Commercial Litigation
Competition and AntitrustOur Blog
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As a litigant, perhaps the most ill-advised litigation strategy is bringing a tactical summary judgment motion to delay and avoid accountability, especially when your own conduct may not withstand judicial scrutiny. When you bring a motion for summary judgment to try to validate a scheme to earn a secret profit built on deceit and nondisclosure, you should not be surprised when your motion boomerangs right back at you.
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In a series of LinkedIn posts (compiled below), I am posting about litigation and legal practice under the banner “On Litigation”. The goal is to build a connected series of short reflections on what it means to be an effective litigator – one post at a time.
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We have previously noted (here and here) that, over the last several decades, the Supreme Court of Canada has heard and decided fewer cases than it once did. That long-term decline has become even more pronounced since the onset of the pandemic. Since 2020, the Court has never decided more than 60 cases in a year. In 2025, it decided just 45.
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Sahar Talebi and Arash Nayerahmadi co-authored the blog Better Evidence, Better Decisions: Key Takeaways from CLUC Education & Social Day 2026, published on commerciallist.com.
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In prior posts, we have shared a number of insights from our Data-Driven Decisions program. Our work focuses on understanding how courts decide cases by identifying the factors associated with success or failure in litigation. That analysis serves an obvious predictive function: it helps estimate the likelihood that a court will decide a case in a particular way.
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In One York Street Inc v 2360083 Ontario Limited, Lenczner Slaght’s Matthew Lerner and Jim Lepore succeeded with an appeal on behalf of their client, Menkes Developments (One York Street) in the Ontario Court of Appeal’s first decision to substantively address deemed waiver of solicitor-client privilege by pleading a party’s state of mind. Waiver of privilege is often said to exist when a party “places its state of mind in issue,” but before the Court of Appeal provided clarity, there was much confusion as to what it means for a party to place its state of mind in issue.
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In Tsa Corporation v KPMG LLP, the Supreme Court of the Northwest Territories confirmed that courts may set aside valid arbitration agreements as a just and proper remedy for oppression. The decision underscores that arbitration will not shield parties from court scrutiny when agreements are tainted by oppressive misconduct.
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President Donald Trump proclaimed April 2 “Liberation Day” and unveiled a new trade policy for worldwide “reciprocal tariffs”. Initial reactions were that Canada (and Mexico) emerged relatively better off in that they would continue to benefit from a 0% tariff on goods compliant with the United States-Mexico-Canada Agreement (USMCA). However, the scope of such exceptions is itself an uncertainty, as the USMCA is up for a review in 2026 and may well be renegotiated sooner than that. In the meantime, Canada still faces the 25% tariff on steel and aluminum which came into effect on March 12, and most importantly a 25% tariff on automobiles and auto parts which comes into effect today.
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In its recent judgment in 2730453 Ontario Inc v 2380673 Ontario Inc, the Ontario Court of Appeal upheld the trial decision of the Honourable Justice Centa, which awarded specific performance to the Purchaser (successfully represented by Lenczner Slaght) for the Vendor’s breach of an oral agreement for the purchase and sale of a 32-acre parcel of land for development. In doing so, the Court clarified the legal requirement that a prospective purchaser must prove “detrimental reliance” in undertaking acts of part performance before an oral agreement will be enforced in the face of the Statute of Frauds.
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Since it was recognized a little over a decade ago in Bhasin v Hrynew, the contours of the organizing principle of good faith and the duty of honest performance in contract law have been gradually clarified by Canadian courts. Most recently, in Ocean Pacific Hotels Ltd v Lee, the British Columbia Court of Appeal considered whether the duty of good faith applied to pre-contractual conduct. In particular, the question in this case was whether an employer’s conduct before an employment agreement was finalized could be scrutinized under the duty of honest performance. Answering that question with a resounding no, the Court of Appeal’s decision provides critical insight into the evolving boundaries of good faith obligations in Canadian contract law.
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