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

Insureds Score a Big Win at the SCC

Posted in Case Comments, Contracts, Insurance

Policyholders recently won a key victory at the Supreme Court of Canada in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. as the Supreme Court clarified the interpretation of a standard form faulty workmanship exclusion clause common in builder’s risk policies.  The decision has wide-reaching significance to other insurance coverage disputes and to contract law generally.

The Supreme Court confirmed that only the cost to redo the faulty work is precluded from coverage by such an exclusion. Builder’s risk, or “course of construction” insurance policies seek to insure against certain defined risks which may occur during the construction process. Such … Continue Reading

This Week at the SCC (31/10/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

The Supreme Court of Canada this week issued a judgment in one case, granted leave to appeal in one case, and denied leave to appeal in one case of interest to Canadian businesses.

In Thibodeau v. Air Canada, 2014 SCC 67, the Supreme Court of Canada ruled that the claims of airline passengers arising from a breach of an airline’s obligation to provide services in French under the federal Official Languages Act was precluded by the Convention for the Unification of Certain Rules for International Carriage by Air.Continue Reading

This Week at the SCC (03/10/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

The Supreme Court of Canada issued a judgment in one case and denied leave to appeal in another case of interest to Canadian businesses and professions.

In Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), a majority of the Court ruled that a provincial rule requiring the payment of court hearing fees, with limited exemptions, was unconstitutional, as it infringed litigants’ right to access to justice.  The majority of the Court ruled that, in order to pass constitutional muster, such fees cannot be so high as to cause litigants to “sacrifice reasonable expenses in order to … Continue Reading

This Week at the SCC (13/06/14)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

This week, the Supreme Court of Canada issued two rulings, granted two leave to appeal applications, and dismissed three applications for leave to appeal, in cases likely to be of interest to Canadian businesses and professionals.

In R. v. Spencer, 2014 SCC 43, the Supreme Court of Canada ruled that the police engaged in an unconstitutional search and seizure when they obtained from an Internet service provider — without prior judicial authorization — the subscriber information associated with an IP address.… Continue Reading

The Second Opinion: Appellate Court Applies Brakes to “Rolling” Limitation Periods

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

Some causes of action are “continuing” in nature.  Historically, torts such as trespass or nuisance have in some instances fallen into this category.  More recently, Canadian courts have recognized that breaches of contract can also be continuing in nature, particularly in cases where the agreement calls for periodic payments that are dishonored.  In essence, Canadian Courts have generally held that the failure to honor each of the scheduled periodic payments gives rise to a discrete, independent cause of action with its own limitation period.

The practical result of this approach has been that even if a claim for breach of … Continue Reading

This Week at the SCC (18/04/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

The Supreme Court of Canada denied leave to appeal this week in two cases of interest to Canadian business.

In Re Nortel Networks Corporation, the Supreme Court of Canada refused leave to appeal a decision of the Ontario Court of Appeal addressing whether a stay of proceedings granted under the federal Companies’ Creditors Arrangement Act stays remediation orders issued by the Ministry of the Environment.

Leave to appeal was also declined by the Supreme Court of Canada in Association des pompiers professionnels de Québec inc. c. Québec (Ville de), an administrative law case emanating from the Quebec Court … Continue Reading

The Second Opinion: Appeal Court Confirms the Narrow Scope of the “Forum of Necessity” Doctrine

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

Can a Court assume jurisdiction over a claim when there is no “real and substantial” connection between the claim, the defendant and the forum? The Ontario Court of Appeal recognized such a theoretical possibility, on the basis of the so-called “forum of necessity” doctrine, in its decision in Van Breda v. Village Resorts Ltd., 2010 ONCA 84. On further appeal, the Supreme Court of Canada did not directly address this doctrine but left room for its “possible application” in the future: 2012 SCC 17 at para. 100. The Ontario Court of Appeal recently revisited and defined the … Continue Reading

This Week at the SCC (07/03/14)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

The Supreme Court of Canada denied leave to appeal this week in one case of interest to Canadian businesses.

In Springdale Pizza Depot Ltd. et al v. 2189205 Ontario Inc. et al, the Supreme Court of Canada  declined to grant leave to appeal from an Ontario Court of Appeal decision which addressed the availability of the right of set-off in the context of a statutory right of rescission in Ontario’s franchise legislation.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and Continue Reading

The Second Opinion: Non-Parties May Be Bound by a Forum Selection Clause

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

Can a party that has not signed an agreement containing a forum selection clause nevertheless be bound by it? The Ontario Court of Appeal addressed this question in Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725. The Court in Aldo contemplated the application of forum selection clauses to third parties in limited circumstances.

