Litigation, Canada updates

Judge's ongoing duty to ensure expert witness objectivity
  • Canada
  • 18 July 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?
  • Canada
  • 11 July 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
  • Canada
  • 27 June 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
  • Canada
  • 23 May 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
  • Canada
  • 09 May 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
  • Canada
  • 02 May 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
  • Canada
  • 25 April 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
  • Canada
  • 11 April 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
  • Canada
  • 04 April 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
  • Canada
  • 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.

Judicial inattentiveness? Speak up or forever hold your peace!
  • Canada
  • 14 March 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
  • Canada
  • 28 February 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
  • Canada
  • 21 February 2017

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

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

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

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

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

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

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

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

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

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

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

The cost of a wrongful injunction
  • Canada
  • 13 December 2016

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

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

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

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