Category Archives: Procedure

U.S. Supreme Court Refuses to Adopt a Bright-Line Rule on Limitation Periods for Corporate Insider Profit Claims

By Sarah Shody on May 3rd, 2012 Posted in Corporate Law, Procedure, Securities Law

There is little law in Canada regarding if and how limitation periods applicable to statutory causes of actions in securities legislation can be tolled. For many public companies, this can create uncertainty regarding whether investor lawsuits are statute-barred. For example, the limitation period in s. 138 of the Ontario Securities Act, which covers causes of… → Read More

Order in the Court? The Van Breda Trilogy – Part II – A New Test for Jurisdiction Simpliciter

By Brandon Kain, Elder C. Marques and Byron Shaw on April 26th, 2012 Posted in Conflict of Laws, Media, Procedure, Torts

The Supreme Court of Canada’s Van Breda Trilogy – and its judgment in Van Breda in particular – endorses a new approach to jurisdiction simpliciter focused on categories of prima facie jurisdiction. Building on the Ontario Court of Appeal’s judgment, which revised the old Muscutt test, the Court has attempted to introduce greater clarity and… → Read More

Order in the Court? The Van Breda Trilogy – Part I – An Overview

By Brandon Kain, Elder C. Marques and Byron Shaw on April 19th, 2012 Posted in Conflict of Laws, Constitutional, Procedure, Torts

Order in the Court? The Van Breda Trilogy – Part I – An Overview In three cases released on April 18, 2012, the Supreme Court of Canada substantially reformulated the common law principles of private international law. In the coming weeks, Canadian Appeals Monitor will provide in-depth coverage of the Court’s judgments in Van Breda,… → Read More

How Momentous is This? New SCC Ruling on Forum Selection and Arbitration Clauses

By Elder C. Marques on April 10th, 2012 Posted in Alternative Dispute Resolution, Conflict of Laws, Contracts, Procedure

In twelve short paragraphs, the Supreme Court of Canada’s new judgment in Momentous provides helpful guidance on the question of whether a motion to dismiss on jurisdictional grounds may be brought after the delivery of a Statement of Defence. The Court also reaffirms the centrality and uniqueness of the “strong cause” test where a jurisdictional… → Read More

FCA Narrows the Limitation Period Defence in Civil Competition Act Claims

By Ronald Podolny and Brandon Kain on March 6th, 2012 Posted in Class Actions, Competition, Procedure

Introduction The Federal Court of Appeal has ruled that the “ongoing effects” of a conspiracy do not extend the applicable limitation period for the purposes of a civil action brought under section 36(1) of the Competition Act for a criminal conspiracy contrary to section 45(1). The Court of Appeal’s affirmation of the lower Court’s decision also… → Read More

BCCA May Consider the Test for Leave to Commence an Action Pursuant to the New Secondary Market Liability Provisions

By Angela Juba and Nicholas Isaac on February 15th, 2012 Posted in Financial Services, Procedure, Torts

The British Columbia Court of Appeal may soon consider the test for a purchaser or vendor in the “secondary market” to obtain leave to commence an action for misrepresentation under Part 16.1 the BC Securities Act. Leave to appeal has been filed by the plaintiff in Round v. MacDonald, Dettwiler and Associates Ltd. This will… → Read More

ONCA to Consider Application of Deemed Undertaking Rule to Producing-Party’s Own Lawyer

By Adam Ship on February 15th, 2012 Posted in Procedure, Professions

In Sobeski v. Mamo, now on appeal to the Ontario Court of Appeal, Justice Perell heard a motion by a defendant in a defamation action for relief from the deemed undertaking rule. Background The defendant in the defamation action was a lawyer who, in a previous piece of litigation, had represented the opposing party to… → Read More

ONCA to Consider Whether Non-Party to Arbitration Agreement Can Move to Stay

By Byron Shaw on February 13th, 2012 Posted in Procedure

In Shaw Satellite G.P. (c.o.b. Shaw Direct) v. Pieckenhagen, Perell J. concluded that a defendant who denies that it is a party to an arbitration agreement has no ability to move to stay an action in favour of arbitration pursuant to s. 7 of the Arbitration Act, 1991. In other words, you cannot have your… → Read More

