A little over one year ago, the Ontario Superior Court’s decision in Moore v. Getahun sent a chill through the litigation bar in Ontario. During a medical negligence trial, the trial judge criticized an expert witness for discussing a draft expert report with counsel and required disclosure of all his drafts and notes of his communications with counsel during the course of the trial. The Court of Appeal’s decision has been among the most eagerly anticipated appellate decisions of this year. The decision, released on January 29th, confirms and clarifies the law prior to the trial … Continue Reading
At the end of 2005, Ontario legislation came into effect which enabled aggrieved shareholders to bring a statutory action for secondary market misrepresentation against issuers and their directors and officers (and others) without the requirement to establish individual reliance. In order to commence such an action, however, a shareholder must first obtain leave from the Superior Court. Much of the jurisprudence in secondary market securities class actions has been devoted to examining the standard for leave.… Continue Reading
I can’t predict the future and I don’t have respect for people who try to.
-Jackie Mason (1931-)
As part of the Appeals Monitor’s annual attempt to give lawyers something to talk about over the holidays other than the two traditional Canadian touchstones (weather and hockey), we are proud to once again this year present our top ten anticipated appeals for the new year. Of course, we can’t control what the judges will actually do with these cases, but we think these are the ones worth watching.
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
Careful observers may have noticed that the Ontario Court of Appeal has allowed three civil appeals on the basis of reasonable apprehension of bias in the last few months. This presents an opportunity to reflect on what conduct constitutes reasonable apprehension of bias and what it means for an appeal court to make such a finding.
The forum in which to litigate is a difficult decision in any case that crosses provincial or national borders. It is even more complicated in claims against the federal government. The Federal Court has exclusive jurisdiction in some cases; in others, the Federal Court and the provincial Superior Court in which the claim “arises” have concurrent jurisdiction. Where the jurisdiction is concurrent and the plaintiff elects to sue in Superior rather than Federal Court, the question becomes: in which province does the claim “arise”?
The question is further complicated where there are multiple causes of action asserted. One claim may … Continue Reading
Last week, the Ontario Court of Appeal released its decision in Brown v. Canadian Imperial Bank of Commerce, upholding the Divisional Court’s decision affirming the dismissal of a certification motion in a proposed “misclassification” overtime class action (previously blogged about in the spring and fall of 2013). The appeal decision is of particular interest as “misclassification” overtime class actions (i.e. class actions alleging that an employer has misclassified employees and managers to avoid overtime pay obligations) were thought, by many observers, to have already been dealt a fatal blow by the Court in its prior decision in McCracken v. … Continue Reading
The following post on the Canadian Class Actions Monitor blog may be of interest to readers of this blog: Ontario Court of Appeal Turns Against Cross-Border Securities Class Actions.
In the recent decision of Kaynes v. BP, PLC, 2014 ONCA 580, the Ontario Court of Appeal stayed a proposed secondary market securities class action on the basis of forum non conveniens. Writing for a unanimous Court of Appeal, Sharpe J.A. found that Ontario could assume jurisdiction over claims by Canadian residents who purchased their shares on foreign exchanges. Nevertheless, he held that Ontario should decline jurisdiction on … Continue Reading
The Supreme Court of Canada has granted leave to appeal in a case that will determine how to apply the statutory limitation period for investors in Ontario who decide to sue public issuers and their executives under the Securities Act. Given similar legislation in other provinces, the case will be significant for investors and public issuers across Canada.… Continue Reading
The business judgment of directors setting executive compensation was front and centre in the Ontario Court of Appeal’s recent decision in Unique Broadband Systems, Inc. (Re), 2014 ONCA 538 (UBS). Although the decision is based on unique underlying facts, it offers several important lessons on corporate governance.
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 Prince v. ACE Aviation Holdings Inc., the Ontario Court of Appeal stayed a class action based on allegations that Air Canada had improperly collected transportation taxes levied under the U.S. Internal Revenue Code (the “Code”). The Court’s decision highlights the difficulty in predicting the outcome of jurisdictional disputes involving e-commerce transactions. In addition, it illustrates the reluctance of our courts to permit class actions based on claims that engage the territorial sovereignty of other nations.
