In this interesting recent decision, the appellate court held that rule 49 offers must be evaluated without references to extraneous factors such as income tax payable on a trial award or on an accepted offer to settle. Rule 49 of the Ontario Rules of Civil Procedure grants the court power to award higher legal cost……
News
Cross-Examination Denied at Trial is Likely Justice Denied
In this interesting case, the Divisional Court set aside a Small Claims Court judgment primarily because the presiding Deputy Judge did not direct the self-represented litigants to their right to cross-examine their opponent witnesses, or alternatively for failing to undertake any substantive cross-examination of their own. The appellate judge was clearly mindful that Small Claims……
Arbitrators, and Not the Courts, Typically Rule on the Validity of an Arbitration Clause in an Employment Contract
This recent case highlights that when a party to an employment contract wants to challenge the validity of an arbitration clause, this issue is typically argued before the arbitrator, and not a judge who, except in rare circumstances, lacks jurisdiction once the contract stipulates that all disputes will be resolved through arbitration. In this instance,……
Specialized Hospital Expected to Give Specialized Standard of Care
This is another recent case where an ER doctor was found negligent for providing poor medical treatment: in this case for a stroke patient arriving at the ER (see my prior post entitled “ER Doctor Negligent for Giving Wrist Fracture Patient Bad Follow-up Advice,” for another example). In this recent case, the plaintiff felt dizzy,……
Safe Harbour Protections of Land Titles Act Saves Innocent Purchaser in Mortgage Default Sale
When mortgages go into default, the mortgagee (ie: the lender) can take sale proceedings, however, there is a process that must be followed. If the process is not followed, the entire sale can be set aside. In this recent case, the appellate court was dealing with a mortgage default sale that was faulty because the……
Corroboration of Unidentified Vehicle Involvement for OPCF44R Coverage can be Hearsay Evidence
Most automobile insurance polices in Ontario are purchased with an OPCF44R endorsement, commonly referred to as the “Family Protection Endorsement.” It provides a lot of additional protection, and in this instance, the plaintiff was seeking additional insurance coverage for being injured at the hands of a vehicle that could not be properly identified (nor its……
There is a Difference Between Having a License, or a Lease, to use Land
As stated in this recent decision, a license is a permission to use a property, but it does not convey a leasehold interest in the land. With a license, one becomes a licensee; with a lease, one becomes a tenant. As noted by the court, “there are similarities between the rights of tenants and licensees,……
Bailees Don’t Have to Safeguard Your Property to a Level of Perfection
Bailments occur when a third party (the bailee) holds the property of another (the “bailor” or typically the “owner”). When the held property is damaged or lost, the owner often looks to the courts for redress against the Bailee. The central issue is often how well, or how poorly, the bailee safeguarded the property under……
Sue for Employment Losses in One Forum
One tactic used by employment lawyers, where discrimination is involved, is to commence concurrent claims for employment losses in both the Ontario Superior Court of Justice (including Small Claims Court) as well as before the Ontario Human Rights Tribunal. However, as this recent Ontario Divisional Court decision reveals, this practice may be coming to an……
Partial Summary Judgment Motions are a Rare Process Used Only when Issues Can Be Readily Bifurcated from the Main Action
It is commonplace for defendants in multi-party disputes to have a desire to end the litigation against them (but not all the parties) before trial, especially if they feel that the issues between them and the others are separate and distinct. One of the defendants, for example, may have an excellent discrete defence that the……
Administrative Tribunal Members Can Rule on Requests for Reconsideration of Their Own Decisions
Administrative Tribunal Members Can Rule on Requests for Reconsideration of Their Own Decisions There are many administrative tribunals set up in Ontario: typically established to render quick decisions in specialized areas of the law. When a decision is rendered by a tribunal adjudicator or member, a losing party may want to have that decision reconsidered……
The Doctrine of Misnomer Permits Plaintiff to Swap Husband with Wife as Owner of Defendant Vehicle
The Doctrine of Misnomer Permits Plaintiff to Swap Husband with Wife as Owner of Defendant Vehicle In my previous post entitled “The Doctrine of Misnomer excuses Solicitor Inadvertence,” I highlighted a case dealing with the doctrine of misnomer, which allowed a plaintiff to introduce a new defendant institution after the limitation period expired, because the……
Court of Appeal Confirms Residential Landlord Permitted to Pursue Tenant Damage Claims in Small Claims Court
