Russell Kruger

Russell Kruger

Bennett Jones LLP

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Supreme Court of Canada Revisits Oppression

A corporation's failure to follow legal formalities under the Canada Business Corporations Act, RSC 1985 c C-44 [CBCA] does not, by itself, establish oppression, the Supreme Court recently held in Mennillo v Intramodal inc.,...more

11/22/2016 - Appeals Business Corporation Act Canada Oppression Remedy Shareholder Litigation Shareholders Supreme Court of Canada

Deference for Assessment Review Boards

Supreme Court of Canada Upholds Reasonableness as Standard of Review - The standard of review of a composite assessment review board’s decision to increase a property tax assessment is reasonableness, the Supreme Court...more

11/8/2016 - Canada Property Tax Reasonableness Factors Shopping Centers Standard of Review Supreme Court of Canada

When is Communication Between a Client’s Accountant and Lawyer Privileged?

Communications between lawyers and their clients’ accountants or other non-legal professionals are not in themselves privileged but can be where the communication is in “furtherance of a function essential to the...more

10/6/2016 - Attorney-Client Privilege Canada Privileged Communication Tax Practitioner Privilege

Canadian Contractual Interpretation Just Got More Difficult

Supreme Court of Canada Revives Correctness Test for Interpreting Standard Form Contracts - There is a new exception to the new Canadian approach for reviewing the interpretation of contracts: a trial court’s...more

9/19/2016 - Canada Contract Disputes Contract Interpretation Corporate Counsel Standard Forms Supreme Court of Canada Young Lawyers

Whole Agreement Clause Upheld by Court of Appeal

A properly-worded whole agreement clause is effective to exclude liability for innocent and negligent misrepresentations, the Alberta Court of Appeal recently held in Houle v Knelsen Sand and Gravel Ltd, 2016 ABCA 247...more

9/9/2016 - Appeals Canada Contract Drafting Contract Terms Negligent Misrepresentation Representations and Warranties

Internal Investigations and Privilege: A Redux

An internal investigation into a workplace accident was privileged, and thus protected from disclosure, the Alberta Court of Queen’s Bench recently held in Alberta v Suncor Energy Inc, 2016 ABQB 264 [Suncor]. The Court found...more

5/18/2016 - Attorney-Client Privilege Canada Confidential Information Internal Investigations OHSA Privileged Communication Workplace Injury

Trial Court’s Interpretation of a Contract Much Harder to Overturn, the Supreme Court of Canada Confirms

To overturn a trial court’s interpretation of a contract on appeal, it is not enough that the trial court was wrong, it must be really wrong, the Supreme Court of Canada recently affirmed in Heritage Capital Corp v Equitable...more

5/9/2016 - Arbitration Canada Contract Interpretation Supreme Court of Canada

Litigious Corporate Plaintiffs Take Note: Large Security for Costs Award for Multiple Defendants

In a hefty security for costs award in favour of multiple defendants, the Alberta Court of Queen’s Bench recently held that the Court may consider the global effect of the costs of multiple proceedings by a single corporate...more

2/26/2016 - Canada Litigation Fees & Costs

One Arbitration Binds the Next: Alberta Court of Appeal Says Res Judicata Applies to Arbitrations

The doctrines of res judicata and issue estoppel can, as a matter of law, apply to subsequent arbitration proceedings, the Alberta Court of Appeal recently held in Enmax Energy Corporation v TransAlta Generation Partnership,...more

1/26/2016 - Arbitration Estoppel Power Purchase Agreements Res Judicata

Are CCAA Proceedings a Panacea for Assignment or Novation Without Consent?

A purported assignment of a contract without consent and an alleged novation were ineffective, the BC Court of Appeal recently held in Barafield Realty Ltd. v. Just Energy (B.C.) Limited Partnership, 2015 BCCA 421 [Barafield]...more

11/12/2015 - Canada CCAA Consent to Assignment Novation Private Utility Rental Property

Is an Internal Investigation Privileged?