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
How do corporate and personal liability intersect in a corporation that has only one officer, director and shareholder? In the recent Shoppers Drug Mart v. 6470360 Canada Inc. case, the Court of Appeal helped to clarify when the person behind the corporation will be found liable.
In October 2005, Shoppers Drug Mart (“Shoppers”) contracted with Energyshop Consulting Inc. (“Energyshop”) to manage and pay its utility bills on a nationwide basis. Michael Wayne Beamish (“Beamish”) negotiated the contract on behalf of Energyshop, which had not yet been incorporated. Beamish later incorporated 6470360 Canada Inc. … Continue Reading
The Ontario Court of Appeal’s decision in Green represents yet another plaintiff-friendly class action development from the Canadian courts, this time in the context of limitation periods. Less than two years after its watershed decision in Timminco, Ontario’s highest court reversed itself and in a decision authored by Feldman J.A. re-cast the limitation period regime governing secondary market civil liability under the Ontario Securities Act. In Green v. CIBC, 2014 ONCA 90, a five-member panel of the Court overturned Sharma v. Timminco, 2012 ONCA 107 and gave class action plaintiffs the protection of s. 28… Continue Reading
The following post on the Canadian M&A Perspectives blog may be of interest to readers of this blog: SHOTGUN! You should know this before triggering a buy-sell provision.
On November 29, 2013, the Ontario Court of Appeal released its decision in Western Larch Limited v. Di Poce Management Limited, 2013 ONCA 722 with important lessons examining shotgun buy-sell provisions, and in particular, the enforceability of a buy-sell offer that does not perfectly comply with the terms and conditions of the shotgun provision. Read more.… 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
Rectification is an important equitable doctrine allowing courts to rewrite contracts that erroneously record the agreement reached by the parties. The basic requirements for rectification are well settled. Where there is a mutual mistake, the party seeking rectification must show (i) that the parties had a common continuing intention prior to the making of the document alleged to be deficient; (ii) that that intention remained unchanged or existed at the time when the document sought to be rectified was signed; and (iii) by mistake, the parties signed a document that did not accurately reflect their common intention.
However, … Continue Reading
In Ontario (Training, Colleges and Universities) v. Two Feathers Forest Products LP, 2013 ONCA 598, the Ontario Court of Appeal granted the appeal of an interim receiver, Pricewaterhousecoopers Inc., from a Superior Court of Justice decision where grant funds that were advanced by the respondent, Ontario’s Minister of Training Colleges and Universities (the “Ministry”), to a First Nations limited partnership in northern Ontario, but not spent before the partnership sought to dissolve and appoint the interim receiver, were held to be subject to a “Quistclose trust” for the benefit of the Ministry.
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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 of the contract and the guilty party then in fact fails to perform its obligation? A recent decision by the Ontario of Court of Appeal brings much needed clarity to this important issue.… Continue Reading
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. Trillium Power Wind Corporation (“Trillium”) is a developer of off-shore wind power projects in Ontario. One of Trillium’s projects was cancelled by the Province of Ontario (“Ontario”) during a provincial election campaign.… 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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The Ontario Court of Appeal recently decided it will hear the appeal in Brown v. Canadian Imperial Bank of Commerce, the Divisional Court’s decision affirming Strathy J.’s denial of certification in a proposed “misclassification” overtime class action which we blogged about in the spring. The leave decision represents an unexpectedly quick return of overtime class actions to the Court of Appeal following last year’s “overtime trilogy” (Fulawka, Fresco, and McCracken). In the trilogy, the Court of Appeal upheld certification in two “off the clock” class actions, but refused certification in McCracken which, like Brown,… Continue Reading
Last week was an exciting week for those who monitor developments in technology and the law. First, a Canadian telecom company announced it had struck a deal to introduce wireless internet service for Canadian cars. Then, the next day, the Ontario Court of Appeal released two companion decisions that added some oomph to Ontario’s distracted driving laws – merely holding a mobile phone, said the court, is sufficient to put you offside the law. The phone doesn’t have to be on and it doesn’t even have to be near your ear: it just has to be a cell phone.… Continue Reading