This recent case expands on my earlier decision in Dick v. Robinson, 2021 CanLII 48732 and my recent post entitled “Landlord Permitted to Pursue Tenant Damage Claim in Small Claims Court.” This latest appellate case illustrates the continuing controversy over the jurisdiction of the Small Claims Court to render judgment in residential landlord and tenant……
Paying Lay Witnesses to Prepare and Give Evidence in Civil Trial
* Update: On May 30th, 2024, the trial judge’s decision was upheld (Legault v. TD General Insurance Company, 2024 ONCA 439) In this recent decision, the court grappled with the problem that can arise when a witness expects to be paid for the time and effort put in to review documents and testify. It is……
Adverse Possession Against You and Me but not Against a Municipality
Adverse Possession is a means upon which land can be lost by the true owner and gained by a squatter. This can occur legally when the squatter takes actual possession of the disputed land with the intention of excluding the true owner from possession, and that the true owner was effectively excluded from possession in……
Ontario Appellate Court Confirms Buyer’s Decision to Walk-away from Closing When Water Damage was Discovered the Day Prior
In this recent decision, the Ontario Court of Appeal upheld a summary judgment ruling that permitted the Buyer to walk-away from a real estate closing when water damage was discovered in the basement the day before closing, and have their deposit returned. Central to this case was whether the water damage was tantamount to “substantial……
Construction Law Dealing with Work Not Completed at Job Site
During a construction job (big or small), disputes can often arise over the work being done. The owner may want to kick the constructor off the site and insist that the work be completed by someone else (with little-to-no moneys being paid for the work done to date), whereas the constructor typically believes their work……
Residential Tenant Can Sue Landlord for Slip and Fall Injuries Even if Waiver Signed by Tenant
In this recent case the court held that a residential landlord was precluded from relying on a waiver of liability provision in the residential lease as a defence to a lawsuit brought by their tenant for personal injury damages arising from a slip and fall on the rented premises. The result is not surprising, because……
Dependent Relative in the Family Protection Endorsement – OPCF 44R
The OPCF 44R endorsement (the “Family Protection Endorsement”), commonly purchased with most Ontario automobile policies, provides good protection to family members who are injured by automobiles that carry inadequate (or no) insurance. In those instances, injured people who have Family Protection Endorsement coverage can look to their own insurance company to prop up their compensation……
Ontario Court of Appeal Confirms that All Employment Termination Provisions Are Invalid if the ESA is Contravened
The Ontario Court of Appeal overturned a lower court judgment that upheld the termination provisions of an employment contract. In doing so, the appellate court made the following things clear: A termination provision that says the employer is entitled to fire someone without notice for “just cause” violates the Employment Standards Act (“ESA”) which requires notice……
Interesting Insights into Costs Following an Unsuccessful Summary Judgment Motion
This recent case contains some interesting insights about costs following an unsuccessful Summary Judgment Motion to Dismiss. Although this instance involved a motion to dismiss by a defendant, the principles could equally apply to motions for summary judgment brought by a Plaintiff. Here is what was said: a) it is very typical for courts to……
Conduct of Party After Contract Expired Extended Contractual Commitments
This recent case dealt with a Coffee Time Franchise Agreement that expired on July 31, 2014, but the Franchisee continued to pay royalties to February 16, 2016, and thereafter continued to use the name and exclusive suppliers up to January 25, 2021. The lower court ruling, upheld by the appellate court, was that the conduct……
Court Awards Costs Against Paralegal Personally in Small Claims Court Proceeding
The Ontario Small Claims Court rules do not contain any provision for the court to award costs against a litigant’s legal representative personally. However, when faced with a last-minute trial adjournment request caused by a paralegal who kept his licensing suspension secret from his plaintiff client and from the opposing defence party until just two……
Conduct of Buyer Did Not Revive Offer with Expired Financing Condition
In this recent decision, the court ordered the return of the Buyer’s deposit after the court concluded that the Buyer’s actions leading up to, and following, the expiration of the preconditions did not equate to a waiver of those conditions. This deal contained two preconditions that rendered the agreement of purchase and sale null……
Immigrant Owner Operator Trucker Fails to Recover Money for Truck Destroyed by Fire
In this all too familiar scenario, an immigrant trucker leased a tractor for the purpose of hauling exclusively for one company. The trucker thought his tractor was fully insured under the insurance policies carried by the company, and that there was no need for him to buy additional insurance for his tractor. The contract……