Although the subject matter of a dispute may involve foreign lands, where the court has personal jurisdiction over the parties, a real and substantial connection to the dispute and there is no other clearly more convenient forum, jurisdiction will not be declined. (Precious Metal Capital Corp. v. Smith, COCO/2008-049, [2008] O.J. No. 1236, Ontario Superior Court of Justice - Commercial List)

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

A party seeking to enforce a non-solicitation agreement by way of an injunction must demonstrate that a duty to not solicit customers was owed either on the basis of a contractual agreement or a fiduciary duty. (2135396 Ontario Inc. v. Invirotech Mechanical Inc., COCO/ 2008-046, [2008] O.J. No. 806, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A claim for dividends and declared bonuses does not represent a return of invested capital but rather compensation for the loss of a return on capital which may constitute a debt provable in bankruptcy. (I. Waxman & Sons Ltd. (Re), COCO/2008-047, [2008] O.J. No. 885, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

A lender, that had no knowledge of the circumstances under which a property was transferred, may be found to hold an enforceable mortgage, despite the fact that the underlying transfer of title was subsequently voided by the court as a fraudulent conveyance and the mortgagor was found to have never had any interest in the property to convey by way of mortgage. (Taylor Ventures Ltd. (Trustee of) v. High Meadow Holdings Ltd., COCO/ 2008-037, [2008] B.C.J. No. 267, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

A real estate agent may succeed in a claim for commission in the absence of a written agreement where a written offer to purchase the client's property is produced and executed in a direct series of events in which the agent is intimately involved. (J.J. Barnicke Ltd. v. 1471422 Ontario Ltd., COCO/2007-141, [2007] O.J. No. 3740, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Although the Executive Director of the Alberta Real Estate Council has no statutory right to appeal from a decision of a hearing panel appointed under the Alberta Real Estate Act, the Director has standing to seek judicial review of the decision as such a review does not involve the Council impeaching its own decision. (Real Estate Council of Alberta v. Henderson, COCO/2007-135, [2007] A.J. No. 1068, Alberta Court of Appeal)

Visit Quicklaw to access the full article

An arbitration provision in an agreement with a company being wound up ceases to have effect and becomes inoperative as a result of the Winding-up and Restructuring Act and court orders prohibiting proceedings against the company and the court-appointed liquidator, and leave to commence arbitration proceedings may be refused to avoid a multiplicity of litigation that would add unnecessary costs and cause delay. (Canada (Attorney General) v. Reliance Insurance Co., COCO/ 2007-136, [2007] O.J. No. 3830, Ontario Superior Court of Justice (Commercial List))

Visit Quicklaw to access the full article

When a prospectus contains a misrepresentation on the date the document is filed, information that amounts to a material fact, but not a material change that arises subsequent to filing, cannot support an action under s. 130(1) of the Ontario Securities Act. (Kerr v. Danier Leather Inc., COCO/2007-137, [2007] S.C.J. No. 44, Supreme Court of Canada)

Visit Quicklaw to access the full article

A limitation of liability provision in a bill of lading that applies to multi-modal transportation from, to or within the United States does not apply to a shipment of goods from New York to Italy that was stolen while being driven from New York to Montreal in the face of another provision intended to limit the first provision that applies to the road and rail transport provision of multi-modal transport in Europe or within a state other than the U.S. (Alcoa Inc. v. CP Ships (UK) Ltd., COCO/ 2007-138, [2007] O.J. No. 3812, Ontario Court of Appeal)

Visit Quicklaw to access the full article

Although, by virtue of the parol evidence rule, evidence of an earlier shareholders' agreement may not be admitted to interpret later shareholders' agreement that is unambiguous, where an oppression remedy is sought, evidence of the earlier agreement may be admitted as relevant and probative of a shareholder's reasonable expectations. (Matthews Investments Ltd. v. Assiniboine Medical Holdings Ltd., COCO/2007-139, [2007] M.J. No. 353, Manitoba Court of Queen's Bench)

Visit Quicklaw to access the full article

A court may order the cancellation of shares to remedy oppressive conduct involving the release of the shares from the escrow basis of inaccurate information. (Hawley v. North Shore Mercantile Corp., COCO/2007-140, [2007] O.J. No. 3822, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

The witness immunity rule that precludes suits against a person in respect of testimony given at a judicial proceeding also applies to evidence given before a statutory tribunal with authority to make inquiries, conduct hearings and impose sanctions. (Bader v. Rennie, COCO/2007-129, [2007] O.J. No. 3441, Ontario Superior Court of Justice - Divisional Court)

Visit Quicklaw to access the full article

A clause in an agreement requiring arbitration in respect of the interpretation of the agreement or the performance of its provisions may be broad enough to cover a claim that the relationship established between the parties includesfiduciary duties. (Greenfield Ethanol Inc. v. Suncor Energy Products Inc., COCO/2007-130, [2007] O.J. No. 3104, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

When a party to an action is aware of outstanding legal fees owed by the opposing party to the law firm representing it and colludes with the opposing party in settling their dispute with the purpose of depriving the firm of its fees, the party may be liable to the firm for the fees. (Gardiner Miller Arnold LLP v. Kymbo International Inc., COCO/2007-131, [2007] O.J. No. 3571, Ontario Court of Appeal)

Visit Quicklaw to access the full article

A determination of whether a purchaser of assets from a party to a contract is a successor or assign of the party is a question of fact that should be determined on a full record at trial and not on a motion for summary judgment. (R. v. AXA Pacific Insurance Co., COCO/2007-132, [2007] O.J. No. 3151, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

Disputes arising under an addendum to an agreement that does not contain a forum selection clause may nonetheless be subject to such a clause contained in an earlier agreement where the addendum does not stand on its own but is supplementary to the earlier agreement. (Red Seal Tours Inc. v. Occidental Hotels Management B.V. (c.o.b. Occidental Hotels & Resorts), COCO/2007-133, [2007] O.J. No. 3397, Ontario Court of Appeal)

Visit Quicklaw to access the full article

Memoranda containing minutes of meetings prepared by employees of a party may be admissible for the truth of their contents as business records under s. 42 of the British Columbia Evidence Act where, among other things, there is no reason why the authors of the memoranda could not give in oral evidence their summary of what was discussed and decided at a particular meeting. (Strata Plan LMS 3851 v. Homer Street Development Limited Partnership, COCO/2007-134, [2007] B.C.J. No. 1866, British Columbia Supreme Court)

Visit Quicklaw to access the full article

An arbitrator errs in exercising a discretion in respect of costs of an arbitration by denying costs to a party who is totally successful on the merits, has made a favourable offer to settle and is not guilty of any misconduct. (Necrovore Inc. v. Andover Land Corp., COCO/ 2007-123, [2007] O.J. No. 3216, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A court has the discretion to refuse to enforce an agreement to settle litigation where there is a mistake as to the authority of the person instructing the lawyer to make the offer to settle on behalf of a party and the potential prejudice to the party making the offer outweighs that to the other party and third parties. (Yonge Village Recreation Centre Ltd v. York Condominium Corp. No. 201, COCO/2007-124, [2007] O.J. No. 3314, Ontario Superior Court of Justice (Divisional Court))

Visit Quicklaw to access the full article

A forum selection clause in a settlement and release agreement by which the parties agree to attorn to the exclusive jurisdiction of a province's courts should be interpreted using the normal principles of contract interpretation and, on the basis of an objective interpretation of the clause in its commercial context, may not apply to claims asserted in a subsequent action unrelated to the subject matter of the agreement. (Procon Mining and Tunnelling Ltd. v. McNeil, COCO/2007-125, [2007] B.C.J. No. 1967, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

An owner of premises where construction is being carried out does not owe a duty of care in tort to a subcontractor who is not paid for labour, materials or services as a result of the insolvency of both the general contractor and the payment bond provider. (Don Fry Scaffold Service Inc. v. Ontario (Speaker of the Legislative Assembly), COCO/2007-126, [2007] O. J. No. 3054, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A vendor of real property who fails to complete a transaction on the original
closing date at the Land Title Office cannot contend that the purchaser has repudiated the agreement by proposing to subsequently close the transaction at the purchaser's lawyer's office where the location of the closing makes no difference to the vendor and no objection to the change in location is taken in a timely manner. (Walker v. Blades, COCO/ 2007-127, [2007] B.C.J. No. 1945, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

Prior discussions among negotiating parties will create no binding and enforceable agreement in the absence of a signed, written document where the parties have consistently accepted throughout the negotiations that they will be bound only when their agreement is reduced to writing and executed by them. (Atria Networks LP v. AboveNet Communications Inc., COCO/2007-128, [2007] O.J. No. 3102, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A bankrupt who did not act deceitfully and sincerely believed that a bank would not transfer funds out of the bankrupt's account until a cheque had cleared is entitled to have the debt to the bank discharged by bankruptcy even though the bankrupt was aware of suspicious circumstances surrounding the receipt of the cheque, which turned out to be counterfeit. (Toronto-Dominion Bank v. Merenick, COCO/2007-117, [2007] B.C.J. No. 1864, British Columbia Supreme Court)

