Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

Time to Leave: Supreme Court to Determine Securities Class Action Limitation Period

Posted in Case Comments, Class Actions, Securities
Elder MarquesMichael O'Brien

The Supreme Court of Canada has granted leave to appeal in a case that will determine how to apply the statutory limitation period for investors in Ontario who decide to sue public issuers and their executives under the Securities  Act.  Given similar legislation in other provinces, the case will be significant for investors and public issuers across Canada.

At issue is the February 2014 decision of a 5-member panel of the Ontario Court of Appeal covering three cases with different fact situations:  Green v. CIBC, 2012 ONSC 3637; Silver v. IMAX2012 ONSC 4881; and Millwright Regional Council of Ontario Pension Trust Fund (Trustees of) v. Celestica Inc.2012 ONSC 6083, each brought under Part XXIII.1 of the Ontario Securities Act.  The Court of Appeal decision – 2014 ONCA 90 – was a dramatic and unusual reversal of its own decision on the same issue in Sharma v. Timminco, 2012 ONCA 107, less than two years prior.

As discussed in a blog post earlier this year, the three appeals at issue in Green required the Court of Appeal to decide when an investor advancing a proposed securities class action can be properly said to have “commenced” a claim, thus stopping the limitations period.  In Green, the Court held that investors enjoyed the benefit of the limitation period suspension under s. 138.14 of the Securities Act once they have issued a common law claim and also pleaded an intention to seek leave to plead the statutory cause of action, even if leave is not then granted within the limitation period.  This is in contrast to Timminco (also discussed in an earlier post), in which the Court had held that leave must be granted within the three-year limitations period, or the claim was statute-barred.

The three claims giving rise to this appeal were each issued and served within the three-year limitation period, but leave was not granted within that timeframe. Motions judges had taken a different approach in each case in applying the statutory limitation period, which ultimately led the Court of Appeal to revisit its Timminco decision.

Between the Court of Appeal’s decisions in Timminco and Green, the Ontario government announced that it was monitoring “current cases” and would consider amending the Securities Act limitation provisions if needed. Many observers were surprised to see the Court of Appeal reversing its own recent decision, rather than allowing the legislature to revisit the statutory framework if it deemed it necessary. It will be interesting to see what the Supreme Court says not only about the proper application of the limitation period in Securities Act cases, but how it addresses the Court of Appeal’s departure from its own recent precedent.

A Costly Choice (of law): Determining the damages available for an extra-territorial tort

Posted in Case Comments, Conflict of Laws
Brooke MacKenzie

The recent UK Supreme Court decision in Cox v Ergo Versicherung AG, [2014] UKSC 22, provides helpful commentary and a potentially persuasive precedent for Canadian courts on issues of choice of law, the distinction between substance and procedure in the conflict of laws, and legislative extraterritoriality in circumstances where a cause of action is governed by a foreign law.

Consistent with Canadian law, the UK Supreme Court held in Cox that issues of substance are governed by the law of the place where the injury was sustained, but issues of procedure must be determined by the law of the forum where the case is tried.

While this rule is clear, its application in practice can be quite complex. The Court’s decision in Cox should be interesting to Canadian lawyers because it demonstrates an application of this principle to questions of damages. The Court considered whether German laws excluding damages for bereavement and permitting consideration of subsequently-accrued rights in the damages calculation (both of which would substantially reduce the damages available to the plaintiff) were substantive or procedural. On the basis that these rules determined the scope of the defendant’s liability and the plaintiff’s enforceable rights, the Court held the German laws were substantive and governed the case at bar.

Background

The proceedings arose out of a fatal car accident in Germany, which killed Major Christopher Cox. The driver was a German national resident, domiciled in Germany, who was insured by a German insurance company. Major Cox’s widow was living with him in Germany at the time of the accident, but shortly thereafter returned to England, where she was ordinarily domiciled. In the time between the accident and the hearing, Mrs. Cox entered into a new relationship and had two children with her new partner.

It was undisputed that pursuant to the law of the European Union, Mrs. Cox was entitled to sue the insurer in the courts of the state where she is domiciled. Mrs. Cox availed herself of that right, commencing litigation in England.

