Dentons

Toronto ON

Dentons is a global law firm built on a legacy of pioneering and innovation. Founded by three highly-regarded law firms, Dentons is polycentric and maintains a coherent culture of diversity and international focus free from any dominant culture. We have no single headquarters or cultural identity, regardless of the heritage of our constituent parts.

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Updates

Capital Markets

OSC bans Conrad Black from holding key roles in public entities
Canada | May 05 2015

The Ontario Securities Commission recently prohibited Conrad Black from any activity that would enable him to direct or influence the management of a business required to comply with Ontario's securities laws. The decision demonstrates that the commission will adopt a broad approach to its interpretation of the Securities Act in order to protect investors and Ontario's capital markets.

Competition & Antitrust

Leniency procedure not contrary to Constitution
France | July 02 2015

An appeal was filed before the Supreme Court against a Competition Authority decision for an application for a priority preliminary ruling on constitutionality, arguing that the Commercial Code establishes that the leniency procedure is contrary to the rights and freedoms guaranteed by the Constitution. However, the court found that the leniency procedure is part of the authority's sanctioning power and dismissed the appeal.

Competition Authority fines EIG for not respecting 2006 commitments
France | June 18 2015

Les Indés Radios, an economic interest group (EIG), was the subject of a complaint for having insufficient objectives and transparent admission and leaving conditions. The EIG implemented new commitments but the Competition Authority noted that the EIG later made modifications contrary to its commitments. The authority fined the EIG €300,000 and ordered it to modify its internal regulations.

Trade association can be ordered to pay fine exceeding 5% of income
France | June 04 2015

The Paris Court of Appeal recently confirmed that a trade association cannot benefit from the 10% turnover cap applicable to fines imposed on companies because a specific €3 million cap is provided for associations and other offenders which are not companies. The decision imposed a more severe fine than that which would have been ordered if the same offence had been committed by a company and not an association.

Information asymmetry can constitute abuse of dominant position
France | March 12 2015

The Competition Authority has fined Télédiffusion de France €4.2 million for abusing its dominant position by creating information asymmetry with its competitors. The decision confirms that when responding to invitations for bids, economic operators must guard against practices that may be characterised as abuses of dominant position or, as illustrated by other cases, concerted practices.

Healthcare & Life Sciences

Increasing means of repression in the pharmaceutical field
France | May 20 2015

A new circular has clarified the powers of the National Agency for Medicines and Health Products (ANSM). The powers of ANSM inspectors have been expanded, and penalties for infringing the regulations have been reorganised and increased. The new regulations demonstrate that pharmaceutical practices will be monitored more tightly.

Litigation

Judicial oversight required when seeking relief from deemed undertaking
Canada | February 21 2017

A recent decision dealt with the issue of how a party to a civil action should proceed when seeking to use documents produced under compulsion when that party seeks to impeach a witness in a criminal case, against the background of the deemed undertaking which restricts the use of evidence disclosed in a civil action. The decision raises an interesting issue regarding delaying the timing of production of documents from a plaintiff in a civil action.

Ontario Court of Appeal affirms high threshold for application of forum of necessity doctrine
Canada | January 24 2017

The Ontario Court of Appeal recently affirmed that Ontario courts will not assume jurisdiction over a claim merely because Ontario is the only remaining forum available. The court held that the forum of necessity doctrine, an exception to the assumption of jurisdiction analysis previously set out by the Supreme Court of Canada, will not ordinarily apply to allow an Ontario court to assume jurisdiction over a matter where the limitation period in the proper forum has expired.

"Gimme shelter": expert testimony immunity
Canada | January 17 2017

The Ontario Superior Court of Justice recently reaffirmed the principle that a testifying expert enjoys immunity from a subsequent lawsuit arising out of the testimony that he or she has previously given in court. This decision is a welcome development for experts and a reminder to parties that a court facing diverging expert opinions must choose one expert's testimony over another without it necessarily being implied that the testimony of the unsuccessful party's expert was rendered negligently.

Court of appeal certifies class action dominated by foreign investors
Canada | January 10 2017

A divided Court of Appeal for Ontario recently granted certification to a global class of accredited investors in an auditor's liability claim, and held that there is no independent principle of restraint to which a court should adhere when certifying a global class. The decision creates a precedent for parties seeking to certify global class actions in Ontario, but will also limit the comfort that parties take in their certification decisions.

Supreme Court elevates solicitor-client and litigation privilege
Canada | December 20 2016

The Supreme Court recently issued two decisions on privilege – one on solicitor-client privilege and the other on litigation privilege. These two cases affirm that solicitor-client and litigation privilege do much more than just shield evidence from disclosure in adversarial civil proceedings and can be asserted in administrative or regulatory proceedings, including access to information requests and professional standards investigations.

Doctrine of collateral attack and issue estoppel
Canada | December 13 2016

It is not uncommon for defendants to assert the defences of collateral attack and issue estoppel in pleadings where it is considered that the plaintiff is intending to re-litigate a matter previously considered and disposed of by a court. Often untested, whether these are tenable defences is left undetermined, as plaintiffs rarely move to strike out portions of statements of defences pleading collateral attack and/or issue estoppel.

