Business Law Question

Select and review one law case, set of policy document(s), or agreement from the list below ( I selected North v. Metaswitch Networks Corporation) the link to the case is :

https://www.canlii.org/en/on/onca/doc/2017/2017onc…

Use the Facts, Issues, Law, Analysis, Communication/Conclusions (FILAC) method for your
selected case and review each according to the categories set out in the Rubric. Do not includea copy of the case in your submission.
In a court case, discuss the facts and issues in the case, noting the arguments presented by theplaintiff/defendant and/or appellant/respondent parties, and analyse and discuss the decision
given by the court. There may be more than one court case relating to a dispute. You shouldwork through all of them and extract the information which is relevant the course section topic:contract law, securities law, competition law, or employment law. Do not discuss costs.
Be sure to identify and discuss the ratio decidendi and the obiter dictum, if you can identifythem. This is often difficult. Examine the literature for analysis, comment, and opinion on thecase. Comment on if and how the case has influenced the law.

The assignment should be approximately 5 – 6 typed pages: single spaced; 12 pt. font;single-sided; paginated at bottom right [page x of y]; with headings. Title page, references,and individual group member insights do not count toward total pages.
12) Organization:
a. Title page.
b. Case Analysis (5 – 6 pages).
i. Use FILAC method.
ii. Eg. case name: Goodkey v. Canada Safeway Ltd., 2000 ABQB 376 (CanLII).
iii. Summary of the case is to explain the facts of the case. What happened to causethe lawsuit? This is like the Situations for Discussion in the text. It will be 1 – 2paragraphs.
iv. Legal Analysis – Briefly explain each party’s legal argument using Plaintiff andDefendant or Appellant and Respondent. What is their legal argument or position?v. Legal Analysis – Briefly explain each party’s legal argument using Plaintiff andDefendant or Appellant and Respondent. What is their legal argument or position?vi. Analysis of the court decision. What is the decision by the court on the legal issues/ facts / arguments raised? Does it make sense when compared to what you’velearned in the course? Compare and contrast what the court decided with what thecourse taught. Discuss inconsistencies, if any.
vii. Referencing is to paragraphs which are at the beginning of each paragraph by [ ]notation. As this assignment is a case summary you do not have to reference eachfact. Only reference direct quotations but keep direct quotations to a minimum.Your analysis – in your own words – is where most marks are earned.
c. References.
d. Individual insights

I have attached below an example of a different case, the assignment itself and also a mock scenario in which I need a agruement statement and I will provider more info to the tutor I choose.

Thanks in Advance

Case Title: Jack Daniels v. GreenTech Innovations Inc.
Facts: GreenTech Innovations Inc. (GreenTech), a software development company,
employed Jack Daniels to develop a data encryption software application. The contract
included various terms and clauses related to project scope, payment, delivery timeline,
and intellectual property rights. It also included a bonus for completing the work within 3
months. Daniels expected to earn about $150,000 for the work.
One of the employment contract clauses said that if any term of the contract was invalid
or unenforceable under applicable law, the rest of the contract would remain in force.
This clause is commonly referred to as the “severability clause.”
During the project, Daniels discovered that an algorithm used in the encryption software
was in violation of a newly amended Alberta Freedom of Information and Protection of
Privacy Act (FIPPA). FIPPA expressly prohibited the use of the algorithm due to security
vulnerabilities.
Daniels informed GreenTech of the issue and asked for a bit more time to re-write the
algorithm with a compliant one. The algorithm was otherwise ready, but Daniel’s
declined to deliver it to GreenTech saying he was uncomfortable with its FIPPA noncompliance. GreenTech demanded delivery of the algorithm, saying it was ready, as
written, and did not violate FIPPA. GreenTech terminated Daniels after 2½ months
because he had failed to deliver the algorithm on time. It also refused to pay any bonus.
