The doctrine of proprietary estoppel can enforce a promise to transfer real property to a person who acts to his or her detriment based on the promise. In Cowper‑Smith v. Morgan, 2017 SCC 61, the court confirmed that proprietary estoppel can enforce a promise to transfer a property interest that the promisor does not have at the time of the promise. The decision raises other questions—such as whether proprietary estoppel can enforce a promise to transfer personal property—but leaves them unanswered.… Continue Reading
For nearly thirty years, the Commissioner of Competition has been able to assert ‘public interest’ privilege – on a class basis – to prevent the disclosure of documents obtained from informants in the course of its investigations. Not anymore.
Access by litigants to the Commissioner’s investigation file is an important and developing issue. In Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24, Justice Stratas, writing for a unanimous panel with Justices Boivin and Laskin, held that the Commissioner can no longer invoke ‘public interest’ privilege on a class-wide basis to prevent access. While the Commissioner can still … Continue Reading
In Delta Air Lines Inc. v. Lukács, 2018 SCC 2 (“Lukács”), the Supreme Court of Canada addressed two important issues in administrative law. First, the Court addressed the role that a Tribunal’s reasons play in judicial review for substantive error. Second, the Court addressed principles relating to public interest standing, including standing before regulatory tribunals.
Dr. Lukács was a self-described airline passenger advocate. Although not an obese person himself, he took issue with a policy of the appellant airline that sometimes resulted in obese passengers being moved to a different section of the airplane or bumped … Continue Reading
For a party wishing to appeal the decision of an Ontario judge or master, determining the appropriate Court to appeal to is occasionally not a straightforward matter. In some previous cases where there has been uncertainty between the parties as to the appropriate appeal route, single judges of appellate courts have been willing to provide direction to the parties on this question following a short chambers appearance.
In Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986 (“Assessment Direct”), Juriansz J.A. held that this practice is improper and a motion to a full three-member panel of … Continue Reading
In order to be admissible to Canada, permanent residents and foreign nationals must avoid “serious criminality” as set out in s. 36(1)(a) of Canada’s Immigration and Refugee Protection Act. That section provides that “serious criminality” is evidenced by being sentenced in Canada to a term of imprisonment of more than six months, or by being convicted of an offence punishable by a maximum term of imprisonment of at least 10 years.
In its October 19, 2017 decision of Tran v. Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada held that:
- a conditional sentence constitutes a “term
On September 15, 2017, the B.C. Court of Appeal rejected a challenge by the Trial Lawyers Association of British Columbia (“TLA”) to the constitutionality of legislation requiring civil litigants opting for a jury trial to pay the fees and expenses of the jury and jury process. TLA 2017 holds that provinces may impose such fees without interfering with the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867.… Continue Reading
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
In Camions Daimler Canada ltée v. Camions Sterling de Lévis inc., 2017 QCCA 798, the Quebec Court of Appeal confirmed that the duty to inform that exists between contracting parties, which has been recognized as a general principle of Quebec contractual law since the early 1980s, may also apply to third parties, insofar as they might be impacted by the contractual relationship.… Continue Reading
On June 2, 2017, the Ontario Court of Appeal decided, in what it described as a case of first impression, that a taxi company was not vicariously liable for a sexual assault allegedly committed by one of its employees, absent any evidence of fault on its part.
Following the Court’s review and affirmation of the leading jurisprudence on vicarious liability, it is doubtful that any car passenger service company could be found liable for the independent and wrongful criminal conduct of its drivers.