The cost of a wrongful injunction
Canada | December 13 2016

A recent Ontario Court of Appeal decision ended a decade-old case in which the plaintiffs were ultimately saddled with having to pay a damages award of C$954,576 to the defendants. This case should encourage counsel and their parties to carefully ensure that any evidence put before the court has been tendered fairly and squarely.

'Let's go surfing now' – spoliation revisited
Canada | December 06 2016

A recent high-profile decision of the Ontario Superior Court of Justice (Commercial List) involved an allegation by plaintiff Catalyst that the corporate defendant West Face Capital Inc misused confidential information belonging to Catalyst that defendant Moyse allegedly acquired while employed by Catalyst. The court considered whether spoliation had taken place and, if so, whether it should be recognised as an independent tort in Ontario.

"Clean up, clean up, everybody clean up": the doctrine of clean hands
Canada | December 06 2016

On occasion, in response to a motion or claim by an adverse party seeking equitable relief, a party will argue that the relief sought should be denied on the basis that the moving party has not come to court with 'clean hands'. Lawyers should not be quick to use the doctrine unless there is a reasonable basis for doing so; however, it remains a powerful weapon.

Procedural fairness and disclosure obligations in investigations by agencies with special expertise
Canada | November 29 2016

The landmark case Baker v Canada established a test for procedural fairness with regard to judicial review of administrative decisions and addressed the fairness and disclosure to which an applicant is entitled in a proceeding. In light of the investigation into Hillary Clinton's deleted emails, it is timely to explore the intersection between the considerations of procedural fairness as imposed by Baker and allegations of procedural fairness and unfair investigations conducted by agencies with expertise.

Hyperbole – the danger of overstating a case
Canada | November 29 2016

The recent decision in Royal Bank of Canada v Boussoulas, as upheld by the Ontario Divisional Court, provides a valuable lesson to parties and their counsel who overstate or misstate their case in the context of seeking interlocutory equitable relief. The court was persuaded by the responding parties that the relief should be declined, as the moving party made numerous allegations of fraud that it did not make out or advance in oral argument.

Court of appeal affirms jurisdiction over Israeli publisher
Canada | November 22 2016

In the wake of a recent Ontario Court of Appeal decision, non-Canadian publishers of online content may be required to defend defamation proceedings in Canadian courts, even if the bulk of their audiences are located outside Canada. The case sheds light on the complex and divisive jurisdictional issues that often accompany internet defamation proceedings.

Negligent investigation, malicious prosecution and misfeasance in (abuse of) public office
Canada | November 15 2016

A recent Ontario Superior Court of Justice decision provides a helpful analysis of whether an action for negligent investigation, malicious prosecution and misfeasance in (abuse of) public office lies against a regulatory body and its investigatory staff. As regards the abuse of process doctrine, the court found that the disputed action was not an attempt to re-litigate a claim that had already been determined at a Law Society Appeal Division hearing and, as such, refused to dismiss the action on that basis.

Supreme Court of Canada confirms judges' jurisdiction to sit extra-provincially without video link
Canada | November 08 2016

The Supreme Court of Canada recently confirmed the discretionary power of superior court judges to sit outside their home province without a video link to an open courtroom in their home province. The decision clarifies an important point of procedure in pan-Canadian class actions – encouraging judges to employ pan-national solutions to ensure that the process works efficiently, expeditiously and cost effectively.

Men without hardhats: freedom of religion loses out to workplace safety
Canada | November 01 2016

The Quebec Superior Court recently ruled on whether individuals of the Sikh religion could be exempted from a work policy that required all workers to wear a hardhat. The judge ruled that although the policy was discriminatory and violated the right to freedom of religion, it was justified given its imperative objectives. The decision is significant as it is a rare case of transposition of the protections granted under the Quebec Charter of Human Rights and Freedoms to a federally regulated workplace.

Judges may weigh evidence on leave motions in secondary market securities class actions
Canada | October 11 2016

The Ontario Court of Appeal recently upheld a decision refusing leave to commence an action for secondary market misrepresentation under the Ontario Securities Act. The decision confirms that the test for leave in statutory secondary market claims must be viewed as a substantive hurdle to such claims and that judges considering a motion for leave must weigh and evaluate the evidence before them.

Supreme Court narrows scope of CRA's power to force disclosure
Canada | October 04 2016

The Supreme Court has unanimously upheld the primacy of professional secrecy under solicitor-client privilege in two cases considering the enforcement of disclosing accounting records to the Canada Revenue Agency. This provides welcome news for counsel acting for taxpayers, as well as international companies and companies involved in cross-border transactions.

Ontario Court of Appeal lifts stay in cross-border class action
Canada | September 27 2016

A recent Ontario Court of Appeal decision demonstrates the interrelated nature of cross-border class proceedings. Courts in both Canada and the United States may look to the substantive and procedural law in each jurisdiction when considering the conduct of class proceedings. In Canada, the existence of a foreign class action may be sufficient to stay Canadian claims, unless a plaintiff will be prevented from pursuing its substantive rights.

New protocol for notifying media of discretionary publication bans
Canada | September 20 2016

The Ontario Superior Court has implemented a formal protocol for notice to be provided to the media where a discretionary publication ban is sought in civil, criminal or family proceedings. Where a party intends to seek a discretionary publication ban, it must file a notice of request for the publication ban setting out the nature of the ban being sought, which will be made available to all media outlets included on a list maintained by the court.

