
Legal Blog:
Holdback
New Tec Building Envelopes Ltd. v. Deciantis Construction Ltd 2015 Ont Div Court
Since holdback is not due until the 46th day after substantial performance is published, the limitation period to commence an action for non-payment of holdback does not start until the 46th day after publication, even if the services were rendered and invoiced long before publication. As for non-holdback monies due, the judge noted that a claimant had a reasonable period of time to deliver an invoice and a reasonable time for the defendant to pay the invoice before the limitation period started. She set 60 days as the reasonable time within which the defendant should pay and therefore started the limitation period running on the 61st day after delivery of the invoice.
Continue Reading >Susanne Balpataky’s HR Professional Magazine Article
Susanne‘s article was recently published in HR Professional Magazine. Click here to read: Stirring the Pot: Medical Marijuana in the Workplace
Exchange Rates
Hollowcore Inc. v. Visocchi 2016 Ont CA
Claim was made against engineers both for breach of contract and for professional negligence. Most of the damages were in US dollars. Section 121 of the Courts of Justice Act states that the exchange rate to convert into Canadian dollars is to be determined as of the date of judgment, but gives the court discretion to pick another time if the default time would be inequitable to any party. The trial judge picked the date of the statement of claim in 2000 rather than the date of the judgment in 2015. The exchange rate to a Canadian conversion was far more favourable in 2000. The Court noted the trial judge’s awareness that a change of the exchange rates alone could not create an inequity; however, the passage that the Court quoted indicated only that the inequitable positions arose from a change of the exchange rate.
Continue Reading >Alter Ego – Corporate Veil
McKercher v. Renovation Store Ltd. 2015 Alta QB
Homeowners hired a renovation contractor from hell. The written part of the contract did not specify the names of the parties although it referred to the corporation on its letterhead. The judge found that the individual behind the corporation was also liable for damages because the judge decided that the contract, which did not include an “entire agreement clause,” contained both oral terms and written terms and that the individual’s representations of competence formed part of the contract.
Continue Reading >Misrepresentation / Patent Defect / Latent Defect
Brown v. Cassidy 2016 Ont SCJ
A purchaser bought a house. Agreement contained the usual “entire agreement” and “no oral representations” clauses. As soon as the purchaser moved in, he found that there had been water damage and extensive mould. The defects were not obvious (i.e. not patent); accordingly, the purchaser was bound by caveat emptor (i.e. buyer beware) unless he could show any of the following:
- the vendor fraudulently misrepresented or concealed the latent defect
- the vendor knew of the latent defect rendering the house unfit for habitation
- the vendor was reckless as to the truth or falsity of statements made relating to the fitness of the house for habitation
- the vendor breached his duty to disclose a latent defect that rendered the premises dangerous
The judge found that the vendor advised the purchaser that there were no water problems since work done to remediate them had been done in 2002. The judge believed the vendor that there had been, to his knowledge, no such problems. Indeed, the vendor’s son had lived in the basement for many years and this would not have taken place if the vendor knew that there were mould problems. The judge dismissed the action.
Continue Reading >Dismissal of Action for Delay
Southwestern Sales Corp v. Spurr Bros. Ltd 2016 Ont CA
Claims for a lien were registered in 2001; trial records were filed in 2003. After some periods of activity and many periods of inactivity, the actions were struck from the trial list and ultimately dismissed at a status hearing. No one attended for the lien claimant at the status hearing because the lien claimant’s lawyer had surrendered his license to the Law Society, without notifying the lien claimant. Normally, the court does not prejudice the litigant because of the sins of its lawyer. However, in this case the defendant had had its money tied up in court for 10 years after vacating the liens from title and the plaintiff submitted no evidence to describe the steps it had taken to supervise its counsel in the action. The Court held that the lien claimant, a commercial entity, was required to take reasonable steps to supervise its lawyer to ensure an expeditious determination of the actions on the merits. The Court upheld the ruling to dismiss the actions.
Continue Reading >Tender
Elan Construction v. South Fish Creek Recreational Association 2016 Alta CA
The trial judge had reduced the plaintiff’s damages for breach of contract A based on the problems that the substitute contractor, who had been awarded the contract, had incurred at the project. Aside from one small issue, the Court disallowed that reduction. It held that there was no evidence to factually compare the outcomes of the project between the 2 contractors and no expert evidence to provide the reasoning bridge for any useful comparison between the 2 contractors.
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