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

Monthly Archives: March 2012


Posted in Case Comments, Contracts

Rachel LaferrièreActually, not. The odds of your winning are one in 120 million. On February 28, 2012, the Supreme Court of Canada established the test for misleading advertising and rendered a landmark decision that will generate important discussions all across Canada.


In 1999, Mr. Richard received an “Official Sweepstakes Notification” in the mail. In large, bold, capitalized letters, the notification proclaimed “OUR SWEEPSTAKES RESULTS ARE NOW FINAL: MR JEAN MARC RICHARD HAS WON A CASH PRIZE OF $833,337.00!”

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BCCA Addresses Tercon Test for Public Policy and Exemption Clauses

Posted in Case Comments, Contracts

In its well-known decision in Tercon Contractors, the Supreme Court of Canada set out a three-part test for the enforceability of contractual exemption clauses: (1) does the clause, as a matter of interpretation, apply to the dispute; (2) if so, was the clause unconscionable at the time the contract was made; and (3) if not, would enforcing the clause be contrary to public policy?  Since the release of Tercon in 2010, there has been virtually no appellate guidance regarding the third, “public policy” component, of the test.  That silence has now ended with the British Columbia Court of Appeal’s

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FCA Narrows the Limitation Period Defence in Civil Competition Act Claims

Posted in Case Comments, Class Actions, Competition, Procedure


The Federal Court of Appeal has ruled that the “ongoing effects” of a conspiracy do not extend the applicable limitation period for the purposes of a civil action brought under section 36(1) of the Competition Act for a criminal conspiracy contrary to section 45(1). The Court of Appeal’s affirmation of the lower Court’s decision also suggests that the “ongoing damage” caused by the conspiracy does not extend the limitations period either. Instead, the limitations period starts at the latest when the plaintiff first becomes aware of the acts constituting the breach of the Act, and possibly even earlier, as … Continue Reading

Ontario Court of Appeal puts a Strict Time Limit on Secondary Market Misrepresentation Class Action

Posted in Class Actions

Public issuers in Canada, and their directors and officers, will benefit from a recent ruling of the Court of Appeal for Ontario, which puts a strict time limit on investors seeking to advance a statutory cause of action for allegedly misleading secondary market disclosure.

In Ontario, as in all provinces, an investor seeking to commence such an action must have leave of the Court to proceed with claims brought under the secondary market misrepresentation provisions (Part XXIII.1) of the Ontario Securities Act. A specific provision in the Act states that no action under Part XXIII.1 may be commenced more

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