In Smithies Holdings Inc. v. RCV Holdings Ltd., 2017 BCCA 177, the BC Court of Appeal considered whether special costs can be awarded based on pre-litigation conduct. The Court reviewed the conflicting jurisprudence and unanimously concluded that a bright line should be drawn: pre-litigation conduct should not be considered in determining whether to award special costs.… Continue Reading
“Can a litigant challenge the constitutional validity of subordinate legislation such as a provincial regulation by bringing an application under Rule 14.05 in Superior Court or is she required to proceed by way of an application for judicial review in the Divisional Court?” Justice Belobaba says “Yes” in Di Cienzo v. Attorney General of Ontario.… Continue Reading
On February 23, 2017, the Supreme Court of Canada refused leave to appeal the Court of Appeal’s decision in Xela Enterprises Ltd. v. Castillo: a case in which the Court determined that it is acceptable to serve parties in accordance with the Rules of Civil Procedure in states that are not signatories to the Hague Convention.… Continue Reading
In a decision released on December 8, 2016, the Ontario Court of Appeal allowed an appeal from partial summary judgment, holding that issues of indeterminate auditor liability should proceed to trial.
In 1998, an accounting fraud was discovered at Philip Services Corp. (“Philip”), a publicly traded company. The Plaintiffs alleged that Philip’s auditors, Deloitte and Deloitte Touche Tohmatsu (“Deloitte”) gave unqualified opinions in connection with its audits of Philip’s consolidated financial statements for the financial years ending December 31, 1995 and 1996.… Continue Reading
The purpose of a pre-trial conference is to provide parties with a forum to obtain an appraisal from a judge of their respective positions on the outstanding issues between them, and provide an opportunity to openly negotiate a resolution of these issues. The ability of the parties to speak freely without concern that their positions in the litigation will be prejudiced is protected by Rules 50.09 and 50.10 of the Rules of Civil Procedure, which provide that (i) the statements made at a pre-trial conference cannot be used in the proceedings, and (ii) the pre-trial conference judge cannot preside … Continue Reading
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. 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. 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
In Kara v. Arnold, 2014 ONCA 871, the Ontario Court of Appeal seized an opportunity to revisit its recent jurisprudence regarding status hearings and to clarify the interrelation between its recent status hearing decisions (i.e., 1196158 Ontario Inc. and Faris) and the line of jurisprudential authority stemming from motions to set aside registrar’s dismissals for delay (i.e. Scaini ) which call for an overarching “contextual approach” to determine what outcome is just in the circumstances.… Continue Reading
In R. v. Mian, the Supreme Court provided extensive comment on when an “appellate court can disrupt the adversarial system and raise a ground of appeal on its own” initiative.
The Court established a new test for the exercise of appellate courts’ discretion to raise a new issue on appeal. Appellate court judges will now ask themselves three questions when deciding whether to raise a new issue: 1) is the issue actually “new”?; 2) would failing to raise the issue “risk an injustice”?; and 3) can the new issue be raised in a way that will be fair to … Continue Reading
The Supreme Court of Canada recently released an important decision regarding the preliminary dismissal of cases, this time through the doctrine of stare decisis, which dictates that a precedent case rendered by a higher court binds a lower court’s decision. In Attorney General of Canada v. Confédération des syndicats nationaux, 2014 SCC 49 (“CSN 2014”), Justices Lebel and Wagner, writing for a unanimous Court, confirmed that the action of the plaintiffs unions had no reasonable chance of success and should be dismissed based on stare decisis. The Court’s decision, in a case originating from Quebec, … Continue Reading
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 in all cases – specifically, those in which a staged fact-finding process raises the spectre of inconsistent findings at summary judgment and at trial.
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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 class-wide basis.… Continue Reading
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. MEC OP LLC, the Alberta Court of Appeal overturned the decision of a case management judge who permitted the joinder of third party advisors to a main action between a purchaser and vendor of oil and gas assets. This appellate decision incorporates the Hryniak… Continue Reading
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 left the Court with no choice:
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24 Given the inadequacy of the endorsement of the motion judge, we cannot conduct a meaningful review of his decision.
25 In these circumstances, we have no alternative but to grant the appeal and set aside the declaration
In Laushway v. Messervey, the Nova Scotia Court of Appeal recently established a framework to be applied when a litigant seeks production of electronic information found on an opposing party’s computer. The decision, which was mentioned in an earlier post, recognizes that electronic information may be both directly relevant and also very private, and that courts will increasingly be called upon to address this issue. Although the decision is grounded in Nova Scotia’s procedural rules, the framework established by the Court of Appeal will likely be influential across the country.