Daniels sued GreenTech in the Alberta Court of King’s Bench for wrongful dismissal
claiming $200,000 and arguing that the early termination provision in his contract was
unenforceable as the contract included illegal terms requiring him to comply with
GreenTech’s demands even if the work violated FIPPA. GreenTech defended itself
arguing that even if any clause of the employment contract was unenforceable, the
severability clause saved the rest of the contract.
LEGAL RESEARCH & PRESENTATION ASSIGNMENT
MGMT 4230
READ ALL OF THE ASSIGNMENT INSTRUCTIONS BEFORE BEGINNING
Total Marks: See Course Outline.
SUBMIT TO D2L Dropbox. Email submissions will not be accepted.
DUE: Variable. See Class schedule.
Good luck!
GENERAL
This assignment consists of two parts: (i) a report; AND (ii) an oral presentation. Select and
review one law case, set of policy document(s), or agreement from the list below. While an
attempt has been made to get assignments that require an equal amount of work, this is not
entirely possible. The primary objective is that the class learn through the discussion that follows
the presentation of your assignment. Be aware that the assignments are of different length and
complexity. Selection is first-come, first-served – the first to select a case and inform me gets to
present it! The cases can be located at www.canlii.org.
METHODOLOGY
Use the Facts, Issues, Law, Analysis, Communication/Conclusions (FILAC) method for your
selected case and review each according to the categories set out in the Rubric. Do not include
a copy of the case in your submission.
In a court case, discuss the facts and issues in the case, noting the arguments presented by the
plaintiff/defendant and/or appellant/respondent parties, and analyse and discuss the decision
given by the court. There may be more than one court case relating to a dispute. You should
work through all of them and extract the information which is relevant the course section topic:
contract law, securities law, competition law, or employment law. Do not discuss costs.
Be sure to identify and discuss the ratio decidendi and the obiter dictum, if you can identify
them. This is often difficult. Examine the literature for analysis, comment, and opinion on the
case. Comment on if and how the case has influenced the law.
SEMINAR SCHEDULE
The seminar schedule is on the Course Outline. Some flexibility may be necessary, and there
may be minor schedule changes from time to time. However, we shall attempt to stick to the
schedule as closely as possible.
SEMINAR PRESENTATION
Your 2-person group will lead a seminar on the case in class. Be prepared to give a 10 – 15minute presentation on the designated date. Use PowerPoint slides for your presentation. In a
seminar we want discussion through questions and answers. As a guideline you should have 4
Page 1 of 4
– 5 overhead slides. Remember that your audience has read the case. Therefore, give a very
brief summary of the facts and focus on the ratio decidendi and the obiter dictum. If you need
more than 4 – 5 slides, use the board. The seminar contributes 45 of 100 assignment marks
(9% of total course mark).
REQUIREMENTS
1) Work in a group of 2 students. The mark on the assignment will be given to each group
member. You may work individually only with advance permission from the professor.
2) The assignment will be marked for clear, concise, and grammatically correct work. There will
be a deduction of 1 mark per grammatical error to a maximum of 15 marks and deduction of
1 mark per spelling error to a maximum of an additional 15 marks.
3) The penalty for late submission of the assignment will be subject to a daily deduction 10%.
4) All work is evaluated for correct grammar and spelling. This is an essay. Write using full
sentences and paragraphs.
5) Any sources must be referenced with a bibliography included according to APA referencing.
Class Notes may be used as reference. APA referencing is to be used. Refer to the
attached Assignment Requirements. Incorrect, partial, or lack of a) references, and/or b)
bibliography will result in a deduction of 5 marks each for a total of 10-mark deduction.
6) Each group member is to individually describe a personal insight relating to what you gained
from this assignment. Submit on separate pages at the end of the analysis with each
individual student’s name clearly shown on each page. About 150 – 200 words is
appropriate. This part does not count toward the assignment page total. Group members
may score differently on this part. So, final assignment grades for group members may be
different.
