A Corporation's Action Against Its Former Directors: When Is It Statute-Barred?

It is well established in corporate law that directors of a corporation - who have been given broad powers to oversee and direct the business of the corporation - owe a fiduciary duty to the corporation they serve, and must discharge such duty by acting in the company's best interests. If a director breaches his or her fiduciary duty, and the corporation wishes to commence a legal proceeding against the culpable director, when will the limitation period start to run for that action?

The answer to this question is not straightforward, in spite of Ontario's basic two-year limitation period. This issue is discussed in my recent paper, "A Corporation's Action Against Its Former Directors: When Is It Statute-Barred," (2009), Volume XIV, No. 4, Corporate Liability 878-883.

Feel free to contact me if you would like to receive a copy of this paper.

Communications in Furtherance of Unlawful Conduct – An Exception to Solicitor-Client Privilege

As a general rule solicitor-client privilege is considered sacrosanct in Canada. However, it has been subject to an established principle that where the communications with the lawyer are criminal or made with the purpose of obtaining legal advice to facilitate the commission of a crime or a fraud, privilege is lost. This has been called the "future crime and fraud" exception. Over the past 20 years, lower courts in Canada have been divided on the issue of whether this exception should be expanded to include other unlawful conduct.

I authored an article with my colleague, Robyn Ryan Bell, to consider the different lines of authority and discuss the implications for counsel in light of the unsettled state of the law in this area. Please feel free to contact me if you would like a copy of this paper.

Commercial Lease Dispute: Intersection of Time Being of the Essence and Anticipatory Late Performance

There was a three-year lease agreement between Spirent Communications as the landlord and Quake Technologies as the tenant. It was anticipated that the leased office space would not be available until at least six weeks after the date specified in the lease agreement. In light of this anticipated delay, the tenant terminated the lease agreement. The tenant sued the landlord for damages. The question is who should be compensated for damages.

See my publication, "Spirent Communications v. Quake Technologies: A look at intersection of time being of the essence and anticipatory late performance", The Advocates Quarterly, Vol. 34, No. 4.

Follow this link for a copy of the article: http://www.bennettjones.com/Images/Guides/update3752.pdf

Who Should Pay For Electronic Discovery?

Electronic discovery has become a common issue for most litigation matters. If it is not handled with caution or restraint, it can be financially prohibitive or crippling. This paper aims to answer the question of who should bear the costs of retrieving and reviewing electronic documents, if an expansive discovery is insisted by the opposing parties.

See my article, "E-Discovery: Should the Discovery Costs Be Shifted to the Requesting Party?", published at The Advocates' Quarterly, Vol. 33, No. 4, pp. 419-436.

Follow this link for the article:

http://www.bennettjones.com/Images/Guides/update3301.pdf

Bank's duty of care to the beneficiaries of freezing orders

June 1, 2007 - Huang, Rebecca, "The House of Lords Concludes that Bank Owes No Duty of Care to the Beneficiary of Freezing Orders: Custom and Excise Commissioners v. Barclays Bank plc", Banking & Finance Law Review, Vol. 22 No. 3

http://www.bennettjones.com/Images/Guides/update3025.pdf