may have as many as 15 or 20. In Canada (Minister of Citizenship and Immigration) v Vavilov, for example, there were 24 groups of interveners, including the Attorneys General of four provinces.
November 18, 2021For the first time, the Federal Court has dealt with the issue of whether a party is permitted to appoint co-solicitors of record. The Court held that a party may not appoint co-solicitors as of right, but it provided guidance on the circumstances in which co-solicitors may be permitted. It remains to be seen how “special” such circumstances must be, especially since such arrangements are not uncommon in modern practice.
November 17, 2021-
The application of the test for jurisdiction in the copyright context can sometimes be an exercise in gut feel. Luckily for litigants who prefer to make decisions based more on case law than feelings, the Divisional Court recently provided clarification on the application of the test for jurisdiction for statutory torts, like copyright infringement. The Ontario Divisional Court’s decision in Pourshian v Walt Disney Company (“Pourshian”), an appeal of a motion for an order to stay the plaintiff’s copyright infringement action on the basis of lack of jurisdiction, will hopefully take some of the guess work out of jurisdictional issues in the future.
October 26, 2021On September 3, 2021, the Ontario Court of Appeal (“ONCA”) released its decision in MDS Inc v Factory Mutual Insurance Company, which considered the proper interpretation of corrosion exclusions and resulting damage exceptions in standard-form property and casualty insurance policies.
September 28, 2021A recent decision of the Canadian International Trade Tribunal (CITT) provides rare guidance on the issues that can arise when counsel to an administrative tribunal enters private practice and begins to advise parties to matters before the tribunal. In Certain Container Chassis, the CITT rejected a motion seeking to remove counsel to a complainant because counsel had recently been employed by the Tribunal.
September 23, 2021In the last case heard before her retirement from the Supreme Court of Canada, and writing for a unanimous Court, Justice Rosalie Abella affirmed the Federal Court of Appeal’s ruling that tariffs set by the Copyright Board are not mandatory (York University v Access Copyright). Justice Abella also rejected the FCA’s narrow approach to fair dealing and reiterated the nature of fair dealing as a user’s right, to be approached in the educational context from a student’s perspective and not exclusively from the institutional perspective.
August 5, 2021Robin NyamekyeHere’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on July 29, 2021.
July 28, 2021Solomiya ZakharchukHere is a look at the leave application decisions that the Supreme Court of Canada will be releasing on July 22, 2021.
July 20, 2021James W. HutchinsonHere’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on Thursday, July 15, 2021.
July 13, 2021Blerta GjociHere’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on July 8, 2021.
July 6, 2021In a May 12, 2021 decision (Hoffmann-La Roche Limited v Sandoz Canada Inc) from Justice Manson of the Federal Court, the asserted claims of two patents were found to be invalid as methods of medical treatment, which are not patentable in Canada. The asserted claims of both patents were also found invalid on the basis of obviousness, and one patent’s asserted claim was additionally invalid for obviousness-type double patenting. No direct infringement was found for either patent, but induced infringement of certain claims of one patent was also found.
July 6, 2021Three months ago, we launched our Supreme Court of Canada Leave Project. Part of that project is a machine learning algorithm that provides predictions of the likelihood of different cases getting leave to the Supreme Court. Since launch, we’ve made fourteen weekly predictions for leave applications to the Supreme Court of Canada. Our model has provided predictions for the likelihood that leave would be granted from 123 decisions of Courts of Appeal across the country.
June 25, 2021-
Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on June 24, 2021.
June 22, 2021As part of our series on summary adjudication, we previously commented on the Federal Court’s recent use of a summary trial to resolve a patent infringement dispute. The abbreviated procedure of a summary trial addresses many of the Federal Court’s traditional concerns with summary judgment (e.g., lacking live evidence).
June 21, 2021Copyright holders in Canada have scored a major victory in the fight against online piracy. The Federal Court of Appeal (“FCA”) in Teksavvy Solutions Inc v Bell Media Inc recently affirmed that site blocking injunctions may be ordered against Internet Service Providers (or ISPs), even as third parties to a copyright infringement action.
June 18, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on June 17, 2021.
