Author: Matthew Nied

Frustration of Contract and COVID-19

Introduction Contract law has always served an important role in facilitating business and economic activity. In particular, the law has long recognized the foundational nature of commercial obligations and the largely unqualified policy basis for holding parties strictly to their bargained-for positions. A significant exception to the “absolute” nature of contractual obligations arises from the […]

Schuppener v. Pioneer Steel Manufacturers Limited: Forum Selection Clauses and Public Policy

On January 21, 2020, the British Columbia Court of Appeal issued its decision in Schuppener v. Pioneer Steel Manufacturers Limited. The decision offers guidance with respect to the threshold to be met in order for considerations to rise to the level of public policy factors compelling enough to justify judicial intervention with freedom of contract […]

Forjay Management Ltd. v. 0981478 B.C. Ltd.: Disclaimer of Contract in Insolvency Cases

On April 4, 2018, the Supreme Court of British Columbia issued a decision (Forjay Management Ltd. v. 0981478 B.C. Ltd.) directing a receiver to disclaim presale agreements in the context of a real estate receivership. The decision clarifies the analytical framework to be applied when considering whether to disclaim contracts in a receivership and offers […]

The Ghosts of Fundamental Breach: New Developments in the Enforceability of Contractual Limitations of Liability Since Tercon

Recent years have witnessed significant developments in the law that governs the enforceability of contractual limitations of liability. These legal developments were prompted by a new, simplified and seemingly exhaustive analytical approach to determining the enforceability of limitation clauses, set forth in the 2010 decision of the Supreme Court of Canada in Tercon Contractors Ltd. […]

Clicking Away Privacy: Email and the Tort of Intrusion Upon Seclusion

Today, many service providers offer email accounts for free and monetize them through advertising. For example, every email sent to or from an account with “Gmail,” Google’s popular email service, is an advertising opportunity for Google. This is because Google, or, rather, its computer algorithms, “reads” each email as it arrives or departs, scanning for […]

Mainstream Canada v. Staniford: Defamation, the Defence of Fair Comment, and the “Factual Foundation” Requirement

In Mainstream Canada v. Staniford, 2013 BCCA 341, the British Columbia Court of Appeal considered whether the defence of fair comment applied to defamatory material published on the internet and in a press release. The key issue was whether the defamatory material sufficiently referenced the “factual foundation” required to establish the defence. The Court held […]

Ross River Dena Council v. Government of Yukon: “Open Entry” Mining Claims and the Duty to Consult

In Ross River Dena Council v. Government of Yukon, 2012 YKCA 14, the Yukon Court of Appeal unanimously held that the Government of Yukon has a duty to consult with First Nations before recording mineral claims staked in areas claimed by First Nations, and that merely providing notice of mining claims will not be sufficient […]

Antrium Truck Centre v. Ontario: Injurious Affection and Private Nuisance

In Antrium Truck Centre Ltd. v. Ontario (Minister of Transportation), 2013 SCC 13, the Supreme Court of Canada reviewed the law of injurious affection, which occurs when a defendant’s activities interfere with the claimant’s use or enjoyment of land. The decision provides important guidance with respect to the circumstances in which a landowner will be […]

TELUS Corporation v. Mason Capital Management: Shareholder Meeting Requisitions and “Empty Voting”

In TELUS Corporation v. Mason Capital Management LLC, 2012 BCCA 403, the British Columbia Court of Appeal considered the validity of a shareholder’s requisition for a general meeting of shareholders. The Court clarified that a requisition made under s. 167 of the British Columbia Business Corporations Act need not identify the beneficial owner of the shares used to […]

Southcott Estates v. Toronto Catholic District School Board: Mitigation and Specific Performance

In Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, the Supreme Court of Canada considered whether a plaintiff in a case involving a failed real estate transaction was excused from mitigating its losses on the basis that it had made a claim for specific performance. Although the Court recognized that a […]

Lines v. British Columbia (Securities Commission): Foreign Regulatory Authorities and Reciprocal Orders

In Lines v. British Columbia (Securities Commission), 2012 BCCA 316 (“Lines”), the British Columbia Court of Appeal held that the British Columbia Securities Commission (the “Commission”) could not impose a “public interest” order pursuant to s. 161(6)(d) of the Securities Act, R.S.B.C. 1996, c. 418 (the “Act”) more onerous than an order made by a regulatory authority in […]

Edward Jones v. Voldeng: Investment Advisors, Non-Solicitation Covenants, and Injunctions

In Edward Jones v. Voldeng, 2012 BCCA 295 (“Voldeng”), the British Columbia Court of Appeal considered the test for granting an interlocutory injunction in the context of a restrictive covenant prohibiting solicitation contained in the employment contract of an investment advisor. The Court made several notable remarks regarding the irreparable harm and balance of convenience […]

Clements v. Clements: Negligence Claims, Causation, and the “Material Contribution to Risk” Test

In Clements v. Clements, 2012 SCC 32 (“Clements”), the Supreme Court of Canada clarified the circumstances in which a plaintiff in a negligence action may establish causation on the basis that the defendant’s conduct materially contributed to the risk that gave rise to the plaintiff’s injury, rather than the “but for” test. The Court held that the […]

Freeway Properties Inc. v. Genco Resources Ltd: Financial Statements and Confirmation of Causes of Action Under the Limitation Act