7) References: Example: Duplessis, O’Byrne, Enman and Gunz, Canadian Business and The
Law – Custom Edition, (2017), Nelson.
8) Referencing:
a. Quotations and paraphrase from any source must be acknowledged in the assignment.
Example of the format: (Duplessis et al, p.# or pp.##). Class Notes are based upon the
Canadian Business and The Law – Custom Edition text and therefore, the text must be
referenced, not the class notes or slides.
b. Cases: Proper reference is Case Name, date and court. Example: Goodkey v. Canada
Safeway Limited (2000) ABQB. If you quote from a case you use the paragraph
numbers, for example: paragraph 1 or [1], as set out in the case.
c. US Law. Be cautious about using internet sources. Most internet content is US-based
and sites about legal issues often concern US law. Canadian and US law are very
different. Don’t be misled. Be sure any internet sources are Canadian, such as:
i. CanLii, https://www.canlii.org/en/ab/
ii. Law Now, https://www.lawnow.org/
iii. Canadian Law Dictionary, http://www.canadianlawsite.ca/Dictionary.htm
iv. Duhaime Encyclopedia of Law, http://www.duhaime.org/
Page 2 of 4
v. Alberta Law Review, https://www.albertalawreview.com/index.php/ALR
9) Location and Case Analysis: two methods: 1. U. of C. Law Library – Bennett Jones Law
Library – Databases & Resources – Alberta, 2. www.canlii.org => Alberta => case name –
full text and search using the case name(s) – be very careful that you have exactly the right
case.
10) No Table of Contents is required.
11) The assignment should be approximately 5 – 6 typed pages: single spaced; 12 pt. font;
single-sided; paginated at bottom right [page x of y]; with headings. Title page, references,
and individual group member insights do not count toward total pages.
12) Organization:
a. Title page.
b. Case Analysis (5 – 6 pages).
i. Use FILAC method.
ii. Eg. case name: Goodkey v. Canada Safeway Ltd., 2000 ABQB 376 (CanLII).
iii. Summary of the case is to explain the facts of the case. What happened to cause
the lawsuit? This is like the Situations for Discussion in the text. It will be 1 – 2
paragraphs.
iv. Legal Analysis – Briefly explain each party’s legal argument using Plaintiff and
Defendant or Appellant and Respondent. What is their legal argument or position?
v. Legal Analysis – Briefly explain each party’s legal argument using Plaintiff and
Defendant or Appellant and Respondent. What is their legal argument or position?
vi. Analysis of the court decision. What is the decision by the court on the legal issues
/ facts / arguments raised? Does it make sense when compared to what you’ve
learned in the course? Compare and contrast what the court decided with what the
course taught. Discuss inconsistencies, if any.
vii. Referencing is to paragraphs which are at the beginning of each paragraph by [ ]
notation. As this assignment is a case summary you do not have to reference each
fact. Only reference direct quotations but keep direct quotations to a minimum.
Your analysis – in your own words – is where most marks are earned.
c. References.
d. Individual insights
Page 3 of 4
ASSIGNMENT RUBRIC (reference example – do not attach to assignment):
Group Members: A _________________ B _________________
ITE
DESCRIPTION
REQUIREMENT
M
VALUE
SCORE
SEMINAR PRESENTATION
1.
2.
3.
4.
5.
6.
Organization of ideas. Introduction, body, conclusion.
5
Topic knowledge. Clear grasp of information.
8
Coverage of issues/arguments pro and con.
10
Audience engagement. Clarification given as needed.
5
Language use (familiar, appropriate, free of bias).
5
Delivery effective (volume, eye contact, confidence).
5
7
Correct description of ratio.
7.
SUB-TOTAL
45
CASE ANALYSIS [30 marks]
Full case citation.
8.
Specific. Complete.
1
Case date (long form).
Specific. Complete.
1
Full court name (not
judge).
Summary statement.
Specific. Complete.
1
1 sentence.