Although the forum was clearly appropriate, the damages available to Mrs. Cox varied significantly depending on whether the law of Germany or England was to be applied to assess the damages to which she may be entitled. In both regards, English law was more generous to Mrs. Cox:

  • First, the English Fatal Accidents Act 1976 specifically provided that “where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken account the re-marriage of the widow or her prospects of re-marriage”. In contrast, the German Bürgerliches Gesetzbuch (or “BGB”, the civil code of Germany) provided that in assessing damages a court should take into account any subsequent benefits received that affect the loss of dependency. In other words, Mrs. Cox stood to recover more under English law, as her damages under German law could be reduced by virtue of any maintenance received from (or right to maintenance arising from) her subsequent marriage.
  • Second, the English Fatal Accidents Act 1976 provided for damages for bereavement, while German law conferred no right to damages for bereavement unless such suffering goes beyond normal grief and amounts to a psychological disturbance comparable to physical injury.

The decision of the UK Supreme Court

Lord Sumpton, writing for the majority, outlined the parameters of choice of law issues in tort under private international law: issues of substance are to be governed by the law of the place where the injury was sustained, but issues of procedure must be determined by the law of the forum. The issue for determination before the court was whether the German laws to be applied to the outstanding damages issues were procedural (in which case English procedural law would prevail) or substantive (in which case the German laws would be determinative).

Lord Sumpton considered the leading UK authority, the decision of the House of Lords in Harding v Wealands, [2007] 2 AC 1. In Harding, the House of Lords held that questions of procedure did not solely comprise the rules governing the manner in which proceedings were conducted. The House noted that damages issues could be either substantive or procedural: questions of the kind of damage recoverable was a question of substance (to be determined under the law of the place where the injury was suffered), whereas the quantification or assessment of damages went to the extent of the remedy, and as such was a question of procedure (under the law of the forum). The kind of damage recoverable, the House held, is inexorably tied to the rules which determine liability: one is not simply liable in tort; he must be liable for something. Rules excluding a kind of damage from the ambit of liability determine whether there is liability for the damage in question, and are thus questions of substance.[1]

Following the reasoning in Harding, the Court in Cox concluded that the German damages rules at issue were substantive, as they determined the scope of the defendant’s liability. The German law providing credit for maintenance received by a subsequent partner, the Court held, was a rule of causation, which determines the extent of the loss for which a defendant ought reasonably be held liable (the Court held it reflected the principle that a victim ought to mitigate her loss, and that credit ought to be given to the defendant by reducing damages according to such mitigation).

Similarly, the Court found that the German laws making damages for bereavement unavailable was substantive, holding that they are “paradigm examples of rules governing the recoverability of particular heads of loss, the avoidance of which lies within the scope of the defendant’s duty.”

The damages rules under the English Fatal Accidents Act thus could not be applied to the case at bar. Insofar as they are substantive, they would not apply because the substantive law governing the action is German law (the law of the place where the injury was sustained). In any event, the Court noted, the Fatal Accidents Act does not lay down general rules of English law for the assessment of damages, but only rules for actions brought under the Act itself. The case at bar was one to enforce liability under German substantive law, and was not commenced pursuant to the Act.

Lastly, the Court rejected the argument that the Fatal Accidents Act had extra-territorial application and should thus apply notwithstanding the aforementioned choice of law analysis. The Court noted the strong presumption against extra-territorial application of statutes, and held there was nothing in the Fatal Accidents Act, express or implied, to suggest that its provisions were intended to have extra-territorial effect and apply irrespective the ordinary principles of private international law.

Significance in Canada

The UK Supreme Court’s decision in Cox is largely consistent with Canadian law, which similarly relies on the distinction between substantive and procedural law to determine choice of law in tort cases.

In Tolofsen v Jensen; Lucas v Gagnon, [1994] 3 SCR 1022, the Supreme Court of Canada laid down the rule that substantive rights of the parties to an action are to be governed by foreign law, but all matters of procedure are governed exclusively by the law of the forum. Justice La Forest, writing for the majority, espoused the benefits of this rule’s predictability and its concurrence with people’s ordinary expectations that their activities will be governed by the place where they happen to be, and that their legal benefits and responsibilities will be defined accordingly. The distinction between substance and procedure, however, must be drawn because a court in a particular forum cannot be expected to apply every procedural rule of the foreign state whose law it wishes to apply. Justice La Forest noted that “the purpose of the substantive/procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties”.

Although the distinction between substantive and procedural law for the purposes of choice of law makes sense in principle, as is evident from Cox, it can be difficult to apply in practice Justice La Forest noted in Tolofson that “clearcut categorization… is not always easy or straightforward”.

