Welcome to JSS Barristers Insights. Here you’ll find a variety of thought-leadership, from concise summaries of regulations to more in-depth analyses of how Rules of Court can affect the courts’ decisions.

Am I Valid? Unpacking Termination Clauses in Employment Contracts

June 12, 2024

Termination clauses in employment contracts can limit the amount of severance owed to an employee terminated without cause. But are they enforceable? Simon McCleary and Filippo Titi unpack this complex and evolving area of employment law.

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Got a Limitations Defense to an Originating Application? Seek Leave!

May 17, 2024

If a Defendant plans to rely on a limitations defence, they must plead it. But what if an Action is commenced by Originating Application and the Respondent has no right to file a Statement of Defence? Andrea MacLean and Ripple Kaila discuss advice from the ABKB regarding how to advance a limitations defence in an Action initiated by Originating Application.

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Dry Wells and Dead-End Pleadings: CPN7's Selective Role in Striking Pleadings

May 14, 2024

Giovanni Perri comments on a recent Alberta Court of Appeal decision that provides guidance on when the use of Civil Practice Note 7 is warranted.

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I Think I Have Been Defamed. Now What?

May 8, 2024

Defamation is a nuanced area of law. Andrea MacLean outlines what you should know if you think you’ve been defamed - including the pros and cons of sending a “cease and desist” letter, and considerations when deciding whether to bring a defamation claim.

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Defendants are entitled to “poke the bear” without worrying about the consequences of Rule 4.33

March 1, 2024

Charlotte Stokes and Giovanni Perri comment on a recent Court of King's Bench decision about Rule 4.33.  

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Court Provides Guidance on Appeal and Stay Procedures under Health Professions Act

January 30, 2024

David J. Marshall, Partner and Giovanni Perri, Articling Student, comment on the recent Court of King's Bench decision, MA v Alberta College of Pharmacy, 2023 ABKB 522 wherein it provides guidance on appeal and stay procedures under the Health Professions Act, and grants stay pending appeal.  

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Corporate Separateness and Concurrent Liability in Alberta: Recent Applications from the Court of Appeal

November 2, 2023

Alberta corporations are legal persons with rights to hold property, contract with others, and sue or be sued. Corporations are separate and distinct from their shareholders, directors, and employees, and in most cases, are uniquely responsible for liability arising from their actions.

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Court Directives on Generative AI: Recent Attempts at Balancing Concerns with Ethical Duties and Effective Representation

July 14, 2023

Courts are reacting to the rising use of generative AI, like ChatGPT, in the legal field by issuing usage guidelines. These guidelines aim to mitigate issues such as false information generation but may be imprecise and potentially conflict with lawyers' existing ethical duties. 

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The Most Common Way People Give Up Their Power is by Thinking They Don't Have Any...

February 28, 2023

Alberta’s Court of King’s Bench found a CMOH Order unreasonable. The authority to issue such executive legislation is vested solely with the CMOH rather than elected officials who participated in the promulgation of the Order.

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The SCC Expands the Cause of Action for Constructive Taking

November 30, 2022

The October decision by the Supreme Court of Canada in Annapolis Group Inc v Halifax Regional Municipality may cause governments to codify the previously held assumption that there will be no compensation for lands with rejected development permits.

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Procedural Errors Result in Overturning Contempt Finding

November 18, 2022

A recent Alberta Court of Appeal decision has reaffirmed the need for trial courts to follow the rule of law and ensure procedural fairness in contempt proceedings when dealing with alleged contemnors.

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Unilateral Unpaid Leave of Absence May Not Trigger Constructive Dismissal

November 3, 2022

Erin J. Baker and Sarah Miller outline the main takeaways from Justice MacNaughton's decision in Parmar v Tribe Management Inc. that a mandatory vaccination policy in the workplace may not trigger constructive dismissal.

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Interpretation of the "Resulting Damage" Exception to Coverage Exclusions

August 9, 2022

The “Resulting Damage” exception was the focus of the leading insurance coverage decision in Canada, Ledcor Construction Ltd v Northbridge Indemnity Insurance Co, 2016 SCC 37. What is the exception and how is it interpreted by Courts?

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Insurance Contracts and Promissory Estoppel

June 28, 2022

In reviewing the recent decision in Trial Lawyers Association of British Columbia v Royal & Sun Alliance Insurance Company of Canada, Robyn Graham delves into the concept of promissory estoppel. In an insurance context, estoppel addresses an insurer’s responsibility to honour its original coverage position, and aids in determining the grounds needed for the insurer to deny coverage.

