Litigation, Canada updates

Reference re Environmental Management Act (British Columbia): one step forward for Trans Mountain
  • Canada
  • 09 July 2019

A recent British Columbia Court of Appeal decision is significant because it has removed (for now at least) one of the barriers to the development and construction of the Trans Mountain Expansion Project. It has also provided some clarity on the roles that the federal and provincial governments may properly play in the regulation of interprovincial pipelines and, more broadly, in the complex area of environmental regulation.

Alberta judge dismisses case against police officers on grounds of reasonable force
  • Canada
  • 02 July 2019

A Court of Queen's Bench of Alberta judge recently dismissed a case against police officers and the chief of the Edmonton Police Service in its entirety, concluding that the use of force by the defendants did not exceed what was reasonably necessary for the plaintiff's arrest. The case is significant for the court's analysis of forward-looking infrared video evidence, treatment of a prior judicial decision in related criminal proceedings and analysis of the physical force used by police officers to effect an arrest.

Throwing an egg at someone: Ontario Superior Court addresses hatching of new legal test
  • Canada
  • 25 June 2019

Imprecision in identifying the risks of driving influences how insurers assess the value of automobile insurance. A recent Ontario Superior Court of Justice decision reminds insurers and insured persons how difficult it can be to properly assess and categorise risk at the outset of an insurance relationship; however, it offers little guidance on how the modified causation test should be applied in future cases involving projectiles from motor vehicles.

Section B benefits require compliance with independent medical examination protocol
  • Canada
  • 18 June 2019

Can an insurer deny all Section B benefits if an insured agrees to attend an independent medical examination on conditions that conflict with the examining medical practitioner's protocol? The Alberta Court of Queen's Bench recently considered this question and answered in the affirmative. While the decision was specific to Section B claims, the broader takeaway is equally instructive: relying on the clear terms of a policy does not necessarily impugn the duty of utmost good faith.

Ontario Court of Appeal clarifies overlapping policies containing "other insurance clauses"
  • Canada
  • 11 June 2019

The Ontario Court of Appeal has clarified its application of the Supreme Court's decision in Family Insurance Corp v Lombard Canada Ltd in instances of overlapping insurance policies with "other insurance clauses" covering the same loss. The court determined that the analysis in instances of overlapping coverage comes down to whether there was overlapping coverage and whether the insurers intended to limit their obligation to contribute, and by what method and in what circumstances, in relation to the insured.

Propping up insurable interests
  • Canada
  • 04 June 2019

A plaintiff recently claimed indemnification under a residential insurance policy when unknown persons broke into her garage and stole items, including prop guns. Although the court found that the plaintiff had an insurable interest in the prop guns, it found that she was not entitled to be indemnified for their loss because they belonged to another individual who had not been a roomer or boarder.

Alberta Court of Appeal confirms directors are personally liable for injuries sustained at work
  • Canada
  • 28 May 2019

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.

Jurisdictional challenges to arbitral awards: raise them before they're gone
  • Canada
  • 21 May 2019

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.

Summary judgment applications: analysing Weir-Jones and its application in BF
  • Canada
  • 14 May 2019

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.

Court dismisses statutory misrepresentation claim against credit union board in landmark decision
  • Canada
  • 07 May 2019

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.

Court of appeal refuses to reinstate jail sentence… this time
  • Canada
  • 30 April 2019

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).

Time may not be of the essence when considering specific performance
  • Canada
  • 23 April 2019

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.

Third-party discoverability grounded in reasonability
  • Canada
  • 16 April 2019

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.

R v Barra: timely but qualified success for corruption of foreign public officials regime
  • Canada
  • 09 April 2019

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.

Ontario Superior Court of Justice confirms new tort for public disclosure of private facts
  • Canada
  • 19 March 2019

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.

Doctrine of unjust enrichment may deprive named beneficiaries of life insurance proceeds
  • Canada
  • 12 March 2019

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.

When cyber fraud strikes: delineating coverage if employees are duped
  • Canada
  • 29 January 2019

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.

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