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Category Archives: Case Comments

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The Long Arm of the B.C. Securities Commission

Posted in Case Comments, Securities

In McCabe v. British Columbia (Securities Commission), 2016 BCCA 7, the B.C. Court of Appeal upheld the ability of the B.C. Securities Commission (the “Commission”) to penalize a resident of British Columbia for publishing misrepresentations about an American company in the United States. This case confirms the Court’s expansive approach to the Commission’s extraterritorial jurisdiction.

Background

Mr. McCabe is a British Columbia resident who published a monthly stock report through a company he controlled. Guinness Exploration Inc. (“Guinness”) is a company incorporated in Nevada. Its shares are quoted on the Over-the-Counter Bulletin Board in … Continue Reading

The Ontario Court of Appeal Declines to Extend the Doctrine of Unconscionability into the Performance of Contracts

Posted in Case Comments, Civil Litigation, Contracts

In the 14 months since the Supreme Court of Canada rendered its landmark decision in Bhasin v. Hrynew, 2014 SCC 71 [1] the general organizing principle of good faith in contract law has been applied in a very restrained manner by courts across Canada. The recent decision of the Ontario Court of Appeal in Bank of Montreal v. Javed, 2016 ONCA 49 is a further example of this trend.… Continue Reading

What’s in a Name?: BCCA Holds that a Bid Made in the Name of a Related Company is Non-Compliant

Posted in Case Comments, Civil Litigation

The recent case of M.G. Logging & Sons Ltd. v. British Columbia (Forests, Lands & Natural Resource Operations), 2015 BCCA 526 emphasizes the strict standards required for compliance in the tendering context, highlights the benefits and drawbacks of a discretion clause, and holds that owners do not have an obligation to resolve ambiguities in non-compliant bids.… Continue Reading

Ontario Court of Appeal Dismisses Pet Valu Class Action, Clarifies the Scope of the Duty of Good Faith and Fair Dealing and Calls for Greater Judicial Restraint

Posted in Case Comments, Civil Litigation, Class Actions, Franchise and Distribution

The recent decision of the Ontario Court of Appeal in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2016 ONCA 24 clarifies and narrows the scope of the duty of good faith and fair dealing imposed on franchisors under section 3 of the Arthur Wishart Act (Franchise Disclosure) (“AWA”) and expressly cautions against zealous judicial intervention in the framing and amendment of common issues in class action proceedings.… Continue Reading

Getting Around the Corporate Veil through Agency

Posted in Case Comments, Contracts

In the recent decision of 1196303 Ontario Inc v Glen Grove Suites Inc, 2015 ONCA 580, the Ontario Court of Appeal considered to what extent parties not privy to an agreement should be held liable for the obligations it creates.

In that case, 1196303 Ontario Inc. (“119”) entered into a settlement agreement with 1297475 Ontario Inc. (“129”), a shell corporation which was owned by Mrs. Sylvia Hyde. Mrs. Hyde was also the sole owner of Glen Grove Suites Inc. (“Glen Grove”), which owned valuable rental property. Mr. Edwin Hyde, who exercised de factoContinue Reading

Setting Limits: The Supreme Court Confirms a Robust Gatekeeper Approach to Secondary Market Liability Actions

Posted in Case Comments, Class Actions, Securities

In a much anticipated decision, the Supreme Court released its rulings in three Ontario securities class actions on December 4, 2015: Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (“Green”). This trilogy of secondary market class actions has been discussed extensively in previous postings on this blog (see this blog’s discussion of the Ontario Court of Appeal decisions, in the Top Ten Appeals to Watch in 2015 and in the SCC Monitor after the appeals were argued at the Supreme Court).… 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

Enforcing Limits: British Columbia Court of Appeal Weighs in on Limitation of Liability Clauses in Agency Context

Posted in Case Comments, Torts

The ability to contractually limit liability, such as tort liability, continues to be an area ripe for appellate courts to clarify.[1] There remains a degree of uncertainty about whether and when a limitation of liability clause will be enforceable. The latest development comes from the British Columbia Court of Appeal (“BCCA”) in Felty v Ernst & Young, which considered a limitation of liability clause in the context of an agency relationship.[2] In that case, the BCCA called the question of enforceability of so-called exclusion clauses “vexed”[3] but ultimately concluded that the clause in that case was enforceable: … Continue Reading