In the recent case of Freeway Properties Inc. v. Genco Resources Ltd., 2012 BCCA 258 (“Freeway”), the British Columbia Court of Appeal Court held that a company’s financial statements are capable of confirming a creditor’s cause of action against the company and extending the creditor’s time for commencing an action under the Limitation Act, R.S.B.C. […]

Breeden v. Black and Éditions Écosociété v. Banro: Jurisdiction in Defamation Cases

In the companion cases of Breeden v Black, 2012 SCC 19 (“Breeden”) and Éditions Écosociété Inc. et al. v Banro Corp., 2012 SCC 18 (“Banro”), the Supreme Court of Canada clarified the manner in which courts should determine whether to exercise jurisdiction over multijurisdictional defamation claims involving foreign defendants. Although the decisions support the ability […]

Preventing Spoliation of Social Networking Profile Evidence in Insurance Litigation

Recent years have witnessed the phenomenal growth of social networking websites, such as Facebook and MySpace. Social networking websites are now commonly used by individuals to communicate information about their personal life to other members of their network. As a result, they have become an integral part of the disclosure process in insurance litigation where […]

Crookes v. Newton: Hyperlinking, Defamation Law, and Freedom of Expression on the Internet

Last week, the Supreme Court of Canada released its landmark decision in Crookes v. Newton, 2011 SCC 47, affirming 2009 BCCA 392 and 2008 BCSC 1424. At issue was whether creating an internet hyperlink to defamatory material constitutes “publication” of the material for the purposes of defamation law. The case challenged the Court to strike […]

The Internet, Cloud Computing, and the Charter Right to Privacy: The Effect of Terms of Service Agreements on Reasonable Expectations of Privacy

The use of the internet as a tool in the commission of crime has given rise to new search and seizure issues. When individuals use the internet, their personal information may be transmitted to various online service providers, such as social networking websites, email service providers, and internet service providers. In many cases, online service […]

Baglow v. Smith: Removing the Defamatory Sting From Online Debates on Blogs and Message Boards

Earlier this week, the Ontario Superior Court of Justice released its decision in Baglow v. Smith, 2011 ONSC 5131. The decision suggests that an allegedly defamatory statement made in a debate on blogs or internet forums may not be found to be defamatory if the plaintiff previously engaged in the debate but did not respond to […]

Warman v. Fournier et al: Balancing Disclosure, Privacy, and Freedom of Expression Interests in Internet Defamation Cases

While the internet provides users with an environment in which socially valuable anonymous speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these individuals are usually known […]

Grant v. Torstar and the defence of responsible communication: implications for bloggers and users of other online media

In the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), the Supreme Court of Canada sought to strike a more appropriate balance between freedom of expression and the protection of reputation by creating the new defence of “responsible communication on matters […]

Swartz v. Does: American and Canadian approaches to anonymity in internet defamation cases

A recent case illustrates that American jurisprudence is increasingly coalescing around a uniform approach to determine whether a plaintiff may compel the disclosure of an anonymous defendant’s identity in internet defamation cases. As discussed below, the Canadian experience has been different. In Swartz v. Does (“Swartz”) (see: judgement) a Tennessee state court held that plaintiffs […]

Distinguishing Twitter postings from other forms of communication in online defamation cases

The New York Times published an interesting article today about the growing number of defamation actions involving messages posted on Twitter (see: article). The article noted that the special characteristics of Twitter postings may distinguish them from other forms of online posting when it comes to defamation actions: [T]here are few prescribed social norms on […]

Buckle v. Caswell: Defamation on Blogs

A recent Canadian case offers another example of the legal dangers facing bloggers that post potentially defamatory statements. In the case of Buckle v. Caswell (see: judgement), Wayne Buckle – a senior Crown prosecutor – (the “Plaintiff”), sued Gay Caswell – a former member of the Saskatchewan legislature – (the “Defendant”), for defamation in connection […]

TCI Journal: The exposure of anonymous online speakers

A recent case illustrates the problem of allowing a court to expose the identity of an anonymous online speaker without first requiring the plaintiff to demonstrate a prima facie or even bona fide case of defamation. In late August, the California Superior Court issued a subpoena that compelled Google to disclose the identity of anonymous […]

Google forced to reveal identity of anonymous blogger

A former Canadian model, Liskula Cohen, (the “Plaintiff”) has received an order from Justice Madden of the New York State Supreme Court to force Google, the Defendant, to reveal the identity of an anonymous blogger that defamed the Plaintiff on a blog (see: text of judgement). The blog, called Skanks in NYC (the “Blog”), contained the […]

Google not liable for defamatory material in search results

In a recent decision of the English High Court in Metropolitan International Schools Ltd v DesignTechnica Corporation [“Metropolitan International“] (see: case), Justice Eady held that Google, the popular search engine, was not liable for defamatory material that appeared in its search results. More generally, Metropolitan International supports a common law principle that a person cannot […]

Twitter defamation litigation

A Chicago apartment leasing and management company (the “Plaintiff”) has sued a former client (the “Defendant”) in defamation for posting a message on Twitter, a social network that allows users to send and read messages (see: news article; statement of claim). Although the Defendant’s Twitter account was followed by no more than 20 people at […]