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The Most Important Civil Litigation / Administrative Law Developments of 2023

Torkin Manes LegalWatch

As 2023 draws to a close, it is time to take stock of the litigation and public law decisions that shaped Ontario jurisprudence this year.  

Torkin Manes’ LegalWatch e-newsletter canvassed a range of themes, including the use of artificial intelligence in civil litigation and public law adjudication, the duty of good faith in commercial agreements, and the limited right to appeal in commercial arbitration awards.

Artificial Intelligence:  The Good, the Bad and the Ugly

There is no question that, in the coming decade, AI will revolutionize both the practice of litigation and public law adjudication.  

2023 saw the genesis of a number of cases and guidelines about how Courts and administrative adjudicators are grappling with the use of AI as both an adjudicative and advocacy tool.

“Is it Unfair for AI to Make Administrative Decisions?” canvasses the question of whether it is fair for AI to assist public law decision-makers in reaching a decision, based on the 2023 Federal Court decision, Haghshenas v. Canada (Minister of Citizenship and Immigration), 2023 FC 464.

As some of the perils of AI emerge, August’s LegalWatch piece, “Time to Regulate the use of AI in Litigation?” poses the question of whether it is time for regulators and law societies to provide guidance about how AI should be employed in advocacy and adjudication processes. 

Implicit in the use of AI as an adjudicative tool is whether the inherent biases of the Internet, be they racial, gender-based, or otherwise, will taint a tribunal’s decision-making process.

October’s article, “Why 1999 Matters to the Use of AI in Tribunal Decision-Making” posits the theory that the legal principles governing reasonable apprehension of bias in administrative law have resonance now more than ever, as tribunals employ AI to assist in their adjudicative tasks.

Good Faith Contractual Performance

All contracts in Canada are subject to a common law duty of good faith, which includes the duty to exercise contractual discretion reasonably and the duty of honest contractual performance, i.e., contracting parties must not lie to one another.

March’s LegalWatch piece, “The Right of First Refusal and Good Faith in your Business Contract:  What You Need to Know”, examines the impact of the Ontario Court of Appeal’s decision in Greta Energy Inc. v. Pembina Pipeline Corp., 2022 ONCA 783. The decision affirms that parties to a commercial agreement that includes a right-of-first-refusal (ROFR) provision can act in their own economic self-interest.

The practical implications for what the duty of good faith means in the negotiation and performance of commercial agreements is examined in the June edition of LegalWatch, “What Every Businessperson Needs to Know about Contractual ‘Good Faith’”.

This September’s edition of LegalWatch, “Proof of Loss for Breach of Good Faith in Your Business Contract” grapples with the question of whether damages can be presumed for a breach of good faith in a commercial contract. The piece highlights the Ontario Court of Appeal’s analysis in Bhatnagar v. Cresco Labs Inc., 2023 ONCA 401, which establishes that, as with any breach of contract, the plaintiff has the onus of proving its loss arising from the violation of good faith.

November’s LegalWatch article, “What Every Shareholder Needs to Know About the Supreme Court of Canada’s Latest Word on Good Faith”, addresses the Supreme Court of Canada’s latest word on good faith, Ponce v. Société d’investissement Rhéaume ltée, 2023 SCC 25. In Ponce, the SCC held that parties to a shareholders’ agreement owe one another an obligation not to conceal or lie about potential lucrative offers that could affect shareholder value.

Appealing Commercial Arbitration Awards

Where parties choose to resolve their matters by way of commercial arbitration and to divorce their claim from the civil litigation system, they cannot seek refuge in the Courts when things go awry.  

January’s LegalWatch, “Two Key Lessons When Appealing Arbitration Awards”, discusses the judiciary’s reluctance to allow appeals from commercial arbitral awards generally, as reflected in the Ontario Court of Appeal’s decision, Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 5516.

The narrow nature of appeals from commercial arbitral awards was also discussed in “Why the Words in Your Business Contract’s Arbitration Clause Matter”, which analyzes the Ontario Court of Appeal’s decision in Baffinlands Iron Mines LP v. Tower EBC, 2023 ONCA 245. Baffinlands debates a party’s right to appeal where an arbitration clause provides that the arbitration is “final and binding”.

Legitimate Expectations in Public Law Decision-Making

Since the Supreme Court of Canada’s leading case, Baker v. Canada, [1999] 2 S.C.R. 817, the doctrine of legitimate expectations has been given short thrift in Canadian jurisprudence.  

The doctrine of legitimate expectations holds State decision-makers to their promises that a certain procedure will be followed in the administrative adjudication process.

February’s LegalWatch article, “What You Need to Know About Your ‘Legitimate Expectations’ in a Fair Tribunal Procedure”, canvasses some of the most important elements of the doctrine and critiques its limited use by administrative law practitioners.

Appellate Advocacy

Launching an appeal can be a daunting task for the unversed litigator. Expertise matters.  

July’s LegalWatch article, “Top 5 Errors Lawyers Make When Pursuing a Civil Appeal”, canvasses some of the most common errors lawyers and clients make when seeking to appeal a lower Court or tribunal decision. 

The article offers practical advice on how to avoid the pitfalls of appellate advocacy and why retaining an expert in the area is critical.

Marco P. Falco is a Partner in the Litigation Department at Torkin Manes LLP who focuses on appellate advocacy and judicial review.  He is also the author of Torkin Manes LegalWatch. You may contact Marco with your legal inquiries at mfalco@torkin.com. Please note that a conflict search will need to be conducted before your matter is discussed.