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Fortuity as an Essential Element of “All-Risk” Insurance Policies

June 21, 2022

The presence of balance within an insurance agreement is essential as it emphasizes a mutual agreement between both the insurer and the insured - not every loss can be insured and not every recovery is possible. Robyn Graham discusses a variety of key cases involving the requirement of fortuity.

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The Interpretation of Exclusion Clauses in Insurance Contracts - Post Ledcor

June 14, 2022

Stemming from the decision made in Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., a new framework for interpreting exclusion clauses in insurance contracts came to life. Carsten Jensen breaks down how the framework can be applied to a variety of different cases.

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Family Protection Insurance Endorsements ("SEF 44 Coverage") - 5 Things to Know

November 24, 2021

SEF 44 Coverage, also known as Family Protection Insurance Endorsements, is intended to provided coverage in circumstances where the at-fault party is uninsured, underinsured. What are 5 things you need to know about SEF 44 Coverage?

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Could Your Retainer Be Voided for Incapacity?

November 16, 2021

In a matter of pure law, Justice Jones developed a new test for voiding a retainer agreement for incapacity in Guardian Law Group v LS.  The matter describes a very unique circumstance that explores what happens when a client is deemed to lack capacity to enter into a retainer agreement ahead of said capacity hearing.

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Mandatory Vaccinations in the Workplace

July 22, 2021

With the widespread availability of COVID-19 vaccinations in Canada, employers are anxious to get their employees vaccinated and “back to normal,” employers are likely thinking about what they can do to return to pre-pandemic operations. The question then arises: can an employer require employees to get the COVID-19 vaccine? And, if an employee refuses, what options does the employer have?

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Why are Personal Injury Damages in Canadian Lawsuits So Much Lower Than in the US?

March 26, 2021

Why are general damages for pain and suffering in Canada effectively capped? Maureen McCartney-Cameron traces the reason back to the "Damages Trilogy," three 1978 decisions from the Supreme Court Canada.

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Protecting Privacy in the Era of AI

March 23, 2021

Canadians will have a right to explanation and more transparency when subjected to automated decisions. But what does that really mean?

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Part 7 of Rules of Court Continue to be Underutilized in Alberta

February 2, 2021

In Hannam v Medicine Hat School District No. 76, 2020 ABCA 343, the Alberta Court of Appeal noted that despite the culture shift called for in the Supreme Court’s decision in Hryniak v Mauldin, 2014 SCC 7, the summary procedures provided for in Part 7 of the Rules of Court continue to be underutilized in Alberta. In emphasizing this point, the Court of Appeal urged both the judiciary and litigants to make more robust use of these processes.

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Pursuing Pots of Gold: Litigation Funding - The Supreme Court of Canada Speaks

September 22, 2020

Christa Nicholson, former Partner, comments on a recent unanimous decision of the Supreme Court of Canada that adds legitimacy to third party litigation funding as a potential path by which to maximize recovery for an insolvent company's creditors, as well as for use in commercial litigation and arbitration contexts. 

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The Delay Rules in a World of Suspended Limitations

September 16, 2020

How did the Ministerial Order of March 30, 2020, affect Rules 4.31 and 4.33? Gavin Price and Charlotte Stokes take a look at how the courts may interpret the Order's effect on what is sometimes referred as the "Delay Rules."

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Hit & Run/Uninsured Accidents - 5 Things to Know

August 27, 2020

Maureen McCartney-Cameron points out the 5 things you need to know if you've been involved in a hit & run or an accident with an uninsured driver.

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COVID-19: Class Actions Arising From a Pandemic

July 29, 2020

Given the current situation, Courts are likely to consider factual nuances in each class action on a case-by-case basis, including how the defendants responded to the unexpected and unprecedented change in making their decisions.

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The Uber Decisions: Justice Come Heller High Water? Litigating Unconscionability

July 14, 2020

The SCC decision in Uber v Heller raises questions about how unconscionability will be litigated and what evidence may be needed and admissible in such litigation.

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The Uber Decision: Justice Come Heller High Water? Improvident Bargain

July 8, 2020

In Part 2 of our analysis on the recent decision of Uber v Heller, we discuss how the wide application of improvidence could lead to commercial uncertainty.

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Pierringer Agreements and the Principle Against Overcompensation

July 7, 2020

Notwithstanding a settling Defendants’ ostensible entitlement to a settlement surplus, the Court appears to have meaningfully limited the circumstances in which a settlement surplus will be recognized.

