Introduction A lawyer citing case law before an adjudicative body does so to provide authority to the adjudicator in support of their client’s position. An adjudicative body includes administrative tribunals as well as the courts. Case law can be binding or simply persuasive. Both types require relevance, meaning they must speak to the same issue […]
Category Archives: Complex Corporate Commercial Litigation
Issue and Action Estoppel and Abuse of Process
Introduction All forms and attempts at relitigating matters that have already been determined are considered an abuse of process. The doctrine applies to any attempt to challenge a previous and final judicial determination. It is a very flexible doctrine and is unencumbered by the requierments on parties that exist under the concepts of issue and […]
When is Legal Commitment Unconscionable?
Introduction It is extremely difficult to set aside an agreement or transaction based on the doctrine of unconscionability. The adjective itself means an action not guided by one’s conscience and is unscrupulous, or not in accordance with what is just or reasonable, that is excessive or extortionate. A legal commitment may end up being seen […]
Dependent Contractors, Exclusivity & Reasonable Notice
Introduction Contractors in law are distinct from employees. Employees are entitled to a reasonable period of notice if the relationship is terminated by the employer. This is an implied term of any contract of employment at common law. A contractor is usually considered as being independent meaning that they control their work, use their own […]
Rolling Limitation Periods in Contract Litigation
Introduction The usual rule is that once an event occurs which triggers a possible legal action, the limitation period in which to do so commences and runs from that occurrence. A rolling limitation period is one that resets as a result of a recurring obligation by the defendant. The issue is not whether the plaintiff […]
Pierringer Settlements Update
Introduction In two previous blogs, we have discussed both Mary Carter and Pierringer settlements. This blog provides an update on recent developments on the impact and effect of Pierringer settlements following Alberta’s Court of Appeal (ABCA) decision in Canadian Natural Resources Limited v. Wood Group Mustang. Although the decision is not binding in Ontario, it […]
Corporate Identification & Civil and Criminal Responsibility
Introduction A corporation is a fictional creation of the law. It is treated as a legal entity, and this fact creates a legal trinity of the company, its owners (shareholders) and its employees. Although they are treated, and have similar rights, as a natural person, they can only act through natural persons. How then could […]
Unjust Enrichment by Wrongdoing & Waiver of Tort
Introduction The meaning of the term “waiver of tort” is by no means clear. At its strongest, it has been described as an independent cause of action that does not require the plaintiff to prove any damage suffered by them as a result of the wrongful conduct of the defendant. The remedy would be disgorgement […]
Ice Breaker Settlements and Class Proceedings
Introduction An ice breaker is anything used to relieve inhibitions or acrimony between two parties or is used to open a dialogue. It is also now used to describe settlements by a plaintiff with one defendant ahead of the others in complex multi-party class proceedings. The money paid is often only a small fraction of […]
Anticipatory Breach of Contract and the Limitations Act
Introduction An anticipatory breach of contract occurs where one party to a contract expresses, or it becomes clear by the circumstances, that they are not going to perform on the due date. The innocent party may accept the repudiation when it occurs and seek damages, or instead, wait until the performance was contractually due and […]