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

Monthly Archives: July 2012

Waiver of Tort Gets a Reality Check at the B.C. Court of Appeal

Posted in Case Comments, Class Actions

In a certification decision released last Monday, the British Columbia Court of Appeal has significantly narrowed the scope of the waiver of tort doctrine, holding that it cannot be used to remedy breaches of a statute which itself provides exhaustive or exclusive remedies for the breach in question. The decision in Koubi v. Mazda Canada Inc. is the first case to refer to Lax J.’s common issues judgment in Andersen v. St. Jude Medical, Inc., and may signal the beginning of a trend towards greater scrutiny of waiver of tort claims in the class actions context.

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Interpretation of Interrelated Contracts in a Commercially Effective Manner: Clarification of Two Important Principles of Contractual Interpretation

Posted in Case Comments, Contracts

It is well established that when interpreting a contract the document must be read as a whole, without considering the disputed words or phrase in isolation from the rest of the contractual text. In recent years, the Ontario Court of Appeal has expanded this principle to the interpretation of interrelated contracts, such that if (as commonly happens) a transaction is given effect by a series of contracts, all of the contracts in the series must be considered in interpreting any one of them (the interrelated contracts principle).… Continue Reading

Infringing via the Unspoken: Marlboro Appeal Increases Scope of Confusion for Trade-marks Infringement

Posted in Administrative, Case Comments, Intellectual Property

In an eagerly anticipated decision, the Federal Court of Appeal has allowed in part Imperial Tobacco’s unique infringement lawsuit against Philip Morris in the Marlboro Canada Ltd. v. Philip Morris Products S.A. decision. This  lawsuit involved the first cigarette package in the world that bore no brand name, with the plaintiff claiming instead that the visual appearance and idea of the package evoked its registered trade-mark MARLBORO. This theory has now won out on appeal, and may increase the ability of registered trade-mark owners to target competitors evoking the idea of their brands without actually employing the key marks.

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Back to Basic: US Supreme Court to Hear Amgen and Clarify “Fraud-on-the-Market” Reliance Presumption in Class Actions

Posted in Case Previews, Class Actions, Corporate Law, Securities, Torts

The Supreme Court of the United States has announced it will hear the appeal in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, setting the stage for an important clarification of the use of the “fraud-on-the-market” reliance presumption in U.S. securities class actions. The Court first set out the presumption in its 1988 landmark decision in Basic Inc. v. Levinson, 485 U.S. 224 (1988). The Amgen decision will have an impact in Canada, where courts have grappled with the question of reliance in such cases. Generally, Canadian courts have been sceptical about importing a “fraud-on-the-market” approach, but … Continue Reading