The salient facts of the decision in Aldo are as follows. MasterCard entered into a license agreement with a Bank, allowing the Bank to issue credit cards (the “License Agreement”). The License Agreement contained a forum selection clause identifying New York as the … Continue Reading

The Second Opinion: The SCC Narrows the Scope of the Tort of Unlawful Interference With Economic Relations

Posted in Features, The Second Opinion

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

The contours of the tort of unlawful interference with economic relations have, heretofore, been “unsettled”, “confusing” and “inconsistent”.  The tort essentially provides redress when party “A” intentionally inflicts economic injury on party “B”  by use of unlawful means against party “C”.  What is the nature of the “unlawful” activity that can ground the tort?  What degree of intentionality is required to give rise to the tort?  Is the tort available concurrently with other causes of action?  These are the central questions that the Supreme Court of … Continue Reading

This Week at the SCC (17/01/14)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

The Supreme Court of Canada rendered judgment in Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, a case of great interest to Canadian businesses.  Vivendi involved the “commonality” of issues test for authorizing class actions in Quebec.  The Supreme Court of Canada ruled that the Quebec test for “commonality” was broader and more flexible than its common law counterparts.  A similar question of fact or law is, the Court ruled, “common” if it resolves a “not insignificant portion of the dispute”.  Common issues need not lead to common answers.  Moreover, the Court ruled that the multitude of legal schemes … Continue Reading

The Second Opinion: Canadian Subsidiaries Beware? The Ontario Court of Appeal Addresses the Enforcement of Foreign Judgments Against Related Entities

Posted in Features, The Second Opinion

The Ontario Court of Appeal’s decision Yaiguaje v. Chevron Corporation, 2013 ONCA 758, has important implications for both foreign corporations and their Canadian subsidiaries.  The decision clarifies the test by which Ontario courts will enforce foreign judgments, and allows enforcement actions to proceed in Ontario where the only hope of recovery is from the Canadian subsidiary of the foreign corporation.… Continue Reading

The Second Opinion: Appeal Court Addresses Thorny Limitation Period Issues Regarding Anticipatory Breaches of Contract

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

When does the limitation period begin to run for an anticipatory breach of contract?  Does the limitation period commence as soon as the guilty party indicates that it will breach a future obligation?  Or can the innocent party safely assume that that the limitation period does not run until the time comes for the performance of the contract and the guilty party then in fact fails to perform its obligation?  A recent decision by the Ontario of Court of Appeal brings much needed clarity to this important issue.… Continue Reading

This Week at the SCC (22/11/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

The Supreme Court of Canada rendered judgment in two cases, granted leave in one case and refused leave in three cases of interest to Canadian business and professions.

In La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers, 2013 SCC 63, the Supreme Court of Canada, in upholding the conviction of an insurance company for offences under the Act Respecting the Distribution of Financial Products and Services, reaffirmed that strict liability offences do not generally require proof of mens rea.  Moreover, the Supreme Court of Canada ruled that although a due diligence defence is available in the regulatory … Continue Reading

The Second Opinion: Appeal Court Clarifies the Contours of the Tort of Misfeasance in Public Office

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

Are policy decisions made by the government beyond the reach of the tort of abuse of public office?  A recent decision of the Ontario Court of Appeal provides a nuanced answer to this question.

The pertinent facts of the decision in Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 are as follows.  Trillium Power Wind Corporation (“Trillium”) is a developer of off-shore wind power projects in Ontario.  One of Trillium’s projects was cancelled by the Province of Ontario (“Ontario”) during a provincial election campaign.… Continue Reading

The Second Opinion: Is an Ontario-based Class Settlement Enforceable in Other Provinces?

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

Can a class settlement that is entered into Ontario, and that purports to be inter-provincial in effect, be enforced in Manitoba?  The answer – as a recent Manitoba Court of Appeal decision makes clear — entails a two-step analysis.  First, the Ontario court must have properly assumed jurisdiction over the non-resident class members.  Second, the Ontario court must have followed the principles of procedural justice, as the Supreme Court of Canada recognized in Canada Post Corp. v. Lepine, 2009 SCC 16.  My earlier post on Meeking v. The Cash Store Inc., 2013 MBCA 81, dealt with … Continue Reading

This Week at the SCC (18/10/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

The Supreme Court of Canada released judgments in two cases, granted leave to appeal in one case and denied leave to appeal in three cases of interest to Canadian business and professions.