Visit Quicklaw to access the full article

Where a proceeding is commenced in the United States one day before a similar proceeding is commenced in Ontario, the avoidance of multiple proceedings will not be a significant factor in determining whether to stay the Ontario action where there are numerous strong connections between the claim and Ontario. (Hershey Canada Inc. v. Solae, LLC, COCO/2007-118, [2007] O.J. No. 3215, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

An in-house counsel terminated by his or her employer cannot avoid a release executed as part of a severance package where he or she is well-versed in contract and employment law and, with legal knowledge and experience, chooses the option of accepting the severance offer and trying to immediately locate re-employment. (Titus v. William F. Cooke Enterprises Inc., COCO/2007-119, [2007] O.J. No. 3148, Ontario Court of Appeal)

Visit Quicklaw to access the full article

Although a breach of contract for the sale of shares does not in and of itself amount to a breach of s. 332 of the Criminal Code, which makes it an offence to fraudulently use funds contrary to a direction from the person providing the funds, an offence will be committed where the accused uses investment monies and fails to issue in a timely manner shares for which the monies have been furnished and intends to keep investors out of their property as long as possible to serve the accused's own economic needs. (R. v. Bodnarchuk, COCO/2007-120, [2007] B.C.J. No. 1831, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

A claim for pure economic loss arising out of a power outage affecting a town and surrounding areas that was caused by the defendant's collision with hydro poles and wires raises the prospect of indeterminate liability to an indeterminate class, which negatives any duty of care that might be owed by the defendant to the plaintiff. (Conestoga Meat Packers Ltd. v. Fehr, COCO/2007-121, [2007] O.J. No. 3150, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

As a partner's conduct in unilaterally changing locks on the partnership's leasehold premises and excluding the other partner from the management of the partnership's business and denying it from sharing any benefit from its investment effectively ends any potential working relationship between them, the only just and equitable remedy is a winding-up of the partnership in order to arrange the sale of the partnership assets. (Red Burrito Ltd. v. Hussain, COCO/2007-122, [2007] B.C.J. No. 1883, British Columbia Supreme Court)

Visit Quicklaw to access the full article

A lawyer will not be disqualified from acting against a former client to whom the lawyer gave general legal advice in respect of a pre-existing transaction even though the new retainer involves a challenge to the validity of a similar transaction where none of the former client's confidential information is relevant to the new retainer and the lawyer is attacking neitherthe former client nor the advice given to that client. (Greater Vancouver Regional District v. Melville, COCO/2007-111,
[2007] B.C.J. No. 1750, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

Although a court has discretion to restrain a party from making use of evidence seized pursuant to a wrongly granted Anton Piller order, it should not do so where such an order would result in an injustice to the party. (Solara Technologies Inc. v. Beard, COCO/2007-112, [2007] B.C.J. No. 1693, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

Where parties to an agreement have included a clause designating a court as having exclusive jurisdiction in respect of disputes, the onus rests on the party commencing a proceeding in a different court to establish strong cause to avoid the application of the clause. (BNP Paribas (Canada) v. BCE Inc., COCO/2007-113, [2007] O.J. No. 3026, Ontario Court of Appeal)

Visit Quicklaw to access the full article

Parties to an agreement of purchase and sale of a unit in a condominium building to be constructed may expressly contract out of the application of the common law doctrine of waiver with the result that the vendor may be entitled to cancel the agreement even after accepting from the purchaser late, partial payments of required deposits. (Hinkson Holdings Ltd. v. Silver Sea Developments Limited Partnership, COCO/2007-114, [2007] B.C.J. No. 1729, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

The requirement to give written notice to a debtor of an agreement assigning a chose in action under s. 36(1) of the British Columbia Law and Equity Act may be satisfied through the issuance and service of a statement of claim if the assignment of the claim has been pleaded and the failure to give notice has not prejudiced the defendant. (Link v. Texas Oil & Gas Inc., COCO/2007-115, [2007] B.C.J. No. 1768, British Columbia Supreme Court)

Visit Quicklaw to access the full article

A plaintiff may be granted an interlocutory injunction requiring a defendant to continue to comply with its contractual obligations in return for full payment where discontinuation of the defendant's services would cause the plaintiff to substantially lose all of its business and much of its goodwill, while the defendant would suffer only delay in collecting money that had been in dispute for some time. (Look Communications Inc. v. Bell Canada, COCO/2007-116, [2007] O.J. No. 2995, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A bylaw of the Investment Dealers Association providing that a member remains subject to the jurisdiction of the Association for a period of five years from the date on which the person ceases to be a member does not permit the Association to continue disciplinary proceedings against a former member even if the proceedings were commenced less than five years after the cessation of the person's membership. (Investment Dealers Assn. of Canada v. MacBain, COCO/2007-104, [2007] S.J. No. 292, Saskatchewan Court of Appeal)

Visit Quicklaw to access the full article

A trial judge's finding that no loss was caused to a company as a result of the breach of a contract to deliver notices of a meeting to the company's shareholders that led to a delay in the holding of the meeting is highly fact driven and entitled to a high degree of deference on appeal. (Hi-Alta Capital Inc. v. Montreal Trust Co. of Canada, COCO/2007-105, [2007] A.J. No. 862, Alberta Court of Appeal)

Visit Quicklaw to access the full article

A party who has taken steps in a proceeding after the other party's repudiation of an agreement settling the litigation may not be permitted to raise and argue an accepted offer as the litigation progresses unless the right to pursue the original claim has been reserved in the settlement agreement and there has been no clear election to pursue only the original claim before steps are taken to enforce the settlement. (DeMan Construction Corp. v. 1429036 Ontario Inc., COCO/2007-106, [2007] O.J. No. 2705, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A letter written to an employer by a lawyer on behalf of a dismissed employee proposing a severance package that neither alleges any wrongdoing nor claims that the employee has been wrongfully dismissed may not constitute a written demand for monetary damages under the definition of claim in the employer's employment practices liability insurance package. (Dynacare Co. v. St. Paul Fire and Marine Insurance Co., COCO/2007-107, [2007] O.J. No. 2929, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

Although counsel's freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms is infringed by s. 148(1) of the British Columbia Securities Act, which prohibits a person under investigation by the British Columbia Securities Commission from disclosing, except to counsel, any information or evidence obtained or sought to be obtained or the name of any witness examined or sought to be examined by the Commission, the provision is saved under s. 1 of the Charter as a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. (Shapray v. British Columbia (Securities Commission), COCO/2007-108, [2007] B.C.J. No. 1595, British Columbia Supreme Court))

Visit Quicklaw to access the full article

The capital loss method for assessing damages for breach of an agreement for sale of goodwill of a business is simply another way of calculating the plaintiff's potential loss of income as it reflects diminution of the capital value of income producing assets after the breach of contract and may be appropriately used where the parties themselves have used it to determine the sale price of a previous business. (Ascent Financial Services Ltd. v. Blythman, COCO/2007-109, [2007] S.J. No. 373, Saskatchewan Court of Appeal)

Visit Quicklaw to access the full article

As there is no presumption either in favour of or against interpreting a contract as imposing obligations in perpetuity, the determination of whether an agreement contains perpetual obligations should be made on the basis of principles of contractual interpretation. (Credit Security Insurance Agency Inc. v. CIBC Mortgages Inc., COCO/2007-110, [2007] O.J. No. 1466, Ontario Court of Appeal)

Visit Quicklaw to access the full article

An arbitration panel’s finding that a corporation is liable for breach of fiduciary duty may not assist the plaintiff in a subsequent court proceeding against the corporation’s principal where the principal’s potential personal liability was not considered in the arbitral proceedings.  Hi-Seas Marine Ltd. v. Boelman, [2007] B.C.J. No. 532 (C.A.).

A request for a declaration that minutes of settlement have been repudiated should be made by way of originating process rather than by motion where the relief is not sought within an existing proceeding. John A. Ford & Associates Inc. (c.o.b. Training Services) v. Keegan, [2007] O.J. No. 2641 (C.A.).

The common law witness immunity rule that constitutes an absolute privilege barring all civil actions arising from a witness’ testimony precludes an action for a declaration that a witness misrepresented evidence before the Competition Tribunal. Robinson (c.o.b. National Fuelsaver Corp.) v. Gulder, [2007] O.J. No. 2718 (S.C.J.).

Where a plaintiff seeks prohibitory and mandatory injunctive relief requiring the operators of a website to cease to do business and it appears that the result of the grant of an interlocutory order would likely mark the end of the litigation since the costs of trial far exceed the monetary values at stake, the plaintiff must establish that it has a strong prima facie case. Pandi v. Fieldofwebs.Com Ltd., [2007] O.J. No. 2739 (S.C.J.).

A corporation seeking a deferment of payment of land transfer tax under the Ontario Land Transfer Tax Act in respect of the transfer of a beneficial interest in land from an affiliated company must show that the related companies are controlled de jure and not merely de facto by the same person or company. Dam Investments Inc. v. Ontario (Minister of Finance), [2007] O.J. No. 2674 (C.A.).

