This interesting case dealt with a request to have an opponent lawyer’s file produced, which is generally considered private due to solicitor-client privilege. But in the right circumstances, a lawyer’s file can be compellable and produced to the opposing side, and this case met that exception. The case was a family law dispute, where……
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Personal Guarantee Not Limited to Amount in Credit Application Form
In this case, the guarantor unsuccessfully argued that his personal guarantee was limited to the amount authorized within the underlying Commercial Credit Application form: in this case, $100,000.00. The Court held that “the credit limit authorized is unrelated to the scope of the personal guarantee. The personal guarantee portion of the Credit Agreement specifically refers……
Duty to Immediately Disclose Any Settlement that Changes the Litigation Landscape
The Court of Appeal reaffirms that the duty to disclose a settlement that changes the litigation landscape not only applies to the conventional partial settlement structures like Mary Carter Arrangements or Pierringer Agreements, but to any settlement that converts former foes into friends in the litigation. That was the issue in this appeal, and the……
Purchaser Can’t Recover Costs Incurred in Pursuing Land Deal from Seller who Withheld Information
According to this recently released case, purchasers who spend money assessing the merits of a purchase of assets must absorb those costs because sellers have no obligation or duty to disclose factors about the asset that could impact its value or quality. In this case it was expenses associated with a real estate purchase and……
Ontario Courts Still Not Ready to Abolish Expert Witness Immunity for Party Suing Own Expert in Negligence
This recent case once again highlights the struggle between expert witness immunity and the competing interest to hold an expert accountable to their litigant client if the expert’s work-product was substandard and arguably a contributing factor to the litigant’s loss or poor result at trial. The case provides a good history of the debate, and……
Conservation Authority Can’t Deny Permit without a Hearing
Conservation Authority Can’t Deny Permit without a Hearing. In this case, the Halton Region Conservation Authority (the “Authority”), voided a permit that would have allowed a homeowner to build an addition on their house. The problem, however, is that the Authority took this action without a hearing. The Divisional Court gave the homeowners some reprieve……
A Right to a Trial in French Does Not Mean a Right to a Decision Written in French
A Right to a Trial in French Does Not Mean a Right to a Decision Written in French. In this Small Claims Court case, a bilingual French/English trial was conducted, but the French speaking litigant launched an appeal claiming that his Charter Rights were violated because he did not receive the court’s decision in French. ……
Innocent Partner Fixed with the Liability of Defrauding Partner
Innocent Partner Fixed with the Liability of Defrauding Partner. This case reveals the importance of picking your partners wisely. In this case, it was a law firm where one partner defrauded a lender who lent money to the law firm. The loans where to help prosecute client claims, and loans were to be repaid once……
Anti-SLAPP Motion Not Available in Small Claims Court
Anti-SLAPP Motion Not Available in Small Claims Court. This is the second of two recent Court of Appeal decisions to put the nail in the coffin for Anti-SLAPP motions in Small Claims Court. In the first decision released in 2019 (Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, 439 D.L.R. (4th) 193), the appellate court……
Defendant’s Payment Terms Outright Rejected and Debtor Ordered to Pay Full Debt Immediately
Defendant’s Payment Terms Outright Rejected and Debtor Ordered to Pay Full Debt Immediately. The Defendant in this Small Claims Court action got a rude awakening when they thought their proposed payment terms ($500 per month) would be accepted as a matter of right. The presiding judge ruled that proposed payment terms in general are just……
Landlord Permitted to Pursue Tenant Damage Claim in Small Claims Court
Landlord Permitted to Pursue Tenant Damage Claim in Small Claims Court. This latest case builds off of my earlier decision in Dick v Robinson, 2021 CanLII 48732, and once again highlights the intense controversy over the jurisdiction of the Small Claims Court in landlord and tenant matters, and it is another decision that takes comfort……
Self-Represented Litigant’s Claim Struck for Failing to Advance Case
Self-Represented Litigant’s Claim Struck for Failing to Advance Case. The injuries arose from a 2012 motor vehicle accident, but as of the date of the motion in October 2021, the Plaintiff failed to advance the case, and failed to comply with many court orders giving the Plaintiff opportunities to comply with the rules. But the……
Waiting to Retain Legal Representative at the Last Minute Could Prove Fatal