Background and the Decision Below
Mr. Laushway, the … Continue Reading
The Supreme Court of Canada released two decisions today that will make summary judgment more widely available to parties. The reasons in Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 signal a cultural shift in which summary judgment will be available whenever it involves less time and expense than a trial, provided it enables the motion judge to reach a fair and just determination … Continue Reading
The recent decision of the Ontario Court of Appeal in msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550 (“msi Spergel”) confirms that the Court will not suspend, extend or otherwise vary the general two-year limitation period under the Limitations Act, 2002 (the “Limitations Act”) unless there is express statutory authority to do so.
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Generally speaking, the Federal Court does not have jurisdiction over the provincial Crown. Confusion arises when the subject matter of a claim is within the realm of the Federal Court and the claim is an in personam. The recent Federal Court of Appeal decision of Canada v. Toney, 2013 FCA 217 affirms that there remain limited instances where the Federal Court has jurisdiction over a province, even if other factors suggest that a claim would be properly put before the Federal Court.
The Toney family experienced a boating malfunction when sailing in Alberta. The rescue vehicle, which… Continue Reading
It is now easier for Parliament to enact legislation to override judicial decisions that it does not like. The Supreme Court has held that declaratory legislation –i.e. legislation that “clarifies” already existing legislation– can apply retroactively and can circumvent the binding directives of an appellate court. In Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, the majority of the Supreme Court has begun to water down the principles of res judicata.
The appellant, Régies des rentes du Québec (“Régie”), is a government agency responsible for applying Quebec’s Supplemental Pension … Continue Reading
This was an appeal by Burton Canada Company (“Burton”) of the decision of the Chambers Judge, Justice Gregory M. Warner, dismissing Burton’s application for summary judgment. The decision of Justice Warner was upheld, and the appeal dismissed. This decision may have far-reaching implications, as the majority of the Nova Scotia Court of Appeal holds that changing the Civil Procedure Rules can restrict the inherent jurisdiction of a Court. Although the decision was not made on this basis, this dicta may have radical implications for the inherent jurisdiction of superior courts to deal with their procedural rules.
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On July 17, 2013, the Quebec Court of Appeal rendered its first decision on the statutory secondary market liability regime adopted in 2007 pursuant to a reform of the Quebec Securities Act (“QSA”). Although the QSA regime facilitates a plaintiff’s burden, it also imposes an authorization process under which a claimant must establish that its action is brought in good faith and has a reasonable possibility of success. In Theratechnologies inc. v. 121851 Canada inc., 2013 QCCA 1256 (“Theratechnologies”), the Court of Appeal upheld the Superior Court’s decision to authorize a claim pursuant to… Continue Reading
In a recent decision, the Judicial Committee of the Privy Council ruled for the first time that the tort of malicious prosecution is available in the context of civil proceedings. In most jurisdictions, including Canada, the current view is that malicious prosecution is only available against the Attorney General or Crown prosecutors following criminal proceedings instituted for an improper purpose.
The result was driven by the peculiar facts of the case. Mr. Paterson was a chartered surveyor resident in the Cayman Islands. He was appointed by Sagicor to act as a loss adjuster for a claim for property… Continue Reading
What happens when the parties to an arbitration agreement expressly contract out of the possibility of proceeding to a class arbitration, and this means that plaintiffs will have to incur great expense to each make proof of their claim individually, well above the amounts they may obtain as a result of their proceedings? Should a court not interfere and decide to hear the dispute because “effective vindication” could not be attained through arbitration? This was the question put to the Supreme Court of the United States in American Express Co. v. Italian Colors Restaurant (June 20, 2013). The six justices… Continue Reading
A case recently decided by the Federal Court of Appeal reiterates the very high standard of good faith to which the Minister of National Revenue (the “Minister”) must be held when dealing with the courts in the context of an ex parte application provided by the Income Tax Act (“ITA”). For example, the Minister cannot ignore and omit to mention internal evidence which it knows weakens its position, or hide ulterior motives.
Context: Third-Party Information Concerning “10-8” Plans
In Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50 (“RBC Life”), the… Continue Reading
In City of Arlington, Texas v. Federal Communications Commission, 569 U.S. (2013), the unanimous Supreme Court of the United States clarified the limits of judicial deference to administrative tribunals’ decisions. In doing so, it reaffirmed a conceptual rift between Canadian and American jurisprudence on the issue.
At issue in Arlington was the provision of the Telecommunications Act of 1996 in which Congress required state and local governments to act on wireless “siting applications within a reasonable period of time after the request is duly filed”. “Siting applications” are applications by telecommunications networks to place towers and antennae… Continue Reading