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Lerners' Monthly Lists
January 2017
 
Our inaugural Netletter for 2017 includes a topical case regarding civil contempt.
 
December 2016 also saw the Court of Appeal release some interesting decisions regarding libellous blog posts, a summary judgment motion dealing with auditor’s negligence, interpretation of “replacement cost” in an insurance policy, and certification of a global class action.
 
On an entirely different note, this month’s authors, Yola Ventresca and Alex Sharpe, also bring you their Top Five Fun Facts about Presidential Inaugurations. The “fun” facts about this year’s inauguration will have to wait for another day.

Stuart Zacharias
Editor and Chair, Lerners Appeals Group
 
 

In This Issue
 
 
Top 5 Civil Appeals from the Court of Appeal
1. Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2016 ONCA 916 (Cronk, Blair and MacFarland JJ.A.), December 6, 2016
 
2. Carter v. Intact Insurance Company, 2016 ONCA 917 (Laskin, Pepall and Brown JJ.A.), December 6, 2016
 
3.  Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922 (Hoy A.C.J.O., Benotto and Huscroft JJ.A.), December 8, 2016
 
4. Greenberg v. Nowack, 2016 ONCA 949 and 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951 (Strathy C.J.O., LaForme and van Rensburg JJ.A.), December 16, 2016
 
5. Awan v. Levant, 2016 ONCA 970 (Feldman, Simmons and Rouleau JJ.A.), December 22, 2016 
  
 
Top 5 Civil Appeals from the Court of Appeal
 
1. Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2016 ONCA 916 (Cronk, Blair and MacFarland JJ.A.), December 6, 2016
 
In this case, a majority of the Court of Appeal certified a global class action despite 98% of the proposed class members being non-residents of Ontario.

Excalibur Special Opportunities LP (“Excalibur”) was one of 57 investors (50 of which were American) that lost money in a high-risk investment in an American corporation, Southern China Livestock International Inc. (“Southern China”). Excalibur invested US $950,000.00 after reviewing a Private Placement Memorandum that included an audit report prepared by the defendant, a Montreal and Toronto based accounting firm, “page for page, word for word.” However, approximately one year later, Southern China filed a mandated report that revealed its shares were worthless. As the motion judge described it, “Southern China Livestock went dark, and its shares and warrants are now worthless”.  more...
 
2. Carter v. Intact Insurance Company, 2016 ONCA 917 (Laskin, Pepall and Brown JJ.A.), December 6, 2016
 
The appellants owned an income property in Ottawa. The property was comprised of one, two and three storey buildings containing fifteen residential units and thirteen commercial units. When a fire caused significant damage to the property, the appellants decided to demolish the entire site and build an eight and a half storey condominium.
 
The buildings were insured by the respondent, Intact Insurance Company, from whom the appellants had purchased replacement cost and building by-law coverage. The appellants sought compensation under those extensions of coverage. For its part, Intact declined to pay the replacement cost because the proposed condominium was not a “replacement”. It refused to pay for building code upgrades for a similar reason. Instead, Intact paid the appellants the cash value of the damaged property.  more...
 
3. Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922 (Hoy A.C.J.O., Benotto and Huscroft JJ.A.), December 8, 2016
 
In 1998, an accounting fraud was discovered at a publicly traded company, Philip Services Corp. (“Philip”). As a result, Philip’s financial statements were materially restated. Philip’s financial collapse followed.
 
Canadian Imperial Bank of Commerce and High River Limited Partnership sued Deloitte and Deloitte-Verein (the international association of accounting firms of which Deloitte was the Canadian member) on their own behalf and on behalf of other lenders (the “Original Lenders”) – who, collectively, advanced approximately US $1,000,000,000 to Philip under a 1997 US $1,500,000,000 credit agreement (the “Credit Agreement”) – and their successors and assigns (collectively the “Lenders”). more...
 
4. Greenberg v. Nowack, 2016 ONCA 949 and 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951 (Strathy C.J.O., LaForme and van Rensburg JJ.A.), December 16, 2016

In these two related appeals, the Court of Appeal considered the test for civil contempt as set out by the Supreme Court in Carey v. Laiken, 2015 SCC 17. Both appeals arose from attempts to enforce judgments against Steven Nowack.
 
