“If my grandmother had wheels, she’d be a wagon” –Yiddish proverb
Ontario’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.
A recent decision of the Ontario Divisional Court upheld a contractually agreed-upon limitation period and enforced it against a third party, even in circumstances where it appeared to be at odds with the statutory provisions of the Limitations Act, 2002.
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.
Does 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...
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...
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.
Pierre 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.
Rule 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.
Using 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...
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...
The Ontario Rules of Civil Procedure allow for certain matters to proceed by way of application, where a court can determine a discrete legal issue without the need for a full trial. Although an application can be an expeditious and cost-effective way to resolve a legal dispute, lawyers should be careful to ensure the issues in the case are the proper subject matter of an application. The Ontario...
To 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...
Lawyers 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.
A 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...
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...
“Privacy is something you can sell, but you can't buy it back.” ― Bob Dylan
Is 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...
Businesses 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...
A contractual provision which entitles a party to an excessive administrative charge on default may be considered an unenforceable penalty clause. Notwithstanding parties’ general freedom to negotiate their own remedies, Courts will find overly onerous damages provisions unenforceable. This was exactly the situation in RCAP Leasing Inc v Martin.
The Supreme Court of Canada is set to take up the important issue of the promise doctrine in patent law in AstraZeneca Canada Inc. v. Apotex Inc., presently scheduled for hearing on November 8, 2016. In the meantime, the Federal Court of Appeal has re-affirmed key components of that doctrine in its recent decision in Teva Canada Limited v. Novartis Pharmaceuticals Canada Inc.
An “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.
Following years of debate in Ontario, in 2012, our Court of Appeal officially recognized breach of privacy as an independent common law tort, but subject to modest damages. Two recent breach of privacy cases significantly departed from the recommended range of damages, and awarded amounts that materially exceed the top award proposed by the Court of Appeal. Underlying these damages awards is the...
Can a Judge impose conditions restricting the ability of a foreign country, receiving evidence pursuant to the Mutual Legal Assistance in Criminal Matters Act (MLACMA), from sharing that evidence with another country as it sees fit? Despite the obvious difficulties which arise from such an Order, Justice Nordheimer did just this in his recent decision in Mutual Legal Assistance in Criminal...
The 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...
Lawyers are continually reminded of the importance of pleadings—and, perhaps not surprisingly, of naming the correct corporate entity as defendant. So what if a party name is slightly off? What may look like a simple misnomer could in fact end your lawsuit. Justice Daley of the Ontario Superior Court of Justice addressed this issue in Anderson-Munroe v. Sheraton Hotels.
The interaction between a government’s statutory obligation and a common law duty of care can be a difficult area to navigate in negligence claims. In Williams v Toronto, the Ontario Court of Appeal held that, on the facts of that case, the failure of the City of Toronto to fulfil a statutory obligation was civilly actionable by residents. In so doing, the Court provides further guidance as to...
In 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.”
Over 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.
The 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...
In 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.
A recent Alberta trial decision reads like something out of an antiquated law school casebook in which damages are claimed based on the disappointment of one spouse (usually the husband) about the past conduct or character of the other (usually the wife).
August 02, 2016
Barrick Gold Corporation’s disclosure, on April 10, 2013, that a Chilean court had issued an interlocutory order suspending the construction of its Pascua-Lama mine led to a substantial drop in its share price. This was further exacerbated the following month, when Chilean environmental regulators found serious environmental violations and shut down the project. Both Rochon Genova LLP (“Rochon”)...
July 26, 2016
A person’s reasonable expectation of privacy in the most intimate parts of their own body may not shield them from a police search if what the police are after is another person’s DNA. In R v Saeed, a seven-member majority of the Supreme Court of Canada continued the trend of expanding the common law police power of search incident to arrest in ruling that genital swabs may be taken by police...
July 20, 2016
Costs awards are a key element to the litigation process, rewarding successful parties and dissuading underserving would-be litigants. The goals of costs awards are relatively static in Ontario and should reflect the fair and reasonable expectations of the unsuccessful party, and be consistent with comparable cases. In class proceedings, the goal of access to justice is an additional criterion.
Lawyers 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.
Yesterday’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. This makes sense, given the decision’s potential impact on federally-regulated industries. The Court’s majority restored the decision of an arbitrator under the Canada Labour Code declaring that a non-unionized employee’s invocation of...
In an increasingly global society, obtaining evidence from witnesses outside of a party’s jurisdiction can be costly. For those seeking a costs order for complying with requests for inter-jurisdictional production, however, courts will consider the “reasonable costs” in the circumstances and whether the witness is a true “stranger to the litigation.”
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...
Many counsel have undoubtedly been asked by their clients what remedies are available in the face of an opposing party who opts not to comply with a court order. In Ontario, a party may bring a motion for a contempt order to enforce an order requiring a party to do an act (or abstain from doing an act) other than the payment of money. While certain litigants may be enticed by the option of...
Foreign states are rarely sued in domestic courts. In Canada, that is generally so for a single, good, reason: the State Immunity Act, (“SIA”). That statute, implementing the international law doctrine of state immunity into Canadian law, grants virtually all states immunity in respect of (most) non-commercial dealings.
