Legal Blog:

The Oklahoma Bar Association recommends Dora Konomi’s article

The Oklahoma Bar reshared and recommended Dora Konomi’s article, “How to Stay Productive While Working from Home:10 Tips That Work for Me”, initially published on Attorney at Work.

Dora, an associate with Speigel Nichols Fox LLP, can be reached at: dora@ontlaw.com

You can also find the original article here.

Allison Speigel quoted in “Justice and the pandemic: How Canada ranks” – the Lawyer’s Daily

Allison Speigel, partner with Speigel Nichols Fox LLP, is extensively quoted in Julius Melnitzer’s article, “Justice and the pandemic: How Canada ranks” for the Lawyer’s Daily. The article examines the courts’ response to the pandemic and the future of the civil justice system.

Allison also wrote an open letter to the legal profession and the Ministry of the Attorney General highlighting similar topics, which you can find here.

Read the full article here.

Termination Clause Void

Waksdale v.Swegon North America Inc. 2020 Ont CA

An employment agreement had two termination clauses: one for termination for cause without knowledge and one for termination without cause with notice. The clause for termination for cause was contrary to the Employment Standards Act and therefore void. The clause for termination without cause was not contrary to the ESA. The employer terminated with notice pursuant to the clause for termination without cause. The Court struck down that clause, even though it complied with the ESA, because it was tainted by the illegality of the other clause on which it had not even relied.

Unconscionable

Uber Technologies Inc. v. Heller 2020 SCC

The SCC upheld the decision of the Ontario Court of Appeal, which struck down an arbitration clause as unconscionable. The SCC postulated a two-part test for unconscionability: an inequality of bargaining power and an improvident transaction.

• An inequality of bargaining power exists when one party cannot protect its interests in the bargaining process. This inequality can arise out of knowledge, experience, or vulnerabilities peculiar to individual situations. It can include cognitive asymmetry (i.e. only one party can appreciate and understand the full impact of the contractual terms). In essence, it arises in the context of a bargaining context in which the law’s normal assumptions about free bargaining resulting in a fair transaction no longer hold.
• A transaction is improvident if it unduly advantages the stronger party and disadvantages the more vulnerable. Again, improvidence has to be assessed contextually, reading the terms of the contract in light of the surrounding circumstances at the time of contract formation. These include the market price, commercial setting, and position of the parties.
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Negligent Construction

Wesley v. Geneau 2020 Ont SCJ

Purchaser sued the vendor, who built the house, for negligent construction and negligent misrepresentation contained in a Seller Property Information Statement. The property was built contrary to the provisions of the Ontario Building Code, resulting in foundation walls failing. The judge had no difficulty in holding that the failure was a safety issue and that the vendor did not give proper information in the SPIS. The judge awarded the full costs to repair the deficiencies and to compensate the purchaser for repair costs that were consequential to the failure. The judge also awarded $5,000 in general damages.

Misrepresentation

Royal Bank of Canada v. Bedard 2020 Ont SCJ

The defendant obtained financing secured by a conditional sales contract on a boat by misrepresenting its ownership of the boat. The court awarded judgment for the amount owed plus the costs that the bank incurred in attempting to realise on its security against another claimant before it finally realised that it had no claim to the boat because of the misrepresentation.

Security for Costs

Lancaster Group Inc. v. Kenaidan Contracting Ltd. 2020 Ont SCJ (MC)

General contractor moved for security for costs against its sub. The Master set out the tests for security in a construction context. She held that the regular rule (i.e. good reason to believe the plaintiff had insufficient assets in Ontario to pay for an adverse cost award) was made more onerous in a construction action (i.e. demonstrate indicia of insolvency or corporate instability). Based on the Equifax reports, she held that the general had met its onus.

Pleadings Amend

YRCECC No 1210 v. 7 Brighton Place Inc. 2019 Ont SCJ

A defendant moved to amend its crossclaim against its co-defendant. It asserted that its amendment was not a new cause of action; rather it merely set out particulars to its existing breach of contact allegation. The Master noted that a “generic pleading cannot stand as a ‘perpetual placeholder’ for future claims which may arise or be contemplated by the parties.” The Master noted that the Rules mandated leave be granted for an amendment of pleadings unless a party would suffer prejudice from the amendment not compensable by costs. The passage of a limitation period is an example of prejudice. In this case, the Master held that the limitation period had passed for the new action and refused leave to amend.

Service of Claim

Ero-Oriri & Sidney v. Carsen 2020 Ont SCJ (MC)

The plaintiffs, in a medical negligence action, commenced the action by way of a notice of action, presumably because a limitation period was fast approaching. Under the Rules of Civil Procedure the plaintiffs had 6 months to serve their statement of claim. Two weeks before the statement of claim had to be served, the plaintiffs moved for leave to extend the time for service, claiming that they needed more time to obtain an expert opinion. The Master refused that leave, holding that the plaintiff had sufficient time to have investigated their claim.

Tarion

Yildirim v. Tarion Warranty Corporation 2019 Ont SCJ (Div Ct)

Tarion provides statutory warranties of fitness for new homes regardless whether a builder registers under the program or not. In this case, the vendor, who should have registered, did not. The vendor was convicted of a breach of the Ontario New Homes Warranties Act. Tarion ultimately paid the homeowner $17,000 as compensation for constructions deficiencies. After Tarion paid the homeowner, it commenced an action against the vendor for reimbursement of the $17,000. The vendor asserted, as his only defence, that he should have been given notice of Tarion’s decision to pay and been allowed to appeal that decision to the Licence Appeal Tribunal. The Small Claims Court judge, and on appeal the Divisional Court, disagreed with that position.