fmc-law.com RSS Feeds - Publications - Litigation & Dispute Resolutionhttp://www.fmc-law.com/upload_net/rss/en/Litigation.xmlThu, 31 May 2012 10:01:24 GMTen-us5This paper, originally presented at the 2010 CCLA Solicitors Conference, reviewed particular factors that drafters must consider when including forum clauses in contracts as well as the tests the courts have used when jurisdiction has been disputed and how they had been changed by the Ontario Court of Appeal in the Van Breda decision. In so doing, we indicated where the tests and applications of the test remain unclear. The paper was updated in 2011 to address two significant decisions by the Ontario Court of Appeal in Expedition and Momentous which elaborated the factors constituting “strong cause” not to enforce a foreign jurisdiction clause. The Momentous decision also determined that following a finding of jurisdiction simpliciter there are two different classes of cases in which the court is asked to exercise its discretion to take jurisdiction:  one arises on a forum non conveniens motion; the other where the parties have agreed to a forum to resolve their disputes. The Ontario Court of Appeal found that each class of case has its own onus, test and rationale. In 2012 the Supreme Court of Canada released decisions dismissing the Van Breda and Momentous appeals and has clarified most (but not all) of the confusion surrounding the international private law of jurisdiction in Ontario. In Van Breda the Supreme Court clearly states the doctrine of forum non conveniens, simplifies the real and substantial connection test for determining jurisdiction simpliciter and in so doing seems to have blurred the traditional distinction between presence-based, consent-based and assumed jurisdiction simpliciter: “ostensibly conflating presence and consent under the rubric of assumed jurisdiction.”   Read more by clicking the download button.http://www.fmc-law.com/Publications/0512_Just_Jurisdiction_Updated_2012.aspxMon, 14 May 2012 06:00:00 GMThttp://www.fmc-law.com/Publications/0512_Just_Jurisdiction_Updated_2012.aspxThe Supreme Court of Canada (“SCC”) recently considered whether a party had waived its right to rely on contractual arbitration and forum selection clauses by defending an Ontario action on the merits. In Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., 2012 SCC 9, the SCC unanimously affirmed an Ontario Court of Appeal ruling that a defence on the merits did not amount to a waiver of contractual arbitration and forum selection clauses. In doing so, the Court reinforced Canada’s status as an arbitration friendly jurisdiction that will give strong deference to arbitration and choice of forum clauses in commercial agreements. However, the decision leaves considerable uncertainty about when a defence or delay in moving might amount to a waiver of such clauses in other circumstances. The SCC decision was brief and focused on the narrow issue of whether the Ontario Rules of Civil Procedure permitted dismissal of the action based on the arbitration and forum selection clauses, notwithstanding the delivery of a statement of defence which specifically pleaded these clauses. The SCC did not consider when a “strong cause” might exist to displace contractual arbitration and forum selection clauses nor did it address the doctrine of waiver by attornment. The SCC held that the relevant rules did not limit the time during which a motion to dismiss the action could be brought. In effect, the lack of such restriction was held to oust any inferred waiver of the arbitration and choice of forum clauses that might exist at common law by virtue of defending. In this context, the SCC found that a statement of defence that specifically pleads a foreign forum selection clause does not amount to consent that the courts of Ontario assume jurisdiction so as to preclude consideration of the merits of whether to enforce the clause. Accordingly, the appeal was dismissed, ending the Ontario action. Read more by clicking the download button.http://www.fmc-law.com/Publications/0512_Focus_on_Alternative_Dispute_Resolution.aspxThu, 10 May 2012 06:00:00 GMThttp://www.fmc-law.com/Publications/0512_Focus_on_Alternative_Dispute_Resolution.aspxIn Jones v Tsige 2012 ONCA 32 the Court of Appeal for Ontario issued the first definitive statement from a Canadian appellate court that there is a common law right of action for intrusion upon seclusion, or invasion of personal privacy. The elements of the new tort are defined by reference to the Restatement (Second) of Torts (2010), following the approach taken by US and Australian courts. Republished with permission. Read more by clicking the download button.http://www.fmc-law.com/Publications/0512_The_Development_of_Privacy_Torts_Ontario.aspxTue, 01 May 2012 06:00:00 GMThttp://www.fmc-law.com/Publications/0512_The_Development_of_Privacy_Torts_Ontario.aspxIn Jones v. Tsige, 2012 ONCA 32, the Court