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On the Docket
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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, 2021Eli S. Lederman & Mari GallowayThis 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, 2020The 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, 2020On November 4, 2020, the Ontario Securities Commission (OSC) held its annual OSC Dialogue. Financial industry leaders, senior regulators and investors came together virtually to discuss changes in the industry and how they are working together.
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?Rebecca Jones & Mari GallowayOver 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, 2020The 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, 2020A 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, 2020On 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, 2020The Supreme Court of Canada has released its highly anticipated decision in Uber Technologies Inc v Heller.
June 26, 2020The 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, 2020Electronic 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, 2020On 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, 2020On 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, 2020Ontario’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, 2020Two proposed class actions. Two law firms. Two provinces. One set of facts. Which action will reign supreme? In DALI 675 Pension Fund v SNC Lavalin, the class actions version of “who wore it better”, Justice Belobaba addressed the question of whether a parallel class action proceeding commenced in a separate province constitutes an abuse of process. His answer? Just a healthy dose of competition.
January 10, 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, 2019On 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, 2019On 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, 2019In Third Eye v Dianor, the Court of Appeal for Ontario revitalized the law of vesting orders, confirming that a motion judge of the Superior Court of Justice has jurisdiction to extinguish interests in land in a receivership, and setting a new test for when that power should be exercised. The Court also clarified the precedence between the 10-day appeal period set out in the Bankruptcy and Insolvency Act (“BIA”) Rules, and the 30-day period prescribed through the Courts of Justice Act (“CJA”).
June 25, 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, 2019One of the seemingly foundational principles of tort law is that the plaintiff must prove they have suffered loss in order to establish a defendant’s liability. Plaintiffs are entitled to be compensated for the loss they have suffered, and only for the loss they have suffered—or so we thought. In Atlantic Lottery v Babstock, the Newfoundland and Labrador Court of Appeal capped off a developing line of authority in the class actions context that recognizes the possibility of an independent cause of action in “waiver of tort”. Under this doctrine, claimants would be able to sue tortfeasors for disgorgement of profits gained through wrongdoing, without demonstrating that they themselves have suffered loss from such wrongdoing. This bold decision has attracted the attention of the Supreme Court of Canada, which in May 2019 granted leave to appeal to the defendant Lottery Corporation. Now all that’s left to do is to place your bets.
June 11, 2019Certification is a vital step in every class action. In order for a class action to be certified, the proposed representative plaintiff must show “some basis in fact” to believe that the certification requirements are met. These requirements include that there are common issues of fact or law and that a class action would be the preferable procedure for resolving those common issues. The Supreme Court of Canada was clear in its decision in Pro-Sys Consultants Ltd v Microsoft Corporation that the some basis in fact standard is less onerous than a balance of probabilities standard. However, how that standard is to be applied remains a source of great difficulty for courts.
May 31, 2019In the Ultra Vires, an independent student newspaper of the University of Toronto Faculty of Law, Adil Abdulla publishes an article titled Dangers of Believing Your Own SOP Story. In this article, he takes a critical look at the LSO's Statement of Principles.
April 16, 2019The question of whether and when arbitration clauses will preclude a class proceeding is seemingly continually litigated. In some circumstances—such as in the consumer protection context—legislatures have clarified that certain claims cannot be subject to arbitration. In other cases, however, it is up to courts to craft the appropriate rules. The recent decision of TELUS Communications Inc v Wellman shows that the question of what rules are appropriate can attract significant disagreement. In a 5-4 split decision, the majority of the Supreme Court of Canada held that valid arbitration clauses in contracts should generally be given effect and that persons with such contracts should not be included in class proceedings.
April 5, 2019March 2019 has been a busy month for the Competition Bureau. On March 7, the Bureau released its updated Abuse of Dominance Enforcement Guidelines. Then, on March 13, the Bureau released its updated Intellectual Property Enforcement Guidelines (“IPEGs”). While neither new enforcement guideline reflects a fundamental shift in the Bureau’s approach to these issues, they provide new guidance and reflect important nuances in the Bureau’s consideration of these issues, particularly regarding abuse of dominance.
March 14, 2019In Bisquip Leasing Corporation v Coco Paving Inc, Bisquip Leasing Corporation [“Bishop”] brought a motion for summary judgment against Coco Paving Inc. [“Coco”] for unpaid invoices on various projects. Coco asserted a counterclaim against Bishop arising out of “deficient work” and an incident in which a gas line was allegedly struck by Bishop during excavation.
February 26, 2019Parties to class action settlements often settle, at least in part, to avoid the ordinary uncertainty of litigation. Courts have long emphasized that while they retain discretion to supervise payments of lawyers’ fees as part of a settlement, the settlement approval process will not entail the Court re-writing a settlement that it is not prepared to approve.
