Legal Blog:

Happy Holidays from Speigel Nichols Fox LLP

Certificate of Pending Litigation

Khanna v. Singh 2020 Ont SCJ

Motion to vacate a certificate of pending litigation (CPL). Plaintiffs claimed that they had an interest in land because they had loaned $50,000 to the defendants for the purchase of that land. However, the statement of claim did not allege a trust and only requested repayment of the loan. The judge did not feel that there was an actual interest in the land being claimed, but vacated the CPL on other grounds: there was no claim that the land was unique, damages were very easy to calculate and would clearly be a satisfactory remedy, and a CPL would substantially interfere with the defendants’ ability to manage their interests in the property.

Construction Trust

University Plumbing v. Solstice Two Limited 2019 Ont SCJ

Owner breached its trust obligations by refusing to pay the contractor and instead paying management fees to its two directors. The judge held the directors personally liable both under section 13 of the Construction Act and by way of a breach of a common-law trust. The judge went so far as to declare that the directors’ liability would survive any bankruptcy. The directors sole defence was that the action was proscribed by the Limitations Act. The judge ruled against them on two grounds. First, one of them had acknowledge the debt in writing and that acknowledgement bound both of them. Second, they had represented that they would pay the amount due once they had collected a particular amount from a third party so that it was not “appropriate” to rush to litigation before giving the directors a chance to do so.

Distress & Termination

Bonaventura v. 1603752 Ontario Inc. 2020 Ont SCJ

Another case of a landlord changing locks and, at the same time, refusing the tenant the ability to obtain its goods and chattels by claiming distress. Changing locks affected a termination of the lease and one cannot distrain after the lease is terminated. Landlord forced tenant to bring a motion to obtain its chattels; landlord ultimately agreed to that order and the judge ordered substantial indemnity costs against landlord.

Dora Konomi Wins Canadian Ethnic Media Association’s Best Radio Show Award for 2020

Dora Konomi, an associate with Speigel Nichols Fox LLP, is the recipient, for a second consecutive year, of the prestigious Canadian Ethnic Media Awards for Journalist Excellence in the radio category for 2020 on her story “Saving Baby Michael.” In addition to being a dedicated commercial litigator, Dora is also a community advocate who supports local causes and highlights stories of interest through her radio show, the Doralicious Show, airing in Toronto and Ottawa. Saving Baby Michael is the story of Michael, an 18-months old boy, who was diagnosed with an ultra-rare disease, SPG50, and his parents’ struggle to raise funds for a cure.

The video is available here (starting at 17:27).

Read the press release here.

The podcast is available here.

Susanne Balpataky’s Article: Keys to Emerging from the COVID-19 “She-Cession”

Susanne Balpataky, partner at Speigel Nichols Fox and MBOT Chair 2020, wrote MBOT Magazine’s opening message for its fall 2020 edition. In this article, Susanne addresses the disproportionate impact the pandemic has had on women in the workforce, sometimes referred to as a “she-cession”. Susanne also highlights key elements of a “she-recovery” to ensure women’s success during the pandemic, such as access to childcare and flexible workhours.

If you are interested in the full article, you can access it here.

Kim Ferreira Presents, “Discovery is a Tool. Cross is an Art”, at Peel Law Association’s CPD

During the pandemic, our lawyers are finding engaging ways to stay connected and share their insights. On October 28, 2020, Kim Ferreira, partner with Speigel Nichols Fox LLP, presented “Discovery is a Tool. Cross is an Art” at Peel Law Association’s virtual CPD. Kim provided an overview of the process of examinations for discoveries in the civil context and contrasted it to cross-examinations at trial. He also provided useful tips on how to conduct a virtual examination. Kim then discussed the issues with the Honourable Justice A. William J. Sullivan and answered questions from the audience.

If you would like a copy of the presentation, contact Kim at: kim@ontlaw.com

Privacy

Some 60 years ago, American writers argued that the law ought to recognize the right to privacy. This argument generated many court decisions, ultimately culminating in an article by Professor Prosser, and adopted by the Restatement (Second) of Torts (2010), delineating a four-tort catalogue of privacy torts:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his or her private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

Ontario law followed along, but of course more slowly. Three of the four torts have already been recognized and the fourth, “false light publicity”, was front and centre in Yenovkian v. Gulian 2019 ONSC 7279.

Undue Influence (3)

Do not be misled by the title; we have discussed, directly or indirectly, the concept of undue influence at least five times and probably more over the years. Undue influence is typically raised as a defence to a creditor’s action, usually on a guarantee, in which the guarantor claims that she (the person is usually a wife) was unduly influenced by a debtor (usually the husband, on his own behalf or on behalf of his corporation) and therefore should not be bound by her covenant to guarantee the debt. Sometimes the defence works; usually, it does not. The defence was raised in JGB Collateral v. Rochon, a 2020 decision of the Ontario Court of Appeal, and initially was successful.