A party seeking damages for breach of fiduciary duty in respect of a loss of opportunity to obtain a financial advantage in the future must adduce evidence to establish some reasonable probability that it would have realized an advantage of some real substantial monetary value and the court must make the best assessment that it can of the value of the loss the plaintiff has sustained, having regard to the contingencies that bear on whether, had the opportunity not been lost, a financial advantage would actually have been realized. Olive Hospitality Inc. v. Woo, [2007] B.C.J. No. 1429 (C.A.).

A right of first offer to purchase additional residential building lots where the owner desires to sell all or any portion of the lots may not be triggered by the owner’s proposed agreement to sell an undivided 50 percent interest in the lots for the purpose of financing their development. 2056668 Ontario Inc. v. Fernbrook Homes (Majormac North) Ltd., [2007] O.J. No. 2755 (S.C.J.).

A party’s notes written to assist the party’s representative in investigating a substantial drop in value of the party’s investment portfolio may be subject to litigation privilege where the party proves that the notes were prepared for the dominant purpose of litigation. Turnbull-Burnight v. CIBC World Markets Inc., [2007] N.B.J. No. 220 (C.A.).

To be granted leave to serve a claim outside of Alberta, a plaintiff need only establish an arguable cause of action, which must not be construed too narrowly. Boreta v. Jafar, [2007] A.J. No. 686 (C.A.).

As a litigant’s pleading should not be lightly struck without leave to amend, leave to amend should only be denied in the clearest cases. South Holly Holdings Ltd. v. Toronto-Dominion Bank (c.o.b. TD Canada Trust), [2007] O.J. No. 2445 (C.A.).

A party who breaches a contract is not entitled to complain of the innocent party’s failure to mitigate damage caused, or materially contributed to, by the breaching party’s own actions. 2438667 Manitoba Ltd. v. Husky Oil Ltd. (c.o.b. Husky Oil Marketing Comp.), [2007] M.J. No. 233 (C.A.).

Subject to the rule barring double recovery, there is no legal principle holding that a plaintiff who elects to pursue a claim against one of severally liable defendants is precluded from pursuing a second action, as it is not the damage award that amounts to satisfaction barring a second action but recovery by the plaintiff in the first action. Treaty Group Inc. (c.o.b. Leather Treaty) v. Drake International Inc., [2007] O.J. No. 2468 (C.A.).

A judge has no discretion under s. 129 of the Ontario Insurance Act to grant relief from forfeiture of insurance for breach of policy conditions other than those relating to proof of loss. Williams v. York Fire & Casualty Insurance Co., [2007] O.J. No. 2517 (C.A.).

Parties who include in an agreement a clause requiring arbitration of disputes, including questions regarding the existence, validity or termination of the agreement, must submit their disputes to arbitration in accordance with the agreement’s terms, even if the agreement has expired or terminated. Rampton v. Eyre, [2007] O.J. No. 1687 (C.A.).

Although a party’s opportunity to make a closing argument at trial is a substantive right, the denial of this right will not necessarily lead to an order for a new trial on appeal where the party had an opportunity to present its arguments as part of a non-suit motion, there is no evidence of any new arguments that might have been presented and the party did not go back to the trial judge to complain about any prejudice from denial of the opportunity. Prudential Securities Credit Corp., LLC v. Cobrand Foods Ltd., [2007] O.J. No. 2297 (C.A.).

A purchaser of shares in a public company does not assume any obligation to pay the debts of the company. Malik (Representative ad litem of) v. State Petroleum Corp., [2007] B.C.J. No. 1149 (S.C.).

A director or officer of a company who obtains information in his or her fiduciary capacity cannot use that information to pursue a business opportunity on behalf of himself or herself or another corporate entity in which the director has a stake. Canadian Metals Exploration Ltd. v. Wiese, [2007] B.C.J. No. 1231 (C.A.).

Compound interest may be awarded as compensation for an expropriation not governed by the British Columbia Expropriation Act to ensure full compensation for the party from whom property has been taken. Morriss v. British Columbia, [2007] B.C.J. No. 1294 (C.A.).

A mutual fund dealer does not owe a duty of care to non-clients in the absence of any factors other than its registration under the Ontario Securities Act and its membership in an association of mutual fund or investment dealers. Hurst v. Armstrong & Quaile Associates Inc., [2007] O.J. No. 2310 (S.C.J.).

A debt will survive the debtor’s discharge from bankruptcy where there is a link between the debt and the debtor’s fraud and property has passed to the debtor or a third party as a result of the fraud.  McAteer v. Billes, [2007] A.J. No. 593 (C.A.).

Visit Quicklaw to access the full article

A solicitor who acts for a corporation may be disqualified from acting for one group of shareholders in a dispute with another group, as shareholders are entitled to expect the corporation to remain neutral in the dispute. R.B.L. Management Inc. v. Royal Island Development Ltd., [2007] B.C.J. No. 1011 (S.C.).

While a lawyer may act for two clients in the same line of business who are competitors, the lawyer must avoid conflicts of interest that cause impairment to his or her ability to represent clients. Strother v. 3464920 Canada Inc., [2007] S.C.J. No. 24 (S.C.C.).

An agreement under which a supplier acknowledges that all material supplied has been paid for cannot be set aside on the basis of common mistake where the agreement, read in light of the factual matrix, allocates to the supplier the risk that all payments had not been received.  Miller Paving Ltd. v. B. Gottardo Construction Ltd., [2007] O.J. No. 2227 (C.A.).

A court will not grant modified specific performance of an agreement where to do so would frustrate the reasonable expectations of the parties. Chuang v. Toyota Canada Inc., [2007] O.J. No. 2069 (S.C.J.).

A tenderer is entitled to act in its own best financial interest and may refuse to accept the lowest bid if there are valid, objective reasons for concluding that better value can be obtained by accepting a higher bid. Continental Steel Ltd. v. Mierau Contractors Ltd., [2007] B.C.J. No. 1075 (C.A.).

The Investment Dealers Association of Canada has no right of appeal under the Alberta Securities Act from a decision of its own discipline committee dismissing a disciplinary charge. Bahcheli v. Alberta Securities Commission, [2007] A.J. No. 520 (C.A.).

Where parties to an agreement have clearly indicated their intention to resort to arbitration to resolve disputes that arise between them in relation to the interpretation of the agreement, the court will enforce the arbitration provision in the absence of a proper reason not to do so. ABOP LLC v. Qtrade Canada Inc., [2007] B.C.J. No. 1046 (C.A.).

Application of the principle of proof of causation by which the court may infer that a party’s negligence caused a material increase in risk of injury to a plaintiff and materially contributed to the plaintiff’s loss is restricted to rare cases where proving that a breach of duty caused or failed to cause a particular loss is practically impossible and this impossibility is the result of circumstances outside the plaintiff’s control. B.S.A. Investors Ltd. v. Mosly, [2007] B.C.J. No. 947 (C.A.).

The fact that the position of a respondent to an appeal who seeks security for costs of the appeal has not changed as a result of the appeal does not preclude the respondent from establishing that it would suffer prejudice if security were not ordered. Creative Salmon Co. v. Staniford, [2007] B.C.J. No. 1024 (C.A.).

Even where a party has been found to have engaged in fraudulent conduct, an award of punitive damages may not be justified when other damages have been awarded and the party has paid substantial fines in related quasi-criminal proceedings. Insurance Corp. of British Columbia v. Eurosport Auto Co., [2007] B.C.J. No. 972 (C.A.).

Unlawful means for the purpose of establishing the tort of unlawful interference with economic relations does not include acts in violation of a defendant’s unwritten internal policy that was not put in place to protect the interests of the plaintiff or the other party and of which they were not aware nor upon which they relied. Drouillard v. Cogeco Cable Canada Inc., [2007] O.J. No. 1664 (C.A.).

An employee of the federal Crown may be examined for discovery as of right under the Alberta Rules of Court, subject to the Crown’s right to challenge the appointment. Corbett v. Samsports.Com Inc., [2007] A.J. No. 482 (C.A.).

Visit Quicklaw to access the full article

A retired partner not living or carrying on business in Quebec who receives a retirement allowance deemed to be income from the partnership may be assessed under Quebec’s Taxation Act, which operates to determine the portion of the partner’s income that can be allocated to the partnership’s Quebec activities and the portion of the retirement allowance that can be taxed by the province. Dunne v. Quebec (Deputy Minister of Revenue), [2007] S.C.J. No. 19 (S.C.C.).

A stipulated sum for damages for breach of a contract does not operate to limit the innocent party’s right to seek specific performance of the contract where there is no reference in the contract to the fact that any amount is to be paid as liquidated damages and the breaching party who seeks to restrict the remedies available has failed to perform under the term upon whose benefit it relies. Le Soleil Hospitality Inc. v. Louie, [2007] B.C. J. No. 899 (S.C.).