The Appellant was intoxicated and feeling unwell while at a party. The Appellant’s friend ordered … Continue Reading
In R v. Cody, 2017 SCC 31, the Supreme Court of Canada reiterated its earlier call for reform to the criminal justice system, criticizing a “culture of complacency” toward delays. The Court’s insistence on reform may be good news for participants in the civil justice system, too, who have seen many civil actions delayed as courts devote their limited resources to clearing their criminal dockets.… Continue Reading
Is a Plaintiff required to prove that they suffer from a recognized psychiatric illness in order to recover for mental injury? The Supreme Court has definitively said the answer is “no” in their recent decision in Saadati v Moorhead, a case that will be critically important to anyone who regularly prosecutes or defends personal injury claims.… 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
In Smithies Holdings Inc. v. RCV Holdings Ltd., 2017 BCCA 177, the BC Court of Appeal considered whether special costs can be awarded based on pre-litigation conduct. The Court reviewed the conflicting jurisprudence and unanimously concluded that a bright line should be drawn: pre-litigation conduct should not be considered in determining whether to award special costs.… 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
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
On February 16, 2017, the Supreme Court of Canada refused leave to appeal the 2016 decision of the Ontario Court of Appeal in Campbell v. Bruce (County): a case in which an Ontario municipality that operated a mountain biking adventure park (the “Bike Park”) was found liable, as occupier, for the accident that rendered cyclist Stephen Campbell a quadriplegic.… Continue Reading
Is a $5 million fine a less severe punishment than a night in jail? Are hefty financial penalties for quasi-criminal or regulatory offences able to trigger the procedural protections of the Canadian Charter of Rights and Freedoms when combined with the threat of imprisonment? The Supreme Court of Canada had the opportunity to address these questions when it recently released the twin decisions of R v Peers, 2017 SCC 13 and R v Aitkens, 2017 SCC 14.… Continue Reading
One of the first lessons I remember being taught as a law student about statutory interpretation was to look at both the words of the statute and the purpose Parliament intended in enacting the statute. I quickly learned that statutory interpretation can be somewhat of a headache because, sometimes, the words and the purpose of the statute are at odds with each other. What to do then?… Continue Reading
In Styles v Alberta Investment Management Corporation (“Styles”), the Alberta Court of Appeal provided useful guidance on the application of the organizing principle of good faith in contractual performance, established by the Supreme Court of Canada in its landmark decision Bhasin v Hrynew (“Bhasin”). Since Bhasin, there has been a lack of clarity on how to apply and consider the organizing principle. In Styles, the Alberta Court of Appeal (1) expressly declined to expand the organizing principle to create a “common law duty of reasonable exercise of discretionary contractual powers”, (2) recognized other key … Continue Reading
In two recent companion decisions, the Supreme Court of Canada affirmed the importance of litigation privilege and solicitor-client privilege to the Canadian legal system. In Lizotte v. Aviva Insurance Company of Canada (Lizotte), the Court recognized litigation privilege as a distinct and fundamental principle of the administration of justice, while in Alberta (Information and Privacy Commissioner) v. University of Calgary (Alberta (Information and Privacy Commissioner)), the Court focused on issues of solicitor-client privilege. These decisions both confirm that for the legislature to abrogate either litigation privilege or solicitor-client privilege, nothing less than clear and … Continue Reading
In Mennillo v. Intramodal Inc. 2016 SCC 51, the most recent consideration of the oppression remedy by the Supreme Court of Canada (released on November 18, 2016), the majority confirmed the oppression remedy’s equitable purpose, and held that a corporation’s failure to comply with the CBCA does not, on its own, constitute oppression.
This decision, with particular applicability to small, closely held corporations, reiterated oppression remedy principles set out in the 2008 Supreme Court decision of BCE Inc. v. 1976 Debentureholders, that the remedy is concerned with fairness and business realities, rather than narrow legalities.… Continue Reading
In a decision released on December 8, 2016, the Ontario Court of Appeal allowed an appeal from partial summary judgment, holding that issues of indeterminate auditor liability should proceed to trial.
In 1998, an accounting fraud was discovered at Philip Services Corp. (“Philip”), a publicly traded company. The Plaintiffs alleged that Philip’s auditors, Deloitte and Deloitte Touche Tohmatsu (“Deloitte”) gave unqualified opinions in connection with its audits of Philip’s consolidated financial statements for the financial years ending December 31, 1995 and 1996.… Continue Reading
The Supreme Court of Canada’s decision in Bhasin v. Hrynew – on which this blog has commented – marked a sea change in Canadian contract law. In Bhasin, the Court recognized an “organizing principle of good faith” in contractual relations that underpins numerous specific doctrines, including, for example, unconscionability and the treatment of discretionary contractual powers.… Continue Reading
A recent article, published by McCarthy Tetrault LLP may be of interest to readers of the Canadian Appeals Monitor blog.
The Supreme Court of Canada released a landmark decision on November 17, 2016 giving important guidance on how Canada’s federal privacy law, the Personal Information Protection and Electronic Documents Act, should be interpreted in Royal Bank of Canada v. Trang, 2016 SCC 50.… Continue Reading