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Category Archives: Case Comments

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What Lies Beneath: The Unexpected Reach of Litigation Privilege

Posted in Case Comments, Civil Procedure/Evidence

In an interesting decision clarifying the reach of litigation privilege, the British Columbia Court of Appeal in No Limits Sportswear Inc. v. 0912139 B.C. Ltd., 2015 BCCA 193, has recently held that litigation privilege extends to communications between formerly adverse parties who have settled their dispute and are cooperating against a remaining co-defendant, even where the pleadings have not yet been amended to reflect this new reality.

Background

No Limits Sportswear Inc. (“No Limits”) manufactures and distributes men’s underwear products under the name “Saxx”, designed and produced by Saxx Apparel Ltd., now a subsidiary of No Limits. Respondents 0912139 … Continue Reading

The “Bright Line” Rule is dimmed by the Alberta Court of Appeal in Statesman

Posted in Case Comments, Construction and Real Estate, Corporate Law, Professions

Joint retainers are common in modern legal practice. But what happens when a dispute is brewing between two parties represented by the same law firm? How is a lawyer to know when the “bright line” of conflict of interest has been crossed? And when the duty of loyalty to a client is breached, when is disqualification of the law firm an appropriate remedy? The Alberta Court of Appeal addressed these issues in Statesman Master Builders Inc v Bennett Jones LLP, 2015 ABCA 142 (“Statesman”).

I. Background

Matco Investments Ltd. (“Matco”) had used the same law … Continue Reading

Solicitor-Client Privilege Wins Again Court of Appeal Endorses Restrictive Statutory Interpretation in University of Calgary v JR

Posted in Case Comments, Solicitor-Client Privilege

The privileged position that solicitor-client privilege occupies in our legal system was recently reiterated and reinforced in the context of access to information requests in University of Calgary v JR. On April 2, 2015, the Alberta Court of Appeal considered the authority delegated to the Office of the Information and Privacy Commissioner (“OIPC”) as it went head to head against solicitor-client privilege.[1]

OverviewContinue Reading

To Comply or Not to Comply? When Experts Fall Outside the Scope of Rule 53.03

Posted in Case Comments, Civil Procedure/Evidence

On March 26, 2015, the Ontario Court of Appeal released its decision in Westerhof v. Gee Estate concurrently with its companion case McCallum v. Baker[1]. Both decisions were heard at the same time as Moore v. Getahun[2] and, together, form what has been referred to as the Expert Evidence Trilogy (“Trilogy”).

There was an exceptional degree of interest by the Ontario bar in the Trilogy, with six parties intervening in the appeals: The Advocates’ Society; The Holland Group; the Ontario Trial Lawyers Association; the Canadian Defence Lawyers Association; the Canadian Institute of Continue Reading

Court of Appeal Rules on Privilege over Regulator’s Investigation File

Posted in Case Comments, Class Actions

Does privilege shield a regulator’s investigation file that has not been produced to a respondent? The Ontario Court of Appeal recently grappled with whether or not to compel a regulator to produce its investigation file of its member to plaintiffs in a class action against that member. There are important lessons in the Court’s determination that case-by-case privilege did not apply in the circumstances. Nevertheless, the Court held that plaintiffs did not need the regulator’s documents to prove their allegations in the class action, and on that basis declined to order production.… Continue Reading

Screening Secondary Market Liability Actions: the Supreme Court Raises the Bar for Plaintiffs

Posted in Case Comments, Class Actions, Securities

On April 17, 2015, the Supreme Court of Canada (SCC) rendered its opinion in Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18 (Theratechnologies), its first decision on the Quebec statutory secondary market liability regime adopted in 2007 pursuant to a reform of the Quebec Securities Act (QSA).  Like its sister statutes in other provinces, although the QSA regime facilitates a plaintiff’s burden, mostly by presuming that variation in market price is linked to a misinformation or omission, it also imposes an authorization process under which a claimant must establish that its action is brought in good … Continue Reading

Negligence of Public Authorities – “We have been using a screwdriver to turn a bolt”, Federal Court of Appeal says

Posted in Administrative, Case Comments

The majority decision (Stratas and Nadon, J.A.) of the Federal Court of Appeal (“FCA”) in Paradis Honey Ltd. v. Canada, 2015 FCA 89 calls for a complete overhaul of the law governing public authority liability. In a surprising obiter, the Court expressed its view that the well-known analytical framework used for negligence is an anomaly when applied to public authorities, and that the last decades of case law using private law tools to solve public law problems should be revisited. The case can be seen as an open invitation for the Supreme Court of Canada to grant leave … Continue Reading

