Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

Monthly Archives: November 2011

Don’t be an Ostrich: Justice Posner Opines on Appellate Advocacy in the 7th Circuit Court of Appeals

Posted in Case Comments, Procedure

The United States Court of Appeals for the Seventh Circuit released a decision on November 23, 2011 that literally illustrates an important point in appellate advocacy: don’t be an ostrich. Decision Monica del Carmen Gonzalez-Servin v. Ford Motor Company et al. was a consolidated appeal from two decisions concerning forum non conveniens motions. In No. 11-1665,… → Read More

U.S. Supreme Court Affirms a Policy Preference for Arbitration

Posted in Case Comments, Contracts, Procedure, Professions, Torts

The United States Supreme Court has allowed the appeal in KPMG LLP v. Robert Cocchi, reinforcing its policy preference for arbitrability, even in cases where some causes of action are arbitrable, while others are not. In particular, the Court stated that “[a] court may not issue a blanket refusal to compel arbitration merely on the… → Read More

Corrigendum to “OCA to Decide Which of Two Law Firms to Prosecute Class Action”

Posted in Case Comments, Class Actions

In Sharma v. Timminco Limited, heard on November 2, 2011, the issue for the Ontario Court of Appeal was whether the Class Proceedings Act, s. 28, tolled the limitations period under s. 138.14 of the Securities Act. On November 10, 2011, we mistakenly reported that the appeal arose from a separate decision from the proceedings concerning which… → Read More

Justice Watt’s Dos and Don’ts of Interventions: OCA Denies Leave to Intervene in Privacy Case

Posted in Case Comments, Procedure

This decision is a must read for hopeful intervenors. In his characteristic novella style, Justice Watt provides some helpful guidance on intervening at the Ontario Court of Appeal in Jones v. Tsige. Decision In a previous post, I commented on the significance of the main appeal in Jones v. Tsige, which was heard by the… → Read More

B.C. Court of Appeal Considers Extraterritorial Reach of Securities Act

Posted in Administrative, Case Comments, Constitutional, Securities

In an interesting new judgment - Torudag - the British Columbia Court of Appeal has held that the B.C. Securities Commission may assert regulatory jurisdiction over residents of other provinces, who engage in insider trading through a stock exchange in Ontario.  The Torudag Court arrived at this conclusion despite extraterritoriality arguments about the constitutional applicability of the B.C. Securities… → Read More

Regulating the Regulator – Pembina intervenes after the fact

Posted in Administrative, Case Comments, Energy

In a decision providing ammunition for public interest groups denied an opportunity to intervene before a regulator, the Alberta Court of Appeal denied leave to Pembina on the issue of whether the Alberta Utilities Commission made various errors in approving a power plant. This blog entry, however, will address only the fact that Pembina was… → Read More

Evaluating the Van Breda Test for Jurisdiction: OCA Overturns Motion Judge in Dundee v. Marsland

Posted in Case Comments, Procedure

In a previous post, I discussed whether Ontario courts have jurisdiction over a claim for misappropriation of a foreign corporate opportunity, an issue raised in Dundee Precious Metals Inc. v. Marsland. The Ontario Court of Appeal has now answered that question in the affirmative, at least in terms of the specific facts at issue in… → Read More

U.S. Top Court will Decide Right to Sue Extraterritorial Corporations

Posted in Case Previews, Torts

On October 17, 2011, the United States Supreme Court agreed to consider whether the country’s Alien Torts Statute (ATS) applies to corporations.  The appeal arises in the case of Nigerian residents who claim that Dutch, British, and Nigerian corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law, including… → Read More

OCA to Apply the Test for Jurisdiction…Again

Posted in Case Previews, Procedure

The Ontario Court of Appeal will have an opportunity to apply – and possibly reconsider – the test for jurisdiction yet again in an upcoming appeal from a decision of Justice Perell. Decision Below In Bond v. Brookfield Asset Management Inc., Justice Perell stayed a class action brought by a representative plaintiff, named Wanda Bond, an ”Internet… → Read More

OCA to Consider Principles for Replacing an Arbitrator for Bias

Posted in Bankruptcy and Debt, Case Previews, Procedure

In Universal Settlements Inc. v. Duscio, Justice Lederer heard an application to set aside a number of arbitral orders and to replace an arbitrator on grounds of bias. The underlying proceeding was a shareholder’s dispute and oppression application made pursuant to a shareholders agreement containing an arbitration clause. During the currency of the arbitration, one… → Read More

SCC to Determine Whether an Order to Clean is a Claim under the CCAA

Posted in Bankruptcy and Debt, Case Previews, Constitutional, Energy

On November 16, 2011, the Supreme Court of Canada will hear a case challenging the constitutionality and applicability of several sections of the Companies’ Creditors Arrangement Act (CCAA) to provincial environmental statutes. The province of Newfoundland and Labrador (the “Province”) compels AbitibiBowater Inc. to clean up industrial sites that the company once owned and operated… → Read More

Ontario Divisional Court to Consider Students’ Ability to Sue Schools on a Several Basis

Posted in Case Previews, Class Actions, Procedure

The Ontario Divisional Court recently granted leave to appeal in Johnston v. Sheila Morrison Schools, a certified class action involving allegations of negligence and breach of fiduciary duty against a school and its headmaster. The primary issue on appeal is whether students may make claims against schools on a several basis and thereby avoid exposing… → Read More

Saskatchewan Court of Appeal Rejects Ragoonanan Principle

Posted in Case Comments, Class Actions

In a recent decision with potentially far-reaching consequences – Red Seal – the Saskatchewan Court of Appeal has rejected the so-called “Ragoonanan” principle applicable to class actions. The Ragoonanan principle, which derives from an Ontario case of the same name, requires that for each defendant named in a putative class action, there must be at… → Read More