Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

You Only Get to Eat What You Kill: Real Estate Brokers as Hunters and Brokerage Contracts as Hunting Licences

Posted in Case Comments, Civil Litigation, Real Property
Laurie Baptiste

Anyone involved or interested in commercial real estate should be aware of the relatively recent decision of the Supreme Court of Canada (SCC) in Société en commandite Place Mullins v Services immobiliers Diane Bisson inc, mentioned briefly in two prior blog posts, here and here. Although the Supreme Court reviewed a decision of the Quebec Court of Appeal involving a standard brokerage agreement in Quebec, the decision may arguably have wider application, including in Alberta.

In a unanimous decision authored by Wagner J. the Court explains well what constitutes an “agreement to sell” in the context of a conditional real estate deal and some of the circumstances in which a brokerage will be entitled to be paid its commission.

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What’s the “Connection”? Ontario Court of Appeal Confirms Continuing Divide Between Jurisdiction and Choice of Law

Posted in Case Comments, Contracts
Paul Davis

Two companies based in different provinces enter into a contract. One company sues the other for breach of that contract. If the contract does not say which province’s laws govern the agreement, how does a court determine which law to apply? The Ontario Court of Appeal recently addressed this question – the choice of law rule for contracts – in Lilydale Cooperative Limited v. Meyn Canada Inc. (“Lilydale”).[1]

Fire in A Poultry Plant Continue Reading

The SCC Monitor (30/07/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Kate Findlay

Following our last post, the Supreme Court has released its decision in Strickland v. Canada (Attorney General), 2015 SCC 37. The Court’s decision in Strickland, referenced in more detail in this blog post, speaks to the circumstances in which a federal court can decline to exercise its jurisdiction to grant judicial review remedies. The appellants in Strickland sought a declaration that the Federal Child Support Guidelines were invalid and ultra vires the Divorce Act, R.S.C. 1985, c. 3. The Federal Court declined to exercise its jurisdiction holding that the matter should be brought before a provincial superior court. The Federal Court of Appeal and Supreme Court both upheld the Federal Court’s decision. The Supreme Court held that provincial superior courts can grant judicial review relief against federal entities in appropriate circumstances. The Court also held that a court should decline to hear an application for judicial review if an adequate alternative remedy exists elsewhere, as was found to exist in the superior court in this instance.

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More Than One Way To Skin A Privacy Breach: The Ontario Court of Appeal ‘s Decision in Hopkins v. Kay

Posted in Case Comments, Privacy
Justin Nasseri

Background

Earlier this year, the Ontario Court of Appeal released its decision in Hopkins v. Kay, 2015 ONCA 112, in which it held that the mere existence of a legislative scheme to address privacy-related breaches of personal health information does not preclude a private action from being brought to address said breaches. Continue Reading

Liability for Opinions: Omnicare’s Lessons for Canadian Securities Lawyers

Posted in Case Comments, Civil Litigation, Securities
Mira Novek

When might a wrong opinion give rise to prospectus misrepresentation? The U.S. Supreme Court recently addressed this question in its much-anticipated decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund.[1] Its answer provides a useful point of comparison and discussion for Canadian securities lawyers. Continue Reading

“I don’t wanna hear it!” Supreme Court affirms Federal Court’s refusal to exercise jurisdiction in Strickland v Canada (Attorney General)

Posted in Case Comments, Civil Procedure/Evidence
Ryan MacIsaac

Parliament created the Federal Courts system in 1970 to consolidate judicial supervision of federal boards, commissions and tribunals. The goal was to reduce the multiplicity of inconsistent judicial review rulings in provincial superior courts across the country. The Federal Courts Act hence gives the Federal Courts “exclusive original jurisdiction” to grant judicial review remedies against federal boards, commissions and tribunals (e.g., quashing a Minister’s decision). But can superior courts grant such remedies too? And if so, how is a litigant to know when to go to the Federal Court, and when to go to a superior court? The Supreme Court of Canada has provided a framework for answering these questions in Strickland v Canada (Attorney General), 2015 SCC 37.

