Dentons updates

Court dismisses health and safety charge given due diligence
Dentons
  • Litigation
  • Canada
  • December 12 2017

An Ontario court recently dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence. The court decided that the worker had deviated from the standard practice that he and other workers had followed on previous occasions. While no training courses were available for the task in question, the employer was entitled to rely on the experience of the worker.

Appeal court upholds C$270,000 fine when Ministry of Labour and company agreed on C$180,000
Dentons
  • Litigation
  • Canada
  • September 26 2017

In a recent Ontario appeal decision, the court upheld a C$270,000 fine, despite the Ministry of Labour prosecutor and defence counsel agreeing that a C$180,000 fine would be appropriate. The case illustrates that, particularly in cases of serious injury to a worker which offends the court, there is always a risk that the court will impose a fine that is greater than the amount that the Ministry of Labour prosecutor wanted.

Supreme Court clarifies when regulatory bodies may fulfil crown's duty to consult
Dentons
  • Litigation
  • Canada
  • September 19 2017

The Supreme Court of Canada has previously explained that legislatures may empower regulatory bodies to play a role in fulfilling the crown's duty to consult Aboriginal peoples. However, how that controlling law is to be applied by tribunals and by the courts of justice has been less clear. The Supreme Court recently issued two landmark crown consultation decisions, which provide meaningful guidance on when and how the crown may rely on regulatory processes to fulfil the duty to consult.

Requisitioned meeting breaks deadlock
Dentons
  • Litigation
  • Canada
  • September 12 2017

With a deadlocked board of directors, talk of a "public flogging" and a court reluctant to intervene, a recent British Columbia case is a colourful example of a requisitioned public company shareholders' meeting, with the twist that the requisitioning shareholders were represented by or aligned with three of the company's six directors. The decision provides a number of reminders for boards, shareholders and their advisers.

Citing unfairness: court throws out criminal negligence charge against boom truck operator
Dentons
  • Litigation
  • Canada
  • August 15 2017

The Ontario Superior Court of Justice recently considered a criminal negligence charge against a boom truck operator who pleaded guilty to an Occupational Health and Safety Act charge in a case involving a workplace fatality. The police's act of laying criminal charges after the operator had pleaded guilty constituted a breach of the sense of fair play, an act which offends the community. The court therefore stayed the criminal negligence charge, citing a breach of the Canadian Charter of Rights and Freedoms.

Saskatchewan Court of Appeal confirms acquittal following workplace fatality in grain terminal
Dentons
  • Litigation
  • Canada
  • August 08 2017

The Saskatchewan Court of Appeal recently dismissed the crown's appeal of the acquittal of an employer in a case involving a worker who died of suffocation in a grain terminal. It found that while proof of an accident may be enough to establish the elements of the general charge that an employer failed to ensure the health and safety of an employee, where the crown has particularised a charge, it must prove all of the necessary elements.

Judge's ongoing duty to ensure expert witness objectivity
Dentons
  • Litigation
  • Canada
  • July 18 2017

The Court of Appeal recently confirmed the ongoing gatekeeper function of trial judges in the context of expert testimony. A trial judge's role does not end after the preliminary threshold stage, but continues throughout the proceeding to protect the justice system's integrity. The concept of fairness is a hallmark of Canada's judicial system and necessary to maintain public confidence in the system. As was evidenced in this case, in the battle between efficiency and integrity, the latter must always prevail.

Combating abuse or chilling strategic decision making?
Dentons
  • Litigation
  • Canada
  • July 11 2017

The Supreme Court recently reaffirmed its ability to award costs against lawyers. Despite the special role played by defence lawyers in criminal proceedings, the Supreme Court held that judges retain ultimate discretion to manage and control the proceedings before them. The court found that costs had been properly awarded against the lawyer in this case, as the circumstances were extreme and particularly reprehensible.

Getting in the last word: the proper scope of reply
Dentons
  • Litigation
  • Canada
  • June 27 2017

The propriety of a reply is measured against the other pleadings in a case. The Ontario Divisional Court recently delineated the proper scope of a reply when it overturned a decision of the Ontario Superior Court of Justice and granted the defendants' request to strike certain impugned paragraphs in the plaintiffs' reply that, on their face, had little to do with the central allegations of the claims and defences.

