Equity Rules the Day: The Supreme Court of Canada Clarifies the Tenets of Proprietary Estoppel

January 8, 2018

In December 2017, the Supreme Court of Canada released its decision in Cowper-Smith v. Morgan, 2017 SCC 61, a case dealing with the issue of proprietary estoppel.  While the facts of this case are borne out of circumstances relating to an estate, the law as set out by the Supreme Court can be equally applied in the context of commercial litigation in relation to promises made in a commercial context.  

Mandatory Arbitration Isn't Always Mandatory in Canada

January 8, 2018

WeirFoulds partner Nikiforos Iatrou and associate Anastasija Sumakova contributed to the Winter 2018 issue of Today's General Counsel with their article, "Mandatory Arbitration Isn't Always Mandatory in Canada".

"Entrepreneurial" Class Plaintiff Hit With $1 Million Costs Award

December 8, 2017

In Yip v. HSBC Holdings plc, a decision released on November 20, 2017, Justice Perell awarded partial indemnity costs of $1 million to defendants that had succeeded, on jurisdictional and forum conveniens grounds, in defeating a proposed shareholder class action. 

International Anti-Corruption Day: 9 December

December 8, 2017

International Anti-Corruption Day has been recognized on an annual basis since the passage of the United Nations Convention against Corruption – which Canada has ratified – in 2003. This year, International Anti-Corruption Day falls on 9 December 2017.

Lenders Should Think Twice Before Foreclosing on Sympathetic Mortgagors

December 6, 2017

Many mortgage enforcement actions proceed through Ontario courts every day. When mortgagees are not paid in accordance with the terms to which they have agreed with the mortgagor, they have a number of options open to them. These options include foreclosure and power of sale proceedings.

Divisional Court Offers First Interpretation of New Interim Suspension Powers Under the RHPA

December 4, 2017

Introduction

In Rohringer v Royal College of Dental Surgeons of Ontario (2017),1  the Divisional Court issued its first decision applying the new interim suspension powers in the Regulated Health Professions Act ("RHPA"). Health professionals governed by the RHPA can have their certificate of registration suspended (or have terms, conditions, or limitations placed on their certificate of registration) prior to a discipline hearing if their conduct "exposes or is likely to expose the member's patients to harm or injury."2 On May 30, 2017, Bill 87, Protecting Patients Act, 2017 came into force and amended the interim order provisions of the RHPA. Prior to these amendments, interim orders could only be issued by a college's screening committee, known as the Inquiries, Complaints, and Reports Committee (the "ICRC"), if an allegation of professional misconduct or incompetence had been referred to the Discipline Committee. Under the new provisions, however, the ICRC can make an interim order any time after a complaint is received or an investigator is appointed. This was intended to be a significant change and this decision is the first time the amendment has been considered by the courts.  

Race to "get a foot in the door" of the recreational cannabis industry raises potentially legal issues

November 30, 2017

Canadian cannabis producers are in a race to increase their size and gain capital ahead of Canada's planned recreational cannabis legalization in July 2018. The recent dueling takeover bids involving a trio of domestic cannabis companies is proof of the jockeying that is currently going on in the industry.


Revisiting First Principles Applicable to Motions for Leave to Intervene in Class Proceedings

November 21, 2017

In Romeo v. Ford Motor Co.,[1] a recent decision of the Ontario Superior Court of Justice, Justice E.M. Morgan considered the principles applicable to a motion to intervene in a certification motion in a class proceeding. This case offers a helpful reminder of first principles applicable to interventions under the Class Proceedings Act, S.O. 1992, c. 6 ("CPA").



[1] 2017 ONSC 6674.

Make a Will Month provides an annual checkup for lawyers and the public

November 21, 2017

According to a 2012 survey conducted by lawyers' insurance company LawPRO, 56 per cent of Canadian adults do not have a signed will and 71 per cent do not have a signed power of attorney. The Ontario Bar Association hopes to tackle this issue during Make a Will Month, a public outreach campaign aimed at educating the public about the importance of executing a will and powers of attorney and informing the public about the ways in which lawyers can assist in estate planning.

