On February 20, 2018 the Ontario Court of Appeal released its decision in Oravital v. Aird & Berlis LLP, 2018 ONCA 164, a brief decision with important implications on the scope of a lawyer’s duty to advise. The Court of Appeal held that a lawyer’s duty to advise clients of the risks and benefits of pursuing litigation, including the quantum of recoverable damages, is not negated just because the client is commercially sophisticated. The decision serves as a useful reminder that litigators must advise clients (even sophisticated clients) of the costs and benefits of pursuing an action both … Continue Reading
The Ontario Court of Appeal recently released a significant decision on the insider trading provisions of provincial securities legislation. In Finkelstein v. Ontario Securities Commission, 2018 ONCA 61, the Court considered for the first time the insider trading and tipping scheme in the Securities Act, R.S.O. 1990, c. S. 5 (the “Act”), and particularly, the definition of a “person in a special relationship with an issuer” as it applies to successive tippees who share insider information.… Continue Reading
In Pennyfeather v. Timminco (“Pennyfeather”), the Ontario Court of Appeal delivered yet another ruling concerning the interaction between the limitation period for obtaining leave to commence an action for misrepresentation in the secondary securities market under s. 138.14 of the Ontario Securities Act (the “OSA”), and s. 28 of the Class Proceedings Act (the “CPA”), which suspends a limitation period in favour of class members for a cause of action asserted in a class proceeding upon commencement of the class proceeding.… 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 of interest to barristers, the Ontario Court of Appeal held that the Law Society of Upper Canada is entitled to deference when regulating a lawyer’s in-court conduct in Groia v The Law Society of Upper Canada, 2016 ONCA 471 (“Groia”). The Court of Appeal affirmed the Law Society’s holding that it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel, unless the allegations are made in good faith and with a reasonable basis.
Joseph Groia defended John Felderhof against securities charges brought by the Ontario … Continue Reading
A recent article, published on McCarthy Tétrault LLP’s Canadian ERA Perspectives blog may be of interest to readers of the Canadian Appeals Monitor blog.
Northern Superior Resources Inc. v. Ontario, now on its way to the Ontario Court of Appeal, raises the question of whether a resource company, rather than a First Nation, may bring a claim against the Crown arising out of an alleged breach of the Crown’s duty to consult Aboriginal peoples pursuant to s. 35 of the Constitution Act, 1982. Though the Court of Appeal is likely to limit its decision to the facts … Continue Reading
The Ontario Court of Appeal recently reiterated several key principles in the context of class action certification motions. In Good v Toronto Police Services Board, 2016 ONCA 250 [Good], the Court of Appeal upheld the Divisional Court decision to certify the claim of Ms. Sherry Good as representative plaintiff (the “Representative Plaintiff”) in the proposed G20 class action against the Toronto Police Services Board (the “TPS”). The decision in Good reminds us of two very important considerations in class action proceedings:… Continue Reading
MEDIchair LP v DME Medeqip Inc., 2016 ONCA 168 is a case with important implications for all franchisors and franchisees. In the decision released on February 29, 2016, the Ontario Court of Appeal struck down a non-competition covenant because the franchisor had no intention of operating a competing business within the geographical area covered by the covenant. Overturning the lower court decision, the Court of Appeal held that a legitimate proprietary interest is necessary to enforce a restrictive covenant.… Continue Reading
The Ontario Court of Appeal is once again making headlines with the case of Ramdath v George Brown College, which has turned out to be a doubly significant case at the intersection of class actions and consumer protection legislation.… Continue Reading
In the 14 months since the Supreme Court of Canada rendered its landmark decision in Bhasin v. Hrynew, 2014 SCC 71  the general organizing principle of good faith in contract law has been applied in a very restrained manner by courts across Canada. The recent decision of the Ontario Court of Appeal in Bank of Montreal v. Javed, 2016 ONCA 49 is a further example of this trend.… Continue Reading
In the recent decision of 1196303 Ontario Inc v Glen Grove Suites Inc, 2015 ONCA 580, the Ontario Court of Appeal considered to what extent parties not privy to an agreement should be held liable for the obligations it creates.
In that case, 1196303 Ontario Inc. (“119”) entered into a settlement agreement with 1297475 Ontario Inc. (“129”), a shell corporation which was owned by Mrs. Sylvia Hyde. Mrs. Hyde was also the sole owner of Glen Grove Suites Inc. (“Glen Grove”), which owned valuable rental property. Mr. Edwin Hyde, who exercised de facto… Continue Reading
On McCarthy Tétrault LLP’s Consumer & Retail Advisor blog, Helen Fotinos, Sam Khajeei and Adam Ship recently published a helpful discussion of the Ontario Court of Appeal’s decision in 2240802 Ontario Inc. v Springdale Pizza Depot Ltd., which will be of interest to readers of the Canadian Appeals Monitor.… Continue Reading
On March 26, 2015, the Ontario Court of Appeal released its decision in Westerhof v. Gee Estate concurrently with its companion case McCallum v. Baker. Both decisions were heard at the same time as Moore v. Getahun and, together, form what has been referred to as the Expert Evidence Trilogy (“Trilogy”).
There was an exceptional degree of interest by the Ontario bar in the Trilogy, with six parties intervening in the appeals: The Advocates’ Society; The Holland Group; the Ontario Trial Lawyers Association; the Canadian Defence Lawyers Association; the Canadian Institute of … Continue Reading
Does privilege shield a regulator’s investigation file that has not been produced to a respondent? The Ontario Court of Appeal recently grappled with whether or not to compel a regulator to produce its investigation file of its member to plaintiffs in a class action against that member. There are important lessons in the Court’s determination that case-by-case privilege did not apply in the circumstances. Nevertheless, the Court held that plaintiffs did not need the regulator’s documents to prove their allegations in the class action, and on that basis declined to order production.… Continue Reading
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.