I have developed a list of commonly held myths about arbitration which I would like to share with you. I have prepared a video in which I discuss a few of these myths. Please click on the link below.
On Litigation and Arbitration
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Author Archives: Irvin Schein
Dealer Agreement Renewals: Ask Not for Whom the Bell Tolls…
The scenario is an ominous one, and all too frequent. You are an Ontario car dealer under a dealer agreement with the manufacturer that goes back for a number of years. Over that time frame, relations have been good although in the last few years, it has hit a few bumps.
Renewal time is approaching. For you, it is business as usual. But sales are slow, and you have an uneasy feeling because you heard of a few experienced operators sniffing around for an opportunity to open a competing location uncomfortably close to your territory.
Notwithstanding anything to the contrary contained in the dealer agreement, manufacturers have an obligation to renew their dealer agreements unless there is “cause” to refuse to do so.
The manufacturer notifies you, out of the blue, that it does not plan to renew your dealer agreement. You quickly realize that the rumors are true: another dealer has pulled enough strings to put himself into a position to replace you in your territory, presumably in that empty building down the road from which he used to carry on business with a competing brand.
As far as you are concerned, you have done nothing wrong. Nevertheless, you are about to be put out of business.
You go to your lawyer for advice. He has been acting for you for years, having incorporated your business and kept your minute books up to date annually. Maybe he has looked after some filings for you, and written the occasional letter to an irate consumer. He looks at your dealer agreement, points out to you that nothing in the agreement makes it mandatory for a manufacturer to renew, and suggests that you start looking for a sub-tenant for your building.
Is that good advice? Don’t you have any options at all?
Well, yes you do. Continue reading
Delays in the Closing of Condominium Units – How Long is Too Long?
On November 8, 2011, the Ontario Court of Appeal released its decision in the case of Schneeberg v. Talon International Development Inc. (2011 ONCA 687), a case involving the sale of a condominium unit to be built in the Trump International Towers development in downtown Toronto, Ontario.
Mr. Schneeberg bought the unit to be built under an agreement made in 2004. The agreement provided that the closing would take place on March 20, 2009, assuming that it was ready for occupancy. It was not ready on that date, and the vendor attempted to unilaterally extend the closing date to give itself more time to finish it. Eventually, Mr. Schneeberg decided to terminate the transaction and brought an application to the court for the return of his deposits. The application judge granted that relief, and the vendor appealed to the Court of Appeal.
Purchasers must be given some reasonable opportunity to terminate transactions if delays are excessive.
The fact that newly constructed condominium units are frequently not ready for occupancy on the date originally contemplated by the parties and reflected in the Agreement of Purchase and Sale is well known to anyone who has ever been involved in this type of transaction. The Court of Appeal made the following observations:
“There is no dispute over the fact that purchases and sales of condominiums are commercial transactions within an industry uniquely plagued by delays. These delays are caused by the market, as the sale of units in a new development dictates the availability of financing, by the vagaries in the construction process, and by the complexities associated with the registration process required by the Condominium Act. Delays in the closing of condominium units are expected. They are part of the business of developing condominium projects and, it follows, part of purchasing a newly-constructed unit.”
How to Sell a Haunted House
My partner, Arnie Herschorn, recently won a summary judgment motion in an interesting case involving a latent defect in a house. At one time, the law permitted a person to sell a house that was deficient in some way, and even in a significant way, without disclosing the defect. This fell under the framework of the term “caveat emptor” or “buyer beware”.
It is possible for a court to recognize a disclosure obligation where certain types of convicted criminals live in the area, or there may be some other attribute that might impact a purchaser generally or a particular purchaser specifically, i.e. one with young children.
The law has come some distance since those days and now may well recognize an obligation not only to disclose latent defects affecting the structure of the dwelling, in some circumstances, but even defects having nothing to do with the integrity of the building itself but relating only to other circumstances affecting the property that might influence a purchaser.
In Arnie’s case, our clients purchased a home north ofTorontoin the summer of 2010. They were a young couple with two young children. After closing but before they moved in, they discovered that a man convicted of possession of child pornography resided across the street. As a result, they did not consider that the house they had just purchased would be a safe place to live and they took action against the vendor and the vendor’s real estate agent, arguing that this information should have been disclosed to them. Apparently, this fact was common knowledge in the neighbourhood.
The vendor brought a motion for summary judgment to dismiss the action on the basis that it could not possibly succeed based on the law ofOntarioas it present stands. Arnie opposed the motion and won. The judge ruled that an obligation to disclose this information, which might reasonably be seen as making the house uninhabitable by a purchaser with young children, might well exist in law and certainly deserved to be reviewed at a trial.
The Latest on Plea Bargains
I don’t do criminal work, but I do enjoy reading and talking about criminal law cases. I find that people generally get a charge out of it (no pun intended). Mention O.J. Simpson at a cocktail party, and you’ll see what I mean. This is particularly true when the discussion turns to the topic of plea bargains.
As difficult as it may be to accept, the fact is that our system could not possibly function without the use of plea bargains.
Several months ago, the Supreme Court of Canada decided the case of R. v. Nixon ([2011] S.C.J. No. 34). In that case, Ms. Nixon was charged with dangerous driving causing death, impaired driving and other related offences. Her lawyer signed a written agreement with the Crown providing for a plea bargain: Nixon would plead guilty to a charge of careless driving, and all other charges would be dropped.
When the agreement came to the attention of the Assistant Deputy Minister (ADM), the ADM decided that this deal was not in the interests of justice and instructed the Crown to disregard the agreement and proceed to trial. Nixon then brought an application under the Charter of Rights to have the Court require the Crown to adhere to the agreement. The judge hearing the application agreed with Nixon and found that the Crown’s withdrawal from the agreement was an abuse of process. The case ended up in the Supreme Court of Canada. Continue reading
The Latest Word on Defamation on the Internet
Defamation is an intentional tort that involves a false communication harming a person’s reputation or tending to lower the regard in which a person is held.
For the tort to arise, the defamatory statement must be communicated or published. To prove publication, a Plaintiff has to establish that the Defendant has conveyed the defamatory meaning to at least one third party, who has received it.
Defamation is tricky at the best of times. The internet has made defamation cases even trickier.
There are now a number of cases that have been decided at a reasonably high level of court dealing with defamatory remarks made on the internet, both in articles and on blogs. Most of these decisions raise the same issues as are raised in the context of newspaper articles. One unique feature of the internet as compared to newspapers, however, is the ubiquitous hyperlink. Where does that fit in?
Are you being sued in a foreign jurisdiction? Take it seriously!
A decision released on October 12, 2011 in Ontario Superior Court shows the dangers involved in ignoring a lawsuit brought against an Ontario resident in a foreign jurisdiction.
In Monte Cristo Investments LLC v. Hydroslotter Corporation et al., Mr. Justice Campbell dealt with a case in which an Ontario resident, Jean-Claude Bonhomme, was sued by Monte Cristo Investments LLC in California for breach of contract and various torts. The lawsuit related to money that Monte Cristo had invested in the operation of certain oil and gas wells in California.
Monte Cristo sued a number of local entities and individuals as well as Mr. Bonhomme.
If you are sued in a foreign jurisdiction, you are taking an enormous risk if you don’t hire a lawyer in that jurisdiction and defend yourself there.
Mr. Bonhomme did not defend the claim against him and, ultimately, Monte Cristo obtained a sizeable default judgment against all of the Defendants including him.
At that point, it appears that Mr. Bonhomme began to take the case seriously. He retained a California lawyer to bring a motion to try to set aside the judgment against him. He was not successful.
Irvin Schein 