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Category Archives: Case Comments

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Pay Me Now: Court of Appeal Delivers Lessons on fiduciary duties, the business judgment rule, and executive compensation

Posted in Case Comments, Corporate Law

The business judgment of directors setting executive compensation was front and centre in the Ontario Court of Appeal’s recent decision in Unique Broadband Systems, Inc. (Re), 2014 ONCA 538 (UBS). Although the decision is based on unique underlying facts, it offers several important lessons on corporate governance.

Deemed Reliance in the U.S. Supreme Court

Posted in Case Comments, Class Actions, Securities

The following post on the Canadian Securities Regulatory Monitor blog may be of interest to readers of this blog: Deemed Reliance in the U.S. Supreme Court. On June 23, 2014 the United States Supreme Court issued its much-anticipated decision in Halliburton Co. v. Erica P. John Fund (“Halliburton”), as issuers and investors in the U.S…. → Read More

Halliburton: Deepening the Divide Between Certification of US and Canadian Securities Class Actions

Posted in Case Comments, Class Actions, Securities

Everyone has been talking about the recent decision from the US Supreme Court in Halliburton Co v Erica P. John Fund Inc (Halliburton) and its rulings regarding the “fraud on the market” doctrine in US securities class action litigation (previously reported on here and here). In Canada, many are likely wondering about the potential impact… → Read More

US Supreme Court Clarifies Law on Warrantless Cell Phone Searches. Will the Supreme Court of Canada Follow?

Posted in Case Comments, Charter of Rights, Criminal

Lower courts in both Canada and the US have been deeply divided on the application of their respective Supreme Courts’ precedents on whether the police need a warrant to search the contents of a smart/cell phone seized during a lawful arrest.  On June 25, 2014, the US Supreme Court unanimously settled US law in Riley… → Read More

Summary Judgment on Trial: Ontario Court of Appeal Revisits the Risks of Summary Adjudication

Posted in Case Comments, Procedure

In a recent decision, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, the Ontario Court of Appeal reiterates some of the risks of summary adjudication and reminds parties that, despite the enthusiasm for summary judgment endorsed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, summary judgment may not be appropriate… → Read More

The Aereo Decision – Canadian Content?

Posted in Case Comments, Intellectual Property

The following post on the snIP/ITs blog may be of interest to readers of this blog: The Aereo Decision – Canadian Content? On June 25, 2014, the United States Supreme Court ruled in a 6-3 decision in American Broadcasting Cos., Inc. et al v. Aereo, Inc. that Aereo’s Internet retransmission service infringes copyright. McCarthy Tétrault played a small… → Read More

Too Soon to Say Too Late? Reviewing a Tribunal’s decision to hear a late-filed complaint

Posted in Administrative, Case Comments

This month the British Columbia Court of Appeal provided guidance on two administrative law questions, one procedural and one substantive. The Court weighed in on when it is appropriate to review a preliminary decision of a tribunal before the hearing on the merits, and confirmed that where the tribunal decides to hear a late-filed complaint,… → Read More

A Supreme Cabinet of Appeal for Economic Tribunals?

Posted in Administrative, Case Comments, Transportation

The Supreme Court of Canada has released a much anticipated administrative law decision interpreting the scope of Cabinet’s powers to overrule tribunals. In Canadian National Railway Co. v. Canada (Attorney General), the Supreme Court clarified that reasonableness review applies to Ministerial decisions made pursuant to a “cluster” of economic regulatory statutes, including the Canada Transportation… → Read More

Class, Do Your Homework: Causation and Damages Methodologies at Certification

Posted in Case Comments, Class Actions, Corporate Law, Procedure, Torts

Overview In Andriuk v. Merrill Lynch Canada Inc., the Alberta Court of Appeal affirmed a certification judge’s decision that an action, commenced pursuant to Alberta’s Class Proceedings Act, did not meet the requirements for certification of a class proceeding, based on a failure to demonstrate a viable methodology for establishing causation and damages on a… → Read More

Simpler is Better: Third Party Claims Struck for Efficiency and Proportionality in Recent Court of Appeal Decision

Posted in Case Comments, Procedure, Torts

The “culture shift” to a more accessible civil justice system, as championed in Hryniak v. Mauldin, is alive and well. Courts are increasingly sensitive to the economy of cases, taking into account the efficiency and proportionality of substantive and procedural rights. Today’s emphasis is on reasonable not exhaustive measures. In O’Connor Associates Environmental Inc. v…. → Read More

There are times when you don’t want to make partner…

Posted in Case Comments, Labour and Employment, Professions

Overview Recently, the Supreme Court of Canada (“SCC”) and the Supreme Court of the United Kingdom (“UKSC”) both had cause to consider the nature of partnership, and when certain protections due to employees or workers are extended to partners. While the two cases presented very different scenarios – the Canadian case concerning human rights, and… → Read More