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The Uber Decision: Justice Come Heller High Water? Unequal Bargaining Power

July 2, 2020

In the recent decision by the SCC in Uber v Heller, the majority confirms that the doctrine of unconscionability applies to all contracts. This undermines commercial certainty, as little guidance is provided for its application.

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An Update on Social Host Liability in Canada

June 29, 2020

In McCormick v Plambeck, the British Columbia Court Supreme Court recently considered whether liability might be imposed on social hosts whose guests were teenage minors.

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Damages for Loss of Marriage/Interdependency Benefits: University of Regina v Miranda Biletski, 2019 SKCA 44

June 25, 2020

In 2019, the Saskatchewan Court of Appeal confirmed that a severely injured plaintiff may recover separate damages based on the fact they are now statistically less likely to find a romantic partner as a result of their injury.

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Refusing to Return to Work? CERB Isn't the Answer

June 18, 2020

Some low-wage workers are opting to continue receiving their CERB benefits citing that the payments are more than their paycheques. Cassandra Sutter issues a warning against that approach.

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Suing After a Workplace Accident

June 16, 2020

If you have been injured at work, Maureen McCartney-Cameron lists 5 things that you should be aware of when bringing an action to your employer.

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Virtual Witnessing of Estate Documents

June 11, 2020

With the enactment of Ministerial Order 39/2020, the signor and witness need not be in the same room.

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Contractual Interpretations and the "Surrounding Circumstances" - Six Years After Sattva

June 9, 2020

In the years since Sattva Capital Corp. v Creston Moly Corp. (2014), Canadian Courts have embraced the “modern” approach to contractual interpretation which requires a consideration of surrounding circumstances. That said, it is important not to stray too far from the words of the contract themselves.  

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Can an Originating Application be Amended?

May 27, 2020

Laura Warner and Cassandra Sutter summarize how Rules 3.8 and 3.14 govern actions started by Originating Application.

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Priority Contest Between Distraining Landlord and a Registered Security Interest Holder

May 27, 2020

Is there a conflict allowing the Personal Property Security Act to prevail, whether the Civil Enforcement Act prevents a conflict by “providing otherwise”? 

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Formal Offers in Court of Appeals Proceedings

May 20, 2020

Laura Warner and David Marshall analyze a costs decision from the Alberta Court of Appeal.

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Tort Liability in a COVID World, Part 4: Medical Negligence

May 19, 2020

Laura Warner and Sarah Bernamoff examine the expected standard of care for medical professionals in light of our new COVID world, as well as what can be done to mitigate liability while providing an essential service.

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Are Contracts Enforceable Despite COVID-19? [Part 7]: Contract Law Meets Insolvency Law - Some Strategic Considerations

May 14, 2020

If your company has received, or may invoke, force majeure or frustration claims, it would be wise to consider both the law of contract and the possible impact of insolvency law.

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Vanquisher or Vanquished? Insolvency Law's Power to End Contracts

May 14, 2020

The economic crisis resulting from the COVID-19 pandemic has meant that some contracts that were once previously viable, may no longer be - making disclaimer an attractive potential option for an insolvent party.

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COVID-19: Potential Solutions to Insolvency Situations

May 13, 2020

Discussions with creditors and stakeholders are best undertaken with an understanding of formal and informal insolvency proceedings. Christa Nicholson and Angad Bedi describe the available options, as well as steps that may be taken by creditors to enforce their rights.

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Are Contracts Enforceable Despite COVID-19? [Part 6]: The Principles of Causation

May 7, 2020

Geoffrey Boddy and Kaila Eadie examine Canadian, American and British jurisprudence regarding the issue of causation for force majeure claims.

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Tort Liability in a COVID World, Part 3: Government Oversight of the Cargill Beef Plant

May 5, 2020

With the easing of restrictions across Canada, including at food processing plants, can governments be held liable for future outbreaks? Laura Warner and Kaila Eadie examine the principles that impact government liability in these unique circumstances.

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Are Contracts Enforceable Despite COVID-19? [Part 5]: Duty to Mitigate Force Majeure Events

April 30, 2020

In Part 5 of our Enforceability of Contracts series, Bryan C. Duguid QC, FCIArb and William Katz discuss the duty to mitigate the duration and effects of force majeure events.

