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

Simpler is Better: Third Party Claims Struck for Efficiency and Proportionality in Recent Court of Appeal Decision

Posted in Case Comments, Procedure, Torts

The “culture shift” to a more accessible civil justice system, as championed in Hryniak v. Mauldin, is alive and well. Courts are increasingly sensitive to the economy of cases, taking into account the efficiency and proportionality of substantive and procedural rights. Today’s emphasis is on reasonable not exhaustive measures.

In O’Connor Associates Environmental Inc. v. MEC OP LLC, the Alberta Court of Appeal overturned the decision of a case management judge who permitted the joinder of third party advisors to a main action between a purchaser and vendor of oil and gas assets. This appellate decision incorporates the HryniakContinue Reading

Court of Appeal Accepts Ontario Jurisdiction Despite Forum Selection Clause for Germany

Posted in Case Comments, Conflict of Laws, Contracts, Torts

During the spring of 2012, the Canadian Appeals Monitor posted a five-part series on the Supreme Court’s judgments in Van BredaBlack, and Éditions Écosociété (the “Van Breda Trilogy”). The Van Breda Trilogy was the Supreme Court’s long anticipated reformulation of the common law principles of private international law.

Since the release of the Van Breda Trilogy, courts of first instance have applied the controlling test in Van Breda without much interference from appeal courts. However, on May 31, 2013 the Ontario Court of Appeal released its judgment in 2249659 Ontario Ltd. v. Sparkasse Siegen, overturning … Continue Reading

Clock Starts with the Act of Fraud: U.S. Supreme Court Confirms Five-Year Limitation Period for Government Enforcement Proceedings

Posted in Case Comments, Securities

The US Supreme Court recently handed the US Securities and Exchange Commission (the “SEC”) a very clear message: the act of fraud – not its discovery – triggers the start of the limitation period in government enforcement proceedings.

Chief Justice Roberts’ unanimous decision in Gabelli et al v. Securities and Exchange Commission gave a strict reading to the five-year statutory limitation period for initiating civil penalty proceedings. In so doing, the Court flatly rejected the SEC’s argument that it is only the discovery of fraud which starts the clock ticking.

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The Penalty Doctrine: Focus on Substance Not Form Says The High Court of Australia

Posted in Case Comments, Class Actions, Contracts, Corporate Law, Financial Services

When is a contractual term a penalty? Traditionally, a penalty has been characterized as a provision that results in unconscionable and disproportionate compensation for breach of contract. The recent decision of Australia’s High Court in Andrews v. Australia and New Zealand Banking Group Ltd (“Andrews”) has widened the scope of the common law penalty doctrine to include a fee payable regardless of whether the event triggering its enforcement constitutes a breach of contract. This is a case to watch for its potential impact on contract drafting and interpretation.

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Supreme Court of Canada to Rule on “Preferable Procedure” Inquiry in Class Actions

Posted in Case Previews, Class Actions, Procedure

The Supreme Court of Canada (SCC) recently granted leave to appeal the Ontario Court of Appeal’s decision in AIC Limited et al. v. Dennis Fischer et al.

The Fisher decision considers the important question of whether a successful OSC proceeding, resulting in the payment of $205 million in compensation to affected investor mutual funds, prohibits individual investors from suing for damages in civil courts.

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Providing Debt Financing Does Not Necessarily Equal Control: “Canadian-Controlled” under s.16(3)(c) of the Telecommunications Act Clarified

Posted in Case Comments, Communications

Subsections 16(1) and 16(3) of the Telecommunications Act currently require most telecommunications common carriers operating in Canada to be Canadian-owned and controlled. While the interpretation of Canadian-owned is fairly uncontroversial, there has been much debate about the meaning of Canadian-controlled.

Globalive Wireless Management Corp. v. Public Mobile Inc. is a long-running case that has considered whether several factors, and particularly majority debt financing by a non-Canadian entity, contravene the Canadian-control requirement and thus the eligibility to operate as a Canadian telecommunications carrier.

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