of Appeal for Ontario issued the first definitive statement from a Canadian appellate court that there is a common law right of action for intrusion upon seclusion, or invasion of personal privacy. The elements of the new tort are defined by reference to the Restatement (Second) of Torts (2010), following the approach taken by American and Australian courts. Read more by clicking the download button.http://www.fmc-law.com/Publications/0412_Focus_on_Litigation_ADR.aspxWed, 25 Apr 2012 06:00:00 GMThttp://www.fmc-law.com/Publications/0412_Focus_on_Litigation_ADR.aspxThe Ontario Court of Appeal's recent decision in Hamilton (City) v Metcalfe & Mansfield Capital Corporation is essential reading for persons considering bringing a tort-based action in Ontario. In its decision, the appeals court was clear that the 'damage' required to crystallise an actionable claim flows from the alleged tort, as opposed to the actual financial losses suffered by the plaintiff as a result. Thus, as was the case in Hamilton, where a plaintiff enters into a transaction in reliance on a negligent misrepresentation and fails to receive what it expected, 'damage' is suffered at the moment that the plaintiff enters into the transaction because it is then in a worse position than before the transaction. It is at this point (and not when the amount of actual loss is understood) that the cause of action is complete. Once such 'damage' is discovered, the limitation period commences. Republished with permission. Read more by clicking the download button.http://www.fmc-law.com/Publications/0412_Court_clarifies_the_requirement_of_damage.aspxTue, 24 Apr 2012 06:00:00 GMThttp://www.fmc-law.com/Publications/0412_Court_clarifies_the_requirement_of_damage.aspxToday the Supreme Court of Canada released its much anticipated decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (“Club Resorts”), and provided a new common law test for determining when a court can assume jurisdiction over an out-of-province defendant. Here is a brief summary of the new test; a more detailed analysis will follow. Read more by clicking the download button.http://www.fmc-law.com/Publications/0412_Focus_On_Litigation.aspxWed, 18 Apr 2012 06:00:00 GMThttp://www.fmc-law.com/Publications/0412_Focus_On_Litigation.aspxIn order for an option to renew or extend to be enforceable (as opposed to being a mere “agreement to agree”, which is unenforceable at law), there are two required elements: (1) a formula or reference standard to fix the new rent; and (2) procedural machinery to determine the new rent in the event that the parties don’t agree (i.e. an ADR process). The formula or reference standard should specify the valuation date for the rent determination, whether it is for a restricted or unrestricted use (e.g. “market rent for a financial institution” vs. “market rent”), and any geographic restrictions (e.g. the plaza/complex, within a particular radius of the subject location, within a specified city). This paper was written for the Law Society of Upper Canada's Six-Minute Commercial Leasing Lawyer program, Feb 15, 2012. Read more by clicking the download button.http://www.fmc-law.com/Publications/0212_Simplifying_Arbitration_Process_Renewal_Extension_Rent.aspxThu, 16 Feb 2012 07:00:00 GMThttp://www.fmc-law.com/Publications/0212_Simplifying_Arbitration_Process_Renewal_Extension_Rent.aspxIn this article, Jacob Kaufman discusses Crookes v. Newton, a decision of the Supreme Court of Canada that the creation of a hyperlink to allegedly defamatory material was not publication of that material. In Crookes, Justice Abella, writing for the majority, held that creating a hyperlink to allegedly defamatory material was not publication of that material as communicating that something exists or where it exists is different from actually communicating it. Subjecting hyperlinks to the traditional publication rule "would be like trying to fit a square archaic peg into the hexagonal hole of modernity". Justice Abella clarified that creating a hyperlink could be defamatory where the hyperlink, in itself, conveyed defamatory meaning. The ruling did not address so-called 'embedded' or 'automatic' links that actually project content from a secondary website onto the primary website. Additionally, it may be an open question whether this ruling applies in Ontario due to the different statutory context. Read more by clicking the download button.http://www.fmc-law.com/Publications/0212_Kaufman_Jacob_Hyperlinks_Not_Publications.aspxTue, 14 Feb 2012 07:00:00 GMThttp://www.fmc-law.com/Publications/0212_Kaufman_Jacob_Hyperlinks_Not_Publications.aspxIn this article, Michael Schafler and John Zerucelli discuss Combined Air Mechanical Services Inc v. Flesch, a decision of the Ontario Court of Appeal that clarified the scope and availability of the summary judgment procedure in Ontario.  