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Arbitration & ADR
Parties entering into arbitration agreements ordinarily abide by their contractually chosen dispute resolution mechanism and proceed accordingly. However, counterparties sometimes start proceedings in a foreign jurisdiction in breach of an arbitration clause. A recent Singapore Court of Appeal decision sets out firm guidance that a party that finds itself in this scenario should act as fast as possible to restrain the counterparty by way of an anti-suit injunction.
In a recent High Court judgment, the plaintiff successfully imposed a winding-up order on a debtor company six weeks after the service of a statutory demand for an underlying debt of $250 million. This decision is an important comment on the standard of proof required for a debtor company to show that there is a dispute – and therefore stave off winding-up proceedings by a creditor – where the underlying contract is subject to arbitration.
In 2017 Parliament aligned Singapore with other leading arbitration jurisdictions by embracing third-party funding as a viable method for increasing access to justice for parties involved in specific arbitration proceedings. Less than one year later, the market for third-party funding in Singapore has seen significant activity, and practitioners and clients alike are keen to explore the benefits and opportunities associated with third-party funding.
Employment & Benefits
Senate Bill 121 has amended New Jersey's longstanding Law Against Discrimination to prohibit any contractual provision that conceals "the details relating to a claim of discrimination, retaliation, or harassment". Notably, the new law applies to all existing and future agreements, except collective bargaining agreements. The law also preserves the enforceability of certain restrictive covenants, including non-competition agreements and provisions protecting confidential and proprietary information.
The Department of Labour has issued proposed revisions to the definition of 'joint employer' under the Fair Labour Standards Act in order to clarify the joint employer relationship. The joint employment rule allows multiple employers to be responsible for paying hours worked by a shared employee under certain circumstances.
The Alberta Court of Appeal has revisited the question of directors' personal liability for injuries sustained in a workplace incident. The key question was whether a corporate representative was personally liable for damage resulting from their own tortious conduct while acting as a representative for the corporation. As the applicable tests for determining personal liability remain unclear, this will continue to be a difficult issue for directors to navigate.
The Ontario Superior Court of Justice recently provided a comprehensive judicial review of a jurisdictional challenge to an arbitral award. This decision will be of interest not only to car manufacturers, but also to most parties subject to an arbitration agreement. However, the broader takeaway from this case is that non-compliance with the Arbitration Act is not a ground for review. Therefore, jurisdictional challenges must be brought at the beginning of hearings.
The Alberta Court of Appeal recently clarified the test for summary judgment applications. The court noted the rift that has emerged in case law while discussing the standard of proof that is required in a summary judgment application. In particular, it held that the reliance on the conventional trial no longer reflects modern reality and must be readjusted in favour of more proportionate, timely and affordable procedures.
For the first time, the Ontario Superior Court of Justice has released a decision that considers issues of statutory misrepresentation in an offering statement under the Credit Unions and Caisses Populaires Act 1994. Given the limited jurisprudence in this area, this landmark decision is expected to provide valuable guidance to boards and insurers on risk prevention.
The Ontario Court of Appeal recently provided clarity on the sentencing principles in Occupational Health and Safety Act cases. The court clarified that just because jail terms are rare does not mean that they should not be imposed. In its decision, the court discussed the principles of sentencing for regulatory offences at length and recognised the primacy of fines over incarceration in sentencing (ie, in most cases, fines will be more appropriate than jail time).
The Ontario Superior Court of Justice recently outlined when specific performance will be available in a real estate transaction. This decision is a stark reminder of the pitfalls of acting both in bad faith and without diligence in respect of such a transaction. It is also a reminder that a party to an agreement of purchase and sale cannot insist that time is of the essence if (among other things) it breaches the agreement and does not act in good faith.
In negligence-based actions, defendants routinely issue third-party claims for contribution and indemnity to reduce their liability exposure. As a result, a plaintiff can commence a claim believing certain defendants to have caused its loss but, after successive third-party claims, learn that several other persons might have contributed to the loss. The Ontario Superior Court recently reviewed the law of discoverability with respect to third parties.
In R v Barra the Ontario Superior Court of Justice convicted two businesspeople on charges of bribing foreign public officials in India. This judgment appears to have crept under the radar, but is notable in the context of the enforcement of the Corruption of Foreign Public Officials Act because of the court's views on who is a foreign public official and the requirement that the Crown prove that the accused had knowledge of this status.
The Ontario Superior Court of Justice recently released a significant decision that expands occupiers' liability for violence on their premises and affirms a new privacy tort that censures the publication of aspects of an individual's private life without their consent. The decision establishes a novel cause of action for claims arising from the distribution of an individual's private information – in this case, a sexually explicit video of the plaintiff without her knowledge or consent.
