Legal Blog

Disclaimer of Liability: The Speigel Nichols Fox LLP Blog is intended to provide helpful general information; however, it is not legal advice. You must consult a lawyer if you have a specific legal question or issue that requires an answer.

Jun
19
2017

Relief from Forfeiture

Posted in Five Liners, Tax

Poplar Point First Nation Development Corp. v. Thunder Bay Ont CA

After a municipal tax sale, a party entitled to the surplus that has been paid into court has one year to make an application for payment out of court to it. If no one makes the application within the one-year period, the surplus is deemed to be forfeited to the municipality. The Court of Appeal held that a court has power under section 98 of the Courts of Justice Act to grant relief from forfeiture even after the passing of the one-year period.

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Jun
19
2017

Affidavits

Bramer v. Toronto Lawn Tennis Club 2017 Ont SCJ

Applicant brought an application for remedies relating to his membership in the respondent club. The Club moved to strike paragraphs in the affidavit on grounds that it contained argument, used information and belief for contested facts, and referenced material that was subject to privilege. The motions judge held that the general rule to allow the judge hearing the application to make those determinations applied in this case and dismissed the motion.

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Jun
06
2017

Forever

Posted in Collections

We often write about attacking a transaction on grounds that it is a fraudulent conveyance. What does that mean; what is the remedy; and is that remedy relevant to anything outside of the action? These questions were answered in part in Guthrie v. Abakhan & Associates Inc., a 2017 decision of the British Columbia Court of Appeal. Although the language of the BC Fraudulent Conveyance Act has been updated as compared to the Ontario Fraudulent Conveyances Act, and the 1571 English Statute of Elizabeth on which both were based, the substance of the Ontario and BC statutes is still essentially the same.

Essence

Fraudulent conveyance statutes have but one purpose: to stop a debtor from successfully transferring away assets for no or inadequate consideration (i.e. payment or other value). The simplest example is a husband transferring assets to his wife to avoid having to pay his debts. With this simple transfer the family unit keeps and enjoys the asset and the husband’s creditors are left howling in frustration.

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Jun
06
2017

Chance

Posted in Lawyers' Issues

Everyone is affected by chance. In Jarbeau v. Maclean 2017 ONCA 115, a lawyer appealed a judgment and took a chance on a position, which contended that his clients’ damages were not 100% of their losses but, rather, a lesser amount representing the “loss of a chance.”

Facts

Clients purchased from a builder a leaky new house, not constructed or designed according to Code. The clients retained the lawyer to sue those responsible for building and selling them a defective house. The lawyer sued the builder, the municipality, and Tarion. Unfortunately, the lawyer did not sue the engineer who negligently certified the design and construction of the house. The lawyer incorrectly thought that, because the clients did not have a contract with the engineer, there was no cause of action against the engineer.

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Jun
06
2017

Trust Setoff (2)

Posted in Construction

In our September 2016 newsletter, we discussed Architectural Millwork & Door Installations Inc. v. Provincial Store Fixtures Ltd., a 2016 decision of the Ontario Court of Appeal. In that case, the motions judge refused to allow a general to set off its claim against a sub relating to project #2 as a defence to the sub’s claim on project #1. He did so based on two rationales.

Rationale #1: when a sub claims against a general, relating to project #1, by way of an ordinary claim on contract, and not by way of a trust claim under the Construction Lien Act, then the general cannot claim setoff by way of section 12 of the Act on monies that the sub allegedly owes to the general on project #2.

Rationale #2: when a general does not segregate the monies due to the sub in a separate trust account and therefore breaches the Act’s trust provisions, the general cannot rely on section 12 of those trust provisions.

The Court of Appeal did not decide whether the motions judge was correct regarding rationale #1, but agreed that rationale #2 was fatal to the general’s claim for setoff. We now have another case dealing with rationale #1: 1587855 Ontario Inc. v. Contract Glaziers Corp., a 2016 decision of the Ontario Superior Court of Justice.

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Jun
06
2017

Advantage

Posted in Construction

A trust action has a number of advantages over a regular breach of contract action. An obvious advantage is the ability to claim against directors and officers of a corporate trustee. A more subtle advantage was brought to the fore in One-Way Drywall Inc. v. Lomax Management Inc., a 2016 decision of the Ontario Superior Court of Justice.

Action

A sub brought an action against a general for breach of contract and breach of trust and joined its two directors to the trust action. During the course of the action, the plaintiff amended its statement of claim to increase the amount claimed from $260,000 to $280,000.

The action moved along at a snail’s pace for over 4 years, mostly because of the defendants’ delay tactics. They finally attended at a discovery, but refused to answer any questions dealing with the project’s finances and the financial relationship between the owner and the general. In short, they stonewalled.

The general paid $260,000 to its lawyer in trust to the credit of the action to be payable if the sub succeeded on its contract claim. The two directors also offered to guarantee payment of any amount due to the sub to a maximum of $260,000.

The general and the two directors then brought a motion to have the trust portion of the action dismissed, resulting in the entire action being dismissed against the directors personally. They argued that, given the money paid to their lawyer and their offer of a guarantee, the trust aspect of the claim was pointless.

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Jun
05
2017

Simplified Rules

Singh v. Concepts Plastics Ltd. 2016 Ont CA

Employees, who were claiming wrongful dismissal, brought motion for summary judgment within the Simplified Rules. Issues involved credibility, constructive dismissal, and mitigation. Although, under the ordinary Rules, judges can make decisions based on conflicting evidence, under the Simplified Rules, opposing parties cannot cross-examine on affidavits and cannot examine a non-affiant witness on the motion. The employer argued, and the Court agreed, that if there is significant conflicting evidence on issues confronting a motions judge, summary judgment is not appropriate under Simplified Rules.

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