Malcolm M. Mercer

The applicant, a customer of a bankrupt securities firm, sought to establish a claim against the bankrupt estate's general fund for post-bankruptcy increases in the value of liquidated foreign futures contracts.

The court held that while Part XII of the Bankruptcy and Insolvency Act does not preclude a customer from making a claim against the general fund as an ordinary creditor, the applicant only had a provable claim for contracts that vested in the trustee on the date of bankruptcy, not for those liquidated prior to bankruptcy due to subagent insolvency.

The court also dismissed the applicant's request for an equitable priority over other general creditors.

The appellants sued the respondent for breach of confidence, alleging the respondent misused ticket booking data provided to it for billing and settlement purposes to create a competing data product.

The trial judge dismissed the claim, finding that the information was not communicated in confidence, largely due to the absence of a confidentiality clause in favour of the appellants in the relevant agreements.

The Court of Appeal upheld the trial judge's decision, finding no error in his assessment of the factual matrix and the reasonable person standard.

Following a change in corporate control, the new management of Echo Energy Canada Inc. sought to assess the paid accounts of three law firms retained by the former management.

The application judge dismissed the application, finding no 'special circumstances' under s. 11 of the Solicitors Act.

On appeal, the Court of Appeal allowed the appeal in part.

The Court found that the application judge erred in principle by adopting a lawyer-focused perspective and failing to consider evidence that the former directors may not have acted in the company's best interests when approving the accounts of litigation counsel (Lenczner and Voorheis).

Special circumstances were established for those accounts.

However, the appeal regarding the corporate counsel (McCarthy) was dismissed as no special circumstances were shown.

The respondent financial advisory firm was engaged by the appellant trust company to raise debt or equity financing.

The agreement permitted the appellant to sell its assets without obligation to the respondent.

After the respondent obtained a letter of interest from a bank, the appellant terminated the engagement, paid the contractual fees, and later sold its assets to the bank.

The trial judge awarded the respondent $420,000 for unjust enrichment.

The Court of Appeal allowed the appeal and dismissed the action, finding that the respondent failed to establish an enrichment, a corresponding deprivation, or the absence of a juristic reason, as the services were not freely accepted for an asset sale and the respondent had no reasonable expectation of compensation beyond the contract.

In this medical malpractice appeal, the defendants challenged findings that negligent immobilization of a hand fracture caused permanent disability and substantial damages.

The Court of Appeal held that the trial judge applied the correct specialist standard of care, properly inferred causation under the flexible approach in medical negligence cases, and was not required to apportion between tortious and non-tortious causes once the negligent treatment materially contributed to the entire injury.

The contributory negligence argument based on discontinuing physiotherapy failed because the evidence supported that the treatment was inappropriate and the patient sought alternative care.

The appeal succeeded only on quantum, with the award for past loss of income set aside for lack of evidentiary foundation.

On an appeal from an order refusing to add investor creditors as plaintiffs by counter-claim, the court held that a bank owed no fiduciary duty to unsecured creditors of its corporate customers merely because they shared a common debtor.

Applying the Anns/Kamloops framework, the court found no pleaded facts establishing proximity or reasonable reliance sufficient to create a prima facie duty of care in negligent misrepresentation.

The alleged statements to one guarantor did not support a relationship of reliance by a wider class of investors.

In any event, policy considerations barred recovery because recognizing such a duty would create indeterminate liability to an unlimited class.

The appeal was dismissed.

The appeal concerned a media challenge to a publication ban obtained in criminal proceedings to stop the broadcast of a fictional television mini-series said to risk prejudicing pending jury trials involving allegations of abuse in religious institutions.

The Court held that discretionary publication bans must be assessed in accordance with Charter values and reformulated the common law test to require necessity, the absence of reasonably available alternative measures, and proportional balancing between trial fairness and freedom of expression.

The Court also addressed the proper procedural routes for third-party challenges to publication bans imposed by provincial and superior court judges.

Applying the new framework, the Court concluded the ban was overbroad and unjustified because reasonable alternatives were available.

The appeal was allowed and the publication ban order was set aside.