Supreme Court privileges ordinary language over legalisms in Sale of Goods Act decision
The Supreme Court of Canada’s May 31, 2024, decision in Earthco Soil Mixtures Inc v Pine Valley Enterprises Inc, 2024 SCC 20, has done away with the requirement for “magic words” or legalistic drafting to contract out of the default conditions attaching to sales of goods under legislation that applies in most of Canada. Read the full article on our Online Journal!
Eureka! Supreme Court stakes discovery of a claim on plausible inference
During the past twenty years, many provinces have simplified their legislation governing limitation periods. One remaining complexity is that courts have continued to assess when a claim is discovered – which starts the limitation clock running – based on knowledge of the material facts to support the required elements of a legal cause of action. That issue has now been addressed by the Supreme Court of Canada in Grant Thornton LLP v New Brunswick, which has simplified the required analysis.
Caveats to the Aggressive Pursuit of Self-Interest: Revisiting Bhasin and the Good Faith Doctrines
In 2014, the Supreme Court of Canada released Bhasin v Hyrnew which recognized a general principle of good faith in contractual performance. The decision highlighted one manifestation of that organizing principle: the duty not to actively deceive. Since Bhasin, there has been some confusion about how far the good faith principle extends. Two recent Supreme Court decisions have provided some clarity:
CM Callow Inc v Zollinger confirmed the expectation that parties will perform a contract without lies or deception. More importantly, it extended the duty of honest performance introduced in Bhasin, noting that inaction or silence can be “cousins in the catalogue of deceptive contractual practices”.
Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District explored the exercise of contractual discretionary powers in good faith. It accepts that parties must exercise contractual discretion reasonably within the context of the agreement reached.
In both decisions, the Supreme Court was careful not to erode freedom of contract. It accepted that contractual counterparties are not required to subvert their own interests to conform to either of the duties clarified in Callow and Wastech.
Supreme Court of Canada: Substance-over-Form Dictates Whether Discoverability Applies to Statutory Limitations
There are many statutes containing limitation periods that bar plaintiffs from bringing an action after a specified period of time. Provincial limitation acts have largely codified the “discoverability principle” (i.e. that a cause of action does not arise until it is discovered by the person who suffered the injury alleged) for many general limitation periods. However, other statutes are silent or ambiguous on whether discoverability applies. Whether dealing in real property, insurance, competition, or otherwise, the wording of these limitations vary in scope and when the stated period starts to run.
The Supreme Court of Canada has recently brought clarity to this issue. In its recent decision in Pioneer v. Godfrey, 2019 SCC 42, the Court held that wherever a limitation period is triggered by the accrual of a cause of action, the discoverability rule will apply unless the legislation explicitly states otherwise.
In ODD decision, Supreme Court severs link between certification and common issues trial for price-fixing cases
The Supreme Court of Canada’s decision in Pioneer Corporation v Godfrey, 2019 SCC 42, was a victory for the plaintiff, but it may prove advantageous for class action defendants in other cases. In an 8 to 1 decision released on September 20, 2019, the court accepted a lowered standard for certification of price-fixing claims. But it disconnected that standard from required elements for success at trial, and affirmed a higher standard at the liability stage than other recent case law suggested.
Ontario Court Provides “Appropriate” Relief Against Statutory Limitation For Insurance Claims
Ontario’s two year limitation period often becomes a trap for unwary policy holders who suffer a property loss. It is not uncommon to see claims drag on through the adjusting process, with interim payments being made, only to have insurers deny some or all of the claim more than two years after the loss. When the insured sues, insurers then claim the action is statute barred — a position our courts have accepted in a number of cases. A recent decision by Justice Paul Perell provides the insured with some relief from this trap. In Nasr Hospitality Services Inc. v. Intact Insurance (“Nasr”),1 Justice Perell confirmed that even though your claim may arise on the date of loss, it is not necessarily fully “discovered” until a later date. He concluded that where an insurer began paying on a property loss, a coverage claim was not discoverable until the insurer communicated a clear repudiation of its obligation to indemnify the insured.
The Ontario Court Of Appeal Leaves Window Cleaners Out To Dry On Window Replacement Costs
The Ontario Court of Appeal’s recent decision in G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Co. [“Procleaners”]1 is an interesting example of the application of the “your work” exclusion, particularly since the Court rejected the approach to policy interpretation that the Newfoundland Court of Appeal gave to an exclusion with very similar wording.
Bad Chair Day: Nerland v. Toronto-Dominion Bank
A stout, upholstered chair may, at first blush, seem innocuous. It’s easy to ignore the warnings often recited by parents and teachers to sit property when rocking back and forth on a chair’s legs. However, in Nerland v. Toronto-Dominion Bank, the British Columbia Supreme Court reminded us why the old adage dies hard.
Ontario Court Of Appeal: Reasonable Apprehension Of Conflict Forces Insurer To Relinquish Control Of Defence
The Ontario Court of Appeal has again confirmed that an insurer’s contractual right to control a defence must yield to the interests of its insured where its coverage position creates a reasonable apprehension that defence counsel would be in a conflict of interest.
In Hoang v. Vicentini, the Ontario Court of Appeal ordered an insurer to relinquish control over the defence of its insured and pay for the insured’s independent counsel. The Court confirmed that if a fact affecting your coverage is disputed in the underlying litigation, a conflict of interest arises.
Judge Confirms Limited Use Of Extrinsic Evidence For Duty To Defend
An insurer’s duty to defend an action against its insured is triggered by the mere possibility that a claim could be made under the insured’s policy. Traditionally, a court’s analysis of whether this duty is triggered is based solely on the pleadings. However, in some limited circumstances the courts have permitted a consideration of “non-controversial” evidence.
A recent decision of the Ontario Superior Court provides a good illustration of when such extrinsic evidence is and is not appropriate. While higher authorities have opened the door to extrinsic evidence, the court stops short of permitting insurers to engage in adversarial fact-finding inquiries.