There was a time long ago when under common law, judgment debtors could be imprisoned for failing to pay debts.  Obviously, and thankfully, that is no longer true.  However, judgment debtors who ignore court orders made in debt collection proceedings against them do take the risk of jail time as the penalty for their misconduct. 

“I fought the law, and the law won.”

The Rules of Civil Procedure give the court discretion to order incarceration if a party is found to have disobeyed a court Order.  This is most often seen in the context of a judgment creditor attempting to locate assets to satisfy a judgment, and a judgment debtor doing his or her best to frustrate those efforts.

A perfect example is illustrated by the recent Ontario Court of Appeal decision in Doobay v. Diamond. 

In 2007, the Plaintiffs obtained a judgment by default against Anthony Diamond in the amount of about $850,000.  In May, 2008, Mr. Diamond was examined under oath as part of the Plaintiffs’ efforts to locate assets to satisfy the judgment.  He refused to answer any questions.  Several months later, the Court ordered him to re-attend to answer questions.  As a result, he was examined again in December, 2008.  He still refused to answer a substantial number of questions.  Continue reading →

The recent Superior Court decision of Lata v. Rush et al. provides an interesting reminder of how difficult it is to attack a properly prepared Will, and the circumstances under which a claim for unjust enrichment might still be available to someone who feels short-changed by a deceased. 

Helen Oshchytok died in 2001 at the age of 64 for reasons related to her chronic alcoholism. 

Helen had executed a Will in October, 1997 which included a bequest to her relative, the Plaintiff, Leszek Lata, of a house in Etobicoke. 

Three months before her death, in November, 2000, she executed a new Will giving the house to a friend of hers, Dennis Weber.  Her new Will provided that Lata would receive the sum of $50,000 instead of the house.

After her death, Lata sued Weber, another beneficiary, and the lawyer who had drawn the new Will.  The lawyer died before the trial started, and the trial proceeded only against Weber and other beneficiary.

The deceased had never married and had no children.  She had a long history of alcoholism and had been unable to work for many years.  Continue reading →

The recent decision of the Ontario Superior Court in Barton v. Rona Ontario Inc. sheds interesting light on an issue relating to wrongful dismissal that is rarely articulated.  That issue has to do with the difference between the way in which a company assesses misconduct and its need to respond in a way which sends an appropriate message to its other employees, on the one hand, and the analysis that a court will undertake in assessing the situation, on the other hand.

The Court will not consider the totality of the business reasons why an employer might wish to terminate an employee.

In this case, Mr. Barton was an assistant store manager at a Rona hardware store in Barrie, Ontario. 

In April, 2009, a computerized training program was scheduled to take place at the training centre at the store.  The training centre was on the second floor and not accessible by individuals in wheelchairs. 

One of the store’s employees was a Mr. Malmstrom, who was wheelchair-bound.  He wanted to attend the seminar and the management team at the store wanted to accommodate him.  Unfortunately, there was no conventional way of bringing him up to the second floor of the store.  Continue reading →

When I first started receiving referral work from American lawyers many years ago, I became aware that for the most part, American litigants are responsible for bearing their own legal costs.  I found many American lawyers surprised to find that this is not the case in Ontario. 

As Canadian litigants are well (and often painfully) aware, a court will have discretion at the end of a case to award costs as it sees fit.  In almost every case, costs are awarded in favour of the successful party. 

What is less commonly understood by non-lawyers is that “costs” to be paid by the losing party is not the same as requiring the losing party to pay all of the winning party’s legal expenses.  The normal rule is that the loser must pay what is referred to as partial indemnity costs – roughly a percentage, usually between 50% and 2/3, of the winning party’s legal expenses. 

This rule applies not only to cases that have been concluded by a trial, but also to motions.  Typically, the winner of a motion is also entitled to partial indemnity costs.  Continue reading →

The recent Superior Court decision of Chen v. Stafford, released on July 4, 2012, contains an interesting review of the law of adverse possession and particularly the impact of mutual mistake in adverse possession cases. 

What is the result if both the claimant and the true owner are genuinely under the impression that the disputed land actually belongs to the claimant, i.e. the true owner does not realize the disputed land is included within his title.

I have conducted a number of trials involving adverse possession claims.  I have thoroughly enjoyed them.  They usually require all kinds of investigative work as part of the preparation for trial, including the obtaining of testimony from elderly people who seem to remember where a fence was put up or taken down decades earlier, or the approximate time that a particular oak tree was planted. 

I have always been struck by the extent to which neighbouring land owners, usually on a country lake with 200 feet of property along the shore, will spend weeks in court and tens of thousands of dollars litigating over a 2 foot strip running along their mutual boundary. 

In any event, Chen v. Stafford was a case involving a disputed area between neighbouring parcels of land fronting on the St. Lawrence River in the Kingston, Ontario area.  The Applicants brought the proceeding for an Order declaring that they had acquired title to the disputed area by virtue of their exclusive use and possession of the area for over 50 years.  Continue reading →

In the interesting case of Indcondo Building Corporation v. Sloan, released July 18, 2012, the Ontario Court of Appeal dealt with a situation in which a couple attempted to use the bankruptcy process to avoid an action attacking the husband’s transfer of his matrimonial home to his wife as a fraudulent conveyance. 

In 2001, Indcondo Building Corporation obtained a judgment against one David Sloan for about $8 million.  After obtaining the judgment, Indcondo found out that Mr. Sloan had transferred title to his home to his wife about 45 days after having been served with the Statement of Claim issued by Indcondo. 

A couple attempted to use the bankruptcy process to avoid an action attacking the husband’s transfer of his matrimonial home to his wife as a fraudulent conveyance.

As a result, in 2002, Indcondo sued the Sloans to set aside that transfer as a fraudulent conveyance. 

Two years later, Mr. Sloan declared bankruptcy.  That had the effect of bringing Indcondo’s action to a halt. 

Shortly thereafter, Indcondo asked the Trustee in Bankruptcy whether or not he planned to continue the attack on the conveyance of the matrimonial home.  The Trustee indicated that because the estate had no money, any such action would have to be undertaken by Mr. Sloan’s creditors.  Continue reading →

In Bennett v. Sears Canada Inc., the Court of Appeal recently dealt with an interesting case involving a former employee claiming post-retirement health and welfare benefits.

In this case, Bennett was employed by Sears Canada Inc. which offered some of its employees such benefits upon retirement provided they qualified.  One of the qualifying requirements was that the employee “must retire from active employment with 20 years or more continuous full-time service”. 

Bennett began working at Sears on a part-time basis in October, 1977.  She did so until May, 1999 when she became a full-time employee.  Approximately 10 years later, Sears terminated her employment due to corporate restructuring.

As a result, during the 32 years that she had worked with Sears, she had worked on a part-time basis for about the first 22 years and on a full-time basis for about the last 10 years.

In 2005, four years before termination, she inquired of the Human Resources Department in the store in which she worked about her eligibility for pension-related retiree benefits.  That request was conveyed to an employee in the HR Service Centre at the Head Office of Sears in Toronto.  Continue reading →