The court has introduced a new legal test – the 'full appreciation' test, which directs when a court may resolve a case by way of summary judgment under Rule 20 of the Rules of Civil Procedure. The court's ruling has provided much-needed clarity as to when summary judgment is appropriate. Essentially, if a case is too complicated (from an evidentiary point of view), a trial will be required. On the other hand, a motion court judge does have the power to hear viva voce evidence to clarify simple issues. How this theoretical framework will unfold remains to be seen. Republished with permission. Read more by clicking the download button.http://www.fmc-law.com/Publications/0112_International_Law_Office_New_Ontario_Summary_Judgment_Regime.aspxTue, 31 Jan 2012 07:00:00 GMThttp://www.fmc-law.com/Publications/0112_International_Law_Office_New_Ontario_Summary_Judgment_Regime.aspxIn this issue of Focus on Alternative Dispute Resolution, the following topic is discussed: The New ICC Arbitration Rules – What You Need to Know On January 1, 2012, the International Chambers of Commerce’s newly revised Rules of Arbitration (the “2012 ICC Rules”) took effect. The new rules apply to all ICC arbitrations going forward, unless the parties agree to adopt the rules that were in effect when their arbitration agreement was executed. Read more by clicking the download button.http://www.fmc-law.com/Publications/0112_Focus_On_ADR.aspxTue, 24 Jan 2012 07:00:00 GMThttp://www.fmc-law.com/Publications/0112_Focus_On_ADR.aspxNotwithstanding the growth of alternative fee arrangements, legal costs remain a significant challenge for companies involved in commercial disputes in Canada. Recent reforms in provinces such as Ontario have helped reduce cost pressures in smaller disputes by increasing the monetary jurisdiction of lower courts and reducing pre-trial procedures in cases of modest value - those less than $100,000. Other reforms have introduced the concept of proportionality with respect to document production obligations, discovery rights, and cost awards. Further, in Ontario, the Rules of Civil Procedure have expressly adopted the Sedona Principles regarding electronic discovery. Republished with permission. Read more by clicking the download button.http://www.fmc-law.com/Publications/1111_Financier_Worldwide_Schafler.aspxWed, 23 Nov 2011 07:00:00 GMThttp://www.fmc-law.com/Publications/1111_Financier_Worldwide_Schafler.aspxFor an option to renew or extend to be enforceable (as opposed to being a mere “agreement to agree,” which is unenforceable at law), the option must include both a formula or reference standard and machinery to determine the rent during the renewal/extension term. Binding arbitration is the typical “machinery” used to determine the rent during the extension term in the event that negotiations between the landlord and tenant fail to produce an agreement within a stipulated period. Reprinted by permission of Carswell, a division of Thomson Reuters Canada Limited. Read more by clicking the download button.http://www.fmc-law.com/Publications/1211_Binding_arbitration_common_determining_renewal.aspxThu, 01 Sep 2011 06:00:00 GMThttp://www.fmc-law.com/Publications/1211_Binding_arbitration_common_determining_renewal.aspxA Q&A guide to dispute resolution in Canada. In this publication, FMC's Michael Schafler and John Lorn McDougall give a structured overview of the key practical issues including, for example, court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. Key Content Includes: Main dispute resolution methods Court litigation - general Fees and funding Court proceedings Interim remedies Final remedies Evidence Appeals Class actions Costs Enforcement of a local judgment Cross-border litigation Alternative dispute resolution Proposals for reform Contributor details Read more by clicking the download button.http://www.fmc-law.com/Publications/0611_Practical_Law_Company_Dispute_Handbood_Schafler.aspxMon, 13 Jun 2011 06:00:00 GMThttp://www.fmc-law.com/Publications/0611_Practical_Law_Company_Dispute_Handbood_Schafler.aspxIn this article, Salim Hirji discusses foreign currency debts in British Columbia and the Foreign Money Claims Act. In the last three years, the Canadian dollar has seen a great deal of volatility — in the Spring of 2008, the Canadian dollar was on par with the U.S. dollar, and competitive against other major currencies such as the British Pound and the Euro. Six months later, as the global financial system began to show serious signs of weakness, the value of the Canadian dollar quickly slid to 77 cents U.S. Today, the Canadian dollar hovers within five cents of the U.S. dollar. Reproduced with permission of the publisher from National Creditor Debtor Review, Vol. 26, No. 2, June 2011. Read more by clicking the download button.http://www.fmc-law.com/Publications/0811_Hirji_Salim_National_Creditor_Debtor_Review.aspxWed, 01 Jun 2011 06:00:00 GMThttp://www.fmc-law.com/Publications/0811_Hirji_Salim_National_Creditor_Debtor_Review.aspx