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Legal Blog:
Feb
01
2022
Hardball
A trial judge has discretion to award costs of the litigation process. Usually, that award would be to the successful party, but not always. May a trial judge refuse to award costs to a successful defendant because that defendant was insured, refused to accept any settlement before trial, or was “known” to generally play hardball in its defences? This question was answered in Przyk v. Hamilton Retirement Group Ltd. 2021 ONCA 267.
Merits
The plaintiff had slipped and fallen on a sidewalk on the grounds of a retirement home where she resided. She sued the owner of the retirement home for negligence and breach of the Occupiers’ Liability Act. The parties agreed on damages and the trial proceeded before a judge and jury on liability alone. The jury found no liability on the part of the defendant and the action was dismissed against it. The defendant requested an award of costs against the plaintiff. Actually, to be more specific, it requested its costs only to the extent of an insurance policy that the plaintiff had taken out for the very purpose of indemnifying her against an award of costs if she were unsuccessful in the action. The defendant was not seeking any award of costs against the plaintiff personally.
Continue Reading >Feb
01
2022
Morality & BIA
As a general rule, an unsecured debt does not survive bankruptcy. However, like all general rules, it has exceptions. Exceptions arise out of s. 178(1) of the Bankruptcy and Insolvency Act. The two that pop up the most in our practice are subsections (d) and (e). