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Certainty trumps Equity: the continuing saga of Yaiguaje v. Chevron Corporationhttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=353Certainty trumps Equity: the continuing saga of Yaiguaje v. Chevron Corporation353BLG Blog PostBevan Brooksbankbbrooksbank@blg.com | Bevan Brooksbank | 693A30232E777C626C6763616E6164615C6262726F6F6B7362616E6B i:0#.w|blgcanada\bbrooksbankThe Ontario Court of Appeal recently released its decision in Yaiguaje v Chevron Corporation, a further (and perhaps penultimate) step in the drawn-out litigation between Ecuadorian plaintiffs, Chevron Corporation ("Chevron") and Chevron Canada. The Court of Appeal found that the lower court correctly decided that the plaintiffs could not pierce the corporate veil to enforce an Ecuadorian judgment against Chevron's seventh-level subsidiary, Chevron Canada. While the majority dismissed the appeal and rejected the appellants' argument that it ought to be entitled to pierce the corporate veil on "just and equitable grounds", the concurring minority found that such a ground for piercing the corporate veil might very well exist, but that it was not available on the facts of the case. <p style="text-align:justify;">The Ontario Court of Appeal recently released its decision in <em><a href="http://canlii.ca/t/hs4mz" target="_blank">Yaiguaje v Chevron Corporation</a></em>, a further (and perhaps penultimate) step in the drawn-out litigation between Ecuadorian plaintiffs, Chevron Corporation ("Chevron") and Chevron Canada. </p><p>The Court of Appeal found that the lower court correctly decided that the plaintiffs could not pierce the corporate veil to enforce an Ecuadorian judgment against Chevron's seventh-level subsidiary, Chevron Canada. While the majority dismissed the appeal and rejected the appellants' argument that it ought to be entitled to pierce the corporate veil on "just and equitable grounds", the concurring minority found that such a ground for piercing the corporate veil might very well exist, but that it was not available on the facts of the case.<br></p><p><br></p>BackgroundIn 2011, the Ecuadorian plaintiffs obtained a $9.5 billion USD judgment in Ecuador against Chevron for environmental damages relating to its past operations in the country. Chevron no longer had any assets in Ecuador, and as a result the plaintiffs sought to enforce the judgment against Chevron in the United States. The proceeding was dismissed, with a New York court finding that the Ecuadorian judgment was invalid and obtained through fraud. In 2013, the plaintiffs sought to enforce the judgment in Ontario against Chevron Canada, and in 2015 the Supreme Court of Canada affirmed Ontario's jurisdiction to hear the enforcement proceeding. Shortly thereafter, the Chevron defendants moved for summary judgment dismissing the plaintiffs' claim against Chevron Canada, on the grounds that that its shares were not an exigible asset of Chevron, nor could the plaintiffs pierce the corporate veil and enforce the judgment against Chevron Canada's assets. Justice Hainey of the Superior Court of Justice agreed with the defendants and dismissed the claim. It is from that decision that the plaintiffs appealed.The Majority's DecisionThe appellants advanced two arguments on appeal, namely that the Execution Act permitted execution of Chevron Canada's shares and assets to satisfy the Ecuadorian judgment against Chevron, and the Court should pierce the corporate veil in order to render Chevron Canada's shares and assets exigible.Justice Hourigan, writing for the majority, rejected these arguments on the basis that they "ignore[d] more than twenty years of jurisprudence" and cautioned that if the Court were to accept the appellants' submissions, "it would result in significant changes to fundamental principles of our corporate law and the law of execution." In short, the the Execution Act is procedural and does not grant substantive rights to judgment creditors. It was not enough that Chevron had an "amorphous indirect right" to the assets of Chevron Canada. Rather, there must be an existing substantive legal right that permits seizure of the assets. To hold otherwise would permit the assets of Ontario subsidiaries of both domestic and foreign companies to be automatically subject to execution orders to satisfy judgments against parent companies. The majority also reaffirmed the traditional test to pierce the corporate veil, namely "where it is completely dominated and controlled (a "mere puppet") and being used as a shield for fraudulent or improper conduct." Neither element of the test was met. The appellants' argument for an independent "just and equitable" ground for piercing the corporate veil was also rejected as contrary to the settled jurisprudence. In particular, the Court was troubled by the assertion that the rule ought to be relaxed in cases involving enforcement of a judgment debt, as opposed to cases of first instance where the Court is tasked with determining liability. The Court found that such an argument '"dangerously resembled" the enterprise theory of liability, in which several corporations that operate closely as a 'group' are in reality a single entity and should accordingly be responsible for the others' debt. The extent of liability under the enterprise theory would introduce an "intolerable" level of uncertainty, and was therefore untenable.Further, the Court found no merit in the appellants' policy reasons for lifting the corporate veil, finding that the equities in the case were far from clear (in light of the New York finding that the Ecuadorian judgment was obtained through fraud).While the rules for piercing the corporate veil can evolve, they must do so on in a "principled manner that certainty and clarity, not in a way that sows confusion and is devoid of principle". The Concurring Minority DecisionWhile concurring with the outcome of the majority's decision, Justice Nordheimer took issue with the majority's approach to the corporate separateness doctrine. Nordheimer J. held that the jurisprudence may allow for the corporate veil to be pierced in extraordinary situations where equity would demand a departure from the strict application of the corporate separateness principle. This includes situations where liability is not in issue, such as in the context of the enforceability of a valid judgment where a creditor remains without a remedy due to the debtor's internal corporate structure.Ultimately Justice Nordheimer was of the view the facts and equities of Yaiguaje did not warrant application of the equitable doctrine.ConclusionCorporations with assets in Ontario that have related entities abroad should be reassured by the fact that the appellate court was not prepared to "sacrifice certainty in the law for expediency" and pierce the corporate veil. In light of the majority decision, there is little room for the application of the "just and equitable" ground for piercing the corporate veil in Ontario. Should the appellants seek leave to the Supreme Court of Canada, parties seeking to enforce judgments in Canada may have to wait for the final word on the subject. <p style="text-align:justify;"><strong>Background</strong></p><p style="text-align:justify;">In 2011, the Ecuadorian plaintiffs obtained a $9.5 billion USD judgment in Ecuador against Chevron for environmental damages relating to its past operations in the country.  Chevron no longer had any assets in Ecuador, and as a result the plaintiffs sought to enforce the judgment against Chevron in the United States.  