U.S. Supreme Court Rules on Enforceability of Arbitration Clauses

By Ronald Podolny on January 30th, 2012 Posted in Class Actions, Contracts, Procedure, Torts

Introduction The United States Supreme Court has revisited the issue of whether a statute can override an arbitration clause in a consumer agreement. This time, at issue was the remedial legislation entitled Credit Repair Organization Act (“CROA”), which provides consumers with “the right to sue a credit repair organization” that violates the Act. Decisions Below… → Read More

A Full Appreciation of Rule 20: Ontario Court of Appeal Establishes New Test for Summary Judgment

By Byron Shaw on December 6th, 2011 Posted in Procedure

The Ontario Court of Appeal has now released its long-awaited reasons on the scope of the amended rule 20 of the Ontario Rules of Civil Procedure. In Combined Air Mechanical Services Inc. v. Flesch, the Court introduced a “full appreciation” test designed to provide guidance on the circumstances in which it will be appropriate for… → Read More

Ontario Divisional Court to Consider Whether Solicitor-Client Privilege Can be Waived on a Limited Basis

By Brendan Owen Brammall on December 1st, 2011 Posted in Procedure

The Ontario Divisional Court has granted leave to appeal in Kaganovsky v. 2057057 Ontario Inc., which raises an interesting question as to whether there can be a conditional or partial waiver of solicitor-client privilege with respect to communications with a lawyer that a party has put in issue. In other words, once the privilege has… → Read More

Don’t be an Ostrich: Justice Posner Opines on Appellate Advocacy in the 7th Circuit Court of Appeals

By Byron Shaw on November 25th, 2011 Posted in Procedure

The United States Court of Appeals for the Seventh Circuit released a decision on November 23, 2011 that literally illustrates an important point in appellate advocacy: don’t be an ostrich. Decision Monica del Carmen Gonzalez-Servin v. Ford Motor Company et al. was a consolidated appeal from two decisions concerning forum non conveniens motions. In No. 11-1665,… → Read More

U.S. Supreme Court Affirms a Policy Preference for Arbitration

By Ronald Podolny on November 23rd, 2011 Posted in Contracts, Procedure, Professions, Torts

The United States Supreme Court has allowed the appeal in KPMG LLP v. Robert Cocchi, reinforcing its policy preference for arbitrability, even in cases where some causes of action are arbitrable, while others are not. In particular, the Court stated that “[a] court may not issue a blanket refusal to compel arbitration merely on the… → Read More

Justice Watt’s Dos and Don’ts of Interventions: OCA Denies Leave to Intervene in Privacy Case

By Byron Shaw on November 20th, 2011 Posted in Procedure

This decision is a must read for hopeful intervenors. In his characteristic novella style, Justice Watt provides some helpful guidance on intervening at the Ontario Court of Appeal in Jones v. Tsige. Decision In a previous post, I commented on the significance of the main appeal in Jones v. Tsige, which was heard by the… → Read More

Evaluating the Van Breda Test for Jurisdiction: OCA Overturns Motion Judge in Dundee v. Marsland

By Byron Shaw on November 15th, 2011 Posted in Procedure

In a previous post, I discussed whether Ontario courts have jurisdiction over a claim for misappropriation of a foreign corporate opportunity, an issue raised in Dundee Precious Metals Inc. v. Marsland. The Ontario Court of Appeal has now answered that question in the affirmative, at least in terms of the specific facts at issue in… → Read More

OCA to Apply the Test for Jurisdiction…Again

By Byron Shaw on November 14th, 2011 Posted in Procedure

The Ontario Court of Appeal will have an opportunity to apply – and possibly reconsider – the test for jurisdiction yet again in an upcoming appeal from a decision of Justice Perell. Decision Below In Bond v. Brookfield Asset Management Inc., Justice Perell stayed a class action brought by a representative plaintiff, named Wanda Bond, an ”Internet… → Read More