Third Edition of the U.S. Sedona Principles and Ongoing Developments in Electronic Discovery

November 20, 2017

Last month, the Sedona Conference announced the publication (forthcoming in 2018) of the third edition of The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (the "Principles"), and released a "Final/Prepublication Version". The Principles were developed by the Sedona Conference Working Group on Electronic Document Retention and Production, and represent a set of core principles and best practice recommendations for production of electronic information in litigation. The Principles and extensive commentary to the Principles have been updated twice since their first publication in January 2004 to reflect the continuing developments in technology, the increasing proliferation of electronic documents, the practical issues encountered in litigation, as well as the developments in the law that are often driven by these very factors.

Security for Appeal Costs: Litigation Tactics Through the Holistic Lens

November 7, 2017

In Yaiguaje v. Chevron Corporation, 2017 ONCA 827, a panel of the Ontario Court of Appeal recently reversed, in short order, a decision of one of its members ordering the appellants to pay security for costs. In this protracted international case, the motion judge had ordered the appellants to post $943,000 for security for costs of their appeal of a summary judgment order dismissing their representative claim against Chevron Corporation's Canadian subsidiary.

The Supreme Court of Canada Holds Banks Liable for Conversion: Teva Canada Ltd. v. TD Canada Trust

November 3, 2017

On October 27, 2017, the Supreme Court of Canada released its decision in Teva Canada Ltd. v. TD Canada Trust.1 The Court split 5:4 in the decision to overturn the Ontario Court of Appeal's ruling that the banks were not liable for converting cheques to non-existing or fictitious payees.

Motions for Partial Summary Judgment: Proceed with Caution

October 16, 2017

In Hryniak v Mauldin, the Supreme Court of Canada held that a summary judgment motion is appropriate if: (i) it can achieve a fair and just adjudication; and (ii) it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

Chambers Global Practice Guide: Cartels 2018 Canadian Chapter

October 11, 2017

WeirFoulds Competition Practice Group contributed the Canadian chapter to Chambers Global Practice Guide: Cartels 2018.

Court of Appeal Affirms Full Indemnity Costs Award

October 10, 2017

In Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766 , a decision released on September 29, 2017, the Court of Appeal articulates the standard of conduct that will merit an award of full indemnity costs against a party. The circumstances in which this case arose are familiar to commercial litigators and the courts, and involve parties dissipating assets in anticipation or in the course of court proceedings.

ONCA considers the "reasonable investigation" defence in securities class actions

October 4, 2017

The Ontario Court of Appeal recently released its decision in Rahimi v SouthGobi Resources Ltd., 2017 ONCA 719, in which it reversed a well-publicized Superior Court securities class action decision.

The continuing saga in Yaiguaje v. Chevron Corporation: a lesson in security for costs and the enforcement of foreign judgments

October 2, 2017

The judicial history in Yaiguaje v. Chevron Corporation spans several jurisdictions and dates back to the early 1990s, while the facts underlying the dispute date back to the 1960s. The matter has reached appeal courts, including the Supreme Court of Canada, and has prompted a review of several issues relevant to the conduct of business internationally, including the enforcement of foreign judgments and piercing the corporate veil.

Primer on Permanent, Mandatory and Interlocutory Injunctions

September 21, 2017

Injunctions are extraordinary remedies. Given their equitable nature, they are very flexible and an invaluable tool for litigators. An interlocutory injunction, if granted, can have a dramatic impact on a case. It is therefore important for lawyers to understand the basics of injunctions.


Back to Basics: A Refresher on the Fundamentals of Contractual Interpretation

September 13, 2017

As the new school year kicks off, the Ontario Court of Appeal's recent decision in RBC Dominion Securities Inc. v. Crew Gold Corporation, 2017 ONCA 648 serves as a handy study guide for lawyers looking to brush up on Contracts 101.

"Umbrella Damages" Forecast for Canada: Cross Border Sellers Beware

August 28, 2017

WeirFoulds partner Nikiforos Iatrou and associate Kayla Theeuwen contributed to the Aug/Sept issue of Today's General Counsel with their article, "‘Umbrella Damages' Forecast for Canada: Cross-border sellers beware ".

The article examines divergent views on the issue of whether umbrella purchasers have a cause of action at Canadian law, and, as a result, identifies that a storm of umbrella damage claims may be in the forecast.

With or Without Prejudice?

