Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

Tag Archives: contractual interpretation

Insureds Score a Big Win at the SCC

Posted in Case Comments, Contracts, Insurance

Policyholders recently won a key victory at the Supreme Court of Canada in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. as the Supreme Court clarified the interpretation of a standard form faulty workmanship exclusion clause common in builder’s risk policies.  The decision has wide-reaching significance to other insurance coverage disputes and to contract law generally.

The Supreme Court confirmed that only the cost to redo the faulty work is precluded from coverage by such an exclusion. Builder’s risk, or “course of construction” insurance policies seek to insure against certain defined risks which may occur during the construction process. Such … Continue Reading

The SCC Monitor (04/03/16)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor

Since our last post, most of the judgments and successful applications for leave decided by the Supreme Court have arisen from criminal cases. The most notable exception was the judgment in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, concerning secondary market class actions, which we have already covered in detail.

This post will cover the very brief judgment in Canadian Pacific Railway Co. v. Canada (Attorney General), 2016 SCC 1 and the successful application for leave to appeal from Urban Communications Inc. v. BCNET Networking Society, 2015 BCCA 297.… Continue Reading

May it Please the Court: Does “May” in an Arbitration Clause Convey Choice About Proceeding to Arbitration?

Posted in Case Comments, Contracts

The difference between the mandatory “shall” and the permissive “may” in a contract is, perhaps typically, straightforward. One mandates action; the other allows, but does not require, it. This analysis can be more complex in the context of an arbitration agreement: can a party to the agreement force a stay of litigation based on a clause that states the parties may submit the dispute to arbitration? The Privy Council in Anzen Limited v. Hermes One Limited faced essentially this question, and, in part based on Ontario Court of Appeal jurisprudence, held that the answer is yes.… Continue Reading

10 Most Important Appeals of 2014

Posted in Case Comments, Features

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

Hall of Fame

Posted in Awards and Recognitions, Contracts, Features

Last month, senior McCarthy Tétrault litigator and Canadian Appeals Monitor contributor Geoff Hall generated lots of attention with his insightful post on contractual interpretation in cases where an “unthinkable” change in circumstances seems to have a profound effect on the bargain struck by the parties. Geoff’s analysis looked at a recent UK Supreme Court decision, Lloyds TSB Foundation for Scotland v. Lloyds Banking Group plc, in which an unforeseeable change to applicable accounting principles altered the definition of “profit” in a way that would have a multi-million pound impact on the parties.

This week, Mondaq recognized Geoff’s commentary as … Continue Reading

The Second Opinion: The Alberta Court of Appeal helps unwind the “Factual Matrix”

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

Posted in Features, The Second Opinion

Every lawyer knows that, when interpreting a contract, one is permitted to take into account the “factual matrix” that surrounded the execution of the agreement.  A question that is far less clear is the meaning of this concept — i.e., in construing the contract, what contemporaneous evidence is a court permitted to consider under the rubric of the factual matrix, and what evidence is it forbidden to consider?

Useful guidance on these matters has recently been provided by the Alberta Court of Appeal in Nexxtep Resources Ltd. v. Talisman Energy Inc., 2013 ABCA 40At issue was the … Continue Reading

The Interpretation of Contracts When the Unforeseen Happens

Posted in Case Comments, Contracts

Purposive and contextual interpretation that achieves the original meaning

Disputes over the meaning of contracts most often arise in one of three circumstances. The first is when an event has occurred that the contracting parties did not foresee or provide for at the time of contracting. The second is when there was (subjectively) no meeting of the minds on a particular point, with the result that the parties have ended up with diverging expectations of their contractual rights and obligations. The third is when there has been sloppy or faulty drafting, such that the contractual language is ambiguous or unclear. … Continue Reading

Interpretation of Interrelated Contracts in a Commercially Effective Manner: Clarification of Two Important Principles of Contractual Interpretation

Posted in Case Comments, Contracts

It is well established that when interpreting a contract the document must be read as a whole, without considering the disputed words or phrase in isolation from the rest of the contractual text. In recent years, the Ontario Court of Appeal has expanded this principle to the interpretation of interrelated contracts, such that if (as commonly happens) a transaction is given effect by a series of contracts, all of the contracts in the series must be considered in interpreting any one of them (the interrelated contracts principle).… Continue Reading