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Rule 4.31 and 4.33 in a World of Suspended Limitations

April 28, 2020

In response to limited Court access and other restrictions, a Ministerial Order was issued in late-March to "push pause" on litigation. Gavin Price and Charlotte Stokes explain the Order's potential effects on deadlines.

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COVID-19 and Insolvency Law: What You Should Know

April 27, 2020

Former partner at JSS Barristers , Christa Nicholson, provides some practical “must-know” takeaways when planning for potential liquidity crunches or insolvency-related challenges.

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Are Contracts Enforceable Despite COVID-19? [Part 4]: Force Majeure Notice Requirements

April 24, 2020

What does your contract say about notice requirements? Geoffrey Boddy and Andrea MacLean take a look at when a Court may, or may not, relax on notice requirements.

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Tort Liability in a COVID World, Part 2: The Case of Walmart

April 17, 2020

Could your business be liable for failing to protect your employees and customers from COVID-19? Laura Warner and Sarah Bernamoff explore a recent lawsuit against and Arkansas Walmart and explain what businesses can do to protect themselves from liability.

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Are Contracts Enforceable Despite COVID-19? [Part 3] Interpreting Force Majeure Clauses

April 16, 2020

How do you interpret a force majeure clause? Bryan C. Duguid QC, FCIArb and Kaila Eadie are your guides on interpreting force majeure clauses and the effect they will have on your business.

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Selling or Buying Shares in the Face of COVID-19: Am I Insider Trading?

April 15, 2020

What exactly constitutes insider trading in the face of a pandemic and its consequent economic fallout? Andrew Wilson, and Angad Bedi take a look at the sub-requirements.

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Is My Business Covered for Interruption Losses Caused by COVID-19?

April 14, 2020

Ryan Phillips and Maureen McCartney-Cameron tell you what to look for in your insurance coverage. 

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Are Contracts Enforceable Despite COVID-19? [Part 2]: The Applicable Legal Doctrines

April 9, 2020

“What happens if I don’t have a force majeure clause in my contract, is a frustration claim still possible?”

“What are the Applicable legal doctrines I can rely upon?”

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The New Tort on the Block: Publicity Placing a Person in False Light

April 9, 2020

For the first time, a Canadian Court has recognized Publicity Placing a Person in False Light as a cause of action. What is it and how can it affect you? Former partner at JSS, Oliver Ho explains the implications of this new tort in his latest article.

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Commercial "Evictions" Are Not Suspended

April 8, 2020

Glenn Solomon QC, FCIArb and Laura Warner address a misconception that commercial evictions have been Suspended.

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Tort Liability in a COVID World, Part 1: The Principles of Negligence in a COVID World

April 7, 2020

In part 1 of our series, Tort Liability in a COVID World, Laura Warner, Kaila Eadie and Sarah Bernamoff, JD, MBA examine the principles of negligence in a COVID world.

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Commercial Landlord and Tenant Agreements: The Need for Careful Analysis

April 2, 2020

Glenn Solomon QC, FCIArb, outlines some of the analysis that commercial landlords must undertake in determining the best strategy in navigating the complex issues arising in commercial leasing relationships.

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Recent Amendments to the Rules of Court

April 1, 2020

The Legislature has amended the Rules of Court by way of an Order in Council. David J. Marshall has noted the key amendments for civil litigators in his most recent article published on our COVID-19 Resource Page

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Are Contracts Enforceable Despite COVID-19? [Part 1]: Overview

April 1, 2020

The Coronavirus has affected businesses both large and small, leaving many unable to fulfill their contractual obligations. So, what happens when, as a result of COVID-19’s impacts, a party has no choice but to breach a contract? Can parties be required to compensate for non-performance in this circumstance?  Is there some legal way out?

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Social Distancing and Executing Documents with Electronic Signatures

April 1, 2020

How do you practice social distancing when documents need to be executed? Former partner at JSS Barristers, Oliver Ho explores the legislation around using electronic signatures.

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Alberta’s Minor Injury Regulation (MIR) - 5 Things to Know

September 17, 2019

Maureen McCartney-Cameron lists 5 things that you should know about Alberta’s Minor Injury Regulation.

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Alberta Accident (“Section B”) Benefits - 5 Things to Know

June 5, 2019

Maureen McCartney-Cameron lists the 5 things you should know regarding Alberta accident benefits.

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Wrongful Death Claims - 5 Things to Know

February 20, 2019

Although no amount of money can replace the life of a loved one, the family members of the deceased may have legal recourse if their death was the result of the wrongful act of another. Here are 5 things one should know when making a wrongful death claim.

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