February 21, 2019In R v Jarvis, the Supreme Court of Canada (“Court”) convicted a high school teacher of voyeurism under section 162(1)(c) of the Criminal Code. Mr. Jarvis used a concealed camera, inside a pen, to secretly video record female teenage students in common areas of a school. The video focused on their faces, upper bodies and breasts.
February 19, 2019A recent decision of the Ontario Superior Court of Justice affirms the preference of Ontario courts for enforcing arbitration provisions between parties to commercial agreements.
February 11, 2019Jenn Power co-authored the blog Canada: Summary Of Actions Against Exxon Mobil For Securities Fraud which appeared on Mondaq. This article discusses the allegations brought against Exxon under securities fraud legislation by the Attorney General of New York State.
February 5, 2019The Supreme Court of Canada today released its long-awaited decision in Orphan Well Association v Grant Thornton Ltd. The Court reversed a decision of the Alberta Court of Appeal that allowed the trustee of a bankrupt oil and gas company to sell its profitable wells and disclaim unprofitable ones, leaving the public to bear the end-of life liability associated with those wells.
January 31, 2019Jenn Power co-authored the blog The Supreme Court of Canada Rules in Orphan Well Case. The article comments on the implications of the SCC decision in Orphan Well Association et al v Grant Thornton Limited.
January 31, 2019On December 28, 2018, the Ontario Court of Appeal released its decision in the case of Das v George Weston Limited. At 114 pages, the Court’s decision is thoroughly reasoned and substantive. It also deals with important issues that are significant to all class action practitioners. For those who don’t want to wade through the full sets of reasons—and there’s a lot there—here’s our summary of the key take-aways from the Court of Appeal’s decision.
January 23, 2019A five-judge panel of the Court of Appeal for Ontario has upset the long-standing conventional wisdom among bankruptcy and insolvency practitioners in Ontario about the fate of provincially-created statutory trusts in bankruptcy.
January 15, 2019In September 2018, the U.S. Securities and Exchange Commission (“SEC”) charged Elon Musk, the former Chairman of Tesla, Inc., with securities fraud. A series of Tweets on Musk’s personal page, the first of which read: “Am considering taking Tesla private at $420. Funding secured”, caused share prices to instantly soar. In reality, the potential transaction was uncertain and subject to a number of contingencies. Market confusion and disruption ensued.
January 9, 2019A frequently litigated issue in Canadian class actions is the extent to which parties can agree in advance to opt out of class actions in favour of private arbitration. In the context of consumer protection claims, provincial legislatures have generally eliminated the ability of defendants to defeat class actions through arbitrations by declaring clauses requiring the parties to submit such disputes to private arbitrations to be void. However, it has remained an open question as to whether and when courts would enforce arbitration clauses in other contexts, where the effect of such enforcement would be to defeat a proposed class proceeding.
January 2, 2019Lars BrusvenThe recent Toronto municipal election produced no shortage of last-minute court challenges and legal drama. One such dispute came between Bell Media and Faith Bazos (aka Faith Goldy)—the controversial mayoral candidate known for her far-right political views. The Court’s decision in Bazos v Bell Media Inc, released just six days before the election, addresses fundamental questions of jurisdiction between courts and administrative tribunals, as well as the circumstances in which the Court will exercise its discretion to grant injunctive relief in a matter which otherwise falls under a tribunal’s jurisdiction.
November 28, 2018Last Friday, the Supreme Court of Canada released its long-awaited decision in the case of Moore v Sweet, and settled a troubling issue in the trusts and estates world: the case of the disappointed life insurance beneficiary.
November 27, 2018Risky business: Ontario court provided conditional approval of a novel third-party funding agreementVinayak co-authored the blog post Risky business: Ontario court provided conditional approval of a novel third-party funding agreement. This article comments on the Ontario Divisional Court decision in Houle v. St. Jude Medical Inc. regarding third party litigation funding agreements in class proceedings.
November 26, 2018Danielle GlattIn Lavender v Miller Bernstein LLP (“Lavender”), the Ontario Court of Appeal overturned an order granting summary judgment to a class of investors in a class action against the auditors of a defunct securities dealer. In doing so, the Court gave a detailed examination of the duty of care analysis as it applies in the wake of the recent Supreme Court of Canada decision, Deloitte & Touche v Livent Inc (“Livent”).
November 13, 2018Product liability cases are routinely certified as class proceedings. Indeed, allegations that a product was negligently manufactured, or that a manufacturer failed to warn consumers of a particular risk, seem particularly amenable to resolution on a class-wide basis. However, not every such case is certified as a class proceeding. The recent decision of the Ontario Superior Court of Justice in Richardson v Samsung Electronics Canada Inc is one example of a case that was not certified. More importantly, it shows what steps defendants can proactively take to avoid certification of class actions against them.