Supreme Court clarifies test for assuming jurisdiction based on contract connected with dispute
Canada | August 16 2016

A recent Supreme Court decision demonstrates that determining the last essential act to contract formation will not always be a clear-cut exercise, and that parties may seek to set out what the last essential act of contract formation is through the contract itself, in order to have some control over where the contract might later be found to have been made.

"Scowling visage" not grounds for judicial recusal
Canada | August 09 2016

The Ontario Court of Appeal recently confirmed that a judge's face is off limits as grounds for judicial bias. In a concise 20-paragraph endorsement, Justice Doherty put litigants on notice: they are not entitled to pick their judge and judges will not step aside when presented with specious bias claims, even when their physical appearance is under scrutiny.

Passenger claims for damages against international air carriers under Montreal Convention
Canada | July 19 2016

Air carriers conducting flights into and out of Canada are subject to potential liability to passengers for any physical injury incurred while planing and deplaning or during flight. This liability was recently assessed in two cases in which the courts detailed the liability of air carriers to their passengers. International air carriers should consider adopting a number of key practices to reduce their exposure to potential liability to passengers or the Ministry of Transport.

Media coverage in politics: court draws line between critical political reporting and defamation
Canada | July 05 2016

A recent judgment by the Court of Queen's Bench of Alberta is noteworthy for its careful analysis of where political reporting may become the proper subject of a defamation action and its appraisal of significant damages for the ongoing online publication of the defamatory material. This case will be of particular interest to media organisations that are looking for guidance on how to respond to a latent defamation suit.

The ineffectiveness of publication bans
Canada | June 07 2016

The widespread use of social media provides for the almost instantaneous dissemination of news and information to the public. The Ontario judiciary is grappling with the consequences of this and the impact on trial fairness – in particular, the balancing of a litigant's right to a fair trial with the public's right to freedom of expression. Where courts would historically have ordered a publication ban, more stringent confidentiality orders are now required.

Supreme Court of Canada affirms robust World Bank immunities in global anti-corruption case
Canada | May 31 2016

In a recent and unanimous decision, the Supreme Court of Canada affirmed the broad immunities and privileges granted to the archives and personnel of the World Bank Group, and clarified Canada's domestic requirements for third-party production orders in the context of wiretaps used to intercept private communications.

Court clarifies scope of underwriter liability in securities class actions
Canada | May 24 2016

The Ontario Superior Court of Justice recently considered a motion to add the underwriters of a bought deal secondary public offering as defendants to a proposed securities class action lawsuit. The court clarified the nature and extent of underwriter liability, particularly in the context of primary and secondary market misrepresentation claims under the Ontario Securities Act.

Federal Court dismisses judicial review application for delay
Canada | May 17 2016

Under the Federal Courts Act, a party may bring an application for review of a discretionary decision of a government board, commission or other tribunal. Generally, the application must be made within 30 days of the decision. The Federal Court recently dismissed a taxpayer's application for judicial review of a discretionary decision of the Canada Revenue Agency since the taxpayer had missed the 30-day deadline.

Secondary market securities class action dismissed based on evidence
Canada | May 10 2016

The Ontario Superior Court of Justice recently dismissed two motions: one for leave under the Ontario Securities Act to commence an action for secondary market misrepresentation and one for certification to proceed as a class action under the Class Proceedings Act. In doing so, the court confirmed the close analytical relationship between requests for leave under the Ontario Securities Act and motions for class action certification under the Class Proceedings Act.

Equitable doctrine of fraudulent concealment
Canada | April 26 2016

Fraudulent concealment is an equitable doctrine that, if proven, operates to toll the applicable limitation period until the plaintiff can reasonably discover his or her case. The jurisprudence relating to fraudulent concealment has remained relatively stable over the past three decades, following the Supreme Court of Canada's consideration of whether a limitation period defence can apply in light of an allegation of fraudulent concealment.

Buyer beware: Investment Canada Act does not prohibit disclosure of written undertakings by foreign investor
Canada | March 22 2016

The Court of Appeal for Ontario recently addressed whether Section 36 of the Investment Canada Act protects a foreign investor that has entered into a settlement agreement with the minister of innovation, science and economic development from having to produce written undertakings contained in the settlement agreement in subsequent litigation.

Supreme Court considers limitation period for secondary market securities class actions
Canada | February 02 2016

The Supreme Court of Canada recently released its highly anticipated decision in a trilogy of shareholder class actions under the secondary market liability provisions of the Ontario Securities Act. At issue was whether the Class Proceedings Act suspends the limitation period applicable to a claim under the Ontario Securities Act when a plaintiff files a statement of claim or motion for leave, or whether it is suspended only once leave has been granted.

What constitutes a 'public correction' for the purpose of secondary market misrepresentation class actions?
Canada | January 26 2016

The Ontario Superior Court of Justice recently considered, for the first time, what constitutes a public correction of an alleged misrepresentation in a secondary market securities class action. The decision clarifies that the public correction requirement's primary purpose is to serve as a "time-post" for the assessment of damages; it is not meant to be a significant hurdle to obtaining leave to bring an action for damages.