August 25, 2017

A recent court decision in Ontario reminds us of the significant implications when communications are characterized as having been made "without prejudice". Such communications are generally precluded from being disclosed or referred to in any subsequent court proceedings. In contrast, no disclosure restrictions are imposed on communications falling outside the without prejudice classification. It is important for parties and their legal advisors to keep the distinction in mind at the time a communication is made.

21st century estate practice: Shrunken heads and sperm

August 1, 2017

Hollywood's vision of an estate solicitor sitting at their desk mulling fine points of tax law while sipping tea and drafting a will is so far from modern practice as to be laughable. One troubling issue for estate practitioners in the 21st century is the plethora of unique assets that have to be planned for, administered, and/or disposed of in a safe and permissible manner. An unscientific survey of our colleagues' experiences yields some useful tips for dealing with unusual assets.

Think That Arbitration Clause Applies? Think Again (and Think Fast!)

July 27, 2017

Many business contracts include broad arbitration clauses meant to apply to any issue related to the interpretation, application and operation of the contract. However, the decision in Allied Accounting v Pacey, 2017 ONSC 4388, released on July 18, 2017, shows that such clauses may be found not to apply in particular cases, depending on other clauses of the contract or the conduct of the parties.

Keeping it in the Family: A Recipe for Trouble for Corporations, a Recipe for Disaster for Expert Witnesses

July 25, 2017

Closely held corporations do not operate pursuant to a different statute than widely held corporations. Generally speaking, all corporations created pursuant to the same business corporation statute – whether controlled by a sole director, officer and shareholder, a 20-member board of directors or 100 shareholders pursuant to a Unanimous Shareholders' Agreement – have the same governance obligations and responsibilities. 

Personal Liability of Directors in Oppression Cases: The Supreme Court Clarifies the Applicable Criteria in Wilson v Alhareyeri

July 13, 2017

In Wilson v Alharayeri, 2017 SCC 39, released on July 13, 2017, the Supreme Court of Canada affirms the decisions of the lower courts holding two directors personally liable to pay compensation to a minority shareholder in an oppression case brought under section 241 of the Canada Business Corporations Act (CBCA). The Supreme Court's unanimous decision clarifies the criteria governing the imposition of personal liability on corporate directors in oppression cases.

A Warning to Contractors and a Lesson for Regulators: Enforcement and Penalties Under the Consumer Protection Act

June 12, 2017

Virtually every regulator engages in some form of consumer protection. Concerns relating to false billing, misleading advertising, and the failure to deliver products and services can be found in nearly every regulatory statute. The vigour with which regulators seek the most serious remedies relating to these consumer protection issues is, however, quite variable. In some cases, the media has criticized regulators for not revoking a registrant's registration when they have been found guilty of professional misconduct for false or misleading billings.

Tribunal Provides Guidance on Financial Abuse of Elderly

April 21, 2017

Canada has an aging population with more Canadians over the age of 65 than under the age of 15. As the population of older Canadians grows, so does the concerns for elder mistreatment, most commonly financial abuse. Despite this issue being a serious public health concern, the topic has rarely crept into the legal lexicon.

More recently, Law makers, regulators, and adjudicators have begun to turn their minds to financial abuse of older adults. Paving the way is Vice Chair Laurie Sanford ("VC Sanford") in the recent Licence Appeal Tribunal decision of 2138658 Ontario Ltd. o/a Seeley's Bay Retirement Home v. Registrar, Retirement Homes Regulatory Authority ("Seeley's Bay"). This is the first case to look at financial abuse in the context of the Retirement Homes Act, 2010 (the "Act").

Section 67 of the Act requires a licensee to protect residents from abuse by anyone. The regulation under the Act defines "financial abuse" as "any misappropriation or misuse of a resident's money or property". The Act is silent about loans from a resident to the licensee. The question of whether taking such a loan is financial abuse was central in Seeley's Bay.

Alleged Acts of Sexual Abuse Pre-Bill 87: Will Bill 87 Apply?

February 16, 2017

Bill 87 (the "Bill"), which contains significant amendments to the Regulated Health Professions Act, 1991 ("RHPA"),  passed first reading in the Ontario legislature in December 2016. Although the Bill is not yet law, if and when it is enacted, there will be some important changes to the way in which RHPA Colleges deal with allegations of sexual abuse.