The proceeding was dismissed, with a New York court finding that the Ecuadorian judgment was invalid and obtained through fraud. </p><p style="text-align:justify;">In 2013, the plaintiffs sought to enforce the judgment in Ontario against Chevron Canada, and in 2015 the Supreme Court of Canada affirmed Ontario's jurisdiction to hear the enforcement proceeding. </p><p style="text-align:justify;">Shortly thereafter, the Chevron defendants moved for summary judgment dismissing the plaintiffs' claim against Chevron Canada, on the grounds that that its shares were not an exigible  asset of Chevron, nor could the plaintiffs pierce the corporate veil and enforce the judgment against Chevron Canada's assets.  Justice Hainey of the Superior Court of Justice agreed with the defendants and dismissed the claim.  It is from that decision that the plaintiffs appealed.</p><p style="text-align:justify;"><strong>The Majority's Decision</strong></p><p style="text-align:justify;">The appellants advanced two arguments on appeal, namely that the <em>Execution Act </em>permitted execution of Chevron Canada's shares and assets to satisfy the Ecuadorian judgment against Chevron, and the Court should pierce the corporate veil in order to render Chevron Canada's shares and assets exigible.</p><p style="text-align:justify;">Justice Hourigan, writing for the majority, rejected these arguments on the basis that they "ignore[d] more than twenty years of jurisprudence" and cautioned that if the Court were to accept the appellants' submissions, "it would result in significant changes to fundamental principles of our corporate law and the law of execution."  In short, the the <em>Execution Act</em> is procedural and does not grant substantive rights to judgment creditors.  It was not enough that Chevron had an "amorphous indirect right" to the assets of Chevron Canada.  Rather, there must be an existing substantive legal right that permits seizure of the assets. To hold otherwise would permit the assets of Ontario subsidiaries of both domestic and foreign companies to be automatically subject to execution orders to satisfy judgments against parent companies. </p><p style="text-align:justify;">The majority also reaffirmed the traditional test to pierce the corporate veil, namely "where it is completely dominated and controlled (a "mere puppet") and being used as a shield for fraudulent or improper conduct." Neither element of the test was met.  The appellants' argument for an independent "just and equitable" ground for piercing the corporate veil was also rejected as contrary to the settled jurisprudence.  In particular, the Court was troubled by the assertion that the rule ought to be relaxed in cases involving enforcement of a judgment debt, as opposed to cases of first instance where the Court is tasked with determining liability.  The Court found that such an argument '"dangerously resembled" the enterprise theory of liability, in which several corporations that operate closely as a 'group' are in reality a single entity and should accordingly be responsible for the others' debt.  The extent of liability under the enterprise theory would introduce an "intolerable" level of uncertainty, and was therefore untenable.</p><p style="text-align:justify;">Further, the Court found no merit in the appellants' policy reasons for lifting the corporate veil, finding that the equities in the case were far from clear (in light of the New York finding that the Ecuadorian judgment was obtained through fraud).</p><p style="text-align:justify;">While the rules for piercing the corporate veil can evolve, they must do so on in a "principled manner that certainty and clarity, not in a way that sows confusion and is devoid of principle". </p><p style="text-align:justify;"><strong>The Concurring Minority Decision</strong></p><p style="text-align:justify;">While concurring with the outcome of the majority's decision, Justice Nordheimer took issue with the majority's approach to the corporate separateness doctrine. Nordheimer J. held that the jurisprudence may allow for the corporate veil to be pierced in extraordinary situations where equity would demand a departure from the strict application of the corporate separateness principle.  This includes situations where liability is not in issue, such as in the context of the enforceability of a valid judgment where a creditor remains without a remedy due to the debtor's internal corporate structure.</p><p style="text-align:justify;">Ultimately Justice Nordheimer was of the view the facts and equities of <em>Yaiguaje</em> did not warrant application of the equitable doctrine.</p><p style="text-align:justify;"><strong>Conclusion</strong></p><p style="text-align:justify;">Corporations with assets in Ontario that have related entities abroad should be reassured by the fact that the appellate court was not prepared to "sacrifice certainty in the law for expediency" and pierce the corporate veil.  In light of the majority decision, there is little room for the application of the "just and equitable" ground for piercing the corporate veil in Ontario.  Should the appellants seek leave to the Supreme Court of Canada, parties seeking to enforce judgments in Canada may have to wait for the final word on the subject. <br></p><p><br></p>6/14/2018 4:00:00 AM2018-06-14T04:00:00ZTrue1float;#6.00000000000000float;#2018.00000000000string;#Junefloat;#201806.000000000GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class Actions;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#73bd9e71-b257-4720-b5f3-2bd7b78a546e;L0|#073bd9e71-b257-4720-b5f3-2bd7b78a546e|Litigation StrategyClass Actions;Litigation Strategy
Department of Finance Proposes Significant Amendments to AML/ATF Regulationshttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=355Department of Finance Proposes Significant Amendments to AML/ATF Regulations355BLG Blog PostJeffrey S. Graham;Stephen J. Redican;Robert Dawkins;Samantha Tom;D. Ross McGowan;Michael Taylor;Prema K. Thiele;Julie Mansijgraham@blg.com | Jeffrey S. Graham | 693A30232E777C626C6763616E6164615C6A67726168616D i:0#.w|blgcanada\jgraham;sredican@blg.com | Stephen J. Redican | 693A30232E777C626C6763616E6164615C737265646963616E i:0#.w|blgcanada\sredican;rdawkins@blg.com | Robert Dawkins | 693A30232E777C626C6763616E6164615C726461776B696E73 i:0#.w|blgcanada\rdawkins;stom@blg.com | Samantha Tom | 693A30232E777C626C6763616E6164615C73746F6D i:0#.w|blgcanada\stom;rmcgowan@blg.com | D. Ross McGowan | 693A30232E777C626C6763616E6164615C64726D i:0#.w|blgcanada\drm;mtaylor@blg.com | Michael Taylor | 693A30232E777C626C6763616E6164615C6D7461796C6F72 i:0#.w|blgcanada\mtaylor;pthiele@blg.com | Prema K. Thiele | 693A30232E777C626C6763616E6164615C70746869656C65 i:0#.w|blgcanada\pthiele;jmansi@blg.com | Julie Mansi | 693A30232E777C626C6763616E6164615C6A6D616E7369 i:0#.w|blgcanada\jmansi The Department of Finance Canada (Department) has proposed amendments to a number of regulations (Proposed Regulations) related to Canada's Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the "Act") that the Department indicates will strengthen the regime by, among other things, regulating businesses dealing in virtual currency, including foreign money service businesses in the regime, updating customer due diligence and beneficial ownership reporting requirements, and clarifying various other existing requirements. This summary draws on the Regulatory Impact Analysis Statement that was issued by the Department on June 9, 2018 with respect to the Proposed Regulations.<p>The Department of Finance Canada (Department) has proposed amendments to a number of regulations (Proposed Regulations) related to Canada's <em>Proceeds of Crime (Money Laundering) and Terrorist Financing Act</em> (the "Act") that the Department indicates will strengthen the regime by, among other things, regulating businesses dealing in virtual currency, including foreign money service businesses in the regime, updating customer due diligence and beneficial ownership reporting requirements, and clarifying various other existing requirements.