June 15, 2021Since the amendments to the PM(NOC) Regulations in 2017, both generic and brand side litigants have struggled with the question of whether the second person’s Notice of Allegation governs the issues in the proceeding, or the Statement of Defence. The Federal Court of Appeal has answered in this week’s decision in Sunovion Pharmaceuticals Canada Inc v Taro Pharmaceuticals Inc: it is the Statement of Defence.
June 11, 2021As many will know, Lenczner Slaght maintains an ongoing database of every application for leave to appeal to the Supreme Court of Canada that was decided from January 1, 2018 onward. We use this data to train a machine learning algorithm to predict the likelihood of cases getting leave, which we use for various purposes.
June 11, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on June 10, 2021.
June 8, 2021As vaccine rollouts quicken and Ontario looks forward to a loosening of COVID-19 restrictions, the Ontario Bar Association and the Commercial List Users’ Committee (CLUC) convened its annual Education Day on June 2, 2021.
June 7, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on June 3, 2021.
June 1, 2021Adam H. KanjiHere’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on May 27, 2021.
May 26, 2021-
Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on May 20, 2021.
May 18, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on May 13, 2021.
May 11, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on May 6, 2021.
May 4, 2021On April 29, 2021, Canadian Lawyer held the webinar titled “Virtual Advocacy: Views from the Bench”. Justices Kathryn N. Feldman (Ontario Court of Appeal), David M. Masuhara (British Columbia Supreme Court), and Roger R. Lafrenière (Federal Court) joined Mediator and Arbitrator, Robin Dodokin, to share their views on how advocates can succeed and adapt in virtual proceedings. As lockdowns remain in place across the country, their advice was timely and valuable.
May 3, 2021Peter Griffin, Lawrence Thacker and Derek Knoke acted as counsel to G2S2 Capital Inc., a bondholder and lender to Calfrac Well Services Ltd. (“Calfrac”) in a restructuring and recapitalization implemented pursuant to a plan of arrangement (the "Plan of Arrangement") under the Canada Business Corporations Act ("CBCA").
April 28, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 29, 2021.
April 27, 2021On April 9, 2021, The Advocates’ Society held a virtual panel discussion on the topic of Commercial List Advocacy. Co-chaired by Peter Osborne of Lenczner Slaght and Deborah Palter of Thornton Grout Finnigan LLP, Commercial List judges and seasoned practitioners shared the dos and don’ts of 9:30 appointments, pre-trial hearings and judge-led mediations. We also heard directly from judges about what they want to see when you appear before them and received practical advice on effective oral advocacy in the era of Zoom-court. What follows is a short summary of the key takeaways.
April 21, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 22, 2021.
April 20, 2021William C. McDowell & Adil AbdullaIn brief, the decision by Justice Boswell of the Commercial List suggests that solicitor/client privilege has been narrowed, and litigation privilege has become easier to lose. For seven years, Catalyst Capital and West Face Capital have been at war. Their latest skirmish, over privilege, might change the way that lawyers interact with witnesses, investigators, and the media.
April 15, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 15, 2021.
April 13, 2021-
Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 8, 2021.
April 7, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 1, 2021.
March 30, 2021Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on March 25, 2021. Each week, we’ll be providing a short blog post that summarizes some of the upcoming cases and gives a prediction, of the probability that leave will be granted. These predictions will be based on our proprietary machine learning model and dataset of every leave application decision released by the Supreme Court of Canada from January 1, 2018 onward.
March 23, 2021In the spring of 2020, we posted an analysis of the Supreme Court of Canada’s 2019 Year in Review and summarized some of the statistics found in that document. Unfortunately, the general statistics found in the 2019 Year Review were high level and limited the analysis we could provide about what was happening at the Supreme Court of Canada. We also could not find any publicly available and current datasets that would allow us to provide a more detailed analysis.
March 22, 2021Securities law class actions are now common in Ontario. However, courts are still addressing some of the core elements of the conceptual approach to such issues. The recent decision in the Ontario Court of Appeal in Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund v Barrick Gold Corporation (“Barrick Gold”) is a highly significant decision in this area, particularly in its treatment of the “public correction” requirement for securities class actions.
March 18, 2021The Supreme Court of Canada released its long-anticipated decision in Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District today, a major decision concerning the scope of the obligation to perform and enforce contracts in good faith. While it rejected any suggestion that it is the Court’s role to impose unbargained-for terms on a private agreement, the Court affirmed a general power—that cannot be excluded—to police the exercise of discretion under contracts where its exercise would undermine the purpose of the parties’ agreement.
