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Torkin Manes LegalWatch

When do Courts Allow Recovery for Pure Economic Harm?

Marco P. Falco Where a person or corporation suffers a pure financial loss, contract law ordinarily comes to the rescue. It places the wronged party in the same posi...
Jun 10, 2020
Torkin Manes LegalWatch

Business Realities Matter When Courts “Correct” Contracts

Marco P. Falco Canadian Courts have always had the power to correct mistakes in commercial contracts. The Supreme Court of Canada, in its 2016 decision Canada (AG) ...
May 19, 2020
Torkin Manes LegalWatch

The Duty of Commercial Parties to Act in Good Faith: How Far Does it Go?

Marco P. Falco Since 2014, Canadian contract law has recognized that commercial parties owe one another a duty of “honest contractual performance”, as an element of ...
Apr 23, 2020
Torkin Manes LegalWatch

Using “Good Business Sense” to Interpret Commercial Contracts

Marco P. Falco For decades, Canadian Courts have applied the principle that commercial contracts should be interpreted in a way that avoids business absurdities. An...
Mar 10, 2020
Torkin Manes LegalWatch

How Do Courts Analyze Tribunal Decisions? Supreme Court of Canada Ushers in a New Age of Judicial Review

Marco P. Falco When Courts are asked to scrutinize tribunal or administrative decisions, the first question is the standard of judicial review they should apply. Sh...
Feb 5, 2020
Torkin Manes LegalWatch

When Does a Plaintiff “Discover” a Claim in Ontario? A Principled Approach to Limitation Periods

Marco P. Falco Most civil actions in Ontario are subject to a two-year limitation period under section 4 of the Limitations Act, 2002, S.O. 2002, c.24, Sched. B (the...
Jan 16, 2020
Torkin Manes LegalWatch

Are Commercial Arbitration Awards Immune from Judicial Scrutiny?

Marco P. Falco Sophisticated commercial parties may arbitrate their disputes for a number of reasons. Under Ontario’s Arbitration Act, R.S.O. 1990, c.17 (the “Act”)...
Dec 16, 2019
Torkin Manes LegalWatch

When is a Structure Not A “Structure”? The Modern Approach to Statutory Interpretation

Marco P. Falco When Courts interpret statutes, they consider the “ordinary meaning” of the words used in the legislation. “Ordinary meaning” refers to the reader’s i...
Nov 25, 2019
Torkin Manes LegalWatch

Does Summary Judgment by Agreement Require a Different Legal Test?

Marco P. Falco Torkin Manes LegalWatch As civil trials become more expensive, Canadian Courts are looking for different ways to resolve parties’ disputes. One of these mechanisms is t...
Oct 25, 2019
Torkin Manes LegalWatch

When does ‘Final and Binding’ Mean ‘Final and Binding’?

Marco P. Falco Torkin Manes LegalWatch One of the main purposes of commercial arbitration is to provide an efficient way for the parties to resolve their dispute. By agreeing to take their ...
Sep 16, 2019
Torkin Manes LegalWatch

Not Your Standard “Standard-Form” Contract: The Interpretation of Contracts on Appeal

Marco P. Falco Standard-form contracts are ubiquitous. From insurance to real estate, template agreements are the most common form of contractual obligation between ...
Aug 12, 2019
Torkin Manes LegalWatch

Why a Limitation Period Might Not Run Against Multiple Wrongdoers

Marco P. Falco Torkin Manes LegalWatch A considerable amount of ink has been spilled about section 5(1)(a)(iv) of Ontario’s Limitations Act, 2002. This section postpones the running o...
Jul 9, 2019
Torkin Manes LegalWatch

A Marriage Made in Limitations Heaven: Section 5(1)(a)(iv) Strikes Again

Marco P. Falco Torkin Manes LegalWatch There are at least two situations in Ontario where a limitation period can be postponed because the plaintiff’s lawsuit is not yet “approp...
Jun 13, 2019
Torkin Manes LegalWatch

Is Section 5(1)(a)(iv) of Ontario’s Limitations Act the new “Special Circumstances”?

Marco P. Falco Torkin Manes LegalWatch When Ontario’s Limitations Act, 2002 came into force in 2004, the Courts made serious efforts to ensure that the new two-year limitation period ...
May 21, 2019
Torkin Manes LegalWatch

Is Corporate Successor Liability a Dead Doctrine in Canada?

Marco P. Falco Torkin Manes LegalWatch The American doctrine of successor liability has long been the source of fear for the parties to an asset purchase agreement.   The doctrin...
Apr 22, 2019
Torkin Manes LegalWatch

Why Canadian Courts Hesitate to Recognize “True Questions of Jurisdiction”

Marco P. Falco Torkin Manes LegalWatch Canadian Courts have always been reluctant to intervene in arbitral decisions. Judicial intervention in an arbitration, either by way of a review or a...
Mar 27, 2019
Torkin Manes LegalWatch

Defendant Knows Best: Reliance on an Expert’s “Superior Knowledge” as a basis for Postponing the Limitation Period

Marco P. Falco Torkin Manes LegalWatch One of the ways a limitation period can now be postponed in Ontario occurs where a plaintiff relies on the “superior knowledge” of the def...
Feb 20, 2019
Torkin Manes LegalWatch

Beware the Unconscionable Clause: Ontario Court of Appeal Declines to Stay Class Action Based on an Arbitration Agreement

Marco P. Falco Torkin Manes LegalWatch Arbitration often represents an efficient alternative to the Courts. The parties to a contract agree to by-pass the Court process in the hope that the...
Jan 22, 2019
Torkin Manes LegalWatch

Call Off the Funeral: Ontario Divisional Court Revives “True Questions of Jurisdiction” in Judicial Review

Marco P. Falco Torkin Manes LegalWatch Over the last decade, Canadian Courts have struggled with the issue of when to apply the less deferential standard of review of “correctness&rdq...
Jan 2, 2019
Torkin Manes LegalWatch

What Role Does “Fairness” Play in Statutory Interpretation?

Marco P. Falco Torkin Manes LegalWatch For decades, the modern approach to statutory interpretation has required judges to discern legislative intent by examining the words of an Act in the...
Nov 13, 2018
Torkin Manes LegalWatch

Section 5(1)(a)(iv) of the Ontario Limitations Act: Not the Broad Provision We all Assumed it to Be

Marco P. Falco Torkin Manes LegalWatch Section 5(1)(a)(iv) of the Ontario Limitations Act, 2002, S.O. 2002, c.24, Schedule B (the “Act”) postpones the running of the limitation period where...
Oct 9, 2018
Torkin Manes LegalWatch

Presumptive Deference to Tribunals on Appeal: When Will the Courts Intervene?

Marco P. Falco Torkin Manes LegalWatch When the tribunal’s analysis of the language or application of legislation is challenged on appeal, should the Courts nonetheless defer to that analys...
Sep 10, 2018
Torkin Manes LegalWatch

When is an International Arbitration Award “Binding” for the Purposes of Domestic Enforcement?

Marco P. Falco Successful parties who engage in international commercial arbitration will inevitably want to have the arbitral award recognized and enforced in Ontar...
Jul 26, 2018
Torkin Manes LegalWatch

Deference, Deference, Deference: The Effect of Teal on the Standard of Review Applied to Insurance Arbitration Awards

Marco P. Falco In Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, the Supreme Court of Canada drew an important distinction between how the standard of re...
May 15, 2018
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