October 31, 2018Danielle GlattIn Yip v HSBC Holdings plc (“Yip”) the Ontario Court of Appeal recently confirmed that “there is nothing unfair” in tying jurisdiction to litigate against a foreign defendant in a secondary market misrepresentation to the place where the securities were traded. The Court’s decision reflects the international standard that purchasers who use foreign exchanges should look to the relevant foreign court to litigate their claims and closes the door on creating a universal or default jurisdiction for secondary market claims under the Ontario Securities Act.
September 24, 2018In Horri v The College of Physicians and Surgeons, the Divisional Court reaffirms the importance of consistency and justification when a professional regulator sanctions one of its members. Penalties for misconduct should fall within the range established by previous case law, and regulators should exercise caution before departing from precedent on the basis of “changing social values.”
September 18, 2018Tariffs and protectionism have been hot topics in the law in 2018. While NAFTA negotiations and a growing US-Chinese Trade War dominate the headlines, the issue has also spread into domestic Canadian politics this year.
September 4, 2018While class actions can be a useful tool for access to justice, there are limits to the types of claims that can be appropriately advanced through class proceedings. Indeed, the requirements for certification that appear in similar form in virtually every class action statute across Canada are meant to ensure that only those actions that can meaningfully proceed as class actions are in fact certified. Many cases, including certain types of pharmaceutical product liability claims, will simply be unsuitable for certification as a class action. The recent decision of the Ontario Superior Court in Price v H Lundbeck A/S provides an example of such a case.
August 2, 2018An invalid termination clause is a former employee’s golden ticket for employment litigation, increasing a notice period from the statutory minimum to what is reasonable at common law. The monetary difference can be substantial. Given the financial implications, there is a large and growing body of case law on when a termination clause will be deemed unenforceable.
July 27, 2018The law of contracts has been around for a very, very long time. Which is why it is important to take notice when a major appellate Court finds it necessary to restate the applicable principles, if only to settle the law concerning what may appear to be a narrow damages point.
July 24, 2018As I have observed before, class actions are expensive for defendants and resource-intensive for the justice system. In order to try and minimize that expense, defendants typically want to dispose of class actions they face as early as possible. This has given rise to a body of case law that addresses the question of when defendants will be allowed to bring pre-certificate motions. As the recent decision of the Ontario Superior Court of Justice in Austin v Bell Canada shows, defendants face a high threshold in persuading the court to allow such motions to precede certification.
July 4, 2018When is the government entitled to act without the possibility of liability or subsequent second-guessing by the Courts? That was the very issue in a recent decision of the Ontario Court of Appeal that upheld a lower court’s decision striking out a misfeasance in public office claim against the Ontario Government relating to the 2015 decision to privatize Hydro One.
June 25, 2018Until recently, there was some uncertainty as to whether, in some circumstances, the decisions of private organizations might be subject to judicial review.
June 15, 2018Given Quebec’s unique civil law regime, we seldom blog about legal developments in Quebec. However, sometimes decisions of Quebec courts have broader relevance outside of Quebec; this is often the case where Quebec courts rule on federalism issues. The Quebec Court of Appeal’s recent decision in Bell Canada v Aka-Trudell falls into that category. In that case, the Quebec Court of Appeal refused to dismiss a class action against Bell Canada, rejected the argument that the Quebec Superior Court had no jurisdiction and that the matter ought to have instead been considered by the Canadian Radio-television and Telecommunications Commission (the “CRTC”).
June 11, 2018To what extent can, or should, courts review decisions by government decision-makers? Administrative law is all about finding the right balance.
The Supreme Court of Canada announced this spring it has plans to revisit that balance and the standard of review for administrative decisions in a trilogy of cases to be heard by the Court in the fall of 2018. Its recent decision in West Fraser Mills Ltd v Workers’ Compensation Appeal Tribunal and Workers’ Compensation Board of British Columbia, released last week, might hint at how.
June 4, 2018Andrew Parley & Laurel D. HoggSettlement in multi-party litigation is to be encouraged, as confirmed by the Supreme Court of Canada in Sable Offshore Energy Inc v Ameron International Corp. One common mechanism for achieving settlements in multi-party litigation is through what is commonly known as a Pierringer agreement. A Pierringer agreement allows the settling defendants to be released from the lawsuit with the non-settling defendants left exposed to their proportionate share of liability. Despite their popularity, the impact of a Pierringer Agreement on the remaining defendants and the continuing litigation is not always clear.
May 30, 2018Isabel Dávila Pereira's blog post Panel 1: Rethinking Defamation Law: The Setting for Reform recaps a panel discussion which explores reforming defamation law for the digital age.
