Legal Blog:

Discovery Plan

Sullivan v. Northwood Media Inc. 2019 Ont SCJ (MC)

The court has the authority to set a discovery plan. In doing so, it is to account for proportionality. The suggested procedure is to use a baseball style arbitration for each issue (i.e. the court accepts either the plaintiff’s proposal or the defendant’s proposal).

Setting Aside Noting in Default

Gill v. Chahal 2019 Ont SCJ

If a defendant fails to file a defence within the stipulated time, a plaintiff may note the defendant in default. When done, the defendant receives no more notice of any of the actions taken in the proceedings. It is the first step to obtaining a default judgment. A defendant may set aside a noting in default pursuant to Rule 19.03. The test for doing so follows: “When exercising its discretion to set aside a noting of default, a court should assess “the context and factual situation” of the case… It should particularly consider such factors as the behaviour of the plaintiff and the defendant; the length of the defendant’s delay; the reasons for the delay; and the complexity and value of the claim. These factors are not exhaustive.” The defendant was noted in default in 2013; the plaintiff brought a motion for summary judgment in 2018, at which time the defendant realised that there was a problem and moved to set aside the noting in default. In this case, the judge set aside the noting in default: there was little prejudice to the plaintiff; the defendant did not need to show a defence on the merits; and the defendant was self-represented and therefore deserved some leeway.

Holdback Calculation

Thompson v. Carleton University 2019 Ont SCJ

The judge discusses basic holdback and notice holdback. He rejected the general’s “after-the-fact” attempt to reduce the value of the contract because of payments being made directly to the subcontractor’s material suppliers. Those payments were merely to be credits towards amounts due on contract. The judge noted that, although certification of the value of the contract can be revisited, the party wishing to do so has a significant onus to show that the payment certificate was issued in error. In this case, the subcontractor had not even requested payment of the amount due; rather, the general, on its own initiative, determined the value of the contract performed as the date of the payment certification. The judge calculated the basic holdback based on that certificate of payment.

Simplified Rules

Major amendments to the Simplified Rules (Rule 76) come into force on January 1, 2020. A listing of the changes follows:

• The monetary limit has been increased from $100,000 to $200,000.
• Simplified Rules trials cannot be conducted with a jury.
• Maximum discovery has been increased from 2 hours to 3 hours.
• There is only one method of trial; it is the equivalent of the previous summary trial. Evidence in chief must be delivered by way of affidavit and the parties may then cross-examine orally.
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Delay Claims & Notice

Newton Mechanical/Electrical Inc. v. NDL Construction Ltd. 2019 Man QB

The general claimed for delay against the sub. The contract had provisions that seem to indicate that it is CCA1 2008. SC 6.6.1 requires a party to give notice if that party intends to make a claim and SC 6.6.3 requires the party making a claim to give a detailed account of that claim within a reasonable time. The judge applied Corpex, Doyle, and Technicore and found that, when the general notified the sub of its lack of progress and that the general would be forwarding all costs for delay damages, that was sufficient notice for SC 6.6.1. However, the general did not give details of the claim until 6 months later and 1.25 months after substantial performance of the contract. That length of time was not reasonable and, accordingly, the judge held that the general had breached the provisions of SC 6.6.3 and was not entitled to make the claim.

Certificate of Pending Litigation

Forget v. McLean 2019 Ont SCJ

In the original motion, the main affiant was the secretary of the plaintiff’s lawyer. She did not disclose that the purported contract on which the claim was based was not signed by the closing date set out in the contract; she did not disclose that the vendor took issue with a signature that took place after the closing date. The CPL was ordered to be discharged because the full evidentiary record was not put before the original judge and, in the opinion of the judge setting aside the CPL, there was no agreement at all. Note: the obligation to provide full evidence before a judge on a without notice motion applies to all motions, not just those for a CPL.

Amend Reasons

Zwygers v. Appiah-Kubi 2019 Ont SCJ

A judge has jurisdiction to amend the reasons for judgment at any time before the order is entered.

“Fraud: how to avoid it, how to protect against it, how to deal with it” – Panel Discussion & Round Table

On October 16, 2019, Shop Locally, Professionally, an initiative promoting and supporting Mississauga-based businesses, hosted an educational breakfast and a panel discussion on fraud. Allison Speigel, partner at Speigel Nichols Fox LLP, moderated the panel and Tiziana Moretti, the Chief Law Clerk of Speigel Nichols Fox LLP, was one of the panellists who provided insights sharing her 29 years of experience in the collection field. Tiziana addressed concerns for small and mid-size businesses, tips on how to prevent fraud, and how to notice red flags.

Evidence – Rule in Browne v. Dunn

Curely v. Taafe 2019 Ont CA

Paralegal sued lawyer for malicious prosecution relating to lawyer’s complaint that paralegal refused to return lawyer’s files and subsequent criminal charges, subsequently withdrawn. Court of Appeal held that trial judge’s conclusions for granting relief in favour of paralegal were replete with errors. Paralegal had to prove that lawyer furnished evidence which she knew to be false or withheld information which she knew to be true and there was no evidence of this; the only evidence was that the police exercised independent discretion. In coming to his erroneous decision, the trial judge applied the rule in Browne v Dunn. That rule states that a party cross-examining a witness called by the opposite side must put any contradictory evidence to the witness to allow the witness to provide an explanation before that party can adduce contradictory evidence to impeach the witness’ credibility.

Lien Discharge

9585800 Canada Inc. v. JP Gravel et al 2019 Ont SCJ

Subcontractor registered a claim for lien. However, the claim referenced the wrong date as the last day worked on the site. It stated that the first work was October 30, 2017 and the last work was May 5, 2017 when it should have said the last work was May 5, 2018. Before the 45 days to preserve the lien had elapsed, the sub discharged the first lien and registered another lien, identical to the first with the exception that the last day of work was the correct day. The general contractor took the position that once the first lien was discharged, the sub could not register a 2nd lien. The normal correct course of action under the circumstances is set out in Southridge Construction v. 667293 Ontario (1993 Ont Div Ct): register the 2nd lien and then, on notice, move for an order to vacate the first lien. The judge in this case distinguished that rule because he found the first lien to be a nullity as a lien for non-existent work (i.e. how could the sub lien for work that was allegedly completed before the job even started?). Accordingly he found that the discharge of the first lien was meaningless and that the 2nd lien was an appropriate lien and was valid. Note: under the original rule in Southridge if an error is discovered after the time for preservation has passed, the proper means to deal with the error is to seek to amend the statement of claim enforcing the lien.