</p><p>This summary draws on the <a href="http://www.gazette.gc.ca/rp-pr/p1/2018/2018-06-09/html/reg1-eng.html" target="_blank">Regulatory Impact Analysis Statement</a> that was issued by the Department on June 9, 2018 with respect to the Proposed Regulations.</p> ​The Department of Finance Canada ("Department") has proposed amendments to a number of regulations ("Proposed Regulations") related to Canada's Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the "Act") that the Department indicates will strengthen the regime by, among other things, regulating businesses dealing in virtual currency, including foreign money service businesses ("MSB") in the regime, updating customer due diligence and beneficial ownership reporting requirements, and clarifying various other existing requirements. The Department notes that the Act and the associated regulations were originally intended for traditionally-offered financial services and "bricks and mortar" institutions. With the financial industry increasingly moving to the digital world (e.g., prepaid cards, virtual currency, foreign MSBs), the Department notes that updating the legal framework is a necessity. This summary draws on the Regulatory Impact Analysis Statement that was issued by the Department on June 9, 2018 with respect to the Proposed Regulations.New Business Models and Technologies Dealing in Virtual Currency Under the Proposed Regulations, persons and entities that are "dealing in virtual currency" would be considered financial entities or other entities deemed as domestic or foreign MSBs, as the case may be. These "dealing in" activities include virtual currency exchange services and value transfer services. As required of all MSBs, persons and entities dealing in virtual currencies would need to implement a full compliance program and register with the Financial Transactions and Reports Analysis Centre of Canada ("FINTRAC"). In addition, all reporting entities that receive $10,000 or more in virtual currency (e.g. deposits, any form of payment) would have record-keeping and reporting obligations ... Continue Reading →<p>​The Department of Finance Canada ("Department") has proposed amendments to a number of regulations ("Proposed Regulations") related to Canada's <em>Proceeds of Crime (Money Laundering) and Terrorist Financing Act</em> (the "Act") that the Department indicates will strengthen the regime by, among other things, regulating businesses dealing in virtual currency, including foreign money service businesses ("MSB") in the regime, updating customer due diligence and beneficial ownership reporting requirements, and clarifying various other existing requirements.  </p><p>The Department notes that the Act and the associated regulations were originally intended for traditionally-offered financial services and "bricks and mortar" institutions. With the financial industry increasingly moving to the digital world (<em>e.g.,</em> prepaid cards, virtual currency, foreign MSBs), the Department notes that updating the legal framework is a necessity.   </p><p>This summary draws on the <a href="http://www.gazette.gc.ca/rp-pr/p1/2018/2018-06-09/html/reg1-eng.html">Regulatory Impact Analysis Statement</a> that was issued by the Department on June 9, 2018 with respect to the Proposed Regulations.</p><h4>New Business Models and Technologies</h4><p> <strong>Dealing in Virtual Currency</strong></p><p>Under the Proposed Regulations, persons and entities that are "dealing in virtual currency" would be considered financial entities or other entities deemed as domestic or foreign MSBs, as the case may be. These "dealing in" activities include virtual currency exchange services and value transfer services. As required of all MSBs, persons and entities dealing in virtual currencies would need to implement a full compliance program and register with the Financial Transactions and Reports Analysis Centre of Canada ("FINTRAC"). In addition, all reporting entities that receive $10,000 or more in virtual currency (e.g. deposits, any form of payment) would have record-keeping and reporting obligations ... </p><p><a href="http://blg.com/en/News-And-Publications/Publication_5320"><strong>Continue Reading →</strong></a></p>6/14/2018 4:00:00 AM2018-06-14T04:00:00ZTrue1float;#6.00000000000000float;#2018.00000000000string;#Junefloat;#201806.000000000GP0|#83d31cc8-2281-46b1-bd03-ad81b15c38ff;L0|#083d31cc8-2281-46b1-bd03-ad81b15c38ff|Banking Regulatory;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebBanking Regulatory
Generous Approach to Certification Taken by BC Court of Appeal in Basyal http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=351Generous Approach to Certification Taken by BC Court of Appeal in Basyal 351BLG Blog PostMichelle Maniago;Brad W. Dixonmmaniago@blg.com | Michelle Maniago | 693A30232E777C626C6763616E6164615C6D6D616E6961676F i:0#.w|blgcanada\mmaniago;bdixon@blg.com | Brad W. Dixon | 693A30232E777C626C6763616E6164615C627764 i:0#.w|blgcanada\bwd ​BC Court of Appeal reserves to itself the responsiblity of reviewing amended pleadings in a class action proceeding. <p>​BC Court of Appeal reserves to itself the responsiblity of reviewing amended pleadings in a class action proceeding. <br></p> On 8 June 2018, the Court of Appeal for British Columbia released its decision in Basyal v. Mac's Convenience Stores Inc., 2018 BCCA 235, which case arises in the context of the federal Temporary Foreign Workers Program. The primary cause of action asserted by the plaintiff class relates to alleged breaches of employment contracts with Mac's Convenience Stores Inc. to provide work in the quantity, or at all, to individual plaintiffs upon their coming to Canada specifically to take up such work with a Mac's corporate store. The other group of allegations against a set of foreign defendants assert claims in unjust enrichment, breach of fiduciary duties, "waiver of tort", and conspiracy. The appeal focused almost exclusively on the first criteria of the certification test, namely whether the pleadings disclosed a reasonable cause of action. With some exceptions, the Court held that the claims did not. In the result, the Court of Appeal stayed the underlying proceeding while the plaintiffs amend their pleading. Revision will also likely be necessary to the common issues. The Court also provided a suggested revised class definition. Despite these issues with the proceeding as asserted, the Court of Appeal held that the proceeding should be certified and reserved to itself the responsibility of reviewing the amended pleadings failing the parties' agreement as to sufficiency. <p></p><p>On 8 June 2018, the Court of Appeal for British Columbia released its decision in <a href="http://courts.gov.bc.ca/jdb-txt/ca/18/02/2018BCCA0235.htm"><em>Basyal v. Mac's Convenience Stores Inc., </em>2018 BCCA 235</a>, which case arises in the context of the federal Temporary Foreign Workers Program. </p><p>The primary cause of action asserted by the plaintiff class relates to alleged breaches of employment contracts with Mac's Convenience Stores Inc. to provide work in the quantity, or at all, to individual plaintiffs upon their coming to Canada specifically to take up such work with a Mac's corporate store. The other group of allegations against a set of foreign defendants assert claims in unjust enrichment, breach of fiduciary duties, "waiver of tort", and conspiracy. The appeal focused almost exclusively on the first criteria of the certification test, namely whether the pleadings disclosed a reasonable cause of action. With some exceptions, the Court held that the claims did not.</p><p> </p><p>In the result, the Court of Appeal stayed the underlying proceeding while the plaintiffs amend their pleading. Revision will also likely be necessary to the common issues. The Court also provided a suggested revised class definition. Despite these issues with the proceeding as asserted, the Court of Appeal held that the proceeding should be certified and reserved to itself the responsibility of reviewing the amended pleadings failing the parties' agreement as to sufficiency. <br></p><p><br></p>6/12/2018 4:00:00 AM2018-06-12T04:00:00ZTrue1float;#6.00000000000000float;#2018.00000000000string;#Junefloat;#201806.000000000GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class Actions;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebClass Actions
