Our Blog

• On the Docket: Cases to Watch (Issue 2)

  On the Docket: Cases to Watch features a collection of decisions, identified by our expert Research & Advisory team, that are important to keep top of mind as they offer significant legal insights and shape the evolving landscape of Canadian law.

  November 28, 2024
  Lynne McArdle
• Live and Let Dye – Litigation Maneuvers Prior to a Shareholder Vote

  Christopher Yung authored the blog Live and Let Dye – Litigation Maneuvers Prior to a Shareholder Vote, published on commerciallist.com.

  November 27, 2024
  Christopher Yung
• The (Corporate) Mind Is Its Own Place

  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, 2024
  Scott Rollwagen

  Matthew B. Lerner

  Jessica Kras
• Out of Context, Out of Luck

  Solomiya Zakharchuk authored the blog Out of Context, Out of Luck, published on commerciallist.com.

  April 30, 2024
  Solomiya Zakharchuk
• Pay to Play: Court of Appeal Enforces Full Payment of Lender Fee

  Barring 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, 2024
  Jonathan Chen

  Christine Windsor
• Shareholder Wars: A Receiver Is Not the Remedy

  Bonnie Greenaway and Drew Black co-authored the blog Shareholder Wars: A Receiver Is Not the Remedy, published on commerciallist.com.

  April 23, 2024
  Bonnie Greenaway

  Drew Black
• Court Affirms Extreme Circumstances Required to Restrain Power of Sale

  A 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, 2024
  Jonathan Chen

  Mari Galloway
• Mere Share Ownership Not Enough to Justify Enforcement of Non-Compete Against an Employee

  In 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, 2024
  Matthew B. Lerner

  Zachary Rosen
• Contempt on the Commercial List

  Court orders must be obeyed. If they are not, the consequences can be severe.

  March 6, 2024
  Derek Knoke

  Derek Hooper
• Whose Responsibility Is It Anyway? Chatbots and Legal Issues in Moffatt v Air Canada

  On 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, 2024
  Meghan Bridges
• On the Docket: Cases to Watch (Issue 1)

  Lynne McArdle published the first issue of On the Docket: Cases to Watch, which features a collection of cases 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, 2023
  Lynne McArdle
• Court of Appeal Polices Strategic Behavior in Valuation Under a Buy-Sell

  A 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
  Scott Rollwagen
• A Contract: 👍 or 👎? The Commercial Impact of Our Emojis

  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, 2023
  Brendan F. Morrison
• Tips from Toronto’s Business Court – Takeaways from CLUC Education Day 2023

  The 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, 2023
  Christopher Yung
• “Next Exit, Please”: Escaping a Contractual Buy/Sell Process

  Shareholder 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, 2023
  Sean Lewis
• Deference to 1968

  The 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, 2022
  Sean Lewis
• There’s No Business Like Show Business: Cineplex Awarded $1.24 Billion in Busted Deal Lawsuit

  At 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, 2021
  Brian Kolenda

  Christopher Yung
• Instructions to Spies: Are They Privileged?

  In 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, 2021
  William C. McDowell
• Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District: The SCC Drops the Other “Good Faith” Shoe

  The 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, 2021
  Scott Rollwagen
• The Disaster Sequel: The Court of Appeal Weighs in on Tommy Wiseau’s Best Worst Appeal Strategy

  Sequels 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, 2021
  Margaret Robbins
• SCC Expands the Duty of Honest Performance: Silence or Non-Disclosure Can Now Also Constitute a Breach

  This 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, 2020
  Eli S. Lederman

  Mari Galloway
• Court of Appeal Affirms Jurisdiction to Hear Appeals in Writing

  The 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
  Scott Rollwagen

  Sana Halwani

  Paul-Erik Veel
• Small Changes, Big Implications: 2019 Sees Significant Corporate and Insolvency Law Amendments

  Earlier 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, 2019
  Scott Rollwagen
• Don’t Believe What You’ve Heard: Provincial statutory trusts do survive bankruptcy

  A 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, 2019
  Matthew B. Lerner

  Scott Rollwagen
• Shell Game Liability: Recovering Damages in Complex Fraud Cases

  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, 2018
  Madison Robins
• Personal liability in the corporate context: open-ended, unclear and expansive

  The 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, 2017
  Dena N. Varah
• Entire agreement clauses: usually, but not always, the entire story

  Entire 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
  Jaan Lilles
• The UK Supreme Court Revisits "But for" Causation in Economic Negligence Cases

  “If my grandmother had wheels, she’d be a wagon”  –Yiddish proverb

  April 10, 2017
  Scott Rollwagen
• The Supreme Court Puts Down its Legal Dictionary

  Sometimes 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, 2017
  Scott Rollwagen
• When Does the Clock Start: Limitation Periods in Contractual Claims for Indemnification

  The 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, 2017
  Mark Veneziano

  Margaret Robbins
• Commercial Law Backwards and Forwards: The Supreme Court Dials Back the Remedy of Rectification

  Kierkegaard 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, 2016
  Scott Rollwagen
• Don't Make Clients Dig for the Truth: The Importance of Candor for Professional Service Firms

  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, 2016
  Sam Johansen
• At the Boundaries of Commerce, Concealment, and Common Sense: Royal Bank of Canada v Trang

  “Privacy is something you can sell, but you can't buy it back.”

