Use of Outdoor Wood Furnace Caused $40,000.00 in Nuisance Damage to Neighbouring Couple Court accepted that the defendant’s use of an outdoor wood furnace interfered with the plaintiff’s enjoyment of their property, and assessed the damages at $20,000.00 for each couple. The interesting twist in this case arose as a result of the defendant’s prior……
News
Two Ontario Vaccine Mandate Charter Challenge Lawsuits are to Proceed Independently
The Ontario Government brought a motion in Toronto to ask that an Ottawa litigant be required to have his vaccine mandate Charter challenge case heard in Toronto, where an existing (and similar) case was already before the court, and slated to be heard in July, 2022. The Government’s motion was denied. As such, the Ottawa……
Anton Piller Order Made Against Rogue Network Engineer
This case illustrates how frail our computer networks can be: in this case deliberately being brought down by a disgruntled employee who had access to the network’s back-end. Indeed, the employee was able to shut the plaintiff’s servers down from a remote location based on the way he manipulated the system internally. As if this……
Pleadings are the Roadmap for the Litigation
This newly released case delves into two important legal issues: 1) Pleadings, and 2) res judicata (a Latin term to reflect a legal principle that once a matter has already been judged or ruled upon, it can not be argued again). PLEADINGS First, the case reminds us again that pleadings are the road map……
Walking Away from Real Estate Deal in Declining Market can be Costly
This is yet another recent case ruling against a Purchaser who could not get their financing in order prior to closing, primarily because the market value of the property had dropped significantly after the agreement and purchase was signed. I previously blogged about this tragedy in a declining real estate market: Damage Assessment in Failed……
Insurer Added as Statutory Third Party after Default Judgment Rendered
If an automobile insurance company refuses to defend their insured who is being sued for damages arising from a car accident, the insurer has a statutory right to be added as a third party to a claim where a plaintiff is seeking damages from that accident. The purpose of this scheme is to give……
The Meaning of “Best Efforts” to Answer an Undertaking at Discovery
The Meaning of “Best Efforts” to Answer an Undertaking at Discovery When a party is being questioned under oath during an examination for discovery (a “deponent”), a common answer is for the deponent to promise that they will make best efforts to get additional information needed to fully answer the question. But what does “best……
Automatic Stay of Claims against the Crown Held Unconstitutional
Section 17 of the Crown Liability and Proceedings Act (“CPLA”) ruled unconstitutional in part. In Ontario, a proceeding brought against the Crown or a Crown officer or employee which includes a claim for misfeasance in public office or which is based on bad faith is automatically stayed and can only proceed if the plaintiff satisfies……
Civil Trial Adjournment Requests Require Fairly Substantive Justification
CIVIL TRIAL ADJOURNMENT REQUESTS REQUIRE FAIRLY SUBSTANTIVE JUSTIFICATION This decision highlights that although “the court is generous rather than overly strict when faced with a request for the indulgence of an adjournment, …. the generosity of the court should not, however, be taken for granted.” The party requesting the trial adjournment must be prepared, where……
Evidence in Historical Sexual Assault Case
EVIDENCE IN HISTORICAL SEXUAL ASSAULT CASE It is wrong for a trial judge to expect perfect recollection and consistency from a plaintiff abused as a child. It is an obvious challenge for any trial judge to assess credibility and reliability when and adult is giving testimony over sexual assault events that occurred during their youth,……
Striking Out a Noting in Default
STRIKING OUT A NOTING IN DEFAULT The lesson learned in this appellate court decision is that no defendant should take it for granted that a noting in default will be set aside, especially if the decision not to defend was a deliberate strategic decision, and they continue with that strategy for a long period of……
Seeking Production of Prosecutor’s File for use in Civil Proceeding
SEEKING PRODUCTION OF PROSECUTOR’S FILE FOR USE IN CIVIL PROCEEDING It is not unusual for civil litigants to seek production of the Crown Prosecutor’s Brief in a related criminal matter, but there is a stringent process to follow: in other words, it is not producible just for the asking. Often the Crown will consent to……
Contractual Interest Rate Normally Becomes the Post-Judgment Interest Rate
CONTRACTUAL INTEREST RATE NORMALLY BECOMES THE POST-JUDGMENT INTEREST RATE The Divisional Court, contending with a default judgment rendered on a credit card debt, had to reverse a few things that the Small Claims Court Deputy Judge did incorrectly. To this end, the following principles emerge on these topics: a) POST JUDGMENT INTEREST RATE. This issue……
