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

Category Archives: Torts

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ABCA Opens the Door to Punitive Damages for Surviving Dependents

Posted in Case Comments, Class Actions, Torts

A recent decision of the Alberta Court of Appeal has opened the door for awarding punitive damages to surviving dependants under Alberta’s Fatal Accidents Act (the “FAA”). The FAA creates a statutory cause of action for dependants of deceased persons where death was caused by a wrongful act. Similar legislation in other provinces has been… → Read More

NZSC Provides Guidance on Litigation Funding Agreements

Posted in Case Comments, Class Actions, Torts

The New Zealand Supreme Court rendered an interesting decision on litigation funding agreements, more specifically on the extent to which they may be invalid based on abuse of process. Litigation funding agreements are a big issue in Canada right now, particularly in the context of class actions. Background In Waterhouse v. Contractors Bonding Limited ([2013]… → Read More

The Second Opinion: The Ontario Court of Appeal Addresses Jurisdiction Over International Tort Claim

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

Posted in The Second Opinion, Torts

Global commerce transcends borders. When related litigation ensues, it can give rise to thorny jurisdictional issues.  For instance, when an Ontario-headquartered mining company relies — based on recommendations from its technical staff in its Vancouver satellite office — upon the engineering reports of US-based consultants to build a gold mine in Costa Rica which then… → Read More

Hail to the Chief: McLachlin C.J.C. Becomes Canada’s Longest-Serving Chief Justice

Posted in Class Actions, Contracts, Features, Torts

Next month marks the bicentennial of the birth of Sir William Johnstone Ritchie, one of the first judges appointed to the Supreme Court of Canada and Chief Justice from 1879 to 1892. Why are we thinking about him this week? Until today, he was the longest serving Chief Justice of Canada. That title now belongs… → Read More

Apportioning Liability for a Single Loss Caused By Separate Breaches of Contract

Posted in Case Comments, Contracts, Torts

Contributory negligence legislation allows liability to be apportioned between tortfeasors – but what about defendants who are severally liable for a single loss caused by independent breaches of contract? In Petersen Pontiac Buick GMC (Alta.) Ltd. v. Campbell, 2013 ABCA 251, counsel for both parties could find no authority on the issue of apportioning liability… → Read More

A Lawsuit Isn’t Always the Best Revenge: JCPC Rules that the Tort of Malicious Prosecution is now Available for Civil Litigants

Posted in Case Comments, Procedure, Torts

In a recent decision, the Judicial Committee of the Privy Council ruled for the first time that the tort of malicious prosecution is available in the context of civil proceedings. In most jurisdictions, including Canada, the current view is that malicious prosecution is only available against the Attorney General or Crown prosecutors following criminal proceedings… → Read More

Court of Appeal Accepts Ontario Jurisdiction Despite Forum Selection Clause for Germany

Posted in Case Comments, Conflict of Laws, Contracts, Torts

During the spring of 2012, the Canadian Appeals Monitor posted a five-part series on the Supreme Court’s judgments in Van Breda, Black, and Éditions Écosociété (the “Van Breda Trilogy”). The Van Breda Trilogy was the Supreme Court’s long anticipated reformulation of the common law principles of private international law. Since the release of the Van Breda Trilogy,… → Read More

What’s the Value of a Truck Stop Without Any Trucks? Supreme Court Addresses Nuisance Claims in Public Projects

Posted in Case Comments, Construction and Real Estate, Torts, Transportation

In a new decision, the Supreme Court of Canada has provided guidance on when compensation might be due in cases of nuisance caused by public infrastructure projects.  The Antrim decision is relevant not only for those involved in the management of public projects, but it also shapes the more general law of nuisance, especially in… → Read More

More than “Lip Service” to Limited Liability: Personal Liability of Directors and Causation of Damages for Misrepresentation to Investors

Posted in Case Comments, Class Actions, Torts

Will a director or officer of a corporation or limited liability partnership be personally liable for the losses of investors who relied upon his or her inaccurate statements when deciding to invest in a corporate venture? What if the inaccurate statements did not involve matters that were proven to cause the investment losses? The Alberta… → Read More

Consumer Class Actions: BCCA Limits Availability of “Waiver of Tort” Claims but Expands Jurisdictional Reach in Conspiracy Claims

Posted in Case Comments, Class Actions, Competition, Manufacturing, Torts

Introduction 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… → Read More

Top Appeals of 2013: The Appeals Monitor Looks Forward

Posted in Bankruptcy and Debt, Case Previews, Class Actions, Features, Procedure, Professions, Torts

“Prediction is very difficult, especially about the future.” – Niels Bohr (1885-1962) “Weatherman wet-fingers the sky He pokes it out, he pulls it in He don’t know why.” – Gordon Downie (1964- )   In the spirit of the season, Canadian Appeals Monitor has decided not only to look back on the key appeals of… → Read More

Third time’s the charm – The United States Supreme Court to consider the availability of class arbitration for the third time in American Express Company v. Italian Colors Restaurant

Posted in Case Comments, Class Actions, Procedure, Torts

Introduction The United States Supreme Court has granted leave to appeal in a case that will clarify whether federal arbitration law permits the invalidation of arbitration agreements on the basis that they do not permit class arbitration.  This decision will have implications on the development of class arbitration, an emerging area of both American and… → Read More

Round and Round We Go: BCCA Declines Opportunity to Shape Leave Test in Secondary Market Class Actions

Posted in Case Comments, Class Actions, Corporate Law, Procedure, Securities, Torts

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… → Read More

Do Equitable Ends Justify Expanding “Unlawful Means”? The Supreme Court of Canada Grants Leave in A.I. Enterprises Ltd. v. Bram Enterprises Ltd.

