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

The Second Opinion: Bad Faith Possessor … Take My Land, Please

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

Posted in Features, The Second Opinion

In Dupuy v. Gauthier 2013 QCCA 774, the Quebec Court of Appeal has confirmed that a person who possesses immovable property for 10 years can acquire ownership of it whether or not the possessor knew the property belonged to another.

In the instant case, a shed owned by the defendants, situated on their land, partially encroached on the land of the plaintiff, their neighbour. As a result of deterioration in the relations between the neighbours, the plaintiff sought and obtained in first instance an injunction to have the defendants move or demolish the shed to eliminate the encroachment. The … Continue Reading

This Week at the SCC (06/06/2014)

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 from one appeal of interest to Canadian businesses and professions.

The decision in Amtim Capital Inc. v. Appliance Recycling Centers of America  (2014 ONCA 62) indicates that pre-emptive declaratory relief in one jurisdiction may not be effective to prevent subsequent litigation elsewhere.… Continue Reading

The Second Opinion: This Week at the Supreme Court of Canada (07/05/2014) Enforcement of Foreign Judgments in Canada through an Unrelated Canadian Subsidiary

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 granted an application for leave to appeal the decision of the Ontario Court of Appeal in Yaiguaje v. Chevron Corporation 2013 ONCA 758.  As a result, the Supreme Court of Canada will review the jurisdictional requirements for the enforcement of foreign judgments in Canada.

The case is particularly important to multi-national enterprises because it involves an attempt to enforce in Canada a foreign judgment against a non-Canadian judgment debtor and against its Canadian subsidiary, which was not a party to the litigation. The foreign judgment debtor had no presence and no assets … Continue Reading

The Second Opinion: Examination on Discovery of Computers- No Fishing Allowed

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

Posted in Features, The Second Opinion

In Desmarteau v. Ontario Lottery and Gaming Corporation 2013 QCCA 2090, the Quebec Court of Appeal established restrictive guidelines for the examination on discovery of personal computers, applying by analogy the rules governing Anton Piller orders.

In Desmarteau, the defendant sought and obtained in first instance, an order to permit its expert to examine the personal computer of the plaintiff to identify information relevant to the litigation. The first instance order instructed the expert to exclude matters covered by solicitor-client privilege. The Québec Court of Appeal reversed the first instance judgement and rejected the defendant’s request to examine … Continue Reading

The Second Opinion: Dispensing Equity in Quebec through In Solidum Liability

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

Posted in Features, The Second Opinion

In Bourque v. Poudrier, 2013 QCCA 1663, the Quebec Court of Appeal has extended the scope of in solidum liability to ensure recovery for damages resulting from professional negligence.

In the Bourque case, the claimants wished to purchase land that was free of any rights of way or other servitudes. The seller fraudulently confirmed that no such rights existed on the land. Further, the buyers’ notary erroneously confirmed the absence of such rights, despite the fact that he had participated in the preparation of the deeds granting them. After completion of the sale, the buyers discovered the servitudes … Continue Reading

Screening Secondary Market Liability Actions in Quebec: the Court of Appeal Weighs In

Posted in Case Comments, Class Actions, Procedure, Securities

On July 17, 2013, the Quebec Court of Appeal rendered its first decision on the statutory secondary market liability regime adopted in 2007 pursuant to a reform of the Quebec Securities Act[1] (“QSA”). Although the QSA regime facilitates a plaintiff’s burden, it also imposes an authorization process under which a claimant must establish that its action is brought in good faith and has a reasonable possibility of success. In Theratechnologies inc. v. 121851 Canada inc., 2013 QCCA 1256 (“Theratechnologies”), the Court of Appeal upheld the Superior Court’s decision to authorize a claim pursuant to

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The Second Opinion: Interest is not Interest … When it is a Penalty

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

Posted in Features, The Second Opinion

In Diamantopoulos v. Construction Dompat Inc., 2013 QCCA 929, a construction contract specified a late payment interest rate of 24% per annum and a legal/collection fees charge of  20% on the amount due. The Québec Court of Appeal characterized these clauses jointly as “penal”, excessive and abusive, and reduced the charges to a single, global interest rate of 15%. The court exercised its discretion under article 1623 C.C.Q. which permits judicial reduction if the amount in a penalty or liquidated damages clause is abusive. It is noteworthy that the contract in issue was expressly held not to be … Continue Reading

This Week at the SCC (20/08/2013)

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

Posted in The SCC Monitor

The Supreme Court of Canada has dismissed an application for leave to appeal the decision of the B.C. Court of Appeal in The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency 2013 BCCA 34, thereby confirming the reluctance of Canadian Common law courts to impose a private law tort duty upon regulators acting in the public interest.

The appellants exported carrots from the U.S. to Canadian retailors. As a result of a negligent inspection by the Canadian Food Inspection Agency (“CFIA”), the CFIA erroneously concluded that the carrots might be contaminated which caused the appellants … Continue Reading

This Week at the SCC (10/06/2013)

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 granted two leave applications and rejected another in cases concerning important evidentiary issues.

In Couche-Tard Inc. v. Jacques 2012 QCCA 2266 and Pétrolière Impériale v. Jacques 2012 QCCA 2265, the issue was whether the Quebec Superior Court was correct in ordering the Competition Bureau, a third party to the case, to provide to the parties to a class action recordings of communications intercepted and given to the accused in a previous criminal investigation. The Superior Court had ordered communication of the recordings subject to redaction to protect the privacy of third parties. … Continue Reading

The Second Opinion: Loss of Chance – A Lost Cause in Quebec

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

Posted in Features, The Second Opinion

In Lévesque v. Hudon, 2013 QCCA 920, the Quebec Court of Appeal has confirmed that the theory of loss of chance or increase of risk does not apply to establish causation under the law of Quebec.

