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Apr
13
2018
Limitations: ‘Discoverability’ in Relation to Claims for Contribution and Indemnity
Murphy v. Hart 2018 Ont SCJ
Section 18 of the Limitations Act provides that the limitation period, when one wrongdoer looks to another wrongdoer for contribution, runs from the date that the first wrongdoer was served with the statement of claim for which contribution is sought. The issue was whether that date is static or whether it can be extended based on discoverability principle in the same manner that a regular limitation start date can be extended. The judge held that discovery principles applied to section 18, but held, under the circumstances of this case, that the person claiming contribution ought to have made more effort to learn the identity of the ultimate wrongdoer and therefore ought to have discovered its claim earlier. The judge held that the claimant had a positive obligation to demonstrate, on a balance of probabilities, that the claimant acted reasonably in attempting to discover the elements of the claim, including the identity of the third party. The judge held that it was insufficient simply to say we did not know and we did not try.
Continue Reading >Apr
13
2018
Costs: A Discussion of Reasonableness and Proportionality
Persampieri v. Hobbs 2018 Ont SCJ
After a personal injury trial, the plaintiff was awarded $20,400. The judge awarded the plaintiff costs of $134,000 plus HST in fees and $20,250 plus HST in disbursements. The judge readily agreed that the costs were not proportionate to the amount ultimately owing, but took into consideration the following. The plaintiff had first offered to settle for $20,000 plus partial indemnity costs and ultimately offered to settle for $10,000 plus partial indemnity costs. The insurance company defendant had decided at the start of the litigation, and communicated this to the plaintiff, that it would not pay anything for the plaintiff’s claim. The court held that to unduly shave the costs, especially substantial indemnity costs under rule 49, based primarily on proportionality would be unfair. Further, the judge did not want to sanction the insurer’s litigation strategy to undercompensate the plaintiff because this would jeopardise overall access to justice.
Continue Reading >Apr
09
2018
Resulting Trust: What is the Relevance of an Intention to Defeat Creditors?
Holtby v. Draper 2017 Ont CA
Husband transferred a property to wife to hide the property from creditors, in essence to defeat or delay their claims. Ultimately, husband settled with his creditors. He then wanted title to the property transferred back to him, given that wife had paid no consideration for the original transfer. The court held that there was a resulting trust (i.e. wife held the property in trust for the husband as beneficiary). The court held that, although intention to defeat creditors can be evidence of a gift, it is not conclusive and, in this case, the facts demonstrated that there was no intention to gift. Wife was ordered to retransfer the property.
Continue Reading >Apr
09
2018
Court of Appeal Weighs in on a Driving Range Operator’s Damages for Unlawful Distraint and Conversion of Assets
2105582 Ontario Ltd v. 375445 Ontario Limited 2017 Ont CA
Landlord terminated the lease and then retained the tenant’s trade fixtures on grounds that they became affixed to the land and were therefore the property of the landlord. The court held the landlord liable for conversion of the tenant’s property. A landlord cannot distrain anything other than chattels and the tenant’s trade fixtures were not chattels. Further, a landlord cannot distrain after terminating a lease. Damages for conversion were set at the fair market value of the chattels at the date they were taken. Had the defendant sued in a quaint tort known as detinue, the damages would have been the value of the assets at the date of trial plus the equivalent of the rental of the assets during the detention. The tenant was only entitled to these compensatory damages. It could not show that it should be allowed punitive damages because the landlord truly was of the opinion that the property was that of the landlord. It could not receive damages by which the landlord disgorged its profits from the use of the chattels because, with damages for conversion, it was deemed to have sold the chattels at the time of the conversion.
Continue Reading >Apr
09
2018
Subcontractor’s Motion to Amend it’s Claim Against the City of Kitchener is Dismissed
Ozz Electric Inc. v. Zurich Insurance Co. 2016 Ont SCJ
In addition to commencing an action against the surety under a labour and material payment bond, the subcontractor wanted to amend its claim to add the owner and allege that the owner was liable under the bond to the subcontractor. The judge noted that section 69(1) of the Construction Lien Act allowed a claimant under a bond to sue the surety without the involvement of the obligee/owner. The bond, as is usual, provided that a claimant must indemnify an obligee by reason of any proceeding the claimant commences against the obligee to enforce the bond. Accordingly, the judge dismissed that claim. The subcontractor then wanted to commence an action against the owner for alleged negligence and economic loss. Since the subcontractor had no contract with the owner, the subcontractor had to demonstrate a sufficiently close relationship between the owner and subcontractor to support a duty of care in favour of the subcontractor and that there were no policy considerations to limit that duty. The judge held that the subcontractor had not pleaded facts to support these allegations and dismissed this claim also. Finally, the subcontractor had the audacity to claim against the owner for contribution and indemnity of the claims that the general was making against the subcontractor for deficient workmanship. The judge dismissed that claim as untenable in law because contribution and indemnity can only be sought if the general could have claimed against the owner for the subcontractor’s deficient workmanship and, of course, it could not.
Continue Reading >Apr
09
2018
Validity of Lien: Examining the definition of “ownership” for the purposes of the Construction Lien Act
2349914 Ontario Inc. o/a Antares Construction Group v. Mastov 2018 Ont SCJ
A contractor liened a project. After a hearing, the Construction Master determined that the contractor was a joint venture founder and part of the ownership group. As such, it had no right to lien its own property. The lien was discharged.
Continue Reading >Apr
09
2018
Mitigation: Court confirms that there is no duty to mitigate if a landlord chooses to keep the lease alive
7Marli Ltd. v. Valu Canada Inc. 2017 Ont SCJ
The tenant moved out of the premises and withheld rent to put pressure on the landlord to settle with it. Rather than terminating the tenancy, the landlord merely sued for rent and then brought a motion for summary judgment for the arrears. The tenant argued that the landlord had a duty to mitigate its damages by re-renting the premises. The court held that, as long as the landlord did not terminate the tenancy, the landlord had no duty to mitigate its losses and could sue for rent as the rent came due.
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