Western Canada Business Litigation Blog

Category Archives: Commercial

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Impossible is nothing: Ontario court finds franchise disclosure before franchise location and head lease are determined is no disclosure at all

Posted in Commercial, Franchises, Real Estate
Comment

It’s common practice in Canada to enter into a franchise agreement before determining the location of the franchise – the franchisor and franchisee typically agree that the franchisor will use “best efforts” to find a suitable location for the business, often with the franchisee’s input and participation. Once the location is determined, it is common… Continue Reading

Alberta Court orders Shareholders’ Vote of Non-Arranging Corporation in a Plan of Arrangement

Posted in Commercial
Comment

On September 14, 2016, Mr. Justice Macleod of the Court of Queen’s Bench of Alberta gave oral reasons for judgment in Re Marquee Energy Ltd. and The Alberta Oilsands Inc. (unreported, Action No. 1601-11071, Judicial Centre of Calgary).  In doing so, he ordered that The Alberta Oilsands Inc.’s (“AOI”) shareholders be required to vote to… Continue Reading

Ledcor Decision Considers Standard of Review and Insurance Policy Exclusion Clause

Posted in Civil Litigation, Commercial, Construction, Insurance
Comment

On September 15, 2016, the Supreme Court of Canada (the “SCC) released its decision in Ledcor Construction Ltd. v Northbridge Indemnity Insurance (2016 SCC 37). In its decision, the Court considered the appropriate standard of review for standard form contracts, as well as the proper interpretation of an insurance policy exclusion clause. Writing for all… Continue Reading

The Franchises Act, Shifting the Balance of Power to Protect British Columbia’s Franchisees

Posted in Commercial
Comment

On Tuesday October 20, 2015, Bill 38, the Franchises Act, successfully passed third reading. The Government of British Columbia first introduced the bill on October 6, 2015, and it is now in its final stage of enactment. The Franchises Act will come into force upon Royal Assent which is expected to be granted towards the… Continue Reading

What is a pre-judgment garnishing order?

Posted in Commercial
Comment

Pre-judgment garnishing orders have been called “unique and extraordinary”.  They are one of only two forms of pre-judgment execution available in B.C., the second being the far more onerous Mareva injunction. What is a pre-judgment garnishing order and what does it do? A pre-judgment garnishing order is a way of securing funds from a debtor… Continue Reading

What happens in Ecuador… no longer stays in Ecuador. The Supreme Court of Canada eliminates a jurisdictional barrier to cross-border enforcement action

Posted in Commercial
Comment

On September 4, 2015, the Supreme Court of Canada issued its decision in Chevron Corp v Yaiguaje, 2015 SCC 42. In a unanimous decision, the Court dismissed Chevron’s appeal, holding that Canadian courts have jurisdiction to enforce a foreign judgment whether or not the original dispute or the parties to it had any connection to… Continue Reading

Promissory Notes and the Limitation Act

Posted in Commercial
Comment

A promissory note is a written promise by a borrower to pay a sum of money to a lender upon the occurrence of an event, usually a demand for payment.  Promissory notes are often used by friends and family members to record loans made between them.  No one expects there to be problems at the… Continue Reading

Deceit and the enforceability of Exclusion Clauses

Posted in Commercial
Comment

It is common for contracts to contain exclusion clauses limiting the liability of one party in the event of a breach.  Professional service providers often seek to limit their liability to the fees paid to them.  Movers limit their exposure to the value of the goods transported.  Contracts for the sale of land generally cap… Continue Reading

The Supreme Court of Canada Moves the Law of Contract: The Principle of Good Faith and the Duty to Act Honestly

Posted in Commercial
Comment

On November 13, 2014, the Supreme Court of Canada released its much anticipated decision in Bhasin v. Hrynew, 2014 SCC 71.  In its decision, the Supreme Court of Canada for the first time expressly recognized “good faith” as an organizing principle in the operation of contract law in Canadian common law provinces.  This is a… Continue Reading

The word “of” can decide a case: a lesson for contractual drafting and interpretation

Posted in Commercial
Comment

A recent decision of the Ontario Superior Court of Justice shows that the outcome of important questions of statutory or contractual interpretation can sometimes turn on the meaning of the smallest and most ordinary words. As the court noted in the opening words of its judgment in Young Men’s Christian Association of Greater Toronto v…. Continue Reading

Dragooning Google: How long is the online arm of the law?

