Legal Blog:

Cross Examination – Third Party on Motion

Magnotta Winery Corp v. Ontario (Alcohol and Gaming Commission) 2016 Ont Master

A party may examine a non-party pursuant to Rule 39.03 to obtain evidence for use on a motion. However, the non- party witness has no duty to inform himself of any information. The witness can either answer the question whether witness cannot. This differs from the cross-examination of a deponent on an affidavit who may be compelled to obtain further information if it is readily available and it is not onerous to do so.

Assessment Appeal

RZCD Law Firm LLP v. Williams 2016 Ont Div Ct

The Court set aside the Superior Court decision, amending an assessment of an account, for three reasons:

• The law firm appealed the assessment officer’s decision without first giving objections to the assessment officer and allowing him a chance to correct the decision. An appeal can be launched without giving objections when the appeal is solely dealing with jurisdiction, but not when the appeal deals with specific items in issue.
• The motions judge allowed the law firm to submit new evidence without meeting the criteria for the submission of new evidence on appeal.
• The motions judge did not pay deference to the assessment officer. A matter should be corrected only if the assessment officer’s assessment is so low or high as to be improper beyond all question.

Breach of Trust and Limitation Period

Employment Professionals Canada Inc. v. Steel Design and Fabricators (SDF) Ltd. 2016 Ont SCJ

As in the Frank’s Drilling case, the court held that the limitation time for a breach of trust claim against a director did not start to run until (at least) when the corporate contractor breached its trust and the corporate contractor did not breach its trust until the owner paid it.

Redemption

Armanasco v. Linderwood Holdings Inc. 2016 Ont SCJ

Mortgagee sold under power of sale. The sale was not conditional in the usual sense, but allowed the mortgagee to escape liability if the mortgagor was able to redeem. The mortgagor attempted to derail the sale. The court held that the mortgagor had no right to redeem because (a) there was no fraud or bad faith in the sale, (b) the mortgagor had no privity of contract with the mortgagee by which the mortgagor could enforce the redemption clause in the agreement of purchase and sale, and (c) in any event, the mortgagor was not in a position to pay the funds necessary to redeem.

Estimates of Legal Fees

Some lawyers, like us and many of you, have been using alternate fee arrangements, such as fixed fees, value driven fees, or contingency fees, rather than a fee determined by the product of hourly rate and time. However, even those lawyers who use straight hourly rates are called upon, on occasion, to estimate what the ultimate fees might be. Just as the setting of the fixed fee is difficult, so too is the setting of an estimate. The only difference is that a fixed fee is set in stone, and must be honoured, regardless of the time spent, but an estimate is still just an estimate.

Lawyers who provide an estimate have a duty to notify the client if they can reasonably determine, as the case progresses, that their estimate will be too low. If they fail to do so, they may find, on an assessment, that their fees will be cut back, regardless of the non-binding nature of an estimate.

For some clients, it is not sufficient just to attack fees as being too high. In Mitchinson v. Baker (2015) O.R. (3d) 220 (C.A.), the client wanted to go the extra mile.

Retainer

The client retained the lawyer to deal with the client’s employment-based, human rights complaint. He settled the matter favourably for the client, but charged significantly more than his $30,000 estimate. The client assessed the account, as was her right. However, that did not seem to suffice. Before the assessment was completed, the client commenced a number of actions against the lawyer, we assume for negligence and breach of retainer. LawPro, in accordance with its obligations, defended the lawyer.

Damages and the Duty to Mitigate in Fixed Term Employment Contract Situations

In the recent Court of Appeal decision in Howard v. Benson Group Inc., 2016 ONCA 256, the employer learned a very costly lesson when it was ordered to pay an employee more than $200,000.00 following the employee’s termination under a fixed term contract. The decision highlights the need for employers to pay very close attention when drafting early termination clauses in fixed term contracts.

The employee had entered into an employment contract for a 5-year fixed term. His employer terminated his employment, without alleging cause, 23 months into the contract. Employee sued for breach of contract claiming payment of compensation for the unexpired term of the contract i.e more than three years’ salary. On the employee’s motion for summary judgment, the judge granted the motion but not the relief sought by the employee. Instead the motions judge awarded the employee common law damages for wrongful dismissal.

The contract in issue contained an early termination provision that stated as follows:

Tim Morgan’s CBC News Interview

Tim was recently featured on CBC News Nova Scotia, listen to his interview here: In the coming new age of legal marijuana, where do you think it should be sold?

The Speigels Taking it to the Edge

At SNF LLP, we are constantly pushing into new frontiers, literally. Jonathan and Allison did the CN Tower EdgeWalk recently, results below.

Ingenuity

The ingenious methods by which lawyers attempt to circumvent the provisions of section 8(1) of the Interest Act (Can) never cease to amaze us. We discussed one such method in our October 2015 newsletter. The latest is set out in the Supreme Court of Canada decision in Krayzel Corp v. Equitable Trust Co., 2016 SCC 18.

Scheme

Section 8(1) of the Interest Act provides:

“No fine, penalty or rate of interest shall be stipulated for, taken, reserved or exacted on any arrears of principal or interest secured by mortgage on real property or hypothec on immovables that has the effect of increasing the charge on the arrears beyond the rate of interest payable on principal money not in arrears.”

Alternative

The usual way that a judgment creditor can sell a debtor’s interest in real property (i.e. land, house, etc.) is to obtain and file a writ of seizure and sale with the sheriff of the judicial district in which the property is situate and direct the sheriff to sell the debtor’s interest in the property at a public auction. There are a number of practical problems with this process. Some of them were outlined in Canaccede International Acquisitions Ltd. v. Abdullah, a 2015 Ontario Superior Court of Justice decision.

Problems

If the judgment debtor owns the property as a tenant in common or a joint tenant with another person, then the sheriff can only sell the debtor’s interest in the property.

In this scenario, a prospective purchaser will lowball the purchase price, knowing that the purchaser is only buying an interest in property that the purchaser must share with another joint owner. However, the lowball offer can generally not be less that the sheriff’s reserve price, which is set at about 60% – 70% of the fair market value of the debtor’s interest in the property.

What does the purchaser get out of this process? As an owner of an interest in property, the purchaser has the right to bring an application for partition and sale of the property. The purchaser may or may not be successful in this application. If the purchaser is successful, the court will order that the property be sold and the net proceeds be divided according to the parties’ proportionate interests in the property. If the purchaser is not successful, the purchaser will have an interest in the property that will only be saleable in the future when circumstances change. Not a great scenario. No wonder a purchaser tries to snap up the debtor’s interest at a very low price. The purchase involves real risk.

As part of the sale process, the sheriff insists on receiving a mortgage statement from any encumbrancer. What may actually be owed on a mortgage could be significantly higher or lower than the principal amount of the mortgage registered on title to the property.