Mary Carter agreements are settlement agreements between a plaintiff and defendant in multiparty litigation wherein the defendant ostensibly remains an active party to the litigation while the plaintiff’s claim in fact targets the other parties. On September 5, 2017, the B.C. Court of Appeal (the “Court“) released its decision in Northwest Waste Solutions Inc. v. Super Save Disposal Inc., 2017 BCCA 312 affirming that Mary Carter agreements must be disclosed immediately and outlining potential remedies for a failure to make such disclosure. Parties and their counsel will need to keep this in mind when considering the merits … Continue Reading
The BC Court of Appeal recently reaffirmed the principles of preferability in class action certification proceedings in the case of Vaugeois v Budget Rent-A-Car, wherein the certification judge had determined that a class proceeding was not the preferable forum to decide the disputes between vehicle renters who had allegedly been improperly charged for vehicle repairs.… Continue Reading
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
A few months ago, the Supreme Court of Canada released its decision in Bhasin v Hrynew, a precedent-setting judgment, recognizing a general organizing principle of good faith in contract law. More recently, the BC Court of Appeal in Moulton Contracting Limited v. British Columbia, considered and elaborated upon Justice Cromwell’s discussion in Bhasin about the doctrines of good faith and implied contractual terms for “business efficacy,” clarifying that the two frameworks are distinct and not to be conflated.… Continue Reading
The British Columbia Court of Appeal recently released a helpful decision applying principles of discoverability to determine when a limitation period begins to run. In Roberts v. E. Sands & Associates Inc., 2014 BCCA 122, the Court rejected 650 claims against a bankrupt investment firm on the basis that these claims were made after the six-month limitation period under the Securities Act had expired.
In so doing, the Court sent a clear message to potential claimants: a limitation period will start to run when the known facts suggest the pursuit of an investigation into a cause of action … Continue Reading
Clauses that exclude, or “release”, liability are widespread and critical to risk management for many businesses. Typically, such clauses stipulate that the signee waives the right to sue if they are injured while participating in certain activities. Inevitably, in the event that the signee is injured, a variety of arguments are put forward as to why the particular exclusion clause is unenforceable in the particular circumstances.
Recently, in 2010, the Supreme Court set out a new approach to the analysis of whether an exclusion clause is unenforceable in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC … Continue Reading
In Rhebergen v. Creston Veterinary Clinic Ltd., 2014 BCCA 97, the British Columbia Court of Appeal granted the appeal of an employer veterinary clinic, Creston Veterinary Clinic (“CVC”), from a Supreme Court of British Columbia decision declaring unenforceable a contract clause requiring its employee, Dr. Stephanie Rhebergen, to pay CVC a prescribed amount in the event she was to compete with CVC within a certain period after the contract was terminated. Unlike conventional non-competition or non-solicitation clauses that constitute a restraint of trade, the clause before the BCCA contained no prohibition. Rather, the clause at issue was permissive in … Continue Reading
At issue in One West Holdings Ltd. v Greata Ranch Holdings Corp. et al. was whether an entire agreement clause which referred to multiple contracts could be used to incorporate an arbitration clause from one of the other contracts. The British Columbia Court of Appeal held that it could despite the fact that the contracts involved different parties.
A number of parties, including Concord Okanagan Developments Ltd., entered into a limited partnership agreement (LPA) to form Greata Ranch Developments Limited Partnership. The LPA described a project management agreement (PMA) that was to be entered into between the Limited … Continue Reading
In a surprise decision, the British Columbia Court of Appeal has broken with the superior courts of British Columbia, Ontario and Quebec by holding that constitutional limits prevent a superior court judge from sitting outside of his own province. The Court of Appeal’s decision suggests limits to the inherent jurisdiction and discretion of superior courts and will have profound effects upon the ease and efficiency with which judges can hear multi-jurisdictional matters, in particular class actions. Decisions by the Court of Appeal in Ontario and Quebec on the same issue are pending.
The British Columbia Court of Appeal recently upheld the denial of certification of a proposed class action involving routine strip searches at a Vancouver city jail. Thorburn v. British Columbia (Public Safety and Solicitor General) illustrates the difficulty of certification in cases that require an individual inquiry into the facts and circumstances unique to each class member.
On April 1, 2003, Vancouver students Elise Thorburn and Christopher Jacob were arrested on charges of mischief for peacefully protesting outside the U.S. Consulate in Vancouver. Thorburn and Jacob were taken to a city jail (the “Jail”) where they received a pat-down search … Continue Reading
Should the reasonable expectations of litigants determine the availability of a proprietary remedy where one party has been unjustly enriched by the other? If a proprietary remedy is available in principle, is it just to impose a constructive trust when the plaintiff never expected to earn a proprietary interest?
