Legal Blog:

Standard of Review

Muise v. Mark Wilson’s Better Used Cars Limited 2021 Ont SCJ (Div Ct)

In dismissing an appeal, the court approved the following statement of a federal court judge as to palpable and overriding error: “Palpable and overriding error is a highly deferential standard. ‘Palpable’ means an error that is obvious. ‘Overriding’ means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.”

CPL

Di Trapani v. 9706151 Canada Ltd. 2019 Ont SCJ

A mortgagor commenced an action against the mortgagee and the transferee by way of a power of sale, alleging that the transfer was undervalued, non-arm’s length, and fraudulent. The judge went through a number of indicia relating to the actual “sale” and granted the CPL.

CPL

Fernandes v. Khalid 2021 Ont SCJ

It was the usual fight over whether a CPL should be issued in a fraudulent conveyance action. The defendants had stated that the transfer between them was made as part of a marital separation. When reviewing badges of fraud, the judge took into account social media evidence, which indicated that the defendants were still cohabiting.

Discretion

Contracts often give one party discretion to make decisions that will affect the other party. For example, employment contracts can give the employer a discretion as to the quantum of a bonus. A lease can give the landlord discretion as to whether to accept a tenant’s request to sublease the premises. Often, one sees the words “absolute discretion” or “absolute and sole discretion.” Do these words mean that the party with discretion can exercise that discretion in any manner the party sees fit? The answer, in prior jurisprudence and according to the Supreme Court of Canada in Wastech Services Limited v. Greater Vancouver Sewerage and Drainage District 2021 SCC 7, is no.

Contract

Wastech, a contractor engaged in waste transportation and disposal, contracted with Metro, the entity administering waste disposal in Metro Vancouver Regional District. The parties entered into a long-term contract that discussed, among many other things, which waste disposal sites would be used and who would determine the quantity of waste going to those disposal sites. The contract gave Metro the “absolute discretion” to determine the minimum amount of waste that would be transported to one particular waste site in a given period.

Tenacious

Sometimes, legal actions turn into an odyssey, first in obtaining a judgment of the court and then in collecting the judgment. The case of Hermanns v. Ingle, a 2020 decision of the Ontario Superior Court of Justice, is not just a case in point, it is an odyssey poster child.

Action

In 1986, the plaintiffs, who operated a horse farm, made a voluntary assignment into bankruptcy. The defendant, through his corporations, was appointed as the receiver-manager of the bankrupt estate. Ultimately, litigation ensued; and, in 1997, a judge found that the defendant had acted for his own benefit to maximize fees and displayed a total lack of comprehension of his duties as a receiver. The judge ordered that the plaintiffs be credited for over $1 million and ordered a reference for an accounting of the money that the defendant had received in his capacity as receiver.