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Commercial Litigation - On the Docket
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As important as corporations are to modern commerce, Courts have long struggled with how to make these fictional persons responsible for their actions when allegations against them require the Court to assess their state of mind. The problem is as old as the modern corporation, and can cause exasperation when corporations fail, leading Lord Chancellor Thurlow in the 18th century to remark that a corporation, being a fiction, “has neither a body to kick, nor soul to be damned.”
October 16, 2024Solomiya Zakharchuk authored the blog Out of Context, Out of Luck, published on commerciallist.com.
April 30, 2024Bonnie Greenaway and Drew Black co-authored the blog Shareholder Wars: A Receiver Is Not the Remedy, published on commerciallist.com.
April 23, 2024Barring a very narrow set of circumstances, sophisticated parties with equal bargaining power are generally held to the terms of their agreement. 660 Sunningdale GP Inc v First Source Mortgage Corporation is a recent example where a commercial developer, 660 Sunningdale GP, was ordered to pay the entirety of the lender fee to the lender, First Source Mortgage Corporation, even though the loan did not proceed.
April 23, 2024A power of sale is a very common mortgage remedy used by lenders where a borrower defaults under the applicable mortgage agreement. In light of the current interest rate environment, the power of sale process has anecdotally been exercised more frequently. Lenders (and borrowers), however, should keep in mind when such a right can be restrained.
April 3, 2024In the recent decision of Wyse Meter Solutions Inc v CARMA Corp, Justice Audrey P. Ramsay rejected an attempt by a former employer to obtain injunctive relief enforcing a non-competition clause against an employee who had been required, as a condition of employment, to purchase shares in the employer.
March 18, 2024Court orders must be obeyed. If they are not, the consequences can be severe.
March 6, 2024On February 14, 2024, the British Columbia Civil Resolution Tribunal (which is the equivalent of Ontario’s Small Claims Court) issued its decision in Moffatt v Air Canada. In less than a week, the decision has made international news as a result of the involvement of Air Canada’s chatbot.
February 21, 2024Lynne McArdle provides a summary of our Cases to Watch from Q4 2023. On the Docket: Cases to Watch features a collection of cases, identified by our Research team, that move the law forward in some meaningful way. The cases in this edition are diverse in that they arise in different areas of the law: fraudulent conveyances, securities law, class actions, employment law, discovery, and Crown law.
December 22, 2023A recent decision of the Ontario Court of Appeal illustrates how the doctrine of repudiation of contracts applies to buy-sell agreements. The Court found that a contract created under a buy-sell mechanism can be repudiated where one party's conduct undermines the integrity of the valuation machinery of the buy-sell.
November 14, 2023-
Brendan F. Morrison & Emily Rand
The King’s Bench for Saskatchewan has been turning heads and raising eyebrows 😲 following a recent decision on the legal force of emojis.
July 11, 2023The Commercial List Users’ Committee (CLUC) held its annual Education Day on June 7. The annual event offers an opportunity for members of the bar to gather with the Judges of the Commercial List to discuss current issues and best practices.
June 12, 2023Andrew Porter & Sean LewisShareholder agreements commonly contain buy/sell provisions establishing a process by which a shareholder can initiate a sale of their interest or can acquire the interest of another shareholder. The particulars of this process vary. Based on the parties’ bargain at the time the agreement is made, there are frequently unique and particular requirements to these provisions. The Ontario Superior Court of Justice emphasizes the importance of abiding by those requirements, as seen in a recent decision invalidating a purported closing of a share purchase transaction for the purchasers’ failure to comply with the specific process set out in the Shareholders’ Agreement. Justice Vella’s reasons in Leeder Automotive Inc v Warwick therefore offer an excellent reminder to shareholders that they disregard the requirements of a buy/sell provision at their peril.
February 10, 2023The Court of Appeal for Ontario has once again reaffirmed the deference afforded to first instance judges in cases of contractual interpretation that rely heavily on the factual matrix—even where the underlying facts and history are unique.
