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Category Archives: The Second Opinion

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The Second Opinion: A Defamation Claim without “Merit” — The BCCA Shields Directors from Liability for Statements made as part of Continuous Corporate Disclosure

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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… → Read More

The Second Opinion: Appeal Court Confirms the Narrow Scope of the “Forum of Necessity” Doctrine

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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… → Read More

The Second Opinion: Who needs Lawyers? When Laypeople draft Contracts that are Uncertain, Ambiguous and Incomplete, the Courts must strive for a “Sensible and Businesslike” Interpretation, says the ABCA

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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… → Read More

The Second Opinion: When is a Little Knowledge a Dangerous Thing? When it is used to Disqualify In-House Counsel

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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… → Read More

The Second Opinion: Mandatory Audit Rights and the CBCA

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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… → Read More

The Second Opinion: Production Orders and Electronic Information – Appeal Court Offers a List of Considerations

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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… → Read More

The Second Opinion: Non-Parties May Be Bound by a Forum Selection Clause

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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…. → Read More

The Second Opinion: Limitation Periods and Unjust Enrichment — Clarity and Complexity from the ONCA

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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… → Read More

The Second Opinion: The SCC Narrows the Scope of the Tort of Unlawful Interference With Economic Relations

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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”. … → Read More

The Second Opinion: BCCA Overturns Certification of Wakelam Class Action

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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… → Read More

The Second Opinion: The BCCA Sheds Indirect Light on the “Public Importance” Test for Granting Leave to Appeal to the SCC

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The Second Opinion

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. … → Read More

Air-Borne Dust, Nuisance and Lost Productivity Damages: The Ontario Court of Appeal finds its answer “Blowin’ in the Wind”

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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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… → Read More

The Second Opinion: Examination on Discovery of Computers- No Fishing Allowed

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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In Desmarteau v. Ontario Lottery and Gaming Corporation 2013 QCCA 2090, the Quebec Court of Appeal established restrictive guidelines for the examination on discovery of personal computers, applying by analogy the rules governing Anton Piller orders. In Desmarteau, the defendant sought and obtained in first instance, an order to permit its expert to examine the… → Read More

The Second Opinion: Canadian Subsidiaries Beware? The Ontario Court of Appeal Addresses the Enforcement of Foreign Judgments Against Related Entities

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The Ontario Court of Appeal’s decision Yaiguaje v. Chevron Corporation, 2013 ONCA 758, has important implications for both foreign corporations and their Canadian subsidiaries.  The decision clarifies the test by which Ontario courts will enforce foreign judgments, and allows enforcement actions to proceed in Ontario where the only hope of recovery is from the Canadian… → Read More

The Second Opinion: What the heck did the Ontario Court of Appeal mean when it spoke of an “Implied Statutory Duty of Care”?

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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In the past decade, the staid law of negligence has undergone a number of interesting developments in Canada, focusing particularly on the threshold question of whether a duty of care is or is not owed by a particular plaintiff to a particular defendant in novel circumstances. A recent ruling of the Ontario Court of Appeal, Rausch v…. → Read More

The Second Opinion: Appeal Court Addresses Thorny Limitation Period Issues Regarding Anticipatory Breaches of Contract

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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When does the limitation period begin to run for an anticipatory breach of contract?  Does the limitation period commence as soon as the guilty party indicates that it will breach a future obligation?  Or can the innocent party safely assume that that the limitation period does not run until the time comes for the performance… → Read More

The Second Opinion: For Repudiating a Salon’s Lease, the BCCA gives the Landlord a Haircut

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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Interesting issues of contractual repudiation and landlord-tenant law were recently addressed by the British Columbia Court of Appeal in Abraham v. Coblenz Holdings Ltd., 2013 BCCA 512. The tenant utilized the rented premises as a hair salon specializing in “African hairstyling.”  The lease contained no express restriction on the business that could be conducted, and… → Read More

The Second Opinion: U.S. Supreme Court to Reconsider Fraud-on-the-Market Theory

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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On November 15, 2013, the U.S. Supreme Court agreed to hear an appeal in which it will reconsider the ”fraud-on-the-market” theory that has been one of the cornerstones of private securities litigation in the United States for the past 25 years.  The questions presented to the Court in Halliburton Co. v. Erica P. John Fund, Inc. are as follows: 1. Whether… → Read More

The Second Opinion: A Computer is Not a Cupboard: The SCC Grapples With Computer Searches

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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The Supreme Court of Canada recently formulated new rules for computer searches by police, acknowledging that the traditional legal framework was inadequate to protect the privacy rights of individuals in their digital life. In R. v. Vu, 2013 SCC 60, the Court said that a police search of a computer now requires prior authorization in… → Read More

The Second Opinion: Appeal Court Clarifies the Contours of the Tort of Misfeasance in Public Office

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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Are policy decisions made by the government beyond the reach of the tort of abuse of public office?  A recent decision of the Ontario Court of Appeal provides a nuanced answer to this question. The pertinent facts of the decision in Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 are as follows. … → Read More

The Second Opinion: Dispensing Equity in Quebec through In Solidum Liability

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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In Bourque v. Poudrier, 2013 QCCA 1663, the Quebec Court of Appeal has extended the scope of in solidum liability to ensure recovery for damages resulting from professional negligence. In the Bourque case, the claimants wished to purchase land that was free of any rights of way or other servitudes. The seller fraudulently confirmed that… → Read More

The Second Opinion: The BCCA explores the Outer Limits of “Abuse of Process by Re-Litigation”

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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In a recent ruling, Bronson v. Tompkins Ranching Ltd., 2013 BCCA 477, the British Columbia Court of Appeal addressed one of the more difficult questions that can emerge from the application of the doctrines of res judicata and abuse of process. It is clear that, depending on the facts at issue, both res judicata and… → Read More

The Second Opinion: Is an Ontario-based Class Settlement Enforceable in Other Provinces?

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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Can a class settlement that is entered into Ontario, and that purports to be inter-provincial in effect, be enforced in Manitoba?  The answer – as a recent Manitoba Court of Appeal decision makes clear — entails a two-step analysis.  First, the Ontario court must have properly assumed jurisdiction over the non-resident class members.  Second, the… → Read More

The Second Opinion: To Agree or Not to Agree; When do Discontinued Negotiations lead to a Binding Contract?

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

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When negotiations between two parties terminate before a formal, written agreement is signed, a common question is whether or not a binding contract has nevertheless come into existence.  An interesting variant on this question was recently considered in Hartslief v. Terra Nova Royalty Corp., 2013 BCCA 417.  The added variable was the fact that the negotiations took place… → Read More