With each new year comes a new slate of interesting appeals for Canadian businesses and professions. Without further ado, the Appeals Monitor is pleased to present our annual forecast of the top ten appeals to watch in 2016.… Continue Reading
“Those who cannot remember the past are condemned to repeat it”
– George Santayana
Over the holidays, many reflect over the past year in search of lessons learned for the coming year. In line with this tradition the Appeals Monitor is, once again, pleased to present our annual review of the most significant appeal decisions of the past year which we should be mindful of and which can be expected to impact Canadian employees and businesses for years to come.… Continue Reading
Canadian Appeals Monitor co-editor and litigation partner Elder Marques, together with business law partner Leila Rafi were guest-bloggers on the Cordell Parvin Blog last week, writing about The Client Revolution and Firm Reactions.
In Dupuy v. Gauthier 2013 QCCA 774, the Quebec Court of Appeal has confirmed that a person who possesses immovable property for 10 years can acquire ownership of it whether or not the possessor knew the property belonged to another.
In the instant case, a shed owned by the defendants, situated on their land, partially encroached on the land of the plaintiff, their neighbour. As a result of deterioration in the relations between the neighbours, the plaintiff sought and obtained in first instance an injunction to have the defendants move or demolish the shed to eliminate the encroachment. The … Continue Reading
I can’t predict the future and I don’t have respect for people who try to.
-Jackie Mason (1931-)
As part of the Appeals Monitor’s annual attempt to give lawyers something to talk about over the holidays other than the two traditional Canadian touchstones (weather and hockey), we are proud to once again this year present our top ten anticipated appeals for the new year. Of course, we can’t control what the judges will actually do with these cases, but we think these are the ones worth watching.
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
Canadian Appeals Monitor co-editor and litigation partner Elder Marques, together with business law partner Leila Rafi were guest-bloggers on the Cordell Parvin Blog this week, writing about some of their lessons from McCarthy Tétrault’s recent law firm retreat.
A recent ruling of the British Columbia Court of Appeal, A & G Investments Inc. v. 0915630 B.C. Ltd., 2014 BCCA 425, provides a useful primer on the available mechanisms for bringing a contract to an end. These include:
- the committing of a fundamental breach (leading to termination of the agreement if the breach is acted upon by the innocent party);
- the triggering of an express termination provision; and
- the acceptance by the innocent party of a repudiation (thereby causing the agreement to be rescinded).
For the Canadian class actions defence bar — which must occasionally feel disheartened by the unwavering enthusiasm with which our courts have championed class proceedings — the recent ruling in Eubank v. Pella Corporation (7th Cir. June 2, 2014) represents a breath of fresh air from south of the border.
Judge Richard Posner, speaking for a unanimous panel of the Seventh Circuit Court of Appeal, uses blunt and forthright language — alien to a Canadian ear — in acknowledging the risks to justice created by such proceedings. He places particular emphasis on the inherent conflicts faced by plaintiffs’ class counsel.… Continue Reading
The contractual doctrine of “fundamental breach” is both doctrinally complex and highly contextual. In Stearman v. Powers, 2013 BCCA 206, the Court concluded that, on the facts before it, a commercial tenant had not been justified in repudiating her lease and walking away from the premises, despite the fact that the building’s HVAC system filled her store with a foul odour.
While the case ultimately turned on its unique facts, the Court in Stearman provides useful guidance regarding the threshold for categorizing a problem with rented premises as a “fundamental breach” of contract, as well as the scope … Continue Reading
A recent decision involving solicitor’s negligence, Rajmohan v. Norman H. Solmon Family Trust, 2014 ONCA 352, required the Ontario Court of Appeal to consider two of the murkier issues relevant to limitations analysis — namely, (1) the doctrine of “fraudulent concealment” and (2) the doctrine of “special circumstances.”
It was alleged that a solicitor had been negligent in representing his client in a mortgage transaction. Because of the client’s intervening death, the claim was brought by the client’s estate. For that reason, the claim was subject to the absolute two-year limitation period under s-s. 38(3) of the Ontario … Continue Reading
Some causes of action are “continuing” in nature. Historically, torts such as trespass or nuisance have in some instances fallen into this category. More recently, Canadian courts have recognized that breaches of contract can also be continuing in nature, particularly in cases where the agreement calls for periodic payments that are dishonored. In essence, Canadian Courts have generally held that the failure to honor each of the scheduled periodic payments gives rise to a discrete, independent cause of action with its own limitation period.