Shopping Around for Medical Experts in Personal Injury Claims
SHOPPING AROUND FOR MEDICAL EXPERTS IN PERSONAL INJURY CLAIMS Although the title to this post should more appropriately be “PLAINTIFFS CANNOT REFUSE TO PRODUCE ORIGINAL IMAGING FILMS,” the case really highlights the mistrust between litigants, especially when it comes to medical experts: the hired-gun psychosis. During an examination for discovery, the lawyer for a personal……
Certificate of Pending Litigation Granted on Property of a Vendor Trying to Resile from Sale During a Hot Real Estate Market
CERTIFICATE OF PENDING LITIGATION GRANTED ON PROPERTY OF A VENDOR TRYING TO RESILE FROM A SALE DURING A HOT REAL ESTATE MARKET The court granted a Certificate of Pending Litigation against the Vendor who accepted a “bully-offer” from a Purchaser who wanted to avoid a bidding war during an upcoming “offer date.” A few days……
Employer Vicariously Liable for Automobile Damages Caused by Employee Getting to Job Site
EMPLOYER VICARIOUSLY LIABLE FOR AUTOMOBILE DAMAGES CAUSED BY EMPLOYEE GETTING TO JOB SITE The courts often have to delve into the debate over when an employee is in the scope of employment when a car accident occurs, or alternatively, whether the employee was on their “own time” during the car accident. This case involved one……
ER Doctor Negligent for Giving Wrist Fracture Patient Bad Follow-up Advice
ER DOCTOR NEGLIGENT FOR GIVING WRIST FRACTURE PATIENT BAD FOLLOW-UP ADVICE Patient attended in hospital a few days after being casted to address a Colles fracture of the left wrist. During this follow-up visit, the attending doctor effectively conveyed to the patient that she had to do nothing until the cast was ready to be……
Vendor Has No Duty to Entertain Subsequent Offers from Defaulting Purchaser
In this case, the purchaser defaulted on closing, forcing the vendor to put the property up for resell, and starting lawsuit against the defaulting purchaser for the difference in the selling price. The defaulting purchaser argued, amongst other things, that the vendor failed to mitigate their damages on the theory that the vendor failed to……
Can’t Sue for Diminution in Value of a Vehicle Following a Collision with an At-Fault Driver
The Divisional Court upheld the Ontario Small Claims Court ruling that dismissed a claim by a car owner who was seeking to recover the loss in value of their car following a collision with the vehicle operated by the at-fault defendant. The Ontario Insurance Act bans owners and their insurers from commencing lawsuits to recover……
A Sale on an “As-Is” Basis is not Always As Is
Vendor of truck could not rely on the “as is” and “no warranty” provisions of the sale contract. The Divisional Court refused to overturn a Small Claims Court decision that looked at the interactions of the parties before the contract was signed, and concluded that the words “as-is” and “no warranty” did not conform……
The Danger of Making “Clean-Offers” when Financing is Needed
In this recent case, the defaulting defendant was ordered to pay damages close to $170,000.00 when they were unable to secure mortgage financing after delivering a “clean-offer” to purchase a property. The opening paragraph sums up the frustration, and folly, surrounding the “hot” real estate market: “The biggest investment that most people will ever……
Damage Assessment in Failed Real Estate Closing During Declining Market
The vendor who eventually re-listed the property after the defendant failed to close, and resold the property at a lower price (the highest offer they received after the failed closing), was awarded the following heads of damages: The loss on the selling price, ongoing mortgage interest paid while waiting for resell, renewal fee for……
Contract Signed While Intoxicated
This case reaffirms the old and well-established law that permits people to get out of contracts they signed while intoxicated (lack of consent), but the defence failed in this case involving a purchaser who failed to close a real estate deal, and wanted to resile from the contract on the basis of his alleged……
Court Admonishes Counsel Abusing the Civil Case Conference Process
The court in this instance was not pleased over being asked to rule on some substantive issues during a case conference, and the judge took the time to remind the profession that civil case conferences are not to be used for: obtaining substantive remedies (unless on consent). If substantive relief is being requested, the matter……
Subrogated Fire Loss Claims Should Seek General Damages for the Homeowner
This case illustrates the often-forgotten personal losses in a fire loss claim: the insured’s pain and suffering. This case dealt with a fire loss claim that extensively damaged a home built by the plaintiffs. The recognized culprit, and culpable party, was the manufacturer of the Venmar branded heat recovery ventilator. Common to these types of……