In this recent case, a Purchaser sued the Vendor who sold the property with two hidden underground storage tanks (“USTs”). The cost to have the USTs removed was potentially very significant. The Vendors brought a motion to get their insurance company to defend them, and if a judgment was rendered against them, to get the……
News
Negligently Prepared Marriage Contract Results in Successful Solicitor Negligence Claim Against Lawyer
In this court ruling released yesterday, the lawyer was ordered to pay almost $1Million for negligently preparing a Marriage Contract that was intended to shield certain assets from equalization during a subsequent divorce. In the end of this trial, the court concluded that the client proved, “on a balance of probabilities that the …(defendant lawyers)………
Deductibility of CERB in Wrongful Dismissal Claims is Still Unsettled in Law
This latest decision released yesterday reveals that the deductibility of the Canadian Emergency Response Benefit (“CERB”) when calculating wrongful dismissal damages is still unsettled. In this case, the court dismissed the case, but as all Judges are supposed to do, an assessment of damages was undertaken just in case there was a successful appeal. When……
Anti-SLAPP Motions Not Available in Small Claims Court Further Clarified
In my post “Anti-SLAPP Motions Not Available in Small Claims Court” I reported on the two recent cases that made it clear that Deputy Judges and Associate Judges could not hear anti-SLAPP motions in Small Claims Court. Although I thought these lines of cases made it clear that such motions couldn’t be heard in Small……
Setting Aside Registrar’s Dismissal Order
When civil litigation files go stale, the plaintiff runs the risk that their claim will be administratively dismissed by the court Registrar if the action is not set down for trial within five (5) years. Its always a risky situation for a plaintiff, as was evident in this case where the judge refused to restore……
Plaintiff Loses Trip and Fall Sidewalk Case Against Municipality
This case is helpful to demonstrate how litigants can streamline cases that are perhaps not worth a lot of money, but are still important to the litigants. I addressed this is my paper entitled “Personal Injury Claims in Small Claims Court: The Nuts and Bolts” when I raised the prospect of using a Small Claims……
Judges Can’t Expect Judicial-Type Explanations from Jurors Who Are Lay People
The title for this case summary could have been varied, such as: Judges Can’t Expect Judicial-Type Explanations from Jurors Who Are Lay People Jury Medical Malpractice Verdict Against Doctor, Rejected by Trial Judge, was Restored on Appeal Jury Trials Give Rise to Many Challenging Issues for Litigants Civil litigation trials with juries are often more……
When Insurance Company Refuses to Insure Commercial Property
Keeping in mind that every commercial leasing arrangement is unique, since there is no standard lease agreement, this case illustrates the quagmire that commercial landlord and tenants can get themselves into when a third party insurer denies insurance coverage for the operations being carried out in the rented premises. In this case, the landlord’s insurer……
Relief Against Penalty or Against Forfeiture Contained in Contractual Stipulated Remedy Clauses
Pursuant to section 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43, a court may grant relief against penalties, and relief against forfeitures, on terms that are considered just. The court in this instance had to deal with a mediated settlement between a contractor and an owner whereby the parties agreed that certain……
Section 5(1)(a)(iv) of the Ontario Limitations Act
Contracting parties are typically bound by a two-year limitation period that starts to run when an invoice goes unpaid. But in this interesting case, the type of relationship between the contracting parties allowed the start of the limitation period clock to be significantly delayed. Indeed, because of a running tab, some unpaid accounts were theoretically……
Civil Jury Can be Picked in One Court and then Transported to Another Court
In this personal injury case, the jury was selected in the Brampton courthouse where the case was started, but then the jury was required to attend and sit in on the trial held in the Kitchener courthouse, where the trial was held due to unavailability of courtrooms in Brampton (in this case, due to pandemic……
State of Road Non-Repair is Assessed Against an Ordinary Driver
The Ontario Court of Appeal confirmed that the test for whether a road was in a a reasonable state of repair is an objective test: that is, it is to be assessed through the lens of an average driver. The issue came to head in this personal injury case because the defendant driver was speeding……
Can’t Use Wait-and-See Approach to Strike out Jury in Civil Claim against Municipality