Supreme Court to hear hotly contested issues affecting competition class actionshttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=350Supreme Court to hear hotly contested issues affecting competition class actions350BLG Blog PostPierre Gemson;Subrata Bhattacharjee;Davit Akmanpgemson@blg.com | Pierre Gemson | 693A30232E777C626C6763616E6164615C7067656D736F6E i:0#.w|blgcanada\pgemson;sbhattacharjee@blg.com | Subrata Bhattacharjee | 693A30232E777C626C6763616E6164615C73626861747461636861726A6565 i:0#.w|blgcanada\sbhattacharjee;dakman@blg.com | Davit Akman | 693A30232E777C626C6763616E6164615C64616B6D616E i:0#.w|blgcanada\dakman ​The Supreme Court of Canada will hear the appeal of the British Columbia Court of Appeal's decision in Godfrey v. Sony Corporation et al., which affirmed the certification of a class action involving allegations of price fixing in the optical disk drives industry. <p>​The Supreme Court of Canada will hear the appeal of the British Columbia Court of Appeal's decision in <a href="http://canlii.ca/t/h5hxn"><em>Godfrey v. Sony Corporation et al.</em></a><em>, </em>which affirmed the certification of a class action involving allegations of price fixing in the optical disk drives industry.  <br></p> ​The Supreme Court of Canada will hear the appeal of the British Columbia Court of Appeal's decision in Godfrey v. Sony Corporation et al., which affirmed the certification of a class action involving allegations of price fixing in the optical disk drives industry. The decision on appeal raises several issues that have been at the forefront of contested certification decisions in competition class actions, such as whether an alleged breach of the criminal conspiracy provision in section 45 of the Competition Act can serve as the unlawful act required to prove certain tort claims; whether so-called umbrella purchasers (i.e., purchasers of the allegedly cartelized product who purchase from non-defendants) have standing to sue for damages in price fixing class actions; whether the limitations period for the statutory right of action for damages under the Competition Act is subject to the discoverability principle or runs independent of actual or constructive knowledge by plaintiffs of the alleged anticompetitive conduct; whether the fraudulent concealment rule, which has the effect of suspending limitation periods, applies to Competition Act claims; and whether limitations defenses may be properly raised at the certification stage; and the legal threshold for certifying as a common issue in a price fixing class action whether the proposed class members suffered harm from the alleged misconduct. The Supreme Court appeal will be closely watched by the competition and class actions bar and litigants nationwide as the issues it raises have recently been heavily litigated in the lower courts (in some cases with contradictory results in different provinces). It marks the first opportunity the Court has taken to hear a competition law class action case involving certification issues in the common law provinces since issuing a landmark trilogy of decisions in 2013. <p>​The Supreme Court of Canada will hear the appeal of the British Columbia Court of Appeal's decision in <a href="http://canlii.ca/t/h5hxn"><em>Godfrey v. Sony Corporation et al.</em></a><em>, </em>which affirmed the certification of a class action involving allegations of price fixing in the optical disk drives industry.  <br></p><p>The decision on appeal raises several issues that have been at the forefront of contested certification decisions in competition class actions, such as: </p><ol><li>whether an alleged breach of the criminal conspiracy provision in section 45 of the <em>Competition Act </em>can serve as the unlawful act required to prove certain tort claims;</li><li>whether so-called umbrella purchasers (i.e., purchasers of the allegedly cartelized product who purchase from non-defendants) have standing to sue for damages in price fixing class actions;</li><li>whether the limitations period for the statutory right of action for damages under the <em>Competition Act</em> is subject to the discoverability principle or runs independent of actual or constructive knowledge by plaintiffs of the alleged anticompetitive conduct; whether the fraudulent concealment rule, which has the effect of suspending limitation periods, applies to <em>Competition Act claims</em>; and whether limitations defenses may be properly raised at the certification stage; and</li><li>the legal threshold for certifying as a common issue in a price fixing class action whether the proposed class members suffered harm from the alleged misconduct.</li></ol><p>The Supreme Court appeal will be closely watched by the competition and class actions bar and litigants nationwide as the issues it raises have recently been heavily litigated in the lower courts (in some cases with contradictory results in different provinces).  </p><p>It marks the first opportunity the Court has taken to hear a competition law class action case involving certification issues in the common law provinces since issuing a landmark trilogy of decisions in 2013.  </p><p> </p>6/8/2018 4:00:00 AM2018-06-08T04:00:00ZTrue1float;#6.00000000000000float;#2018.00000000000string;#Junefloat;#201806.000000000GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class Actions;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebClass Actions
When is a cross-claim discoverable? http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=349When is a cross-claim discoverable? 349BLG Blog PostHugh Meighenhmeighen@blg.com | Hugh Meighen | 693A30232E777C626C6763616E6164615C686D65696768656E i:0#.w|blgcanada\hmeighen ​The Ontario Court of Appeal clarified the rules with respect to how the doctrine of discoverability applies to claims for contribution and indemnity. <p>​The Ontario Court of Appeal clarified the rules with respect to how the doctrine of discoverability applies to claims for contribution and indemnity. <br></p> In Mega International Commercial Bank (Canada) v. Yung, the Court of Appeal for Ontario has recently clarified the operation of certain provisions of the Ontario Limitations Act, 2002. As background, the general scheme of the Act is as follows subject to a few exceptions, there is a "basic limitation period" of two years commencing on the date a claim is discovered. Section 5(1) of the Act defines when a claim is discovered, and section 5(2) of the Act creates a rebuttable presumption to assist in applying the discoverability principles (see para. 55). In Mega International, the appellants, Mr. Yung and Ms. Lai, sought to overturn a summary judgment against them based upon a limitations defence advanced by the respondents, Mr. Sun and Sun & Partners, before the motions judge. The appellants had made third party claims for contribution and indemnity from their lawyer, Mr. Sun, and his law