Like a prayer: How the Supreme Court’s freedom of religion decision in Saguenay affects administrative law and the admissibility of expert evidence

Posted in Administrative, Case Comments, Civil Procedure/Evidence

The Supreme Court of Canada’s recent decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (“Saguenay”) is undoubtedly of interest to all Canadians with respect to the Court’s conclusion ordering a municipality and its mayor to cease the recitation of a prayer at city council meetings, on the basis that it breached the state’s duty of neutrality and was thus a discriminatory interference with an individual’s freedom of conscience and religion.… Continue Reading

Ontario Court of Appeal refuses to read down or sever general release clause in franchise agreement

Posted in Case Comments, Franchise and Distribution

The following post by Brooke MacKenzie on our Consumer & Retail Advisor Blog may be of interest to our readers: Ontario Court of Appeal refuses to read down or sever general release clause in franchise agreement

This post addresses the Ontario Court of Appeal’s decision in 2176693 Ontario Ltd. v. Cora Franchise Group Inc, 2015 ONCA 152, upholding a decision striking down a general release clause in a franchise agreement on the basis of section 11 of the Arthur Wishart Act (Franchise Disclosure), 2000, SO 2000, c 3, which provides that any purported release of a franchisee’s statutory … Continue Reading

Ontario Court of Appeal Again Narrowly Interprets the Resale Exemption in Ontario’s Franchise Legislation

Posted in Case Comments, Franchise and Distribution

The following post by Adam Ship and Brooke MacKenzie on our Consumer & Retail Advisor Blog may be of interest to our readers: Ontario Court of Appeal Again Narrowly Interprets the Resale Exemption in Ontario’s Franchise Legislation.

The post addresses the Ontario Court of Appeal’s decision in 2147191 Ontario Inc. v. Springdale Pizza Depot Ltd., 2015 ONCA 116, upholding a finding on summary judgment that a franchisor could not rely on the “resale exemption” from the disclosure requirements found in Ontario’s franchise legislation, the Arthur Wishart Act (Franchise Disclosure), 2000, SO 2000, c 3.… Continue Reading

The B.C. Court of Appeal on Implied Waiver of Privilege: Do Process LP v. Infokey Software Inc., 2015 BCCA 52

Posted in Case Comments, Civil Procedure/Evidence

This post by OnPoint Legal Research may be of interest to readers of this blog. The article addresses the B.C. Court of Appeal’s recent decision, Do Process LP v. Infokey Software Inc., 2015 BCCA 52, which established an important point of law – namely, an affirmative plea of an absence of legal advice made in conjunction with a plea of duress, which is said to render an agreement unenforceable, constitutes an implied waiver of privilege over legal advice previously received on the subject of the agreement. This article also includes comments from counsel on both sides of the appeal, … Continue Reading

BC Court of Appeal Rules Bhasin Framework is Distinct from Implication of Contract Terms for Business Efficacy

Posted in Case Comments, Contracts

A few months ago, the Supreme Court of Canada released its decision in Bhasin v Hrynew, a precedent-setting judgment, recognizing a general organizing principle of good faith in contract law.[1] More recently, the BC Court of Appeal in Moulton Contracting Limited v. British Columbia,[2] considered and elaborated upon Justice Cromwell’s discussion in Bhasin about the doctrines of good faith and implied contractual terms for “business efficacy,” clarifying that the two frameworks are distinct and not to be conflated.… Continue Reading

Two Big Wins for Unions at the SCC

Posted in Case Comments, Charter of Rights, Constitutional, Labour and Employment

Earlier this year, the Supreme Court of Canada delivered a pair of big wins to Canadian unions. Both judgments relate to public sector unions, but may have important implications for labour law more generally. In both cases, the Court has undermined its own precedent.

Mounted Police Association of Ontario v. Canada (Attorney General)Continue Reading

The Court as tie-breaker: Atomic Energy and how “persistent discord” begets a correctness standard of review

Posted in Administrative, Case Comments

In its recent decision in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, the Federal Court of Appeal held that the rule of law can require the Court to apply a correctness standard of review to administrative decisions concerning the interpretation of the governing statute in certain cases, such as where adjudicators have long held conflicting interpretations of a particular provision.