August 2, 2022At the outbreak of the COVID-19 pandemic, a buyer of any business, particularly a theater operation heavily affected by public health restrictions, might understandably ask themselves; “Can I walk away from the deal?”
December 15, 2021William C. McDowell & Adil AbdullaIn brief, the decision by Justice Boswell of the Commercial List suggests that solicitor/client privilege has been narrowed, and litigation privilege has become easier to lose. For seven years, Catalyst Capital and West Face Capital have been at war. Their latest skirmish, over privilege, might change the way that lawyers interact with witnesses, investigators, and the media.
April 15, 2021The Supreme Court of Canada released its long-anticipated decision in Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District today, a major decision concerning the scope of the obligation to perform and enforce contracts in good faith. While it rejected any suggestion that it is the Court’s role to impose unbargained-for terms on a private agreement, the Court affirmed a general power—that cannot be excluded—to police the exercise of discretion under contracts where its exercise would undermine the purpose of the parties’ agreement.
February 5, 2021Sequels in the movie business, just like appeals in the judicial system, carry certain undeniable risks. For every triumphant The Empire Strikes Back, there are dozens of Speed 2: Cruise Control, Jaws: The Revenge, Weekend at Bernie’s II (or, heaven forbid, Return of the Jedi) which exist as a cautionary tale to revisiting the same material again.
January 27, 2021This past Friday, the Supreme Court of Canada released its much-anticipated decision in C.M. Callow Inc v Tammy Zollinger (“Callow”), the first of two appeals heard in December 2019 seeking clarification on the scope of the organizing principle of good faith recognized in Bhasin v Hrynew (“Bhasin”).
December 21, 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, 2020-
Julia Flood
On 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, 2020Earlier 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, 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, 2019Mariam 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, 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, 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 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, 2017Chris Kinnear HunterLike 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, 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, 2017“If my grandmother had wheels, she’d be a wagon” –Yiddish proverb
April 10, 2017-
Ahmad Mozaffari
Those 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, 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, 2016All 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, 2016Chris Kinnear HunterBusinesses 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, 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, 2016-
What happens when you take the unusual step of freezing your own assets with a Mareva injunction, but later find you need to access the funds? In Yan v...
December 8, 2015Chris Kinnear HunterThe Supreme Court of Canada has released its highly anticipated decision in Chevron Corp. v. Yaiguage, 2015 SCC 42.
September 15, 2015In a recent decision, the Ontario Superior Court awarded costs on a partial indemnity scale which constituted 75% of the costs actually incurred by the successful party. The decision demonstrates the possibility of a generous costs award on a partial indemnity scale where the issues at stake are important and complex, and both written materials and oral submissions are of high calibre.
August 20, 2015Constanza PauchuloThe Court of Appeal for Ontario, in Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc., 2015 ONCA 465, recently affirmed that exceptions to the "fresh start" rule in bankruptcy must be construed narrowly and applied only in clear cases. The Court grounded its ruling in what it characterized as the "twin" goals of the Bankruptcy and Insolvency Act: (1) the equitable distribution of the bankrupt's assets among the bankrupt estate's creditors; and (2) the financial rehabilitation of insolvent individuals (para. 1).
August 11, 2015In PDM Entertainment Inc. v. Three Pines Creations Inc and Louise Penny, the Ontario Court of Appeal had to decide who was entitled to produce the next television adaptation of the fictional Chief Inspector Gramache.
July 29, 2015The Quebec Court of Appeal affirmed the trial decision in Dunkin Brands Canada Ltd v. Bertico Inc. establishing a duty on franchisor Dunkin Brands to take reasonable steps to protect and enhance the brand in the face of competition. The effect of the decision will have a lasting and potentially far reaching impact on the duties of parties to franchise agreements.
July 8, 2015Lo Faso brings up the tension between fair and just court process and ensuring that all facts are available to adjudicate a dispute.
June 26, 2015In Chandra v. CBC, 2015 ONSC 2980, Justice Graeme Mew rejected the CBC's argument that the jury notice should be struck because the issues and the expert...
