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On the Docket
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As 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 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, 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, 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, 2019Adil AbdullaIn 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, 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, 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, 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, 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, 2018Jenn Power co-authored the blog Washington Court Affirms Assertion of Specific Jurisdiction over Canadian Mining Company. The blog comments on the appeal decision in Pakootas v Teck Cominco Metals Ltd.
October 4, 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. For example, in West Toronto Football Club v Ontario Soccer Association, the Ontario Divisional Court held that some decisions of the private Ontario Soccer Association could be reviewed, as it exercises a compulsory power over anyone who wishes to play soccer in Ontario. Conversely, in Milberg v North York Hockey League, the Ontario Superior Court held that it did not have jurisdiction to judicially review the decision of the North York Hockey League, as the League was not exercising a statutory power or power of decision. Last week, the Supreme Court of Canada clarified this area of administrative law in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall: in its unanimous decision, written by Justice Rowe, the Supreme Court held that “judicial review is reserved for state action”. Given the confusion in the lower courts, this is significant.
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 PereiraIsabel 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 PereiraIsabel 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 PereiraIsabel 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 Parent v Janandee Management Inc.
January 17, 2018The recent admissions by supermarket chain Loblaws and a related group of companies that they engaged in conduct to fix the retail price of bread products have drawn significant public attention to price-fixing. And Loblaws’ response to those revelations of price-fixing—including giving consumers gift cards to be used at Loblaws—has also attracted significant interest, not just from the public, but also from businesses and the antitrust and class actions bar. For organizations that have engaged in misconduct looking to make a public response, Loblaws’ actions highlight both the potential benefits and risks of such voluntary remediation.
January 12, 2018Isabel Dávila PereiraIn a blog post published on Canadian Lawyers for International Human Rights, Isabel Dávila Pereira discusses the legal provision for abortion.
January 10, 2018Lord Denning once said that estoppel is a house with many rooms. In December 2017, in Cowper-Smith v Morgan, 2017 SCC 61, the Supreme Court of Canada undertook some significant renovations to an important, but little used, room in that house: proprietary estoppel. And just like your neighbour’s renovations to build their monster home can have a real impact on your property, this is a decision that has impacts well beyond the particular facts of that case.
January 9, 2018Employers sometimes rely on severability clauses—which provide that any clauses that are found to be illegal or unenforceable are severed from the agreement and that the agreement otherwise remains in effect—to hedge against the risk that clauses in employment contracts could be found to run afoul of the Employment Standards Act and be unenforceable as a whole. However, in its recent decision in North v Metaswitch Networks Corporation, the Court of Appeal for Ontario signalled that these clauses have limited effect when parties include terms in agreements that contract out of minimum employment standards.
January 3, 2018Under Canadian law, many provisions of the Competition Act can only be enforced by the Commissioner of Competition, and not by private parties. That has led to a dearth of jurisprudence, and certainty, regarding the interpretation of several provisions of the Competition Act. For that reason, both major businesses and industry groups will want to take careful note of the recent decision in Toronto Real Estate Board v Commissioner of Competition, where the Federal Court of Appeal gave further guidance as to when a party will be liable for abuse of dominance.
December 8, 2017Lars BrusvenThe Ontario Court of Appeal has confirmed a robust and plaintiff-friendly framework for the recognition and enforcement of foreign judgments against state supporters of terrorism under the Justice for Victims of Terrorism Act, SC 2012 c 1 (the “JVTA”).
December 5, 2017Kim NusbaumJustice Diamond’s decision in Singer v Nordstrong Equipment Limited provides valuable insight with respect to a terminated employee’s entitlement to a bonus payment during the reasonable notice period.
November 2, 2017“Disappointed beneficiary” claims over life insurance proceeds have resulted in a complex body of case law combining elements of family law, trusts and insurance law.
November 1, 2017Class actions are almost invariably complicated and expensive matters for businesses to deal with. Such class actions only become more complicated and expensive the bigger the classes are. Now, in Airia Brands Inc v Air Canada, the Ontario Court of Appeal has given the green light to a class action that includes class members all around the world. This decision has significant implications for virtually all multinational businesses.
October 19, 2017A recurring source of challenging legal problems in the price-fixing class actions, and in class actions more generally, is the issue of what information and evidence the Courts can compel government investigators to provide to private litigants for use in those class actions.