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Have Mercy! Supreme Court Clarifies Mercy Power under Criminal Code

Posted in Administrative, Case Comments, Criminal
Byron Shaw

In “Burning Love”, Elvis pleaded with the Lord to have mercy. It was coming closer. The flames were lickin’ his body. He felt like he was slipping away. It was hard to breathe. His chest was a heavy. He was burning a hole where he lay. Burning a hole with burning love. In short, Elvis was just a hunk. A hunk of burning love.[1]

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The SCC Monitor (07/07/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Ryan MacIsaac

It has been a busy couple of weeks since our last post. The SCC has released two judgments and six leave decisions of interest. In addition, a pending judgment of interest will be released this week. One of the released judgments and four of the leave decisions will be of interest to those involved in real estate development, management and sales. The other judgment involves government liability and how to apportion damages where the plaintiff has reached settlements with non-parties relating to the same injury. The remaining leave decisions involve an order to a foreign whistleblower to produce documents in a prosecution for foreign corrupt practices, and the finality of tribunal decisions. Finally, the SCC will release a decision this Thursday that will address when a legal action should move forward in Federal Court versus in a provincial superior court. Continue Reading

The Ontario Court of Appeal Finds Franchise Disclosure Document Fatally Deficient

Posted in Case Comments, Franchise and Distribution
Helen FotinosSam KhajeeiAdam Ship

On McCarthy Tétrault LLP’s Consumer & Retail Advisor blog, Helen Fotinos, Sam Khajeei and Adam Ship recently published a helpful discussion of the Ontario Court of Appeal’s decision in 2240802 Ontario Inc. v Springdale Pizza Depot Ltd., which will be of interest to readers of the Canadian Appeals Monitor.

More Oil for a Slippery Slope: Quebec Court of Appeal Authorizes Class Action Against the Vehicle Manufacturer KIA

Posted in Case Comments, Civil Litigation, Class Actions, Manufacturing, Quebec Court of Appeal
Emira Tufo

On June 12th, in Martel c. KIA Canada inc. (2015 QCCA 1033), the Quebec Court of Appeal reversed a ruling of the Superior Court which had refused to authorize a class action against the vehicle manufacturer, KIA, for allegedly misrepresenting the frequency of servicing necessary for the proper maintenance of its vehicles. Looking for an economical vehicle, the Petitioner, Thérèse Martel, had purchased a KIA based on representations made in its official manual that servicing would be required only every 12,000 km. Having brought her vehicle in for its first inspection, however, Ms. Martel was informed by the dealer that more frequent servicing was required by Quebec’s harsh climate. At her second inspection, she was informed that an oil change was required more frequently still. The Petitioner instituted a motion for the authorization of a class action on behalf of all purchasers of KIA vehicles who had been victims of false representations contained in the manufacturer’s manual.

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The SCC Monitor (18/06/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in Civil Procedure/Evidence, Class Actions, Health, The SCC Monitor
Sam Rogers

The Supreme Court of Canada has recently dismissed two leave applications and granted leave in one case that will be of interest to our readers. These cases touch on: case management and civil procedure in class actions (including when parent companies may be joined in an action); the standard of review and standing of administrative boards and tribunals; and interpretation of the federal Interest Act in regards to mortgage incentives and penalties. Continue Reading

Melting Pot or Mosaic? The Ongoing Culture Shift since Hryniak

Posted in Case Comments, Civil Procedure/Evidence, Procedural Rights, Procedure
Kelli McAllister

Over the past year, courts across Canada have responded to the Supreme Court of Canada’s clarion call in Hryniak v Mauldin (“Hryniak”) for a culture shift to promote access to justice including through summary judgment.[1] The latest word on this front has come from the Alberta Court of Appeal in two recent decisions which seemingly conflict on the threshold to be applied to summary judgment applications.[2] The inherent tension created by Hryniak in Alberta is that the summary judgment rule (Rule 7.3) reflects the 2006 views of the Supreme Court of Canada: that such applications should be used to weed out claims with no chance of success. Post-Hryniak, courts are to consider summary judgment as a legitimate alternative to trial which impliedly sets a lower bar or threshold. An interesting mélange of Ontario and Albertan law has become the order of the day in Alberta – a true cultural melting pot for summary judgment. Continue Reading

Pick Your Poison: the Court of Appeal Clarifies the Distinction between the Oppression Remedy and the Derivative Action

Posted in Corporate Law
Anu Koshal

Introduction

On May 26, 2015, the Ontario Court of Appeal issued its decision in Rea et al v Wildeboer (“Wildeboer”). The decision clarifies the nature, purpose, and difference between two of the most widely-used shareholder remedies in Canadian corporate law: the oppression remedy and the derivative action. Continue Reading

The Supreme Court rules that the Charter permits courts to award damages against the Crown for wrongful non-disclosure absent proof of malice

Posted in Case Comments, Constitutional, Criminal
Renée Zatzman

Does s. 24(1) of the Canadian Charter of Rights and Freedoms authorize a court of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice?