In Tolofson, the Supreme Court of Canada addressed the characterization of one tricky concept – limitation periods. The Court held in Tolofson (and the Ontario Court of Appeal held more recently in Bieberstein v Kirchberger, 2013 ONCA 629) that limitation periods are substantive, as they create an accrued right. This reasoning is similar to that of the Court in Cox; limitation periods, like the questions of damages before the UK Supreme Court in Cox, determine the scope of the defendant’s liability (i.e. they are only liable for those torts occurring within a particular time) and the rights of the plaintiff (i.e. upon the expiration of a limitation period, a plaintiff no longer has a right to enforce).

Canadian courts have also grappled with the characterization of damages issues as substantive or procedural, further demonstrating the practical complexity of the application of these principles. Although the courts in general have distinguished between an entitlement to damages (as substantive) and the quantification of damages (procedural) – as was done by the UK Supreme Court in Cox, on the basis of the statements in Harding – it is apparent that this categorization can be challenging. For instance, in Somers v Fournier (2002), 60 OR (3d) 225, the Ontario Court of Appeal held that pre-judgment interest was a question of substance (holding it is an entitlement akin to a head of damage), but that costs were a question of procedure (noting that an award of costs was discretionary under the Rules, rather than an entitlement). The decision relied in part on the fact that pre-judgment interest is a right provided for in the Courts of Justice Act, as distinct from courts’ authority to grant costs in its absolute discretion pursuant to the Act and the factors articulated in the Rules of Civil Procedure. The Court further held that the cap on non-pecuniary damages was a question of procedure, as a question of quantification of damages after the parties’ rights and liabilities have been determined.

The case law shows that drawing a distinction between substance and procedure requires careful analysis, and is easier said than done. In light of this practical challenge, the UK Supreme Court’s conclusion and reasoning in Cox, providing an example of an application of this rule to damages issues, may be persuasive in Canadian cases. As is evident from the facts of Cox, the application of the law of the place where a tort occurred to limit or expand the available damages can make a substantial difference to the quantum of damages that may be awarded. Canadian lawyers would be well-advised to pay attention in order to appropriately assess the scope of potential damages in complex cases relating to multiple jurisdictions.

Case Information

Cox v Ergo Versicherung AG, [2014] UKSC 22

Date of Decision: April 2, 2014


[1] The application of this reasoning to the facts of Harding was, in the words of the UK Supreme Court in Cox “surprising” and “questionable”. The application to the facts in Cox follows more logically from the principles stated in Harding, making Cox a potentially more helpful precedent.

A blockbuster decision in contractual interpretation

Posted in Case Comments, Contracts
Geoff R. Hall

In the world of contractual interpretation, the decision of the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp. is a blockbuster. Sattva does three significant things. First, it determines that contractual interpretation generally involves a mixed question of fact and law, not a question of law alone. That holding has major implications for appellate review of decisions involving issues of contractual interpretation, and represents the resolution of an issue that had previously divided provincial appellate courts. Second, Sattva emphasizes the importance to contractual interpretation of evidence of the surrounding circumstances or the factual matrix in which a contract is formed. In doing so, Sattva implicitly overrules a 1998 Supreme Court of Canada precedent to the extent that it had downplayed the importance of the factual matrix. Third, Sattva reaffirms a number of principles of contractual interpretation which are well established in Canadian jurisprudence.

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Pay Me Now: Court of Appeal Delivers Lessons on fiduciary duties, the business judgment rule, and executive compensation

Posted in Case Comments, Corporate Law
Elder MarquesShane C. D'SouzaRobert Glasgow

The business judgment of directors setting executive compensation was front and centre in the Ontario Court of Appeal’s recent decision in Unique Broadband Systems, Inc. (Re), 2014 ONCA 538 (UBS). Although the decision is based on unique underlying facts, it offers several important lessons on corporate governance.

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Deemed Reliance in the U.S. Supreme Court

Posted in Case Comments, Class Actions, Securities
Eric BlockAndrew MathesonDana PeeblesStephanie Sugar

The following post on the Canadian Securities Regulatory Monitor blog may be of interest to readers of this blog: Deemed Reliance in the U.S. Supreme Court.