Expulsion of a partner can result in expectation and aggravated damages
Dentons
  • Litigation
  • Canada
  • May 23 2017

The Court of Appeal for Ontario recently held that damages for lost profits may be awarded where a partner is wrongfully expelled from the partnership, and that a court can award aggravated damages where the partner is expelled in bad faith. To expel a partner properly, the partnership must follow the terms of the partnership agreement, Ontario's Partnership Act and common law.

Libel in the age of the Internet: click with caution
Dentons
  • Litigation
  • Canada
  • May 09 2017

In the age of the Internet, the spectre of liability for libel hangs over many online users. At the click of a button, a person can re-tweet, re-transmit and disseminate libellous material, in a seemingly endless chain of liability. Courts are especially wary of internet libel and treat it as the most nefarious manifestation of defamation.

Ontario Court of Appeal disqualifies law firm despite compliance with ethical screen
Dentons
  • Litigation
  • Canada
  • May 02 2017

The Ontario Court of Appeal recently disqualified a law firm from acting for one of its longstanding insurer clients in an insurance dispute where a lawyer who had assisted with carriage of the plaintiff's claim in the dispute moved his practice to the law firm representing the defendant insurer. While the decision is not apt to have an extensive impact on lawyers transferring between law firms and the clients involved, it does give law firms reason to pause.

Parents beware: an update on social host liability in Ontario
Dentons
  • Litigation
  • Canada
  • April 25 2017

The Ontario Superior Court of Justice recently released an important decision regarding the law of social host liability in Ontario. The case is a wake-up call for social hosts – in particular, the parents of teenage children – who assume that they have no risk or exposure of liability if an intoxicated guest leaves their home and injures themselves or someone else.

Court of appeal clarifies jurisdiction to award costs against non-party
Dentons
  • Litigation
  • Canada
  • April 11 2017

The Court of Appeal for Ontario recently considered the scope of the courts' jurisdiction to order costs against a non-party and examined the statutory and inherent authority for making such orders. The decision is a sharp warning to those that seek to eschew personal responsibility for litigation misconduct and use a corporate entity in an attempt to insulate themselves from an adverse costs award.

Do your homework: approval of settlements in class actions
Dentons
  • Litigation
  • Canada
  • April 04 2017

In order to settle a class action, court approval is required. The court's role is to ensure that the settlement is in the best interests of the class as a whole. However, the courts may not have the benefit of a complete factual record before them. Consequently, courts have in the past placed a high degree of trust in class counsel. Recently, the courts have shifted away from blindly trusting class counsel's conclusions and are demanding counsel present transparent reasoning and evidence.

Court overturns C$125 million damages award based on extent of inadmissible hearsay evidence relied on by judge
Dentons
  • Litigation
  • Canada
  • March 28 2017

In May 2016 the Federal Court of Appeal overturned a judgment for C$125 million in damages and sent the case back to the trial judge for redetermination. The court concluded that the trial judge, in reaching his decision, may have relied on inadmissible hearsay evidence tendered at trial on behalf of the plaintiff. The judgment reviewed the general principles underlying the grave danger in admitting hearsay evidence at trial, particularly in high-stakes litigation between pharmaceutical drug companies.

Judicial inattentiveness? Speak up or forever hold your peace!
Dentons
  • Litigation
  • Canada
  • March 14 2017

We have all heard the expression 'wakey, wakey', but imagine representing a client who has waited years for his or her case to reach trial only to find out that the trial judge falls asleep from time to time. What obligations, if any, does counsel have to a client at trial when the trier of fact is 'asleep at the wheel'?

Law Society's misguided prosecution drives stern rebuke and adverse costs award
Dentons
  • Litigation
  • Canada
  • February 28 2017

The Law Society Tribunal Appeal Division recently ordered the Law Society of Upper Canada to pay C$1.3 million in costs to two lawyers who were cleared of conflict of interest allegations in relation to their work for various Hollinger entities. This decision will affect both the Law Society's approach to professional misconduct hearings and the Law Society Tribunal's approach to costs.

Judicial oversight required when seeking relief from deemed undertaking
Dentons
  • Litigation
  • Canada
  • February 21 2017

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

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

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

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