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Jurisdiction in International Commercial Contracts: New Guidance from the B.C. Court of Appeal

Posted in Case Comments, Conflict of Laws, Contracts, Corporate Law, Transportation
Sam Rogers

We live in an increasingly interconnected world with trade liberalization and globalization continuing unabated. These changes present many opportunities for businesses but also raise new challenges for businesses operating across borders.

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What Lies Beneath: The Unexpected Reach of Litigation Privilege

Posted in Case Comments, Civil Procedure/Evidence
Kate Findlay

In an interesting decision clarifying the reach of litigation privilege, the British Columbia Court of Appeal in No Limits Sportswear Inc. v. 0912139 B.C. Ltd., 2015 BCCA 193, has recently held that litigation privilege extends to communications between formerly adverse parties who have settled their dispute and are cooperating against a remaining co-defendant, even where the pleadings have not yet been amended to reflect this new reality.

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The “Bright Line” Rule is dimmed by the Alberta Court of Appeal in Statesman

Posted in Case Comments, Construction and Real Estate, Corporate Law, Professions
Ryan MacIsaac

Joint retainers are common in modern legal practice. But what happens when a dispute is brewing between two parties represented by the same law firm? How is a lawyer to know when the “bright line” of conflict of interest has been crossed? And when the duty of loyalty to a client is breached, when is disqualification of the law firm an appropriate remedy? The Alberta Court of Appeal addressed these issues in Statesman Master Builders Inc v Bennett Jones LLP, 2015 ABCA 142 (“Statesman”). Continue Reading

The SCC Monitor (25/05/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Byron Shaw

On Thursday, May 28, 2015, the Supreme Court of Canada will release judgment on several leave applications currently before the Court, including the following.

Mangal v. William Osler Health Centre (36174)

Mangal is a medical malpractice case in which a woman died in hospital several hours after a caesarean section. The case raises the question of whether a trial judge may adopt new theories of factual causation not advanced by the parties.

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Has the Supreme Court of Canada done away with the concept of apparent bias?

Posted in Case Comments, Civil Procedure/Evidence
Keegan Boyd

In White Burgess Langille Inman v. Abbott and Haliburton Co., a must-read decision for anyone involved in litigation, the Supreme Court of Canada tackles some of the difficult questions associated with how to properly deal with the proposed evidence of potentially biased experts.

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The SCC Monitor (19/05/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Renée Zatzman

The Supreme Court of Canada has released a number of significant decisions since our last update that are of interest to Canadian businesses and professions, addressing the level of evidence required of a material change to support a securities class action in Quebec, damages for wrongful conviction, and requirements for expert evidence.

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Solicitor-Client Privilege Wins Again Court of Appeal Endorses Restrictive Statutory Interpretation in University of Calgary v JR

Posted in Case Comments, Solicitor-Client Privilege
Roland HungKimberly Macnab

The privileged position that solicitor-client privilege occupies in our legal system was recently reiterated and reinforced in the context of access to information requests in University of Calgary v JR. On April 2, 2015, the Alberta Court of Appeal considered the authority delegated to the Office of the Information and Privacy Commissioner (“OIPC”) as it went head to head against solicitor-client privilege.[1]

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To Comply or Not to Comply? When Experts Fall Outside the Scope of Rule 53.03

Posted in Case Comments, Civil Procedure/Evidence
Kosta KalogirosShanique Lake

On March 26, 2015, the Ontario Court of Appeal released its decision in Westerhof v. Gee Estate concurrently with its companion case McCallum v. Baker[1]. Both decisions were heard at the same time as Moore v. Getahun[2] and, together, form what has been referred to as the Expert Evidence Trilogy (“Trilogy”).

There was an exceptional degree of interest by the Ontario bar in the Trilogy, with six parties intervening in the appeals: The Advocates’ Society; The Holland Group; the Ontario Trial Lawyers Association; the Canadian Defence Lawyers Association; the Canadian Institute of Chartered Business Valuators and the Criminal Lawyers’ Association. Facta of the parties and all interveners are available here. Our coverage of the Moore v. Getahun decision, which was released earlier this year, is available here.

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