firm, after being served with a claim by Mega International Bank under personal guarantees (from which, they had argued, Mr. Sun should have previously obtained releases). The respondents successfully argued before the motions judge that the third party claims were statute-barred. Section 18 of the Act deals how to treat the discoverability rule and the presumption set out in section 5(2) in the context of contribution and indemnity claims. In issuing the summary judgment, the motions judge concluded that s. 18 of the Limitations Act established an "absolute two-year limitation period" from the date of service of the initial claim against the "first wrongdoer" rather than incorporating the generally applicable discoverability principles of the Act. The Court of Appeal disagreed with the motions judge and allowed the appeal. It found that, based on a reading of the Act, and also taking into consideration the purpose of the Act, section 18 of the Act incorporates the discoverability principles. Moreover, the test for the discoverability principles, as they relate to section 18, are no different from the general scheme; in this regard, the Court of Appeal found that motions judge erred in relying upon fraudulent concealment findings to ground his conclusions regarding discoverability. As highlighted in the reasons of Paciocco J.A., prior decisions of the Ontario Superior Court of Justice were split on the proper interpretation of section 18 (para. 57). The judgment in Mega International therefore provides clarity and consistency. It confirms that section 18 operates in the same manner as the general scheme, based on the discoverability principle, to balance the right of would-be plaintiffs to sue and the need of would-be defendants for certainty and finality. Moreover, it confirms that there is a rebuttable presumption that the time-bar for a third party contribution and indemnity claim runs from the date of service of the claim on the "first wrongdoer" (i.e. the wrongdoer claiming contribution and indemnity). Parties in Ontario must always remain vigilant regarding their rights, particularly under a statutory regime that imposes a two-year limitation period. However, even in respect of contributions and indemnities, the salient issue remains discoverability, rather than a bright line time bar. This approach may provide less absolute certainty around limitations in Ontario, but provides protection against the possibility of barring diligent plaintiffs from pursuing meritorious claims. <p>In <em><a href="http://canlii.ca/t/hrvbs" target="_blank">Mega International Commercial Bank (Canada) v. Yung</a></em>, the Court of Appeal for Ontario has recently clarified the operation of certain provisions of the Ontario <em>Limitations Act, 2002</em>. As background, the general scheme of the <em>Act</em> is as follows: subject to a few exceptions, there is a "basic limitation period" of two years commencing on the date a claim is discovered. Section 5(1) of the <em>Act</em> defines when a claim is discovered, and section 5(2) of the <em>Act </em>creates a rebuttable presumption to assist in applying the discoverability principles (see para. 55).</p><p> </p><p>In <em>Mega International</em>, the appellants, Mr. Yung and Ms. Lai, sought to overturn a summary judgment against them based upon a limitations defence advanced by the respondents, Mr. Sun and Sun & Partners, before the motions judge. The appellants had made third party claims for contribution and indemnity from their lawyer, Mr. Sun, and his law firm, after being served with a claim by Mega International Bank under personal guarantees (from which, they had argued, Mr. Sun should have previously obtained releases). The respondents successfully argued before the motions judge that the third party claims were statute-barred.</p><p> </p><p>Section 18 of the <em>Act </em>deals how to treat the discoverability rule and the presumption set out in section 5(2) in the context of contribution and indemnity claims. In issuing the summary judgment, the motions judge concluded that s. 18 of the <em>Limitations Act</em> established an "absolute two-year limitation period" from the date of service of the initial claim against the "first wrongdoer" rather than incorporating the generally applicable discoverability principles of the <em>Act</em>.</p><p> </p><p>The Court of Appeal disagreed with the motions judge and allowed the appeal. It found that, based on a reading of the <em>Act</em>, and also taking into consideration the purpose of the <em>Act</em>, section 18 of the <em>Act</em> incorporates the discoverability principles. Moreover, the test for the discoverability principles, as they relate to section 18, are no different from the general scheme; in this regard, the Court of Appeal found that motions judge erred in relying upon fraudulent concealment findings to ground his conclusions regarding discoverability. </p><p> </p><p>As highlighted in the reasons of Paciocco J.A., prior decisions of the Ontario Superior Court of Justice were split on the proper interpretation of section 18 (para. 57). The judgment in <em>Mega International </em>therefore provides clarity and consistency. It confirms that section 18 operates in the same manner as the general scheme, based on the discoverability principle, to balance the right of would-be plaintiffs to sue and the need of would-be defendants for certainty and finality. Moreover, it confirms that there is a rebuttable presumption that the time-bar for a third party contribution and indemnity claim runs from the date of service of the claim on the "first wrongdoer" (i.e. the wrongdoer claiming contribution and indemnity).</p><p> </p><p>Parties in Ontario must always remain vigilant regarding their rights, particularly under a statutory regime that imposes a two-year limitation period. However, even in respect of contributions and indemnities, the salient issue remains discoverability, rather than a bright line time bar. This approach may provide less absolute certainty around limitations in Ontario, but provides protection against the possibility of barring diligent plaintiffs from pursuing meritorious claims.<br></p><p><br></p>6/7/2018 4:00:00 AM2018-06-07T04:00:00ZTrue1float;#6.00000000000000float;#2018.00000000000string;#Junefloat;#201806.000000000GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class Actions;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GP0|#fbfdfcb9-adbc-49cd-a509-671cc2c30fac;L0|#0fbfdfcb9-adbc-49cd-a509-671cc2c30fac|Estates and TrustsClass Actions;Securities: Litigation Regulatory and Compliance;Estates and Trusts