Posted in Commercial
Comment

On October 27 and 28, the British Columbia Court of Appeal heard the appeal in Equustek Solutions Inc. v. Jack, 2014 BCSC 1063, which will have significant implications for the ability of courts to deal with online wrongdoing, and which raises questions of how to balance a Court’s jurisdiction – and respect for the jurisdiction… Continue Reading

Commercial Arbitration May Not Be as Confidential as You Think

Posted in Commercial
Comment

Choosing commercial arbitration over conventional litigation cannot guarantee confidentiality of the process, as a recent decision of the BC Supreme Court shows. The prospect of keeping a commercial dispute confidential has long been recognized as one of the main advantages of arbitration over litigation in the courts, along with the speed of the process, the… Continue Reading

A Fixture or a Chattel: The $4.2 Million Question

Posted in Commercial, Real Estate
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Likely because the application of the law is uncertain, commercial leases generally have detailed clauses dealing with the question of when a piece of equipment or an improvement installed in a premises becomes a fixture or remains a chattel.  The answer matters as fixtures, in law, are considered to be part of the land and,… Continue Reading

When is an enforceable Release of Liability not enforceable? Neidermeyer v. Charlton

Posted in Commercial, Insurance, Torts
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In 2012, the B.C. Court of Appeal decided the case of Loychuk v. Cougar Mountain Adventures Ltd.(discussed in an earlier blog post) In doing so, the Court made a clear pronouncement that people injured while taking part in inherently dangerous activities will be precluded from suing a commercial operator where they signed a release waiving… Continue Reading

Marko Vesely interviewed by Financier Worldwide

Posted in Commercial
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Marko Vesely was recently interviewed by Financier Worldwide for its Commercial Arbitration Annual Review.  This review examines issues and developments in commercial arbitration around the world. In the interview, Marko provides the Canadian perspective, outlining some of the key benefits of arbitration, recent changes to arbitration legislation and the practical considerations that need to be… Continue Reading

Stop Shooting Cannonballs at my Customers’ Canoe! Welcome Clarification on the “Unlawful Means” Tort from the Supreme Court Of Canada

Posted in Commercial, Torts
Comment

On January 31, 2014, the Supreme Court of Canada released its decision in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12. This is an important commercial decision as it clarifies and narrows the scope of the tort of unlawful interference in economic relations. Canadian businesses will also welcome the Court’s reference to commercial certainty… Continue Reading

Supreme Court of Canada Backs Securities Commission Enforcement

Posted in Commercial, Securities
Comment

Unlike the United States, Canada does not have a national securities regulator. In Canada, each province regulates securities through its own securities commission. One of the means of harmonizing securities regulation across the country is a provision in the securities legislation of each province that empowers its regulator to make an order (often referred to… Continue Reading

Class Action Law Bulletin: Green Light for Class Actions by Consumers

Posted in Class Actions, Commercial
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In a highly-anticipated and extremely significant pair of decisions for businesses and consumers alike, the Supreme Court of Canada (“SCC”) ruled on Thursday (October 31, 2013) that the ultimate consumers at the end of a supply chain can effectively leap-frog the supply chain by having direct legal recourse in a class action against a manufacturer… Continue Reading

Can You Smell a Fundamental Breach? Commercial Tenancy and Quiet Enjoyment

Posted in Commercial, Real Estate
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What happens if you lease a commercial retail space only to find, after several months of operation, that there is a pervasive and unpleasant smell in the place?  Customers are complaining.  Your employees are feeling ill.  Your inventory might be getting damaged.  The source of the smell cannot be found.  Is this your problem or… Continue Reading

Can a Fundamental Breach of Contract Sink an Exclusion Clause?

Posted in Commercial
Comment

Frequently, sales contracts contain exclusion clauses that insulate a seller from responsibility for the condition of the goods being sold.   The buyer gets a product they think is of a certain quality and, when they find out it is not, these clauses prevent any recourse against the seller.   However, if the purchaser can establish that… Continue Reading

Is it a Fixture or is it a Chattel?

Posted in Commercial, Real Estate
Comment

Landlords, tenants and law students all wrestle over what it means for something to be a fixture as opposed to a chattel.  It matters to landlords because, at the end of a tenancy, fixtures can become their property and enhance the land value.  It matters to tenants because they risk losing valuable assets installed on… Continue Reading