  November 18, 2016
  Scott Rollwagen
• Less is Not Always More: Evaluating Causes of Action in Carriage Motions

  Barrick 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
• Freezing your own funds: How to vary your Mareva injunction

  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, 2015
• Partial indemnity costs nearing the substantial indemnity scale in Ontario (Minister of Finance, Motor Vehicle Accident Claims Fund) v Chartis Insurance Company of Canada

  In 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, 2015
  Eli S. Lederman
• Appeal dismissed in contract dispute over Canadian film rights

  In 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, 2015
• Québec Court of Appeal Affirms Duty to Protect and Enhance Brand

  The 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
  Jaan Lilles
• Getting the Full Story

  Lo Faso brings up the tension between fair and just court process and ensuring that all facts are available to adjudicate a dispute.

  June 26, 2015
  Mark Veneziano
• Striking a Jury Notice: When Is It Appropriate to "Wait and See"?

  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, 2015
• LCBO Loses Privacy Dispute over Wine Club Member Information

  The 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, 2015
  Nina Bombier
• The Admission of Expert Evidence: The Role of Impartiality

  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, 2015
  Scott Rollwagen
• Bankruptcy won't shield debtor from Court's contempt powers

  A 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, 2015
  Andrew Parley
• Versa Fittings ruling underscores high bar to relieve insurer of duty to defend

  The 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, 2015
  Nina Bombier
• Access to Justice a Key Concern in Certification Decisions

  The 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, 2015
  Lawrence E. Thacker
• Court's CCAA supervision trumps forum selection clause

  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, 2015
  Matthew B. Lerner
• Court of Appeal clarifies law on absolute privilege

  In 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, 2015
  Rebecca Jones
• Deference gives way to procedural fairness in PEI decision

  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, 2015
  Dena N. Varah
• Supreme Court Clarifies the Test for Constructive Dismissal

  In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Supreme Court clarified and reformulated the law on constructive dismissal...

  March 16, 2015
• Towards a More Workable Approach: Proportionality and Internet Defamation

  As the internet continues to develop into the primary forum for expression in our society, defamation actions increasingly involve comments made online.

  March 10, 2015
  William C. McDowell
• Nova Scotia Barristers Society without jurisdiction to refuse Trinity Western University grads

  The 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, 2015
  Jaan Lilles
• Court Certifies Sino-Forest Class Action

  The 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, 2015
  Lawrence E. Thacker
• The weight of the corporate veil: It will be lifted with only the strongest tools

  The "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, 2015
  Monique Jilesen
• Relying on an exclusion clause in a contract requires a careful approach

  The Ontario Court of Appeal recently had a chance to consider the law regarding exclusion clauses in the lease context.

  February 23, 2015
• Know Thy Client

  The 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, 2015
  Nina Bombier
• Court of Appeal Reaffirms Gatekeeping Function For Potential Experts

  The 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, 2015
• A lie by any other name?

  In 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, 2015
• Supreme Court Offers Guidance on Standard of Review and Efficiency Defence Under the Competition Act

  The 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, 2015
• No absolute privilege for city councillors' speech

  In 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
  Paul-Erik Veel
• Implied Waiver of Solicitor-Client Privilege is Narrow

  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, 2015
  Rebecca Jones
• When are costs awarded for travel disbursements for out-of-town lawyers?

  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, 2014
  Paul-Erik Veel
• Ontario Securities Commission Confirms Its Power to Undo Manifestly Unfair Settlements

  The 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, 2014
• Court of Appeal makes certification of class actions for overtime pay more difficult

  Canadian 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
  Paul-Erik Veel
• BC Court Signals Change in Patent Landscape with Viagra Decision

  The 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, 2014
  Paul-Erik Veel
• The first (tentative) steps toward the application of Sattva in Ontario

  The 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
  Brian Kolenda
• Speak No Evil: Defamation and Unlawful Interference with Economic Relations

  The tort of unlawful interference with economic relations is surprisingly slippery, especially when pleaded alongside defamation.

  September 11, 2014
• Avoiding A Written Contract No Assurance of Maintaining Flexibility

  Avoiding 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