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Category Archives: Civil Procedure

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Summary Judgment: It’s the “New Black”

Posted in Civil Procedure
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In an earlier blog post, we reviewed what the Supreme Court of Canada heralded as a “shift in culture” in Hryniak v. Mauldin, 2014 SCC 7 with respect to the availability of summary judgment.  While we had expected BC Courts to therefore be even more receptive to summary adjudications than they had in past, there… Continue Reading

The Thorny issue of Costs and Special Costs

Posted in Civil Procedure
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One of the most exasperating aspects of civil litigation for clients is the issue of court ordered costs.  Ordinarily, the party that wins a case is entitled to have their “costs” paid by the other side.  The court’s ability to award costs is discretionary and, as a result, often difficult to predict. There are, generally… Continue Reading

“Is Too Much Communication a Bad Thing?” The Perils of Correspondence with Experts in Civil Cases

Posted in Civil Procedure
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Authors: Kinji Bourchier and Amy Nathanson. In the recent Ontario Superior Court case of Moore v. Getahun, 2014 ONSC 237 (“Moore”) the Court answered yes to this question and took a very restrictive approach to communications between counsel and experts.  Almost all civil litigators across the spectrum of cases deal with experts. Experts can play a significant, if not pivotal… Continue Reading

Finally, the Supreme Court of Canada puts some finality into Arbitrations

Posted in Civil Procedure
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Two of the main benefits of private arbitration are said to be speed and finality. However, the long running case of Sattva Capital Corporation v. Creston Moly Corporation has been a prime example of how court intervention into the arbitration process can lead to arbitration being anything but speedy or final. I first blogged about this case… Continue Reading

“Relief from Forfeiture” under the Civil Forfeiture Act

Posted in Civil Procedure
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Earlier this year, I blogged about the civil forfeiture case of B.C. (Director of Civil Forfeiture) v. Wolff.  That appellate decision set guidelines for the trial courts on what and how to consider the “interest of justice” when faced with a forfeiture claim.   It confirmed the “dominant principles” of proportionality and fairness in weighing whether… Continue Reading

Pas le Français in the Courts of British Columbia

Posted in Civil Procedure
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Canada has two official languages – English and French – arising from our unique heritage as a country.  Given this status, one may have assumed both official languages were freely used in the courts across the country.  Not so says the British Columbia Court of Appeal which recently ruled that documents, not in the English… Continue Reading

B.C. Proposes a New Limitation Act

Posted in Civil Procedure
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The sky is falling!  Well, not really but some might think so given that the provincial government has introduced a bill, currently in first reading, that will bring some significant changes to the law governing limitation periods.  Limitation periods establish the time within which a lawsuit must be commenced, failing which it will be barred… Continue Reading

Production of Confidential Settlement Documents – the Continuing Saga of Todd Bertuzzi and Steve Moore

Posted in Civil Procedure
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As a lifelong Canucks fan, I will never forget the video footage of Todd Bertuzzi tackling Steve Moore and the subsequent North American wide television coverage.  This incident was back in the news recently because Master Dash of the Ontario Superior Court of Justice ordered production of the Minutes of Settlement among Todd Bertuzzi, Marc… Continue Reading

Proposed Amendments to B.C.’s Civil Forfeiture Act

Posted in Banking, Civil Forfeiture, Civil Procedure, Fraud
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In April 2006, B.C.’s Civil Forfeiture Act (“CFA”) came into force.  Seven Canadian provinces now have similar legislation.  The CFA provides a mechanism for the government, through the Director of the Civil Forfeiture Office, to seek the forfeiture of the “proceeds of unlawful activity”.  Forfeiture is ordered by the Court when it is proven that… Continue Reading

Look Before You Leap – Is an Arbitration Agreement Right for You?

Posted in Civil Procedure, Commercial
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The press is riddled with stories concerning perceived problems with the court system.  Various commentators say it is too slow, too expensive and procedurally unwieldy.  These concerns have led some to conclude that arbitration is a better alternative. Arbitration agreements do have risks which parties should understand before agreeing to an alternate form of dispute resolution. The long running… Continue Reading

Civil Contempt of Court

Posted in Civil Procedure
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What is civil contempt of court? A fair question given the Ontario Court of Appeal’s recent decision to uphold a 14 month sentence for civil contempt in the case of Barry Landen. Mr. Landen had defrauded the estate of his good friend Paul Penni of millions of dollars. This 14 month sentence arose not from the… Continue Reading

Is the Future Class Proceedings? – TELUS’ Mandatory ADR Agreement is Unenforceable

Posted in Civil Procedure, Class Actions
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Class proceedings are a powerful tool for consumers and lawyers.  In practical terms, class proceedings allow otherwise uneconomic claims to be brought and often create large monetary exposure to Defendants.  This occurs through aggregation.  If a class proceeding is “certified”, it will “aggregate” all of the claims of a “class” of claimants into one claim. … Continue Reading

British Columbia and Alberta New Rules of Civil Procedure – Initial Impressions

Posted in Civil Procedure, Commercial
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The court process in Canada’s two western most provinces have much in common.  Prominently, new Rules of Civil Procedure has come into effect in both British Columbia and Alberta in the last 8 months.  Rules of Civil Procedure, often called Rules of Court, establish the procedures by which lawsuits are commenced and proceed in the… Continue Reading

Anti-SLAPP Legislation on the Horizon

Posted in Civil Procedure, Commercial, Defamation
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On October 28, 2010, a panel commissioned by the Ontario Attorney General delivered its report, recommending that the province enact legislation to address so-called strategic litigation against public participation or “SLAPP” suits.  The panel was chaired by Mayo Moran, the dean of the University of Toronto Faculty of Law.  According to the government’s press release,… Continue Reading

Planes, the Gulf War and the Enforcement of Foreign Judgments in Canada

Posted in Civil Procedure, Commercial
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The repercussions of the first Gulf War have now made their way to the courts of Canada. The Supreme Court of Canada has recently weighed in on whether Kuwait Airways Corp. (“KAC”) could enforce in Canada a C$84 million judgment against the Republic of Iraq. In 1990, Iraq invaded and occupied Kuwait. Iraq ordered its… Continue Reading

WiFi and Breach of Privacy

Posted in Civil Procedure, Defamation, Fraud
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No day goes by without some new internet peril being drawn to our attention.  The most recent evil is an internet based program called Firesheep.   Like others (i.e. Wireshark, Tshark, Snort, Nmap, etc.), this program, a free download on the internet, allows users to troll cyberspace for open WiFi networks and, by doing so, access… Continue Reading

Could Lord Conrad Black proceed in British Columbia?

Posted in Civil Procedure
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Recently, the Ontario Court of Appeal ruled that Conrad Black could proceed with six internet based libel actions in Ontario (Black v. Breeden, 2010 ONCA 547).  The claims are based upon an investigation into Lord Black’s conduct as chairman of Hollinger that was published on the Hollinger website.  The Defendants are directors, advisors and a… Continue Reading