1
Head of law.
1 sentence.
1
Fact summary.
1 – 2 paragraphs of material information.
5
14.
Legal analysis.
(Issues, Law, Analysis)
25
15.
Decision.
(Conclusions)
16.
References & citations.
Identify and describe the legal issue before
the court in 2 – 3 paragraphs. Include both
arguments for both the plaintiff and the
defendant. Minimize quotations.
Paraphrase.
Explain the court decision including your
own discussion about the how the court
decision is consistent/inconsistent with
course learnings.
Correct APA and/or legal referencing
formats and complete/correct reference
page.
9.
10.
11.
12.
13.
10
5
50
SUB-TOTAL
DEDUCTIONS – correctness, referencing/citation errors, exceeds length (maximum -40 marks)
DEDUCTIONS – lateness (-10 marks per day, maximum -60 marks)
95
GROUP SUB-TOTAL
5
Individually scored for A:
Insight
Code of Conduct compliance
5
Individually scored for B:
Insight
Code of Conduct compliance
100
GROUP TOTAL (worth 20% of final course grade)
Page 4 of 4
Pioneer Corp v. Godfrey: Case Analysis
Gurpinder Brar, Bruno Suarez & Raphael Khan
Mount Royal University
MGMT 4230 – 001: Advanced Business Law
Tracey Stock
November 15th, 2023
1
The case Pioneer Corp v. Godfrey, involves the certification of a proposed class action
lawsuit that alleges the defendant companies participated in a price-fixing cartel to
purposefully raise the price for optical disc drives (ODD) for customers in British
Columbia between 2004 and 2010 (2017 BCCA 302, para. 5). This price fixing alleged
to have been committed by the two defendants is asserted to be in violation of the
Competition Act, which was determined by each court to fulfill the “Unlawfulness”
requirement of various principles of common law.
As the commencement of the case was beyond the two year limitation period
specified in the Competition Act, it was asserted that there was a pattern of fraudulent
concealment that aimed to prevent such a lawsuit until the expiration of the limitation,
thereby requiring a toll of the limitation (2017 BCCA 302, para. 15). The class in the
proposed lawsuit is asserted to contain not only “Direct” purchasers who have
purchased from the defendants, but also “Indirect” purchasers who purchased the
products from vendors that acquired them from the defendants, as well as “Umbrella”
purchasers who purchased the products from any vendor within the area, as the
defendants’ behavior would have artificially inflated the prices of the market.
In the case of Alberta Energy Bank v CyberTech Inc, negligence is claimed by
AEB (as a representative of affected individuals as a class) against CyberTech for
having failed to prevent a sophisticated data breach. The costs of the breach are
claimed by the plaintiffs as pure economic losses. In contrast to the Pioneer Corp case,
there are no allegations of intentional wrongdoing or conspiracy. Neither are there
allegations that CyberTech attempted to conceal their actions.
The decided case was first assessed by Mr. Justice Masuhara, before escalating
to the British Columbia Supreme Court, and further to the Supreme Court of Canada.
After Justice Masuhara granted the certification for the class action lawsuit to proceed,
the BC Court of Appeals and the Supreme Court of Canada both agreed with the
certification of the case.
The respondent Godfrey, alleged that the actions of the defendants constituted a
breach of s. 45 of the Competition Act, the tort of civil conspiracy, the unlawful means
tort, and unjust enrichment. Godfrey alleges that the defendants were part of an illegal
price cartel that “participated in a global, criminal price-fixing cartel, leading to increased
prices and downstream effects through each level of the distribution chain”. (2017
BCCA 302, para 1). This alleged level of control over the market is argued by Godfrey
to have resulted in an overall increase in the price of ODD’s manufactured and sold by
entities separate from the defendants in the case. Therefore, according to Godfrey,
customers who purchased from those unrelated vendors were also affected by the price
fixing cartel and should be included as part of the class action (2017 BCCA 302, p. 50).