Joseph and Pepi Greenberg commenced an action against Nowack claiming the return of funds which Nowack had purported to invest on their behalf. The action was settled for $3.7 million. The settlement required Nowack to make payments to the Greenbergs in eight installments and to consent to judgment in the event of default. After Nowack defaulted, the Greenbergs obtained a judgment in the amount of $3,552,000.  more...
 
5. Awan v. Levant, 2016 ONCA 970 (Feldman, Simmons and Rouleau JJ.A.), December 22, 2016
 
The appellant, Ezra Levant, published posts to his online blog regarding a June 2008 hearing before the British Columbia Human Rights Tribunal. The hearing arose out of a protracted dispute between Maclean’s magazine and the respondent law student, Khurrum Awan, regarding an October 2006 cover story entitled “The future belongs to Islam”.
 
The appellant wrote a series of posts entitled “Awan the liar”, in which he stated that the respondent was lying about whether he and his colleagues asked Maclean’s to publish a response to the article from a mutually acceptable author. The posts also stated (among other things) that the respondent was engaged in a “shakedown” of Maclean’s and was one of a group of anti-Semites. The respondent served a libel notice and later commenced a defamation action.  more...


Top 5 Fun Facts about Presidential Inaugurations
            
Having just witnessed the uniquely American pageantry of a presidential inauguration, here are five fun facts about inaugurations past.
 
5. It went largely unnoticed at the time but John F. Kennedy’s inauguration was nearly cut short when the podium caught fire. Less charitable critics of America’s first and to date only Catholic president must have seen a providential sign in the fact that flames broke out just as Cardinal Richard Cushing was offering the prayer invocation. JFK, it is said, took it all in stride, and even managed a smile. Why the smile? “Some like it hot”, he may have been thinking.
 
4. You might say that Barack Obama’s inauguration made history in more ways than one. In 2009, America’s first African-American president had to be sworn in a second time because Obama – following Chief Justice John G. Robert’s lead – incorrectly recited the oath of office during the inauguration ceremony. Obama declared, “I will execute the office of President of the United States faithfully”. Word order matters to the world order. The oath declares that the President “will faithfully execute” the office. Constitutional scholars were confident that the ‘first’ inauguration was perfectly legitimate but Obama and the Chief Justice agreed to a do-over at the White House the next day. This time, the President faithfully followed the words of the Chief Justice who in turn faithfully followed the actual words of the oath. And history was made, again.

3. John Quincy Adams made history in 1825 when he became the first President to be sworn in wearing long trousers instead of the more fashionable knee breeches that were customary for the grand occasion. Evidently eager to secure his place in the annals of presidential inauguration fun facts, Adams also was the first president to forgo the Bible while taking the oath of office. He chose instead to place his hand on a constitutional law book, one of only three presidents not to be sworn in using a Bible. The long trousers caught on. Constitutional law books went the way of the knee breech, at least as far as presidential inaugurations are concerned.

2. On his second inauguration in March 1793, George Washington delivered the shortest inaugural address in history. It began auspiciously enough, with Washington declaring solemnly, “Fellow citizens, I am again called upon by the voice of my country to execute the functions of its Chief Magistrate”. The man known already in his lifetime as the ‘father of his country’ evidently felt that his storied record of military and political accomplishment spoke for itself. Before formally taking the oath of office, and just in case those in attendance may have forgotten, Washington stipulated that the Constitution, whose drafting he had overseen, required an oath of office. Which he then delivered. Mission accomplished in just 135 words.

1. In 1841, William H. Harrison delivered the longest inaugural address in history. It ran about 8,445 words long, lasting close to two hours; twice the length of most inaugural addresses. What is more, Harrison delivered his epic speech during a snowstorm. Verbosity and the cold took its toll. Harrison was dead of pneumonia a month later. And so, the most long-winded inaugural address in presidential history ushered in the shortest presidential term in history. A powerful affirmation of that sage advice to all public speakers: keep it brief.


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