We wrote about the issues of frustration and force majeure in our previous post called “Force Majeure and Frustration in Contracts Following the COVID-19 Pandemic” Force majeure clauses are dealt with through the law of contract. Such a clause needs to be an express term and will not be implied. These clauses act as a […]
Category Archives: Complex Corporate Commercial Litigation
The Anti-Deprivation Rule Pt. 2: SCC Confirms Test
Last week we visited the primary legal authorities in Ontario on fraud in the event of a bankruptcy, and the anti-deprivation rule. Recently the Supreme Court of Canada (SCC), in Chandos Construction Ltd. v. Deloitte Restructuring Inc., 2020, confirmed the reasoning of those cases. Did an Insolvency Penalty Clause Contradict the Anti-Deprivation Rule? A general […]
The Anti-Deprivation Rule, Part 1: Fraud in Bankruptcy
Protecting or preserving assets during a time of insolvency is a natural temptation of debtors. Some even take a proactive approach and design contractual terms that aim to do much the same should insolvency ever arise in the future. However, when such terms are exercised, they run into possibly infringing the “anti-deprivation” rule. What is […]
The High Cost of Self-Representation in Litigation
There is an old adage that says that any lawyer who represents themselves has a fool for a client, but this can also apply to non-lawyers as well. Some litigants choose to represent themselves in civil court matters, usually for one of two reasons. Either they are unable to afford the costs of a lawyer […]
Constructive Trusts: A Remedy for Wrongful Conduct
Constructive trusts are sometimes used by a court to impose a remedy for a party who was deprived of their rights to property via the wrongful or fraudulent conduct of a third party. This is an equitable remedy created through the common law to make the situation right, as though the wrongful conduct had not […]
Derivative Contracts: Speculation or Hedging?
The Supreme Court of Canada (SCC) recently released an important taxation decision dealing with how to characterize capital and income losses under a derivative contract. In MacDonald v. Canada, a taxpayer sought to deduct payments he had made to his bank as part of a loan arrangement. His position was that the payments were income […]
A Principled Exception to the Hearsay Rule
Hearsay evidence is defined as an out of court statement being used to prove the truth of its content. If the issue is the colour of a streetlight, an example of hearsay evidence would be using the earlier statement of a witness whose whereabouts were now unknown. The absence of the observer means there can […]
The Condominium Act & The Oppression Remedy
We have previously written about the remedy of oppression, and how it applies to the actions taken by a corporation that cause harm to individual shareholders, officers, directors, creditors or debtors. The remedy applied will depend on the type of oppressive conduct, but can include restraint fo the conduct, removal of officers or directors, and […]
The Presumption of Undue Influence
The equitable doctrine of undue influence is there to prevent one person from taking advantage of their position of power and authority over another person. This inequity in power between parties can vitiate the weaker party’s consent to an agreement, as they were unable to freely exercise their independent will. In other words, they would […]
Shareholder Disputes Expected to Rise in Canada’s Cannabis Industry
When cannabis was legalized in Canada in 2018, many people, including financial investors, assumed the industry would be a nearly foolproof opportunity. However, due to a sudden rise in class-action lawsuits in Canada and the U.S., many shareholders are facing an unexpected devaluation of stock. Some people believe this could lead to an increase in […]