The Supreme Court of Canada (SCC) released a decision on November 2, 2017 dismissing a novel Aboriginal freedom of religion Charter claim that was raised in opposition to a ski resort development in British Columbia: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (Ktunaxa). This is a significant case as it is the first time the SCC has been asked to consider an Aboriginal spiritual rights claim and the protections that may be afforded to it under s. 2(a) of the Charter in addition to s. 35 of the … Continue Reading
With each new year comes a new slate of interesting appeals for Canadian businesses and professions. Without further ado, the Appeals Monitor is pleased to present our annual forecast of the top ten appeals to watch in 2016.… Continue Reading
The Supreme Court of Canada’s most recent decision in Chevron Corp. v. Yaiguaje has significantly increased the litigation risk for companies with assets in Canada from plaintiffs seeking to enforce foreign judgments obtained against the foreign affiliates of such companies. The SCC decision in Chevron will have significant cross-border implications, as enforcement in Canada can now be pursued against foreign companies and their Canadian affiliates even if neither party to the original dispute has a “real and substantial” connection to Canada.… Continue Reading
The Supreme Court of Canada has released a precedent-setting judgment in which it recognized, for the first time, that there is a general organizing principle of good faith in the performance of contracts throughout Canada: Bhasin v. Hrynew, 2014 SCC 71. The Bhasin case, which was successfully argued by Neil Finkelstein and Brandon Kain of McCarthy Tétrault’s Toronto litigation group, will be very important for Canadian businesses going forward. As a result of Bhasin, all contracts throughout Canada are now subject to a duty of, at a bare minimum, honest performance, which cannot be excluded by the terms … Continue Reading
The Supreme Court of Canada released one judgment this week of interest to Canadian businesses and professions.
In Imperial Oil v. Jacques, 2014 SCC 66, the Court held that a private litigant can request the disclosure of recordings of private communications from third parties to the civil action, which were intercepted by the government during a criminal investigation, without the consent of either of the communicating parties.… Continue Reading
The Supreme Court of Canada released judgment this week in a trilogy of cases of interest to Canadian businesses and professions.
In Bank of Montreal v. Marcotte, 2014 SCC 55, Amex Bank of Canada v. Adams, 2014 SCC 56 and Marcotte v. Fédération des caisses Desjardins du Québec, 2014 SCC 57, the Court upheld class action trial judgments against several financial institutions in which consumers recovered conversion charges that the defendants imposed upon credit card purchases made in foreign currencies. The defendants were found not to have complied with certain disclosure required in the Quebec … Continue Reading
The Supreme Court of Canada denied leave to appeal this week from two appeals of interest to Canadian businesses and professions.
The first, Transalta Corporation v. Canada, 2013 FCA 285, held that a taxpayer who successfully appeals a tax assessment after making a failed settlement offer to the Minister of National Revenue is not automatically entitled to substantial indemnity costs in the Tax Court, even if the outcome of the appeal is more favourable than the terms of the settlement rejected by the Minister. The Federal Court of Appeal found that the Tax Court judge retained full discretion … Continue Reading
The Supreme Court of Canada released three judgments this week of interest to Canadian businesses and professions.
The first, Peracomo Inc. v. TELUS Communications Co., 2014 SCC 29, involved an action against a crab fisherman and his company brought after he deliberately cut a cable lying on a river bottom which, unbeknownst to him, was a live fiber-optic cable co-owned or used by several of the plaintiffs. The defendant relied on s. 29 of the federal Marine Liability Act, which limits liability for property damage caused by the operation of ships of the defendant’s class to $500,000. … Continue Reading
The Supreme Court of Canada released one judgment this week of significant interest to the legal profession.
In Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, a 6-1 majority ruled that the appointment of the Honourable Marc Nadon and his swearing-in as a judge of the Supreme Court of Canada were void ab initio, and that he remains a judge of the Federal Court of Appeal. The Court clarified that s. 6 of the Supreme Court Act, which requires that three of its nine judges be appointed “from among the judges of … Continue Reading
The Supreme Court of Canada granted leave to appeal this week from one case of interest to Canadian businesses and professions: Thompson v. Canada (National Revenue), 2013 FCA 197. The Thompson appeal concerns whether a lawyer who received a Requirement to produce information under s. 231.2(1) of the Income Tax Act relating to his accounts receivable can be compelled to divulge the names of his clients. The Court will be asked to determine whether s. 231.2(1) gives lawyers the opportunity to resist disclosure by first establishing that solicitor-client privilege protects the names of their individual clients before a … Continue Reading
Can a private corporation decline to provide audited financial statements to its shareholders without their unanimous consent on the ground that it is too expensive for it to do so? The British Columbia Court of Appeal recently addressed this question in Li v. Global Chinese Press Inc, 2014 BCCA 53, and held that the answer is no, at least for companies that are incorporated under the Canada Business Corporations Act (“CBCA“). The decision in Li is an important appellate clarification of this point, and is one that private corporations should bear in mind in their dealings … Continue Reading
The British Columbia Court of Appeal has released an important new judgment overturning the certification of a medical products class action: Wakelam v. Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc., 2014 BCCA 36. The decision in Wakelam holds that common law restitutionary remedies, including waiver of tort, are not available for breaches of either the Competition Act or the B.C. Business Practices and Consumer Protection Act (“BPA“), and confirms that proof of causation is required to obtain damages under each of these statutes. At the same time, Wakelam rejects the argument that the BPA is constitutionally … Continue Reading
The Supreme Court of Canada released two decisions today that will make summary judgment more widely available to parties. The reasons in Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 signal a cultural shift in which summary judgment will be available whenever it involves less time and expense than a trial, provided it enables the motion judge to reach a fair and just determination … Continue Reading
The Supreme Court of Canada denied leave to appeal this week from three cases of interest to Canadian businesses and professions.
