Top 10 Cases Affecting Your In-House Practice

Litigation practice head Andrew Bernstein and senior associates Rebecca Wise and James Gotowiec led a UniversiTorys session to discuss the top 10 cases from 2017 that will affect your in-house practice.

See below to learn about the key takeaways from these high-impact decisions concerning a range of issues, including privacy rights, class actions, corporate governance, online advertising, releases and more.

1. Absent foreign claimants. If the decision withstands appeal, Airia Brands Inc. v. Air Canada will lead to Canadian courts becoming a more attractive forum to prosecute global class actions. This could increase class action exposure for multinational companies.
2. Discrimination through workplace drug policies. In Stewart v. Elk Valley Coal Corp., the decision is evidence that workplace drug and alcohol policies should be well known to employees and that termination letters should specifically refer to any policy breaches in order to avoid discrimination claims.
3. Auditors’ liability for undetected managerial fraud. The decision in Deloitte & Touche v. Livent Inc. shows that management misconduct may not be a defence to auditor negligence claims and that auditors may only be liable for losses that flow from the intended purpose of an audit – not undetected fraud.
4. Severability of illegal termination cases. North v. Metaswitch Networks Corp. demonstrates the need for employers to draft clear termination provisions that comply with the ESA. A saving provision (which ensures employees will not receive less than their minimum entitlements) is worth considering.
5. Releases. In Biancaniello v. DMCT LLP, the ruling following the appeal highlights the importance of using clear and specific language in a release in order to bar unknown claims.
6. Expectation of privacy in electronic communications. The SCC decisions in R. v. Marakah and R. v. Jones state that Canadians can reasonably expect the electronic messages they send to remain private. Workplace policies should address which employee communications the employer can access.
7. Privacy rights and the enforceability of “click-wrap” agreements. In Douez v. Facebook, Inc., the SCC decision demonstrated that forum selection clauses (such as terms of use agreements) may not be enforceable where they conflict with provisions in quasi-constitutional or consumer protection legislation.
8. Underwriters’ common-law duty of care. LBP Holdings Ltd. v. Hycroft Mining Corp. was the first reported Canadian case concerning whether underwriters owe investors who purchase securities under a prospectus a common-law duty of care. The court decided they do not.
9. Keyword advertising and the tort of passing off. The Vancouver Community College v. Vancouver Career College (Burnaby) Inc. decision demonstrates the importance of ensuring sponsored website links do not create confusion with competitors. This should be assessed when a consumer views search engine results.
10. Directors’ liability under the oppression remedy. Finally, the Wilson v. Alharayeri ruling was made after the SCC laid out four principles used to determine whether a director is personally liable under the oppression remedy, therefore establishing a test.