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On the Docket
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An ongoing insolvency proceeding under the Companies' Creditors Arrangement Act can now be added to the short list of circumstances in which a court will decline to follow a forum selection clause in a commercial contract.
March 30, 2015The 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, 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, 2017Adam H. KanjiOn July 29, 2020, Chief Justice Morawetz announced that the Ministry of the Attorney General (“MAG”) will be piloting a new document sharing and e-hearing platform for select civil matters located in Toronto as of August 10, 2020, with the desire of having all Toronto matters on the system by the end of August. By the end of 2020, Ontario hopes to have all Superior Court proceedings using this platform.
August 13, 2020Mariam 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, 2018The 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 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, 2015It’s no surprise to litigators that some courts tend to be relaxed with the rules of evidence in civil cases. In many contexts, courts are prepared to admit inadmissible hearsay evidence and simply address evidentiary concerns by noting that such evidence may be given less weight. That type of approach was often taken in cases under section 8 of the Patented Medicine (Notice of Compliance) Regulations.
June 7, 2016The "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, 2015It 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, 2015-
Class 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, 2019An 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, 2018Laurel 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, 2016The 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, 2020The 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, 2015For 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, 2017In 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, 2015In 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 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, 2020Pierre 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, 2017-
Colin Johnston & Patrick A. Wright
In 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, 2018In 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, 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, 2015Chris Kinnear HunterThe Court of Appeal addressed the admissibility and permissible use of surreptitiously recorded video surveillance evidence at trial in its recent decision Iannarella v. Corbett, 2015 ONCA 110.
February 26, 2015As the internet continues to develop into the primary forum for expression in our society, defamation actions increasingly involve comments made online.
March 10, 2015Sometimes 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, 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, 2017Yesterday’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, 2016Chris Kinnear HunterWhose law governs contractual disputes when the parties are in different jurisdictions and the contract itself is silent on the matter?
May 7, 2015To 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, 2016-
Administrative lawyers and regulators should take note: in Swart v. College of Physicians and Surgeons of Prince Edward Island the Prince Edward Island Court of Appeal provided express guidance in the prosecution of complaints against doctors.
March 23, 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, 2015Any action described by the Judge as novelty on steroids provides an opportunity for the Court to balance the opportunity to develop new law, with the importance of rigorously applying existing law. This duality arose in a motion in the class action Fisher v IG Investment Management Ltd (2015 ONSC 3525), recently decided by the Ontario Superior Court.
August 6, 2015The 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, 2017Lindsay BeckScore one for science, zero for journalistic integrity and a point for an interesting advance in the law of defamation.
March 6, 2015In the spring of 2020, we posted an analysis of the Supreme Court of Canada’s 2019 Year in Review and summarized some of the statistics found in that document. Unfortunately, the general statistics found in the 2019 Year Review were high level and limited the analysis we could provide about what was happening at the Supreme Court of Canada. We also could not find any publicly available and current datasets that would allow us to provide a more detailed analysis.
March 22, 2021“If my grandmother had wheels, she’d be a wagon” –Yiddish proverb
April 10, 2017Chris 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, 2016Laws 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, 2020Andrew 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, 2018-
Over 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, 2017It 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, 2018March 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, 2019Given 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, 2018Sean BlakeleyUntil recently, there was some uncertainty as to whether, in some circumstances, the decisions of private organizations might be subject to judicial review.
June 15, 2018Many 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, 2020Lawyers 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, 2016A 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, 2019The 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, 2015Following the Ontario Court of Appeal's 2010 decision in Dynasty Furniture Manufacturing Ltd. v. Toronto Dominion Bank (2010 ONCA 514), many legal observers believed that the court had closed the door on a bank's liability for negligence in the absence of actual knowledge of fraudulent activities conducted through an account of its customer.
March 13, 2015-
An 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, 2016When 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, 2018As 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, 2017The 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, 2016The Greenhouse Gas Pollution Pricing Act and the National Concern Doctrine: A Rights-Based Approach?Over the past two days, the Supreme Court of Canada heard appeals from decisions of the Alberta, Saskatchewan, and Ontario Courts of Appeal on the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act (the “GGPPA” or the “Act”).