An agreement to settle a dismissed employee’s claim against a former employer that includes the employee’s promise to seek new employment may be frustrated by the employee’s death, which has the effect of relieving the employer from further liability under the agreement. Rickards Estate v. Diebold Election Systems Inc., [2007] B.C.J. No. 840 (C.A.).

Where a contract requires a party to acquire liability insurance in an amount equal to the fees to be paid under it, it is not commercially reasonable to interpret a provision in the contract limiting liability either to the amount of the insurance deductible or the amount paid in fees in a way that would preclude resort to the insurance. SaskPower International Inc. v. UMA/B&V Ltd., [2007] S.J. No. 156 (C.A.).

A limitation period for bringing an action against an insurer under an insurance policy does not apply to preclude an action to enforce a subsequent agreement with the insurer to pay a loss that is subject only to quantification. Terroco Industries Ltd. v. Sovereign General Insurance Co.,  [2007] A.J. No. 463 (C.A.).

An arbitrator’s interpretation of a contractual provision is case-specific and the fact that the arbitrator interprets a term differently than it has been interpreted in another case does not make the decision clearly wrong. Metro Canada Logistics Inc. v. UWG Inc., [2007] O.J. No. 1501 (S.C.J.).

A “Counsel/Expert Eyes Only” confidentiality order may be granted under Alberta Rule 216.1 at the preliminary stage of litigation before any production has occurred where full disclosure of the parties’ confidential information represents a danger grossly disproportionate to the benefit that would result from disclosure to the parties themselves and the proposed order is reasonable and sufficiently flexible to address any difficulties as they arise. Phoenix Technology Services Ltd. v. Braisher, [2007] A.J. No. 447 (Q.B.).

A third party claim is defective where the allegations in the claim should be asserted by way of defence to the main action. Morneau Sobeco Limited Partnership v. Aon Consulting Inc., [2007] O.J. No. 1455 (S.C.J.).

A processing fee charged by a payday lender for the administrative costs of preparing legal documentation and operating business facilities for the benefit of all borrowers is sufficiently connected to a loan to be a charge payable or paid for the advancing of credit and within the meaning of “interest” under the criminal interest rate provision of the Criminal Code. Kilroy v. A OK Payday Loans Inc., [2007] B.C.J. No. 820 (C.A.).

An entire agreement clause in an agreement of purchase and sale may exclude a claim for negligent representation even without a specific reference to negligence where, among other things, the parties are sophisticated, commercial entities, the purchaser had ample opportunity to seek answers to any concerns it had and the agreement was not a standard adhesion contract. No. 2002 Taurus Ventures Ltd. v. Intrawest Corp., [2007] B.C.J. No. 812 (C.A.).

Where there is a discrepancy in a contract for sale of land between what the vendor has agreed to convey and what it is able to convey, the purchaser is generally entitled to seek specific performance of the contract with an abatement in the purchase price proportionate to the amount of land that cannot be conveyed. 3999581 Canada Inc. v. 1394734 Ontario Inc., [2007] O.J. No. 1570 (C.A.).

Where a moving party on a summary judgment motion adduces evidence to prove the responding party’s prior criminal conviction, such evidence constitutes prima facie proof that the responding party committed the crime and of the facts essential to the conviction, and the responding party can only adduce evidence to the contrary by demonstrating that permitting him or her to re-litigate the facts essential to the criminal conviction would not constitute an abuse of process. Bank of Montreal v. Woldegabriel, [2007] O.J. No. 1305 (S.C.J.).

A municipal by-law may not apply indirectly to a federal undertaking where it has the potential to impair, paralyze or sterilize the undertaking. Telus Communications Co. v. Toronto (City), [2007] O.J. No. 790 (S.C.J.).

Confidential communications between a client and a lawyer lose that character if and to the extent they were made for the payment of perpetrating unlawful tortious conduct, including fraudulent breaches of trust, fraudulent conspiracy, trickery and contrivances. Dublin v. Montessori Jewish Day School of Toronto, [2007] O.J. No. 1062 (S.C.J.).

A judge may order the advance payment of defence costs to former directors and officers of a corporation where the claimants are parties to litigation by reason of being directors or officers, the costs have been reasonably incurred and the claimants have acted honestly and in good faith with a view to promoting the best interests of the corporation. Manitoba (Securities Commission) v. Crocus Investment Fund, [2007] M.J. No. 87 (C.A.).

A former partner may not be entitled to an accounting of the profits of the partnership prior to its dissolution where he or she delays in commencing proceedings and the delay constitutes acquiescence or results in circumstances that make prosecution of the action unreasonable. Husar Estate v. P & M. Construction Ltd., [2007] O.J. No. 968 (C.A.).

Trustees of a real estate investment trust do not fail in their fiduciary obligations to unitholders by agreeing as part of the purchase and sale of the trust’s assets to a term that precludes earlier bidders who bound themselves under standstill agreements not to make unsolicited takeover bids from coming in after the auction for the assets has been concluded and the successful bidder has shown its cards. Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, [2007] O.J. No. 1083 (C.A.).

An arbitration clause in an agreement subscribing for shares in a corporation should not be interpreted as prohibiting a shareholder from seeking judicial enforcement of the corporation’s financial disclosure obligations under the Ontario Business Corporations Act as this would mean that the shareholder had absolved the corporation of these obligations merely by agreeing to include the arbitration clause in the subscription agreement. Pandora Select Partners LP v. Strategy Real Estate Investments Ltd., [2007] O.J. No. 993 (S.C.J.).

A newspaper advertisement taken out by a former employee announcing a new business location without mention of a previous association with the former employer does not breach a covenant prohibiting solicitation by the employee. Dr. P. Andreou Inc. v. McCaig, [2007] B.C.J. No. 537 (C.A.).

A judge may approve a plan of arrangement under the British Columbia Business Corporations Act that involves the assignment of agreements containing covenants prohibiting assignment without consent even where the party entitled to consent refuses to do so. Protiva Biotherapeutics Inc. v. Inex Pharmaceuticals Corp., [2007] B.C.J. No. 557 (C.A.).

Members of a strata council cannot defend themselves from claims that they are in conflicts of interest and in breach of their statutory duties to the corporation on the basis that they relied in good faith on legal advice where there is no evidence they ever received legal advice concerning their statutory duties and the consequences of not adhering to them and, even if they did receive such advice, they did not follow it. Dockside Brewing Co. v. Strata Plan LMS 3837, [2007] B.C.J. No. 583 (C.A.).

An order granting injunctive relief that establishes a new right is mandatory while an order requiring the parties to act in accordance with an existing agreement is prohibitive. 674834 Ontario Ltd. (c.o.b. Coffee Delight) v. Culligan of Canada, Ltd., [2007] O.J. No. 979 (S.C.J.).

An insurer’s duty to defend an insured under a professional liability insurance policy in respect of an event from which the insured expects a claim to be made must be determined in view of the actual wording of the insurer’s obligation to defend set out in the policy. MWH International, Inc. v. Lumbermens Mutual Casualty Co., [2007] B.C.J. No. 559 (C.A.).

Visit Quicklaw to access the full article

Failure of a party to an agreement to settle litigation to make a required payment may constitute repudiation of the agreement releasing the other party from future performance under it.  John A. Ford & Associates Inc. (c.o.b. Training Services) v. Keegan, [2007] O.J. No. 599 (S.C.J.).

Visit Quicklaw to access the full article

Damages for a builder’s breach of an agreement to construct a house should be assessed using the diminution in value test where to achieve fully what had been contracted for would involve enormous expense in demolition and reconstruction out of proportion to the benefit to be obtained.  514953 B.C. Ltd. (c.o.b. Gold Key Construction) v. Leung, [2007] B.C.J. No. 339 (C.A.).

Visit Quicklaw to access the full article

The characterization of a shareholder’s advance to a corporation as a loan or an investment of capital is a question of fact to be determined by reference to all the surrounding circumstances.  Glacier Creek Development Corp. v. Pemberton Benchlands Housing Corp., [2007] B.C.J. No. 412 (S.C.).

Visit Quicklaw to access the full article

A governmental decision to no longer license certain gambling events does not constitute an expropriation of the business of suppliers to licencees where the suppliers’ goodwill has not been taken for itself by the Crown.  B.J. Games Inc. v. Ontario, [2007] O.J. No. 492 (S.C.J.).

Visit Quicklaw to access the full article

A purchaser of real property cannot complain after closing about alleged defects in the property that could have been discovered before closing through reasonable diligence.  400 Wentworth Inc. v. Waterjet Machining Inc., [2007] O.J. No. 805 (S.C.J.).

Visit Quicklaw to access the full article

A purchaser cannot refuse to close a transaction for the purchase and sale of shares of a company that holds real property on the basis of the vendor’s failure to deliver a certificate of compliance from a governmental authority where the agreement does not require the vendor to provide a certificate but only to clean up the subject property such that it may be able to obtain on closing such a certificate. Ockey Developments Ltd. v. Suncoast Projects (2004) Ltd., [2007] B.C.J. No. 297 (C.A.)