February 5, 2021Sequels in the movie business, just like appeals in the judicial system, carry certain undeniable risks. For every triumphant The Empire Strikes Back, there are dozens of Speed 2: Cruise Control, Jaws: The Revenge, Weekend at Bernie’s II (or, heaven forbid, Return of the Jedi) which exist as a cautionary tale to revisiting the same material again.
January 27, 2021The Federal Court of Appeal has historically held that summary judgment is usually not the preferred means of resolving patent infringement actions. These cases are inherently complex and technical, and usually involve expert evidence. In the Federal Court of Appeal’s view, a trial judge who has had the opportunity to hear all of the evidence live is best suited to resolve these disputes (see Suntec Environmental Inc v Trojan Technologies Inc).
January 26, 2021Since its enactment in 2018, section 53.1 of the Patent Act has been the subject of much discussion. This provision allows courts tasked with construing the claims of a patent to consider communications previously made by the patentee to the Canadian Patent Office in the course of patent prosecution (known as the “prosecution history” or the “patent file wrapper”). Recently, the Federal Court has provided differing interpretations regarding the limitations of this section.
January 25, 2021As I have posted before, I’m a fan of using empirical data to inform legal practice. Much as the evidence-based medicine movement has taken hold in the field of medicine, the practice of law should, wherever possible, rely on objective data to inform our decision-making. Unfortunately, empirical legal work remains at an early stage. While there are some academics embracing empirical analysis, much of legal academic scholarship does not involve the quantitative analysis of empirical data. In my view, it is important for lawyers to test our intuitions whenever we can by reference to whatever data is available.
January 20, 2021-
In 2020 the Supreme Court of Canada tested the boundaries between public and private law, releasing several decisions in which the Court struggled with the role that Courts should be playing in holding parties to public standards of justice and fairness in their private dealings.
Click here for Scott Rollwagen's case commentary on those key decisions.
January 15, 2021The Supreme Court of Canada has announced important changes to the Rules of the Supreme Court of Canada that will take effect on January 27, 2021. The amendments were published in the Canada Gazette here, and the Supreme Court of Canada has also published a plain language guide for these amendments here. While these changes are fairly minor in the grand scheme of Supreme Court practice, they will simplify the process for seeking leave to the Supreme Court of Canada.
January 8, 2021This past Friday, the Supreme Court of Canada released its much-anticipated decision in C.M. Callow Inc v Tammy Zollinger (“Callow”), the first of two appeals heard in December 2019 seeking clarification on the scope of the organizing principle of good faith recognized in Bhasin v Hrynew (“Bhasin”).
December 21, 2020On January 1, 2021, significant changes to the Rules of Civil Procedure will come into force. The COVID-19 pandemic has materially transformed the day-to-day practice of litigation, and these rule changes are a significant attempt to capture the pragmatism and efficiencies that the pandemic has pushed litigators to adopt to keep their files moving.
December 17, 2020On December 13, 2020, news broke that Cleveland’s professional baseball team was changing its name. After the 2021 season, the Cleveland baseball team will no longer use the name “Indians”.
December 16, 2020As we near nine months since the emergence of COVID-19 in Ontario, The Honourable Doug Downey, Attorney General for Ontario, recently reflected on the pace of change that resulted within the legal system.
December 4, 2020On November 24, 2020, Canadian Lawyer held the Young Lawyers Summit: Thriving in Today’s Changing Legal Industry. Like everything this year, the group gathered virtually for a packed agenda of panel discussions ranging from becoming a thought leader to making time for mental rest and wellbeing. What follows is a short summary of the sessions that we found particularly relevant given our varied experience and roles at the firm.
November 27, 2020Patent infringement actions are inherently complex and technical. They often involve complex scientific inquiries and expert evidence. The Federal Court has historically held that summary judgment—which does not include live evidence—is generally not the preferred means of resolving patent infringement actions. Instead, such determinations are best left to a trial judge who has had the opportunity to hear all of the evidence live (e.g., Suntec Environmental Inc v Trojan Technologies Inc).