September 29, 2017As regulatory investigations and litigation against corporate directors and officers become increasingly complex and extensive, insurance policies covering defence costs are all the more important. But how far does this coverage stretch? The recent decision of Liberty Silver v Liberty Insurance demonstrates the significant value these policies can provide in covering an early and proactive legal defence. The court rejected the Insurer’s narrow and technical interpretation of the insurance policy, and affirmed that legal costs incurred on behalf of senior officers and directors to respond to an Investigative Order by security regulators, even before any formal charges or accusations were laid, were covered.
September 20, 2017While competition law specialists are familiar with the ongoing debate about umbrella purchaser claims, most Canadian lawyers could be forgiven for wondering what all the fuss is about umbrellas. Far from being individuals who rejected raincoats or ponchos in favour of a more traditional option, umbrella purchasers are now at the center of a heated debate in Canadian competition law.
August 23, 2017The Supreme Court of Canada’s recent decision in Wilson v Alharayeri, may have far reaching implications for corporate director liability. The unanimous decision affirmed an award for compensation for oppression directly against two directors of a corporation by relying on the leading case on the issue, Budd v Gentra.
August 16, 2017In a recent pair of decisions in a solicitor-negligence action, Superior Court Justices Charney and Boswell confirmed that causation must be proved, not assumed – even on summary judgment motions.
August 11, 2017In most cases, an employee who resigns voluntarily from employment is not legally entitled to damages. However, the line between resignation and constructive dismissal has become increasingly blurred and is a common issue of contention in employment litigation. In the recent case of Persaud v Telus Corporation, the Ontario Court of Appeal provides useful guidance regarding the effect of conduct in determining whether a resignation is actually a constructive dismissal.
August 9, 2017The proposed regulations amending the Patented Medicines (Notice of Compliance) Regulations were released on July 14, 2017. These Proposed Regulations are a dramatic change from the existing Regulations, both substantively and procedurally.
July 19, 2017Andrew SkodynOn June 30, 2017, the Supreme Court of Canada unanimously granted AstraZeneca’s appeal in the long-awaited conclusion of the “Promise Doctrine” saga in AstraZeneca Canada Inc v Apotex Inc.
July 11, 2017The Ontario Court of Appeal recently heard and resolved a conflict between two competing components of a free and democratic society. As the Court put it, the dispute involved a conflict between a free and vigorous press, on the one hand, and the protection of society from serious criminal activity on the other.
June 29, 2017Like most jurisdictions, Ontario requires parties contemplating litigation to bring an action within a certain period of time. Pursuant to the Limitations Act, 2002, the standard limitation period applicable to most causes of action in Ontario is two years, after which a plaintiff will not be able to maintain the action.Like most jurisdictions, Ontario requires parties contemplating litigation to bring an action within a certain period of time. Pursuant to the Limitations Act, 2002, the standard limitation period applicable to most causes of action in Ontario is two years, after which a plaintiff will not be able to maintain the action.
June 22, 2017Over a decade after Ontario’s Limitations Act, 2002 came into force, courts are still grappling with when a cause of action is discoverable and a limitation period starts to run. An increasingly litigated question relates to whether a limitation period runs while efforts are ongoing to fix the error that gave rise to the plaintiff’s claim. The Court of Appeal for Ontario recently addressed this issue in Presidential MSH Corp v Marr, Foster & Co LLP.
June 20, 2017Entire agreement clauses are often used to insulate contracting parties from disputes over pre-contractual representations. The recent decision of Curtis Chandler v Karl Hollett demonstrates how bare allegations of pre-contractual misrepresentation will rarely win out over such clauses.
June 15, 2017The past year has seen a flurry of interesting cases dealing with limitation periods. My colleagues and I have commented on them previously, including here and here. In Pennyfeather v Timminco Limited, the Court of Appeal for Ontario had the chance to weigh in on limitation periods under the Ontario Securities Act (“OSA”).
June 7, 2017For those of us who take an interest in American patent litigation, the US District Court for the Eastern District of Texas (also known as the “Rocket Docket”) has been a fabled place where a third (or more) of US patent suits are heard, cases get to trial in two years or less, and patentees are king. It has also been the venue of choice for patent suits brought by non-practicing entities (NPEs...
May 25, 2017“If my grandmother had wheels, she’d be a wagon” –Yiddish proverb
April 10, 2017Ontario’s new legislation governing international commercial arbitration, the International Commercial Arbitration Act, 2017, came into force on March 22, 2017, replacing the International Commercial Arbitration Act previously in place.
