Published by the Litigation Group
McCarthy Tétrault FRANÇAIS VOL.4,
Litigation Co-Counsel

Welcome to Volume 4, Issue 1 of McCarthy Tétrault Co-Counsel: Litigation (March-June 2010). This issue marks the introduction of a new, more convenient format for our Co-Counsel publications.

We are now including summaries of each issue's articles so that you can quickly grasp what they're about. To read a specific article, click on the "Full Story" button or the article title. To read all the articles in a consolidated format, click the "View All" link on the right-hand side of the home page.

If you have any questions, please contact Geoff R. Hall (Editor-in-Chief) or Martin Halpern (Knowledge Management Lawyer).

Letter from the Editor
Welcome to Volume 4, Issue 1 of McCarthy Tétrault Co-Counsel: Litigation. This is an exciting issue as it contains such variety and scope.

Class Action

No Crime, Lots of Punishment

Can a class action be used as a solely punitive procedural vehicle? Yes, if we rely on the decision in Brault & Martineau inc. v. François Riendeau and Fédération des caisses Desjardins du Québec, where the Court of Appeal confirmed the decision to grant punitive damages despite the absence of any proof whatsoever that a prejudice had occurred.


A Decision that Rings a Dell

Can consumer and non-consumer contracts that contain an arbitration clause be made subject to class proceedings? Yes, according to a recent decision by the Court of Appeal for Ontario.


Sunscreen Litigation Reminds Potential Class Action Plaintiffs that Effort is Required to Meet Certification Requirements

When a company is named as a defendant in a class action lawsuit, it is imperative that the case be taken seriously from the outset and vigourously defended at every stage. Similarly, potential class counsel must put in legwork to ensure that a prospective case will meet the legislative and procedural requirements for certification as a class action. Failure to do so can result in serious cost consequences.



SEC v. Goldman Sachs: Issues in Focus
Many requisite ingredients for a media feast accompanied the civil fraud charges commenced by the Securities and Exchange Commission (SEC) against Goldman Sachs & Co. and its employee Fabrice Tourre on April 16, 2010.


Demand Obligations — Divergences in Provincial Limitation and Prescription Periods
The recent ruling of the Ontario Court of Appeal in Bank of Nova Scotia v. Williamson provides an opportunity to address the divergent ways that limitation periods in different provinces apply to various forms of demand obligation.


Contractual exclusion clauses: have the reports of the death of the doctrine of fundamental breach been greatly exaggerated?
Upon reading his own obituary, which had been published in error, Mark Twain is said to have remarked that "the reports of my death are greatly exaggerated." The decision of the Supreme Court of Canada in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 provides an odd twist on Twain’s witticism.


New Criminal Cartel and Civil Competitor Agreement Provisions under the Competition Act Come into Force
When significant changes to the Competition Act were adopted in March 2009 as part of Bill C-10, the Budget Implementation Act, 2009, a one-year transitional period was provided before the coming into force of the amendments to the conspiracy provisions. This transitional period ended on March 12, 2010.


Historic Defamation Decision Recognizes New Defence: Responsible Communication on Matters of Public Interest
In a dramatic and historic shift from the principles laid out by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, the same court determined in Grant v. Torstar Corp. that Canadian law needs a new rule that "gives greater scope to freedom of expression while offering adequate protection of reputation." The parameters of a new defence of "responsible communication on matters of public interest" were set out and justified on the basis that traditional defamation law "does not give adequate weight to the constitutional value of free expression." The following brief analysis will elucidate the shift in principles of the Supreme Court and outline the broad tenets of the new defence. The facts will not be commented on.


Litigation Case Management: The Impact of Electronic Evidence on Litigation Preparation and Practice

This article is an abridged version of an article Mr. Sutton presented as Course Leader at Federated Press’ 4th E-Discovery Program: Best Practices and Procedures Relating to E-Discovery, March 1 & 2, 2010, Toronto



Yugraneft Corp. v. Rexx Management Corp.: Victors in International Arbitration Proceedings Must Look Out for Local Limitation Periods
Arbitration as an option for dispute resolution in international commercial transactions presents a unique set of issues that are often not given the attention and due care they deserve. Perhaps the primary attraction of international arbitration is that an award rendered pursuant to a valid arbitration clause has virtual finality and international currency in terms of enforcement. This award is final and will not be subject to appeal, as is the case with court judgments. The intention is that the parties will be able to enforce an arbitration award with minimal court intervention.

Farley's Reflections

To Be or Not to Be… a (Truly Qualified) Expert Witness
The practical definition of an expert witness is someone who wears a suit and a tie, carries a briefcase, and comes from over 300 kilometres away. When I was a trial judge, I found that there were supposed to be experts on every topic under the sun (and sometimes even within the shadows of the dark side of the moon). Two questions come to mind: (1) How many of these proposed experts were helpful, let alone necessary?; and (2) Was the briefcase just an expensive lunchbox?