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

No Jury Trial for Securities Offences: Economic Penalties Are Not A “More Severe Punishment” Under Section 11(f) of the Charter

Posted in Case Comments, Charter of Rights, Constitutional, Criminal, Procedural Rights, Securities, Supreme Court of Canada

Is a $5 million fine a less severe punishment than a night in jail?  Are hefty financial penalties for quasi-criminal or regulatory offences able to trigger the procedural protections of the Canadian Charter of Rights and Freedoms when combined with the threat of imprisonment? The Supreme Court of Canada had the opportunity to address these questions when it recently released the twin decisions of R v Peers, 2017 SCC 13 and R v Aitkens, 2017 SCC 14.… Continue Reading

Careful Putting Your Best Foot Forward: Alberta Court of Appeal Eases Access to Summary Dismissal

Posted in Case Comments, Civil Litigation, Contracts

The Alberta Court of Appeal strengthened the post-Hryniak judicial trend in favour of the summary disposition of litigation without trial by upholding the decision of a chambers judge to grant summary dismissal without strict adherence to the applicable Rules of Court.  In Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12, the plaintiff applied for summary judgment but failed to make its case. It saw not just its application, but its entire claim, dismissed, even though the defendant had not brought a cross-application for summary dismissal.… Continue Reading

Waiver of Privilege: The Danger of Pleading Lack of Informed Consent

Posted in Case Comments, Civil Procedure/Evidence

In a case that highlights the importance of carefully drafted pleadings, the Alberta Court of Appeal recently split over the question of whether pleading a lack of informed consent to an agreement resulted in the waiver of privilege over legal advice received during the negotiation of that agreement.  In Goodswimmer v Canada (Attorney General), the majority of the Court of Appeal found that the appellant had waived solicitor-client privilege by voluntarily placing its reliance on legal advice into issue in its Statement of Claim and by selectively disclosing certain privileged communications.  The dissenting Justice engaged in an interesting analysis … Continue Reading

Advocacy, Incivility and Professional Misconduct: Groia v The Law Society of Upper Canada

Posted in Case Comments, Professions

Are the legal profession’s rules regarding civility at odds with a lawyer’s duty to zealously advocate on behalf of his or her client? Debate on this point has recently focused on the Law Society of Upper Canada’s discipline of Toronto lawyer Joseph Groia for uncivil conduct during his defence of former Bre-X mining officer John Felderhof. The Ontario Divisional Court grappled with this question, and on February 2, 2015, upheld the Law Society’s finding that Mr. Groia’s conduct amounted to professional misconduct.… Continue Reading

The Crucial Distinction Between Carrots and Sticks: Incentives and Penalties in the Interpretation of the Interest Act

Posted in Real Property

Do incentives for prompt payment in a mortgage, which would be lost on default, run afoul of the prohibition against penalties for non-performance contained in s.8 of the Interest Act? The Alberta Court of Appeal recently split over this question, with the majority saying no. This case could affect the structure of mortgages in Alberta, encouraging the use of “non-penal” devices to ensure performance that may be difficult to distinguish, in operation, from penalties.

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Who Says I’ve Been Enriched? Subjective Devaluation and Revaluation in Restitution for Unjust Enrichment

Posted in Case Comments, Contracts

In an interesting decision that will no doubt influence the calculation of restitutionary awards and quantum meruit payments in Canada and elsewhere, the United Kingdom Supreme Court recently engaged in, in the words of Lord Clarke, “a wide-ranging discussion of the principles relevant to an aspect of unjust enrichment which has been the subject of lively debate among academics.” The Court considered whether restitution for services rendered in the absence of a contract could take into account the defendant’s opinion of the value of those services.  The Court held that it could – but only to decrease, not increase, the

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Apportioning Liability for a Single Loss Caused By Separate Breaches of Contract

Posted in Case Comments, Contracts, Torts

Contributory negligence legislation allows liability to be apportioned between tortfeasors – but what about defendants who are severally liable for a single loss caused by independent breaches of contract? In Petersen Pontiac Buick GMC (Alta.) Ltd. v. Campbell, 2013 ABCA 251, counsel for both parties could find no authority on the issue of apportioning liability between defendants when “a plaintiff suffers the same loss, caused by a breach of contract by one party and a breach of a different contract and negligence by another.” The Alberta Court of Appeal helped fill this gap by holding that the common

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More than “Lip Service” to Limited Liability: Personal Liability of Directors and Causation of Damages for Misrepresentation to Investors

Posted in Case Comments, Class Actions, Torts

Will a director or officer of a corporation or limited liability partnership be personally liable for the losses of investors who relied upon his or her inaccurate statements when deciding to invest in a corporate venture? What if the inaccurate statements did not involve matters that were proven to cause the investment losses?

The Alberta Court of Appeal recently considered these questions when overturning a trial decision which had held the directors of a failed slate quarry personally liable to investors for negligent misrepresentation. Hogarth v. Rocky Mountain Slate Inc., 2013 ABCA 57, emphasizes the importance of respecting the … Continue Reading