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.

Category: Corporate & Commercial Litigation

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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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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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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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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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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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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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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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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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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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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