On June 23, 2014 the United States Supreme Court issued its much-anticipated decision in Halliburton Co. v. Erica P. John Fund (“Halliburton”), as issuers and investors in the U.S. (and Canada) wanted to see if the landscape for securities class actions in both countries would be fundamentally changed. The U.S. Supreme Court made only an uneventful change in U.S. law and so our Courts are not likely to see a sudden shift of class actions against cross-listed companies to Canada. The U.S. Supreme Court specifically held that defendants in securities class actions could rebut the presumption of investor reliance on public and material misrepresentations prior to class certification, by mounting evidence that the alleged misrepresentations did not, in fact, affect the issuer’s share price.  Read more

Halliburton: Deepening the Divide Between Certification of US and Canadian Securities Class Actions

Posted in Case Comments, Class Actions, Securities
Laurie Baptiste

Everyone has been talking about the recent decision from the US Supreme Court in Halliburton Co v Erica P. John Fund Inc (Halliburton) and its rulings regarding the “fraud on the market” doctrine in US securities class action litigation (previously reported on here and here). In Canada, many are likely wondering about the potential impact of the decision here.  However, what this case shows is a deepening divide between the certification process of such actions in the US and Canada. In the US, the process is becoming more difficult for investors, while Canada remains a very pro-certification jurisdiction.

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US Supreme Court Clarifies Law on Warrantless Cell Phone Searches. Will the Supreme Court of Canada Follow?

Posted in Case Comments, Charter of Rights, Criminal
Marlon Hylton

Lower courts in both Canada and the US have been deeply divided on the application of their respective Supreme Courts’ precedents on whether the police need a warrant to search the contents of a smart/cell phone seized during a lawful arrest.  On June 25, 2014, the US Supreme Court unanimously settled US law in Riley v. California, No. 13-132.  The court found that privacy interests at stake outweigh any legitimate governmental interest, absent any “exigent circumstances”.

The Fourth Amendment of the US Constitution provides protection against unreasonable search.  A common law exception to the protection under the Amendment is where the search is incident to a lawful arrest.

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Grassy Narrows First Nation v. Ontario (Natural Resources) – SCC affirms Ontario’s taking up of treaty lands for resource development purposes

Posted in Aboriginal, Mining

The following Mining Prospects blog post by Sam Adkins and Stephanie Axmann may be of interest to our readers:

Grassy Narrows First Nation v. Ontario (Natural Resources) – SCC affirms Ontario’s taking up of treaty lands for resource development purposes

 

Nine Years Too Late, Wal-Mart’s First Unionized Employees Win at the Highest Court

Posted in Labour and Employment
Elder Marques

The saga of North America’s first unionized Wal-Mart has taken a significant turn in favour of its former employees, nine years after they lost their jobs when the store in Jonquière, Quebec was permanently shut.  Much ink has been spilled telling the story of the Jonquière store, its successful unionization in 2004, and its closure in 2005, which was announced on the very day that an arbitrator had been appointed in relation to the what was to have been the store’s first collective agreement.  Now, the Supreme Court of Canada in United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., 2014 SCC 45  has, for a second time, considered the rights of the store’s employees in the context of that store closure.  This time, however, the Court issued a significant victory in favour of the employees which may have implications across the country.

In 2009, the Court dismissed a pair of appeals – Plourde 2009 SCC 54  and Desbiens 2009 SCC 55 – in which former employees sought remedies after the store closure.  On June 27, 2014, the Court released the decision of a seven-member panel’s consideration of a grievance claiming that Wal-Mart’s closure of the store violated the “freeze” provisions of Quebec’s Labour Code.  Similar to provisions elsewhere, the s. 59 “freeze” restricts the employer’s ability to “change the conditions of employment of his employees” during certain phases of collective bargaining.  In a 5-2 ruling, the Court upheld an arbitrator’s award which had found that the closure of the store constituted an impermissible change in the employees’ employment conditions in the absence of evidence that the closure was made in the ordinary course of the company’s business. Continue Reading

Summary Judgment on Trial: Ontario Court of Appeal Revisits the Risks of Summary Adjudication

Posted in Case Comments, Procedure
Katherine Booth

In a recent decision, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, the Ontario Court of Appeal reiterates some of the risks of summary adjudication and reminds parties that, despite the enthusiasm for summary judgment endorsed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, summary judgment may not be appropriate in all cases – specifically, those in which a staged fact-finding process raises the spectre of inconsistent findings at summary judgment and at trial.