Waiting to Retain Legal Representative at the Last Minute Could Prove Fatal. The Divisional Court upheld tenant eviction order of the Landlord & Tenant Board, rejecting the tenant’s argument that the Board erred in not granting him the requested adjournment. In this case, the Divisional Court ruled that the Board reasonably refused to grant an……
Life Insurer Failed to Establish Fraud in Application Completed by “Big Drug Dealer”
Life Insurer Failed to Establish Fraud in Application Completed by “Big Drug Dealer.” The court rejected the life insurer’s plea that the insurance policy was void ab initio (void from the beginning) due to the applicant’s non-disclosure of a prior criminal conviction. The insurer clearly thought they had a good case to deny this claim:……
Employee in Wrongful Dismissal Claim Cannot Sue Employer’s Lawyers
April 29, 2022 UPDATE – COURT OF APPEAL UPHOLDS CASE (Tewari v. McHenry, 2022 ONCA 335) https://www.canlii.org/en/on/onca/doc/2022/2022onca335/2022onca335.html Employee in Wrongful Dismissal Claim Cannot Sue Employer’s Lawyers. In this case, after suing his employer and some of their directors, the dismissed employee then sued the lawyers who provided legal advice and counsel to some of the……
Failing to Tender Your Expert’s Qualifications Could Prove Fatal
Failing to Tender Your Expert’s Qualifications Could Prove Fatal. In this case, a Vendor of a failed real estate sale sued the Defaulting Purchaser for the difference in their agreed selling price, and the lower eventual sale price. The Defaulting Purchaser took the position that the eventual sale price was undervalued, and tendered Affidavit evidence……
Landlord who Flouted the Law Eventually Succeeds in Evicting Tenant
Landlord who Flouted the Law Eventually Succeeds in Evicting Tenant. In this interesting case, the Landlord charted down a very dangerous path. After obtaining an eviction order from the Landlord and Tenant Board (“LTB”), the Landlord attempted to evict the Tenant during a time when it was unlawful to do so because of a Stay……
Divisional Court Summarily Dismisses Tenant’s Appeal as an Abuse of Process
Divisional Court Summarily Dismisses Tenant’s Eviction Order Appeal as an Abuse of Process. The Divisional Court granted the Landlord’s motion to summarily dismiss the appeal because the court was satisfied that the Tenant’s appeal from the eviction order rendered by the Landlord & Tenant Board was for no legitimate purpose other than to delay the……
Pandemic Restrictions Causes Jury to be Struck so Toronto Trial Could Proceed
Pandemic Restrictions Causes Jury to be Struck so Toronto Trial Could Proceed on January 17, 2022. The Plaintiff sought and obtained an order striking the jury. Applying the Johnson v. Brielmayer, 2021 ONSC 1245, five part test, the court concluded as follows: a) TEST 1: the resources available to the Court to outfit its courtrooms……
Motion for Non-Suit is Available in Small Claims Court
Motion for Non-Suit is Available in Small Claims Court – The Divisional Court confirmed that Small Claims Court judges can hear motions for non-suits brought by defendants who are of the view that all of the evidence tendered by the Plaintiff at trial still falls short of establishing a case against the Defendant. Mundenchira Inc.,……
Wrongful Death Damages Assessed by Judge as if Case was Assessed by a Jury
Wrongful Death Damages Assessed by Judge as if Case was Assessed by a Jury. Plaintiffs had to drop the jury because of Covid-19 restrictions, but the court nonetheless awarded damages on a scale that could have been upheld on appeal if the assessment was rendered by a jury, even though that amount would likely set……
Solicitor Lien initially Denied was Granted on Appeal, based in part on New Evidence
Solicitor Lien initially Denied was Granted on Appeal, based in part on New Evidence. In this case, the court refused to grant a former law firm a solicitor lien on their work product when their client hired a new law firm, based primarily because the former law firm could not establish that the client cannot……
When Your Garage is on Neighbour’s Land
In this Case, the Court transferred sliver of land, where Garage encroached, to Garage owner upon payment of reasonable fee for the land. The court was faced with a Garage that was built too far over onto neighbour’s land. The Garage was already historically taken down and rebuilt on what the then neighbours were convinced……
Court of Appeal Confirms that Right of First Refusal Expires After One Shot at Using It
Court of Appeal Confirms that Right of First Refusal Expires After One Shot at Using It. Absent any other wording to the contrary, Rights of First Refusals in a Lease can only be triggered once: if not duly exercised, the tenant loses the right to enforce the ROFR during subsequent offers presented to the Landlord/Owner.……
Appeal Court Sends Case Back to the LAT due to Procedural Errors
The LAT erred in not permitting the Claimant to have Reply Questioning on new topic raised by expert, and in refusing to admit relevant security footage showing aftermath of bicycle accident. The overriding task of the Licence Appeal Tribunal was to ensure that the requirement of procedural fairness was adhered to. After permitting Dr. Sherali……