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

Monthly Archives: December 2011

UK Supreme Court to Consider Duty of Care for Negligent Misrepresentation

Posted in Case Previews, Torts

The United Kingdom Supreme Court has granted permission to appeal in a case involving the duty of care for negligent misrepresentation.  The appeal in Scullion will require the Court to consider whether a property surveyor, which prepared a valuation report for the property purchaser’s mortgagee, owed a duty of care to the purchaser himself, even though he acquired the property for investment rather than residential purposes.

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Vale Vindicated: Ontario Court of Appeal Finds no Liability in Toxic Tort Class Action; Plaintiffs Seek Leave to Appeal to the SCC

Posted in Case Comments, Class Actions, Torts

Vale Canada Ltd. (formerly Inco Ltd.) was vindicated in a high-profile appeal that clarifies the law of environmental torts. In Smith v. Inco Ltd., (formerly Pearson v. Inco Ltd.), the Ontario Court of Appeal reversed a trial decision awarding $36 million to residents of Port Colborne who had alleged that Vale’s refinery diminished their property values. The Court of Appeal held that the trial judge erred in finding Vale liable in private nuisance and strict liability. In a rare move, the Court of Appeal also found that the plaintiffs had failed to prove any damages. Dissatisfied with this decisive … Continue Reading

A Full Appreciation of Rule 20: Ontario Court of Appeal Establishes New Test for Summary Judgment

Posted in Case Comments, Procedure

The Ontario Court of Appeal has now released its long-awaited reasons on the scope of the amended rule 20 of the Ontario Rules of Civil Procedure. In Combined Air Mechanical Services Inc. v. Flesch, the Court introduced a “full appreciation” test designed to provide guidance on the circumstances in which it will be appropriate for the court to resolve issues on a motion for summary judgment. As discussed below, in our view, more may be required for a “full appreciation” of the scope of amended rule 20.

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In DIP Financing We Trust? Supreme Court of Canada to Hear Indalex Appeal

Posted in Bankruptcy and Debt, Case Previews, Contracts, Corporate Law

The Supreme Court has announced it will hear the appeal in the high profile Indalex Ltd., Re. The appeal is of great interest to the commercial litigation, insolvency and pension bar. Its outcome will be closely watched and may have dramatic impact on Canadian corporate reorganizations.


The Indalex decision arose out of the insolvency of Indalex Limited (“Indalex”) and its affiliated companies. Indalex was the Canadian subsidiary of an aluminum products manufacturer. It was a sponsor and administrator of two registered pension plans – one for salaried employees and another for executives. When Indalex obtained protection pursuant to … Continue Reading

Ontario Divisional Court to Consider Whether Solicitor-Client Privilege Can be Waived on a Limited Basis

Posted in Case Previews, Procedure

The Ontario Divisional Court has granted leave to appeal in Kaganovsky v. 2057057 Ontario Inc., which raises an interesting question as to whether there can be a conditional or partial waiver of solicitor-client privilege with respect to communications with a lawyer that a party has put in issue. In other words, once the privilege has been waived, is it necessarily waived in its entirety, or can the waiver be limited?


This question arises out of a motion by certain of the defendants (the “Khan Defendants”) for an order granting them leave to amend their statement of defence. The … Continue Reading