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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
Torkin Manes LegalWatch

Ontario Court of Appeal Affirms the “Minimum Performance Principle” in Calculating Damages for Breach of Contract

Marco P. Falco In a breach of contract case, the defaulting party may have had alternative ways of performing the contract. This has a direct impact on the Court&rsq...
Apr 25, 2018
Torkin Manes LegalWatch

Appealing a Stay of Your Arbitral Award? Make Sure You’re in the Right Place.

Marco P. Falco After an arbitral award has been issued in a commercial dispute, the parties have limited rights to appeal the award or bring an application to set it...
Feb 8, 2018
Torkin Manes LegalWatch

Seeking a Corporate Oppression Remedy? Make Sure Your Hands Are "Clean".

Marco P. Falco It has been nearly ten years since the Supreme Court of Canada set out the legal framework for a corporate oppression claim in BCE Inc. v. 1976 Debent...
Jan 8, 2018
Torkin Manes LegalWatch

Is An Expert Diagnosis Required to Prove Mental Injury?

Marco P. Falco In an action for negligence, a plaintiff may make a claim for mental injury resulting from the defendant’s conduct. For years, the common law ha...
Dec 7, 2017
Torkin Manes LegalWatch

Want to Appeal a Commercial Arbitration Award? Make Sure You Secure Broad Rights of Appeal.

Marco P. Falco One of the main purposes of commercial arbitration is to provide the parties with a final and binding resolution of their dispute. For this reason, s...
Nov 14, 2017
Torkin Manes LegalWatch

Should Security for Costs Motions be Treated Differently when a Foreign Judgment is Involved?

Marco P. Falco An order for security for costs can be made for a range of reasons. Its primary purpose is to give protection to the moving party by ensuring funds a...
Oct 10, 2017
Torkin Manes LegalWatch

Can a “Non-Party” Director of a Corporation be held Personally Liable for litigation costs?

Marco P. Falco Where a corporation is a party to litigation, Courts will very rarely award the costs of the action against the non-party directors, shareholders or ...
Sep 15, 2017
Torkin Manes LegalWatch

Appealing Arbitration Awards: Why the Courts’ Role is Limited

Marco P. Falco When parties arbitrate a dispute, as opposed to pursuing litigation in the Courts, there is an understanding that the arbitration should bring the ma...
Aug 15, 2017
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