June 23, 2015The Liquor Control Board of Ontario has lost a protracted dispute with the Information and Privacy Commissioner (IPC) over its right to collect the personal information of wine club members in the recent case of Liquor Control Board of Ontario v. Vin De Garde Wine Club, 2015 ONSC 2537.
May 27, 2015Chris Kinnear HunterWhose law governs contractual disputes when the parties are in different jurisdictions and the contract itself is silent on the matter?
May 7, 2015-
It is commonly accepted that the evidence of expert witnesses must be impartial and that they owe a duty to the court to give fair, objective and non-partisan opinion evidence.
May 5, 2015Andrew Parley & Constanza PauchuloA fundamental purpose of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the "Act") is the financial rehabilitation of the "honest but unfortunate" debtor. One way that this purpose is achieved is through the automatic stay of proceedings granted under section 69(1)(a) of the Act.
April 22, 2015The recent decision of the Ontario Superior Court in Versa Fittings v. Berkley Insurance Co. (2015 ONSC 1756) reinforces that a Rule 21 motion is an expedient way to secure a ruling on whether an insurers duty to defend has been triggered.
April 16, 2015Lindsay BeckThe political blogosphere is rude, aggressive and insulting, but the ruling in Baglow v. Smith (2015 ONSC 1175) suggests that it is nonetheless a tough forum in which to make out a case of defamation.
April 7, 2015The Ontario Divisional Court has recently affirmed the importance of access to justice as a factor in determining whether to certify a proposed class action.
April 2, 2015An ongoing insolvency proceeding under the Companies' Creditors Arrangement Act can now be added to the short list of circumstances in which a court will decline to follow a forum selection clause in a commercial contract.
March 30, 2015In Salasel v. Cuthbertson (2015 ONCA 115), the Court of Appeal provided welcome clarification on the doctrine of absolute privilege, in a decision that revisited the case of Hassan Rasouli.
March 26, 2015Administrative lawyers and regulators should take note: in Swart v. College of Physicians and Surgeons of Prince Edward Island the Prince Edward Island Court of Appeal provided express guidance in the prosecution of complaints against doctors.
March 23, 2015In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Supreme Court clarified and reformulated the law on constructive dismissal...
March 16, 2015As the internet continues to develop into the primary forum for expression in our society, defamation actions increasingly involve comments made online.
March 10, 2015-
Lindsay Beck
Score one for science, zero for journalistic integrity and a point for an interesting advance in the law of defamation.
March 6, 2015The Nova Scotia Supreme Court ruled late in January that the Nova Scotia Barristers Society ("NSBS") must accredit law degrees granted by Trinity Western University ("TWU") in Langley, British Columbia.
March 5, 2015The Sino-Forest class action has been certified, and leave was granted to bring a claim under the Securities Act for secondary market misrepresentations.
March 3, 2015The "corporate veil" is an old and well-establish concept. Corporations are separate legal entities under the law and, generally, liability will not flow through the corporation and onto the owners and directors. This is why a corporate bankruptcy doesn't result in a flurry of debt collectors knocking on the door of every shareholder.
March 2, 2015The Ontario Court of Appeal recently had a chance to consider the law regarding exclusion clauses in the lease context.
February 23, 2015The Court of Appeal recently released a decision that serves as a reminder to all counsel: never lose sight of who you act for.
February 12, 2015The Court of Appeal has affirmed the robust gatekeeping function to be exercised by trial courts in the admission of expert evidence (Meady v. Greyhound...
February 5, 2015In what circumstances is a failure to disclose a breach of the duty of honesty?