Designated beneficiaries of a life insurance policy have traditionally had a high degree of certainty that they would be entitled to the policy proceeds on the death of the insured. However, this certainty has been jeopardised by a recent Supreme Court of Canada case where a former wife's prior contractual claim to the proceeds of her former husband's life insurance policy precluded his common-law spouse's entitlement to the proceeds as the irrevocable beneficiary.
The recent growth and sophistication of modern fraud and cybersecurity attacks have necessitated adaptable countermeasures by for-profit and non-profit organisations. Of these countermeasures, the emergence of niche cybercrime and fraud insurance (eg, cyber liability insurance) has given credence to the ethos that cybersecurity breaches are not a matter of if but when. A recent case considered the limits of a funds transfer fraud policy and highlights the importance of reading insurance policies carefully.
A recent Court of Queen's Bench of Alberta decision provides clarity amidst the conflicting jurisprudential landscape regarding whether the assessment of damages for a termination without cause is appropriate for summary judgment. The court supported a master's finding that an assessment of damages for pay in lieu of reasonable notice for wrongful dismissal is inappropriate for summary judgment.
A recent case examined the apportionment of liability for damages between multiple defendants where at least one of them is statutorily immune from liability. The court considered whether an employer can be held vicariously liable for damages caused by its employee's negligence when the injured party, the employee and the employer are subject to the Workers' Compensation Act.
Court upholds owner's discretion to select contractor based on overall cost, schedule and experienceCanada | 18 December 2018
The Alberta Court of Appeal recently ruled on the tendering of a contract that will be of interest to owners and contractors alike. The court upheld an owner's right to rely on privilege and discretion clauses and a description of the relevant evaluation criteria in the tender documents, as well as its right to take a nuanced view of the costs to choose the contractor that it considered best suited to the project.
For many junior resource company executives, deciding whether to engage investment finders can be like considering whether to breathe air. Such companies tend to have early-stage projects that do not warrant debt financing and therefore need equity injections, but lack the profile needed to attract traditional investment dealers. However, working with finders entails navigating the 'exempt' market, which can be hazardous to the ill-informed.
The Workplace Safety and Insurance Board (WSIB) recently prosecuted three workers who were receiving WSIB benefits for failing to report a material change with respect to their benefit entitlement. The WSIB argued that it was not required to prove that the workers had intended to defraud the board. However, the Ontario Court of Appeal disagreed and held that to obtain a conviction for failing to report a material change, prosecutors must prove something akin to tax evasion or fraud.
The expansion of recognised duties of care owed to intoxicated persons recently met resistance from the Ontario Superior Court of Justice. The plaintiff in the case was one of four intoxicated passengers in a taxi who had been injured after the taxi was involved in an accident. The court centred its decision on the evidentiary record in the case, which established no reasonable basis for the plaintiff's expectation that the taxi driver would ensure that he wore his seatbelt.
A Canadian man was recently convicted and fined for operating his drone within 30 feet of the approach path at Yellowknife Airport. This decision clarifies that reckless drone operations near airports and populated areas will be taken seriously by the courts and that significant fines may be levied against recreational pilots.
The Supreme Court of Canada recently agreed to hear an appeal of a Quebec case concerning the obligations and rights of a pension plan administrator after a pensioner went missing. In their decisions, the lower courts agreed that the university had been correct to continue the monthly pension payments for the five years that the pensioner had been missing because the pensioner was presumed to be alive at the time.
Cheers to interprovincial trade: first application of Supreme Court of Canada's decision in R v ComeauCanada | 23 October 2018
The Alberta Court of Queen's Bench recently struck down successive mark-ups on out-of-province craft beer as barriers to interprovincial trade contrary to Section 121 of the Constitution Act 1867. This is the first decision to apply the Supreme Court of Canada's interpretation of Section 121 as developed in R v Comeau. Further, this is the first decision in recent Canadian legal history to declare a legislative provision unconstitutional for violating Section 121.
An excavation contractor who was found guilty of manslaughter and criminal negligence causing death has been sentenced to 18 months' imprisonment by the Court of Quebec. The sentence – which is a first in Quebec legal history – sends a clear message to employers concerning the importance of complying with their occupational health and safety obligations.
An assistant fire chief recently won a wrongful dismissal suit after he was fired for receiving a 90-day administrative driving prohibition for impaired driving while off duty. The court held that the assistant fire chief's off-duty conduct was not incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the fire department and awarded him five months' salary as provided for in his employment contract.
