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When is Communication Between a Client’s Accountant and Lawyer Privileged?

Communications between lawyers and their clients’ accountants or other non-legal professionals are not in themselves privileged but can be where the communication is in “furtherance of a function essential to the...more

Canadian Contractual Interpretation Just Got More Difficult

Supreme Court of Canada Revives Correctness Test for Interpreting Standard Form Contracts - There is a new exception to the new Canadian approach for reviewing the interpretation of contracts: a trial court’s...more

Whole Agreement Clause Upheld by Court of Appeal

A properly-worded whole agreement clause is effective to exclude liability for innocent and negligent misrepresentations, the Alberta Court of Appeal recently held in Houle v Knelsen Sand and Gravel Ltd, 2016 ABCA 247...more

Host Liability, 10th Edition

This booklet is intended as a basic guide to host liability, which is the potential for personal and corporate liability for injuries sustained by employees, clients and other persons as a result of alcohol intoxication. This...more

Internal Investigations and Privilege: A Redux

An internal investigation into a workplace accident was privileged, and thus protected from disclosure, the Alberta Court of Queen’s Bench recently held in Alberta v Suncor Energy Inc, 2016 ABQB 264 [Suncor]. The Court found...more

Trial Court’s Interpretation of a Contract Much Harder to Overturn, the Supreme Court of Canada Confirms

To overturn a trial court’s interpretation of a contract on appeal, it is not enough that the trial court was wrong, it must be really wrong, the Supreme Court of Canada recently affirmed in Heritage Capital Corp v Equitable...more

Are CCAA Proceedings a Panacea for Assignment or Novation Without Consent?

A purported assignment of a contract without consent and an alleged novation were ineffective, the BC Court of Appeal recently held in Barafield Realty Ltd. v. Just Energy (B.C.) Limited Partnership, 2015 BCCA 421 [Barafield]...more

Is an Internal Investigation Privileged?

An internal investigation into whistleblower allegations was privileged, thus protected from disclosure, the Alberta Court of Queen’s Bench recently held in Talisman Energy Inc v Flo-Dynamics Systems Inc, 2015 ABQB 561...more

Dangers of a Self-Drafted Letter Agreement

Court Unwilling to Impose a Reasonableness Limit on Expenditures - Exploration expenditures incurred to earn into a mining claim did not have to be reasonable, the B.C. Court of Appeal recently held in American Creek...more

Inconsistent Administrative Tribunal Decisions: The Alberta Court of Appeal Weighs In

Conflicting interpretations of the same statute by an administrative tribunal are unlikely to be reasonable, let alone correct, the Alberta Court of Appeal recently held in Altus Group Limited v Calgary (City), 2015 ABCA 86...more

New Good-Faith Duty of Honesty in Contractual Performance Recognized by Supreme Court of Canada

In a precedent setting case, the Supreme Court of Canada has: (1) recognized good faith as a "general organizing principle" of Canadian contract law; and (2) recognized a new duty of "honest performance", which requires...more

11/26/2014  /  Canada , Contract Formation , Good Faith , SCC

New Good-Faith Duty of Honesty in Contractual Performance Recognized by Supreme Court of Canada

A new duty of honest performance has been imposed on all Canadian contracts by the Supreme Court of Canada. The notion of a general and independent doctrine of good faith performance of contracts has historically been...more

11/14/2014  /  Canada , Contract Disputes , Good Faith

Legal Privilege

Privilege provides special protection that exempts certain documents and other forms of communication from having to be disclosed in legal proceedings. Its protection is powerful, but it can be easily lost if the privileged...more

11/13/2014  /  Attorney-Client Privilege , Canada

Proving An Operator’s Gross Negligence: Is Intention Required?

Establishing an operator’s gross negligence requires “a degree of intentionality”, the Alberta Court of Queen’s Bench recently held in Bernum Petroleum Ltd v Birch Lake Energy Inc, 2014 ABQB 652 [Bernum]....more

11/10/2014  /  Canada , Gross Negligence , Intent , Negligence

Regulatory Proceedings and Litigation Privilege: ‘Zone of Privacy’ Bolstered in Alberta

Litigation privilege applies to regulatory proceedings where the consequences of the proceedings are significant, and the privilege cannot be excluded by statute without express and clear language, the Alberta Court of Appeal...more

6/20/2014  /  Appeals , Canada , Litigation Privilege

Myth of Trial No Longer Governs: Alberta Embraces New Summary Judgment Test

Effecting a cultural shift, a new summary judgment test has been embraced by the Alberta Court of Appeal in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 [Windsor]. This new test will make it easier to obtain summary...more

3/24/2014  /  Canada , Summary Judgment

Default Notices and Freehold Leases: Take Two

There may be a sign that last year’s dire consequences for a freehold oil and gas lessee who does not quickly respond to a default notice by commencing legal proceedings may be moderating somewhat, at least in certain...more

SCC Confirms the Ability of Taxpayers to Seek Rectification to Remedy Errors that May Impact Tax Positions

Uninteded tax consequences of a contract can be avoided by rectification, the Supreme Court of Canada ruled in Québec v Services Environnementaux AES inc., 2013 SCC 65 (AES). ...more

12/2/2013  /  Canada , SCC , Tax Deferral , Tax Liability

Damages for Royalty Error Limited to Two Years: Ignorance of Mistake May Not Stop Limitations Clock

A royalty holder must make reasonable inquires to confirm that a royalty has been properly paid and will be limited to a two-year recovery if not, the Alberta Court of Appeal has ruled in Canadian Natural Resources Limited v...more

Broken a Contract? The Alberta Court of Appeal May Have Good (or Bad) News For You

A recent decision of the Alberta Court of Appeal has opened the door for defendants in contract cases to implicate other would-be contract-breakers, thereby potentially reducing the defendants’ exposure to liability while...more

10/8/2013  /  Breach of Contract , Canada

Legal Privilege - September 2013

This guide to solicitor-client privilege and litigation privilege does not replace specific legal advice. Legal Privilege - Privilege provides special protection that exempts certain documents and other forms...more

Contracting around the Hague Convention on Service of Process

When negotiating contracts with international parties, counsel should consider how their clients would, if necessary, serve judicial documents on counterparties based outside of Canada. The Hague Convention on the Service...more

Change to Alberta Court Rules Eases Service Under Hague Convention

A new Alberta Court Rule seeks to avoid an unfortunate implication that courts have read into the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters. Effective July...more

Imminence of Harm is Not Required for Recovering Pure Economic Loss for Dangerous Defects

Lack of “imminent risk” does not bar recovery for economic loss arising from a dangerously defective structure, the Alberta Court of Appeal recently held. Typically, courts are reluctant to award lost profits or other...more

Service of Alberta Process Outside of Canada Now More Complicated

The Ontario Court of Appeal has confirmed the proper reading of the latest Alberta Court of Appeal decision on service ex juris under Alberta law, which greatly complicates serving legal documents outside of Canada. In our...more

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