The first, Wightman c. Widdrington (Succession de), 2013 QCCA 1187, involved a test case on behalf of investors claiming over $1 billion against an accounting firm and its Canadian partners arising out of the 1992 bankruptcy of Castor Holdings Ltd. The investors had made loans to Castor or invested in it on the strength of the defendants’ inaccurate audit reports, and the defendants were found liable for their negligence in auditing Castor after a lengthy trial. The … Continue Reading
The Supreme Court of Canada released two judgments this week of interest to Canadian businesses and professions.
In the first, AIC Limited v. Fischer, 2013 SCC 69, the Court upheld the certification of a class action by investors against mutual fund managers, who alleged that they suffered losses when the defendants engaged in “market timing” activities. The issue for the Court was whether a class action could be the preferable procedure, as required under s. 5(1)(d) of Ontario’s Class Proceedings Act, 1992, when the defendants had already entered into settlement agreements with the Ontario Securities Commission that … Continue Reading
On November 15, 2013, the U.S. Supreme Court agreed to hear an appeal in which it will reconsider the “fraud-on-the-market” theory that has been one of the cornerstones of private securities litigation in the United States for the past 25 years. The questions presented to the Court in Halliburton Co. v. Erica P. John Fund, Inc. are as follows:
… Continue Reading
1. Whether this Court should overrule or substantially modify the holding of Basic Inc. v. Levinson, 485 U.S. 224 (1988), to the extent that it recognizes a presumption of classwide reliance derived from the fraud-on-the-market theory.
2. Whether, in a
The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.
In R. v. Vu, 2013 SCC 60, the Court held that a search warrant could not be relied upon to search computers found at the residence it named, if the warrant did not specifically refer to or authorize computer searches. In contrast to receptacles such as cupboards and filing cabinets, which can be searched without specific, prior authorization once a warrant is obtained to search the place at which they are found, the Court held that s. 8 of the Charter … Continue Reading
Readers of this blog may recall our series of blog posts here, here, here and here discussing the UK Supreme Court’s recent watershed decisions on piercing the corporate veil in VTB Capital Plc v Nutritek International Corp,  UKSC 5 and Prest v Petrodel Resources Ltd,  UKSC 34.
Anyone looking for a more extensive review of these cases, including their implications for Canadian jurisprudence, may be interested in the new article which Tom Heintzman and I recently published in the Banking and Finance Law Review, “Through the Looking Glass: Recent Developments in Piercing … Continue Reading
The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.
In British Columbia (Forests) v. Teal Cedar Products Ltd., 2013 SCC 51, the Court held that an arbitrator acting under the B.C. Commercial Arbitration Act (“CAA”) cannot generally award either pre-judgment or post-judgment compound interest on an arbitral award. The Court based its decision upon the B.C. Court Order Interest Act, which requires that a pecuniary court judgment bear simple interest only. The Court reached this conclusion even though the CAA does not expressly deem an arbitrator to … Continue Reading
The “de jure” control of a corporation can be important in several legal contexts. Traditionally, the test employed to assess de jure control was whether the controlling party owned a sufficient number of shares to elect the majority of the board of directors. However, since Duha Printers (Western) Ltd. v. Canada,  1 S.C.R. 795, courts have recognized that de jure control may also be influenced by a unanimous shareholder agreement (“USA”). This has given rise to uncertainty over what provisions in a USA can affect the de jure control analysis.
In Canada v. Bioartificial Gel … Continue Reading
Next month marks the bicentennial of the birth of Sir William Johnstone Ritchie, one of the first judges appointed to the Supreme Court of Canada and Chief Justice from 1879 to 1892. Why are we thinking about him this week? Until today, he was the longest serving Chief Justice of Canada. That title now belongs to Chief Justice Beverley McLachlin, who has held the position since January 7, 2000. Having served on the Court for nearly a quarter century – most of that time as Chief Justice – her impressive legacy to date includes the development of the law in … Continue Reading
Since the seminal judgment in Elsley v. J.G. Collins Insurance Agencies Ltd.,  2 S.C.R. 916, Canadian courts have applied the rules for determining the validity of a restrictive covenant more strictly in the employment context than where the covenant accompanies the sale of a business. However, it can frequently be difficult to identify which category a covenant falls into where a business is sold as part of a hybrid agreement that contemplates the vendor will also become the purchaser’s employee. In Payette v. Guay inc., 2013 SCC 45, the Supreme Court of Canada weighed in on … Continue Reading
The first, Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, involved the constitutional relationship between provincial workers compensation legislation and the federal jurisdiction over navigation and shipping. As my colleague Byron Shaw discussed in a previous post, the respondents in Marine Services were the estates of two fisherman who died at sea after their boat capsized. They applied for and obtained compensation under the Newfoundland and Labrador Workplace Health, Safety and Compensation Act (the “WHSCA”). While … Continue Reading
In an important new ruling released Wednesday, the Ontario Court of Appeal has declined to certify a class action by problem gamblers against the Ontario Lottery and Gaming Corporation (“OLG”). The decision in Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501 marks only the seventh time since the introduction of the Class Proceedings Act, 1992 (“CPA“) twenty years ago that the Ontario Court of Appeal has denied certification based on one of the criteria in ss. 5(1)(b)-(e) of the CPA (the other cases being Hollick v. Toronto (City) (1999), 46 O.R. (3d) 257, aff’d, … Continue Reading