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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
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.
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.
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.
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.
The Competition Authority recently imposed penalties on wallpaper manufacturers for concerted practices in relation to sales to wholesalers. The practices largely concerned shared collections presented in the form of albums of wallpaper samples created for wholesalers, which then made them available to their own customers. As future prices were discussed, the concerted practices were deemed particularly serious.
The French Competition Authority recently imposed one of the biggest fines in its history on a number of personal hygiene and cleaning product manufacturers for their involvement in two price cartels. According to the authority, the cartels – which took the form of secret meetings and telephone calls – sought to promote coordination in the positions that the suppliers adopted in their negotiations with distributors.
The National Order of Pharmacists (ONP) was fined €5 million by the European Commission for restricting competition on the biomedical analysis market. ONP challenged the decision by arguing that the penalties were exempt from competition law, as its activities were those of a public authority and thereby justified by the protection of public health. The General Court disagreed.
The Paris Court of Appeal recently overturned a Competition Authority decision which considered marketing agreements between competitors to have no anti-competitive purpose. The claimants were entitled to argue that they had been encouraged to group together in joint marketing structures in order to meet demand which had become national as a result of calls for tenders launched by mass-market retailers.
In a recent opinion, the French Commercial Practices Review Panel examined the general terms and conditions of purchase of a French car manufacturer. It decided that the terms breached the Commercial Code, which prohibits a significant imbalance between the rights and obligations of parties or the threat of such a termination to obtain clearly unfair conditions.
The Paris Court of Appeal recently overturned a request that the Competition Authority produce case files in an exclusionary practice claim. The decision appears to be consistent with the European directive in which national courts can order the Competition Authority to produce case files only when neither of the parties nor any third party can provide that evidence.
The National Society of French Railways has proposed a number of commitments to the Competition Authority to address concerns that it was favouring its subsidiary online sales site to the detriment of competing travel agencies. These include integration of its subsidiary into the general travel agency system, by subjecting it to a similar remuneration structure as its competitors.
Nespresso recently made a number of innovative commitments to the French Competition Authority designed to resolve competition concerns that the latter had expressed. The authority has indicated that these commitments were "the first in the world", so it will be interesting to see whether other companies will follow suit.
The European Court of Justice recently reiterated that restriction of competition 'by object' must be strictly interpreted. By expressly recommending this restrictive interpretation, the court could rekindle debate on the classification of certain practices as restrictions 'by object', in particular vertical practices, which have hitherto been forbidden per se without their effects on the market being demonstrated.
Healthcare & Life Sciences
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.
The Law Amending the Financing of Social Security for 2014 has modified the temporary recommendation for use framework. A temporary recommendation of use is now possible even when a therapeutic alternative with a marketing authorisation exists, provided that the medicines are not strictly identical. However, it remains to be seen whether the new provisions conform with EU legislation.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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 investorCanada | 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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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".
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".
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.
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.
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.
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.
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.
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.
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."
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 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.
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 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.
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.
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.
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"
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
Following the Supreme Court's decision in TeleZone Inc v Canada (Attorney General), claims for damages against the crown may now be safely brought in the provincial courts, provided that there is an independent and reasonable cause of action that does not rely on the challenge to the legal validity of an administrator's decision that would require a remedy provided for under Section 18(1) of the Federal Courts Act.
In three recent prominent cases Ontario courts have considered whether employee claims for unpaid overtime are suitable to be brought as class actions. In the latest ruling the divisional court upheld the Superior Court's decision certifying the employee plaintiff's action for overtime pay as a class action. This decision represents an interesting development as it differs significantly in outcome and, arguably, in approach from the other two cases.
In a recent consumer claim case the British Columbia Court of Appeal had stayed the complainant's action in favour of arbitration. The Supreme Court had to decide whether the complainant's claims under the Business Practices and Consumer Protection Act had been properly stayed or whether there was an exception to the mandatory language under the Commercial Arbitration Act.
Shareholder class actions based on negligent misrepresentation have generally had little success in Canada. However, recently enacted legislation provides a statutory claim for secondary market misrepresentation, without the need to prove actual reliance. In order to prevent a flood of unmeritorious claims, potential plaintiffs must seek leave from the court before commencing an action.
In a recent case the Ontario Court of Appeal addressed the issue of whether, under Section 18 of the Limitations Act 2002, a person that has been sued for damages by a plaintiff and that wishes to bring a cross-claim against a concurrent tortfeasor for contribution and indemnity may bring the claim at a time when the plaintiff's claim against the concurrent tortfeasor is statute barred.
In Kovacs v TD Bank Financial Group Justice Cameron dismissed the strike motion of the TD Bank Financial Group (TDBFG) - a decision which left open the possibility that TDBFG could be found liable to Kovacs, the beneficiary of a preservation order, for losses resulting from TDBFG's failure to implement that order. TDBFG sought leave to appeal Cameron's decision.
Generally, an expert may testify at trial only after delivering, prior to trial, a report setting out the substance of his or her proposed testimony. A by-product of this is an expert's file replete with an engagement letter, correspondence and other documents. While the party receiving an expert's report is entitled to some form of pre-trial discovery of the expert's file, there is debate over the extent to which the adverse party may examine the file.
In a recent case the Ontario Court of Appeal confirmed that a forum selection clause in a commercial contract should generally be given effect and that any departure from this principle will be rare. The court's clear direction will be welcomed by business people and solicitors drafting forum clauses. However, the court has also left the door open for potential exceptions and, therefore, future litigation in this context.
The Supreme Court of Canada has handed down an important decision clarifying what, if any, limitation periods may apply to the enforcement of a foreign arbitral award in Canada. The court held that the question of whether the enforcement of an arbitration award is subject to any limitation period depends on the wording of any limitations legislation in the province in which the award is sought to be enforced.
The recent decision of the Ontario Superior Court of Justice in Kovacs v TD Bank Financial Group highlights the difficulties which can be experienced by financial institutions when faced with a preservation order which affects existing client accounts. In such circumstances, the financial institution is often called on to exercise a measure of discretion in trying to interpret the intent and/or extent of the order
Canada is not a signatory to the Convention on the Taking of Evidence in Civil or Commercial Matters 1970. Therefore, in order to compel evidence from a witness in Ontario for use in another jurisdiction, letters rogatory (or letters of request) must be used. The Ontario Superior Court of Justice recently issued a stark reminder that minimum evidentiary standards must be met before a request will be enforced.
The Ontario Securities Commission can issue a 'freeze' direction under Section 126 of the Securities Act, requiring a person to retain any funds, securities or property that it may have on deposit, under its control or for safekeeping. In a recent case the Ontario Court of Appeal considered which was the proper test for courts to apply when deciding to continue a freeze direction.
In a recent Ontario Superior Court of Justice decision the court held, in dismissing a motion for summary judgment, that a "new defence" may be available to an action to enforce a foreign judgment in Canada, even where the court properly took jurisdiction and there was no fraud, denial of natural justice or offence to public morality. This new defence was described as the "loss of a meaningful opportunity to be heard".
The Ontario Court of Appeal recently considered whether the issuer of a letter of credit could refuse payment based on the beneficiary's non-compliance with the letter of credit's terms and conditions. The court ruled in favour of the beneficiary and held that where the issuer has knowingly contributed to, or acquiesced in, the circumstances undermining the prospect of strict compliance, it cannot rely upon the non-compliance defence.
The Ontario Court of Appeal recently judicially considered a contractual forum selection clause by which the parties had agreed that the courts of Texas were to exercise exclusive jurisdiction over claims "arising out of or in connection with" their agreement. Despite the apparent breadth of this clause, the court nonetheless imposed limits.