Stephanie Shannon Clark

The appellants sought a stay of proceedings in favour of arbitration under s. 15 of the Arbitration Act, R.S.B.C. 1996, c. 55, after the court-appointed receiver commenced a civil claim to collect amounts allegedly owed under contracts containing mandatory arbitration clauses.

The Supreme Court of Canada dismissed the appeal, holding that a court-appointed receiver may be a party to a debtor's pre-receivership arbitration agreement, but that an arbitration agreement may be found inoperative under s. 15(2) where enforcing it would compromise the orderly and efficient resolution of a court-ordered receivership under the Bankruptcy and Insolvency Act.

The majority applied a two-part framework: the technical prerequisites for a mandatory stay were met, but the arbitration agreements were inoperative because the multiple overlapping arbitral proceedings contemplated would compromise the objectives of the BIA.

The concurring judges agreed on the result but reasoned that the Receivership Order itself authorized the receiver to sue in court and thereby disclaim the arbitration agreements.

Apotex sought damages for breach of contract and negligence against MDS for deficient bioequivalence studies that the FDA ultimately rejected.

The principal issue on appeal was whether the action was commenced within the two-year limitation period under the Limitations Act, 2002.

The trial judge found the action was timely, determining that discovery occurred on December 11, 2006, when Apotex learned the FDA would not accept the MDS studies.

The Court of Appeal upheld this conclusion but on different grounds, finding that the limitation period did not begin to run until December 11, 2006, based on when Apotex knew that the breach had caused injury, loss or damage.

The Court also upheld the trial judge's findings on breach of contract, mitigation, and damages.

A secondary market misrepresentation class action was brought against a coal mining company and its former CFOs and directors following the company's restatement of financial statements for 2010-2012.

The motion judge granted leave to proceed against the company but denied leave against the individual defendants, finding they had established a reasonable investigation defence.

The Court of Appeal reversed, holding that the motion judge erred by treating the leave motion as a mini-trial and failing to consider significant credibility issues and gaps in the evidentiary record.

The court found that the defendants' position—that they should evade liability because they previously made material misrepresentations in the restatement but are now telling the truth—was inconsistent with fundamental securities regulation principles requiring scrupulous continuous disclosure.