Law Times - Newsmakers

2014 top news, newsmakers, and cases 9 top cases inherent in the editing process between counsel and retained experts. In no uncertain terms, she ruled that the practice must stop. "Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer accept- able," she wrote. The ruling, which is under appeal, requires lawyers to make suggestions in writing and disclose them to opposing coun- sel. Litigators argue the requirement would increase costs as counsel hire multiple professional experts who are familiar with legal concepts. Green v. Canadian imperial Bank of Commerce It's been a wild ride for securities class action lawyers seeking clarity on limitation periods. In 2012, the Ontario Court of Appeal's decision in Sharma v. Timminco Ltd. determined that plaintiffs must obtain leave to proceed within three years of the alleged misrepresentation. In February, though, the appeal court reversed its decision. In Green v. Canadian Imperial Bank of Commerce, the court applied a new interpretation of the Securities Act, ruling that a class of plaintiffs need not obtain leave within the limitation period; rather, they need only plead their cause of action as well as their intent to seek leave within the three-year period. McCormick v. Fasken Martineau duMoulin LLp Equity partners can be subject to mandatory retirement, according to the Supreme Court's decision in McCormick v. Fasken Martineau DuMoulin LLP. Mitch McCormick filed an age discrimination complaint at the B.C. Human Rights Tribunal disputing a partnership agree- ment that required him to divest his stake and retire at age 65. Faskens argued the province's Human Rights Code protec- tions for employees didn't apply to McCormick as a partner at a law firm. The tribunal disagreed, but the B.C. Court of Appeal struck down the tribunal's decision. In late May, the Supreme Court of Canada upheld the B.C. appeal court ruling unanimously. The decision relies on prin- ciples of "control" and "dependency" to explain how McCor- mick's partnership was in no way similar to the typical employ- ment contract. sattva Capital Corp. v. Creston Moly Corp. Appealing the interpretation of a contract has become more difficult after the Supreme Court of Canada ruling in Sattva Capital Corp. v. Creston Moly Corp. The case stems from a finder's fee agreement in which Sattva Capital — which introduced Creston Moly to a deal prospect — was to receive shares in Creston Moly. The parties, however, disagreed on the valuation date for those shares, each pointing to contradictory clauses. The arbitrator ultimately sided with Sattva Capital, but the B.C. Supreme Court denied leave to appeal on the basis that there was no question of law, which is a prerequisite under the B.C. Arbitration Act. An application to the B.C. Court of Appeal, however, proved more fruitful with the appeal court sticking to the traditional view that contractual disputes neces- sarily involve questions of law rather than of fact. The Supreme Court of Canada went a different way. In a unanimous decision, the court found that the tradition of ignoring the facts of a case in favour of a pure analysis of con- tract language "should be abandoned." The ruling requires judges and arbitrators to adhere to a standard of reasonableness when interpreting contracts as opposed to correctness. And it rules out the vast majority of appeals based on faulty contract interpretation. Tsilhqot'in nation v. British Columbia, Grassy narrows First nation v. ontario, and hamilton health sciences Corp. v. d.h. In a pair of landmark decisions, the Supreme Court of Canada cleared the air around provincial powers and responsibilities when issuing permits on aboriginal land. The top court overturned the B.C. Court of Appeal's ruling in Tsilhqot'in Nation v. British Columbia in June. The dispute involved a 1983 forestry permit that prompted a land claim by the Tsilhqot'in First Nation. In 2012, the B.C. appeal court rejected the claim based on evidence that the Tsilhqot'in were "semi-nomadic." The Supreme Court of Canada disagreed. It found the Tsilhqot'in had hunted and fished on the land in question exclu- sively for centuries, had demanded permission to use it, and had repelled other groups. This, the court ruled, was sufficient to grant title and thereby require the province to negotiate prior to the issuance of permits. That victory for First Nations preceded a loss in Grassy Narrows First Nation v. Ontario (Natural Resources), in which the top court considered whether a clause in a treaty empowering the Crown to "take up" land for development also applied to the province. Here, the top court upheld the appeal court judgment. It found the treaty was negotiated on behalf of the Crown, comprising both federal and provincial components. Provinces, therefore, may con- tinue to regulate land and natural resources on aboriginal land subject, of course, to its duty to consult and accommodate. While it's not a land dispute, there was another major ruling dealing with aboriginal matters late this year. In November, Ontario Court Justice Gethin Edward surprised many people when he allowed an 11-year-old aboriginal girl to withdraw from chemotherapy in favour of her parent's wishes for an alternative treatment in Florida. Equity partners can be subject to mandatory retirement, the Supreme Court found.

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