Legal Blog

Krystyne Rusek’s Article: Evidence of Incapacity in Contested Guardianship Applications

Krystyne Rusek, counsel with Speigel Nichols Fox LLP, prepared the article, “Evidence of Incapacity in Contested Guardianship Applications” for the Law Society of Ontario’s 25^th Annual Estates and Trusts Summit in October 2022.

Access the full article here.

Registration Complete

Gay Company Limited v. 962332 Ontario Inc. 2023 Ont SCJ

Under the Land Registry Reform Act and the Land Titles Act the registration of an instrument is complete only when the registrar certifies it. Once certified, the instrument takes its date and time from when it was originally submitted for registration. Until an instrument is certified, the party requesting its registration may withdraw it. Accordingly, in this case when a discharge of lien was registered in error, the registering party had the right to withdraw it before certification.

Adjudication Effects

Adjudication is the means by which the prompt payment provisions of the Construction Act (“Act“) are enforced. An adjudication decision will order, on an interim basis, that a party either pay or not pay money to another. It is interim because an adjudication order can be overturned in an arbitration or court proceedings. Does an adjudication decision have any other effect on the parties? This question was answered in Arad Incorporated v. Rejali, a 2023 decision of the Ontario Superior Court of Justice.

Convoluted

This case demonstrates the usual problems with a residential project. No one really knew who was contracting with whom. We have a corporate plaintiff (call it the subcontractor) and the subcontractor’s principal. We have a general contractor. And we have two owners.

Subterfuge

An owner of a property has rented it to a tenant; a purchaser submits an offer to purchase the property, but only with vacant possession so that the purchaser can occupy the property. The owner can deliver that vacant possession with ease, simply by serving on the tenant a notice terminating the tenancy on behalf of the purchaser. But is it that simple? Given the decision of the Ontario Court of Appeal in Elkins v. Van Wissen 2023 ONCA 789, probably not.

Legislation

An owner cannot terminate a tenancy merely on a whim. The owner has to fit within one of the termination provisions of the Residential Tenancies Act (the “Act“) that allow a termination. One of these provisions is found in s. 49(1) of the Act. This section empowers an owner, on behalf of the purchaser, to give a tenant a notice terminating the tenancy if the purchaser “in good faith requires possession of the residential complex or the unit for the purpose of a residential occupation by the purchaser” or the purchaser’s spouse, parent, or child.

Joint Ownership

Can a judgment creditor seize the interest of a non-debtor joint tenant? This question was answered – again – by the Ontario Court of Appeal in a 2023 decision in Senthillmohan v. Senthillmohan. We say “again” because, to our way of thinking, the answer to this question was obvious and had been applied many times in the past.

Facts With a Twist

This case arose out of a family law dispute between separated spouses. Incidental to their dispute, a court granted an order directing a sale of their matrimonial home. Nine months later, in September 2021, a third-party creditor obtained a judgment against the husband in a civil action and filed a writ of seizure and sale. In October 2021, the spouses entered into an agreement of purchase and sale to sell the home. In November 2021, the wife obtained an order severing the joint tenancy of the matrimonial home. That order was silent as to when it took effect (i.e., was it retroactive?) and did not address the creditor’s claim. The creditor agreed to temporarily lift its writ to facilitate the sale, subject to the net proceeds of $925,818 being held in trust pending the disposition of the creditor’s claim against them.

Krystyne Rusek co-authors article, “You’re Going to Court In Person?!! An update on courtroom technology from your Section Technology Liaisons”

Krystyne Rusek, counsel with Speigel Nichols Fox LLP, and with the assistance of Matthew Bradley, co-authored the article, “You’re Going to Court In Person?!! An update on courtroom technology from your Section Technology Liaisons” for the Ontario Bar Association. The article explores the gradual return back to in-person hearings and how lawyers are expected to use technology, with pointers on how to avoid disruptions and pitfalls.

Krystyne Rusek moderates panel, “Will Validation, Substantial Compliance and Electronic Documents: Updates and Future Changes”

On February 8, 2024, Krystyne Rusek, counsel at Speigel Nichols Fox LLP, is moderating a panel for the Ontario Legal Conference: Family, Estates and Real Estate Law. Krystyne will moderate the panel on “Will Validation, Substantial Compliance and Electronic Documents: Updates and Future Changes” with Liza Saad, Tupman & Bloom LLP, and Demetre Vasilounis, Fasken Martineau DuMoulin LLP. The panel will address how the law has developed since the Succession Law Reform Act was amended in January 2022 to permit judges to validate wills that are non-compliant with formal requirements under the Act.

Costs (2)

Speaking of costs, in Prasher Steel Ltd. v. BWK, a 2023 decision of the Ontario Superior Court of Justice, the defendants were wholly successful in a decades-long contract dispute. The trial judge was tasked with determining the appropriate scale, and award, of costs.

The defendants asked for substantial indemnity costs. The judge noted that the normal scale of costs is only partial indemnity and that a higher scale of costs is reserved for exceptional circumstances, such as reprehensible or outrageous conduct on the part of one of the parties. Here, the judge agreed that substantial indemnity costs were appropriate for several reasons:

Lien Start Date

When a subcontractor supplies materials or services (collectively, “services“) to an improvement and is not paid, it has the right to register a lien against the project lands. Under the current Construction Act, a sub has to register its lien within 60 days of the last supply of the services. Under the old Construction Lien Act, a sub had only 45 days. The lien period also starts to run upon publication of substantial performance of the prime contract, but that alternative is not the subject of this newsletter. So, when does the sub last supply its services? That was discussed in Ozz Electric Inc. v. Bondfield Construction Company Limited, a 2023 decision of an associate judge of the Ontario Superior Court of Justice.

Parties

The sub, Honeywell, supplied services; the general, Bondfield, did not pay for them in full; and Honeywell registered a lien against the project lands on February 21, 2020. This registration was based on an alleged last supply of services of January 8, 2020. The project was governed by the old Construction Lien Act so that Honeywell had only 45 days to register its lien.

Oppression

Pereira v. TYLT Technologies Inc. 2023 Ont CA

The corporation’s founder and officer, director, and shareholder was fired by his co-founder and an outside director and removed as a director. His unvested shares were to be purchased pursuant to a shareholders’ agreement at a nominal value. Regardless of the shareholders’ agreement and that an employment agreement allowed the termination, the Court of Appeal noted that the oppression remedy, which was equitable, requires not just a legalistic analysis, but a determination of whether the actions of the majority were “fair.” The court found that the founder could reasonably expect that he would continue in his role with the corporations at least until his shares were fully vested. The court remitted the matter to be heard by way of a trial to determine whether the majority acted properly so that it was in the best interests of the corporation to divest the founder of a further role in the corporation and the unvested shares.