Absent an express term to the contrary in an agreement for purchase and sale of land that includes assignment of a leasehold interest, a vendor bears the obligation to request and obtain a consent to the assignment of the leasehold interest. Hutchingame v. Johnstone, [2007] B.C.J. No. 220 (C.A.).

Although it may have an interest in a taxpayer’s information, a securities commission is not entitled to examine information seized by the Canada Revenue Agency under search warrants issued under the Criminal Code where the commission does not fall within the confidentiality exception under the Income Tax Act. Nova Scotia Securities Commission v. Canada (Minister of National Revenue), [2007] N.S.J. No. 74 (S.C.).

A shareholder of a closely-held private corporation may be entitled to an oppression remedy to protect his or her equitable rights where the shareholder failed to accept in accordance with its terms the offer of another shareholder to sell shares in the corporation. Cross v. Mountain High Recreation Ltd., [2007] B.C.J. No. 351 (C.A.).

A claim on a warranty for defects in material or workmanship in respect of a leased vehicle that was modified without the lessor’s approval will not succeed where there is an exclusion for modifications of the vehicle that alter the original engineering or operating specifications and the lessee fails to demonstrate that it is improbable that the defect was caused by the modifications. Tetaka v. BMW Canada Inc., [2007] O.J. No. 115 (Div. Ct.).

Monies paid by a provider of satellite services by way of chargeback on a customer’s credit card that are held in trust by the customer’s solicitors constitute a specific fund that may be the subject of a preservation order in proceedings between the provider and the customer. Directv, Inc. v. Gillott, [2007] O.J. No. 593 (S.C.J.).

Although a bank breaches its agreement with its customer by debiting the customer’s account without authorization, the customer may be entitled only to nominal damages where the funds in the account were the result of a fraud committed by a third party. B.M.P. Global Distribution Inc. v. Bank of Nova Scotia (c.o.b. Scotiabank), [2007] B.C.J. No. 137 (C.A.).

A contractual provision for the recovery of legal costs on a specified scale ought to be enforced unless there are special circumstances, such as improper conduct by the claiming party, which persuade the court to order otherwise. Stratton Electric Ltd. v. Guarantee Co. of North America, [2007] O.J. No. 407 (S.C.J.).

The doctrine of notional severance may be applied to read down a covenant restricting competition by a former employee for the purpose of giving effect to the substance of the parties’ agreement and to avoid having that substance subverted by an unfortunate choice of words. KRG Insurance Brokers (Western) Inc. v. Shafron, [2007] B.C.J. No. 261 (C.A.).

Under the rule in Foss v. Harbottle, a shareholder of a company has no independent right of action based on an allegation of diminution in value of its shares caused by damage to the company as this, among other things, avoids a multiplicity of actions. Robak Industries Ltd. v. Gardner, [2007] B.C.J. No. 174 (C.A.).

A tenant cannot invoke the court’s equitable jurisdiction to grant relief from forfeiture of an option to renew a lease as a result of the tenant’s failure to comply with conditions precedent to the exercise of the option. Clark Auto Body Ltd. v. Integra Custom Collision Ltd., [2007] B.C.J. No. 61 (C.A.).

A municipal by-law may be quashed as having been enacted in bad faith where the municipality acts for a collateral purpose and follows a process not characterized by frankness, openness, impartiality and regard for the rights of affected parties. Grosvenor v. East Luther Grand Valley (Township), [2007] B.C.J. No. 261 (C.A.).

As a receiver-manager of a corporation privately appointed by a secured creditor under a general security agreement owes a fiduciary duty to the creditor and would be in a conflict of interest in litigation against the secured creditor, the directors of the corporation are entitled to control such litigation. Maple Leaf Foods Inc. v. Markland Seafoods Ltd., [2007] N.J. No. 22 (C.A.).

A subcontractor is not an agent of a principal for the purpose of an examination for discovery of the principal pursuant to Rule 27(4) of the British Columbia Rules of Court. Rossco Ventures Ltd. v. British Columbia, [2007] B.C.J. No. 89 (C.A.).

A buyer of goods who accepts a seller’s anticipatory repudiation of the sale contract by commencing an action against the seller has a duty to mitigate its damages that arises at the time of acceptance. Hillspring Farms Ltd. v. Leland Walton & Sons Ltd., [2007] N.B.J. No. 19 (C.A.).

Although a party that solicits bids has an obligation to treat bidders fairly, this obligation does not survive the creation of the ultimate contract awarding the tender to the successful bidder. Double N Earthmovers Ltd. v. Edmonton (City), [2007] S.C.J. No. 3 (S.C.C.).

As the statutory liability of a shareholder of a dissolved corporation is contingent upon the liability of the corporation, the shareholder may defend itself by relying upon the merits of the corporation’s defences in the underlying action. Enron Canada Corp. v. Husky Oil Operations Ltd., [2007] A.J. No. 80 (C.A.).

The ultimate 15-year limitation period under the Ontario Limitations Act, 2002 applies to claims in respect of acts or omissions occurring before the effective date of January 1, 2004, but not discovered until on or after that date, as if the act or omission took place on the effective date. York Condominium Corp. No. 382 v. Jay-M Holdings Ltd., [2007] O.J. No. 240 (C.A.).

An equipment lessor may not vault its position in a proceeding under the Companies’ Creditors Arrangement Act by seeking a constructive trust remedy where the lessor failed to perfect its security interest through registration under the applicable personal property security legislation. Caterpillar Financial Services Ltd. v. 360networks corp., [2007] B.C.J. No. 22 (C.A.).

An application to disqualify a law firm from acting for a party in a proceeding on the basis of the firm’s receipt of relevant confidential information from another client may be brought by an opposing party and not necessarily by the former client. Roadrunner Apparel Inc. v. Gendis Inc., [2006] M.J. No. 425 (C.A.).

A putative member of a class in a proposed class proceeding is not entitled to take the benefit of a determination of a question of law made prior to certification of the proceeding as, at that time, the putative member is neither a party nor a privy of a party. McNaughton Automotive Ltd. v. Co-operators General Insurance Co., [2006] O.J. No. 5234 (Div. Ct.).

A party may obtain relief from the deemed undertaking rule prohibiting use of information obtained on discovery for purposes other than the proceeding in which the information is obtained where the information is to be used to make a complaint to a regulatory body and to permit investigation of the complaint by making available the best evidence for that body. Shred-Tech Corp. v. Viveen, [2006] O.J. No. 4893 (S.C.J.).

An order for equitable discovery may be granted against a law firm to permit the tracing of funds as long as adequate protection is provided to protect communications subject to solicitor-client privilege. Cinar Corp. v. Groia, [2006] O.J. No. 4753 (S.C.J.).

A taxpayer who has made a payment pursuant to legislation subsequently determined to be ultra vires may seek restitution of the amounts paid, subject to applicable limitation periods. Kingstreet Investments Ltd. v. New Brunswick (Department of Finance), [2007] S.C.J. No. 1 (S.C.C.).

Visit Quicklaw to access the full article

A court has inherent jurisdiction to permit the filing of a class proof of claim in a proceeding under the Companies’ Creditors Arrangement Act. Muscletech Research and Development Inc. (Re), [2006] O.J. No 4974 (S.C.J.).

An employer is not liable to compensate a bank that accepts for deposit cheques drawn on the employer’s account that have been fraudulently endorsed by an employee. Charlottetown (City) v. Bank of Montreal, [2006] P.E.I. J. No. 64 (C.A.).

Visit Quicklaw to access the full article

A party to a executed settlement agreement cannot seek contribution and indemnity from the other party to the agreement in respect of a matter covered by the agreement in the absence of a basis, such as fraud, to rescind the agreement. Adelaide Capital Corp. v. Toronto-Dominion Bank (c.o.b. TD Canada Trust), [2006] O.J. No. 4705 (S.C.J.).

A liquidator appointed by court order under the British Columbia Business Corporations Act does not have the power to disclaim a contract as there is no policy reason to prejudice holders of contractual rights in a liquidation arising from a dispute between shareholders seeking to end a business relationship. Ehattesaht Holdings Ltd. v. Coulson Forest Products Ltd., [2006] B.C.J. No. 3159 (S.C.).

A new election for a corporation’s board of directors may be ordered where a materially misleading dissident proxy circular has been circulated in advance of a meeting to elect directors but management chooses to wait until the meeting to raise objections that lead to the disallowance of the proxy votes and the election of the management slate of directors. Kluwak v. Pasternak, [2006] O.J. No. 4910 (S.C.J.).

Even under the Ontario Limitations Act, 2002, the limitation period for a demand loan runs not from the day the borrower defaults after a demand for repayment, but from the day the loan is made. Hare v. Hare, [2006] O.J. No. 4955 (C.A.).

An applicant who seeks an interlocutory injunction prohibiting a respondent from using an alleged proprietary peer-to-peer file-sharing method to direct Internet users to subscription-based websites does not establish irreparable harm where there is neither a loss of market share, because the provision of free directions is not a market and the users who pass through the applicant’s website are not customers in the ordinary sense of the word, nor a loss of goodwill, as the proprietary process works anonymously. Onkea Interactive Ltd. v. Smith, [2006] B.C.J. No. 2973 (C.A.).