In contrast to the three groups within the class for Godfrey, the class for Alberta
Energy Bank v CyberTech Inc has a clear class consisting of one definition. AEB, on
behalf of those who have had their data exposed, claims that CyberTech committed the
tort of negligence by failing to secure the data adequately. CyberTech disputes this, as
2
they argue the unprecedented cyber attack was large and sophisticated to the point
where they could not have been reasonably expected to have been able to foresee or
prevent it.
Although the limitation period for the Godfrey alleges that the price fixing
conspiracy is alleged to not have been discovered until longer than the two year
limitation period set forth in the Competition Act, the limitation period must be tolled by
the principle of fraudulent concealment, and the principle of discoverability.
The appellant Pioneer’s argument is not of relevance in judging the arguments of
CyberTech. Pioneer alleges that the certification judge erred in his decision to
determine that it is the trial stage, not the certification stage that determines whether a
limitation period can be tolled. Pioneer also alleged that it is plain and obvious that the
discovery rule does not apply to the limitation period set forth in the Competition Act and
that the limitation cannot be extended in this case under the doctrine of fraudulent
concealment. Pioneer argues that simple concealment is not enough to toll a limitation
under the doctrine of fraudulent concealment. As the nature of the conduct was
inherently meant to be done in secret, it cannot be classified to have been considered
fraudulent concealment (2017 BCCA 302, p. 40). Pioneer claimed that the
discoverability rule was also not applicable in this case, as it was plain and obvious that
it could never be applied to a breach of the Competition Act. The discoverability rule and
the doctrine of fraudulent concealment are not relevant to the CyberTech case.
There are common threads among the arguments put forth by Toshiba and
CyberTech, mainly, proximity (or remoteness as an inverse) and foreseeability.
Toshiba’s core argument asserts that the standard for certifying loss was redefined by
the certification judge (risking indeterminate liability) as well as that a breach of s.45 of
the Competition Act does not fulfill the “unlawfulness” requirement of various common
law statutes, and that the certification judge allowing the umbrella purchaser’s cause of
action to proceed under the class action constituted a risk of indeterminate liability
(2019 SCC 42 para. 9-11).
Toshiba argued that the class as defined by the plaintiff was not able to
demonstrate the losses that were suffered by each class member. This argument is part
of a risk illustrated by Toshiba that too many future class action lawsuits could be
guaranteed to be certified in contradiction of the established requirements of Common
law for a case to proceed. To this end, Toshiba argues that they should be afforded
leeway under the principle of indeterminate liability (2019 SCC 42 para. 69). Wherein it
and future defendants in class action lawsuits could be subject to “liability in an
indeterminate amount for an indeterminate time to an indeterminate class” should the
umbrella of liability be expanded. (Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y.C.A.
1931)).
Toshiba’s appeal to lack of proximity addressed whether or not the umbrella
purchasers belonged as part of the harmed class. CyberTech also appeals to lack of
proximity, but their reasoning is markedly different. CyberTech admits that the affected
parties were harmed, however they argue that they cannot be assigned liability for
3
negligence for that harm for the lack of proximity for the harm being directly caused by
any particular intentional act or act of negligence on the part of CyberTech.
Toshiba bases their claim of indeterminate liability on another assumption, that
they had no control over and could not foresee the effects of their actions as they relate
to umbrella purchasers who did not deal with them directly, nor through a vendor. This
potentially limitless liability was in contradiction to principles such as the principle of
foreseeability, wherein Toshiba could not have predicted the damages that would have
been caused to the umbrella purchasers, and the principle of remoteness, “A related
principle that limits the scope of liability in negligence where “the harm [is] too unrelated
to the wrongful conduct to hold the defendant fairly liable” (2019 SCC 42, para 181,
citing A. M. Linden and B. Feldthusen, Canadian Tort Law (8th ed. 2006), at p. 360).
