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

The SCC Monitor (02/08/2016)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in Intellectual Property, Oil and Gas, Professions, The SCC Monitor

Since our last post, the Supreme Court has granted and denied leave in a few significant cases that will be of interest to our readers.

Leave to Appeal Granted

Auditor Liability: Livent Inc v Deloitte & Touche

The SCC granted leave to appeal from the judgment of the Ontario Court of Appeal in Livent Inc v Deloitte & Touche, 2016 ONCA 11, which is an important decision concerning the liability of auditors for negligence.… Continue Reading

The Supreme Court Protects Accounting Records of Lawyers from the CRA

Posted in Case Comments, Charter of Rights, Privacy, Quebec Court of Appeal, Solicitor-Client Privilege, Tax

Solicitor-client privilege is nearly sacrosanct in Canada. The circumstances in which it can be breached are limited and specific. Courts will not abide attempts by the Government to do away with privilege for expediency’s sake or overreach when limiting the application of the privilege. This was recently reinforced by the Supreme Court of Canada in two decisions that considered the CRA’s powers to compel information from lawyers and notaries: Canada (Attorney General) v. Chambre des notaires du Quebec and Canada (National Revenue) v. Thompson.… Continue Reading

Cavendish v Talal and ParkingEye v Beavis: The UK Supreme Court provides a refresher on penalty clauses

Posted in Case Comments, Contracts

The common law penalty rule is poorly understood but can have disastrous consequences for contracting  parties who do not consider it when setting out remedies for contractual breach. The UK Supreme Court recently brought some much needed clarity to the rule and articulated a revised test in a pair of decisions: Cavendish v Talal and ParkingEye v Beavis. The two decisions consider the rule in very different contexts: Cavendish in the valuation of assets in a share sale and ParkingEye in the imposition of a charges for violating parking lot time limits.… Continue Reading

The SCC Monitor (18/06/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in Civil Procedure/Evidence, Class Actions, Health, The SCC Monitor

The Supreme Court of Canada has recently dismissed two leave applications and granted leave in one case that will be of interest to our readers. These cases touch on: case management and civil procedure in class actions (including when parent companies may be joined in an action); the standard of review and standing of administrative boards and tribunals; and interpretation of the federal Interest Act in regards to mortgage incentives and penalties.… Continue Reading

The U.K. Supreme Court revisits equitable compensation in commercial transactions

Posted in Bankruptcy and Debt, Case Comments, Contracts, Corporate Law, Financial Services

Trusts are widely used in commercial transactions. But, as creatures of equity, trusts raise issues that may not be immediately familiar to everyone who relies on them in the commercial world. Indeed, the interrelationship between equitable doctrines and remedies and common law principles and remedies is complicated. Fortunately, the U.K. Supreme Court has revisited the issue in its recent decision in AIB Group (UK) Plc v. Mark Redler & Co Solicitors, [2014] UKSC 58.

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Is your standard form release contrary to public policy? The British Columbia Court of Appeal provides guidance

Posted in Case Comments, Contracts, Corporate Law, Torts

Clauses that exclude, or “release”, liability are widespread and critical to risk management for many businesses. Typically, such clauses stipulate that the signee waives the right to sue if they are injured while participating in certain activities. Inevitably, in the event that the signee is injured, a variety of arguments are put forward as to why the particular exclusion clause is unenforceable in the particular circumstances.

Recently, in 2010, the Supreme Court set out a new approach to the analysis of whether an exclusion clause is unenforceable in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC … Continue Reading

Are pre-contractual representations “continuing”? Even if the contracting parties change?

Posted in Case Comments, Contracts, Corporate Law

Circumstances change and what is true today may not be true tomorrow. For that reason, some representations carry with them the obligation to advise the representee if the relevant circumstances change. These are usually referred to as “continuing” representations.

But can a continuing representation carry with it the obligation to update a third party, to whom the representation was not even made? The UK Supreme Court says it can in Cramaso LLP v Ogilvie-Grant, Earl of Seafield and Others, a case with a peculiar set of facts which may have broad implications for parties engaged in pre-contractual negotiations.

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The UK Supreme Court clarifies: no marshalling without an underlying debt, and maybe no marshalling in any event

Posted in Bankruptcy and Debt, Contracts, Corporate Law, Financial Services

The doctrine of marshaling has existed for centuries and was developed to address inequitable circumstances in which secured parties were unable to realize on their security. The UK Supreme Court has recently considered the doctrine in a case, Szepietowski (nee Seery) (Appellant) v The National Crime Agency (formerly the Serious Organised Crime Agency) (Respondent), which provides helpful guidance concerning the limits of the doctrine.

Although it arises infrequently, the doctrine does apply in Canada. For that reason, Szepiotwski will be of interest to holders of secured debt (and their lawyers) both for the particular holdings and the court’s general … Continue Reading

UK Supreme Court Confirms – No Breach of Confidence without a Breach… or Confidence

Posted in Case Comments, Contracts, Corporate Law, Intellectual Property, Manufacturing

Introduction

In a knowledge economy protection of trade secrets is critical to a corporation’s continued success and profitability. The misuse of trade secrets by competitors can be devastating to a corporation’s position in the marketplace. That is particularly true when it is ex-employees who are misusing trade secrets to compete against their former employer. In such circumstances, numerous remedies are available to employers including a civil action for breach of confidence.

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The UK and Canadian Supreme Courts to Consider the Legal Status of Equity Partners

Posted in Administrative, Case Comments, Labour and Employment, Professions

Can equity partners at professional firms take advantage of statutory employment law protections? Both the UK and Canadian Supreme Courts have recently granted leave in cases which consider that question. In the UK, Clyde & Co LLP v Bates Van Winkelhof concerns a whistle blower claim, money laundering in Tanzania, and allegations of sexual discrimination. In Canada, Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal) is, in typical Canadian fashion, far less exciting. It concerns the application of a national full service law firm’s mandatory retirement policy.

Background

The majority of multi-lawyer law firms in the United Kingdom, … Continue Reading

Click Here to Win a Million Dollars!: The Australian High Court Considers Whether Online Intermediaries are Liable for Displaying Misleading or Deceiving Advertisements

Posted in Administrative, Case Comments, Communications, Competition

Online advertising is big business. It is estimated that $92 billion was spent worldwide last year, and forecasters expect that number to reach $143 billion by 2017. But to what extent are the distributers of online advertisements responsible for their content? That was the question considered by the Australian High Court in Google Inc v Australian Competition and Consumer Commission. In a decision that is sure to have implications in Canada, the High Court decided that Google is not relevantly different from traditional advertisement intermediaries such as newspaper publishers or broadcasters and is therefore not responsible for misleading or … Continue Reading