Contractual Interpretation Five Years after Sattva |

Contractual Interpretation Five Years after Sattva

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Substantive: 2.0
2 hours
Geoff Hall
Brandon Kain
John McCamus
Angela Swan
Toronto Lawyers Association (TLA)
2 hours
$139.00 plus tax
Includes Handouts

The teachings of Sattva shall deal with four topics: the standard of review, some recent cases in England, the role of “implied terms”, and the parol evidence rule.

From the perspective of contractual interpretation, Sattva provides two teachings:

  1. Contractual interpretation is not a purely textual exercise and draws heavily on the factual matrix (see in particular paras. 42-55). This provides some lessons for trials.
  2. Decisions interpreting a contract are generally questions of mixed fact and law attracting a deferential standard of appellate review (see in particular paras. 56-58). This provides some lessons for appeals.

The fact that Sattva is relevant to both trials and appeals is reflected by the number of times it has been cited: 517 times by trial courts and 379 times by appellate courts.


Geoff Hall

Geoff R. Hall is a partner in the litigation group at McCarthy Tétrault LLP. His practice covers a broad range of corporate/commercial litigation, including contracts, banking, shareholder disputes, tax, bankruptcy/restructuring, administrative law, and Aboriginal law. In 2018 he was named one of Canadian Lawyer’s Top 25 Most Influential Lawyers in Canada. He is also listed in the current edition of the Lexpert/ALM 500 Directory, a guide to the 500 leading lawyers in Canada, and in the current edition of Canadian Legal Lexpert Directory as a leading lawyer in the area of corporate commercial litigation.

Mr. Hall’s recent major engagements include 1169822 Ontario Limited v. The Toronto- Dominion Bank, 2018 ONSC 1631 (in which the trial judge commented that the opposing expert’s opinion was “utterly shattered” by Mr. Hall’s cross-examination), Slate Management Corporation v. Canada (Attorney General), 2017 ONCA 763 (in which he advanced an innovative mootness argument on appeal), and Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 (appeal to the Supreme Court of Canada involving the test for rectification in a tax context), and defending TD Bank in an action for $5.5 billion arising from the collapse of Stanford International Bank.

Mr. Hall is also is a broadly published author, his most notable work being Canadian Contractual Interpretation Law. It is widely considered to be the leading treatise on contractual interpretation in Canada. It has been cited multiple times by the courts, including 12 times by the Supreme Court of Canada. Mr. Hall clerked for the Supreme Court of Canada in 1991–92, and was admitted to the Ontario Bar in 1993. He holds an LL.B from the University of Toronto and an LL.M. from Harvard Law School.

Brandon Kain

Brandon Kain is a partner in our Litigation Group in Toronto. His practice focuses on appellate litigation, administrative and regulatory law, commercial litigation and class actions. He has successfully acted for a wide variety of clients in major litigation, including AstraZeneca Pharmaceuticals, Bell Canada, Cathay Pacific Airways, Chrysler, HSBC Holdings, Lundbeck, the Ontario Lottery and Gaming Corporation and Syngenta.

He has extensive experience in appellate advocacy, having acted in 16 appeals before the Supreme Court of Canada, as well as cases in the Federal, British Columbia and Ontario Courts of Appeal. Seven of his cases have been included in Lexpert Magazine’s annual list of the Top 10 Business Decisions in Canada, with three ranked #1. He is co-founder of our National Appellate Litigation Group and editor-in-chief of its award-winning blog, Canadian Appeals Monitor. Brandon frequently acts in judicial reviews and administrative appeals. He delivered the oral argument for Bell Canada and the National Football League on the standard of review in the Supreme Court of Canada’s administrative law trilogy, heard December 4- 6, 2018. He has also acted in several other leading administrative law cases, including: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54; Green v. Law Society of Manitoba, 2017 SCC 20; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34; and Air Canada v. Toronto Port Authority, 2011 FCA 347.

Brandon is a regular writer and speaker on legal issues. He has written or co-written articles in the Advocates’ Quarterly, Alberta Law Review, Annual Review of Civil Litigation, Banking and Finance Law Review, Canadian Bar Review, Canadian Business Law Journal and Supreme Court Law Review. His publications have been cited in 14 cases by the Supreme Court of Canada and the Alberta, British Columbia, Manitoba, Ontario and Quebec courts. In addition, he has presented for the Canadian Bar Association, the Canadian Centre for Ethics & Corporate Policy, Canadian Defence Lawyers, the Canadian Energy Law Foundation, the Canadian Institute, the Commons Institute, the Law Society of Upper Canada, Osgoode Professional Development, the Prospectors and Developers Association of Canada and the University of Toronto Faculty of Law.

Brandon obtained his LL.B. (Honours) from the University of Toronto in 2003, where he received the Fasken Martineau DuMoulin LLP Award for Academic Excellence in first year, and graduated with Honours Standing. He also obtained his MA in philosophy from the University of Toronto in 1999 and his BA (First Class Honours) in philosophy from Queen's University in 1998.

John McCamus

John brings more than 40 years of legal experience to our clients’ complex private law issues. He advises on a broad range of transactions and litigation matters. Clients value his practical and thoughtful solutions. A former dean of Osgoode Hall Law School, John is known globally for his extensive research and creative teaching. He has specific expertise in restitution law, contract law, commercial law and information practices law.

Before joining the faculty at Osgoode, John articled with a Toronto firm and served as a law clerk at the Supreme Court of Canada for Chief Justice Laskin. Clients rely on John as an expert witness in Ontario law in cases in Canada, Europe and the U.S. He acts for clients at various levels of court in Ontario and at the Supreme Court of Canada. In addition, John has significant experience as an adjudicator in human rights and labour disputes and as an arbitrator in commercial disputes. John is a professor of law at Osgoode Hall Law School. He was also the dean of Osgoode Hall Law School.

Angela Swan

Angela Swan, B.Com., LL.B. (U.B.C.), B.C.L. (Oxon.), is a member of the Law Society of Upper Canada. She is Counsel and a member of the Corporate Finance and Corporate/Commercial Practice Groups at Aird & Berlis LLP in Toronto. She is an Adjunct Professor at Osgoode Hall Law School of York University where she teaches courses on Contracts. She was a Professor of Law at the Faculty of Law, University of Toronto, from 1965 to 1988, and at McGill University from 1996 to 2002. She has also been a sessional lecturer at Queen’s University and a visiting Lansdowne Professor at the University of Victoria. She was previously a Partner at Aird & Berlis LLP, and an associate at Stikeman Elliott LLP in Montreal. Her areas of expertise include contract law, corporate law and the conflict of laws. Martindale-Hubbell has granted her an AV rating signifying the highest level of legal ability as well as an extremely high adherence to the professional standards of conduct, ethics, reliability and diligence.

She is the author of many chapters in books, articles, papers, presentations and case comments. Her principal work is, Swan, Adamski & Na, Canadian Contract Law, 4th ed. (Toronto: LexisNexis, 2018). The first edition of this text was awarded the Walter Owen Book Prize, 2006, by the Canadian Bar Association. She is a co-author of the Contracts volume for Halsbury’s Laws of Canada and of Swan, Bala & Adamski, Contracts: Cases, Notes and Materials, 9th ed. (Markham, ON: LexisNexis, 2015). In 2016 she was given a Distinguished Service Award by the Ontario Bar Association. At a Call to the Bar Ceremony on January 25, 2019, Angela received a Doctor of Laws, honoris causa, from the Law Society of Ontario.

She has five children and fourteen grandchildren who give her more joy than she had ever believed possible.

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