April 3, 2017Ahmad MozaffariThose wishing to bring a derivative action against a corporation should take note of the recent decision of Melnyk v Acerus Pharmaceuticals Corporation, which provides further guidance on the test for being granted leave to bring a derivative action.
March 17, 2017Lars BrusvenDoes the director of a corporation owe a common law duty of care to that corporation’s security holders? The prevailing view has been that directors do not owe a duty of care to a corporation’s investors. However, the Ontario Superior Court in Poole v Phillips determined that the answer to this question is not clear enough to permit summary dismissals of such negligence claims. In Poole, the Court refused the Defendants’ motion for summary judgement, holding that a negligence claim brought by investors against a corporation’s directors disclosed a genuine issue requiring trial.
March 8, 2017Sometimes small disputes about technical matters unearth deeper truths about how the law works. This happened in a decision released on January 27, 2017 by the Supreme Court of Canada. Sabean v Portage La Prairie Mutual Insurance Co on its face concerned a narrow issue of interpretation defining amounts payable under automobile insurance policies. In resolving this issue, the Court bumped into a much more general issue concerning whether and how jurisprudence influences the meaning of words used in private contracts.
March 2, 2017The hardest mistake to fix in litigation may be missing the limitation period. Almost every other mistake can be fixed, but missing that critical window for bringing a claim can be catastrophic.
February 27, 2017Pierre Lebel didn’t like that Miranda Dyck was following his daughter on Twitter. Mr. Lebel sent an email to Andre Picotte (and several others). Mr. Lebel asked Mr. Picotte to email Ms. Dyck asking that she un-follow Mr. Lebel’s daughter.
February 1, 2017Risa M. Kirshblum & Laurel D. HoggRule 76 of the Rules of Civil Procedure provides a set of simplified rules for use in smaller and, in theory, less complicated matters. However, exactly how those rules apply in certain contexts is not always apparent. In Singh v Concept Plastics Limited, the Ontario Court of Appeal recently addressed the challenges of summary judgment motions in the context of the simplified rules.
January 17, 2017Using rules of thumb to generate estimates can be very useful in a variety of circumstances: for example, when the detailed information necessary to generate a precise answer is unavailable, or when it’s too difficult to analyze that detailed information. Lawyers use such rules of thumb in a number of circumstances, sometimes as an initial rough estimate, and sometimes to confirm the results of more detailed analysis.
January 12, 2017Kierkegaard famously observed that life can only be understood backwards. Many a commercial lawyer finds this easy to understand. It is a reality of modern commercial life that increasingly complex and sophisticated transactions can have implications that are not understood or anticipated when they are executed, but only become clear later, and in hindsight. This may especially be the case where complex transactions need to be executed quickly and in real time.
December 19, 2016Kim NusbaumThe Ontario Rules of Civil Procedure allow for certain matters to proceed by way of application, where a court can determine a discrete legal issue without the need for a full trial. Although an application can be an expeditious and cost-effective way to resolve a legal dispute, lawyers should be careful to ensure the issues in the case are the proper subject matter of an application. The Ontario Court of Appeal’s decision in Jackson v Solar Income Fund Inc is an important reminder of the limits of an application and the court’s unwillingness to make rulings on the basis of a limited evidentiary record.
December 14, 2016To most people, a contract is a written agreement, typically signed by all parties, that sets out what different parties promise to do. But what happens that the written agreement is ambiguous? Courts have long held that evidence of the “factual matrix” of the contract—that is, the surrounding circumstances that inform the context in which a contract is created—is admissible in the interpretation of a contract. In its recent decision in Shewchuk v Blackmont Capital Inc, the Ontario Court of Appeal confirmed that evidence of subsequent conduct may also be admissible to interpret the agreement itself.
December 8, 2016Lawyers sometimes describe cases as being like a law school problem. Sometimes that means that the case raises difficult and complicated questions of law and fact that are nearly impossible to resolve. And sometimes it means that the case raises an obscure issue that seems more like a dispute between property owners in 19th century England. Gallant v Dugard squarely falls into the latter category.
December 1, 2016Laurel D. HoggA recent decision of the Divisional Court of Ontario has opened the door for a limited expansion of the discovery process under the Small Claims Court Rules (“Rules”). In Riddell v Apple Canada Inc, the Divisional Court upheld an order for inspection of property, made by a Deputy Judge of the Small Claims Court. The decision clarifies the Rules concerning discovery-type motions in the Small Claims Court and, in particular, confirms that the Small Claims Court has jurisdiction to make orders for pre-trial inspection of property.
