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Dentons is a global firm driven to provide you with the competitive edge in an increasingly complex and interconnected marketplace. We were formed by the March 2013 combination of international law firm Salans LLP, Canadian law firm Fraser Milner Casgrain LLP (FMC) and international law firm SNR Denton.

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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.

Jurisdictional issues affecting claims against the federal government
Canada | August 30 2011

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.

Ontario issues most recent decision on overtime pay class actions
Canada | July 19 2011

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.

Supreme Court rules on arbitration of consumer claims: reality or myth?
Canada | May 10 2011

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.

Liability for secondary market misrepresentation in Canada
Canada | April 19 2011

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.

Court rules that claim for contribution and indemnity has two-year limitation period
Canada | January 25 2011

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.

Still between a rock and a hard place: update on Kovacs v TD Bank Financial Group
Canada | January 11 2011

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.

The scope of discovery of experts
Canada | December 21 2010

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.

Court rules contractual forum clauses to be enforced absent 'strong cause'
Canada | September 28 2010

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.

Enforcement of foreign arbitral awards subject to local limitation periods
Canada | July 27 2010

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.

Kovacs v TD Bank Financial Group: caught between a rock and a hard place
Canada | July 20 2010

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

Ontario court requires proper evidentiary basis for enforcement of letters rogatory
Canada | May 25 2010

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.

Freezing orders under Securities Act still governed by Mareva-style test
Canada | May 11 2010

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.

Ontario court considers new defence to enforcement of foreign judgments
Canada | March 16 2010

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".

Enforcement of Letters of Credit in Ontario
Canada | December 22 2009

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.

Know Your Limits: Forum Selection Clauses Do Not Govern All Disputes
Canada | November 17 2009

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.

Jurisdictional issues affecting claims against the federal government
Canada | October 27 2009

In a recent case the federal government motioned to dismiss an action on the principal ground that the Federal Court - not the Ontario court - has jurisdiction over claims against the crown for damages. However, the Ontario Court of Appeal found that the Ontario Superior Court has jurisdiction. The Supreme Court's decision is expected to have a profound impact on the rights of persons claiming damages against the crown.

Post-membership discipline - a price of admission
Canada | October 06 2009

Stephen Taub was registered as an approved person under the bylaws of the Investment Dealers' Association from June 1998 until September 2004. When the association began disciplinary proceedings against him in October 2005, alleging four counts of conduct unbecoming involving improper trading for clients and the improper use of confidential information, he challenged its jurisdiction to discipline former members.

Disqualifying Conflict Principles Apply to Expert Witnesses and Instructing Law Firms
Canada | September 01 2009

Citing a conflict of interest, the Ontario Court of Appeal has upheld a lower court decision disqualifying a law firm from continuing to act for plaintiffs against a defendant hospital in a medical malpractice case. The plaintiffs' counsel retained an expert who had once worked for the hospital and possessed confidential information of the hospital relevant to the matters at issue.

Court May Rectify Mistakes in Unilateral Pension Plan Instrument
Canada | June 09 2009

The Ontario Superior Court of Justice recently issued the first Canadian decision to apply the doctrine of rectification to correct an error in the language of a pension plan document. Although the court applied the standard of convincing proof in considering whether to grant rectification, it held that only the intention of the maker of the document was at issue.

Impatient Bank Penalized for Exercising Hypothecary Recourses
Canada | March 31 2009

The Superior Court of Quebec recently ordered a financial institution to pay its clients punitive damages, as well as compensation for moral and material damages to be paid jointly to both plaintiffs. The court concluded that the financial institution had committed numerous errors, including failing to inform its clients that their mortgages would not be renewed and unjustly instituting hypothecary recourses in an abusive and malicious manner.

Bank Condemned for Prematurely Releasing Funds from Foreign Bank Draft
Canada | March 24 2009

The Quebec Court of Appeal recently upheld a decision rendered in 2006 by the Quebec Superior Court which established that in the context of the case, the National Bank of Canada had been negligent in immediately releasing, without making the appropriate verifications, the entire amount of a foreign bank draft deposited by a client, without the individual's request to do so.

Penalty with a Price for Financial Institutions Regarding Mortgage Repayments
Canada | March 17 2009

In a recent case the Quebec Superior Court allowed the bringing of a class action to determine a financial institution's right to penalize borrowers that repaid their mortgage before the end of the defined term and the appropriate amount on which the financial institution should calculate the penalty. This judgment could put an end to a widespread practice of Quebec financial institutions.

Supreme Court Releases Reasons for Decision in BCE Inc Case
Canada | January 13 2009

The Supreme Court of Canada has released the detailed reasons for its June 2008 decision in BCE Inc v 1976 Debentureholders. It was expected that the reasons would shed light on what constitutes fair and efficient business practices by establishing clear guidelines for directors in order for them to ascertain their fiduciary obligations more readily.

Supreme Court of Canada Confirms Legal Obligations of Departing Employees
Canada | November 04 2008

In a long-anticipated judgment the Supreme Court of Canada has confirmed the legal obligations of departing employees to their employer when they leave to accept employment with a competitor. The judgment confirms that a departing employee in a managerial position, who may not be a fiduciary, has an implied duty to act in good faith.