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This Week at the SCC (27/06/14)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Anthony Alexander

This has been a particularly busy week at the Supreme Court of Canada vis-à-vis cases likely to be of interest to Canadian businesses and professionals.  The Court issued two significant rulings, and refused leave to appeal in another seven cases.

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The Aereo Decision – Canadian Content?

Posted in Case Comments, Intellectual Property
Daniel G.C. Glover

The following post on the snIP/ITs blog may be of interest to readers of this blog: The Aereo Decision – Canadian Content?

On June 25, 2014, the United States Supreme Court ruled in a 6-3 decision in American Broadcasting Cos., Inc. et al v. Aereo, Inc. that Aereo’s Internet retransmission service infringes copyright. McCarthy Tétrault played a small role by filing an amicus brief on behalf of a coalition of international rights holders and copyright scholars that drew the Court’s attention to the need to interpret the US Copyright Act in a technologically neutral way, as similar copyright laws have been construed by the Supreme Court of Canada and the European Court of Justice to conform to international copyright treaty law. Read more

 

 

 

Too Soon to Say Too Late? Reviewing a Tribunal’s decision to hear a late-filed complaint

Posted in Administrative, Case Comments
Ryann Atkins

This month the British Columbia Court of Appeal provided guidance on two administrative law questions, one procedural and one substantive. The Court weighed in on when it is appropriate to review a preliminary decision of a tribunal before the hearing on the merits, and confirmed that where the tribunal decides to hear a late-filed complaint, it is not open to the reviewing judge to reweigh the evidence. In Mzite v. British Columbia (Ministry of Public Safety and Solicitor General), the Court of Appeal upheld the decision of the lower court judge to review the Human Rights Tribunal’s decision to accept a late-filed complaint in the public interest, but overturned his order to set the Tribunal’s decision aside.

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A Supreme Cabinet of Appeal for Economic Tribunals?

Posted in Administrative, Case Comments, Transportation
Dina Awad

The Supreme Court of Canada has released a much anticipated administrative law decision interpreting the scope of Cabinet’s powers to overrule tribunals. In Canadian National Railway Co. v. Canada (Attorney General), the Supreme Court clarified that reasonableness review applies to Ministerial decisions made pursuant to a “cluster” of economic regulatory statutes, including the Canada Transportation Act, S.C. 1996, c. 10. These economic statutes empower the Governor in Council to vary or rescind decisions of the tribunals administering the legislation, requiring reviewing courts to employ deference even on issues of law.

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Class, Do Your Homework: Causation and Damages Methodologies at Certification

Posted in Case Comments, Class Actions, Corporate Law, Procedure, Torts
Justin Nasseri

Overview

In Andriuk v. Merrill Lynch Canada Inc., the Alberta Court of Appeal affirmed a certification judge’s decision that an action, commenced pursuant to Alberta’s Class Proceedings Act, did not meet the requirements for certification of a class proceeding, based on a failure to demonstrate a viable methodology for establishing causation and damages on a class-wide basis.

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This Week at the SCC (13/06/14)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Hovsep Afarian

This week, the Supreme Court of Canada issued two rulings, granted two leave to appeal applications, and dismissed three applications for leave to appeal, in cases likely to be of interest to Canadian businesses and professionals.

In R. v. Spencer, 2014 SCC 43, the Supreme Court of Canada ruled that the police engaged in an unconstitutional search and seizure when they obtained from an Internet service provider — without prior judicial authorization — the subscriber information associated with an IP address.

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The Second Opinion: “Stinky” but not “Fundamental” — The BCCA sets a High Hurdle for Repudiation of a Lease

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The Second Opinion
Anthony Alexander

The contractual doctrine of “fundamental breach” is both doctrinally complex and highly contextual.  In Stearman v. Powers, 2013 BCCA 206, the Court concluded that, on the facts before it, a commercial tenant had not been justified in repudiating her lease and walking away from the premises, despite the fact that the building’s HVAC system filled her store with a foul odour.

While the case ultimately turned on its unique facts, the Court in Stearman provides useful guidance regarding the threshold for categorizing a problem with rented premises as a “fundamental breach” of contract, as well as the scope of a tenant’s right of “quiet enjoyment.”

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Simpler is Better: Third Party Claims Struck for Efficiency and Proportionality in Recent Court of Appeal Decision

Posted in Case Comments, Procedure, Torts
Carole Piovesan

The “culture shift” to a more accessible civil justice system, as championed in Hryniak v. Mauldin, is alive and well. Courts are increasingly sensitive to the economy of cases, taking into account the efficiency and proportionality of substantive and procedural rights. Today’s emphasis is on reasonable not exhaustive measures.