Under the Bill, a broader scope of conduct will be considered sexual abuse, and more acts of sexual abuse will result in mandatory revocation. This raises the question: how should Colleges deal with allegations of sexual abuse when the events in question pre-dated these new amendments? Is the member subject to the old RHPA provisions, or might the new provisions apply to the allegations?

The answer? It depends. The law on the application of new legislative provisions to prior conduct is complex and often inconsistent. This bulletin outlines two situations in which this question is likely to arise but it is impossible to give an answer that encompasses every situation, and the discussion below will not apply to all scenarios. As always, Colleges would be wise to consult with legal counsel to determine the appropriate way to proceed in any particular case.

No Bidding Around: The Competition Bureau Targets Bid-Riggers in 2017

January 9, 2017

Over the past few years, we have written and presented extensively about how Canada's Competition Bureau has cracked down on price-fixing and bid-rigging in Canada's construction industry. In December of 2016, the Bureau announced that as a result of several recent discoveries of illegal bidding practices, it will be intensifying its efforts to identify and prevent bid-rigging, with a particular focus on provincial and municipal infrastructure projects.

The Intersection Between Form and Substance in Corporate Law

December 14, 2016

In its recent decision in Mennillo v. Intramodal inc., 2016 SCC 51 ("Mennillo"), the Supreme Court of Canada addressed, for the first time since 2008, the oppression remedy. At issue was whether a corporation's failure to comply with the strict requirements of the Canada Business Corporations Act (the "CBCA") in completing a share transfer was oppressive, even though the share transfer was agreed to and directed by the company's shareholders and directors.

The majority of the Court, in reasons for judgment penned by Cromwell J., found that the intention to transfer the shares effectively trumped any deficiencies in carrying out that intention.  There was a strong dissent, however, written by Côté J., who made an impassioned plea that courts not ignore statutory requirements or reward parties who do so.

Parental Recognition and Proposed Amendments to Ontario Legislation: Part 2

December 5, 2016

In February 2016, we wrote about the Cy and Ruby's Act (Parental Recognition), 2015, which proposed a number of amendments to statutes dealing with parental recognition.   We noted that the proposed amendments (the main amendments being to the Children's Law Reform Act ) dealt with various typical factual scenarios involving assisted reproduction with donated genetic material from a third party, surrogacy arrangements or the possibility that an intended parent's own genetic materials would be stored and used at a later time.  One of the goals of the proposed amendments was to facilitate the parental recognition of same-sex partners who rely on assisted reproduction for the conception and birth of children they intend to parent.  Indeed, one of the significant proposed amendments was the replacement of all references to "mother" and "father" with references to "parent". 

Regulating Utility Governance: An Analysis of the Ontario Energy Board's Role

September 29, 2016 | download

The Ontario Energy Board has announced its intention to conduct a consultation respecting its role in providing guidance to regulated entities with respect to corporate governance.

This paper examines the possible role of the Ontario Energy Board in the governance of rate-regulated utilities. The conclusion of the paper is that the Board should have no such role. To begin with, it serves no practical purpose. Beyond that, the paper highlights the fact that the OEB already has effective control over those activities. The paper asserts that for the OEB to exercise some form of oversight over corporate governance would serve no public policy objective, and would instead would represent a particularly intrusive form of regulatory over-reach.

The RHPA's "blanket provision": protecting professional self-regulatory colleges from human rights complaints

September 27, 2016

In a recently released decision, Dindial v. College of Nurses,[1] the Human Rights Tribunal of Ontario ("HRTO") dismissed an application by a registered nurse alleging that she was discriminated against by the College of Nurses ("CNO") on the grounds of race, colour, ethnic origin, and disability.

The allegations arose from the CNO carrying out its duties under the Regulated Health Professions Act, 1991, S.O. 1991, c.18 ("RHPA"). The HRTO found that the applicant's allegations were based almost exclusively on evidence that was inadmissible before the HRTO pursuant to s. 36(3) of the RHPA and, on that basis, the application had no reasonable prospect of success.

As a result of this decision, it will be rare that a professional self-regulatory college's handling of a regulatory decision can be challenged before the HRTO or any other tribunal.

Contempt and Bankruptcy: Striking the Right Balance

September 7, 2016 | download

In its recent decision in Walchuk v Houghton, 2016 ONCA 643, the Court of Appeal for Ontario clarified the interaction between the stay provisions of the Bankruptcy and Insolvency Act (BIA) and motions for contempt of court orders.