Posted in Case Comments, Class Actions, Competition, Contracts, Insurance, Procedure, Torts

Introduction The Supreme Court has granted to leave to appeal in a case that has the potential to elucidate an area of tort law where confusion has reigned for far too long. In the words of the House of Lords, “the law in this area is a mess.” The subject that has engendered this confusion is the… → Read More

Order in the Court? The Van Breda Trilogy – Part V – Constitutional Issues

Posted in Conflict of Laws, Constitutional, Features, Media, Procedure, Torts, Van Breda Trilogy

The constitutionalization of private international law has been one of the major projects of the Supreme Court of Canada since the decision in Morguard. However, the precise relationship between the Constitution, and the “real and substantial connection” test, has yet to be fully defined. In the Van Breda Trilogy, the Supreme Court returned to this… → Read More

Back to Basic: US Supreme Court to Hear Amgen and Clarify “Fraud-on-the-Market” Reliance Presumption in Class Actions

Posted in Case Previews, Class Actions, Corporate Law, Securities, Torts

The Supreme Court of the United States has announced it will hear the appeal in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, setting the stage for an important clarification of the use of the “fraud-on-the-market” reliance presumption in U.S. securities class actions. The Court first set out the presumption in its 1988 landmark… → Read More

Can the Queen Be Taken at Her Word? Federal Court of Appeal Answers in Canada v. South Yukon Forest Corporation

Posted in Administrative, Case Comments, Construction and Real Estate, Contracts, Energy, Torts

The Federal Court of Appeal has clarified when the federal Crown will be held responsible for representations made by its officers. In issuing its decision, the Court opted for a narrow interpretation of the Crown’s liability and reiterated that parties that rely on the Crown’s representations have the responsibility to conduct their own due diligence.

Order in the Court? The Van Breda Trilogy – Part IV – Choice of Law

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

At the Supreme Court of Canada, choice of law has always been the poor cousin of private international law. While the Court has shown fascination with jurisdiction simpliciter, forum non conveniens and the recognition and enforcement of foreign judgments – cases such as Morguard, Amchem, Hunt, Beals, Pro Swing and Teck Cominco come to mind… → Read More

SCC to Determine Whether Provincial Workplace Safety Legislation Bars Negligence Claims for Deaths and Accidents at Sea

Posted in Case Previews, Labour and Employment, Torts, Transportation

Newfoundland (Workplace Health, Safety and Compensation Commission) v. Ryan Estate will provide an opportunity for the Supreme Court of Canada to reconsider the constitutional issues of interjurisdictional immunity and paramountcy since its landmark decision in Ordon Estate v. Grail. In Ordon Estate, the Supreme Court held that provincial legislative provisions providing for derivative claims for dependents… → Read More

Order in the Court? The Van Breda Trilogy – Part III – Forum Non Conveniens

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

Among the significant changes introduced by the Van Breda Trilogy is guidance from the Supreme Court of Canada on the forum non conveniens test. Although in many respects the judgments in Van Breda, Black and Éditions Écosociété would appear to simply reaffirm the existing forum law, LeBel J.’s judgments are notable for three reasons. First,… → Read More

Order in the Court? The Van Breda Trilogy – Part II – A New Test for Jurisdiction Simpliciter

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

The Supreme Court of Canada’s Van Breda Trilogy – and its judgment in Van Breda in particular – endorses a new approach to jurisdiction simpliciter focused on categories of prima facie jurisdiction. Building on the Ontario Court of Appeal’s judgment, which revised the old Muscutt test, the Court has attempted to introduce greater clarity and… → Read More

Order in the Court? The Van Breda Trilogy – Part I – An Overview

Posted in Conflict of Laws, Constitutional, Features, Procedure, Torts, Van Breda Trilogy

Order in the Court? The Van Breda Trilogy – Part I – An Overview In three cases released on April 18, 2012, the Supreme Court of Canada substantially reformulated the common law principles of private international law. In the coming weeks, Canadian Appeals Monitor will provide in-depth coverage of the Court’s judgments in Van Breda,… → Read More

Shoulda Woulda? Alberta Court of Appeal Considers the Mental Element of the Tort of Civil Conspiracy

Posted in Case Comments, Class Actions, Professions, Torts

Introduction The Alberta Court of Appeal has provided its latest contribution to the analysis of the tort of civil conspiracy. The case’s importance lies in its consideration of the mental element of the tort. The case is also interesting for the absence of any reference to the recent Ontario Court of Appeal jurisprudence on the matter,… → Read More