Legal Blog:

Duress & Practical Compulsion

Ekum-Sekum Inc. v. Bel-Air Excavating & Grading Ltd. 2017 Ont SCJ

Specifications stated that paving could not take place unless the road surface was at least 2°C and could not be done after November 30 without permission. Through no fault of the paving contractor, the construction was delayed. The general wanted the paving done before winter. The paving contractor insisted that, if the work were not postponed until the spring, then it could not perform the paving unless the general released it from liability for a possible faulty product. The general signed the release, the work was done, the temperature was too cold, and, ultimately, the paving had to be redone. The paving contractor relied on the release. The general alleged that the release was given under duress. The court held in favour of the paving contractor. Alternative courses were open to the general, the general was independently advised that it should not sign the release, and the general did nothing to ensure that the paving did not take place when the temperature was too cold. In addition, the pressure that the paving contractor exerted was for a legitimate reason (i.e. to be absolved from non-compliance with specifications about which the general was warned).

Time of Essence

Deangelis v. Weldan Properties Inc. 2017 Ont SCJ

Closing set for August 23. Time was of the essence in the agreement. On the date of closing, purchaser’s lawyer contacted the developer vendor’s lawyer indicating that, although the mortgage was approved on August 22, it could not be advanced in time for the closing; the lawyer requested a 3-day extension. Later that day, the vendor’s lawyer responded noting that there was an anticipatory breach, terminating the agreement, and claiming forfeiture of the $20,000 deposit. In effect, the purchaser repudiated the agreement and the vendor accepted that repudiation or before the closing date to terminate the agreement. The purchaser moved for specific performance and the vendor moved to obtain the deposit. On a summary judgment motion, the judge held for the vendor. Good faith was not relevant and the inability of the purchaser to close the transaction had nothing to do with the vendor. Parties must be allowed to insist on strict compliance with the terms of an agreement; otherwise there is uncertainty.

Costs Thrown Away

Furr v. Duhamel 2017 Ont SCJ

The judge granted an adjournment of an application hearing, an adjournment made necessary because of the illness of the applicant’s lawyer. The judge awarded costs thrown away of $23,500 to the respondents, noting that costs thrown away are still awarded against the party applying for an adjournment, notwithstanding lack of fault. It is only when the court proceeding is adjourned because of the court’s scheduling problems that no costs are awarded.

Equitable Execution or Mortgage

Bank of Montreal v. Georgakopoulos 2017 Ont SCJ

Bank receive payment on a line of credit and discharged its mortgage. Unfortunately, the bank forgot to close the line of credit and the defendants ran up an additional $295,000 in debt. The bank brought an action for an equitable mortgage on the defendants’ new property and repayment of the loan. The bank then obtained a certificate of pending litigation without notice. The defendants, acting for themselves, brought a motion to set aside the certificate and dismiss the action. The judge noted that the self-represented defendants’ motion materials addressed various principles of constitutional and international law, having nothing to do with the plaintiff’s claim, and dismissed the motion.

Personal Liability

Spoke v. Delinia Ltd. 2017 Ont (Div Ct)

Principal was held liable for corporation’s breach of construction contract. Although the owner knew of the existence of the corporation, the principal did not make it clear that the only entity with whom the owner was dealing was the limited liability corporation.

Examinations of Non-Resident Parties – Cost

Ali v. Gibbons 2017 Ont SCJ

Accident occurred in Ontario when plaintiff resided in Ontario. Plaintiff now resides in Saskatchewan. Rule 34.07 discusses what is to take place when a non-resident is examined for discovery. Since there was no question of the plaintiff being medically or otherwise incapable of travelling to Toronto and since the lawyers for the parties wanted the examination to take place in Toronto, the plaintiff was given 2 choices: be discovered in Saskatchewan by way of a videoconference, the cost of which would be split equally, or attend in Toronto with travel, meals, and accommodations to be shared equally.

Construction

King Road Paving and Landscaping Inc. v. Plati 2017 Ont SCJ

Owner, general, and subcontractors contested just about everything. Findings:

• Owner was given credit for some payment in cash even though there were no receipts because general admitted paying his payroll in cash and it made no sense that the general would have continued to work without having received additional money in excess of the cheques.
• When a contract is silent about payment of HST, HST is payable in addition to the contractual amount.
• There was an alleged increase in price between the 2^nd and 3^rd contracts, but there was no new consideration for the increase.
Continue Reading >

Succession Planning Round Table

The event addressed some of the major issues underlying succession planning from a legal, financial planning, tax, and insurance perspective. After a moderated panel discussion, there was a facilitated round table discussion to allow participants to join the conversation and explore any succession planning issues they may have been facing.

Allison Speigel’s The Globe and Mail Article

Allison’s article on why our broken civil justice system is bad for the economy was published in The Globe and Mail. Click here to read

Bald

No, we are not talking about the surface of a man’s head; rather, we are talking about “bald allegations” of fact in affidavits and whether they are effective to achieve their purpose. We have often stated that lawsuits should really be called factsuits because, in most cases, the real fight is not about the law; the real fight is about the facts to which the law is applied. This differentiation was front and centre in Airex Inc. v. Ben Air System Inc., a 2017 decision of the Ontario Court of Appeal.

Motion

This was a run-of-the-mill $217,000 summary judgment motion that a subsub brought against a sub and its two directors arising out of monies due on contract and breach of trust.

The Court gave a short summary of the trust provisions in the Construction Lien Act:

“Section 8 of the Act provides that monies received on account of a contract for an improvement constitute a trust fund for the benefit of subsubcontractors and other persons who supply services or material for the improvement (collectively “subsubcontractors”) and prohibits use of any such funds for a purpose inconsistent with the trust until all such persons have been paid in full.