November 28, 2016Sam JohansenAll professionals deal with difficult clients from time to time. Difficult clients are often characterized by an aversion to receiving negative opinions and a refusal to heed the counsel of the professionals they have retained. A natural temptation when dealing with such clients might be to stop giving negative opinions to them and to instead focus on simply completing the tasks which the client has instructed. However, as the recent decision in Western Troy Capital Resources Inc v Genivar Inc demonstrates, in order for professional firms to avoid potential liability, they must ensure that they state their negative opinions clearly to their clients, especially in circumstances where a professional believes that the work which they are being retained to complete is futile.
November 25, 2016“Privacy is something you can sell, but you can't buy it back.”
November 18, 2016Patrick HealyIs it improper for an opinion expert to hire his or her own lawyer to help prepare an opinion? That was the issue in the recent decision of Justice Perell in Wright v. Detour Gold. Justice Perell ruled that there was nothing improper in an expert retaining counsel to assist with the preparation of the opinion. The reasons are interesting in their conceptualization of the expert’s overriding duty to the Court, and for their interpretation of the recent Supreme Court of Canada case, White Burgess Langille Inman v. Abbott and Haliburton Co., concerning the admissibility of opinion evidence.
November 15, 2016Businesses need to be able to resolve disputes quickly and effectively. For that reason, the Ontario Business Corporations Act (the “OBCA”) provides that any appeal of an order made under the OBCA lies to the Divisional Court (a special branch of the Superior Court of Justice), instead of the Court of Appeal. In theory, appeals to the Divisional Court are resolved more quickly than appeals to the Court of Appeal.
November 9, 2016A contractual provision which entitles a party to an excessive administrative charge on default may be considered an unenforceable penalty clause. Notwithstanding parties’ general freedom to negotiate their own remedies, Courts will find overly onerous damages provisions unenforceable. This was exactly the situation in RCAP Leasing Inc v Martin.
November 3, 2016James S.S. HoltomThe Supreme Court of Canada is set to take up the important issue of the promise doctrine in patent law in AstraZeneca Canada Inc. v. Apotex Inc., presently scheduled for hearing on November 8, 2016.
October 20, 2016Mariam MoktarAn “active employment” clause in a bonus plan is not sufficient to extinguish an employee’s right to damages for lost bonuses in a wrongful dismissal action. This principle was affirmed by the Ontario Court of Appeal in the recent decision of Paquette v TeraGo Networks Inc.
October 12, 2016Following years of debate in Ontario, in 2012, our Court of Appeal officially recognized breach of privacy as an independent common law tort, but subject to modest damages. Two recent breach of privacy cases significantly departed from the recommended range of damages, and awarded amounts that materially exceed the top award proposed by the Court of Appeal.
October 7, 2016Can a Judge impose conditions restricting the ability of a foreign country, receiving evidence pursuant to the Mutual Legal Assistance in Criminal Matters Act (MLACMA), from sharing that evidence with another country as it sees fit? Despite the obvious difficulties which arise from such an Order, Justice Nordheimer did just this in his recent decision in Mutual Legal Assistance in Criminal Matters Act (Re), in which he attempts to strike a balance between Canada’s treaty obligations to assist in the investigation of criminal activity, and the privacy interests of third parties.
October 4, 2016The proliferation of parallel class proceedings in multiple Canadian provinces often defeats the very purpose of class proceedings: the avoidance of a multiplicity of actions. In order to streamline procedures, ensure consistent results, and encourage judicial economy, judges in several provinces have started demanding greater co-ordination among both class counsel and the courts. In McKay v Air Canada, Chief Justice Hinkson took this trend even farther in approving a settlement distribution plan by simply reproducing the reasons of the Ontario Court in Airia Brands v Air Canada.
September 28, 2016Kim NusbaumLawyers are continually reminded of the importance of pleadings—and, perhaps not surprisingly, of naming the correct corporate entity as defendant. So what if a party name is slightly off? What may look like a simple misnomer could in fact end your lawsuit. Justice Daley of the Ontario Superior Court of Justice addressed this issue in Anderson-Munroe v. Sheraton Hotels.
