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Oct
31
2016

Limitations

407 ETR Concession Co. v. Day 2016 Ont CA

Unlike the old Limitations Act and the common law, the Limitations Act, 2002 adds one more condition for a limitation period to start to run: “having regard to the loss or damage, a proceedings would be an appropriate means to seek to remedy it.” 407 ETR had two means to collect arrears in tolls: sue or wait for the registrar to refuse to renew the defendant’s license. The court decided that, even though ETR knew it had a cause of action against the debtor almost immediately, waiting for the registrar to refuse to renew a license plate was an extremely effective remedy for ETR to get paid. Rather than clog the courts with unnecessary Small Claims Court actions for trivial amounts, it was reasonable to wait for the date upon which the registrar refused to renew the debtor’s license. It was only then that, having regard to ETR’s situation, it would be reasonable for ETR to commence a proceedings.

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Oct
31
2016

Negligent Representation – Entire Agreement and Exculpatory Clauses

Singh v. Trump 2016 Ont CA

Two unsophisticated purchasers bought condominium hotel units in the Trump International Hotel, in Toronto, as investments, ultimately wildly unsuccessful. The developer had received a ruling from the Ontario Securities Commission allowing an exemption from normal prospectus requirements on condition that the developer not market the hotel units by emphasising the potential for profit through the reservation program. That program was a means by which the hotel would rent the purchasers’ units and remit rental income after deducting expenses.

Contrary to the OSC conditions, the developer did market the hotel units by emphasising the potential for profit. In its sales pitch, it provided a document that made assumptions, based on nothing, that elevated revenue and minimised expenses.

The motions judge held that the plaintiffs proved 4 of the elements necessary for negligent misrepresentation, but failed to prove the 5th (i.e. the purchasers did not reasonably rely on the representations). The Court of Appeal disagreed. Although the estimates were for discussion purposes only, and not a guaranteed investment program, it was still reasonable for the purchasers to rely on them, or at least assume that there was some rational basis for the estimates to have been made.

The developer relied upon the usual clauses in the agreement that there were no oral representations and that the agreement constituted the entire agreement. The Court of Appeal, relying on Tercon, a Supreme Court decision, held it was unconscionable for the developer to be able to escape exposure as a result of these clauses, particularly, but not only, because the developer had breached the OSC’s conditions for marketing the property.

The Court allowed one of the purchasers, who had not closed the final purchase, to rescind the contract. The other purchaser, who had closed the purchase, was not granted rescission, but was granted damages.

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Oct
25
2016

SNF is Hiring!

Posted in SNF News

We are currently hiring for two law clerk positions.

hiring

Please email rosea@ontlaw.com with the information. Click here to download job requirements.

 

 

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Oct
25
2016

Assignment

Nadeau v. Caparelli 2016 Ont CA

Under old jurisprudence, an assignee could sue in its own right, without joining the assignor, under the following circumstances: (i) a legal assignment of either a legal or equitable chose in action (ii) an equitable assignment of an equitable chose in action. If there was an equitable assignment of a legal chose in action, the assignor had to join the assignee. This was changed in 1985 by Rule 5.03(3). The assignor does not have to be joined if the assignment is absolute and notice in writing has been given to the person liable to pay.

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Oct
25
2016

Trust Fund

Delco Automation Inc. v. Carlo’s Electric Ltd. 2016 Ont CA

Only evidence was that general paid down to the sub all of the money received for the sub’s work. Court held that there was therefore no proof of a breach of trust and no reason for personal liability.

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Oct
25
2016

Insurance

Gemeinhardt v. Babic 2016 Ont SCJ

Vendors held liable for all defects in house, given that they had built the additions themselves and not taken out a building permit. Title insurance policy interpreted expansively for homeowner with exclusion interpreted narrowly. Title insurer jointly liable with the vendors, but had a right of indemnification from them.

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Oct
24
2016

Surprised?

Posted in Collections

surpriseIn general, fair settlements of disputes beat the alternatives of litigation or arbitration. However, fair settlements cannot be fair if one litigant does not live up to the terms of the settlement. Parties to a settlement have to ask themselves: what happens if the other party does not perform its settlement obligations? Once they ask this question, they have to ensure that the settlement agreement provides the answer. If they fail to do so, or even fail to contemplate the question, then nasty surprises can occur. The plaintiff in Finness Yachting Inc. v. Menzies, a 2015 British Columbia Supreme Court decision experienced a nasty surprise – or did it?

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Oct
24
2016

Knowledge of the Limitation Period

Posted in Lawyers' Issues

People either have knowledge; do not have it and should not be expected to; or do not have it, but ought to. No, this is not a philosophical discussion; it is a discussion relating to the proper commencement of a limitation period. Two relatively recent decisions of the Ontario Court of Appeal answer some questions regarding commencement of limitation periods and knowledge: Lauesen v. Silverman, 2016 ONCA 327 and Clarke v. Faust, 2016 ONCA 223.

knowledge

Discovery

We have paraphrased provisions of section 5(1) of the Limitations Act, 2002 (the “Act“); the exact section follows:

“5.  (1)  A claim is discovered on the earlier of,

(a)       the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii)       that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii)      that the act or omission was that of the person against whom the claim is made, and

(iv )     that, having regard to the nature of the injury, loss or damage, a proceeding would be an    appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).”

 

Our discussion centres on sections 5(1)(a)(iv) (i.e. subjective knowledge) and 5(1)(b) (i.e. objective knowledge)

 

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Oct
17
2016

Preservation of Lien (Lien Time)

Toronto Zenith Contracting Ltd. v. Fermar Paving Ltd. 2016 Ont SCJ

The subcontractor had shut down a paving operation for the winter. Over the winter, it had a dispute over unpaid accounts with the general and terminated its contract in February, before it was scheduled to recommence. It registered a claim for lien on a timely basis if the termination date was the date upon which the lien period started to run, but would have been late if the last day of work was the date upon which the lien period was to start to run. The judge held that the lien period started to run on termination. Merely because the subcontractor had stopped the on-site work, did not mean that it was not doing work “in respect of” the project. The sub had been submitting shop drawings, obtaining some additional materials, and preparing for the spring start-up.

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Oct
17
2016

Security for Costs

1652472 Ontario Inc v. Miwel Construction Ltd. 2016 Ont SCJ (MC)

The Master confirmed that a motion for security for costs was appropriate in a construction setting, particularly when a lien had been vacated by posting security. He noted that shareholders were not obliged to make themselves liable for costs nor to pledge their own assets as security. It was their decision to make. However, if they did not post security, their corporation had no right to continue with the litigation. The Master stressed that to show impecuniosity, the shareholders had to supply proper evidence.

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