Legal Blog:
Best of Both Worlds
We discussed in our December 2002 newsletter how a seemingly innocuous clause in a release has real teeth. We refer to the “no claims over” clause, which disallows a releasor from commencing another action, if the releasees are drawn into that action by way of a third party claim for contribution or indemnity.
Continue Reading >Good Deeds
As far as we are concerned, one of the duties of a senior lawyer is to advise other lawyers upon their request. It is professional and it is payback for all of the advice that the senior lawyer had received in his or her junior days. However, what happens when the person receiving the advice alleges that the advice was deficient or wrong? This was the allegation in D’Amore Construction (Windsor) Ltd. v. Lawyer’s Professional Indemnity Company [2005] O.J. No. 448 (Div’l Ct).
Continue Reading >Interest Squeeze
Mortgagees attempt to ensure that mortgagors pay all of the mortgagees’ administration costs and, in general, that interest payments are applied solely to the return that mortgagees are to receive for the mortgagors’ use of the mortgagees’ money. Sometimes, however, a mortgagee goes too far. This occurred in NBY Enterprises Inc. v. Duffin, a 2006 decision of the Ontario Superior Court of Justice.
Continue Reading >Prudence
A security holder (e.g. a mortgagee) has a duty to deal prudently and diligently with the security that it holds. For example, if a creditor holds shares in stock as security for a loan and the creditor wishes to sell that stock, the creditor must obtain a reasonable price for it. Selling stock that is worth $20.00 per share for $4.00 per share will result in the secured creditor being liable to the owner of the stock for $16.00 per share.
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