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.


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, the appellants failed to cite a decision called Abad in their opening brief or their reply brief, even though the defendants repeatedly and accurately stated that it was nearly identical to the case at bar. In No. 08-2792, the appellants discussed Abad “only a … Continue Reading

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 grounds that some of the claims could be resolved by the court without arbitration.”

The Decision

The case arose out of an action by a number of individuals and entities who bought limited partnership interests in one of three limited partnerships known as Rye

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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 of two law firms would have carriage of the class proceeding.

Canadian Appeals Monitor regrets the error.… Continue Reading

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.


In a previous post, I commented on the significance of the main appeal in Jones v. Tsige, which was heard by the Court on September 29, 2011. In brief, Jones and Tsige worked at different branches at the Bank of Montreal. For three years, Tsige “helped herself to personal banking information about Ms. Jones” without any justification. Jones sued Tsige for invasion of privacy … Continue Reading

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 Act.

The Decision

The Torudag case arose on appeal from a preliminary decision of the B.C. Securities Commission.  In that decision, the Commission found that it possessed jurisdiction to consider whether the appellant violated the insider trading provisions then in force

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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 granted standing before the Court of Appeal, despite not having intervened in this matter before the Commission.

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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 that case.

Decision Below

Marsland was an Australian national and a former officer and director of a mining company, Dundee. Dundee sued Marsland in Ontario for breach of contract and breach of fiduciary duty for appropriating a mining opportunity in Serbia, which had

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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 forced exile, torture and extra-judicial killings.

Though the alleged conduct occurred in Nigeria, the plaintiffs have sought recourse via the unique jurisdiction given by the ATS to United States district court judges over “any civil action by an alien for a tort only, committed … Continue Reading

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 blogger and shareholder advocate”. Ms. Bond seeks to represent primary and secondary purchasers of shares in an Alberta mining company called Birch Mountain between April 1, 2005 and November 5, 2008. The essence of Ms. Bond’s claim is that the defendant

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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 of the respondents to the arbitration was assigned into bankruptcy. The claimants moved in the arbitration proceeding for an order requiring the immediate return of monies allegedly taken by the respondents. The arbitrator granted the claimants’ motion, and ordered the return of the monies … Continue Reading

Business Common Sense and the Interpretation of Commercial Contracts

Posted in Case Comments, Contracts

What role does business common sense play in the interpretation of commercial contracts? This issue was recently addressed by the Supreme Court of the United Kingdom in Rainy Sky S.A. v. Kookmin Bank. The answer: “where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense”. Since there is currently some uncertainty in Canada on the point, Rainy Sky is an important case to consider.

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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 in the province.

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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 their parents to counterclaims or third-party claims.

The certification order provided for three classes of plaintiffs: (i) residential students, (ii) day students, and (iii) family members of residential students. A statement of defence was filed prior to certification. Following certification, the defendants sought to … Continue Reading

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 least one representative plaintiff with a cause of action against it.


The decision in Red Seal was released alongside two other judgments in the same putative class action: Alves and Roussy.  The action involved allegations that the defendant tour companies sold

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