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May
25
2017
Costs – Simplified Rules
Evoke Solutions Inc. v. Chive Inc. 2017 Ont SCJ
Plaintiff sued for $116,000, but was allowed to do so under the Simplified Rules. The judge awarded about $46,000 including interest. The plaintiff had offered to settle initially for $35,000 plus costs and later for $20,000 plus costs. The plaintiff was presumptively entitled to its costs on a partial indemnity basis to the date of the first offer and on a substantial indemnity basis thereafter. The plaintiff sought $87,000 in costs. The defendant suggested $23,000, half of the amount awarded. The judge acknowledged that the simplified procedure was meant to be cost-effective and was not intended to be as expensive as a trial by ordinary procedure. The judge awarded $50,000 including disbursements and HST.
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25
2017
Stay of Action – Bankruptcy
2811472 Canada Inc. v. Canada 2017 Ont SCJ (Master)
Once an action has been stayed by virtue of a bankruptcy, the registrar has no jurisdiction to administratively dismiss the action.
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25
2017
Affidavits
Responsive Brands Inc. v. 2139233 Ontario Ltd. 2017 SCJ (Master)
In a motion for summary judgment, if the parties cannot agree, the moving parties’ witnesses are to be cross-examined first and then, regardless whether there are undertakings or refusals outstanding, the cross-examination of the responding party’s witnesses will take place.
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25
2017
Summary Judgment
Sims v. Zaitlen 2017 Ont SCJ
A case management judge has jurisdiction to refuse to allow a party to bring a motion for summary judgment. In making the decision, the judge must determine whether the motion (or mini-trial) would provide a fair and just adjudication of the dispute in a timely, affordable, and proportionate procedure.
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25
2017
Release
Biancaniello v. DMCT LLP 2017 ONCA
General releases drafted in an exceptionally wide manner can release claims that neither of the parties ever contemplated at the time of the release. It all depends on the situation and the wording of the release. In general, if a release includes “all claims”, it means all claims. It does not have to say tort claims or breach of contract claims. They are included unless specifically excluded. Similarly, all claims include known and unknown claims. Accordingly, when a release between a client and an accountant released all claims arising from all services to a particular date, the release included negligence that neither of the parties contemplated at the time of the giving of the release, negligence that was discovered three years after the release was given.
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05
2017
Employee Resignation
Johal v. Simmons Da Silva LLP 2016 Ont SCJ
If an employee resigns her employment and the employer accepts that resignation, then the employee is precluded from changing her mind and resiling from the resignation. If the employer never accepted the resignation, then the employee has a right to reinstatement if the employer is unable to show detrimental reliance. But what is a resignation? It has to be clear and unequivocal and it requires a fact-driven assessment of all relevant evidence. In this case, the judge held that “a reasonable person would not have viewed the Plaintiff’s action as a voluntary resignation” even though the plaintiff had been vocally unhappy with her proposed reassignment, handed in her security fob, and left the office for a week without further explanation. The judge held that, given the circumstances (e.g. a 62-year-old employee who had been employed for 27 years), the employer was required to something to determine the employee’s true and unequivocal intention.
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05
2017
Limitations
Weinbaum v. Weidberg 2017 Ont Div Ct
Homeowners commenced an action in 2010 against contractor for a mould problem discovered in 2008 relating to a project completed in 1994. The contractor issued a third party action against the architect in 2011 claiming contribution and indemnity. The architectural agreement between the homeowners and the architect contained a provision that any cause of action that the homeowners had against the architect expired in 2000. Did this mean that the contractor could not claim indemnity against the architect? The contractor relied on section 18 of the Limitations Act which states that the two-year limitation period for contribution and indemnity runs from the date that the party claiming indemnification (i.e. the contractor) is served with the statement of claim. The court acknowledged that this section that dealt with limitations, but relied upon the 1978 Supreme Court of Canada decision in Dominion Chain v. Eastern Construction, which stated, regardless of limitation laws, contracting parties could limit their scope of liability in the contract so that when a right of a plaintiff (i.e. the homeowners) is lost by way of a contract, similarly the defendant (i.e. the contractor) has no right to claim over against the other contracting party (i.e. the architect).
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