Supreme Court Clarifies the Law on the Duty of Care for Pure Economic Loss
A recent Supreme Court of Canada decision is a cautionary tale on the Court’s reluctance to award recovery in tort where parties fail to mitigate risks through contract. In 1688782 […]
Reflections on Half a Century in the Commercial Litigation Trenches – Part I
Articling Year I think that it is safe to say that I started my professional life as a commercial litigation lawyer the day I began my articles at the Fasken […]
“Arising out of”: Adding Another Definition to Your Contractual Terms Dictionary
In Sky Clean Energy Ltd. (Sky Solar (Canada) Ltd.) v. Economical Mutual Insurance Company,[1] the Ontario Court of Appeal analysed a common feature of insurance arrangements in development projects – the extension […]
Court of Appeal Decides Against Overruling its Prior Decisions on s. 7(6) of the Arbitration Act
In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612, an appeal was brought from the order of a motion judge refusing to stay […]
Uber Arbitration Agreement not so Uber
Uber Arbitration Agreement not so Uber[1] In my April 16, 2018, blog,[2] I wrote about the Superior Court of Justice’s decision upholding the arbitration provisions in an Uber contract, and […]
Parties Must Check their Biases at the Door When Exercising Contractual Rights
In Elias Restaurant v Keele Sheppard Plaza Inc., 2020 ONSC 5457, Justice Morgan of the Ontario Superior Court of Justice commented on the racist overtones of the evidence adduced by […]
The Collapse of a House of Cards: Estoppel by Convention and the Need for a Shared Assumption
In Grasshopper Solar Corporation v Independent Electricity System Operator,[1] the Court of Appeal agreed that a contractual party has a right to terminate a contract without paying damages if the […]
A Deal’s a Deal: The Enforcement of Settlements
A short decision from the Court of Appeal for Ontario in Neilas (799 College St) Inc. v Houston Engineering & Drafting Inc.,[1] released on August 6, 2020, suggests that litigants […]
Waiver of Tort Is Dead, Long Live Disgorgement (Maybe)
In Atlantic Lottery Corporation Inc. v Babstock[1] released on July 24, 2020, the Supreme Court of Canada unanimously held that “waiver of tort” was not a cause of action, and […]
Old Case, New Gloss: The Ontario Court of Appeal Clarifies the Rule in Foss v Harbottle
The recent decision of the Ontario Court of Appeal in Tran v Bloorston Farms Ltd., 2020 ONCA 440, provides a helpful explanation and clarification of the rule in Foss v […]
The Bluberi Decision: “No” to Vote-Rigging and “Yes” to Litigation Funding
On May 8, 2020, the Supreme Court of Canada (“SCC”) released its decision in 9354-9186 Québec inc. v. Callidus Capital Corp.,[1] after hearing arguments on January 23, 2020. The appeal […]
“Automatic, Immediate and Ongoing”: The Court of Appeal Emphasizes the Fundamental Obligation of Litigants to Disclose Relevant Documents
The Ontario Court of Appeal recently upheld the decision of a motion judge to strike out a statement of defence as a remedy for repeated failures to comply with judicial […]
Court of Appeal Confirms its Jurisdiction to Hear Appeals in Writing Over the Objection of a Party
In 4352238 Canada Inc. v SNC Lavalin Group Inc.,[1] the Ontario Court of Appeal gave notice that it is determined to proceed with appeals, where possible to do so, during […]
Rectification on the Basis of Implied Terms and Business Efficacy
The Ontario Court of Appeal recently reviewed the law applicable to rectification claims and the interpretation of contracts in 2484234 Ontario Inc. v Hanley Park Developments Inc.[1] After applying contractual […]
Substance Over Form in the Enforcement of Franchisees’ Statutory Rescission Rights: the Anomalous Case of Notice by Pleading
In a decision released on March 23, 2020,[1] the Ontario Court of Appeal favoured substance over form in finding that a franchisee could properly discharge its obligation to give written […]