When will considerations of prejudice trump strict adherence to time requirements in the submission of expert reports? Where the prejudicial effect of the late service of expert reports can be mitigated by an adjournment and a cost order, Ontario courts have shown a willingness to admit evidence to further the truth-seeking function of the trial.
At 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 13, 2016
In patent law, inventive ingenuity (also referred to as non-obviousness) is not easy to define. Judicial attempts have proved elusive.
Misfeasance in public office is a difficult claim to prove. A successful action requires plaintiffs to demonstrate that a public officer engaged in deliberate misconduct knowing that such misconduct was likely to cause harm to the plaintiff. In many cases, evidence of the requisite mental element is lacking.
It’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)...
Expert witnesses have an obligation to be independent and impartial, but not all expert witnesses are created equal.
Brevity is not always a virtue, especially when a trial judge’s decision leaves the palate of an appellate court dry. The line between insufficient reasons and succinctness was explored most recently in Dovbush v. Mouzitchka.
Non-competition clauses in employment agreements pose challenges for employers who seek to enforce them. Non-competes have to be reasonable in scope at the time they are agreed to; a perpetual or geographically unlimited non-compete covering a broad range of competitors is almost certain to be unenforceable. However, as the recent B.C. Supreme Court decision in P.R.I.S.M. v. Kramchynski...
It 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.
Is it procedurally unfair for a party to be required to proceed to a hearing if it believes, erroneously, that a deadline to file a complaint has not been met, but later learns that in fact it had been all along?
A recent Federal Court decision has given new meaning to the notion of criminalizing marijuana. The case of Trans-High Corporation v Hightimes Smokeshop and Gifts Inc (2015 FC 1104) is perhaps one of the first times marijuana related trade-mark infringement has landed someone in jail.
December 08, 2015
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. Chen, 2015 ONSC 4149, the Ontario Superior Court considered an unusual request — a motion by the plaintiffs to vary a Mareva injunction they obtained in respect of their own bank account.
November 27, 2015
In Gillespie v. Yellow Cab Company Ltd. (2015 BCCA 450), the B.C. Court of Appeal upheld an award of damages for lost income where the plaintiff was still able to achieve the pre-injury earnings, albeit with some additional effort.
A recent decision of the Ontario Court of Appeal makes the question of who you trust with your car more difficult to answer.
When does a judgment debt arising out of fraudulent misrepresentation survive a bankruptcy?
When the parties to an action settle their dispute but leave costs up to the court, can costs be assessed in an amount greater than the settlement payment? Parties may try, but as always, proportionality governs.
The 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...
In two recent cases, the Federal Court of Appeal provided "certain observations" on whether "the time has come to reconsider the view that appellate courts are to review patent construction on the basis of correctness."
The Supreme Court of Canada has released its highly anticipated decision in Chevron Corp. v. Yaiguage, 2015 SCC 42.
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 14, 2015
It is league table season. The various ratings agencies issue their lists of "best this" or "best that" in various categories, and simultaneously interview for next year's "best that" and "best this". The patent litigation lists remain strangely impervious to gender equality. I have been reflecting on why that should be.
The 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...
Any 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.
July 29, 2015
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 21, 2015
Refusals motions have long been the scourge of the intellectual property bar. Prothonotary Aalto recently observed: "Refusals motions that last days on end because counsel move on every single refused question including the most trivial without considering whether the questions are truly essential or not consume a disproportionate amount of time of the Court in dealing with them to the detriment...
The Ontario Court of Appeal ruled in P.A.R.C.E.L. Inc. v. Acquaviva, 2015 ONCA 331 that section 8 of the Interest Act may apply to a promissory note even where it is not directly secured by a mortgage.
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.
Lo Faso brings up the tension between fair and just court process and ensuring that all facts are available to adjudicate a dispute.
June 23, 2015
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 evidence were too complex for the six randomly-drawn members of the public. However, the Court held that it might revisit that ruling as the trial progressed – the "wait and see" approach.
In a judicial review, the Federal Court upheld the decision of the Public Sector Integrity Commissioner ("Commissioner") not to investigate a complaint under whistle blower legislation – the Public Servants Disclosure Protection Act, S.C. 2005 c. 46 ("Act") -- on the grounds of a 6-year delay.
In industrial design, it pays to have it all. In a recent decision, the Federal Court of Appeal held that while a purely functional design does not attract protection (as per section 5.1(a) of the Industrial Design Act), an industrial design that has a functional aspect can still be enforced if the design is also visually appealing.
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.
In summer 2013, Bell announced the November launch of its Relevant Ads Program (RAP). RAP involved the use of Bell customer personal information for the purpose of delivering targeted ads to Bell customers. Bell would charge a fee to advertisers engaged in the program.
In the recent decision of Imperial Manufacturing Group Inc. v. Decor Grates Incorporated, 2015 FCA 100, the Federal Court of Appeal used an appeal of a particulars motion in an industrial designs case to eliminate the prior distinction between the standard of review of discretionary or interlocutory orders and all other appeals from the Federal Court.