CyberTech may be able to appeal to indeterminate liability as a policy
consideration. Indeterminate liability is traditionally used as a policy consideration for
negligence cases. CyberTech alleges that they can not have been held liable for failing
to prevent the cyber attack that occurred, as it was not an event that could have been
reasonably foreseen.
The Supreme Court upheld the previous rulings by the lower courts, and ruled
that the discoverability rule and the principle of fraudulent concealment may serve to toll
the limitation period (should the trial judge see fit). As well, the Supreme Court ruled that
umbrella purchasers had the cause of action to be part of the affected class due to the
nature of the Competition Act and the theory of umbrella pricing. When it comes to pure
economic losses derived from anti-competitive behavior, the cause of action is intended
by design to be broadly available to anyone who has suffered such losses, even if their
losses are not directly tied to the unjust enrichment of the conspirators by means of a
special relationship (2019 SCC 42 para. 8).
The ratio decidem for Pioneer depends here on the nature of economic losses,
particularly as they relate to anti-competition laws. “A rising tide lifts all boats; under the
theory of umbrella pricing, the entire market for the subject product is affected” (2019
SCC 42 para. 59). The normal requirements for proximity and foreseeability in this case
cannot apply to the pure economic losses suffered as the nature of those losses dictate
that those who will suffer them may not always possess a special relationship with the
one inflicting the tort, and therefore must be judged by different standards. The court
reasoned that it is acceptable to instead establish a methodology that is able to
determine who belongs to the class affected (2019 SCC 42 para. 99). While this would
doubtless expand liability beyond the traditional legal norms of proximity, due to the
shared harm that occurs from anti-competitive behavior, this expansion of liability as it
pertains to pure economic losses is the intended effect of anti-competition laws (2019
SCC 42 para. 45).
Toshiba’s claim of being exposed to indeterminate liability was also dismissed
under this ratio of expanded liability for pure economic loss. The ripple effects of
Toshiba’s actions were not ruled to be indeterminate, rather, they were determined by
4
Toshiba’s intentional actions towards the market. Toshiba did not have control over and
could not foresee the effects the altered market has on specific individuals and
businesses. However, Toshiba’s actions were intended to affect the market overall.
Toshiba cannot plead that they had no control over the business decisions of umbrella
purchasers or sellers. Concurring with the statement by Godfrey’s counsel that the
market effects were “not just a known and foreseeable consequence of what the
defendants are doing, it’s an intended consequence” (2019 SCC 42 para. 73).
CyberTech’s argument for lack of proximity is valid. It can be inferred due to the
nature of CyberTech’s role as a data security provider, that it does bear some duty of
care to its clients. However, there is no information given in the facts scenario to
suggest that CyberTech breached a standard of care that is inherent to the duty of care
it is obligated to provide. Although their status as reputable professionals mandates a
standard of excellence, this does not extend to an expectation of perfection. The facts
scenario contains no reason to believe that the breach occurred due to any particular
failure or pattern of failures on the part of CyberTech that caused harm to the plaintiffs.
Rather, it outlines repeatedly the scale and sophistication of the breach, suggesting that
the incident is far outside the scope of what could have reasonably been expected to
occur.
The issue of foreseeability is a common thread among the defenses of both
Toshiba and CyberTech, however, the context is vastly different. Toshiba alleged that
they could not have reasonably foreseen that the “Umbrella” purchasers would have
been affected by the actions of the vendors outside of their control by their intentional
actions, whereas CyberTech asserts that they could not have reasonably foreseen that
the cyberattack that broke through their system would have been likely to occur. This
difference is crucial, the lack of an intentional act by CyberTech to commit economic
harm protects them from the expanded “umbrella” of liability that is applied to the
Pioneer defendants. This is supported by the BC Court of Appeals’ statement
(concurred by the Supreme Court) that “I see no reason why defendants who intend to
inflict damage on “Umbrella” purchasers should be exonerated from liability on the basis
that they exercised no control over their liability. The allegations posit that the
defendants were aware of the effect their conspiracy would have” (2017 BCCA 302,
para. 241).