Tenny v Ontario: appeal court clarifies permissible procedure for service of summons ex juris
Canada | January 19 2016

In the context of a prosecution of an environmental regulatory offence, the Ontario Court of Appeal has unanimously held that a summons is considered properly served on an individual residing outside Canada if it is delivered by registered mail to the person's last known address abroad. The case confirms that service of a summons ex juris is expressly permitted under the Provincial Offences Act for both individuals and corporations.

Court applies 'closest and most substantial connection' test to contract dispute
Canada | December 15 2015

The Ontario Court of Appeal recently examined the issue of which province's law applies to a multi-jurisdictional sale of goods contract in which the parties themselves failed to address the matter in their agreement. The decision is significant because the court affirmed the longstanding choice of law test that focuses on which jurisdiction has the "closest and most substantial connection" to the contract.

Court stays action against son of former Iranian president in favour of litigation in England
Canada | December 08 2015

A recent Ontario Court of Appeal decision offers several lessons to litigants contemplating or currently engaged in forum non conveniens motions. Although they should not rely too heavily on this factor, owing to the principle of comity, parties opposing a stay of proceedings in Canada must, wherever possible, lead evidence as to the loss of juridical advantage that they would actually suffer should the matter be heard in the proposed alternative jurisdiction.

Nortel saga: bondholders not entitled to post-petition interest
Canada | November 03 2015

In the latest development in the Nortel insolvency proceedings, the Ontario Court of Appeal decided that the common law interest stops rule applies in proceedings under the Companies' Creditors Arrangement Act. The interest stops rule requires that creditors' claims stop accruing interest from the date of the Companies' Creditors Arrangement Act filing. Accordingly, the appellant bondholders in Nortel were not entitled to claim interest accruing post-filing.

Supreme Court releases leading decision on enforcement of foreign judgments
Canada | September 29 2015

The Supreme Court recently released its highly anticipated decision in Yaiguaje v Chevron Corporation, favouring a relaxed approach to the recognition and enforcement of foreign judgments in Canada. The decision, which both clarifies and curtails jurisdictional defences available to judgment debtors whose assets or operations extend across multiple forums, further facilitates the enforcement of foreign judgments in Canada.

Ontario court assumes jurisdiction over Israeli publisher in online defamation claim
Canada | September 15 2015

In the internet era written material can be distributed to a global audience via the Internet, but this communication technology is often matched by attendant risks. A recent Ontario Superior Court of Justice decision acts as a warning for prudent publishers as it demonstrates that Canadian courts will not hesitate to require international publishers of online content to defend actions brought in Canada.

Fairmont: court dismisses crown's appeal in rectification case
Canada | August 04 2015

The Ontario Court of Appeal has dismissed the crown's appeal in Fairmont Hotels Inc v AG (Canada). On appeal, the crown argued that the lower court had misapplied the test for rectification because the parties had not determined the specific manner in which their intention to avoid tax would be carried out. The decision is an important affirmation of the result and reasoning in Juliar v AG (Canada).

Hague Convention – service of documents abroad
Canada | July 28 2015

Obtaining judgment against an adversary is the first and often most heavily contemplated step for litigators and litigants alike. However, equally important is a litigant's ability to enforce a judgment, particularly against a non-resident party. As Canada is a signatory to the Hague Convention, service of documents on a Canadian corporation or individual must comply with the convention's prescribed steps.

Court rules on taxation of foreign exchange derivatives gains/losses
Canada | July 21 2015

In Kruger Incorporated v The Queen the Tax Court held that the taxpayer could not value its foreign exchange options contracts on a mark-to-market basis, with the result that certain losses were not deductible by the taxpayer in a year. Kruger is another recent judgment of the Tax Court in the developing law on the Canadian tax treatment of financial derivative products.

Supreme Court raises bar for leave to bring secondary market securities class actions
Canada | July 14 2015

The Supreme Court recently ruled that Section 225(4) of the Quebec Securities Act – requiring plaintiffs to show that their claims are brought in good faith and with a reasonable chance of success – is not an obstacle to obtaining court authorisation for an action against reporting issuers, directors, officers or experts for damages resulting from the acquisition or disposition of securities in the secondary market.

Costs awards in class actions: equal treatment for plaintiffs and defendants
Canada | June 30 2015

The Ontario Divisional Court recently rejected the notion that Ontario courts should treat plaintiffs and defendants differently when determining costs in cases that raise novel issues or matters of public interest. In doing so, the court disabused many of the assumption that in class proceedings, only unsuccessful plaintiffs may be relieved of their obligation to pay costs in appropriate circumstances.

SCC rules on expert witness independence and impartiality
Canada | June 02 2015

The Supreme Court of Canada recently released two decisions concerning the admissibility of expert evidence. The decisions concerned the appropriate considerations in determining whether an expert witness is sufficiently independent and impartial, and whether the standards for admissibility of expert evidence should take into account the proposed expert's (alleged) lack of independence or bias.

Carey v Laiken: Supreme Court considers civil contempt of Mareva injunctions
Canada | May 12 2015

The Supreme Court recently ruled in Carey v Laiken, restoring a finding of contempt against a lawyer that returned trust funds to his client in the face of a Mareva injunction. The decision reinforces the seriousness with which the courts view a breach of the terms of Mareva orders and highlights the available remedies for the court and aggrieved parties where parties do not comply with such orders.