The Importance of Borders in a Borderless World: Ontario Court Stays Action for U.S. Transportation Taxes

Posted in Case Comments, Class Actions, Conflict of Laws, Tax

In Prince v. ACE Aviation Holdings Inc., the Ontario Court of Appeal stayed a class action based on allegations that Air Canada had improperly collected transportation taxes levied under the U.S. Internal Revenue Code (the “Code”). The Court’s decision highlights the difficulty in predicting the outcome of jurisdictional disputes involving e-commerce transactions. In addition, it… → Read More

Explain yourself! The Ontario Court of Appeal Reminds Us of the Importance of Reasons in Barbieri v. Mastronardi

Posted in Case Comments, Procedure

Overview Recently, the Ontario Court of Appeal reminded us of the importance of reasons for judgment in Barbieri v. Mastronardi. A unanimous Court allowed an appeal from an order granting summary judgment to a plaintiff who sued for breach of contract and negligence, holding that the lack of sufficient reasons in the motion judge’s endorsement… → Read More

A little knowledge is a dangerous thing…because it calls for reasonable diligence

Posted in Case Comments, Securities

The British Columbia Court of Appeal recently released a helpful decision applying principles of discoverability to determine when a limitation period begins to run. In Roberts v. E. Sands & Associates Inc., 2014 BCCA 122, the Court rejected 650 claims against a bankrupt investment firm on the basis that these claims were made after the… → Read More

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… → Read More

Price Tags on Competition are a Restraint of Trade: The Functional Approach to Permissive Non-Compete Clauses Prevails in British Columbia

Posted in Case Comments, Contracts, Labour and Employment

In Rhebergen v. Creston Veterinary Clinic Ltd., 2014 BCCA 97, the British Columbia Court of Appeal granted the appeal of an employer veterinary clinic, Creston Veterinary Clinic (“CVC”), from a Supreme Court of British Columbia decision declaring unenforceable a contract clause requiring its employee, Dr. Stephanie Rhebergen, to pay CVC a prescribed amount in the… → Read More

Summary Judgment – The Cultural Shift Has Started

Posted in Case Comments, Class Actions, Energy, Manufacturing, Torts

Earlier this year we discussed on this blog the new “sufficient appreciation test” set out by the Supreme Court in Hryniak v. Mauldin, which really represents a cultural shift in the availability of summary judgment to the parties. In Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108, the Alberta Court of Appeal applied the… → Read More

Caution: An Entire Agreement Clause May Have Greater Implications Than Expected

Posted in Case Comments, Contracts, Corporate Law

At issue in One West Holdings Ltd. v Greata Ranch Holdings Corp. et al. was whether an entire agreement clause which referred to multiple contracts could be used to incorporate an arbitration clause from one of the other contracts. The British Columbia Court of Appeal held that it could despite the fact that the contracts involved… → Read More

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… → Read More

Beware: When Investors Act Tardily in Denouncing Suspect Movements in their Brokerage Accounts, They Have only Themselves to Blame

Posted in Case Comments, Securities

On February 11, 2014, the Quebec Court of Appeal rendered its judgment in Succession Huppé c. Valeurs mobilières Banque Laurentienne, 2014 QCCA 294 confirming a judgment of the Superior Court which had rejected an investor’s claim against his investment advisor and the latter’s brokerage firm because the investor had waited too long before denouncing the… → Read More

Multi-Jurisdictional Class Actions: The Creation of Barriers by the BC Court of Appeal

Posted in Case Comments, Class Actions, Constitutional

In a surprise decision, the British Columbia Court of Appeal has broken with the superior courts of British Columbia, Ontario and Quebec by holding that constitutional limits prevent a superior court judge from sitting outside of his own province. The Court of Appeal’s decision suggests limits to the inherent jurisdiction and discretion of superior courts… → Read More

Securities Secondary Market Liability in Quebec To Be Discussed by the Supreme Court of Canada

Posted in Case Comments, Case Previews, Class Actions, Securities

On February 20, 2014, the Supreme Court of Canada granted leave to appeal from the first decision from the Québec Court of Appeal on the statutory secondary market liability regime adopted in 2007, pursuant to a reform of the Quebec Securities Act, R.S.Q. c. V-1.1 (“QSA”). Material Facts Under the QSA, Theratechnologies inc. (“Thera”) is… → Read More

Piercing the corporate veil may be easier than you think

Posted in Case Comments, Contracts, Corporate Law

How do corporate and personal liability intersect in a corporation that has only one officer, director and shareholder?  In the recent Shoppers Drug Mart v. 6470360 Canada Inc. case, the Court of Appeal helped to clarify when the person behind the corporation will be found liable. Background In October 2005, Shoppers Drug Mart (“Shoppers”) contracted… → Read More