OCA to Consider Principles for Replacing an Arbitrator for Bias

By Adam Ship on November 11th, 2011 Posted in Bankruptcy & Debt, Procedure

In Universal Settlements Inc. v. Duscio, Justice Lederer heard an application to set aside a number of arbitral orders and to replace an arbitrator on grounds of bias. The underlying proceeding was a shareholder’s dispute and oppression application made pursuant to a shareholders agreement containing an arbitration clause. During the currency of the arbitration, one… → Read More

Ontario Divisional Court to Consider Students’ Ability to Sue Schools on a Several Basis

By Brendan Owen Brammall on November 2nd, 2011 Posted in Class Actions, Procedure

The Ontario Divisional Court recently granted leave to appeal in Johnston v. Sheila Morrison Schools, a certified class action involving allegations of negligence and breach of fiduciary duty against a school and its headmaster. The primary issue on appeal is whether students may make claims against schools on a several basis and thereby avoid exposing… → Read More

U.S. Supreme Court to Consider Enforceability of Arbitration Clauses

By Ronald Podolny on October 19th, 2011 Posted in Bankruptcy & Debt, Class Actions, Procedure

The United States Supreme Court has agreed to revisit the issue of whether a statute can override an arbitration clause in a consumer agreement. This time, at issue is the remedial legislation entitled Credit Repair Organization Act (CROA), which provides consumers with “the right to sue a credit repair organization” that violates the Act. The… → Read More

BCCA Asked to Review Advance Costs Made Against Private Litigants in Charter Litigation

By Michael A. Feder on October 7th, 2011 Posted in Charter of Rights, Communications, Constitutional, Procedure

In Dish Network L.L.C. v. Rex, the Supreme Court of British Columbia took the rare step of ordering advance costs in a constitutional challenge. More surprisingly, the court ordered three private litigants to pay 50% of those costs. This case is now headed to the Court of Appeal for British Columbia. Mr. Rex sold satellite… → Read More

OCA Finds Judges Cannot Decide Issues Not Before the Court

By Michael Rosenberg on September 28th, 2011 Posted in Procedure

The latest round in a high-profile fight over National Hockey League sponsorship rights ultimately turned on a point of civil procedure and underscored need for judgments to be tied to the submissions of the parties. In turn, this decision provides an answer to the question of what to do when the judge reaches a conclusion… → Read More

Is “Prejudice” in Security for Costs Only One Factor to Consider?

By Curtis E. Marble on September 12th, 2011 Posted in Procedure

The Alberta Court of Appeal’s decision, denying leave to appeal in Autoweld Systems Ltd. v. CRC-Evans Pipeline International Inc., provides authority for maintaining a security for costs order against a company with few assets. This decision will prove a useful authority to clients wishing to stop litigation where the plaintiff is a party unable to pay a costs… → Read More

SCC to Consider the Relevance of Attornment to the Analysis of an Ontario Court’s Jurisdiction

By Brendan Owen Brammall on August 23rd, 2011 Posted in Procedure

Should an Ontario court refuse to assume jurisdiction over the plaintiffs’ claims in the face of choice of (foreign) forum and arbitration clauses, even though the non-Ontario defendants attorned to the jurisdiction of the Ontario court? The Supreme Court of Canada will examine this issue when it hears the appeal in Momentous.ca Corporation v. Canadian American Association… → Read More

Claims for Appropriation of a Foreign Corporate Opportunity: Do Ontario Courts Have Jurisdiction?

By Byron Shaw on August 8th, 2011 Posted in Corporate Law, Procedure

On August 23, 2011, the Ontario Court of Appeal will hear an appeal on the question of whether Ontario courts have jurisdiction over a claim for appropriation of a foreign opportunity. Decision Below In Dundee Precious Metals Inc. v. Marsland, Corrick J. dismissed a claim by an Ontario mining company, Dundee, against an employee, Marsland, on… → Read More