CANADA Trends and Developments Contributed by: Craig Ferris, Laura Bevan, Anna Paczkowski and Codie Chisholm, Lawson Lundell LLP
Lawson Lundell LLP Suite 1600 Cathedral Place 925 West Georgia Street Vancouver British Columbia V6C 3L2 Canada Tel: +1 604 685 3456 Fax: +1 604 669 1620 Email: inquiries@lawsonlundell.com Web: www.lawsonlundell.com
This year’s review of Canadian trends and develop- ments in litigation begins by discussing the Supreme Court of Canada (SCC) companion cases of Aquino v Bondfield Construction Co. , 2024 SCC 31 ( Aqui- no ) and Scott v Golden Oaks Enterprises Inc. , 2024 SCC 32 ( Golden Oaks ), setting out when the com- mon law doctrine of corporate attribution will apply in the insolvency context. These cases are important for insolvency professionals in assessing claims against the directing minds of any insolvent corporation who have engaged in fraud, or as against parties who have received property from a fraud. The next case considered is the Federal Court of Appeal (FCA) decision in Canada (Privacy Commis- sioner) v Facebook, Inc. , 2024 FCA 140 ( Facebook ), where the FCA considered the fallout of the Cam- bridge Analytica scandal and Facebook’s compliance with the federal privacy regime. The FCA was critical of the drafting of the privacy language of Facebook’s terms and policies, as well as of its consent process, in concluding that no reasonable consent of users was obtained by Facebook. The SCC granted leave to appeal, so whether the highest court agrees with the FCA’s concerns should be known next year. This article also considers how the 2024 amendments to the Competition Act, RSC 1985, c C-34, have been fairing one year out in two areas: greenwashing deceptive marking practices and restrictive covenants in commercial leasing. Finally, the far-reaching proposed amendments to Ontario’s civil rules of procedure are discussed; if
adopted, they will significantly change how matters proceed in Ontario. Attribution of Directing Mind’s Fraud to the Corporation in Insolvency Proceedings The common law doctrine of corporate attribution governs when the actions, knowledge, state of mind or intent of the directing mind of a corporation may be attributed or imputed to the corporation itself. Aquino and Golden Oaks are the first SCC decisions related to the corporate attribution doctrine in the insolvency context. The SCC had earlier recognised and dis- cussed the principles regarding corporate attribution in the criminal and civil context. In both cases, the insolvency professional sought to challenge fraudulent transactions under the Bankrupt- cy and Insolvency Act, RSC 1985, c B-3 (BIA). Wheth- er the attacks succeeded depended on whether the common doctrine of corporate attribution applied to impute the fraud of the directing mind to the insolvent corporations. The SCC stated that, as a general rule, a person’s fraudulent acts may be attributed to a corporation if two conditions are met: • the wrongdoer was the directing mind of the cor- poration at the relevant times; and • the wrongful actions of the directing mind were performed within the sector of corporate responsi- bility assigned to them.
161 CHAMBERS.COM
Powered by FlippingBook