Appeal court provides assurance to banks with the right verification requirements
Canada | April 28 2015

The Ontario Court of Appeal has issued a decision which provides strong authority that a clearly worded verification requirement in an account operating agreement can be a complete defence to a claim for unauthorised transactions. Careful drafting is required, but a financial institution can limit its risk by clearly stating that it is the client's responsibility to inspect transaction records and report errors.

Participant and non-party experts exempt from expert witness requirements
Canada | April 21 2015

The Ontario Court of Appeal recently examined whether participant experts and non-party experts could give opinion evidence without complying with Rule 53.03 of the Ontario Rules of Civil Procedure. According to the court, Rule 53.03 does not apply where the expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.

Appeal court confirms judge's inherent jurisdiction to sit outside home territory
Canada | April 07 2015

In Parsons v Ontario, the Ontario Court of Appeal has ruled that an Ontario Superior Court judge can preside at a hearing outside Ontario, provided that there is a video link back to an Ontario courtroom. By divided reasons the court upheld the decision of the motion judge that the court had the inherent jurisdiction to sit outside Ontario without violating the open court principle under Section 135 of the Courts of Justice Act.

Court generously interprets timeframe for foreign state to set aside default judgment
Canada | March 31 2015

The Ontario Superior Court of Justice recently held that a foreign state seeking to set aside a default judgment against it should not be hindered by the State Immunity Act. The case provides useful insights to lawyers litigating disputes involving foreign states and the interpretation of the State Immunity Act, as well as those involved in appellate advocacy generally.

Court of Appeal on judicial use of enhanced summary judgment powers
Canada | March 24 2015

The Ontario Court of Appeal has released a decision which signals that judges ought to exercise their expanded summary judgment powers under the Rules of Civil Procedure where highly conflicting evidence in the written record makes a credibility assessment impossible. Although the court listed examples of the types of analysis that the motion judge was required to undertake, summary judgment will not require the same procedures in every case.

Record-keeping and disclosure requirements offend principle of fundamental justice
Canada | March 17 2015

The Supreme Court of Canada recently held that certain record-keeping and disclosure requirements imposed on lawyers by anti-money laundering legislation offended the principle of fundamental justice, by effectively making lawyers "agents of the state". The court held that the provisions fell woefully short of protecting solicitor-client privilege.

Subsequent mortgagee loses priority for fraudulent prior discharge
Canada | March 03 2015

In a recent case the Ontario Superior Court of Justice considered applications from competing mortgagees to a property where the first charge had been discharged by fraud and subsequent mortgages were obtained. The court decided that although the subsequent mortgagees were innocent parties, unaware of the fraudulent discharge on the first mortgage, the first mortgagee was entitled to retain priority.

Ontario Court of Appeal deals blow to securities class actions
Canada | February 24 2015

A recent Ontario Court of Appeal decision considered an appeal of the dismissal of a proposed securities class action based on common law and statutory misrepresentation claims. The decision establishes that motion judges faced with a motion for leave to pursue a secondary market securities class action should take a hard look at the evidence, including expert evidence, on which the claim is based.

British Columbia appeal court sets territorial jurisdiction limits for superior courts
Canada | December 02 2014

The British Columbia Court of Appeal has held that a British Columbia superior court judge cannot preside at a hearing outside British Columbia. In so ruling the appeal court overturned a decision of the British Columbia Supreme Court, which had held that no constitutional principles or rules of law prevent a judge in British Columbia sitting outside the province.

Supreme Court introduces duty of honest contractual performance
Canada | November 25 2014

The Supreme Court's recent decision in Bhasin v Hrynew recognised a new common law duty of honest performance applicable to all contracts, which requires the contracting parties to be honest with each other in relation to the performance of their contractual obligations. In its decision the Supreme Court sought to introduce clarity and coherence into this area of the law which it described as "piecemeal, unsettled and unclear".

Supreme Court of Canada delivers landmark decision on contractual interpretation
Canada | November 04 2014

The Supreme Court of Canada's recent Sattva decision is a watershed in the law of contractual interpretation. The court unanimously abandoned the historical approach to contract interpretation and determined that it now "involves issues of mixed fact and law as it is an exercise in which the principles of contract interpretation are applied to the words of the written contract, considered in light of the factual matrix".

Ontario declines jurisdiction over BP cross-border securities class action
Canada | September 16 2014

The Ontario Court of Appeal recently released a unanimous decision regarding multi-jurisdictional securities class actions. In Kaynes v BP, PLC, an Ontario shareholder alleged that BP, PLC had made misrepresentations to its shareholders regarding, among other things, the extent of the 2010 Deepwater Horizon oil spill, which negatively affected the price of its shares.

The Conrad Black saga continues: OSC affirms reciprocal order power
Canada | July 08 2014

In yet another instalment of the long-running saga involving former media mogul Conrad Black, the Ontario Securities Commission (OSC) recently denied Black's motion to stay the OSC's proceeding against him involving allegations of securities fraud alleged to have been committed by Black as former chief executive officer of media company Hollinger Inc.

When does a confidentiality clause displace the exception to settlement privilege?
Canada | June 24 2014

In Union Carbide Canada Inc v Bombardier Inc the Supreme Court of Canada recently considered whether a mediation contract with an absolute confidentiality clause displaced the common law settlement privilege and, more specifically, the exception to that privilege which enables parties to disclose evidence of confidential communications in order to prove the existence or terms of a settlement agreement.

