Supreme Court Provides Guidance on Oppression Remedy

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Civil Litigation, Directors' and Officers' Liability, Oppression Remedies0 Comments

In Wilson v. Alharayeri, 2017 SCC 39, The Plaintiff, Alharayeri, was the president, CEO and a shareholder and a director of the subject Corporation.  The subject corporation was incorporated under the Canada Business Corporations Act (“CBCA”).  In addition to common shares, the Defendant held convertible A and B preferred shares issued only to him as performance-based incentives.  The A and B shares were convertible upon the corporation meeting certain performance targets in 2007.  The Plaintiff held convertible C preferred shares, issued to him as an incentive for finding financing.  The C shares were convertible into common shares upon the Corporation meeting a specific financial target. In early 2007, the Defendant, Wilson, began negotiating a merger with Company M to address the Corporation’s cash flow issues.  At the same time, the Defendant arranged to sell some of his common shares to Company M as a result of personal financial difficulties.  The Corporation’s Board … Read More

Supreme Court of Canada Upholds Worldwide De-Indexing Order Against Google

Robert Kalanda, B.A. (Hons.), J.D.Appeals, Brand Protection, Commercial, Commercial Litigation, Counterfeit Goods, Cross-Border Litigation, Cyber Risks, eCommerce | Online Retail, Information Technology, Injunction & Specific Performance, Intellectual Property, Internet | Technology, Of Interest to US Counsel, Technology and Internet0 Comments

The Supreme Court’s recent decision in Google Inc. v. Equustek Solutions Inc. has approved the use of a worldwide injunction directing Google to de-index the defendant’s website used to facilitate the sale of goods in violation of the Equustek’s intellectual property rights. Equustek obtained an interlocutory injunction against the website owner directly, however the defendant left Canada, refused to comply with the order, and continued to sell products on their website from an unknown location. To help prevent or reduce further ongoing harm, Equustek sought for Google to de-index the site, making it less likely that a potential purchaser will discover the infringing website. Google initially agreed to de-index the result from Canadian search results on google.ca, but refused to enforce this order worldwide. It was concerned that the Canadian courts were using Google to usurp the laws of other nations, particularly on free speech issues, and potentially would force Google … Read More

Restriction on Use of Summary Judgment Where Key Issues Turn on Credibility

Bianca Thomas, B.Sc.(Hons.), J.D.Appeals, Real Estate Litigation, Summary Judgment0 Comments

Since the Supreme Court of Canada’s landmark decision in Hryniak v Mauldin, 2014 SCC 7, summary judgment has been lauded as an effective tool to enhance access to justice and achieve cost-effective results for litigants. Indeed, in recent years, summary judgment motions have become more common, making trials in civil litigation a rare occurrence. But has the pendulum begun to swing now in the opposite direction? The Court of Appeal’s recent decision in Lesenko v Guerette, 2017 ONCA 522, challenges the limits of summary judgment, and outlines that it may not be appropriate in cases where key issues turn on the credibility of the parties. In Lesenko, a husband, his wife, and his sister decided to sell their respective homes and buy a house together. The sister sold her home, and some of those sale proceeds went to pay for the entire purchase price of the subject property. The sister … Read More

Supreme Court of Canada Narrowly Rules Facebook’s Jurisdiction Clause Unenforceable

Robert Kalanda, B.A. (Hons.), J.D.Commercial and Contract Litigation, Commercial Law, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Cyber Risks, eCommerce | Online Retail, Information Technology, Internet | Technology, Jurisdictional Challenges, Technology and Internet0 Comments

Facebook, and most other large social media and internet companies, set out in their terms of use that users of their services must bring any litigation disputes in the jurisdiction of their choice. However, in Douez v. Facebook, the Supreme Court of Canada has recently held, in a 4-3 decision, that Facebook could not enforce that clause against the plaintiff, a British Columbia woman complaining that their use of her photo and name in advertising breached her rights under British Columbia’s Privacy Act. Notably, the Privacy Act specifically requires that any action under that statute “must be heard” by the British Columbia Supreme Court. The majority held that while a jurisdiction clause is ordinarily enforceable, it could not be enforced in this instance as doing so would violate public policy, since the quasi-constitutional rights the statute provides and the exclusive jurisdiction to BC courts it requires means that the statute ought to be interpreted … Read More

CASL Private Right of Action Suspended Indefinitely

Robert Kalanda, B.A. (Hons.), J.D.Commercial, Commercial Law, Commercial Litigation, Cyber Risks, Insurance, Internet | Technology0 Comments

In a recent press release, the Canadian government stated that they will be suspending the introduction of the private right of action set out in Canada’s anti-spam legislation (frequently referred to as CASL). The private right of action was meant to come into effect on July 1, 2017, but the government has suspended the implementation of this section to give a parliamentary committee more time to review the legislation and determine the best course of action to balance the protection of Canadian consumers against minimizing extra costs and unintended breaches by business owners. The legislation has received mixed reviews thus far. While undoubtedly a step forward in minimizing unwanted spam, many business owners have expressed concern that the definition of commercial activity are vague, the requirements for consent are onerous, and the penalties for even unintentional non-compliance are harsh. The private right of action (most likely to be done as class … Read More