Department of Finance Launches Consultations on the Canadian Payments Acthttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=347Department of Finance Launches Consultations on the Canadian Payments Act347BLG Blog PostJeffrey S. Graham;Stephen J. Redican;Robert Dawkins;Samantha Tomjgraham@blg.com | Jeffrey S. Graham | 693A30232E777C626C6763616E6164615C6A67726168616D i:0#.w|blgcanada\jgraham;sredican@blg.com | Stephen J. Redican | 693A30232E777C626C6763616E6164615C737265646963616E i:0#.w|blgcanada\sredican;rdawkins@blg.com | Robert Dawkins | 693A30232E777C626C6763616E6164615C726461776B696E73 i:0#.w|blgcanada\rdawkins;stom@blg.com | Samantha Tom | 693A30232E777C626C6763616E6164615C73746F6D i:0#.w|blgcanada\stom ​On May 25, 2018, the Canadian Department of Finance ("Department") launched consultations to seek input from stakeholders on whether the 2015 changes to the Canadian Payments Act ("Act") with respect to the governance of Payments Canada have been effective in achieving the intended public policy objectives of efficiency, safety and soundness, and user interests.<p>​On May 25, 2018, the Canadian Department of Finance ("Department") launched consultations to seek input from stakeholders on whether the 2015 changes to the <em>Canadian Payments Act</em> ("Act") with respect to the governance of Payments Canada have been effective in achieving the intended public policy objectives of efficiency, safety and soundness, and user interests.</p> On May 25, 2018, the Canadian Department of Finance ("Department") launched consultations to seek input from stakeholders on whether the 2015 changes to the Canadian Payments Act ("Act") with respect to the governance of Payments Canada have been effective in achieving the intended public policy objectives of efficiency, safety and soundness, and user interests. As required under the Act, the Department indicates that the launch of this review follows through on a commitment to review the Act three years after the changes were made. The Department has issued a consultation paper entitled "Consultation on the Review of the Canadian Payments Act" ("Consultation Paper"). ​Continue Reading →<p>On May 25, 2018, the Canadian Department of Finance ("Department") launched consultations to seek input from stakeholders on whether the 2015 changes to the <em>Canadian Payments Act</em> ("Act") with respect to the governance of Payments Canada have been effective in achieving the intended public policy objectives of efficiency, safety and soundness, and user interests. </p><p>As required under the Act, the Department indicates that the launch of this review follows through on a commitment to review the Act three years after the changes were made. The Department has issued a consultation paper entitled "<a href="https://www.fin.gc.ca/activty/consult/rcpa-elcp-eng.asp" target="_blank">Consultation on the Review of the <em>Canadian Payments Act</em></a>" ("Consultation Paper").</p><p>​<a href="http://blg.com/en/News-And-Publications/Publication_5304"><strong>Continue Reading →</strong></a></p>5/30/2018 4:00:00 AM2018-05-30T04:00:00ZTrue1float;#5.00000000000000float;#2018.00000000000string;#Mayfloat;#201805.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebSecurities: Litigation Regulatory and Compliance
Update to Québec’s Proposed Loyalty Program Ruleshttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=346Update to Québec’s Proposed Loyalty Program Rules346BLG Blog PostAlexandra M. Nicol;Vinay Desaianicol@blg.com | Alexandra M. Nicol | 693A30232E777C626C6763616E6164615C616E69636F6C i:0#.w|blgcanada\anicol;vdesai@blg.com | Vinay Desai | 693A30232E777C626C6763616E6164615C766465736169 i:0#.w|blgcanada\vdesai ​Legislative changes regarding loyalty/rewards programs have been implemented in Ontario and confirmed in Québec. <p>​Legislative changes regarding loyalty/rewards programs have been implemented in Ontario and confirmed in Québec. </p> ​In our previous bulletin Ontario and Québec Set to Update Legal Requirements on Loyalty Programs, we highlighted the recent legislative changes regarding loyalty/rewards programs that have been implemented in Ontario and confirmed in Québec. Ontario's rules on loyalty programs and associated regulations came into force on January 1, 2018, with a retroactive effect to October 1, 2016. The significant detail of the Ontario rules is that they prohibit rewards points from expiring due to the passage of time alone. However, the Ontario rules provide an exception permitting the expiry of rewards points due to account inactivity ... Continue Reading →<p>​In our previous bulletin <a href="http://blg.com/en/News-And-Publications/Pages/Publication_5137.aspx"> <em>Ontario and Québec Set to Update Legal Requirements on Loyalty Programs</em></a>, we highlighted the recent legislative changes regarding loyalty/rewards programs that have been implemented in Ontario and confirmed in Québec. Ontario's rules on loyalty programs and associated regulations came into force on January 1, 2018, with a retroactive effect to October 1, 2016. The significant detail of the Ontario rules is that they prohibit rewards points from expiring due to the passage of time alone. However, the Ontario rules provide an exception permitting the expiry of rewards points due to account inactivity ... </p> <p><a href="http://blg.com/en/News-And-Publications/Publication_5298" target="_blank"><strong>Continue Reading →</strong></a></p>5/29/2018 4:00:00 AM2018-05-29T04:00:00ZTrue1float;#5.00000000000000float;#2018.00000000000string;#Mayfloat;#201805.000000000GP0|#83d31cc8-2281-46b1-bd03-ad81b15c38ff;L0|#083d31cc8-2281-46b1-bd03-ad81b15c38ff|Banking Regulatory;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebBanking Regulatory
BC Court of Appeal Creates Exception to Doctrine of Consideration http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=344BC Court of Appeal Creates Exception to Doctrine of Consideration 344BLG Blog PostJohn McIntyrejmcintyre@blg.com | John McIntyre | 693A30232E777C626C6763616E6164615C6A6D63696E74797265 i:0#.w|blgcanada\jmcintyre ​BC Court of Appeal reforms the requirement for consideration when parties to a contract agree to vary its terms, variation can be enforceable without fresh consideration. <p>​BC Court of Appeal reforms the requirement for consideration: when parties to a contract agree to vary its terms, variation can be enforceable without fresh consideration. <br></p> The Court of Appeal for British Columbia made headlines last week for its decision in Rosas v. Toca, where the Court started its decision by quoting from Oliver Twist "If the law supposes that…the law is an ass". In its decision, the Court of Appeal changed the law on the enforceability of contractual modifications to protect against an unjust result. In the case, the plaintiff won the lottery and loaned $600,000 of her winnings to her friend (the original contract). Her friend continued to ask for more time to pay back the loan, and the plaintiff agreed on each occasion (the contractual modifications). At trial, the Court found that the contractual modifications were not themselves enforceable as there was no consideration (i.e. the plaintiff received nothing in return for her "voluntary abstention" from exercising her rights to enforce repayment of the loan). The Court went on to find that the plaintiff was barred from recovery as she had waited too long to sue for repayment and the limitation period had lapsed. The Court of Appeal found this result to be an injustice, and has reformed the requirement for consideration with respect to the enforcement of contractual modifications. Now, when parties to a contract agree to vary its terms, variation should be enforceable without fresh consideration, absent duress, unconscionability or other public policy concerns which would render an otherwise valid term unenforceable. <p>The Court of Appeal for British Columbia made headlines last week for its decision in <em><a href="http://www.courts.gov.bc.ca/jdb-txt/ca/18/01/2018BCCA0191.htm">Rosas v. Toca</a></em>, where the Court started its decision by quoting from <em>Oliver Twist</em>: "If the law supposes that…the law is an ass". In its decision, the Court of Appeal changed the law on the enforceability of contractual modifications to protect against an unjust result.</p><p>In the case, the plaintiff won the lottery and loaned $600,000 of her winnings to her friend (the original contract). Her friend continued to ask for more time to pay back the loan, and the plaintiff agreed on each occasion (the contractual modifications). At trial, the Court found that the contractual modifications were not themselves enforceable as there was no consideration (i.e. the plaintiff received nothing in return for her "voluntary abstention" from exercising her rights to enforce repayment of the loan). The Court went on to find that the plaintiff was barred from recovery as she had waited too long to sue for repayment and the limitation period had lapsed. </p><p>The Court of Appeal found this result to be an injustice, and has reformed the requirement for consideration with respect to the enforcement of contractual modifications. Now, when parties to a contract agree to vary its terms, variation should be enforceable without fresh consideration, absent duress, unconscionability or other public policy concerns which would render an otherwise valid term unenforceable.<br></p>5/24/2018 4:00:00 AM2018-05-24T04:00:00ZTrue1float;#5.00000000000000float;#2018.00000000000string;#Mayfloat;#201805.000000000GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class Actions;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#73bd9e71-b257-4720-b5f3-2bd7b78a546e;L0|#073bd9e71-b257-4720-b5f3-2bd7b78a546e|Litigation StrategyClass Actions;Litigation Strategy
