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

Category Archives: Case Comments

Subscribe to Case Comments RSS Feed

You Only Get to Eat What You Kill: Real Estate Brokers as Hunters and Brokerage Contracts as Hunting Licences

Posted in Case Comments, Civil Litigation, Real Property

Anyone involved or interested in commercial real estate should be aware of the relatively recent decision of the Supreme Court of Canada (SCC) in Société en commandite Place Mullins v Services immobiliers Diane Bisson inc, mentioned briefly in two prior blog posts, here and here. Although the Supreme Court reviewed a decision of the Quebec Court of Appeal involving a standard brokerage agreement in Quebec, the decision may arguably have wider application, including in Alberta.

In a unanimous decision authored by Wagner J. the Court explains well what constitutes an “agreement to sell” in the context of a … Continue Reading

What’s the “Connection”? Ontario Court of Appeal Confirms Continuing Divide Between Jurisdiction and Choice of Law

Posted in Case Comments, Contracts

Two companies based in different provinces enter into a contract. One company sues the other for breach of that contract. If the contract does not say which province’s laws govern the agreement, how does a court determine which law to apply? The Ontario Court of Appeal recently addressed this question – the choice of law rule for contracts – in Lilydale Cooperative Limited v. Meyn Canada Inc. (“Lilydale”).[1]

Fire in A Poultry PlantContinue Reading

More Than One Way To Skin A Privacy Breach: The Ontario Court of Appeal ‘s Decision in Hopkins v. Kay

Posted in Case Comments, Privacy

Background

Earlier this year, the Ontario Court of Appeal released its decision in Hopkins v. Kay, 2015 ONCA 112, in which it held that the mere existence of a legislative scheme to address privacy-related breaches of personal health information does not preclude a private action from being brought to address said breaches.… Continue Reading

Liability for Opinions: Omnicare’s Lessons for Canadian Securities Lawyers

Posted in Case Comments, Civil Litigation, Securities

When might a wrong opinion give rise to prospectus misrepresentation? The U.S. Supreme Court recently addressed this question in its much-anticipated decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund.[1] Its answer provides a useful point of comparison and discussion for Canadian securities lawyers.… Continue Reading

“I don’t wanna hear it!” Supreme Court affirms Federal Court’s refusal to exercise jurisdiction in Strickland v Canada (Attorney General)

Posted in Case Comments, Civil Procedure/Evidence

Parliament created the Federal Courts system in 1970 to consolidate judicial supervision of federal boards, commissions and tribunals. The goal was to reduce the multiplicity of inconsistent judicial review rulings in provincial superior courts across the country. The Federal Courts Act hence gives the Federal Courts “exclusive original jurisdiction” to grant judicial review remedies against federal boards, commissions and tribunals (e.g., quashing a Minister’s decision). But can superior courts grant such remedies too? And if so, how is a litigant to know when to go to the Federal Court, and when to go to a superior court? The Supreme Court … Continue Reading

Have Mercy! Supreme Court Clarifies Mercy Power under Criminal Code

Posted in Administrative, Case Comments, Criminal

In “Burning Love”, Elvis pleaded with the Lord to have mercy. It was coming closer. The flames were lickin’ his body. He felt like he was slipping away. It was hard to breathe. His chest was a heavy. He was burning a hole where he lay. Burning a hole with burning love. In short, Elvis was just a hunk. A hunk of burning love.[1]Continue Reading

The Ontario Court of Appeal Finds Franchise Disclosure Document Fatally Deficient

Posted in Case Comments, Franchise and Distribution

On McCarthy Tétrault LLP’s Consumer & Retail Advisor blog, Helen Fotinos, Sam Khajeei and Adam Ship recently published a helpful discussion of the Ontario Court of Appeal’s decision in 2240802 Ontario Inc. v Springdale Pizza Depot Ltd., which will be of interest to readers of the Canadian Appeals Monitor.… Continue Reading

More Oil for a Slippery Slope: Quebec Court of Appeal Authorizes Class Action Against the Vehicle Manufacturer KIA

Posted in Case Comments, Civil Litigation, Class Actions, Manufacturing, Quebec Court of Appeal

On June 12th, in Martel c. KIA Canada inc. (2015 QCCA 1033), the Quebec Court of Appeal reversed a ruling of the Superior Court which had refused to authorize a class action against the vehicle manufacturer, KIA, for allegedly misrepresenting the frequency of servicing necessary for the proper maintenance of its vehicles. Looking for an economical vehicle, the Petitioner, Thérèse Martel, had purchased a KIA based on representations made in its official manual that servicing would be required only every 12,000 km. Having brought her vehicle in for its first inspection, however, Ms. Martel was informed by the dealer … Continue Reading

Melting Pot or Mosaic? The Ongoing Culture Shift since Hryniak

Posted in Case Comments, Civil Procedure/Evidence, Procedural Rights, Procedure

Over the past year, courts across Canada have responded to the Supreme Court of Canada’s clarion call in Hryniak v Mauldin (“Hryniak”) for a culture shift to promote access to justice including through summary judgment.[1] The latest word on this front has come from the Alberta Court of Appeal in two recent decisions which seemingly conflict on the threshold to be applied to summary judgment applications.[2] The inherent tension created by Hryniak in Alberta is that the summary judgment rule (Rule 7.3) reflects the 2006 views of the Supreme Court of Canada: that such applications should be used … Continue Reading

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.

BackgroundContinue 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”).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