The Alberta Court of Appeal recently provided clarity on what the Crown must prove in a prosecution under the Alberta Occupational Health and Safety Act regarding the failure to ensure the health and safety of workers. The key question before the court was whether the expression "as far as is reasonably practicable for the employer to do so" in the general duty section of the act was part of the physical components of the offence that the Crown had to prove.
An Ontario court has permitted an employee to refer in her statement of claim for constructive dismissal and bad faith to the communications and conduct of the company's lawyer in respect of a sexual harassment investigation. The court held that the discussions and conduct of the lawyer with respect to the investigation did not relate to a litigious dispute, but rather to the company's statutory obligation to investigate claims of sexual harassment under the Occupational Health and Safety Act.
In what appears to be a novel regulatory decision, the Ontario Court of Justice recently held the owner of an electrical contracting firm personally liable for its regulatory fines after he transferred assets out of the company following a fatal incident. In a rather scathing decision, the judge held that the owner had put his own assets at risk by blurring the lines between himself and the company.
A group of female police officers has lost its bid to bring a class action in the courts for gender discrimination and harassment. The officers had claimed systemic gender-based discrimination and harassment by male members of the police force. However, the court held that it had no jurisdiction over the class action because the claims should have been brought at arbitration.
An Alberta safety manager recently won C$28,000 in damages after he was fired by his employer. The employer argued that the employee had quit or, in the alternative, that there was just cause for dismissal. The court held that the employee, who had three-and-a-half years of service and an annual salary of C$82,000, was entitled to four months' pay in lieu of notice.
A recent Ontario court decision illustrates the serious business implications that Occupational Health and Safety Act compliance issues or disputes can have on a company. The court held that although the city of Sudbury had initially breached its obligation of procedural fairness when imposing a bid ban on paving company Interpaving, it had "cured" that breach through its reconsideration and process, which gave Interpaving full opportunity to be heard.
An Ontario appeal judge has upheld the dismissal of Occupational Health and Safety Act charges against employees due to delay. The charges followed the death of a mining employee from cyanide intoxication by way of skin absorption. The total delay – from the laying of the charges to the last day scheduled for trial – was 21 months, which exceeded the 18-month presumptive delay ceiling set out by the Supreme Court of Canada in Jordan.
Two forklift operators were recently found guilty under the Occupational Health and Safety Act for using mobile phones while sitting on their forklifts. The court held that "operating or using" a forklift includes sitting on a forklift even when it is stopped and turned off, as other workers and forklifts may be nearby and put at risk by the operator's distraction and inattention to their surroundings while using a mobile phone. Further, the employer had clearly prohibited the use of mobile phones in the warehouse.
The Alberta Court of Appeal recently reviewed the provisions of the Workers' Compensation Act that enable the Workers Compensation Board (WCB) to be subrogated to the right of a claim against a party not covered by the act when the WCB has paid out benefits to a party that is covered by the act. The court confirmed that pursuant to the act, defendants that are not protected from suit should not be held liable for the portion of loss caused by an employer or worker that is protected from suit.
A recent case has affirmed the test for jurisdiction simpliciter in internet defamation cases. However, it has also muddied the waters regarding the circumstances in which a court might exercise its discretion to stay a proceeding in Canada in favour of trial in another jurisdiction. The Supreme Court's decision shows that the judiciary remains divided on how best to adapt existing private international law principles to the modern reality of borderless communications.
A recent Supreme Court of Canada decision concerning a religious association has confirmed that judicial review is not available to review decisions made by private entities that are not exercising statutory authority. While the courts may still review decisions of private entities where causes of action are based on a contract or other underlying legal right, the Supreme Court of Canada has closed the door on judicial review for all private entities by holding that it is available solely for exercises of statutory authority.
Judicial review is a public law remedy – but does this preclude its availability for decisions made by private entities (eg, voluntary associations and political parties)? Divergent lines of judicial authority have led to inconsistent answers to this question in Ontario. However, a recent Ontario Divisional Court decision has confirmed that the answer to this question is yes.
An employer that terminated an employee alleging just cause has been ordered to pay damages for wrongful dismissal, including an aggravated damages award of C$75,000. The court was satisfied that the employer's actions amounted to a breach of the obligation of good faith and fair dealing, and supported an award of aggravated damages. The employer's false reasons for dismissal and inadequate and unfair investigation had resulted in the plaintiff failing to receive procedural fairness.
The Supreme Court of Canada recently determined that New Brunswick's restrictions on the importation of beer are constitutional and held that laws which create an incidental restriction on trade – but otherwise form a rational connection to a broader regulatory regime that is not targeted at restricting trade – will not contravene the Constitution Act 1867. The decision is controversial, as it sets a low threshold for a province to justify a law that, on its face, clearly restrains trade across provincial boundaries.