A recent case from British Columbia, Haigh v. Kent, 2013 BCCA 380, addresses these questions (and more). Ultimately, the BC Court of Appeal upheld a trial judgment awarding a 25% interest in a campground and beach resort by way of constructive trust to a plaintiff who never expected to … Continue Reading
When does a cause of action for negligent misrepresentation crystalize such that it triggers the running of the applicable limitation period? The British Columbia Court of Appeal addressed this issue recently in Weldon v. Teck Metals Ltd., 2013 BCCA 358.
The pertinent facts of the Weldon case are as follows. The employees of the defendant Teck participated in a defined benefit pension plan. The defendant Teck offered the employees the option of transferring their pensions from the defined benefit plan to a newly-established defined contribution pension plan, effective January 1, 1993. The plaintiffs chose to do so. However, … Continue Reading
Can a party who has failed to consummate a transaction get back a “deposit”? The British Columbia Court of Appeal considered this issue once again in the recent case of Amiri v. One West Holdings Ltd., 2013 BCCA 155.
The facts of the Amiri decision were as follows. A businessman (“Purchaser”) purchased, in 2005, a condominium that was to be built for a total price of almost $3 million. The purchase agreement (the “Agreement”) provided for the payment of a total “deposit” in the amount of approximately $750,000. The Agreement specifically stated that “[i]f the Purchaser is in breach … Continue Reading
In a recent decision of great importance to federally-regulated entities such as banks, airlines and navigation and shipping companies, the B.C. Court of Appeal ruled that a provincial consumer protection statute applies to airlines: Unlu v. Lufthansa et al, 2013 BCCA 112.
The Unlu case involves a putative class action against various airlines alleging deceptive practices under B.C.’s Business Practices and Consumer Protection Act (the “Act”). More specifically, the intended representative plaintiff asserts that the airlines improperly identified as taxes the fuel surcharge on airline tickets, in breach of the provincial Act. The airlines, in defence, argued that the … Continue Reading
This week, the Supreme Court issued two judgments of interest to Canadian businesses and professions. In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Court reaffirmed the test for the exercise of discretion in applying issue estoppel. In Ediger v. Johnston, 2013 SCC 18 , a medical malpractice case, the Court discussed the standard of care and causation.
In Penner, Mr. Penner was arrested during a courtroom disturbance, which resulted in proceedings under the police disciplinary process. A hearing officer ultimately dismissed Mr. Penner’s complaint. Mr. Penner then commenced a civil action against the … Continue Reading
The SCC recently dismissed two leave applications from important (but unrelated) decisions of the BCCA in the consumer class action realm. One decision, in a rather noteworthy step, engages in an extensive analysis of and narrows the availability of the “waiver of tort” doctrine in claims based on alleged breaches of consumer protection type legislation.
The second decision is significant from a jurisdictional point of view and also because it ties in with certain potentially pivotal cases on indirect purchasers which will be heard by the SCC later this year. It permitted a class action alleging a competitive conspiracy … Continue Reading
The Supreme Court of Canada heard arguments this week in two cases of interest to Canadian businesses and professions, and reserved judgment in each.
The first is an appeal from Guay Inc. c. Payette, 2011 QCCA 2282, in which the Quebec Court of Appeal held that restrictive covenants which precluded the appellant from competing with or soliciting customers of the respondent for five years after termination of his employment were valid, notwithstanding the trial judge’s findings below that the appellant had been wrongfully dismissed by the respondent and that the covenants were too broad to be enforced.… Continue Reading
The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.
In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, Rothstein J. for the majority of the Court held that the Canadian Radio-television and Telecommunications Commission (“CRTC”) lacked the jurisdiction to create a market-based “value for signal” regime. The proposed regime would have enabled private local television stations (“broadcasters”) to negotiate direct compensation for the retransmission of their signals by broadcast distribution undertakings (“BDUs”), such as cable and satellite companies, and to prohibit… Continue Reading
In a decision released this month, the British Columbia Court of Appeal has declined to enter the national fray on the question of how courts should interpret statutory leave requirements adopted throughout Canada in recent securities legislation amendments. These leave requirements impose a preliminary hurdle for plaintiffs seeking to advance statutory secondary market class action claims, requiring them to demonstrate a reasonable possibility of success at trial. Thus far, no appellate court in Canada has yet pronounced on how courts should apply this standard. In Round v. MacDonald, the motions judge suggested that the appropriate standard in British Columbia … Continue Reading
In its well-known decision in Tercon Contractors, the Supreme Court of Canada set out a three-part test for the enforceability of contractual exemption clauses: (1) does the clause, as a matter of interpretation, apply to the dispute; (2) if so, was the clause unconscionable at the time the contract was made; and (3) if not, would enforcing the clause be contrary to public policy? Since the release of Tercon in 2010, there has been virtually no appellate guidance regarding the third, “public policy” component, of the test. That silence has now ended with the British Columbia Court of Appeal’s
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 be the first time any court of appeal in Canada will have the opportunity to consider the issue.