In its much anticipated decision in Deloitte & Touche v. Livent Inc. (Receiver of), the Supreme Court of Canada has considerably reduced the damage award payable by an auditor after it failed to detect a colossal fraud perpetrated by the directors of Livent. While the amount of the award remains significant at $40,425,000, this is less than half of the $84,750,000 initially awarded by the lower courts. In reaching this result, the Court provided clearer guidance on when an auditor may be liable to its corporate client in cases of negligent misrepresentation or performance of a service. Significantly, where … Continue Reading
Circumstances change and what is true today may not be true tomorrow. For that reason, some representations carry with them the obligation to advise the representee if the relevant circumstances change. These are usually referred to as “continuing” representations.
But can a continuing representation carry with it the obligation to update a third party, to whom the representation was not even made? The UK Supreme Court says it can in Cramaso LLP v Ogilvie-Grant, Earl of Seafield and Others, a case with a peculiar set of facts which may have broad implications for parties engaged in pre-contractual negotiations.
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 collapses, does an Ontario court have jurisdiction over the subsequent legal dispute between the parties?… Continue Reading
When does a cause of action for negligent misrepresentation crystalize such that it triggers the running of the applicable limitation period? The British Columbia Court of Appeal addressed this issue recently in Weldon v. Teck Metals Ltd., 2013 BCCA 358.
The pertinent facts of the Weldon case are as follows. The employees of the defendant Teck participated in a defined benefit pension plan. The defendant Teck offered the employees the option of transferring their pensions from the defined benefit plan to a newly-established defined contribution pension plan, effective January 1, 1993. The plaintiffs chose to do so. However, … Continue Reading
In Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, the Supreme Court of Canada ruled that a law firm breached its duty to avoid conflicting interests, its duty of commitment to its client’s cause, and its duty of candour to its client when it, without its client’s consent or knowledge, accepted a significant retainer against its client and terminated various retainers with its client in the process. However, the … Continue Reading
The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.
In Newfoundland and Labrador v. AbitibiBowater Inc., 2012 SCC 67, the majority of the Court held that environmental protection orders issued under provincial legislation, which required an insolvent company to undertake remediation measures but which were not expressed in monetary terms, nonetheless amounted to “claims” under the Companies’ Creditors Arrangement Act (“CCAA“) that could be stayed and subject to a claims procedure order in the context of CCAA proceedings. The Court observed that not all environmental protection orders will … Continue Reading
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 decision in Basic Inc. v. Levinson, 485 U.S. 224 (1988). The Amgen decision will have an impact in Canada, where courts have grappled with the question of reliance in such cases. Generally, Canadian courts have been sceptical about importing a “fraud-on-the-market” approach, but … Continue Reading
The United Kingdom Supreme Court has granted permission to appeal in a case involving the duty of care for negligent misrepresentation. The appeal in Scullion will require the Court to consider whether a property surveyor, which prepared a valuation report for the property purchaser’s mortgagee, owed a duty of care to the purchaser himself, even though he acquired the property for investment rather than residential purposes.
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The United States Supreme Court has allowed the appeal in KPMG LLP v. Robert Cocchi, reinforcing its policy preference for arbitrability, even in cases where some causes of action are arbitrable, while others are not. In particular, the Court stated that “[a] court may not issue a blanket refusal to compel arbitration merely on the grounds that some of the claims could be resolved by the court without arbitration.”
The case arose out of an action by a number of individuals and entities who bought limited partnership interests in one of three limited partnerships known as Rye