Although Rule 31.06(3) of the Ontario Rules of Civil Procedure entitles a party to obtain on discovery the foundational information for the finding, opinions and conclusions of another party’s expert, it does not entitle the party to obtain this information after the conclusion of the trial and pending appeal. Horodynsky Farms Inc. v. Zeneca Corp. (c.o.b. Zeneca Agro), [2006] O.J. No. 3716 (C.A.).

An Ontario court will not give effect to a foreign court’s letter of request unless the applicant can establish that the targeted deponent has some knowledge that is relevant to the issues in the foreign litigation, is the only one in possession of the information and the evidence is not otherwise obtainable. Presbyterian Church of Sudan (Re), [2006] O.J. No. 3822 (C.A.).

Arbitration tribunals set up in Canada under the North American Free Trade Agreement to resolve claims alleging unfair treatment by foreign investors are not unconstitutional where the treaty has not been made part of Canada’s domestic law, the tribunals do not usurp a core function of superior courts and the impugned provisions of the treaty do not violate any principles of constitutionalism, the rule of law or the Canadian Charter of Rights and Freedoms.  Council of Canadians v. Canada (Attorney General), [2006] O.J. No. 4751 (C.A.).

Where members of a consortium agree not to be compensated for the time spent on the preparation of a proposal, the other members of the consortium are not unjustly enriched by receiving compensation at the completion of the project and not sharing that compensation with a member involved only in the preparation of the proposal. Aronovitch & Leipsic Ltd. (c.o.b. J.J. Barnicke Winnipeg) v. Berney, [2006] M.J. No. 402 (C.A.).

A securities dealer is not liable for damages for failure to take steps to remove trading restrictions on shares at a client’s request where the client takes back the shares prior to the time for the dealer’s performance, thereby relieving the dealer of its obligation to perform, and no damages resulted from the delay to the time the shares were taken back. Hadcock v. Georgia Pacific Securities Corp., [2006] B.C.J. No. 3065 (C.A.).

A respondent to an appeal from the dismissal of a motion to determine whether a judgment against the respondent survived the respondent’s discharge from bankruptcy may seek security for costs of the appeal. Di Paola (Re), [2006] O.J. No. 4381 (C.A.).

A defendant who is alleged to have made improper payments from trust funds may be precluded on the bases of res judicata, the rule against collateral attack on court orders and abuse of process from attacking the validity of the applicable trust agreements where the defendant participated in prior proceedings in which orders were made based on the validity of the trust agreements and the proposed defence, although known to the defendant, was not raised. Ernst and Young Inc. v. Central Guaranty Trust Co., [2006] A.J. No. 1413 (C.A.).

An escrow agreement pursuant to which monies are held back from the purchase price for certain assets will not be affected by the subsequent bankruptcy of the vendor where the agreement has been transferred to a related company of the vendor prior to bankruptcy and does not form part of the bankrupt estate. Philip Services Corp. v. Inch Hammond Professional Corp., [2006] O.J. No. 4475 (S.C.J.).

After a Canadian court determines that a foreign judgment was granted by a court that appropriately exercised jurisdiction on the basis of the real and substantial connection test, the Canadian court’s inquiry in determining whether to enforce the foreign judgment is limited to consideration of the three defences of fraud, public policy and natural justice, absent special or unusual circumstances that may require the creation of a new defence. Oakwell Engineering Ltd. v. Enernorth Industries Inc., [2006] O.J. 2289 (C.A.).

Non-monetary foreign judgments are properly enforceable provided that the judgment was rendered by a court of competent jurisdiction, the judgment is final and the judgment is of a nature that the principle of comity requires the domestic court to enforce. Pro Swing Inc. v. Elta Golf Inc., [2006] S.C.J. No. 52 (S.C.C.).

Where the rent payable on the renewal of a lease is the “fair market rent”, the rent to be paid is to be determined objectively as the rent the premises would attract if exposed to the market at the time of the renewal. Fire Productions Ltd. v. Lauro, [2006] B.C.J. No. 2988 (C.A.).

A claim for damages in tort and contract arising out of an alleged supply agreement falls outside the scope of an arbitration provision in a subsequent non-disclosure agreement that was intended to facilitate a possible business arrangement between the parties. Apotex Inc. v. IVAX Pharmaceuticals s.r.o., [2006] O.J. No. 4361 (S.C.J.).

A defendant bringing an application for summary judgment under Rule 18(6) of the British Columbia Supreme Court Rules will meet the onus to negative the existence of a bona fide triable issue beyond a doubt where it shows that the plaintiff has failed to plead material facts in support of every element of a cause of action. Skybridge Investments Ltd. v. Metro Motors Ltd. (c.o.b. Metro Ford), [2006] B.C.J. No. 2892 (C.A.).

A defendant may issue a third party notice to assert a right to contribution against a concurrent tortfeasor under the Alberta Tort-Feasors Act where the damages claimed against the third party are the same as the damages alleged in the original claim. MacKay v. Farm Business Consultants Inc., [2006] A.J. No. 1336 (C.A.).

Visit Quicklaw to access the full article

Aggravated damages for mental distress arising out of breach of contract are not available to a corporation, including a family-owned corporation. Thomas Management Ltd. v. Alberta (Minister of Environmental Protection), [2006] A.J. No. 1332 (C.A.).

A corporation must propose an arrangement to attract the application of s. 182 of the Ontario Business Corporations Act, which requires shareholder approval for such a transaction. McEwen v. Goldcorp Inc., [2006] O.J. No. 4437 (Div. Ct.).

As actionable misrepresentations are confined to representations of past or existing fact, no claim for negligent misrepresentation will lie in respect of statements relating to future conduct or events. PD Management Ltd. v. Chemposite Inc., [2006] B.C.J. No. 2871 (C.A.).

Regulations governing Sunday shopping enacted pursuant to the Nova Scotia Retail Business Uniform Closing Day Act that discriminate on the basis of either the size of the retail outlet or its corporate structure, without the express legislative authority to do so, are ultra vires the Governor-in-Council under the Act. Sobeys Group Inc. v. Nova Scotia (Attorney General), [2006] N.S.J. No. 386 (S.C.).

In determining whether to grant leave to appeal an arbitration award under s. 31(2)(a) of the British Columbia Commercial Arbitration Act, the court should consider whether the result of the arbitration is sufficiently important to justify court intervention, whether the alleged error of law is material to the decision and whether granting leave is an appropriate exercise of judicial discretion. Elk Valley Coal Partnership v. Westshore Terminals Ltd., [2006] B.C.J. No. 2712 (S.C.).

Costs may be awarded under the current Ontario costs regime in favour of a party to non-public interest litigation who is represented by pro bono counsel. 1465778 Ontario Inc. v. 1122077 Ontario Ltd., [2006] O.J. No. 4248 (C.A.).

A holder of an equitable assignment of a chose in action may bring and maintain an action in its own name where there is no possibility that the assignor could maintain a claim against the principal debtor or guarantor. Prism Transport Ltd. v. UPM-Kymmene Miramichi Inc., [2006] N.B.J. No. 440 (Q.B.).

The avoidance of parallel proceedings may be the determinative factor on a motion to stay a proceeding in Ontario on the basis of forum non conveniens where other factors in respect of the appropriate forum are neutral, both parties are sophisticated and have ample resources, the contract in dispute can be interpreted in either jurisdiction and the proceeding is already underway in an appropriate forum. Molson Coors Brewing Co. v. Miller Brewing Co., [2006] O.J. No. 4236 (S.C.J.).

A recipient of funds under an agreement that neither requires the funds to be kept separate nor imposes any restrictions on their use is not a trustee of the funds but merely a debtor of the person entitled to payment under the agreement. Water Street Pictures Ltd. v. Forefront Releasing Inc., [2006] B.C.J. No. 2652 (C.A.).

A premium payable by an unsuccessful defendant as part of a costs award reflecting the risk of non-payment of the fees and disbursements of the plaintiff’s counsel is not available as part of an award of substantial indemnity costs under the previous Ontario costs regime. Walker v. Ritchie, [2006] S.C.J. No. 45 (S.C.C.).

Visit Quicklaw to access the full article

The Ontario Ministry of Health and Long-Term Care may not be liable for costs of a lengthy proceeding after withdrawing its subrogated claim before the conclusion of the proceeding where the Ministry had limited involvement in the proceeding and, among others things, did not attend or participate at trial, did not complicate the proceeding or cause any delay, and took no steps to prolong the dispute. DiBattista v. Wawanesa Mutual Insurance Co., [2006] O.J. No. 3960 (C.A.).

A court may pierce the corporate veil to impose personal liability on the corporation’s principal where the individual exercises complete control of finances, policy and business practices of the company, that control is used to commit a fraud or wrong that would unjustly deprive a claimant of his or her rights and the misconduct is the reason for the claimant’s injury or loss. Wildman v. Wildman, [2006] O.J. No. 3966 (C.A.).

