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

Monthly Archives: April 2012

Order in the Court? The Van Breda Trilogy – Part II – A New Test for Jurisdiction Simpliciter

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

The Supreme Court of Canada’s Van Breda Trilogy – and its judgment in Van Breda in particular – endorses a new approach to jurisdiction simpliciter focused on categories of prima facie jurisdiction. Building on the Ontario Court of Appeal’s judgment, which revised the old Muscutt test, the Court has attempted to introduce greater clarity and predictability to disputes about assumed jurisdiction. Whether this will come to pass remains to be seen; it may be that Van Breda will simply change the language of assumed jurisdiction, but that actual outcomes will remain as unpredictable as ever. The list of presumptive

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How Clear Must the Legislature Be to Set Aside a Final Judgment?

Posted in Case Previews, Labour and Employment

Rachel LaferrièreThe Supreme Court of Canada (Deschamps, Abella, Cromwell JJ.) has granted leave in a pension litigation case, in which the Court could potentially revisit the principles underlying democratic dialogue. This case may offer the Supreme Court the opportunity to provide an updated statement on the doctrines of retroactivity and res judicata, particularly on the differences between the authority of final judgments and the “cogency” of final judgments. It may also explain the impact of an application for leave to appeal to the Supreme Court of Canada on the status of a case. This appeal may also deal with

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SCC Pulls Back the Curtain on Trust Residence

Posted in Case Comments, Tax


The Supreme Court of Canada has recently clarified in Fundy Settlement v. Canada that for the purposes of Canadian taxation the residence of a trust is where the central mind and management resides. This decision, confirming both the Tax Court of Canada and the Federal Court of Appeal lower court decisions, is a major departure from the Canada Revenue Agency’s (CRA) 30 year old administrative position that generally considered the residence of the trust as being the same as the residence of the trustees.

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Hot Off the Press – Annual Review of Developments in Business and Corporate Litigation

Posted in Class Actions

For those who may be interested, three of McCarthy Tétrault’s litigators authored a chapter on class actions in the ABA’s recently published 2012 Annual Review of Developments in Business and Corporate Litigation. “Cross-Border and Multi-Jurisdiction Class Actions – A Canadian Perspective”, authored by Anthony Alexander, Christopher Hubbard and Elder Marques, discusses how Canadian courts have applied jurisdictional principles in class actions, both in assessing whether certification is appropriate and in enforcing foreign class action orders.

This is the first edition of the annual review that includes content on Canadian legal developments. You can read more on our Continue Reading

Order in the Court? The Van Breda Trilogy – Part I – An Overview

Posted in Conflict of Laws, Constitutional, Features, Procedure, Torts, Van Breda Trilogy

Order in the Court? The Van Breda Trilogy – Part I – An Overview

In three cases released on April 18, 2012, the Supreme Court of Canada substantially reformulated the common law principles of private international law. In the coming weeks, Canadian Appeals Monitor will provide in-depth coverage of the Court’s judgments in Van Breda, Black, and Éditions Écosociété (the “Van Breda Trilogy”), addressing the implications of these judgments for jurisdiction simpliciter, forum non conveniens, choice of law and constitutional principles regarding the territorial jurisdiction of the superior courts and provincial legislatures. In this post

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Shoulda Woulda? Alberta Court of Appeal Considers the Mental Element of the Tort of Civil Conspiracy

Posted in Case Comments, Class Actions, Professions, Torts


The Alberta Court of Appeal has provided its latest contribution to the analysis of the tort of civil conspiracy. The case’s importance lies in its consideration of the mental element of the tort. The case is also interesting for the absence of any reference to the recent Ontario Court of Appeal jurisprudence on the matter, perhaps signifying the development of distinct Western-Canadian jurisprudence on the subjection of economic torts. Mraiche also highlights the inherently contradictory nature of the Canadian formulation of the tort of civil conspiracy, which is a tort that involves both subjective and objective mental elements.

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Posted in Case Comments, Contracts

En fait, non. Vos chances de gagner étaient de 1 sur 120 millions. Le 28 février 2012, la Cour suprême du Canada a établi un test pour la publicité trompeuse et a rendu un arrêt de principe qui devrait engendrer d’importantes discussions partout au Canada.


En 1999, M. Richard reçu un avis officiel du concours Sweepstakes par courrier. En grosses lettres majuscules et en caractères gras, l’avis mentionnait« [TRADUCTION]NOUS AVONS MAINTENANT LES RÉSULTATS FINAUX DU CONCOURS : M. JEAN-MARC RICHARD A GAGNÉ LA SOMME DE 833 337 $ EN ARGENT COMPTANT!Continue Reading

The ISDA Master Agreement and Implied Terms: Text Over Context in the English Court of Appeal

Posted in Bankruptcy and Debt, Case Comments, Contracts, Financial Services

Should a commercial contract be interpreted literally, or should a court adopt a non-literal interpretation if necessary to achieve a result that makes commercial sense given the context (the factual matrix) of the agreement? This issue is an enduring one in contractual interpretation, and was recently put to the test in Lomas & Ors v. JFB Firth Rixson Inc. & Ors, a decision of the English Court of Appeal arising from the failure of Lehman Brothers. At issue was whether to imply terms into the Master Agreement of the International Swaps and Derivatives Association Inc. (the “ISDA Master Agreement”),

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Set the Controls for the Heart of the Sun: ONCA Allows Securities Act Claims Against Foreign-Listed Issuers in Canadian Solar

Posted in Case Comments, Class Actions, Conflict of Laws, Constitutional, Securities

In a recent judgment that is sure to become a landmark in the growing field of Canadian securities class actions, the Ontario Court of Appeal has confirmed that the statutory cause of action for secondary market misrepresentations can be asserted against issuers whose shares are listed solely on a foreign exchange.  The ruling in Abdula v. Canadian Solar opens a deep gap between the Canadian and American approaches to the extraterritorial limits of such claims, and is likely to solidify Ontario’s reputation as the new “hot spot” for securities class actions.

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How Momentous is This? New SCC Ruling on Forum Selection and Arbitration Clauses

Posted in Alternative Dispute Resolution, Case Comments, Conflict of Laws, Contracts, Procedure

In twelve short paragraphs, the Supreme Court of Canada’s new judgment in Momentous provides helpful guidance on the question of whether a motion to dismiss on jurisdictional grounds may be brought after the delivery of a Statement of Defence. The Court also reaffirms the centrality and uniqueness of the “strong cause” test where a jurisdictional challenge is based on the existence of a forum selection or arbitration clause.

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SCC Grants Leave to Appeal in Medical Negligence Case on Causation

Posted in Case Previews, Health, Torts

The Supreme Court of Canada has granted leave to appeal in Ediger v. Johnston, a medical negligence case that addresses the test for factual and legal causation.


In Ediger, an infant suffered acute and severe hypoxia-ischemic encephalopathy (damage to the central nervous system caused by inadequate oxygen) during delivery. The injury was caused by compression of the umbilical cord. The asphyxia in turn caused a deceleration in the fetal heart rate (fetal bradycardia), which persisted until delivery. Upon delivery, the infant was non-responsive and severely brain damaged.

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The UK Supreme Court to Decide: Whither the Risk Free Injunction?

Posted in Case Previews, Corporate Law

The United Kingdom Supreme Court recently granted permission to Barclays Bank plc to appeal the decision of the Court of Appeal that the Financial Services Authority (the “FSA”) need not provide a cross-undertaking for damages in favour of third-parties impacted by an injunction requested by the FSA. This hearing promises to be closely watched by Canadian regulators and Courts alike, both of whom rely heavily on English injunction jurisprudence.

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