Interlocutory challenges to requests to admit: putting teeth into the procedure
Canada | April 15 2014

The request to admit is an important tactical tool to narrow issues and streamline the lengthy trial process, as it provides a simplified format for the admission of facts. The Ontario Superior Court of Justice has recently given new teeth to the rule by affirming that, in addition to potential costs consequences, an improper response to a request is also subject to interlocutory review.

Jurisdiction over dispute where defendant has no connection to province
Canada | April 08 2014

In a recent decision, the Ontario Superior Court of Justice considered whether it had jurisdiction over a claim against a foreign defendant. The court assumed jurisdiction notwithstanding that there was no connection between the defendant and Ontario other than the plaintiff's statutory cause of action for secondary market misrepresentation under Ontario's Securities Act.

The 'indoor management rule' explained
Canada | April 01 2014

A person dealing with a corporation need not inquire about the formality of the internal proceedings of the corporation, but is entitled to assume that there has been compliance with the articles of association and bylaws. This principle, known as the 'indoor management rule', was authoritatively laid down in Royal British Bank v Turquand and eventually codified into law. It is based on principles of fairness and practicality.

Changing cost trends in class actions
Canada | March 18 2014

Five decisions have been released that address legal principles relating to awards of costs on class action certification motions cases. The cases send a clear message to the class action bar: "Access to justice, even in the very area that was specifically designed to achieve this goal, is becoming too expensive."

Security for costs motions
Canada | March 11 2014

All jurisdictions in Canada are 'costs jurisdictions', meaning that the losing party in a lawsuit must generally pay a portion of the legal costs of the successful party. Fortunately, the courts in each jurisdiction allow the defendant to bring a motion for security for costs, which prevents the plaintiff from continuing to advance its claim until it posts security to satisfy a potential adverse costs award.

Lawyers beware – risks of giving investment advice to clients
Canada | March 11 2014

Lawyers providing investment advice or services to clients may find themselves unprotected against claims arising out of these services. A recent court decision serves as an important reminder to review insurance policies for coverage and exclusions carefully, or face potentially significant financial consequences if coverage is not extended.

Court rules on enforcement of foreign judgments against Canadian subsidiaries
Canada | March 04 2014

The Ontario Court of Appeal has addressed the jurisdiction of Ontario courts to recognise and enforce foreign judgments. The decision is important because it indicates that enforcement actions can proceed in Ontario to recover from uninvolved Canadian subsidiaries of foreign corporate wrongdoers.

Remedies for suing the wrong party
Canada | March 04 2014

It is not uncommon for a plaintiff to misname a defendant in a statement of claim. Typically, if the plaintiff has served the claim on the correct defendant, the parties acknowledge the error and move on with the litigation. However, the failure to name the correct defendant may have prejudicial consequences, especially if the limitation period for bringing an action to advance the claim has expired.

The meaning of 'unlawful' in the tort of unlawful means
Canada | February 25 2014

The test to prove the unlawful means tort has been highly debated over the last decade in Canada. More specifically, courts have long struggled to define the 'unlawful means' element of the tort and the area of law has been described as a "mess". However, a recent court decision provides clarity on the scope of the unlawful means element.

Test for granting leave to sue court-appointed receiver
Canada | February 18 2014

After becoming the custodian of a company in receivership, a court-appointed receiver may face lawsuits of varying degrees of merit. However, court-appointed receivers receive a measure of protection by virtue of the Bankruptcy and Insolvency Act, which provides that no proceeding may be commenced against an official receiver or interim receiver without first obtaining leave of the court.

Moore v Getahun: lawyers are not permitted to review and shape draft expert reports
Canada | February 11 2014

An Ontario Superior Court of Justice decision will have major implications on the practice of lawyers reviewing draft expert reports. As a medical malpractice case in which liability was determined primarily on issues of standard of care and causation, it is perhaps most important for the court's pronouncement that: "Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable"

Court rules on limitation period for anticipatory breach of contract
Canada | February 04 2014

The Court of Appeal for Ontario recently addressed the issue of when the limitation period begins to run for an anticipatory breach of contract. Its decision provides an answer to the ongoing debate of whether the limitation period will commence as soon as the defendant indicates that it will breach a future obligation under a contract or when it actually fails to perform the obligation.

Strategies on moving to enforce and responding to letters rogatory in Ontario
Canada | January 21 2014

An Ontario court will readily exercise its discretion to refuse the enforcement of a letter rogatory application if it determines that the application is nothing more than a fishing expedition by a foreign litigant into Canadian waters. Local counsel play a critical role in satisfying the court that a letter rogatory should be enforced or resisted, as the case may be. There are several practical tips which they should bear in mind when doing so.

Think again, Jukebox Freddie: Supreme Court to rule on expert independence
Canada | January 14 2014

Experts have been accused of being 'hired guns' – expected to exaggerate, engage in advocacy or otherwise be a 'jukebox' and play any tune they are paid for. The courts have resolved issues of bias, impartiality and independence under the relevance component of Mohan where there is proof of actual bias or partiality. However, recently the courts have struggled where there is a perceived lack of independence.