A carrier’s standard form bill of lading, which is issued some time after a shipment has taken place and which contains a limitation on the carrier’s liability, may govern the relations between the shipper and the carrier where the parties are sophisticated businesses with comparable bargaining power who have previously dealt with each other in this manner without any objection by the shipper. Alcoa, Inc. v. CP Ships (UK) Ltd., [2006] O.J. No. 4037 (S.C.J.).

Before an interim order for the appointment of an inspector under the Third Schedule of the Nova Scotia Companies Act may be granted, the court must be satisfied on the applicant’s evidence that there is a reasonable inference that the acts or conduct complained of are, on their face, likely true. 3026709 Nova Scotia Ltd. (Re), [2006] N.S.J. No. 389 (S.C.).

Reproduction in electronic databases by a newspaper publisher of articles by a freelance author infringes the author’s copyright where the editorial content of the newspaper, which is the true essence of its originality, is not preserved in the databases. Robertson v. Thomson Corp., [2006] S.C.J. No. 43 (S.C.C.).

As an application to rectify a mortgage and an application seeking directions as to the manner of distribution of funds by an interim receiver did not give rise to the same issues and did not require the same evidence, the doctrines of res judicata, estoppel, and abuse of process were inapplicable.  No injustice was done by the appropriate subrogation of a party to the rights of original mortgages where another party had notice of the mortgage and believed the mortgage had priority.  A mortgage commitment agreement could give rise to an equitable mortgage if all of its conditions precedents were met or waived prior to the date a violation of the Planning Act crystallized.  Elias Markets Ltd. (Re), [2006] O.J. No. 3689 (C.A.).

Visit Quicklaw to access the full article

Upon challenging an ex parte order exempting a party from the provisions of the Bulk Sales Act, the test was whether or not disclosure of the information brought forward by the moving party might have had an impact on the granting of the ex parte order, and not whether the order would have been granted had full disclosure been made.  Cantar Pool Products Ltd. (Re), [2006] O.J. No. 3693 (S.C.J.).

Visit Quicklaw to access the full article

Where a restrictive covenant in an exchange and purchase agreement requires the purchaser to pay the vendor in the event the purchaser sells an asset and the purchaser may only sell the asset with the consent of the vendor, a letter from the vendor accepted by the purchaser stating the amount the vendor requires to provide a full release to the purchaser constitutes a full release of the restrictive covenant obligations.  Where the plaintiff alleges that the defendants had not delivered option agreements as required pursuant to an exchange and purchase agreement, if the plaintiffs and defendants had equal knowledge of the option agreement documents on closing, it is not appropriate to shift the burden of proof for an option claim from the plaintiff to the defendants.  Stratos Global Corp. v. Antle, [2006] N.J. No. 248 (C.A.).

Visit Quicklaw to access the full article

The plaintiff was awarded half of the profits arising from a timber licence.  The plaintiff’s conduct was consistent with his evidence as to the terms of the oral agreement to bid on logging rights and share the profits on a 50/50 basis.  Zimmermann v. W.B. Trousdell Trucking Ltd. [2006] B.C.J. No. 2118 (S.C.).

Visit Quicklaw to access the full article

Pursuant to s. 228 of the Business Corporations Act, upon a shareholder’s petition, the court ordered that management fees cease to be paid once the directors no longer approved of such payments and that amounts for expenses not incurred in or about the business of a company be repaid forthwith.  D & G Developments Ltd. v. Crystal Cove Beach Resorts Inc., [2006] B.C.J. No. 2152 (S.C.).

Visit Quicklaw to access the full article

The two-year limitation period in s. 5(1) of the Limitation of Actions Act does not bar an action that is essentially an alleged breach of a motor vehicle contract in the context of a single motor vehicle accident.  Godin v. Star-Key Enterprises Ltd., [2006] N.B.J. No. 382 (C.A.).

Visit Quicklaw to access the full article

Litigation privilege is distinct from solicitor-client privilege and expires at the end of the litigation that gave rise to it.  Blank v. Canada (Minister of Justice), [2006] S.C.J. No. 39 (S.C.C.).

Visit Quicklaw to access the full article

Where, read as a whole, Minutes of Settlement provide for remediation in accordance with results of the consultant’s testing, and the consultant determines that the site has been remediated accordingly, the defendant has met its obligations under the Minutes of Settlement.  Johnston v. Shell Canada Products Ltd., [2006] O.J. No. 3516 (C.A.).

Visit Quicklaw to access the full article

Absent authority stating the test for granting leave to issue letters of request to a foreign court, the test is whether the evidence sought appears to have a semblance of relevance to a pending motion.  Apotex v. Bausch, [2006] O.J. No. 3539 (S.C.J.).

Visit Quicklaw to access the full article

It is consistent with the purpose and interpretation of the Assessment Act to treat a hospital subsidiary as a public hospital for the purpose of exemption from assessment.  University Health Network v. Municipal Property Assessment Corp., [2006] O.J. No. 3565 (S.C.J.).

Visit Quicklaw to access the full article

Pursuant to ss. 5(1) and 11 of the Social Services Tax Act, a manufacturer who either purchases in British Columbia or brings into British Columbia components for the purpose of manufacturing goods will be liable for the sales tax on the components when they are delivered into British Columbia or when they are purchased, which is when the manufacturer takes possession of the components.  Northern Gold Foods Limited v. British Columbia, [2006] B.C.J. No. 2035 (S.C.).

Visit Quicklaw to access the full article

The Civil Enforcement Act permits the Crown to collect money owed to it through proceedings available under its prerogatives or other enactments.  Dominion Motors Enterprises Ltd. v. Alberta, [2006] A.J. No. 1118 (Q.B.).

Visit Quicklaw to access the full article

The provisions in both the Canada Business Corporations Act and the Canada Labour Code respecting directors’ liability are not in conflict. The legislative objectives of both statutes can be achieved by requiring employees to file timely Proofs of Claim against a bankrupt corporation in the midst of a parallel proceeding to recover unpaid wages. Western Express Air Lines Inc. (Re), [2006] B.C.J. No. 1906 (S.C.).

Visit Quicklaw to access the full article

Parties to a contract are deemed to have informed themselves of the risks of foreign legal systems and to have accepted those risks by way of a forum selection clause.  A court will therefore give full weight to the contractual intentions of the parties by enforcing the forum selection clause unless there is strong cause to do otherwise.  Crown Resources Corp. S.A. v. National Iranian Oil Co., [2006] O.J. No. 3345 (C.A.).

Visit Quicklaw to access the full article

The fact that a party states that a clause regarding the sale and purchase of a ranch and cattle does not reflect his intentions does not render the agreement void for uncertainty.  Young v. Fleischeuer, [2006] B.C.J. No. 1987 (S.C.)

Visit Quicklaw to access the full article

The vendor in a land transaction concerning condominium property is entitled to retain the deposit money that has been agreed to represent a genuine pre-estimate of damages in the event that the transaction fails to complete.  Liu v. Coal Harbour Properties Partnership, [2006] B.C.C.A. No. 385 (C.A.).

Visit Quicklaw to access the full article

The determination of whether a contract for purchase and sale is valid in the ordinary course of business is made using an objective view of the parties’ intention in the context of the parties’ stated subjective intentions.  Dougall Farms Ltd. v. Bank of Montreal, [2006] O.J. No. 3377 (S.C.J.).

Visit Quicklaw to access the full article

To determine the existence of a partnership, the parties must intend to and agree to form the partnership.  This intention need not be specifically expressed and the agreement need not be written: the intention and agreement can be inferred from the conduct of the parties on consideration of all the evidence.  Green v. Harnum, [2006] N.J. No. 240 (S.C.).

Visit Quicklaw to access the full article

A credit card transaction consists of three or four independent bilateral agreements.  When it is clear from the cardholder agreement that the bank and credit card holder agree that interest would be charged from the transaction date...

The parties who are borrowers to a contract for the provision of loans at an interest rate higher than the criminal limit as set out in s. 347 of the Criminal Code will be able to recover their losses...

A class action in a proceeding for interest charged at a criminal rate of interest will be certified against multiple defendant companies that have essentially the same business model and fee structure...

An investor whose profile indicates a high tolerance for risk cannot recover his investment losses from his investment advisor unless he can establish that the investment advisor did not advise with reasonable care...

The Alberta Limitations Act links immunity with the discoverability of the injury, not the discoverability of a cause...

An assignee takes subject to all the equities that have accrued at the time the debtor receives notice of the assignment. The absence of a term excluding set-off rights from the assignment agreement indicates...

When an action is brought against a trustee to recover trust property, or the proceeds therefor still retained by the trustee or previously received by the trustee and converted to his use...

Rule 31.03(3) should be interpreted broadly and opposing counsel should have access to the “foundation” of expert opinions relied upon at trial.  Litigation privilege in this situation should be...

