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Jan
28
2019

Partial Summary Judgment

Mason v. Perras Mongenais 2018 Ont CA

The Court of Appeal continues its quest to discourage partial summary judgment (see Butera v. Chowns 2017 Ont CA). A client sued his lawyer and the lawyer that his lawyer had retained for allegedly not giving him proper tax advice relating to a matrimonial settlement. The retained lawyer, who had given proper advice to the retaining lawyer, moved for summary judgment and was successful. The Court of Appeal set aside the dismissal because, it said, the advice was sought and provided by way of a tripartite arrangement involving the client, retaining lawyer, and retained lawyer. How that advice was sought and provided would be the subject of evidence from all three participants and therefore a trial was necessary in which all participants were involved. As an aside, we agree with the motion judge’s decision on the merits, but the judge fell afoul of the partial summary judgment criteria when he noted/admitted that summary judgment would save “little evidence or time at trial.” He also stated that he would not accept the rule that partial summary judgment not be granted in a case that might possibly have a risk of duplication or inconsistent verdicts. These statements were like waving a red flag in front of a bull because they were contrary to criteria set down in Butera. The Court stated that summary judgment, rather than trial, remains the exception, not the rule.

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Jan
28
2019

Dishonesty

CM Callow Inc. Zollinger 2018 ONCA 896

A maintenance corporation had two contracts with a condominium. The first covered summer maintenance work and the second covered winter maintenance. The winter contract, which ran from November 2012 to April 2014, contained a provision allowing for early termination on 10 days’ notice. In April 2013, the condo decided to terminate the winter contract, but, to avoid jeopardising completion of the corporation’s work under the summer contract, waited until just after that work had been completed in October 2013 to terminate the winter contract. The trial judge concluded that the condo breached its duty of honest performance by acting in bad faith. The court noted that the concept of good faith was not to be applied to undermine long-standing contract law principles and thereby create commercial uncertainty. There is no unilateral duty to disclose information relevant to termination. The corporation bargained for 10 days’ notice and that was all it was entitled to. The duty of honest performance requires a party to be honest concerning matters directly linked to the performance of that contract, not some other contract. The court noted that the condo may have failed to act honourably, but it was not dishonest.

                                            2020 SCC

The Supreme Court of Canada reversed. The majority (and the trial judge) said that the condo was dishonest about the winter contract. It pretended as if the contract was to be renewed and represented it was not in danger (when it had already decided to end it) and misled the corporation. The dishonesty was directly linked to the performance of the winter contract because the condo’s exercise of the termination right provided to it under the contract was dishonest. The condo did not have to tell the corporation of its decision, but could not actively mislead the corporation about it.

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Jan
21
2019

This Land was my Land, now this Land is your Land: An Owner’s Guide to Expropriation

Posted in Expropriation

In Pixar’s Up, a widowered balloon salesman faces the prospect of having the city expropriate his land to build a new high-rise complex. Rather than leave his life-long home, he ties thousands of balloons to his roof and escapes with his house to a far-off tropical paradise filled with stunning vistas and talking animals. Unfortunately, in real life, business owners facing expropriation cannot simply fly away. Instead, they are tethered to the cold hard reality of the Expropriations Act. We address below some of the most common questions that owners have about the expropriation process.

What is Expropriation?

Expropriation arises when government, or its agencies, takes land without an owner’s consent. Expropriation often occurs when government needs specific land for public works projects (i.e. highways or mass transit, such as LRTs). The Act attempts to compensate owners (which can include tenants) for the fair value of their interest in the land.

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Jan
07
2019

Irony

Posted in Construction

Only in a construction scenario can a cause of action arise in 2000 and still be kicking up litigation battles in 2018: see HOOPP Realty Inc. v Guarantee Company of North America, 2018 Alta Q.B. We have already discussed (see September 2014 newsletter) a sister action in A.G. Clark Holdings Ltd. v. HOOP Realty Inc., a 2013 decision of the Alberta Court of Appeal.

History

And we do mean history.

HOOPP, the owner, retained Clark, the general, to build a warehouse. GCNA, the surety, provided a CCDC performance bond. The project was substantially completed in March 2000. Unfortunately, problems arose and, in 2002, the owner commenced two action: the first against the general for damages arising out of construction deficiencies and the second against the surety on the bond.

A construction crew working on a unfinished building.

The parties ultimately agreed that the general would replace the warehouse floor and the general did so. However, other damages were in issue and, after the general replaced the floor, the owner pushed on with its damages action. We assume that the bond action remained in limbo pending the results of the damages action.

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Jan
02
2019

Costs – Leave to Appeal

Hronowsky v. Hronowsky 2018 Ont Div Ct

The Court noted that counsel had not submitted costs submissions before the cut-off date of 5 days before the hearing of the leave to appeal motion. Accordingly, it allowed costs of only $2,000. Winning counsel then noted they had not made the cost submissions because offers to settle were outstanding, a specific exemption under the appropriate practice direction. The court acknowledged that the practice direction did not require counsel, before the motion was to be heard, to note that its silence arose because of the exemption and therefore counsel’s silence would not be held against them. The court amended its costs ruling to award the maximum of $5,000. Takeaway- if cost submissions are not to be made before the cut-off date because of offers to settle, notify the court.

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Jan
02
2019

Venue – Transfer of Action

Shahbaz v. Mizrahi 2018 Ont SCJ

Motions to change venue from one judicial region to another must, under Rule 30.1.02 and the Consolidated Provincial Practice Direction, be brought in writing to the Regional Senior Judge of the region to which the action is proposed to be moved. The moving party must show that it is in the interests of justice and that the proposed place of trial is not only better, but is significantly better than the plaintiff’s choice of trial. In this case, the action was moved from Hamilton to Newmarket because the events giving rise to the action occurred in York Region, the residential property at the centre of the litigation was located in York Region, the parties resided or were located in York Region as did other individuals likely to be witnesses at trial, the damages were sustained in York Region, and the only apparent reason for the commencement of the action in Hamilton was that counsel for the plaintiffs was located there.

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Jan
02
2019

Electronic Signature

Hurst Real Estate Service Inc. v. Great Lands Corporation 2018 Ont SCJ

A real estate commission arrangement was negotiated by way of emails. The vendor argued that the arrangement did not comply with s.23(1) of the regulations to the Real Estate and Business Brokers Act, which requires an agreement for commission to be in writing “signed by or on behalf of the person required to pay the Commission.” The vendor’s email did not have a signature, only a typed name of the writer and his position with the vendor. The judge held that “in this digital age in which commerce is routinely conducted with the assistance of informational technology, this type of electronic signature meets the requirements under the Regulation…”

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