2015 Antitrust Year in Review

August 18, 2016 | download

Welcome to the 2015 Antitrust Year in Review, a compilation of the latest antitrust/competition law developments in 27 jurisdictions worldwide. Each contribution offers commentary on significant developments taking place across a number of areas, including legislation, mergers, cartels and anticompetitive practices, abuses of dominant position and court decisions. This is the International Antitrust Law Committee's 10th edition of the Year in Review, which debuted in 2006.

Case Commentary: Ontario Court of Appeal Delivers Stern Message to Employers Who Mistreat Employees with Disabilities

July 25, 2016

The Plaintiff was employed by the defendant for 15 years.  She earned $12.95 per hour.  She was dismissed at the age of 56 after she became totally deaf, possibly due to a virus.  The conduct of her employer is summarized by Epstein, J.A. at the outset and is startling, to say the least:

Don't Turn the Boom Into a Bust: Avoiding the Criminal Consequences of Public Procurement

June 30, 2016

In a recent interview with the Globe and Mail, Canada's Commissioner of Competition, John Pecman, said that the Competition Bureau is planning to double the number of training workshops that it offers to public procurement officials on ways to prevent fraud. These workshops will help assist officials to identify the bid-rigging tactics that have become increasingly common in the infrastructure sector.

Levelling the Playing Field: CCES Guidance for Creating Inclusive Environments in Sports

June 9, 2016 | download

The treatment and legal protection of the transgender community has become an increasingly important topic globally. In North America, a recent North Carolina law requiring people to use public bathrooms that correspond with the sex on their birth certificate rather than their gender identity became the topic of controversy and public outcry. The National Basketball Association released a statement condemning North Carolina's legislation and indicated that it might move the 2017 NBA All-Star Game as a result. In contrast, recently introduced Canadian federal legislation is intended to protect transgender Canadians against discrimination and violence by specifying "gender identity" for protection under the Canadian Human Rights Act and the Criminal Code.

Case Commentary: Supreme Court Tightens Standard of Review for Contract Interpretation

May 17, 2016

Following upon the recent decision of the Supreme Court of Canada in Heritage Capital Corporation v. Equitable Trust, 2016 SCC 19, it will be significantly more difficult to successfully appeal decisions of trial court judges in contract matters.

The Challenges and Benefits of Distributed Energy Resources (DER) for Municipalities

May 16, 2016 | download

The growing interest in, and deployment of, distributed energy resources ("DER") has been thought to be of interest, albeit for different reasons, primarily to consumers and to local electricity distribution utilities. However, DER has important implications for municipalities, both in their capacity as the owners of those distribution utilities and as a means to promote both conservation and the development of contaminated properties.

Panama Papers and Offshore Accounts: Window of Opportunity to Make a Voluntary Disclosure Closing

May 11, 2016 | download

Canadian residents are required to report worldwide income. Furthermore, Canadian residents are generally required to annually file a special information return for any year that they held, at any time in that year, "specified foreign property" that had a cost exceeding $100,000. A failure to report such income or file any such return makes the Canadian resident liable to significant penalties (for which interest accrues daily) and potentially open to criminal prosecution.

Corporate Governance for Municipally-Owned Local Electricity Distribution Utilities

April 27, 2016 | download

Local distribution electricity utilities ("LDCs") have been a source of stable and predictable income for their municipal owners. That is in large measure a result of the fact that LDCs are providing a monopoly service overseen by a regulator charged with the obligation, among other things, to ensure the stability of the LDCs.

Interpreting a Regulator's Jurisdiction to Award Costs: Lessons from Registrar REBBA v. Jolly

April 26, 2016 | download

WeirFoulds recently acted as Amicus Curiae in a judicial review involving the interpretation of a regulator's jurisdiction to award costs. Although the case focused on the particular statutory framework applicable to the Appeals Committee of the Real Estate Council of Ontario ("RECO"), the case contains important lessons for other regulators.

Alternative Dispute Resolution: An Alternative to an OMB Hearing?

March 29, 2016 | download

Developers and builders working in the GTA know that the process to get projects approved has become more complex, expensive, lengthy and uncertain. Anything that attempts to ease these stresses is a welcome relief. 

Books by WeirFoulds Lawyers

December 1, 2010