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

By Brandon Kain, Elder C. Marques and Byron Shaw on Posted in Conflict of Laws, Features, Media, Procedure, Torts

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… → Read More

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

By Marc-Andre Russell and Rachel Laferriere on Posted in Case Previews, Labour and Employment

The 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… → Read More

SCC Pulls Back the Curtain on Trust Residence

By Brandon Siegal on Posted in Case Comments, Tax

Background 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… → Read More

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

By McCarthy Tétrault LLP on 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… → Read More

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

By Brandon Kain, Elder C. Marques and Byron Shaw on Posted in Conflict of Laws, Constitutional, Features, Procedure, Torts

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,… → Read More

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

By Ronald Podolny on Posted in Case Comments, Class Actions, Professions, Torts

Introduction 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,… → Read More

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

By Geoff R. Hall on 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…. → Read More

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

By Brandon Kain on 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… → Read More

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

By Elder C. Marques on 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… → Read More

SCC Grants Leave to Appeal in Medical Negligence Case on Causation

By Byron Shaw on 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. Background 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… → Read More

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

By Curtis E. Marble on 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… → Read More