Class action trilogy clarifies certification test, increases anti-competitive exposure
Canada | January 07 2014

Recent decisions made by the Supreme Court of Canada constitute a watershed moment in competition law in particular, and class proceedings in general. Indirect purchasers – that is, consumers who did not purchase products directly from the price fixer, but who purchased them indirectly from a reseller or other intermediary – have a right of action against the alleged price fixer at the top of the distribution chain.

Silver v Imax: the saga continues
Canada | November 19 2013

A recent Ontario Superior Court of Justice decision confirms that overlapping class members in parallel class proceedings will not be permitted to benefit from settlement in one jurisdiction while continuing to participate in the litigation vagaries in another, and that parties seeking leave to appeal from an interlocutory order are faced with a challenging task, especially in the context of class proceedings.

Supreme Court defers to restrictive covenants negotiated by commercial parties
Canada | November 05 2013

The Supreme Court recently upheld the validity of restrictive covenants contained in a commercial agreement for the sale of a business against a vendor who had become an employee of the purchaser after the sale. The decision indicates that where restrictive covenants are linked to a commercial rather than an employment agreement, the courts will show deference to the commercial bargain struck by the vendor and purchaser.

Enforceable non-compete clauses in business sales: the analytical framework
Canada | October 15 2013

Buyers and sellers of businesses in Canada should be aware of an established body of case law in respect of non-compete clauses. In connection with the sale of a business in Canada, such a clause operates largely to protect the purchaser. In a recent decision the Supreme Court underscored its contextual and pragmatic approach to the interpretation of non-compete agreements.

Federal Court of Appeal rules on liability of international air carriers
Canada | August 06 2013

In a recent decision the Federal Court of Appeal invoked the Montreal Convention, holding that passengers of international air carriers are not permitted to claim for damages or other remedies under domestic statutes if the harm arose in the course of international air travel. The court made clear that the limits on liability prescribed by the Montreal Convention bar claims made under domestic laws in virtually all cases.

Pierringer agreement settlement amounts need not be disclosed
Canada | July 16 2013

In Sable Offshore Energy Inc v Ameron International Corp the Supreme Court of Canada held that the settlement amounts contained in Pierringer agreements need not be disclosed to the remaining non-settling defendants in multi-party disputes. The decision is significant because the Supreme Court adopted a robust application of settlement privilege as it relates to the quantum of settlement.

Supreme Court denies leave to appeal in overtime class action
Canada | May 28 2013

The Supreme Court recently provided clarity in two leading employment class action cases for unpaid overtime. Two of Canada's largest and most prominent banks had sought leave to appeal the Ontario Court of Appeal's decisions to certify class action lawsuits against them. The Supreme Court's decision denied such leave; as a result, the two class actions will proceed to trial and will be decided on their merits.

Silver v IMAX: avoiding war on two fronts
Canada | April 30 2013

The Ontario Superior Court of Justice recently recognised the conditional settlement of a US class action, which had been approved by a US court, and granted an order to amend the class definition in the parallel Ontario class proceedings by excluding those persons that had been included in the US settlement. This decision will likely have important implications for litigants involved in parallel class actions in multiple jurisdictions.

No class action this time: Federal Court of Appeal upholds arbitration agreement
Canada | April 09 2013

The Federal Court of Appeal recently handed down its decision in Murphy v Amway Canada Corporation, affirming the Federal Court's decision and declining jurisdiction to hear a motion to certify a class action in respect of the Competition Act, given the parties' binding arbitration agreement and class action waiver. This decision saw the enforcement of both a binding arbitration agreement and a class action waiver.

Cultural revolution: judicial squeezing, pinching and hammering
Canada | March 26 2013

Litigators in Ontario have found themselves in the midst of what some jurists have called a "cultural revolution" with respect to the manner in which the courts expect litigants and their counsel to behave. One of the driving forces behind this has no doubt been the proliferation of protracted interlocutory disputes over the sufficiency and adequacy of documentary production that has hamstrung the court, spawning scheduling bottlenecks.

Quantum of settlement: accounting at trial for settlement moneys
Canada | March 12 2013

The lack of scholarly commentary on multi-party settlements raises interesting questions in the context of corporate, commercial and personal injury litigation. What are the rights and obligations of the parties? How does the court reconcile the litigants' competing interests - namely, the privileged nature of communications in furtherance of settlement and the non-settling defendants' right to know the case against it?

Sunshine north of the US border for the plaintiff securities class
Canada | February 05 2013

A recent landmark decision raises the question of whether the Canadian courts' application of the 'real and substantial connection' test makes Canada a more attractive destination than the United States for investors seeking to commence class actions against multinational companies whose shares are traded on a foreign exchange and which have a significant presence in North America - specifically, Ontario.

Production of documents from court-appointed receivers
Canada | January 29 2013

The Ontario Court of Appeal recently considered whether the appellant was entitled to production of documents and information from the court-appointed receiver that had been appointed to investigate a Ponzi scheme in which the appellant was allegedly involved. The decision is important because of the protection it affords both to court-appointed receivers and to the procedural integrity of regulatory tribunals.