Jury trials have been a casualty during the Covid-19 shutdowns because the courts were willing to strike juries during the time that juries couldn’t be assembled following post-pandemic restrictions on gatherings, etc. Indeed, the courts were flooded with motions to strike juries, and the rulings varied. One approach, however, that gained popularity was to take……
Defendant Denied Right to Bring Summary Judgment Motion on Eve of Trial
Motions for summary judgments are typically welcomed because if successful, they help to end the litigation before more time and money is invested in the litigation. However, it a party waits too long to bring a motion for summary judgment, there is a risk that the court will not entertain the motion, as what occurred……
Contesting Lawyer’s Contingency Fees and Legal Services After a Settlement
The solicitor-and-client relationship in personal injury claims can, at times, be under considerable stress during the lifespan of a civil lawsuit, which is regrettable because often this occurs due to factors outside the control of either. Even worse is when these stresses blead over and extend past the end of the litigation and into the……
Medical Malpractice Claims Will be Summarily Dismissed if no Liability Expert Evidence is Tendered
This case is a poignant reminder that the court will, except in the clearest and rarest of cases, summarily dismiss a plaintiff’s medical malpractice claim if the plaintiff fails to tender expert medical evidence touching on the alleged negligence of the medical professional(s): more specifically, the need to tender an expert opinion on the applicable……
Casino Payout Rules Written on Table Supersedes the Payout Rules Approved by AGCO
This case was an appeal of a Small Claims Court ruling against a Casino who was ordered to pay the Plaintiff poker player the winnings laid out on the payout legend written on the felt table, rather than the winnings that would be paid out pursuant to the official rules that had been approved by……
Contract of Adhesion Argument Unsuccessful in Failed Real Estate Closing
Although I have written many summaries of cases dealing with judgments against defaulting Purchasers in a declining real estate market, this case included an interesting argument involving “Contracts of Adhesion.” Contracts of Adhesion are generally those that involve a “take it or leave it” approach to negotiations: something like an insurance policy, where one party……
The Doctrine of Misnomer excuses Solicitor Inadvertence
Occasionally a Plaintiff will misname a Defendant. In some cases it may be deliberate, such as when a Defendant is truly unknown (in which case they will be named “Jane Doe” or “John Doe” and renamed later when more evidence comes forward), but in other cases the use of an incorrect name might be inadvertent. ……
Ontario Auto Insurer’s Failure to Mediate Increases their Legal Cost Exposure
This decision reveals that the court has two ways to penalize an Ontario automobile insurer who rejects a Plaintiff’s request to mediate an automobile related claim. The first is a cost sanction under section 258.6 of the Insurance Act, R.S.O. 1990, c.I.8, (the “Act”) , and the second is under Rule 57.01(1)(e) if the court……
Promising Vacant Possession on Closing of Tenanted Property
Purchasers who want vacant possession when there is a tenant in the home can give rise to many thorny issues. Tenants can’t be ousted for the asking, and vendor’s need to be weary about making promises to deliver vacant possession. This case illustrates how one Vendor adequately protected himself quite well because he was able……
Don’t Resell Home While Prior Failed Closing is Under Contention
This case illustrates the dangers of entering into a second real estate deal while the closing on the first one is contentious. In short, someone is going to pay dearly. In this case the vendor’s first sale transaction didn’t close, and subsequently the parties argued over whose fault it was. If it was the vendor’s……
Missed 10 day Notice Period to City Not Fatal to Personal Injury Claim
The City (defendant) brought a motion to summarily dismiss the claim because the City was given notice of a pot-hole induced injury some three (3) months after the incident, contrary to section 42(6) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the “Act”) which requires notice to be given within ten……
Boomerang Summary Judgment Motions are Proper if Handled Properly
Occasionally summary judgment motions seeking one form of redress, ultimately leads to an order or judgment that is completely against the moving party. Hence these types of situations are referred to as boomerang motions because they are flung in one direction, but mysteriously swing back to negatively impact the party that threw it. The moving……
Slip and Fall Caused by Contractor not Salting after Plowing
A snow removal company was found negligent for not salting soon after plowing the area around a condominium, resulting in a resident slipping and falling. Although it was commendable that the contractor removed the bulk of the snow quickly, so that residents could move around the property, the skim of snow left after plowing created……