The Ontairo Court of Appeal recently released its decision in Combined Air Mechanical Services Inc. v. Flesch, in which it clarified the current law on summary judgments.  Its implications are significant and, no doubt, will impact on a number of smaller and simpler cases but will it have any effect on complex litigation?

The motion court judge has to fully appreciate the evidence and issues in a way that permits a fair adjudication of the dispute.

In a decision released on January 19, 2012 called Honest Art Inc. v. Decode Entertainment Inc., Mr. Justice Belobaba heard a motion for summary judgment in which the parties filed 16 volumes of material.  The material was filled with conflicting evidence across a range of interconnected and complex issues.  The key issue in the case related to discoverability.  The Plaintiff commenced its action soon after receiving an auditor’s report detailing the nonpayment of monies allegedly owned by the Defendant.  The Defendant argued that the cause of action had materialized many years before, when the Plaintiff had received one of the Defendant’s accounting reports in which it should have noticed allegedly improper deductions which would have been “obvious” to any reader.  As the Plaintiff waited for a number of years before suing, the Defendant argued that the claim was now statute barred.  Continue reading →

The Superior Court of Ontario recently dealt with a case in which a former mayoralty candidate brought a motion to force the operators of a web blog to identify people who had made anonymous postings, in order to sue them for defamation.

It might be assumed at first blush that anyone authoring a post on an anonymous basis can consider himself or herself to be free of any possible liability of defamation. That assumption would be incorrect.

The Plaintiff, Phylis Morris, had been the mayor of the Town of Aurora until 2010.  She ran for re-election at the end of that year and lost. 

The dispute revolved around a website called auroracitizen.ca which the Court described as a forum for political speech by way of web postings.  People choosing to post on that site were free to determine their level of privacy by identifying themselves, signing under a pseudonym, or remaining anonymous. 

Ms. Morris evidently felt that certain posts, placed on the website anonymously during the campaign, were defamatory.  Since she had no way of identifying the authors of those posts, she brought a motion against several individuals said to be in control of the website for an Order that they identify those authors.  Continue reading →

On January 18, 2012, the Ontario Court of Appeal released its decision in Jones v. Tsige conclusively recognizing invasion of privacy as an actionable tort in Ontario.

Ms. Jones and Ms. Tsige both worked for the Bank of Montreal, at different branches.  They did not know or work with each other.  However, Tsige became involved in a relationship with Jones’ former husband and for four years, Tsige used her workplace computer to access Jones’ personal accounts maintained at the Bank of Montreal at least 174 times.  In doing so, she obtained information concerning the details of transactions as well as personal information. 

Tsige did not publish, distribute or record the information, but she maintained that she had become involved in a financial dispute with Jones’ former husband and accessed the accounts to confirm what he was saying about how much he was paying to Jones in child support.  Jones did not accept that explanation, saying that it was inconsistent with the timing and frequency of Tsige’s snooping. 

Tsige admitted that her behaviour was improper, and the Bank disciplined her for breaching the Bank’s internal rules.  Nevertheless, Jones sued Tsige for damages for invasion of privacy as well as punitive damages.  Continue reading →

Several weeks ago, the Ontario Superior Court of Justice issued a ruling on a case entitled In the Matter of the Sandra Thompson Family Trust dealing with a private dispute and an associated complaint to the Law Society of Upper Canada. 

The case involved the administration of a family trust set up by one Elizabeth Thompson who subsequently died.  The beneficiaries of the trust were her daughters, Sandra and Nancy.  After her mother’s death, Sandra Thompson filed a complaint with the Law Society concerning what she believed to be serious mismanagement of the trust by one of the trustees, a lawyer. 

Before the complaint to the Law Society could be the dealt with, litigation arose between the lawyer/trustee and his co-trustee on the one hand, and the Thompson daughters on the other.  The essence of the dispute had to do with the fees being charged by the two trustees.  Continue reading →

Courts are normally very careful about preventing Plaintiffs from obtaining anything that looks like a double recovery.  However, a case decided by the Ontario Court of Appeal a few months ago called Krawchuk v. Scherbak is a rare example of exactly that. 

In this case, Mrs. Krawchuk bought a house in Sudbury in 2004 for about $110,000.  At the time that she completed the transaction, as was frequently done at that time and as is almost always done today, she purchased title insurance. 

Soon after she moved in, she discovered serious structural problems.  The City of Sudbury was contacted and it issued a work order requiring the rectification of the structural problems which were discovered.  The work to be done was extensive.  It required the removal of the house from its foundation, the excavation of its cement floor, the replacement of the subsoil and installation of new footings, foundation and cement floor, and then the replacement of the house on its new foundation.  Additional repair work was required because of the damage caused by moving the house to the extent necessary to make the repairs.  In fact, the cost of rectifying the problem amounted to over $191,000, almost double the amount she had paid for the house.

This represents yet another excellent reason to purchase title insurance whenever it is available.

Continue reading →

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Why I am happy I do not practice real estate law…

One of the more stressful situations that arises for people buying or selling real estate, and their lawyers, is the one where an Agreement of Purchase and Sale contains an inaccurate statement and a purchaser threatens to terminate the transaction unless he gets an abatement in the purchase price. 

Unfortunately, decisions about closing often have to be made very quickly and often without a fully developed set of facts to consider.

At this point, it could well be a matter of who blinks first.  If the transaction aborts, a lawsuit ensues, and the matter goes to trial, the party considered by the court to have been in the wrong could face a massive damages award.  Unfortunately, decisions about closing often have to be made very quickly and often without a fully developed set of facts to consider. 

Many of these circumstances come down to an interpretation as to whether the statement in dispute is to be considered a “condition” or a “warranty”.  Continue reading →

Arbitration is becoming an increasingly popular way of resolving disputes.  This trend is probably due, in large measure, to the increasingly common practice of including arbitration clauses in contracts.  Nevertheless, misunderstandings about arbitration continue to be prevalent, even among the most sophisticated business people.  My previous post consisted of a video in which I discussed two of these myths.  Here are some more.  This article will attempt to identify and explain a number of common myths about arbitration.

Myth #3:  Arbitration is not available in commercial disputes in the absence of an arbitration clause

Where a contract provides that disputes under the contract are to be resolved by arbitration, the parties have no choice but to arbitrate such disputes unless they agree to amend the contract, in effect, by deleting that clause.

However, even in the absence of an arbitration clause, or a written contract, for that matter, it is always open to parties to agree to arbitrate their dispute.  All that is required is for both parties to agree on the scope of the arbitration and the identity of an arbitrator.  Most of the other procedural details, even if not determined at the outset, can be worked out during the course of the matter, with or without the participation of the arbitrator.  Continue reading →