It is clear from the statements that the BC Court’s decision was not intended to
entirely remove the requirements for proximity and foreseeability in cases of pure
economic loss. The decision concurred by the Supreme Court suggests that the
principle of foreseeability can not be applied to unforeseen pure economic losses that
were the result of intentional unlawful actions taken by the defendants. However, this
should not apply to the tort of negligence. Not only does the alleged act of negligence
by CyberTech lack the key factor of intent that was the basis for the Court’s decision to
to not exonerate liability from Toshiba and Pioneer, the principles of proximity and
foreseeability are inherent to the tort of negligence (DuPlessis et al., 2020).
The core methodology of determining negligence requires that foreseeability and
proximity be taken into account to determine whether or not the accused acted
5
reasonably. One cannot be negligent for failing to prevent an outcome that they could
not have reasonably predicted and prepared for, nor can they be determined to have
been negligent for failing to prevent an outcome that is outside their duty of care or
expected standard of care. In cases of negligence “The law does not demand that the
reasonable person be perfect.” (DuPlessis et al., 2020, p. 271) , this must hold
especially true in the cybersecurity environment. Cybersecurity is a field where the
opposition is consistently improving and creating new vulnerabilities, to expect perfect
cybersecurity is regarded in the professional field as impossible (Arreguin-Toft, 2022).
Although Toshiba’s appeal to the consideration of indeterminate liability was
ruled to not be of concern in the Pioneer, indeterminate liability is a policy consideration
that is intended for negligence (rather than intentional acts) and applies to CyberTech’s
situation. Should the requirements of proximity and foreseeability (the basic building
blocks to establish what is and is not negligent conduct) be inapplicable to the tort of
negligence in this case, it raises the risk of opening the floodgates of liability in which
companies and individuals could be potentially be held liable for indeterminate amounts
of indeterminate allegations of negligence that are alleged to have caused harm.
Due to the lack of proximity and foreseeability, the court should rule in favor of
CyberTech Inc. Proximity and foreseeability are not compromisable factors in
determining negligence. While the case of Pioneer Corp v. Godfrey lays out
circumstances in which these factors are given less weight in regard to pure economic
losses suffered, this does not extend to every situation where pure economic losses are
suffered.
The nature of the alleged offenses committed by Toshiba and Pioneer Corp
dictated that in order for those offenses to be prosecuted to the extent intended by
parliament, the umbrella of liability must be expanded to include all those affected by
the overall effect on the market. However, the Supreme Court was careful to outline why
this does not constitute indeterminate liability, and to highlight the role of intent in this
matter.
In the Pioneer Corp case, the intent to manipulate market prices was clear, and
the downstream effects on umbrella purchasers, while not directly foreseeable in
specifics, were generally anticipated as part of the price-fixing conspiracy. This creates
a direct link between the defendants’ actions and the economic harm suffered by a
broad class of plaintiffs. While this may seem contradictory to the standards required
justifying the inclusion of umbrella purchasers and the tolling of the limitation period.
Conversely, in the CyberTech case, the breach was not a result of an intentional
act but a massive external cyberattack. The unforeseeable nature and sophistication of
the attack significantly weaken the claims of negligence. CyberTech’s duty of care, while
highly elevated due to their role as a reputable data security provider, does not extend
to being immune to every conceivable form of cyberattack. In order for claims of
negligence to be justified against CyberTech, it must be proven that CyberTech
neglected their standard of care that would have been expected of a company of their
6
size and expertise. The failure of the system alone is not evidence of such without
evidence of failed measures that CyberTech should have anticipated and implemented.