In O’Connor Associates Environmental Inc. v. MEC OP LLC, the Alberta Court of Appeal overturned the decision of a case management judge who permitted the joinder of third party advisors to a main action between a purchaser and vendor of oil and gas assets. This appellate decision incorporates the Hryniak policy rationale of more efficient judicial processes in its decision strike out all claims against the third parties.

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This Week at the SCC (06/06/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Martin Boodman

The Supreme Court of Canada denied leave to appeal this week from one appeal of interest to Canadian businesses and professions.

The decision in Amtim Capital Inc. v. Appliance Recycling Centers of America  (2014 ONCA 62) indicates that pre-emptive declaratory relief in one jurisdiction may not be effective to prevent subsequent litigation elsewhere.

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There are times when you don’t want to make partner…

Posted in Case Comments, Labour and Employment, Professions
Curtis E. Marble

Overview

Recently, the Supreme Court of Canada (“SCC”) and the Supreme Court of the United Kingdom (“UKSC”) both had cause to consider the nature of partnership, and when certain protections due to employees or workers are extended to partners. While the two cases presented very different scenarios – the Canadian case concerning human rights, and the UK decision concerning employment rights – both decisions suggested that partners may indeed be employees in certain situations.

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The Importance of Borders in a Borderless World: Ontario Court Stays Action for U.S. Transportation Taxes

Posted in Case Comments, Class Actions, Conflict of Laws, Tax
Byron Shaw

In Prince v. ACE Aviation Holdings Inc., the Ontario Court of Appeal stayed a class action based on allegations that Air Canada had improperly collected transportation taxes levied under the U.S. Internal Revenue Code (the “Code”). The Court’s decision highlights the difficulty in predicting the outcome of jurisdictional disputes involving e-commerce transactions. In addition, it illustrates the reluctance of our courts to permit class actions based on claims that engage the territorial sovereignty of other nations.

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This Week at the SCC (30/05/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Brandon Kain

The Supreme Court of Canada denied leave to appeal this week from two appeals of interest to Canadian businesses and professions.

The first, Transalta Corporation v. Canada, 2013 FCA 285, held that a taxpayer who successfully appeals a tax assessment after making a failed settlement offer to the Minister of National Revenue is not automatically entitled to substantial indemnity costs in the Tax Court, even if the outcome of the appeal is more favourable than the terms of the settlement rejected by the Minister.  The Federal Court of Appeal found that the Tax Court judge retained full discretion to deny substantial indemnity costs (despite a proposed Tax Court practice direction that would purport to create an automatic costs regime), and that he exercised this discretion appropriately in not awarding such costs where the Minister rejected the settlement offer owing to a legal disability (i.e., the Minister’s inability to implement compromise settlements, in which the Minister fails to assess the amount of tax payable on the facts as he or she finds them in accordance with the law as he or she understands it).

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Explain yourself! The Ontario Court of Appeal Reminds Us of the Importance of Reasons in Barbieri v. Mastronardi

Posted in Case Comments, Procedure
Justin Nasseri

Overview

Recently, the Ontario Court of Appeal reminded us of the importance of reasons for judgment in Barbieri v. Mastronardi. A unanimous Court allowed an appeal from an order granting summary judgment to a plaintiff who sued for breach of contract and negligence, holding that the lack of sufficient reasons in the motion judge’s endorsement left the Court with no choice:

24 Given the inadequacy of the endorsement of the motion judge, we cannot conduct a meaningful review of his decision.

25 In these circumstances, we have no alternative but to grant the appeal and set aside the declaration of the motion judge that the appellant is liable to the respondent.

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A little knowledge is a dangerous thing…because it calls for reasonable diligence

Posted in Case Comments, Securities
Brooke MacKenzie

The British Columbia Court of Appeal recently released a helpful decision applying principles of discoverability to determine when a limitation period begins to run. In Roberts v. E. Sands & Associates Inc., 2014 BCCA 122, the Court rejected 650 claims against a bankrupt investment firm on the basis that these claims were made after the six-month limitation period under the Securities Act had expired.[1]

In so doing, the Court sent a clear message to potential claimants: a limitation period will start to run when the known facts suggest the pursuit of an investigation into a cause of action – and reasonable diligence in pursuing this investigation is expected.

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