The practical result of this approach has been that even if a claim for breach of … Continue Reading
Public corporations are required by law to provide continuous disclosure of information likely to be relevant to existing or potential shareholders. The directors of such corporations must be careful to ensure that such disclosure is timely and accurate, and that it cannot be characterized as misleading. In recent years, corporate press releases, issued in order to comply with this continuous disclosure obligation, have been the subject of considerable litigation, most notably securities class actions. In dismissing a claim alleging that such a press release was defamatory, a recent ruling of the British Columbia Court of Appeal — Merit Consultants … Continue Reading
Can a Court assume jurisdiction over a claim when there is no “real and substantial” connection between the claim, the defendant and the forum? The Ontario Court of Appeal recognized such a theoretical possibility, on the basis of the so-called “forum of necessity” doctrine, in its decision in Van Breda v. Village Resorts Ltd., 2010 ONCA 84. On further appeal, the Supreme Court of Canada did not directly address this doctrine but left room for its “possible application” in the future: 2012 SCC 17 at para. 100. The Ontario Court of Appeal recently revisited and defined the … Continue Reading
When complex commercial contracts have been drafted entirely by laypeople — without any input or advice from legal counsel — issues of interpretation can be a challenge. This is particularly true in circumstances where, years later, the parties themselves disagree as to specific elements of their agreement. In a recent ruling, Schmidt v. Wood, 2014 ABCA 80, the Alberta Court of Appeal demonstrates the efforts expected of a court in order to find a satisfactory construction of such agreements.… Continue Reading
A powerful tool in the litigation arsenal is the bringing of a motion to remove counsel from a file, either because she possesses disqualifying confidential information or faces a disqualifying conflict of duty. A recent ruling of the Federal Court of Appeal, Valeant Canada LP v. Canada, 2014 FCA 50, confirms that even a party’s in-house counsel is potentially vulnerable to such an attack.… Continue Reading
Can a private corporation decline to provide audited financial statements to its shareholders without their unanimous consent on the ground that it is too expensive for it to do so? The British Columbia Court of Appeal recently addressed this question in Li v. Global Chinese Press Inc, 2014 BCCA 53, and held that the answer is no, at least for companies that are incorporated under the Canada Business Corporations Act (“CBCA“). The decision in Li is an important appellate clarification of this point, and is one that private corporations should bear in mind in their dealings … Continue Reading
The Nova Scotia Court of Appeal recently grappled with questions of relevance, proportionality and privacy in the context of whether or not to order the production of electronic information.
The court in Laushway v. Messervey, 2014 NSCA 7 affirmed an order requiring a plaintiff to produce a hard drive for forensic review because it contained metadata (essentially data about data) which could show how much time the plaintiff spent at his computer, a point central to his lost income claim.… Continue Reading
Can a party that has not signed an agreement containing a forum selection clause nevertheless be bound by it? The Ontario Court of Appeal addressed this question in Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725. The Court in Aldo contemplated the application of forum selection clauses to third parties in limited circumstances.
The salient facts of the decision in Aldo are as follows. MasterCard entered into a license agreement with a Bank, allowing the Bank to issue credit cards (the “License Agreement”). The License Agreement contained a forum selection clause identifying New York as the … Continue Reading
A recent ruling of the Ontario Court of Appeal, McConnell v. Huxtable, 2014 ONCA 86, provides useful clarification of two potentially complex questions — (1) The limitation period applicable to a claim for a constructive trust based on unjust enrichment, and (2) the sometimes confusing overlap between the Ontario Limitations Act, 2002 and the Ontario Real Property Limitations Act.
The appeal flowed from a family law dispute. The male appellant had owned a number of properties (held in his own name) during the time the parties were a couple. The female respondent argued that she had contributed … Continue Reading
A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP
The contours of the tort of unlawful interference with economic relations have, heretofore, been “unsettled”, “confusing” and “inconsistent”. The tort essentially provides redress when party “A” intentionally inflicts economic injury on party “B” by use of unlawful means against party “C”. What is the nature of the “unlawful” activity that can ground the tort? What degree of intentionality is required to give rise to the tort? Is the tort available concurrently with other causes of action? These are the central questions that the Supreme Court of … Continue Reading
The British Columbia Court of Appeal has released an important new judgment overturning the certification of a medical products class action: Wakelam v. Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc., 2014 BCCA 36. The decision in Wakelam holds that common law restitutionary remedies, including waiver of tort, are not available for breaches of either the Competition Act or the B.C. Business Practices and Consumer Protection Act (“BPA“), and confirms that proof of causation is required to obtain damages under each of these statutes. At the same time, Wakelam rejects the argument that the BPA is constitutionally … Continue Reading
A recent ruling of the British Columbia Court of Appeal — Byatt International SA v. Canworld Shipping Company Limited, 2013 BCCA 558 — provides useful guidance regarding the unique test to be applied on a motion to stay an appeal court’s ruling, pending the conclusion of a leave-to-appeal application before the Supreme Court of Canada. In so doing, the BCCA also shed indirect (but useful) light on the somewhat opaque test applied by the SCC in determining such applications for leave to appeal.
As is well known, most appeals to the Supreme Court of Canada can only be commenced … Continue Reading
The facts underlying a recent ruling, TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, read like a law school exam question — i.e., when the business carried on by a manufacturer of delicate lighting fixtures is disrupted by air-borne dust caused by the activities of its neighbour, a trucking company, is the lighting company permitted to sue in either nuisance or trespass? Is the lighting company’s particular sensitivity to dust relevant in assessing whether or not there has been “unreasonable interference” with its use of its lands? What is the proper scope of damages recoverable … Continue Reading