Loosening or removing the basic requirements of proximity and foreseeability in
the case of CyberTech would set a concerning precedent. It would suggest that
companies could be held liable for damages resulting from unforeseen and
sophisticated attacks, over which they have limited control or predictability. This could
lead to an unreasonable expansion of liability for any perceived lack of security and any
failure of security, whether or not the security provider could have reasonably been
expected to even be capable of preventing it. In this case, ruling in favor of CyberTech
would uphold the established Common Law principles of negligence.
\
7
References
Arreguin-Toft, I. (2022, July 20). Achieving true cybersecurity is impossible. The
National Interest. https://nationalinterest.org/blog/techland-when-great-powercompetition-meets-digital-world/achieving-true-cybersecurity
DuPlessis D. Enman S. O’Byrne S. Adams L. M. & King P. (2020). Canadian business
and the law (Seventh). Nelson.
Godfrey v. Sony Corporation, 2017 BCCA 302
Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295
Ultramares Corporation v Touche 174 N.E. 441 (1932). Retrieved from
https://www.lawteacher.net/cases/ultramares-corporation-v-touche.php?vref=1
Personal Analysis
8
Gurpinder Analysis
When looking at both the Godfrey and the Alberta Energy Bank case I initially failed to
understand the specifications of certain rules and theories from the Competition and Limitation
Act. However, diving deeper into it I discovered that proximity and foreseeability doesn’t
necessarily have to be considered when pure economic loss is present. In addition, limitations
were also another concept that I did not completely understand. I learned that certain acts of
negligence or pure economic loss can make it so that liability is put upon the person committing
the act. In the case of Godfrey it was debated whether “Umbrella” purchasers had a cause of
action, and the claims revolved around the fluctuation in pricing for the entire market of optical
disc drives. Which inevitably affected others in the market from 2004 to 2010. On the other hand
I also understand CyberTech’s side as vulnerabilities in cybersecurity are complex and may not
be so simple to address. In conclusion, the insight I took away from this assignment is how
important it is to read fine print details in such acts, in order to successfully analyze and
conclude cases.
Bruno Analysis
9
At first examining the Godfrey case, I had a difficult time trying to understand the rules from the
Competition and Limitation Act. I found it very interesting digging into the principles of market
distortion, anti-competitive practices and how all this can create negative consequences for
consumers. It is intriguing how the case emphasizes that the Breach of the Competition Act can
supply the unlawfulness element in the common law and can potentially extend from direct and
indirect purchasers, all the way to umbrella purchasers.
The Godfrey case really helped me in solidifying the concept that pure economic loss
resulting from anticompetitive conduct, is a recoverable form of damage in tort without the strict
requirements of proximity and foreseeability.
Comparing to the CyberTechvs AEB case, it is great to finally understand that
economic losses stemming from a defendant’s actions can be recoverable without the need for a direct
relationship between the parties or foreseeability of the harm, only when assuming that CyberTech did
lack monitoring and detecting the cyber attack.
Raphael Analysis
10
I think this case is an example of using the wrong argument for the situation. Toshiba
repeatedly used arguments that are related to the tort of negligence and attempted to place and
reframe them into the context of their actions. But their actions were not negligent, they were
intentional (allegedly), so the principles and rules they appealed to did not work for them.
However, for the mock trial, a negligence case, these arguments are in their “Natural habitat” so
to speak. However, it now comes with the added complications that the Godfrey ruling brought
regarding these principles as they relate to pure economic loss. Despite this, I believe that they
are inherently parts of what constitute the tort of negligence, and that the tort simply cannot
occur as it is defined without them.
This case brings forth with it questions about when principles should not apply and when
they should. I view it through the lens of inherency, what principles are intrinsically part of (or
separate from) the process by which you resolve a particular tort or determine a tort occurred.
These will change from tort to tort. Pure economic loss done by intentional acts is inherently
going to have issues relating to proximity as an entire market is being altered, therefore, the lack
of proximity should not be placed before the need to resolve the tort as it can be defined.
However, in contrast, you simply cannot have negligence without the factors that make it
negligence and define it as such.