A recent decision of the Ontario Superior Court, Lavrijsen Campgrounds Ltd. v. Reville, 2015 ONSC 103, provides an occasion to reflect on this issue, arising from the Supreme Court of Canada's ruling in Bhasin v. Hrynew, 2014 SCC 71. In Bhasin, the Court recognized the "general organizing principle of good faith" in contract law, and held that there is:
February 2, 2015Supreme Court Offers Guidance on Standard of Review and Efficiency Defence Under the Competition ActThe Supreme Court in Tervita Corp. v. Canada (Commissioner of Competition) held that a merger between landfill operators would prevent competition but provide efficiency gains, and allowed the deal to proceed. In so doing, it has provided important guidance three issues:
January 27, 2015In its recent decision in Gutowski v. Clayton, 2014 ONCA 921, the Ontario Court of Appeal provided helpful advice to two sets of professionals: municipal councillors and lawyers. First, the Court confirmed for municipal councillors that they do not enjoy absolute privilege for defamatory statements they make during municipal council meetings. Second, the Court signalled to litigators that a Rule 21 motion is not the "appropriate vehicle" through which to attempt to develop an area of law that is not fully settled.
January 23, 2015-
The Ontario Superior Court of Justice has reinforced the principle that a persons privileged communications with his or her lawyer should be strictly protected, except in narrow circumstances.
January 21, 2015Jaclyn Greenberg & Jaclyn GreenbergDefendants in consumer class actions should be on notice, following two recent decisions that used consumer protection legislation as a basis to award damages.
January 7, 2015Its trite law that an unsuccessful litigant generally pays the successful partys costs. But what happens when the winner hired lawyers from out-of-town who had to travel regularly for the case?
November 28, 2014The Ontario Securities Commission has vacated a 2007 settlement agreement reached between Marc McQuillen and Regulation Services (now the Investment Industry Regulation Organization of Canada (IIROC))
November 6, 2014Canadian Courts have been faced in recent years with a number of class actions in which employees allege that their employer improperly misclassified them as ineligible for overtime pay. The Ontario Court of Appeal's recent decision in Brown v. Canadian Imperial Bank of Commerce makes it more difficult for such claims to proceed as class actions.
October 30, 2014Jaclyn Greenberg & Jaclyn GreenbergLazy litigants beware: not only is your (in)action subject to a dismissal motion under Rule 24 of the Rules of Civil Procedure, it is also subject to the court's inherent jurisdiction.
October 14, 2014Lindsay BeckAt least one Superior Court judge seems to think so. In a decision on costs, Justice David Brown made the following comment regarding the claims for photocopying:
September 25, 2014Jaclyn Greenberg & Jaclyn GreenbergCall it what you want: unethical tactics, improper, vexatious, or Organized Pseudolegal Commercial Arguments (OPCA) – the term coined by one Alberta judge – but actions engineered to frustrate the legal rights of governments, corporations and individuals will be rebuked for what they are: a shake down.
September 22, 2014The British Columbia Supreme Court's decision in Low v. Pfizer Canada Inc., 2014 BCSC 1469 could radically change the legal landscape for patent law in Canada. Patent law has thus far been entirely statutory rather than a product of the common law; courts had not recognized any common law rights or remedies in relation to patents. The decision of Justice Smith changes that, and in so doing changes the risks innovators must consider.
September 18, 2014The Supreme Court of Canadas decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (Sattva) appeared to herald a new era of deference to arbitrators: on at least ordinary questions of law, courts are now to review arbitration awards on a reasonableness standard.
September 16, 2014-
Jaclyn Greenberg & Jaclyn Greenberg
Relief from campaign finance rules may not be hard to come by if the wrongdoing was done in good faith. In Obina v. City of Ottawa, aspiring city councillor Lilly Obina was granted relief from penalty, despite contravening rules under the Municipal Elections Act (MEA) regarding the filing of financial statements for her 2010 campaign.
September 12, 2014The tort of unlawful interference with economic relations is surprisingly slippery, especially when pleaded alongside defamation.
September 11, 2014Avoiding a written contract is no assurance that parties can maintain maximum flexibility in their dealings. In S & J Gareri Trucking v. Onyx Corporation, 2014 ONSC 476, Onyx was successful in a tender with the City of Mississauga (the City) to provide five years of snow removal services. In so doing, Onyx indicated that it would allocate 19 trucks to providing services under the contract.
September 9, 2014