November 25, 2020Referring to living “in an era in which data is constantly flowing across borders”, Canada recently introduced Bill C-11. If enacted, it will radically alter the Canadian privacy litigation landscape. Bill C-11 contains the Consumer Privacy Protection Act (“CPPA” or the “Act”), and the Personal Information and Data Protection Tribunal Act (“PIDPTA”), and makes a number of consequential amendments to existing legislation. Bill C-11 would bring Canada closer to the European Union’s General Data Protection Regulation, which set the standard for data protection in the developed world.
November 25, 2020Earlier this week the Court of Appeal for Ontario released their decision in Sokoloff v Tru-Path Occupational Therapy Services Ltd. This appeal concerns the legislative framework set out in s. 137.1 of the Ontario Courts of Justice Act ("CJA"), colloquially known as the “anti-SLAPP” framework.
November 20, 2020-
The Federal Court of Appeal (“FCA”) has clarified the extent of flexibility afforded when undertaking the “Obvious to Try” test in Amgen v Pfizer, 2020 FCA 188. Although it ultimately cautioned against a segmented approach, the FCA did not dismiss the possibility that experimental steps could be assessed individually in order to make conclusions about an experiment as a whole, particularly with respect to the Self-Evident and Extent of Effort factors of the test. Despite agreeing that the Federal Court (“FC”) could have been more expansive and all-embracing in its overall conclusion, the FCA did not deem the FC’s lack of analysis to have amounted to a palpable and overriding error.
November 16, 2020Many know Amazon as the world’s largest online retailer, a mantle it carries, in part, because of just how easy it is to buy about anything. In fact, as many Canadians know, you can buy something on Amazon with as little as “1-Click”.
November 12, 2020Last week, the Federal Court published a consolidated practice notice, updating and consolidating four other case and trial management guidelines for complex proceedings and proceedings under the PM(NOC) Regulations from 2015, 2016, and 2017 (available here, here, here, and here).
November 9, 2020The concept of a duty of care is foundational to the common law concept of negligence. Whether a duty of care exists and, if so, the scope of that duty of care are hotly contested issues that have made their way to the Supreme Court of Canada many times over the last few decades. Today, the Supreme Court of Canada released its long-anticipated decision in 1688782 Ontario Inc v Maple Leaf Foods Inc, in which a narrow majority of the Supreme Court found that Maple Leaf Foods owed no duty of care to Mr. Sub franchisees in connection with a listeria outbreak and product recall. While the principles set out in Maple Leaf Foods are not fundamentally new, the majority’s decision provides insight into the application of the duty of care analysis in cases involving pure economic loss.
November 6, 2020The popular Canadian pastime of snowmobile litigation has turned up yet another interesting decision (Bombardier Recreational Products Inc v Arctic Cat Inc, 2020 FC 946) – this time on the topic of injunctions. This decision of Justice Roy arose from the moving parties’ attempt to vary an Order issued by the Federal Court in Bombardier Recreational Products Inc v Arctic Cat Inc, 2020 FC 691. As Justice Roy noted, the Order itself was “anything but unusual,” and was representative of injunctions issued in patent cases time and time again. Given this and the existing jurisprudence, it was perhaps a predictable result that the parties were denied any relief.
October 16, 2020In 2017, the Canada Food Inspection Agency (the “CFIA”) determined that wines produced by Psagot Winery, a vineyard located within an Israeli settlement in the West Bank, could be sold in Canada with a “Product of Israel” label to meet “country of origin” labelling requirements required under the Consumer Packaging and Labelling Act and the Food and Drugs Act. This decision was challenged by Dr. David Kattenburg, a Canadian activist, on the basis that the wine was in fact produced on occupied Palestinian territory and not within Israel, making the labelling of “Product of Israel” false and misleading and therefore contrary to the applicable legislation.
October 16, 2020A recent decision from the Ontario Court of Appeal serves as a cautionary tale for regulated professionals and their counsel considering the terms of a potential resolution of discipline proceedings where related criminal proceedings may still be on the horizon. In R v Lo, the Court of Appeal upheld a trial judge’s decision during a criminal jury trial to admit into evidence the Agreed Statement of Fact (“ASF”) from a prior disciplinary hearing on related allegations before the College of Psychologists (“CPO”).