An internal investigation into whistleblower allegations was privileged, thus protected from disclosure, the Alberta Court of Queen’s Bench recently held in Talisman Energy Inc v Flo-Dynamics Systems Inc, 2015 ABQB 561...more

9/23/2015 - Anonymity Attorney-Client Privilege Canada Conflicts of Interest Internal Investigations Privileged Documents Whistleblowers

Dangers of a Self-Drafted Letter Agreement

Court Unwilling to Impose a Reasonableness Limit on Expenditures - Exploration expenditures incurred to earn into a mining claim did not have to be reasonable, the B.C. Court of Appeal recently held in American Creek...more

7/21/2015 - Canada Contract Disputes Contract Drafting Contract Interpretation Mining

Inconsistent Administrative Tribunal Decisions: The Alberta Court of Appeal Weighs In

Conflicting interpretations of the same statute by an administrative tribunal are unlikely to be reasonable, let alone correct, the Alberta Court of Appeal recently held in Altus Group Limited v Calgary (City), 2015 ABCA 86...more

3/27/2015 - Canada Statutory Interpretation Tribunals

New Good-Faith Duty of Honesty in Contractual Performance Recognized by Supreme Court of Canada

In a precedent setting case, the Supreme Court of Canada has: (1) recognized good faith as a "general organizing principle" of Canadian contract law; and (2) recognized a new duty of "honest performance", which requires...more

11/26/2014 - Canada Contract Formation Good Faith SCC

New Good-Faith Duty of Honesty in Contractual Performance Recognized by Supreme Court of Canada

A new duty of honest performance has been imposed on all Canadian contracts by the Supreme Court of Canada. The notion of a general and independent doctrine of good faith performance of contracts has historically been...more

11/14/2014 - Canada Contract Disputes Good Faith

Proving An Operator’s Gross Negligence: Is Intention Required?

Establishing an operator’s gross negligence requires “a degree of intentionality”, the Alberta Court of Queen’s Bench recently held in Bernum Petroleum Ltd v Birch Lake Energy Inc, 2014 ABQB 652 [Bernum]....more

11/10/2014 - Canada Gross Negligence Intent Negligence

Regulatory Proceedings and Litigation Privilege: ‘Zone of Privacy’ Bolstered in Alberta

Litigation privilege applies to regulatory proceedings where the consequences of the proceedings are significant, and the privilege cannot be excluded by statute without express and clear language, the Alberta Court of Appeal...more

6/20/2014 - Appeals Canada Litigation Privilege

Seismic Data Held by a Board: A Further Look

The Federal and Nova Scotia regulations that require oil and gas companies to submit seismic data to Nova Scotia’s offshore oil and gas board are not ultra vires, the Nova Scotia Supreme Court recently held in Geophysical...more

5/16/2014 - Canada Oil & Gas Seismic Data

Confidentiality Clauses and Privilege: A Delicate Balance

Parties to a mediation have a wide latitude to contractually shape the extent of confidentiality that applies, and even may exclude exceptions to settlement privilege, the Supreme Court of Canada recently held in Union...more

5/13/2014 - Confidential Information Contract Drafting Contract Interpretation Mediation SCC

Myth of Trial No Longer Governs: Alberta Embraces New Summary Judgment Test

Effecting a cultural shift, a new summary judgment test has been embraced by the Alberta Court of Appeal in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 [Windsor]. This new test will make it easier to obtain summary...more

3/24/2014 - Canada Summary Judgment

Good News for Corporate Plaintiffs in Alberta?

A defendant seeking a security for costs order against a corporate plaintiff faces a more stringent test than other defendants, the Alberta Court of Queen’s Bench recently held in Amex Electrical Ltd v 726934 Alberta Ltd,...more

2/11/2014 - Business Corporation Act Canada Residency Status

Default Notices and Freehold Leases: Take Two

There may be a sign that last year’s dire consequences for a freehold oil and gas lessee who does not quickly respond to a default notice by commencing legal proceedings may be moderating somewhat, at least in certain...more

1/17/2014 - Canada Mineral Leases Natural Resources Notice of Default Oil & Gas

Damages for Royalty Error Limited to Two Years: Ignorance of Mistake May Not Stop Limitations Clock

A royalty holder must make reasonable inquires to confirm that a royalty has been properly paid and will be limited to a two-year recovery if not, the Alberta Court of Appeal has ruled in Canadian Natural Resources Limited v...more

11/29/2013 - Canada Oil & Gas Royalties Statute of Limitations

Seismic Data Held by a Board: A Warning Before You Look

Caution should be exercised when requesting, reviewing or sharing seismic data held by a regulatory authority, as demonstrated by the latest decision in a series of lawsuits commenced by Geophysical Service Incorporated...more

11/20/2013 - Canada Confidential Information Copyright Oil & Gas Seismic Data Trade Secrets

Broken a Contract? The Alberta Court of Appeal May Have Good (or Bad) News For You

A recent decision of the Alberta Court of Appeal has opened the door for defendants in contract cases to implicate other would-be contract-breakers, thereby potentially reducing the defendants’ exposure to liability while...more

10/8/2013 - Breach of Contract Canada

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