Reducing the expense of multi-party litigation through partial settlement agreements
Canada | October 30 2012

Litigation is an expensive process; litigation involving multiple defendants even more so. One obvious way of reducing litigation costs is by entering into settlement agreements with one or more defendants. These agreements often take the form of 'Mary Carter' or 'Pierringer' agreements. While both of these agreements are partial settlement agreements, they have different characteristics.

Covenants in restraint of trade connected to sale transactions
Canada | August 14 2012

The Ontario Superior Court of Justice recently set out an analytical framework for evaluating whether a covenant in restraint of trade is enforceable. The framework encapsulates the major common law tests and rules respecting the enforceability of covenants in restraint of trade. In applying the framework, the court appropriately connected the covenants to the sale of the businesses.

Expert independence is requirement of admissibility, court rules
Canada | August 07 2012

The Ontario Court of Appeal has released its decision in Alfano v Piersanti, upholding the trial judge's decision following a three-day voir dire that the evidence of the defendant's proposed expert was inadmissible on the basis that the expert was neither objective nor independent. The case confirms that while a lawyer may act as a hired gun, at least in Canada, an expert may not.

Supreme Court develops new test for assuming jurisdiction over foreign defendants
Canada | June 26 2012

The Supreme Court of Canada recently established a new common law test for determining whether a Canadian court may assume jurisdiction over a foreign defendant. The new test is significant for foreign companies that do business in Canada or with Canadians, as it clarifies the circumstances in which such companies may be obliged to defend proceedings in a Canadian court.

Application for leave to appeal dismissed due to reasonable apprehension of bias
Canada | May 29 2012

The Court of Appeal for Ontario has denied leave to appeal a lower court ruling upholding two earlier decisions of the Ontario Securities Commission (OSC). The OSC had rejected the appellants' motion for a stay of proceedings based on a reasonable apprehension of bias following comments made by the OSC's chair during a televised interview, and later found that the appellants had breached Ontario's securities laws.

The development of privacy torts in Ontario: a case comment
Canada | May 01 2012

The Court of Appeal for Ontario recently issued the first definitive statement from a Canadian appellate court that there is a common law right of action for intrusion upon seclusion, or invasion of personal privacy. The elements of the new tort are defined by reference to the Restatement (Second) of Torts (2010), following the approach taken by US and Australian courts.

Court clarifies the requirement of 'damage' and its impact on limitation periods
Canada | April 24 2012

A recent decision is essential reading for persons considering bringing a tort-based action in Ontario. The court clarified that the 'damage' required to crystallise an actionable claim flows from the alleged tort - not the financial losses suffered as a result. It confirmed that as soon as a party discovers that it has been misled and is in a worse position as a result, its claim has accrued and the time for bringing that claim starts.

Settlements with Ontario Securities Commission do not preclude class action claims
Canada | March 13 2012

A recent decison has clarified that capital markets participants which reach a settlement agreement with the Ontario Securities Commission with respect to securities law infractions may still be exposed to civil liability in class actions. Previously, it was unclear whether a party injured by a market participant's conduct could bring a class action, especially if it had received substantial compensation from a regulatory proceeding.

Court confirms IIROC's jurisdiction over investment dealer members
Canada | March 06 2012

A recent Ontario Divisional Court decision speaks to the ability of respondents to circumvent the disciplinary process of the Investment Industry Regulatory Organisation of Canada (IIROC) by means of judicial review. It confirms that when an individual or firm contractually submits to IIROC's jurisdiction, it will be unable to bypass IIROC's disciplinary procedures by proceeding directly to the civil courts.

Supreme Court rules hyperlinks are not publications
Canada | February 14 2012

In Crookes v Newton the Supreme Court held that the creation of a hyperlink to allegedly defamatory material was not publication of that material. The decision may not apply in the province of Ontario or to so-called 'automatic' or 'frame' hyperlinks.

Fully appreciating the new Ontario summary judgment regime
Canada | January 31 2012

The Ontario Court of Appeal has handed down an important decision in Combined Air Mechanical Services Inc v Flesch in which it clarified the scope and availability of the summary judgment procedure in Ontario. The court has introduced a new legal test – the 'full appreciation' test, which directs when a court may resolve a case by way of summary judgment under Rule 20 of the Rules of Civil Procedure.

Appeal court dismisses C$36 million environmental class action award
Canada | November 22 2011

The Ontario Court of Appeal has reversed a trial award to thousands of Ontario residents who had sued Inco for property devaluation caused by soil contamination. The decision limits claims of private nuisance and Rylands v Fletcher strict liability, and clarifies the application of limitation periods for class actions.

The Hollinger sealing order – using the Sierra Club test to protect settlement privilege
Canada | November 01 2011

In a recent decision released in the Hollinger Inc Companies' Creditors Arrangements Act proceeding, the Ontario Court of Appeal upheld a sealing order that protects from public disclosure the settlement amounts to be paid until such time as the settlements receive court approval. While in the past settlement privilege has been protected by sealing orders, such cases are uncommon.

Appeal court decides standard of review arising from NAFTA arbitral awards
Canada | October 25 2011

The Ontario Court of Appeal recently addressed the appropriate standard of review for jurisdictional challenges to North American Free Trade Agreement (NAFTA) Chapter 11 arbitral decisions. The court held that when determining whether a NAFTA arbitration tribunal has exceeded its jurisdiction, the standard to apply is correctness, which affirms that there is a uniform standard of review.