October 13, 2020Are terminated employees entitled to the payout of bonuses during their reasonable notice period? And should this assessment be informed or affected by an employer’s bad faith or dishonest conduct that led to an employee’s termination or constructive dismissal? These were some of the questions before the Supreme Court of Canada in the eagerly anticipated decision in Matthews v Ocean Nutrition Canada Ltd. The case offered a unique opportunity for the Court to comment on the contractual duty of good faith outlined in Bhasin v Hrynew and its potential effects on employment relationships and exclusion clauses.
October 9, 2020In Chandos Construction Ltd v Deloitte Restructuring Inc ("Capital Steel") a strong majority of the Supreme Court of Canada affirmed the continuing relevance in Canada of the common-law anti-deprivation rule in insolvency. The rule invalidates any provision in an agreement providing that upon an insolvency (or bankruptcy), value is removed from the reach of the insolvent person’s creditors which would otherwise have been available to them, and places that value in the hands of others. It is a rule protecting the strong public policy in favour of the fair distribution of an insolvent person's assets among unsecured creditors.
October 2, 2020The Greenhouse Gas Pollution Pricing Act and the National Concern Doctrine: A Rights-Based Approach?Over the past two days, the Supreme Court of Canada heard appeals from decisions of the Alberta, Saskatchewan, and Ontario Courts of Appeal on the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act (the “GGPPA” or the “Act”).
September 24, 2020-
The Supreme Court of Canada has released its highly anticipated pair of decisions, 1704604 Ontario Ltd v Pointes Protection Association and Bent v Platnick, which consider the anti-SLAPP framework set out in s 137.1 of the Ontario Courts of Justice Act (“CJA”) for the first time.
September 11, 2020Patrick A. Wright & Colin JohnstonA recent Divisional Court case involving the College of Physicians and Surgeons of Ontario reaffirms the importance of ensuring that findings of professional misconduct by the College’s Discipline Committee fairly arise from the allegations contained in the College’s Notice of Hearing.
September 3, 2020Adam H. KanjiOn July 29, 2020, Chief Justice Morawetz announced that the Ministry of the Attorney General (“MAG”) will be piloting a new document sharing and e-hearing platform for select civil matters located in Toronto as of August 10, 2020, with the desire of having all Toronto matters on the system by the end of August. By the end of 2020, Ontario hopes to have all Superior Court proceedings using this platform.
August 13, 2020Waiver of tort has long been a contentious subject in Canadian law. Many, many courts have permitted waiver of tort claims to proceed in class actions. Yet no court had definitively ruled as to whether waiver of tort in fact existed. It was for this reason that the Supreme Court of Canada’s decision in Atlantic Lottery Corporation v Babstock has been so highly anticipated. Most expected that the Supreme Court would finally answer whether a waiver of tort existed as an independent cause of action under Canadian law. This in turn would have significant consequences for many types of cases, including many types of class actions.
July 24, 2020An individual’s genetic composition is arguably one of the most personal and private types of information out there. As science and technology continue to develop, the collection, use, and disclosure of genetic information has increased exponentially. Medical genetic testing has become a key tool in helping to diagnose and treat complicated illnesses and commercial genetic testing kits, such as 23andMe, have expanded in popularity. All of this has resulted in an exponential increase in the amount personal data being collected in our everyday lives.
July 13, 2020The Federal Court of Appeal has affirmed the constitutionality of Canada’s federal anti-spam legislation (“CASL”) in 3510395 Canada Inc v Canada (Attorney General), on both federalism and Charter grounds.
July 6, 2020The COVID-19 pandemic has required courts to adapt to new ways of providing access to justice. We have first-hand experience with this new reality.
June 30, 2020Chris Kinnear Hunter & Paul-Erik VeelThe Supreme Court of Canada has released its highly anticipated decision in Uber Technologies Inc v Heller.
June 26, 2020Chris Kinnear HunterThe Investment Industry Regulatory Organization of Canada (“IIROC”) has proposed a major change to the regulatory structure of the investment industry.
June 12, 2020Patent infringement actions are inherently complex and technical. They often involve complex scientific inquiries and expert evidence. The Federal Court has historically held that summary judgment—which does not include live evidence—is generally not the preferred means of resolving patent infringement actions. Instead, such determinations are best left to a trial judge who has had the opportunity to hear all of the evidence live (e.g. Suntec Environmental Inc v Trojan Technologies Inc).
