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The Supreme Court Holds That Securities Disgorgement Orders Survive Bankruptcy

In ruling that a securities regulatory authority's disgorgement orders (a sanction stemming from misconduct) survive a bankruptcy discharge while its administrative penalties do not, the Supreme Court of Canada endorsed the...more

Delaware Court Affirms High Threshold for Breach of Directors' Caremark Duties

In a recent case, Bricklayers Pension Fund of Western Pennsylvania (derivatively on behalf of Centene Corporation) v Brinkley (Centene), Delaware's Court of Chancery dismissed “Caremark duty claims”—named after the 1996 case...more

Canadian Government (Finally) Provides Certainty on Criminal Interest Rates

As we have reported in prior blogs, the Government of Canada is moving forward with plans to lower the criminal interest rate to an annual percentage rate (APR) of 35 percent (the current criminal interest rate, being an...more

An Update on Criminal Interest Rate Amendments in Canada

On April 16, 2024, the Deputy Prime Minister and Finance Minister presented the Canadian Government’s 2024 budget. The government reiterated that it was “reinforcing its efforts to crack down on predatory lending, and moving...more

Delaware Courts Confirm High Standard for Breach of Oversight Duty Applies Equally to Officers and Directors

In the United States, corporate directors and, as confirmed by the Delaware Court in McDonald’s Corp. Stockholder Derivative Litigation (McDonald), corporate officers owe, as a subset of their duty of loyalty, a duty to...more

Government Announces Exemptions to the Proposed Lower Criminal Interest Rate

As we previously reported in April 2023 in our blog, It's Official—Proposed Criminal Interest Rate Amendments Introduced, the Government of Canada is proposing to lower the current criminal rate of interest to 35 percent. At...more

Privilege is Sacrosanct: Ontario Court of Appeal Affirms High Threshold for Abrogation of Privilege

Legislation must show a clear, explicit and unequivocal intention to abrogate privilege before a party is required to disclose privileged information, the Ontario Court of Appeal reiterated in its recent decision of Ontario...more

It's Official—Proposed Criminal Interest Rate Amendments Introduced

On April 20, 2023, the Canadian government introduced Bill C-47, the Budget Implementation Act, 2023, No. 1 (the Bill), which includes the long awaited proposed amendments to the criminal interest rate....more

Canadian Government Announces Intention to Lower Criminal Interest Rate

As discussed in our blog, Government Seeks Feedback on Lowering the Criminal Rate of Interest, the Government of Canada conducted consultations in respect of the criminal interest rate under the Canadian Criminal Code. We...more

Force Majeure Clauses and COVID-19 Pandemic Impacts—An Assessment of Ontario Judgments Three Years On

Early on in the COVID-19 pandemic, many businesses began to scrutinize force majeure clauses in their commercial contracts and leases. Such contractual clauses, when engaged, either permanently or temporarily relieve the...more

Delaware Court Extends a Director's Duty of Oversight to Officers—What Could This Mean for Canadian Directors and Officers?

In the United States, corporate directors owe, as a subset of their duty of loyalty, a duty to monitor and oversee the operations of the company, referred to as the "duty of oversight" in this blog. This duty is known as the...more

Entire Agreement Clause and Due Diligence Cannot Oust Fraudulent Misrepresentation

The defence of misrepresentation is still alive in circumstances involving entire agreement clauses and opportunities for due diligence, the Ontario Court of Appeal recently held in 10443204 Canada Inc. v 2701835 Ontario...more

Government Seeks Feedback on Lowering the Criminal Rate of Interest

The government of Canada is seeking feedback on proposed changes to lower the criminal rate of interest (currently set at 60%), with a focus on high-cost installment loans. The criminal interest rate provisions in the...more

An Update on Canada's Efforts to Amend the Criminal Rate of Interest

On March 22, 2022, Bill S-239, An Act to amend the Criminal Code (Criminal Interest Rate) went to second reading at the Senate. The Bill proposes changes to section 347(2) of the Criminal Code which would reduce the current...more

Stoneway: Use of the CBCA as a Cross-Border Restructuring Tool

In May 2022, the Canada Business Corporations Act (CBCA) was used to implement a cross-border and international restructuring of a group of companies (collectively known as Stoneway),1 whose principal business is the...more

DIP Loans and the Criminal Rate of Interest

In Port Capital (EV) Inc. (Re), 2022 BCSC 370, the Supreme Court of British Columbia recently declined to grant a declaration that the interest rate and fees charged under a debtor-in-possession (DIP) loan did not violate...more

Drawing Plausible Inferences on Limitation Period Questions: The SCC Articulates the Test for Discoverability

A claim is "discovered" (and therefore the statutory limitation period ordinarily begins to run) when a plaintiff has actual or constructive knowledge of the material facts upon which a plausible inference of liability on the...more

You Oughta Know: The General Principles of Contractual Interpretation Apply to Releases

Releases are to be interpreted pursuant to the general principles of contractual interpretation, the Supreme Court of Canada recently held in Corner Brook (City) v Bailey, 2021 SCC 29 [Corner Brook]. The decision overtakes an...more

Significant Changes Proposed to the Criminal Interest Rate

On May 11, 2021, Bill C-274, An Act to amend the Criminal Code (Criminal Code Interest Rate) received first reading in the House of Commons. The Bill proposes to amend the definitions of "criminal rate" and "interest" under...more

Supreme Court of Canada Imposes Good Faith Limits on the Exercise of Contractual Discretion

Good faith requires a party who has a discretionary power under a contract to exercise that discretion in accordance with the purposes for which it was conferred, the Supreme Court of Canada recently held in Wastech Services...more

Supreme Court of Canada Affirms Anti-Deprivation Rule

The common law anti-deprivation rule is alive and well in Canada, the Supreme Court of Canada held in an 8-1 decision in Chandos Construction Ltd. v Deloitte Restructuring Inc., 2020 SCC 25 [Chandos]. Under the rule, parties...more

COVID-19 Considerations for Directors

On March 11, 2020, the World Health Organization officially declared COVID-19 a pandemic. The ramifications of COVID-19 are being experienced worldwide, with President Trump suspending all travel from Europe, and even the NBA...more

Force Majeure Clauses and Risk Management in the Face of COVID-19

The novel Coronavirus (COVID-19) was first reported from Wuhan, China, on December 31, 2019, and has been rapidly spreading since, with the outbreak now declared a global health emergency by the World Health Organization...more

Supreme Court Denies Leave to Appeal Dismissal of Auditor Negligence Claim

On May 2, 2019, the Supreme Court of Canada denied leave to appeal from the Ontario Court of Appeal’s decision in Lavender v Miller Bernstein LLP1. The Supreme Court’s decision marks the end of a 14-year legal battle that has...more

Equity Kickers and the Criminal Rate of Interest: Part II

Private equity and alternate lenders often take a basket of rights when investing in an entity. The basket may include equity, options, warrants and/or debt. In the case of debt financing, lenders often negotiate equity...more

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