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Oct 29, 2018

All that Glisters is Not Tolled, but is the Story Fully Told?

On October 10th, 2018 the Ontario Court of Appeal released its decision dismissing the appeal in the case of National Money Mart Company v 24 Gold Group…

Oct 23, 2018

A Relief for Lenders: Duty of Good Faith Performance of Contractual Obligations does not Require Lenders to Advance Additional Funds to Borrowers

Since the Supreme Court’s landmark decision in Bhasin v Hrynew1 confirmed the existence of a general duty to perform contracts in good faith, the Canadian legal and business communities…

A Matter of “Interest“

In a decision that raised concerns for lenders earlier this year, the Superior Court of Justice held, in Solar Power Network Inc. v. ClearFlow Energy Finance Corp.1, that…

The Enforceability of Guarantees given by Officers and Directors of Corporate Borrowers and Sophisticated Individuals

As a mechanism for safeguarding the enforceability of a guarantee, it is common practice for commercial lenders to require that personal guarantors obtain independent legal advice with…

No Additional Consideration Required to Support Loan Amendments

Private loan arrangements lead to more than their fair share of litigation proceedings. Their disputes often require the courts to apply long-standing legal principles to informal loan…

The Test for Unconscionability in Loan Agreements

Not surprisingly, borrowers often view certain terms in loan and credit agreements as harsh, over-reaching or unusually generous for the lender. But at what point does a…

Priorities Matter – But That’s Not All That Matters!

Often, when the parties to a financing are discussing priorities or intercreditor arrangements, there tends to be a simplistic view taken of these agreements. Once the competing…

Oct 22, 2018

When the Deal Goes South: Deposits, Unconscionability, and Relief from Forfeiture

Recent cases from the Ontario Court of Appeal address issues regarding deposits in failed purchase and sale transactions. An examination of these cases provides guidance regarding the…

Quick Question: Opinions on Amendments to Credit Agreements

Q: Do I need an opinion from borrower’s counsel on an amendment to an existing credit agreement? A: Opinions from borrower’s counsel are routinely provided on the…

Oct 15, 2018

Misnomers and Misdescriptions: The “Litigation Finger Test” to the Rescue!

In the last month, the Court of Appeal decided two cases based on the “litigation finger test”.[1] The litigation finger test can assist a plaintiff in cases of misdescription…

Sep 24, 2018

CSA Amendments to Simplify Reports of Exempt Distribution – Bulletin

On July 19, 2018, the Canadian Securities Administrators (“CSA“) published final amendments (“Amendments“) to National Instrument 45-106 – Prospectus Exemptions (“NI 45-106“) and its related Companion Policy…

Sep 20, 2018

Government “Policy” Decisions Do Not Always Trump Judicial Review

A change in government and its policies can impact business dramatically, and often with unintended consequences. In some cases, the result is intended. In matters of a…

Sep 6, 2018

Anti-SLAPP Legislation Tested at the Court of Appeal

On August 30, 2018, the Ontario Court of Appeal released six unanimous decisions that address Ontario’s “anti-SLAPP” legislation.[1] SLAPPs – Strategic Lawsuits Against Public Participation – are…

Sep 5, 2018

The Role of Risk Management in Regulation

We live in a society that assumes risks can be both anticipated and controlled. If there is a failure to foresee and prevent harm (to fail to…

Aug 30, 2018

Timing is Everything: Subrogation Claims in the Context of a Construction Loss

It is often perceived that subrogation claims are barred in the context of a construction loss. This is because typically the applicable construction policies will contain waivers…

Aug 29, 2018

Ontario Court of Appeal Affirms Dismissal of Action Against Auditors Because of Failure to Prove Damages

The Court of Appeal for Ontario recently addressed the issue of auditor’s liability, post-Livent[1], in Fairfield Sentry Ltd. v PricewaterhouseCoopers LLP, 2018 ONCA 696. The Court of…

Aug 14, 2018

Ontario Government Makes Policy U-Turn: Doug Ford’s Plan for the Private Retail Sale of Cannabis

Fresh off his convincing electoral victory, Premier Doug Ford has announced that he plans to begin the process of scrapping Ontario’s existing approach to the retail sale…

Is the Clock Ticking? The Court of Appeal Discusses Discoverability and the Application of Section 5(1)(a)(iv) of the Limitations Act, 2002

In Gillham v. Lake of Bays (Township), 2018 ONCA 667, a case about the discoverability of claims for damages arising out of construction deficiencies, the Court of…

Aug 8, 2018

Out of the Weeds: What You Need to Know About the Cannabis Act as an Employer

On June 20, 2018, the Government of Canada passed Bill C-45, the Cannabis Act, which will, among other things, legalize the recreational use of cannabis. The Cannabis…

Aug 3, 2018

Out of time: The Court of Appeal Discusses When a Claim is “Discovered” Within the Meaning of the Limitations Act, 2002

When does the limitation clock start ticking? The answer is not always clear, particularly when a claimant’s damages are yet to be quantified. In Davies v. Davies…

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