Whose law governs contractual disputes when the parties are in different jurisdictions and the contract itself is silent on the matter?
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.
April 30, 2015
In Ledcor Construction Limited v. Northbridge Indemnity Insurance Company, 2015 ABCA 121, the Alberta Court of Appeal was required to rule on the meaning of a provision of an insurance policy covering all loss suffered during the construction of an office tower (the "Policy").
Questions of jurisdiction and conflict of laws are complicated at the best of times, let alone in the context of estate litigation.
In a rare and surprising turn of events, a full panel of the Supreme Court of Canada unanimously dismissed Sanofi-Aventis' appeal of its "Section 8" liability at the conclusion of oral argument on April 20. (Sanofi-Aventis v. Apotex Inc., 2015 SCC 20).
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.
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 insurer's duty to defend has been triggered.
Bankruptcy provides debtors with a fresh start. A clean slate, free from previous financial obligations. The general rule is that all previous debts are extinguished, subject to a very narrow band of exceptions, where the onus is on the creditor to establish the survival of the debt obligation post-bankruptcy.
The 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.
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.
At trial, the Judge held that the plaintiff and the defendant real estate agents should share the 10% commission on the sale of a plaza and gas station.
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.
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.
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 19, 2015
In Ontario, either party in a civil action can demand that its case be decided by a jury. In Kempf v. Nyugen (2015 ONCA 114), the Court of Appeal for Ontario addressed the question of when a case can be removed from a jury's hands because it is too complex, in a decision that strengthens the right to have civil cases decided in jury trials.
March 16, 2015
In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Supreme Court clarified and reformulated the law on constructive dismissal.
Following 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.
On an appeal from a Rule 21 motion, the Court of Appeal ruled that the Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A (PHIPA) does not create an exhaustive code precluding a civil action for intrusion upon seclusion.
As the internet continues to develop into the primary forum for expression in our society, defamation actions increasingly involve comments made online.
Score one for science, zero for journalistic integrity and a point for an interesting advance in the law of defamation.
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.
The Sino-Forest class action has been certified, and leave was granted to bring a claim under the Securities Act for secondary market misrepresentations.
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.
February 27, 2015
A decision issued last month contains a useful synopsis by Justice Zinn of principles applicable to damages awards in patent infringement cases: Eli Lilly & Co. et al. v. Apotex Inc. 2014 FC 1254.
The 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 23, 2015
The Ontario Court of Appeal recently had a chance to consider the law regarding exclusion clauses in the lease context.
On an appeal from an arbitration under the Condominium Act, in 90 George Street Ltd. v. Ottawa Carleton Standard Condominium Corporation No. 815, 2015 ONSC 336, Justice Patrick Smith applied a correctness standard of review.
February 18, 2015
In case you were thinking of playing a shell game with your group of companies to avoid paying a judgment, the Ontario Superior Court has just poured cold water on your aspirations. And you, personally, could be liable.
Law 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.
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 05, 2015
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, 2015 ONCA 6).
An Ontario decision has expanded the application of public policy to void a will, and in so doing has raised concerns of floodgates and abuse. In Spence v. BMO Trust Company, 2015 ONSC 615, Justice Gilmore determined that the deceased, who was black, disinherited his adult daughter because she had a child with a Caucasian man – "a clearly stated racist principle".
February 02, 2015
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...
January 27, 2015
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 on three issues:
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...
The Ontario Superior Court of Justice has reinforced the principle that a person's privileged communications with his or her lawyer should be strictly protected, except in narrow circumstances.
Defendants in consumer class actions should be on notice, following two recent decisions that used consumer protection legislation as a basis to award damages.
It's trite law that an unsuccessful litigant generally pays the successful party's costs. But what happens when the winner hired lawyers from out-of-town who had to travel regularly for the case? Does the losing party have to pay the travel costs incurred by the winner because they chose to hire out-of-town lawyers? In Matheson v. CIBC Woody Gundy, the Nova Scotia Supreme Court held that the...
November 06, 2014
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")) [In Re McQuillen]. In February 2007, IIROC charged McQuillen and his superior at Scotia Capital, David Berry, with violations of sections 6.4 (off-market trading) and 7.7(5) (soliciting client...
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.
Lazy 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. According to the Ontario Court of Appeal in Wallace v. Crate's Marine Sales Lotd, 2014 ONCA 671, inordinate delay in pursuing an action could be construed as an abuse of process, and as undermining the...
At 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:
Call 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.
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...
September 16, 2014 (Toronto);
The Supreme Court of Canada's 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. Saatva also confirmed that questions of contractual interpretation are usually questions of mixed law and fact. This...
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 11, 2014
The tort of unlawful interference with economic relations is surprisingly slippery, especially when pleaded alongside defamation. Earlier this year, the Supreme Court of Canada in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 referred to the tort's scope as "unsettled" before departing from several recent appellate decisions on the topic. In Resolute Forest Products Inc. et al. v...
September 09, 2014
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.