Court accepts joint submission and orders employer to pay fine of C$100,000 following workplace fatalityCanada | 01 May 2018
The Territorial Court of the Northwest Territories recently considered and accepted a joint submission from the crown and defence, sentencing an employer to a C$100,000 fine. The court considered the significance of a joint submission, noting that it is usually the result of a negotiation process between lawyers. This process is important to the administration of justice; thus, the courts should defer to a joint submission within the bounds established by the Supreme Court of Canada in an earlier case.
An Ontario court recently fined a defunct mining company that went out of business in 2016 C$1.3 million under the Ontario Occupational Health and Safety Act after it found the company guilty on six charges following the deaths of two workers. This is one of the largest Occupational Health and Safety Act fines in Ontario history. However, the company did not defend the Ministry of Labour prosecution.
Court rules that employee's theory of dismissal for questioning employer's safety systems not evidenceCanada | 20 March 2018
The court in a recent wrongful dismissal case dismissed the plaintiff's allegation that he had been dismissed after making suggestions about improvements to the employer's safety systems. The court found that the plaintiff's theories were unsupported by the evidence and insufficient to justify an award of aggravated or punitive damages. It therefore held that the employer's conduct was not malicious and high handed so as to warrant additional damages and dismissed that aspect of the plaintiff's claim.
The Newfoundland and Labrador Court of Appeal has upheld the firing of a unionised millwright who was caught with a small amount of marijuana in his pocket before boarding a helicopter that would transport him to an offshore platform. The labour arbitrator found that the employee likely knew that he possessed the marijuana, but had forgotten about it and not checked his pockets carefully. Although the Newfoundland Supreme Court set the arbitrator's decision aside, the appeals court restored it.
The Ontario Court of Appeal recently upheld the criminal negligence conviction and jail term imposed on a project manager for Metron Construction. The charges arose from an incident in which four workers fell to their death and a fifth sustained permanent injuries after a swing stage collapsed. This case has sent a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents.
An Ontario court has upheld a combined fine of more than C$5.3 million, plus a 25% victim fine surcharge, against Sunshine Propane Energy Group, a related company and two corporate directors following explosions at a propane facility in 2008, which resulted in the death of one worker. The court held that the explosions were a foreseeable event given that an untrained employee had been left in charge and that his actions after the explosions showed his lack of training.
The Newfoundland and Labrador Court of Appeal recently held that a trial judge was wrong to find a city guilty of Occupational Health and Safety Act charges solely because an accident had occurred in which a worker died. It held that the trial court should have gone further and analysed each charge separately. The decision is a welcome reminder that prosecutors cannot simply rely on the fact that an accident took place to obtain a conviction.
Court of Appeal holds general duty clause can impose higher obligations than regulatory requirementsCanada | 30 January 2018
The Ontario Court of Appeal recently held that the Ministry of Labour can prosecute employers under the general duty clause of the Occupational Health and Safety Act where the charges impose greater obligations than those set out in the regulations under that act. Ministry of Labour inspectors will likely consider using this decision to issue compliance orders or charges under the general duty clause even where regulations deal with the specific safety issue at hand, but do not apply in the particular case.
An Alberta court recently considered the 'accident as prima facie breach' principle in the context of an application for particulars. The principle provides that, in some cases, proof that an employee was injured in an accident while performing his or her employment duties proves the actus reus (ie, guilty act) for an occupational health and safety general duty charge. The burden then shifts to the defendant to establish a due diligence defence.
The Saskatchewan Court of Appeal recently ruled that a release signed by a terminated employee barred her complaint against her employer under occupational health and safety (OHS) legislation. The court stated that after the occurrence of a so-called 'triggering event', which provides a worker with the right to file a complaint under the legislation, that right becomes personal to the worker. Where a worker has given a release in respect of a personal right, the validity of the release must be reviewed.
The Court of Appeal for Ontario recently clarified the test for assuming jurisdiction over absent foreign claimants in Ontario class actions with international elements, opening the door to the potential certification of class proceedings on behalf of global classes. While the jurisdictional hurdle for absent foreign claimants appears to have been lowered as a result of the decision, it remains to be seen how the lower courts will interpret and apply the appeal court's test.
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.
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.
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.
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.
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.
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.
The Supreme Court recently released a landmark decision reinforcing the right of employers to take proactive risk mitigation and management measures through alcohol and drug policies to ensure workplace safety. Employers can require employees to self-disclose substance abuse issues before workplace incidents and impose discipline for failure to comply, even if the employee suffers from a disability.