September 24, 2020Lo Faso brings up the tension between fair and just court process and ensuring that all facts are available to adjudicate a dispute.
June 26, 2015While 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, 2017A 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, 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, we launched our Supreme Court of Canada Decisions Project. Our dataset contains information about every Supreme Court of Canada decision going back to the mid-1950s.
June 28, 2022-
Its 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, 2014Lawyers are trained to do close and careful reading of cases. We are experts in textual analysis of individual decisions, and we can spend hours arguing over what individual paragraphs in Supreme Court of Canada decisions mean. Yet while individual decisions are important, so are the aggregate trends. Quantitative data can reveal important information that lawyers can use to engage in more effective advocacy and better inform our clients as to what to expect.
May 4, 2020“Privacy is something you can sell, but you can't buy it back.”
November 18, 2016“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, 2017Anne E. Posno & Scott RollwagenLord 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, 2018Scott Rollwagen & Lindsay BeckLaw and fact, deference and correctness seem no less muddled than ever, as judges begin to interpret the Supreme Court's decision in Sattva Capital Corp v. Creston Moly Corp, 2014 SCC 53. In Sattva Capital, the Court held that pure contractual interpretation matters generally raise issues of mixed fact and law requiring deference, unless it is possible to clearly identify extricable issues of law.
February 17, 2015At the risk of stating the obvious, gambling is unpredictable. Most people would agree that law is different. We think of law as being a predictable discipline governed by rules. Or at least we want to think that it is. A recent decision of the Ontario Court of Appeal—one that fittingly involves gambling— reminds us, however that predictability is not the only principle that courts value.
June 16, 2016Using 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, 2017When will considerations of prejudice trump strict adherence to time requirements in the submission of expert reports?
June 27, 2016Canadian 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, 2014-
Since 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, 2018The 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 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, 2019The hockey season is once again upon us. Across the country, from water coolers to dressing rooms, Canadians have returned to their winter status as experts in the basic principles of our beloved sport. As the season began, the Court of Appeal for Ontario also weighed in on the conversation, releasing a decision that ruled that conclusions about hockey strategy must be supported by actual evidence.
October 19, 2015The 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, 2017The 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, 2014Jaclyn Greenberg & Jaclyn GreenbergA recent decision of the Ontario Court of Appeal makes the question of who you trust with your car more difficult to answer.
November 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, 2015Under 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, 2017-
All professionals deal with difficult clients from time to time. Difficult clients are often characterized by an aversion to receiving negative opinions and a refusal to heed the counsel of the professionals they have retained. A natural temptation when dealing with such clients might be to stop giving negative opinions to them and to instead focus on simply completing the tasks which the client 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, 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, 2016Kierkegaard 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, 2016Entire 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, 2017Employers 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, 2018Class 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, 2017Lawyers 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, 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, 2016The 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, 2015Over 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, 2016-
In Chandra v. CBC, 2015 ONSC 2980, Justice Graeme Mew rejected the CBC's argument that the jury notice should be struck because the issues and the expert...
June 23, 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, 2015In the late 2019 decision in V.M.Y. v S.H.G., Justice Kristjanson of the Ontario Superior Court of Justice for the first time recognized the tort of “publicity placing a person in a false light” in Canadian law. But do we need yet another invasion of privacy tort?
January 22, 2020In 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, 2017Paul-Erik Veel & Chris Kinnear HunterGiven 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, 2018Lars 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 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, 2018Mariam 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, 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, 2016In 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, 2020-
How 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, 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, 2018In 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, 2019Supreme 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, 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, 2015Lars 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, 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, 2017It is well established that an employee who has been dismissed from his or her position has a duty to mitigate their damages by seeking reemployment. The central question is whether a reasonable person in the employee's position would have accepted the offer of employment.
February 4, 2016The 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, 2017While 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, 2018-
Refusals motions have long been the scourge of the intellectual property bar. Prothonotary Aalto recently observed: "Refusals motions that last days on...
July 21, 2015Tariffs 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, 2018Expert witnesses have an obligation to be independent and impartial, but not all expert witnesses are created equal.
June 6, 2016As 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, 2018Ahmad 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, 2017The Ontario Court of Appeal recently had a chance to consider the law regarding exclusion clauses in the lease context.
February 23, 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, 2015
