Interpreting Efforts Clauses in a Commercial Contract
Canadian courts have gone to great lengths to assign distinct, differing meanings to efforts clauses. The terms “best efforts”, “commercially reasonable efforts”, and “commercially reasonable best efforts” (together, “efforts clauses”) […]
Open Access: The Federal Court’s Pilot Project for Online Access to Court Records
On September 12, 2022, the Federal Court introduced Phase One of its pilot project to provide the public and litigants with online electronic access to Court records.[1] The Courts are […]
Leave May Not Always Be Required to Appeal an Arbitral Costs Award
Parties to commercial transactions often choose arbitration over litigation. While litigation offers a more structured process, arbitration provides both parties with a tailored, more private, faster and often less expensive […]
Ontario Court of Appeal Addresses Use of Fresh Evidence in Obtaining a Declaration that Judgment Debt Survives Bankruptcy
In a recent decision, the Ontario Court of Appeal approved the use of “fresh” evidence in obtaining a declaration that a judgment debt for statutory breach of trust survives bankruptcy. […]
Modernizing Oral Examinations: Changes Are Coming to Rule 34
The Ontario Civil Rules Committee has issued a consultation paper and is seeking input on potential changes to Rule 34 of the Rules of Civil Procedure, RRO 1990, Reg 194, […]
Pre-Proceeding Service: Superior Court Clarifies the Rules on Service Prior to the Commencement of a Proceeding
Earlier this year, the Ontario Superior Court of Justice released its decision in Obsidian Group Inc. v. Google LL, 2022 ONSC 84, in which Justice Morgan reviewed the principles governing […]
Canadian vs. U.S. Defamation Trials: What if Depp v. Heard Took Place in Canada?
The Depp-Heard trial, which dominated headlines for weeks, culminated in a decision awarding Johnny Depp $15 million for his lawsuit and Amber Heard $2 million for her countersuit. The media […]
When is a Pollutant Not a Pollutant: Total Pollution Exclusions in Commercial General Liability Policies
On June 2, 2022, the SCC dismissed an application for leave to appeal from the Ontario Court of Appeal’s decision in Hemlow Estate v. Co-operators General Insurance Company, 2021 ONCA […]
The Road to Settlement is Paved with Admissible Communications
In a decision released earlier this year, the Ontario Court of Appeal affirmed that “without prejudice” communications are admissible to prove the existence of a settlement, even where those communications […]
Court of Appeal Dismisses Class Action Over Expiring Airline Credits
The British Columbia Court of Appeal recently overturned a lower court decision certifying a class action relating to WestJet travel bank credits (“WTB Credits”) and dismissed the case. The Court […]
A Deal’s a Deal: Court of Appeal Reaffirms That Setting Aside Contractual Provisions on Public Policy Grounds Should Be Done Sparingly
The Ontario Court of Appeal recently considered a case where a defendant corporation argued it should not be required to pay a debt owed to a long-standing business partner. The […]
Extra-territoriality: When can a foreign court transfer title to land in Canada?
The Supreme Court of Canada has recently granted leave to appeal from the British Columbia Court of Appeal’s decision in Lanfer v Eilers, 2021 BCCA 241 (“Lanfer”). The Plaintiffs/Appellants, the Lanfers, sought to […]
Unequal Treatment of Creditors: Paying a Supplier’s Pre-filing Debt in a Proposal Under the Bankruptcy and Insolvency Act
We were approached by a company to assist with its restructuring. Our client’s biggest problem was that its largest unsecured creditor was also its main supplier. Approximately 80% of the […]
Warning to Claimants: Immediate Disclosure Required
Litigants asserting claims in Ontario will want to take careful note of a recent decision of the Court of Appeal. In Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66 (“Tallman”) […]
Limitation Periods on Arbitration: If not Clarity, then Context
Arbitration can be a great alternative to litigation. It allows disputes to be resolved sooner, it can be less costly, and it may help the parties to a dispute keep […]