May 3, 2018Given the expansive discovery rights available under US law, plaintiffs may be tempted to try to use those rights in pursuit of proceedings under Canadian law. In its recent decision in Mancinelli v RBC, the Divisional Court placed an important limit on the ability of parties to do so. The Divisional Court upheld an order requiring plaintiffs in a proposed class action to obtain Court approval before taking any steps in furtherance of a subpoena issued by an American court.
April 27, 2018Isabel Dávila Pereira's blog post Google v Equustek: Are Courts Behind the Digital Revolution? provides an overview of the case and the future of Internet governance as a result.
April 18, 2018Mariam MoktarIn an age where individuals catalogue almost every aspect of their lives on some form of social media, the obligation to disclose all relevant documents in the context of civil litigation can seem both onerous and invasive. Courts have grappled with how disclosure obligations should be balanced with privacy rights.
April 10, 2018Paul-Erik Veel & Andrew SkodynThe intersection of intellectual property law and competition law is an area that gains greater significance with each passing year. Much of the focus in this area recently has been on the appropriate scope of action to take by regulators. For example, in Canada, the Intellectual Property Enforcement Guidelines promulgated by the Competition Bureau in 2016 have attracted significant attention.
April 3, 2018Laurel D. HoggThe late 2017 decision of Justice Bielby in Nu Image v Seager highlights the difficulties faced by litigants seeking to restrain breaches of non-solicitation obligations. The irreparable harm limb of the RJR-MacDonald test remains the primary stumbling block for such motions.
March 29, 2018A long-standing issue in Canadian class actions law relates to the ability of parties to contract out of class actions and instead require that any disputes be submitted to arbitration. For class counsel and class members, such clauses are anathema, representing an attempt by sophisticated organizations to thwart class actions by requiring individual claims to proceed to arbitration. For businesses, such clauses have significant value; they can result in individual cases being resolved quickly and efficiently, without the complications and attendant costs of a class action.
March 28, 2018Effective May 30, 2017, professional regulators under the Regulated Health Professions Act received a new power to temporarily restrict or suspend the licence of a health professional during the course of an investigation into allegations of misconduct or incompetence. Previously, regulators could impose such measures only after the conclusion of an investigation and commencement of a Discipline Committee proceeding. This raises the question, what is the appropriate threshold of risk that must be established in order to suspend or restrict the licence of a professional whose case is still under investigation? What evidence is required? What reasons must be given in order to justify such an order? These questions are considered in the recent decision of Rohringer v Royal College of Dental Surgeons of Ontario 2017 ONSC 6656.
March 27, 2018Isabel Dávila Pereira's blog post Dispatches: Canadian International Law Students Conference 2018 provides an overview of the exchange of ideas amongst law students, academics, practitioners, and other leaders in international law at their recent forum.
March 23, 2018It says something about Canada that many famous cases throughout Canadian legal history relate to the regulation of alcohol. Through the early 20th century, the regulation of alcohol was a fertile domain for disputes about Canadian federalism. Now, in the 21st century, the complicated regulatory scheme of governing alcohol sales in Ontario is once again making new law. This time, however, the dispute is not over arcane principles of federalism, but rather over the scope of the regulated conduct defence to conspiracies under the Competition Act. While early 20th century federalism cases may be of interest to only a select few, the decision of the Ontario Superior Court of Justice in Hughes v Liquor Control Board of Ontario is likely to attract significantly broader interest, particularly among companies operating in regulated industries.
March 22, 2018How can an innocent victim recover their losses when a fraudster uses multiple corporations as part of a complex “shell game” to hide and co-mingle misappropriated funds? In DBDC Spadina v Walton, the Ontario Court of Appeal considered a complex multi-real estate transaction investment fraud, perpetrated over an extended period of time with the involvement of numerous corporate actors – all under the control of the fraudster.
February 27, 2018The Competition Bureau relies heavily on voluntary cooperation from corporate Canada in order to enforce the Competition Act. Companies typically want assurances of confidentiality in order to cooperate with the Bureau. In recognition of the fact that companies are less likely to cooperate with the Competition Bureau if commercially sensitive information might be disclosed to third parties, the Competition Act provides a number of confidentiality protections for information acquired by the Bureau from third parties.
February 6, 2018Since the introduction of ride sharing technology such as Uber, a legal dust-up with traditional taxi drivers and brokers seemed inevitable. Perhaps less predictable was the form that dispute would take. In Metro Taxi Ltd. v. City of Ottawa, the Court considered a certification motion for a class action brought by taxi license plate holders and brokers against the City of Ottawa for their regulatory handling of the introduction of Uber, claiming both negligence and discrimination.
January 26, 2018When one person negligently causes an accident, the law is clear about their responsibility. But when negligence acts on the part of a number of different parties combine to create a single accident, how should responsibility for that accident be apportioned between them? This was recently addressed by the Ontario Court of Appeal in its recent decision in
