Canada Case Law

Larouche v. PGM ResidualCo Holdings Inc.

Court

Supreme Court of British Columbia

The application for leave was dismissed because the petitioner failed to file/adduce admissible affidavits in this petition (cannot rely wholesale on affidavits filed in a separate proceeding), failed to provide sufficient credible evidence or properly pleaded material facts to satisfy the s.140.8 leave threshold, and most claims based on documents released before November 6, 2021 are statute-barred under s.140.94; consequently leave was denied and nunc pro tunc relief rejected.

Source excerpt

• Secondary market claim
• Misrepresentation
• Leave to commence action (s.140.8)
• Evidentiary admissibility of affidavits
• Pleading particularity
• Limitation periods (s.140.94)

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Ontario Securities Commission v. Katmarian

Court

Court of Appeal for Ontario

Leave to appeal was denied on the fraud causation issue and granted only on whether R. v. Hodgson changes the test for entering a conviction on appeal under the Provincial Offences Act.

• Fraud
• Causation
• Conviction on appeal
• Leave to appeal
• Hodgson impact
• Substitution of conviction

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Pasquill v. British Columbia Securities Commission

Court

British Columbia Court of Appeal

Payments made from the appellant's LIF accounts are neither "money transferred under Division 7" nor "benefits" as defined in the PBSA; therefore s.70(1) does not exempt those payments from attachment and the chambers judge correctly ordered forfeiture; the chambers judge also correctly declined to appoint a receiver because the forfeiture order was sufficient to secure payments and the receiver powers sought exceeded the authority to attach payments.

Source excerpt

• Forfeiture
• Attachment and exemption
• Receiver appointment
• Statutory interpretation
• Life income fund (lif)

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Smithe Residences Ltd., by its receiver, MNP Ltd. v. Boffo Investment Corp.

Court

Supreme Court of British Columbia

The court held the Smithe Consulting Agreement replaced the JVA, its profit‑sharing waterfall applied to profits from the whole completed Smithe Project (not limited to the plaintiff's proposed Thalia design), the plaintiff did not repudiate the agreement, Boffo Smithe breached by withholding profit shares, and Boffo Investment was unjustly enriched by receipt of those profits; damages awarded under the contract waterfall and unjust enrichment principles.

Source excerpt

• Contractual interpretation
• Repudiation
• Good faith in contractual performance
• Profit‑sharing
• Joint venture agreements
• Remedies and damages

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Axion Ventures Inc. v. Bonner

Court

Supreme Court of British Columbia

The court dismissed Axion's declaratory relief application because the Bonner Parties validly stood as contingent plaintiffs under their alternative pleading and the trustee's absence did not justify a stay or bar Bonner/Jess from prosecuting NextPlay's claim at this stage; the court denied leave to amend to add extensive new counterclaims mid-trial because the proposed amendments were untimely, raised matters outside the trial's scope, appeared statute-barred or belonged to other entities (NextPlay or Axion) and their admission would prejudice Axion and disrupt trial fairness; allegations of…

Source excerpt

• Declaratory relief
• Standing
• Pleadings and amendments
• Illegality defence (ex turpi causa)
• Spoliation
• Fraud on the court

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Canaccord Genuity Corp. v. Vita

Court

Supreme Court of British Columbia

The Guarantee is enforceable and Vita is liable to Canaccord despite arguments about expiry of limitation against Amaranthus because (1) the Guarantee's principal debtor clause obliges the guarantor as principal debtor where appropriate; (2) the current Limitation Act bars remedies but does not extinguish the underlying debt as a substantive right; (3) the US$3,000,000 advance is proved by Amaranthus authorization; (4) contractual terms absolve Canaccord from prior enforcement of security and prevent reduction of guarantor liability for its handling of collateral; and (5) the illegality defen…

Source excerpt

• Guarantee enforcement
• Personal guarantee
• Margin account
• Principal debtor clause
• Limitation period
• Ex turpi causa (illegality)

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Tietz v. BLOK Technologies Inc.

Court

British Columbia Court of Appeal

The chambers judge erred in excluding early sellers and in dividing the class into Canadian and non-Canadian subclasses; s.140.3 of the Securities Act applies to issuers with a real and substantial connection to British Columbia regardless of the exchange through which shares were acquired, and the pleadings sufficiently allege an overarching conspiracy so certification was appropriate; appeal allowed to include early sellers and remove subclass division; cross-appeal dismissed.

Source excerpt

• Secondary market misrepresentation
• Civil conspiracy
• Class certification
• Preferable procedure
• Multiple conspiracies problem
• Early sellers exclusion

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Pope v. Canadian Imperial Bank of Commerce

Court

Supreme Court of British Columbia

The court applied the 'some basis in fact' certification standard and found Prof. Simutin's metric-based analysis, when considered with the pleadings and responsive expert evidence, supplies a sufficient evidentiary basis that (a) one or more Funds exhibited performance characteristics consistent with closet indexing during the class period and (b) there is some basis in fact that these characteristics could give rise to common liability issues under trust law and securities disclosure regimes; conflicting expert opinion does not defeat certification at this stage because detailed merits adju…

Source excerpt

• Closet indexing
• Certification/common issues
• Prospectus misrepresentation (ni 81-101; s.63 securities act)
• Management fees and reasonableness
• Expert evidence at certification
• Breach of trust and fiduciary duty

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Sidhu v. British Columbia (Securities Commission)

Court

British Columbia Court of Appeal

Leave to appeal was refused because (1) the limitation issue is controlled by McLean: the triggering event is the conviction, not the underlying conduct or plea agreement, so there is no substantial statutory interpretation issue likely to succeed, and (2) the written hearing complied with the statutory requirement to provide an opportunity to be heard, the applicant never requested an oral hearing nor filed the evidence he now relies upon, and no substantial procedural fairness error was shown; overall the appeal does not raise issues of sufficient public importance or prospect of success to…

Source excerpt

• Enforcement orders under s.161
• Limitation period under s.159
• Leave to appeal under s.167
• Oral vs written hearing
• Opportunity to be heard
• Variation of orders under s.171

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British Columbia (Director of Civil Forfeiture) v. Miller

Court

Supreme Court of British Columbia

The court dismissed Mr. Miller’s constitutional challenge and granted an unexplained wealth order under the Civil Forfeiture Act.

• Unexplained wealth order
• Search and seizure
• Reasonable expectation of privacy
• Reasonable grounds to suspect
• In rem proceedings
• Interlocutory relief

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