Supreme Court Revisits Test for Federal Paramountcy

Posted in Bankruptcy and Debt, Case Comments

The principle of federal paramountcy provides that valid provincial legislation will be rendered inoperative to the extent it conflicts with valid federal legislation where: (1) there is an operational conflict such that it is impossible to comply with both laws; or (2) operation of the provincial law frustrates the purpose of the federal law.[1]

Like many constitutional principles, the paramountcy test is easy to state yet more difficult to apply. According to the minority of the Supreme Court in Alberta (Attorney General) v. Moloney,[2] decided together with the companion case of 407 ETR Concession Co. v. Canada (Superintendent of Continue Reading

The Supreme Court clarifies the role and nature of the “prudence” test in Canadian utility regulation

Posted in Case Comments, Energy

Background

The Supreme Court of Canada recently released its highly anticipated decisions on utility regulation in Ontario Energy Board v. Ontario Power Generation Inc., 2015 SCC 44 (noted as an Appeal to Watch in 2015 here) and ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45 . These regulatory decisions analyzed a utility’s ability to recover operating and capital costs from consumers through rate-setting, and the methodology to be used in approving rate increases.… Continue Reading

Can you be contractually bound to another party forever?

Posted in Case Comments, Contracts

In Uniprix v. Gestion Gosselin et Bérubé Inc., 2015 QCCA 1427, the Quebec Court of Appeal addressed the previously unanswered question of whether the non-renewal clause in a fixed term contract may be stipulated to be for the benefit only of one of the contracting parties, such that in the eyes of the other contracting party the contract may in effect become perpetual.… Continue Reading

Defamation Law – Quebec Court of Appeal Reiterates the Fine Line Between Defamatory and Reasonably Fair Comments

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

Today we comment on a recent judgment of the Quebec Court of Appeal adding to the infinite quest for a fair balance between freedom of speech and protection of reputation. This case reiterates the fine line between a reasonably fair and a defamatory comment. Clients questioning the appropriateness of comments they are about to make in the public sphere are welcome to seek our opinion. As one of the parties in this case submitted a leave application to the Supreme Court of Canada, this case is being closely monitored.… 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

A Tale of Two Citruses: BCCA weighs in on when an abuse of process claim is ripe for determination

Posted in Case Comments, Civil Litigation, Intellectual Property

When will seeking injunctive relief against a non-party amount to abuse of process? At what stage in a proceeding should that determination be made? The British Columbia Court of Appeal addressed these questions in Tangerine Financial Products Limited Parternship v. The Reeves Family Trust, the result being that it is easier, both substantively and procedurally, for non-parties to oppose such remedies on a preliminary basis.… Continue Reading

ABCA Cements Limitation Period for Third Party Contribution Claims and Weighs in on Still Unsettled Test for Summary Dismissal

Posted in Case Comments, Civil Litigation

There has been a longstanding dispute, or at least uncertainty, about the limitation period for third party claims for contribution in Alberta stemming back over 40 years or so, despite numerous efforts of the courts and the Alberta legislature to remedy it. The judgment in Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc, has ended all uncertainty, hopefully for good. This decision affects litigation of all variety and is very important as it provides firm confirmation of the limitation period for third party claims for contribution, which are common and important to many actions.… Continue Reading

Chevron Corp v. Yaiguaje: SCC Decision Highlights Increased Litigation Risk for Canadian Companies for Misdeeds of their Foreign Affiliates

Posted in Case Comments, International rights

The Supreme Court of Canada’s most recent decision in Chevron Corp. v. Yaiguaje has significantly increased the litigation risk for companies with assets in Canada from plaintiffs seeking to enforce foreign judgments obtained against the foreign affiliates of such companies. The SCC decision in Chevron will have significant cross-border implications, as enforcement in Canada can now be pursued against foreign companies and their Canadian affiliates even if neither party to the original dispute has a “real and substantial” connection to Canada.… Continue Reading

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