September 23, 2016The interaction between a government’s statutory obligation and a common law duty of care can be a difficult area to navigate in negligence claims. In Williams v Toronto, the Ontario Court of Appeal held that, on the facts of that case, the failure of the City of Toronto to fulfil a statutory obligation was civilly actionable by residents. In so doing, the Court provides further guidance as to what surrounding circumstances can push such failures into the realm of negligence.
September 21, 2016Danielle GlattIn Hryniak v. Mauldin, the Supreme Court of Canada called for a “culture shift” in the legal community’s approach to adjudicating disputes. Justice Karakatsanis provided a clear directive: summary judgment is a “legitimate alternative for adjudicating and resolving legal disputes”. It is not merely a “tool used to weed out clearly unmeritorious claims or defences.”
September 13, 2016Over the 25 years that Ontario’s Class Proceedings Act has been in force, there have been fewer than 20 common issue trials. While class actions have the potential to remove access to justice barriers and improve judicial economy and efficiency, in Ontario their scope has been limited.
September 1, 2016The limitation period for claims under s. 36 of the Competition Act is a longstanding question of Canadian competition law. The plain language of the statute suggests that such claims must be brought within two years of the anticompetitive conduct. But in Fanshawe College of Applied Arts and Technology v AU Optronics Corporation, the Ontario Court of Appeal has reached a conclusion that is much more generous to Plaintiffs, holding that such claims must be brought within two years of the Plaintiff discovering the anticompetitive conduct.
August 12, 2016Lars BrusvenIn Ontario, if a product harms consumers, a manufacturer may apologize without risk of the apology being used as an admission of liability in subsequent civil proceedings. Indeed, Ontario’s Apology Act expressly protects defendants from their apology being used in a determination of fault or liability.
August 11, 2016A recent Alberta trial decision reads like something out of an antiquated law school casebook in which damages are claimed based on the disappointment of one spouse (usually the husband) about the past conduct or character of the other (usually the wife).
August 8, 2016Barrick Gold Corporation’s disclosure, on April 10, 2013, that a Chilean court had issued an interlocutory order suspending the construction of its...
August 2, 2016A person’s reasonable expectation of privacy in the most intimate parts of their own body may not shield them from a police search if what the...
July 26, 2016Costs awards are a key element to the litigation process, rewarding successful parties and dissuading underserving would-be litigants. The goals of...
July 20, 2016Lawyers are reminded of the importance of exercising care when drafting pleadings. In the recent case Strudwick v. Applied Consumer & Clinical Evaluations Inc., the Ontario Court of Appeal held that not even the particularly egregious conduct of the defendants warranted relaxation of the principle that a court’s jurisdiction to award damages is limited by the amount sought in the pleadings.
July 19, 2016Yesterday’s decision from the Supreme Court of Canada in Wilson v. AECL will no doubt generate (and has already generated: e.g. here, here) significant commentary.
July 15, 2016In an increasingly global society, obtaining evidence from witnesses outside of a party’s jurisdiction can be costly.
July 14, 2016An interlocutory injunction is a valuable tool to maintain the status quo between parties, pending the resolution of litigation. Most disputes over whether an interlocutory injunction should be granted will depend on whether there will be “irreparable harm” if an injunction is not granted. However, as Guelph Taxi v Guelph Police Service shows, it is also critical that the party seeking an injunction give a meaningful undertaking to pay damages if the injunction is granted but the party is ultimately unsuccessful.
July 8, 2016Laura RobinsonMany counsel have undoubtedly been asked by their clients what remedies are available in the face of an opposing party who opts not to comply with a court order. In Ontario, a party may bring a motion for a contempt order to enforce an order requiring a party to do an act (or abstain from doing an act) other than the payment of money. While certain litigants may be enticed by the option of seeking incarceration or additional fines from their adversary due to their non-compliance, the recent case of N-Krypt International Corp. v. Zillacomm Canada Inc. et. al. serves as a reminder that counsel should carefully consider whether a contempt proceeding truly advances their client’s best interest.
July 4, 2016Foreign states are rarely sued in domestic courts. In Canada, that is generally so for a single, good, reason: the State Immunity Act, (“SIA”). That statute, implementing the international law doctrine of state immunity into Canadian law, grants virtually all states immunity in respect of (most) non-commercial dealings.
June 29, 2016When will considerations of prejudice trump strict adherence to time requirements in the submission of expert reports?
June 27, 2016