The plaintiff sued a physician for injury resulting from a delayed diagnosis by the physician which prevented treatment on a timely basis. The Superior Court decision held that each day was crucial to the potential benefits of treatment. Accordingly, the first instance judge held that a fault causing a delay of 48 hours in the diagnosis and treatment of the patient created … Continue Reading

Second Opinion: Contracting Out of Prescription / Limitations – A Quebec Perspective

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

Posted in Features, The Second Opinion

Under the law of Quebec, article 2884 C.C.Q. prohibits the modification by contract of the prescriptive or limitations period provided by law. The prohibition applies to all contracts including commercial or business contracts. By contrast, Ontario law permits the  modification of limitation periods in business agreements.

In Construction Infrabec Inc. v. Paul Savard, Entrepreneur électricien Inc. 2012 QCCA 2304, the Quebec Court of Appeal has confirmed that a notice requirement with a specified delay as a pre-condition to a contractual claim is not, in principle, a modification to the prescriptive period under Quebec law.

In the instant case, the … Continue Reading

This Week at the SCC (06/05/2013)

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 granted a leave application in the following case of interest to Canadian businesses and professions.

In Confédération des syndicats nationaux v. Canada (Procureur général) 2012 QCCA 1822, the Confédération challenged the most recent treatment of employment insurance premiums and surpluses by the federal government pursuant to legislation passed in 2010. The effect of the retroactive 2010 legislation was to close the Employment Insurance Account as of January 1, 2009 and create the Employment Insurance Operating Account. A balance in excess of $57 billion in the Employment Insurance Account was not transferred to the … Continue Reading

The Second Opinion: A Municipality Invokes an Illegal Clause in its Call for Tenders to Justify the Contract Award

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

Posted in Features, The Second Opinion

The decision in Entreprise P.S. Roy inc. v. Magog (Ville de) 2013 QCCA 617 considers the legality of conditions imposed by a municipality in a call for tenders and whether a municipality can invoke an illegal clause in its call for tenders to justify its award of the contract to the lowest “compliant” bidder.

Magog issued a call for tenders in which it imposed – apparently by error – the condition that the bidder not have had a contract terminated by a municipality for breach within the previous 5 years. The condition applied to judicial and non-judicial termination. The … Continue Reading

The Second Opinion: New Nuances for Injunctions to Prevent Interference with Contract

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

Posted in Features, The Second Opinion

In Rouge Resto-bar Inc. v. Zoom Media Inc., 2013 QCCA 443, the issue before the Quebec Court of Appeal was whether a permanent injunction could be granted  to stop “knowing participation in a contractual breach” where, as a result, the defendant’s co-contractant would be deprived of the benefit of its contract with the defendant without being a party to the case. The contract between the defendant and its co-contractant allegedly constituted a breach of the contract between the latter and the claimant.

The Court of Appeal decided that an injunction to prevent one party from performing a contract without … Continue Reading

This Week at the SCC (01/04/2013)

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

Posted in The SCC Monitor

Is the Medium the Message?

In R. v. TELUS Communications Co., 2013 SCC 16, a majority of the Supreme Court of Canada this week enhanced the protection of individual privacy by restricting police access to text messages. In essence, Telus successfully challenged the procedure by which the police obtained authorization to access text messages stored in the Telus computer database. The result is that the rigorous wiretap authorization procedure (rather than less rigorous alternative processes) applies where the police seek in advance access to future text messages.… Continue Reading

What’s the Value of a Truck Stop Without Any Trucks? Supreme Court Addresses Nuisance Claims in Public Projects

Posted in Case Comments, Construction and Real Estate, Torts, Transportation

In a new decision, the Supreme Court of Canada has provided guidance on when compensation might be due in cases of nuisance caused by public infrastructure projects.  The Antrim decision is relevant not only for those involved in the management of public projects, but it also shapes the more general law of nuisance, especially in relation to particularly disruptive construction projects.

Background

For 26 years, Antrim Truck Centre Ltd. operated a truck stop on Highway 17 in Eastern Ontario. Then in 2004, the Province constructed a new highway, and forever altered Highway 17. No longer could motorists access the truck … Continue Reading

The Second Opinion: Ignorance is not Bliss – The Risks of Purchasing Shares without Due Diligence and without Full Disclosure

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

Posted in Features, The Second Opinion

The decision in Francoeur v. 4417186 Canada Inc., 2013 QCCA 191 demonstrates the dangers of a share purchase agreement without due diligence and with acceptance of non-disclosure of employee bonuses.

The case arose in the context of the purchase of shares of one company by a business competitor. The Share Purchase Agreement expressly stated that the purchasers would undertake no due diligence and would have no access to material under seal until closing, including a list of employee change-of-control bonuses. The purchasers expressly assumed the risks resulting from these circumstances. In addition, the Share Purchase Agreement permitted the then-current … Continue Reading

This Week at the SCC (08/03/2013)

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 rendered a decision that provides a legal framework for injurious affection and nuisance claims resulting from the activity of a public authority. The court also granted leave applications in relation to the claim of an equity partner in a law firm that forced retirement at age 65 is discriminatory, and an appeal which challenges the constitutionality of foreign state immunity.

Injurious Affection/ Nuisance

In Antrim Truck Center Ltd. v. Ontario (Transportation), 2013 SCC 13, the Supreme Court of Canada identified the elements of a claim for injurious affection which, in the … Continue Reading