June 9, 2020-
Electronic filing, remote discoveries and examinations, and video-conference hearings are some of the ways litigation has adapted to the current COVID-19 emergency. No doubt, some of these new developments will remain once the crisis is over. What is sure to persist, however, is the renewed focus on an old technology: the written word. How can judges and advocates adapt to a system where oral advocacy may no longer be the default mode?
May 29, 2020As the justice system continues to adapt and respond to the COVID-19 crisis, advocates everywhere are faced with new challenges in the administration of justice. Yesterday, the Honourable George R. Strathy, Chief Justice of Ontario and President of the Court of Appeal for Ontario hosted a virtual fireside chat to share the perspective of the judiciary, discussing the effects of COVID-19 on the administration of justice and lessons learned.
May 20, 2020The old saying that "to a hammer, every problem looks like a nail" is disquietingly relevant to traditional approaches to the dispensation of justice. For a long time, commentators have observed that the legal profession and the Courts lag behind much of the rest of society in leveraging digital resources to improve the quality, speed, and efficiency of litigation.
May 15, 2020During last year's NBA Finals, Kawhi Leonard was taking on more than the Golden State Warriors. In the middle of the Finals, he filed a lawsuit against the company he formerly endorsed—Nike—in the Southern District of California (original complaint here). At issue was Leonard's "Klaw Logo," which he claimed to have conceived before his contract with Nike. An early sketch of the logo and the design Nike ultimately used are shown side-by-side here.
May 13, 2020In the face of the ongoing COVID-19 pandemic, and preparations for reopening some sectors of the economy, the need for medical supplies is at the forefront of everyone’s mind. While it is important that medical supplies be available, it is paramount that the supplies are safe and effective.
May 12, 2020Julia FloodOn May 11, 2020, Canadian Lawyer held a webinar titled “COVID-19: Litigation Fallout: What Organizations Need to Do to Mitigate Their Risk” as part of their online event series focused on steering organizations through crisis. The risk of liabilities and potential for litigation are top-of-mind as businesses navigate from the pandemic towards its aftermath. Michelle Kelly, a partner at Cox & Palmer, led the speakers as they discussed practical tips and what to expect upon returning to the ‘new normal’. Below are some key takeaways for organizations, and their in-house and external counsel.
May 12, 2020In Back to Methuselah, George Bernard Shaw famously wrote that an election was “as bad as a battle except for the blood”. That is perhaps dramatic in the context of the Companies’ Creditors Arrangement Act (“CCAA”), but certainly a creditor vote can be a tense and contested affair. Such was the case when Callidus Capital Corp (“Callidus”), an asset-based or “distressed lender” and secured creditor, made a “second kick at the can” to approve a plan of arrangement already rejected by unsecured creditors, and found itself barred from voting on the plan for having acted for an “improper purpose”.
May 11, 2020On May 6, 2020, the Canadian Securities Administrators, in conjunction with the Ontario Securities Commission, held a webinar on public companies’ COVID-19 continuous disclosure obligations. The main message is that there is no “one size fits all” when it comes to fulfilling continuous disclosure obligations in light of COVID-19. COVID-19 will impact reporting issuers in a variety of ways, and these need to be detailed for investors.
May 8, 2020The legacy of the movie The Room, Tommy Wiseau’s infamously terrible 2003 cult classic, reached new heights (or lows depending on your point of view) last week when it made its mark on Canadian law in Justice Schabas’ decision in Wiseau Studio, LLC v Harper. A movie lovingly advertised as providing a viewing experience akin to “getting stabbed in the head” prompted copyright litigation and, in the process, has provided a new story of the risks of pursuing an ill-advised litigation strategy through trial.
May 7, 2020Lawyers are trained to do close and careful reading of cases. We are experts in textual analysis of individual decisions, and we can spend hours arguing over what individual paragraphs in Supreme Court of Canada decisions mean. Yet while individual decisions are important, so are the aggregate trends. Quantitative data can reveal important information that lawyers can use to engage in more effective advocacy and better inform our clients as to what to expect.
May 4, 2020-
On October 15, 2020, both parties were granted leave to appeal to the Supreme Court of Canada. We will continue to follow the developments of the appeal.
