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
05
2017

Injunctions, Mareva and Norwich

Trade Capital Finance Corp. v. Cook 2017 Ont SCJ

One unsecured creditor obtained a Mareva injunction, which included an order that the seized assets could not be attacked without further order of the court. A non-party, who was a judgment creditor of the defendant and had filed a writ of seizure and sale, moved to have the order vacated against it so that it could seize and sell specific assets to satisfy its judgment. The court granted the order, holding that a Mareva injunction was an injunction in general and not a proprietary injunction against specific property claimed to be owned by the unsecured creditor. Accordingly, the plaintiff, an unsecured creditor, could not hold a preferred position over the judgment creditor.

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Jun
05
2017

Expert Evidence & Undertakings

AE Hospitality Ltd. v. George 2017 Ont SCJ (Master)

Lawyer in Greece gave report on assets being hidden; client in Ontario swore affidavit relying on that report. Court ruled that the defendants were entitled to the lawyer’s findings, opinions, and conclusions and his retainer. The lawyer was not required to produce his internal drafts or any draft reports because they were subject to litigation privilege and there was no foundation to support a reasonable suspicion that the lawyer was improperly influenced in his report. Another expert was examined and undertook to give certain information. That expert then attempted to withdraw the undertaking. The court held that he was not allowed to do so. Once an undertaking, always an undertaking.

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Jun
05
2017

Wrongful Dismissal – Mitigation

Brake v. PJ-MR2 Restaurant Inc. 2017 Ont CA

Employee was constructively dismissed because it was unreasonable to have expected employee to accept a demotion. The judge awarded 20 months’ notice for statutory benefits and common law notice. Employer wanted earnings from the employee deducted from the damages, but the court refused to do so for the following reasons:

  • Employment insurance benefits are not to be deducted.
  • Income earned during the statutory entitlement period is not to be deducted. These benefits are to be paid regardless whether employee subsequently works or not.
  • Employer has the onus to show that income earned during the notice period was earned after the statutory entitlement period.
  • If employee was working a part-time job before being terminated, then income from a part-time job after termination is not mitigation of the full-time job that had been terminated.
  • The minority went so far as to say that if income came from a job substantially inferior to the job that had been terminated, then that income does not reduce damages. The majority disagreed.
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Jun
05
2017

Alter Ego – Corporate Veil

Mitchell v. Lewis 2016 Ont CA

Pleadings motion. Although a corporate veil can be pierced in cases involving sham corporations, that remedy is not limited to sham corporations (i.e. incorporated for an illegal, fraudulent, or improper purpose); it can also be pierced if, when incorporated, those in control expressly direct wrongful things to be done. The courts will disregard a separate legal personality of a corporate entity if it is completely dominated and controlled and being used as a shield for fraudulent or improper conduct.

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May
25
2017

Costs – Simplified Rules

Evoke Solutions Inc. v. Chive Inc. 2017 Ont SCJ

Plaintiff sued for $116,000, but was allowed to do so under the Simplified Rules. The judge awarded about $46,000 including interest. The plaintiff had offered to settle initially for $35,000 plus costs and later for $20,000 plus costs. The plaintiff was presumptively entitled to its costs on a partial indemnity basis to the date of the first offer and on a substantial indemnity basis thereafter. The plaintiff sought $87,000 in costs. The defendant suggested $23,000, half of the amount awarded. The judge acknowledged that the simplified procedure was meant to be cost-effective and was not intended to be as expensive as a trial by ordinary procedure. The judge awarded $50,000 including disbursements and HST.

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May
25
2017

Stay of Action – Bankruptcy

Posted in Bankruptcy, Five Liners

2811472 Canada Inc. v. Canada 2017 Ont SCJ (Master)

Once an action has been stayed by virtue of a bankruptcy, the registrar has no jurisdiction to administratively dismiss the action.

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May
25
2017

Affidavits

Responsive Brands Inc. v. 2139233 Ontario Ltd. 2017 SCJ (Master)

In a motion for summary judgment, if the parties cannot agree, the moving parties’ witnesses are to be cross-examined first and then, regardless whether there are undertakings or refusals outstanding, the cross-examination of the responding party’s witnesses will take place.

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May
25
2017

Summary Judgment

Sims v. Zaitlen 2017 Ont SCJ

A case management judge has jurisdiction to refuse to allow a party to bring a motion for summary judgment. In making the decision, the judge must determine whether the motion (or mini-trial) would provide a fair and just adjudication of the dispute in a timely, affordable, and proportionate procedure.

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