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.
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.
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.
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.
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.
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.
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.
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.
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 judgeCanada | 28 March 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.
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'?
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.
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.
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.
The Ontario Superior Court of Justice recently reaffirmed the principle that a testifying expert enjoys immunity from a subsequent lawsuit arising out of the testimony that he or she has previously given in court. This decision is a welcome development for experts and a reminder to parties that a court facing diverging expert opinions must choose one expert's testimony over another without it necessarily being implied that the testimony of the unsuccessful party's expert was rendered negligently.
A divided Court of Appeal for Ontario recently granted certification to a global class of accredited investors in an auditor's liability claim, and held that there is no independent principle of restraint to which a court should adhere when certifying a global class. The decision creates a precedent for parties seeking to certify global class actions in Ontario, but will also limit the comfort that parties take in their certification decisions.
The Supreme Court recently issued two decisions on privilege – one on solicitor-client privilege and the other on litigation privilege. These two cases affirm that solicitor-client and litigation privilege do much more than just shield evidence from disclosure in adversarial civil proceedings and can be asserted in administrative or regulatory proceedings, including access to information requests and professional standards investigations.
A recent Ontario Court of Appeal decision ended a decade-old case in which the plaintiffs were ultimately saddled with having to pay a damages award of C$954,576 to the defendants. This case should encourage counsel and their parties to carefully ensure that any evidence put before the court has been tendered fairly and squarely.
It is not uncommon for defendants to assert the defences of collateral attack and issue estoppel in pleadings where it is considered that the plaintiff is intending to re-litigate a matter previously considered and disposed of by a court. Often untested, whether these are tenable defences is left undetermined, as plaintiffs rarely move to strike out portions of statements of defences pleading collateral attack and/or issue estoppel.
A recent high-profile decision of the Ontario Superior Court of Justice (Commercial List) involved an allegation by plaintiff Catalyst that the corporate defendant West Face Capital Inc misused confidential information belonging to Catalyst that defendant Moyse allegedly acquired while employed by Catalyst. The court considered whether spoliation had taken place and, if so, whether it should be recognised as an independent tort in Ontario.
On occasion, in response to a motion or claim by an adverse party seeking equitable relief, a party will argue that the relief sought should be denied on the basis that the moving party has not come to court with 'clean hands'. Lawyers should not be quick to use the doctrine unless there is a reasonable basis for doing so; however, it remains a powerful weapon.
The recent decision in Royal Bank of Canada v Boussoulas, as upheld by the Ontario Divisional Court, provides a valuable lesson to parties and their counsel who overstate or misstate their case in the context of seeking interlocutory equitable relief. The court was persuaded by the responding parties that the relief should be declined, as the moving party made numerous allegations of fraud that it did not make out or advance in oral argument.
The landmark case Baker v Canada established a test for procedural fairness with regard to judicial review of administrative decisions and addressed the fairness and disclosure to which an applicant is entitled in a proceeding. In light of the investigation into Hillary Clinton's deleted emails, it is timely to explore the intersection between the considerations of procedural fairness as imposed by Baker and allegations of procedural fairness and unfair investigations conducted by agencies with expertise.
In the wake of a recent Ontario Court of Appeal decision, non-Canadian publishers of online content may be required to defend defamation proceedings in Canadian courts, even if the bulk of their audiences are located outside Canada. The case sheds light on the complex and divisive jurisdictional issues that often accompany internet defamation proceedings.
A recent Ontario Superior Court of Justice decision provides a helpful analysis of whether an action for negligent investigation, malicious prosecution and misfeasance in (abuse of) public office lies against a regulatory body and its investigatory staff. As regards the abuse of process doctrine, the court found that the disputed action was not an attempt to re-litigate a claim that had already been determined at a Law Society Appeal Division hearing and, as such, refused to dismiss the action on that basis.
The Supreme Court of Canada recently confirmed the discretionary power of superior court judges to sit outside their home province without a video link to an open courtroom in their home province. The decision clarifies an important point of procedure in pan-Canadian class actions – encouraging judges to employ pan-national solutions to ensure that the process works efficiently, expeditiously and cost effectively.
The Quebec Superior Court recently ruled on whether individuals of the Sikh religion could be exempted from a work policy that required all workers to wear a hardhat. The judge ruled that although the policy was discriminatory and violated the right to freedom of religion, it was justified given its imperative objectives. The decision is significant as it is a rare case of transposition of the protections granted under the Quebec Charter of Human Rights and Freedoms to a federally regulated workplace.
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 | 22 March 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 | 26 January 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.