April 27, 2020It is not uncommon in the Canadian class action landscape for competing class actions to be commenced in multiple jurisdictions, each procedurally vying in the horse race of who will be named the nation’s choice as national class action. Competitors who lose that race are stopped in their tracks, having to sit along the side lines as the blue-ribbon action proceeds to trial.
April 23, 2020Many price-fixing class actions allege a reasonably uniform conspiracy. The stereotypical scenario alleged is that executives from different companies meet in a dark, smoke-filled room and agree to raise prices or restrain output in some uniform fashion. While that is an oversimplification, and reality is always much more complex, the basic core of most price-fixing allegations is that there was a uniform conspiracy that impacted all, or at least most, consumers in a broadly similar way. This is what has made so many price-fixing class actions amenable to certification.
April 22, 2020In recent weeks, the Ontario Superior Court has begun scheduling certain civil hearings to proceed remotely. The Notice to the Profession released on April 2, 2020 and Regional Practice Directions specifically identify pre-trial conferences as being capable of being heard remotely, particularly when settlement is a real possibility. Divisional Court hearings, case conferences and even some contested motions for class actions and matters on the Commercial List and Estates List may also be held.
April 20, 2020In recent years, aggrieved candidates have not had much luck seeking relief against their political parties in court. Courts have held that because unincorporated associations, such as political parties, do not exercise public authority, they are not subject to public law remedies like judicial review.
April 17, 2020In 2014, the Supreme Court of Canada recognized that the most painstaking procedure is not always the best procedure to resolve disputes – a culture shift was required to create timely and affordable access to the civil justice system (see Hryniak). This touchstone for access to justice is reflected in several courts’ rules of procedure, including the Federal Court of Canada.
April 9, 2020The initial reaction of most Canadian courts in the face of the COVID-19 pandemic was to shut down completely. This undoubtedly made sense from a public health perspective. However, as the Ontario Superior Court of Justice noted in its recent practice direction, courts have “constitutional responsibility to ensure access to justice remains available”. Consequently, courts have been taking gradual steps towards reopening and allowing certain cases to be heard.
April 7, 2020Amid the COVID-19 crisis, advocates, like all Ontarians, are facing immediate and diverse challenges. Pandemic or not, access to justice is a key foundation to our judicial system. Today, the Honourable Chief Justice Geoffrey B. Morawetz of the Ontario Superior Court of Justice hosted a virtual fireside chat to address the priorities of the Superior Court of Justice amid the COVID-19 crisis.
April 6, 2020Laws against price-gouging have come to Ontario. On Saturday, March 28, 2020, the provincial government issued a press release announcing that it was enacting an Order to prohibit price-gouging. The press release announced that that Order “prohibits persons, including retailers, from selling necessary goods for unconscionable prices”. The press release also announced that the definition of unconscionable prices would be “consistent with well-established principles from the Consumer Protection Act.”
April 1, 2020Is an employer obligated to pay overtime if they don’t specifically direct an employee to work overtime? And can an employer’s requirement that employees obtain pre-approval for any overtime they work shield them from the obligation to pay overtime if pre-approval isn’t obtained? These are important issues for any employer.
March 31, 2020-
Ontario’s Anti-SLAPP legislation (ss 137.1 to 137.5 of the Courts of Justice Act) provides a judicial screening device. It is designed to swiftly eliminate claims that unduly limit freedom of expression on matters of public interest. Since coming into force, courts have considered, at length, the substantive issues. To date, little guidance has been provided on the procedural issues.
March 30, 2020These are trying, stressful, and uncertain times, even for the optimist. As the number of confirmed cases of COVID-19 rise and hospitals begin to fill, the need for medicine and medical supplies is at the forefront of everyone’s mind. The search is on for rapid and innovative solutions. But what if that brilliant solution treads on a patent?
March 27, 2020In its February 28, 2020 decision, Nevsun Resources Ltd v Araya, the Supreme Court of Canada allowed a claim by three Eritrean citizens against a British Columbia corporation operating in Eritrea to proceed. Canadian (and international) corporations with international operations in high risk jurisdictions should take note.
March 19, 2020The rapid spread of the novel Coronavirus (COVID-19) is causing significant dislocation to every aspect of our daily lives. For businesses, COVID-19, and the public health responses being taken to try to limit its spread, will have a significant financial impact. Social distancing and self-isolation will result in fewer customers visiting brick-and-mortar retailers, and uncertain economic times will result in an overall drop in consumer demand. Each of these will cause pain for businesses.