When two statutory provisions are in conflict, an implied exclusion may be found so that the more specific provision is applied to the exclusion of the more general provision...

Proposals should be encouraged as an alternative to bankruptcy. In order to do so, certainty must be part of the equation, which can only be achieved if there is a definitive date...

Lawyers who undertake a search under an Anton Piller order, and take possession of relevant confidential information attributable to a solicitor-client relationship, bear the onus of showing that there is no real risk that such information...

When the language or terms of a contract are not ambiguous, the judgment turns on the proper interpretation of the contract...

A consent order does not necessarily act as the final adjudication of an issue, and can be reopened more easily than a judgment or a contract between the parties...

The state of the law changed so that a lessor was no longer precluded from liability where its vehicle was involved in a personal injury action.  Since it was not the practice of the lessor to move for summary judgment when sued in its capacity as lessor...

Partners owe to each other a duty, based on equitable principles, of the utmost good faith...

Under the Bankruptcy and Insolvency Act, a proposal, wherever possible, should be given a plain meaning comprehensible to creditors...

When there are two proceedings arising out of a similar fact situation, the court retains jurisdiction to stay one of the proceedings...

Appeals are taken from orders or judgments and not from the reasons for those orders or judgments...

It is a reversible error on appeal for a trial judge to make a finding of liability on a cause of action neither pleaded, nor dealt with...

A stay of proceedings should be granted when it is equitable to do so, and is more likely to be granted when the party applying for the stay is a victim...

Where no evidence is led to substantiate a claim that insured property was exposed to unexpected environmental conditions, and where no other proximate cause is found, the loss will not be considered fortuitous...

A judge may imply a term into a contract as a matter of law when not to do so...

Absent a strong cause demonstrated by the party seeking to avoid it, a forum selection provision contained in a contract should be strictly adhered to...

In commercial contract cases, punitive damages should only be awarded in the most exceptional circumstances and only for very harsh and outrageous conduct...

When deciding whether to award damages for mental distress arising from a breach of contract, the court should ask, first, whether the object of the contract was to secure a psychological benefit that brings distress upon breach that is within the reasonable contemplation of the parties...

An employee, dismissed for cause, has no proprietary interest in a list of clients other than as may be specified to the contrary in a contract...

Although the tort of unlawful interference with economic interests is properly characterized as a developing tort, and there is no strict test for determining whether this tort has been committed...

The lessor and legal titleholder of commercial aircraft is not liable for unpaid air navigation charges incurred by a bankrupt lessee...

Foreign judgments create a simple contract debt between the parties. The appropriate limitation period for enforcement of a foreign judgment is therefore the limitation period for bringing an action upon a simple contract debt...

While the relationship between a bank and its customer is governed mainly by contract, in carrying out its part of the contract, a bank owes its customer a duty to act with reasonable care and skill.. 

A party to a partnership has a fiduciary obligation to maintain partnership records in an appropriate fashion, and specifically to record the financial contributions to the partnership of other partners...

When the issue on appeal is the judge’s interpretation of the evidence as a whole, the trial judge’s conclusions should be upheld unless they constitute...

In order for leave to appeal to be granted from a decision of an administrative tribunal the applicant must demonstrate that...

A settlement not yet approved, and requiring court approval, can be enforced despite the fact that the plaintiff...

An application for summary judgment can be granted notwithstanding the presence of a counterclaim, unless...

On an appeal to set aside an order granting a stay of proceedings based on forum non conveniens, the court will only...

While the fame of a brand is a surrounding circumstance of importance under the Trade-marks Act, no circumstance will...

In a claim of trademark infringement, the fame of the trademark is only one of many factors which must be considered. Neither likelihood of...

Where there is a good and arguable prima facie case and a real and substantial connection between the action and the forum, the court will...

For the purpose of piercing the corporate veil between a parent corporation and its subsidiary, it is not enough to...

A claim advanced under s. 18 of the Trade Practice Act cannot be certified as a class proceeding, as the Class Proceedings Act precludes certification of any proceeding that...

When interpreting a contract, there is no presumption in favour of, or against, an interpretation that imposes...

A court has the authority to order a correction to a proxy circular if it is determined that an omission would...

A representative plaintiff who is seemingly atypical from the rest of the plaintiff class will be certified as the representative plaintiff as long as the representative plaintiff does not have any interest...

When assessing damages for “passing-off” in the context of a franchise agreement, it is not “double recovery” if the franchisor is awarded damages...

The rescission of a contract cannot be ordered unless all the parties to the contract are also parties to the litigation and have been given the opportunity to make submissions...

The onus of proving entitlement to an exemption under the Exemptions Act should be put on the person who has the means to provide it...

The court will use parol evidence to interpret ambiguous and undefined terms in order to determine whether a party has fundamentally breached a distributorship agreement...

The imposition on one party to an agency agreement of the responsibility to indemnify another party to the agreement for its own negligence is a...

In order to obtain leave to bring a derivative action, the applicant must show...

Where two parties accept that their business relationship is at an end, there is no...

There is no general principal that commercial liability policies were not intended to cover repair or replacement costs arising out of...

Where an arbitration panel does not make a specific determination of the personal liability of a party to an arbitration agreement...

A group of investors in a bankrupt investment company are entitled to assert a claim over assets that would otherwise be subject to the bankruptcy where...

Where there is a serious dispute as to the actual or constructive knowledge of the material facts giving rise to a claim of...

In determining whether to grant a stay of execution pending an application for leave to appeal to the Supreme Court of Canada, a British Columbia Court of Appeal judge must...

On an application to strike a jury notice, it is an error in principle not to strike the notice where the chambers judge finds that...

Where a refinancing company does not perfect the security interest in the situs jurisdiction of the leased property...

A statement of defence that denies each and every allegation contained in the statement of claim without providing further...

There is no risk of irreparable harm sufficient to justify the granting of a stay pending an appeal where all that is required is the disclosure of...

Generally a party will not be able to obtain rectification of a contract on the basis of unilateral mistake where the mistake...

An Alberta court has the jurisdiction to make an order with respect to property located in another province such that a party may...

Summary judgment may be granted where an exclusion clause is specific, unambiguous, comprehensive and...

If a respondent to a summary judgment motion intends to rely on hearsay, it must explain why it is unable to adduce the evidence directly, particularly when...

Representations regarding the timing and development of a subdivision can form the basis of a separate duty in tort to accurately and fully set out a...

An employee and controlling mind of a corporation that signs a contract...

The tort of interference with economic relations requires an intention to injure, which is satisfied if an unlawful act is directed at the plaintiff, even...

A creditor may be entitled to an oppression remedy on the ground that the debtor corporation unfairly disregarded its interests by...

The resignation of all of a corporation’s directors, except for one non-Canadian resident director, does not cause the non-Canadian director to...

Where a party to a contract makes a handwritten amendment to an essential term of the contract, and that notation...

Unless it can be argued that a section 244 notice issued under the Bankruptcy and Insolvency Act is the equivalent of...

While garnishment of a joint bank account is permitted under the Rules of Civil Procedure, this does not oust the court’s...

While in the context of claims for economic loss there is concern about making a defendant an insurer for the wrongs of the world at large, there should...

Where a plaintiff’s conduct has increased his or her damages in a claim for breach of contract, the court will be able to...

As there is no rule of law that prevents a party to a contract from assigning the rights of benefits of the contract to a third party, while keeping the burdens, a party may...

As the motive of an applicant who seeks information contained in a securities register of a corporation incorporated under the Canada Business Corporations Act is...

While the law has not yet developed to the point where remedies for breach of leases are co-extensive with those for breach of other contracts, a court should determine...

A partnership may be established before the partners commence carrying on business if they have undertaken...

An issuer does not have a continuing obligation to disclose material facts occurring after the date a receipt for its final prospectus...

A claimant’s failure to register under the Ontario Real Estate and Brokers Act does not bar the claimant from receiving a commission...

The standard of care of an accountant in performing a review engagement must be assessed in light of the engagement’s limited objective of...

Where there are multiple defendants each with separate interests, separate claims against them, separate counsel and no commonality of interest...

Although a judge who conducts a settlement conference may be permitted to continue to assist the parties to resolve any difficulties that arise during the course of settlement negotiations, the judge should...

A judge may grant judgment after a summary trial on an action alleging misrepresentation inducing entry into an agreement where the...

A lender’s failure to recommend independent legal advice to a borrower executing a security agreement with a spouse...

The doctrine of notional severance, which permits a court to rewrite a clause in an agreement providing for a criminal rate of interest and reduce the effective rate to the statutory maximum, is not...

An intervenor may be entitled to costs on the discontinuance of an appeal where...

A new trial may be ordered by an appellate court where, after a lengthy trial with many witnesses, the trial judge...

The application procedure may be used to seek interpretations of provisions of tax statutes, at least...

Where there are a number of defendants each with separate interests and...

A rule permitting the examination of non-parties under oath cannot...

A defendant’s spouse may be examined under Rule 200(1)(c) of the Alberta Rules of Court as a person employed by the defendant where...