A first decision interpreting the All Families are Equal Act http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=345A first decision interpreting the All Families are Equal Act 345BLG Blog PostEwa Krajewska;Joseph Marandoekrajewska@blg.com | Ewa Krajewska | 693A30232E777C626C6763616E6164615C656B72616A6577736B61 i:0#.w|blgcanada\ekrajewska;jmarando@blg.com | Joseph Marando | 693A30232E777C626C6763616E6164615C6A6D6172616E646F i:0#.w|blgcanada\jmarando ​New decision offers insight into how the courts are likely to apply the All Families are Equal Act. In addressing a situation where one friend had donated sperm to another via intercourse, the Court relied on the parties pre-conception intentions to determine that the donor was not the legal parent despite a failure to meet the strict requirements of the CLRA. <p>​New decision offers insight into how the courts are likely to apply the All Families are Equal Act. In addressing a situation where one friend had donated sperm to another via intercourse, the Court relied on the parties pre-conception intentions to determine that the donor was not the legal parent despite a failure to meet the strict requirements of the CLRA. <br></p> The case of M.R.R. v J.M., 2017 ONSC 2655 has given us a first glance at how the courts may be expected to interpret the changes to the Children's Law Reform Act (CLRA) resulting from the All Families Are Equal Act (AFAEA) coming into force last year. In January of 2017 the AFAEA made sweeping changes to the CLRA, particularly with respect to the definitions, rights, and responsibilities of children and their parents. The legislative intent, which was at the crux of the analysis in M.R.R. v J.M., can be broadly interpreted as the Government of Ontario's ongoing effort to allow the law to evolve alongside Canadian understandings and practices of the family unit. In the long run these changes can be expected to have a profound effect on estate, family, and health law. But in the interim there are still some wrinkles to be ironed out as unaccounted for fact scenarios test fresh provisions of the legislation. M.R.R. v J.MF. is one such situation. M.R.R. was a single women in her late 30's who wanted to have a child. Due to her age M.R.R. was concerned about her fertility and made appointments to inquire about her capacity to have a child in 2012. Between 2012 and 2013 M.R.R. tried to become pregnant via artificial insemination on approximately seven occasions. All were unsuccessful. At a later date M.R.R. shared her frustration with her friend and ex-partner J.M., who first offered to assist her financially and later by donating his sperm. The parties did not draft and execute a formal contract affirming J.M.'s role as only a sperm donor and not a legal parent. Rather, they had an oral agreement and text message conversations to support that inference. M.R.R. and J.M. would have intercourse on a number of occasions, eventually resulting in M.R.R.'s successful pregnancy and the birth of J.R.R. in 2014. However, the issue and reason for litigation arose when the parties' mutual understanding changed after J.R.R.'s birth. M.R.R. took the positions that J.M. met the definition of a parent under the CLRA and therefore commenced an application seeking child support in 2015. J.M. took the position that he did not meet the definition of parent under the CLRA. He was therefore seeking a declaration under s.13 of the CLRA that because he was not legal parent of J.R.R. he should not be responsible for child support. A few modifications to the facts would have made this an easy case for Justice Fryer to decide. If J.M. had donated his sperm through a means other than intercourse then s.5 of the CLRA would result in a finding that J.M. is not the legal parent. Similarly as per s.7(4) of the CLRA if the parties had drafted a contract to establish that J.M. would not be the legal parent prior to the child being conceived then J.M. would not be found to be the legal father. But neither of these facts were present. What complicated the decision for Justice Fryer was the oral agreement and text message conversations mentioned above, in addition to the fact that the parties had executed a written agreement after J.R.R.'s birth (although M.R.R. was now contesting its validity). After careful examination of the party's pre- and post-conception intention, as well as the intent of the legislature in making the amendments to the CLRA, the court decided that J.M. was not the legal parent on a balance of probabilities as per s.13(3) of the CLRA. However, Justice Frye is quick to comment in the decision that the case of M.R.R. v J.M. should not set the precedent that parties are not required to form written agreements prior to conceiving a child. Rather, she highlights the importance of doing so, for both compliance with the CLRA, but more importantly for allowing the child's benefit in having a "secure and certain family unit." Although the case of M.R.R. v J.M. addresses a fairly specific set of facts, it stands for the broader presumption that one of the Courts primary objectives is to examine the intention of the parties and ensure that their best interest are served. This is a familiar theme for estates practitioners, although this time appearing in the new realm of the CLRA post AFAEA. For those who practice in this area Justice Fryer's decision in M.R.R. v J.M. offers a great overview of the law both past and present. <p>The case of <a href="http://canlii.ca/t/h3g0p"><em>M.R.R. v J.M</em>., 2017 ONSC 2655</a> has given us a first glance at how the courts may be expected to interpret the changes to the <em>Children's Law Reform Act (CLRA) </em>resulting from the <em>All Families Are Equal Act (AFAEA) </em>coming into force last year. </p><p>In January of 2017 the <em>AFAEA </em>made sweeping changes to the <em>CLRA</em>, particularly with respect to the definitions, rights, and responsibilities of children and their parents. The legislative intent, which was at the crux of the analysis in <em>M.R.R. v J.M.</em>,<em> </em>can be broadly interpreted as the Government of Ontario's ongoing effort to allow the law to evolve alongside Canadian understandings and practices of the family unit. In the long run these changes can be expected to have a profound effect on estate, family, and health law. But in the interim there are still some wrinkles to be ironed out as unaccounted for fact scenarios test fresh provisions of the legislation.  <em>M.R.R. v J.MF. </em>is one such situation. </p><p>M.R.R. was a single women in her late 30's who wanted to have a child. Due to her age M.R.R. was concerned about her fertility and made appointments to inquire about her capacity to have a child in 2012. Between 2012 and 2013 M.R.R. tried to become pregnant via artificial insemination on approximately seven occasions. All were unsuccessful. </p><p>At a later date M.R.R. shared her frustration with her friend and ex-partner J.M., who first offered to assist her financially and later by donating his sperm. The parties did not draft and execute a formal contract affirming J.M.'s role as only a sperm donor and not a legal parent. Rather, they had an oral agreement and text message conversations to support that inference. M.R.R. and J.M. would have intercourse on a number of occasions, eventually resulting in M.R.R.'s successful pregnancy and the birth of J.R.R. in 2014. </p><p>However, the issue and reason for litigation arose when the parties' mutual understanding changed after J.R.R.'s birth. M.R.R. took the positions that J.M. met the definition of a parent under the <em>CLRA</em> and therefore commenced an application seeking child support in 2015. J.M. took the position that he did not meet the definition of parent under the <em>CLRA. </em>He was therefore seeking a declaration under s.13 of the <em>CLRA</em> that because he was not legal parent of J.R.R. he should not be responsible for child support. </p><p>A few modifications to the facts would have made this an easy case for Justice Fryer to decide. If J.M. had donated his sperm through a means other than intercourse then s.5 of the <em>CLRA</em> would result in a finding that J.M. is not the legal parent. Similarly as per s.7(4) of the <em>CLRA </em>if the parties had drafted a contract to establish that J.M. would not be the legal parent prior to the child being conceived then J.M. would not be found to be the legal father. But neither of these facts were present. </p><p>What complicated the decision for Justice Fryer was the oral agreement and text message conversations mentioned above, in addition to the fact that the parties had executed a written agreement <span style="text-decoration:underline;">after</span> J.R.R.'s birth (although M.R.R. was now contesting its validity). </p><p>After careful examination of the party's pre- and post-conception intention, as well as the intent of the legislature in making the amendments to the <em>CLRA,</em> the court decided that J.M. was not the legal parent on a balance of probabilities as per s.13(3) of the <em>CLRA. </em>However, Justice Frye is quick to comment in the decision that the case of <em>M.R.R. v J.M</em>. should not set the precedent that parties are not required to form written agreements prior to conceiving a child. Rather, she highlights the importance of doing so, for both compliance with the <em>CLRA</em>, but more importantly for allowing the child's benefit in having a "secure and certain family unit."</p><p>Although the case of <em>M.R.R. v J.M. </em>addresses a fairly specific set of facts, it stands for the broader presumption that one of the Courts primary objectives is to examine the intention of the parties and ensure that their best interest are served. This is a familiar theme for estates practitioners, although this time appearing in the new realm of the CLRA post <em>AFAEA. </em>For those who practice in this area Justice Fryer's decision in <em>M.R.R. v J.M. </em>offers a great overview of the law both past and present. <br></p><p><br></p>5/24/2018 4:00:00 AM2018-05-24T04:00:00ZTrue1float;#5.00000000000000float;#2018.00000000000string;#Mayfloat;#201805.000000000GP0|#fbfdfcb9-adbc-49cd-a509-671cc2c30fac;L0|#0fbfdfcb9-adbc-49cd-a509-671cc2c30fac|Estates and Trusts;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebEstates and Trusts
“Interest”ing Overdraft Charge Decision – Criminal Rates of Interest Class Action Successful at Summary Trialhttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=342“Interest”ing Overdraft Charge Decision – Criminal Rates of Interest Class Action Successful at Summary Trial342BLG Blog PostRobert Dawkins;Michelle Maniagordawkins@blg.com | Robert Dawkins | 693A30232E777C626C6763616E6164615C726461776B696E73 i:0#.w|blgcanada\rdawkins;mmaniago@blg.com | Michelle Maniago | 693A30232E777C626C6763616E6164615C6D6D616E6961676F i:0#.w|blgcanada\mmaniago BC Court of Appeal finds that fees charged to a customer in excess of $5 in respect of overdraft charges fell within the definition of criminal rate of "interest" under the Criminal Code. <p>BC Court of Appeal finds that fees charged to a customer in excess of $5 in respect of overdraft charges fell within the definition of criminal rate of "interest" under the Criminal Code. <em></em><em></em><br></p> ​The BC Court of Appeal recently dismissed the appeal in Bodnar v. Community Savings Credit Union, where the appellants attempted to overturn a declaration made after a summary trial application that fees they charged customers in excess of $5, in respect of overdraft charges, constituted "interest" for the purposes of s. 347 of the Criminal Code, either in whole or in part. The Court of Appeal held that the trial judge was correct in how she analyzed the relationship between the borrower and lender, and correct in her focus on the effect of the fee on the borrower (rather than intent of the lender), consisting with binding authority. The decision reviews the meanings of "interest" and "overdraft charge", within the context of s. 347 the Criminal Code. Bodnar is a class action, and the declaration was made in respect of one of the issues certified as common back in 2014 (and upheld on appeal in 2015). The decision serves as an important reminder for lenders to be mindful of the broad definition of "interest" and strict borrower focused approach courts have taken to interpretation of criminal rate of interest provisions and to carefully review fees and total cost of credit for compliance purposes for loan products and related fees. <p>​The BC Court of Appeal recently dismissed the appeal in <em><a href="http://canlii.ca/t/hr96w">Bodnar v. Community Savings Credit Union</a>, </em>where the appellants attempted to overturn a declaration made after a summary trial application that fees they charged customers in excess of $5, in respect of overdraft charges, constituted "interest" for the purposes of s. 347 of the Criminal Code, either in whole or in part. </p><p>The Court of Appeal held that the trial judge was correct in how she analyzed the relationship between the borrower and lender, and correct in her focus on the effect of the fee on the borrower (rather than intent of the lender), consisting with binding authority. </p><p>The decision reviews the meanings of "interest" and "overdraft charge", within the context of s. 347 the Criminal Code. </p><p><em>Bodnar</em> is a class action, and the declaration was made in respect of one of the issues certified as common back in 2014 (and upheld on appeal in 2015).  </p><p>The decision serves as an important reminder for lenders to be mindful of the broad definition of "interest" and strict borrower focused approach courts have taken to interpretation of criminal rate of interest provisions and to carefully review fees and total cost of credit for compliance purposes for loan products and related fees.<br></p>5/18/2018 4:00:00 AM2018-05-18T04:00:00ZTrue1float;#5.00000000000000float;#2018.00000000000string;#Mayfloat;#201805.000000000GP0|#2df25a26-3353-4357-8797-8d21a2ea3aee;L0|#02df25a26-3353-4357-8797-8d21a2ea3aee|Banking and Bills of Exchange;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#83d31cc8-2281-46b1-bd03-ad81b15c38ff;L0|#083d31cc8-2281-46b1-bd03-ad81b15c38ff|Banking Regulatory;GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GP0|#11984f46-19e7-4b16-acce-db2c31f12bae;L0|#011984f46-19e7-4b16-acce-db2c31f12bae|Fraud and White Collar CrimeBanking and Bills of Exchange;Banking Regulatory;Securities: Litigation Regulatory and Compliance;Fraud and White Collar Crime