In Castonguay Blastings Ltd. v. Ontario (Minister of Environment), 2013 SCC 52, the Court adopted a purposive and expansive interpretation of the reporting obligations under Ontario’s Environmental Protection Act in upholding the conviction of a corporation which had failed to report the damage-causing propulsion of rock debris into the air.  The Court stated that “the Ministry of the Environment must be notified when there has been a … Continue Reading

The Second Opinion: The Ontario Court of Appeal Addresses Jurisdiction Over International Tort Claim

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion, Torts

Global commerce transcends borders. When related litigation ensues, it can give rise to thorny jurisdictional issues.  For instance, when an Ontario-headquartered mining company relies — based on recommendations from its technical staff in its Vancouver satellite office — upon the engineering reports of US-based consultants to build a gold mine in Costa Rica which then collapses, does an Ontario court have jurisdiction over the subsequent legal dispute between the parties?… Continue Reading

The Second Opinion: Can an Ontario Court Assume Jurisdiction Over Non-resident Class Members?

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Class Actions, Features, The Second Opinion

Is an Ontario-based inter-provincial class settlement enforceable in Manitoba?  The answer depends in part on whether an Ontario court can properly exercise jurisdiction over non-resident class members.  The Manitoba Court of Appeal recently provided guidance on these important issues in the first appellate case to comprehensively address these questions since the Supreme Court of Canada revamped the test for jurisdiction in its Van Breda decision.

The pertinent facts of the decision in Meeking v. Cash Store Inc., 2013 MBCA 81 were as follows.  A class action relating to broker fees that were alleged to have been charged  by small loan … Continue Reading

This Week at the SCC (13/09/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Labour and Employment, The SCC Monitor

The Supreme Court of Canada released two judgments, granted leave to appeal in one case and denied leave to appeal in one case of interest to Canadian business this week.

In Payette v. Guay Inc., 2013 SCC 45, the Supreme Court of Canada confirmed that the rules applicable to restrictive covenants apply with greater rigour when such covenants are found in a contract for the sale of a business as opposed to a contract of employment.  The rationale for this difference, the Court stated, is the imbalance of power which is inherent in employer-employee relationships, but which is … Continue Reading

The Second Opinion: Can the Reasonable Expectations of the Parties Ground Insurance Coverage? Sometimes…

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

The concept of the “reasonable expectations of the parties” is often alluded to in the insurance law context. Can this concept serve as the basis for granting insurance coverage to an insured? What if the reasonable expectation of the parties conflicts with the actual wording of the insurance policy? A recent British Columbia Court of Appeal decision provides insight into these issues.

The pertinent facts of the decision in Turpin v. The Manufacturers Life Insurance Company, 2013 BCCA 282, are as follows. The plaintiff had experienced abdominal pain for which she received medical treatment in British Columbia. Her … Continue Reading

The Second Opinion: Appellate Court Addresses Limitation Period Issues Regarding Misrepresentation Claims

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

When does a cause of action for negligent misrepresentation crystalize such that it triggers the running of the applicable limitation period?  The British Columbia Court of Appeal addressed this issue recently in Weldon v. Teck Metals Ltd., 2013 BCCA 358.

The pertinent facts of the Weldon case are as follows.  The employees of the defendant Teck participated in a defined benefit pension plan.  The defendant Teck offered the employees the option of transferring their pensions from the defined benefit plan to a newly-established defined contribution pension plan, effective January 1, 1993.  The plaintiffs chose to do so.  However, … Continue Reading

The Second Opinion: The B.C. Court of Appeal Preserves the Corporate Veil…Sort of

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Features, The Second Opinion

In a just-released decision, the British Columbia Court of Appeal declined to pierce the corporate veil between a group of related entities.

The pertinent facts of the decision in XY, LLC v. Zhu, 2013 BCCA 352 are as follows.  XY, LLC (“XY”) licenced technology to JingJing Genetic Inc. (“JingJIng”).  Mr. Zhu was the controlling shareholder of JingJing and a related group of companies (the “IND Group”).  JingJing provided XY with false reports concerning revenues it received from the use of XY’s technology, underpaid royalties to XY, concealed documents from XY, and violated its confidentiality agreement with XY.  JingJing was … Continue Reading

This Week at the SCC (05/07/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor

The Supreme Court of Canada released reasons for judgment in one case and denied leave to appeal in two cases of interest to Canadian business and professions.

In Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, the Supreme Court of Canada ruled that a law firm breached its duty to avoid conflicting interests, its duty of commitment to its client’s cause, and its duty of candour to its client when it, without its client’s consent or knowledge, accepted a significant retainer against its client and terminated various retainers with its client in the process.  However, the … Continue Reading