March 17, 2020In the late 2019 decision in V.M.Y. v S.H.G., Justice Kristjanson of the Ontario Superior Court of Justice for the first time recognized the tort of “publicity placing a person in a false light” in Canadian law. But do we need yet another invasion of privacy tort?
January 22, 2020In the season of giving the Supreme Court of Canada has given lawyers and legal scholars the greatest gift of all: a new approach to the standard of review.
December 19, 2019On December 9, 2019, the Attorney General of Ontario introduced Bill 161, the Smarter and Stronger Justice Act, 2019. The new bill is omnibus legislation that proposes broad reforms to the legal system in Ontario. While the draft legislation will keep commentators busy for weeks or months, I focus here on one set of proposed reforms: those to the class actions regime in Ontario.
December 10, 2019Earlier this year, in Bill C-97, Parliament introduced significant changes to the Canada Business Corporations Act (“CBCA”), the Bankruptcy and Insolvency Act (“BIA”) and the Companies Creditors Arrangement Act (“CCAA”). The changes to the BIA and CCAA have now been proclaimed in force effective November 1, 2019.
November 27, 2019Paul-Erik Veel & Adam H. KanjiOn October 17, 2019, a five-judge panel of the Ontario Court of Appeal released its unanimous decision in Bancroft-Snell v Visa Canada Corporation. The Court’s decision has significant implications for the procedural rights of class members involved in settlement discussions and approval under the Class Proceedings Act, 1992.
October 18, 2019On September 24, 2019, the United Kingdom Supreme Court released a historic decision nullifying the recent prorogation of Parliament obtained on the advice of the British Prime Minister. The implications of the decision are potentially far-reaching as a matter of public law, even though the Court took pains to describe its decision as a “one off.”
September 24, 2019-
Paul-Erik Veel & Chris Kinnear Hunter
On September 20, 2019, the Supreme Court released its long-awaited decision in Pioneer Corp v Godfrey. Godfrey is the Supreme Court’s latest decision involving price-fixing class actions, and expands on and clarifies the basic approach to these cases that the Court laid out six years ago in Pro-Sys Consultants Limited v Microsoft Corporation.
September 20, 2019The July 17, 2019 final report of the Law Commission of Ontario into class actions has the potential to impact significantly on the prosecution and defence of class actions in Ontario.
July 29, 2019As has now been widely reported, the Law Commission of Ontario has released its final report on class actions which makes recommendations to improve the system of class actions in Ontario. Our colleagues, Brian Kolenda and Derek Knoke, commented on those that will be of interest to plaintiffs in their blog post here. We provide the defence counsel perspective here.
July 29, 2019The Patented Medicine Prices Review Board (“Board”) regulates the prices of patented medicines in Canada when a patent is found to “pertain” to a medicine. Since 1996, based on the Federal Court of Appeal’s decision in ICN Pharmaceuticals Inc v Canada (Staff of the Patented Medicine Prices Review Board) (“ICN”), the “pertains to” test could be satisfied on the basis of the “merest slender thread” of a relationship between the patent and the medicine.
July 17, 2019In 2018, Parliament passed the Greenhouse Gas Pollution Pricing Act (the “Act”). The Act applies in provinces and territories that have not implemented sufficiently stringent carbon pricing mechanisms regarding greenhouse gas (“GHG”). Part 1 of the Act imposes a regulatory charge on carbon-based fuels; it applies, subject to several rules and exceptions, to fuels produced, delivered, used, distributed, or imported (“Fuel Charge”). Part 2 of the Act establishes a regulatory trading system applicable to large industrial GHG emitters. A credit is given to those who operate within their emissions’ limit. A charge is imposed on those who exceed it (“Excess Emissions Charge”).
July 5, 2019Class actions are common in the financial services sector. The relatively low bar for certification of such claims as class proceedings means that many such claims are certified. Yet certification is by no means automatic: where the litigation will not be significantly advanced through the resolution of common issues, courts will typically be reluctant to certify an action as a class proceeding.
July 4, 2019Lawrence E. Thacker and Sean Lewis co-authored the article Enforcing Arbitral Awards on the Commercial List, which was published on commerciallist.com.
June 13, 2019