Acknowledging that a labour adjudicator’s interpretation of a labour statute would be typically subject to a reasonableness review, the Court held that, where adjudicators have disagreed on a point of statutory interpretation for many years, the … 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

Supreme Court Overrules Rodriguez; Physician-Assisted Death Legal in Canada

Posted in Case Comments, Supreme Court of Canada

Physician-assisted death is permissible in Canada, for competent adults who: (1) clearly consent to the termination of life; and (2) have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of their condition. In Carter v. Canada (Attorney General),[1] a unanimous Supreme Court of Canada overruled its 1993 decision in Rodriguez v. British Columbia,[2] in which a majority of the Court upheld the blanket prohibition on assisted suicide.… Continue Reading

SCC Undoes the Competition Tribunal and FCA Decisions in Tervita

Confirms Tribunal Cannot Try to Predict the Future or Weigh Undetermined Effects to Prevent Competition

Posted in Case Comments, Competition

The highly anticipated judgment of the Supreme Court of Canada (SCC) in Tervita Corporation, et al v Commissioner of Competition is finally here (leave was granted back in July 2013 and argument heard in March 2014; reported on previously here and here).  Many expressed concerns about potential problems arising from the Tribunal and Federal Court of Appeal (FCA) decisions in this case, including greater complications and less predictability in merger assessment and the reach of the Bureau, regardless of the size of the merger.  The SCC decision seems to have brought some clarity and addresses the central problematic aspects … Continue Reading

Ontario Court of Appeal Confirms Privilege Over Counsel and Expert Communications

Posted in Case Comments, Civil Procedure/Evidence

A little over one year ago, the Ontario Superior Court’s decision in Moore v. Getahun sent a chill through the litigation bar in Ontario. During a medical negligence trial, the trial judge criticized an expert witness for discussing a draft expert report with counsel and required disclosure of all his drafts and notes of his communications with counsel during the course of the trial.[1] The Court of Appeal’s decision has been among the most eagerly anticipated appellate decisions of this year. The decision, released on January 29th, confirms and clarifies the law prior to the trial … Continue Reading

The Ontario Court of Appeal Confirms Scrutiny for Leave in Securities Class Actions

Posted in Case Comments, Class Actions, Securities

At the end of 2005, Ontario legislation came into effect which enabled aggrieved shareholders to bring a statutory action for secondary market misrepresentation against issuers and their directors and officers (and others) without the requirement to establish individual reliance. In order to commence such an action, however, a shareholder must first obtain leave from the Superior Court. Much of the jurisprudence in secondary market securities class actions has been devoted to examining the standard for leave.… Continue Reading

10 Most Important Appeals of 2014

Posted in Case Comments, Features

The Appeals Monitor is pleased to present our annual review of the most significant appeals of the past year that can be expected to impact Canadian businesses for years to come.

In Kaynes v BP, PLC, 2014 ONCA 580 (previously discussed here), the Court of Appeal for Ontario stayed a proposed secondary market securities class action due to forum non conveniens. Although the Court held that Ontario could assume jurisdiction over claims by Canadian residents who had purchased securities on foreign exchanges, it held Ontario should nonetheless decline jurisdiction as foreign courts were “clearly more appropriate” venues.… Continue Reading

Ontario Court of Appeal Clarifies Test To Be Applied At Rule 48.14 Status Hearings

Posted in Case Comments, Procedure

In Kara v. Arnold, 2014 ONCA 871, the Ontario Court of Appeal seized an opportunity to revisit its recent jurisprudence regarding status hearings and to clarify the interrelation between its recent status hearing decisions (i.e., 1196158 Ontario Inc.[1] and Faris[2]) and the line of jurisprudential authority stemming from motions to set aside registrar’s dismissals for delay (i.e. Scaini [3]) which call for an overarching “contextual approach” to determine what outcome is just in the circumstances.… Continue Reading

Apprehending Reasonable Apprehension of Bias

Three Recent Reasonable Apprehension of Bias Findings by the Ontario Court of Appeal

Posted in Case Comments

Careful observers may have noticed that the Ontario Court of Appeal has allowed three civil appeals on the basis of reasonable apprehension of bias in the last few months.  This presents an opportunity to reflect on what conduct constitutes reasonable apprehension of bias and what it means for an appeal court to make such a finding.

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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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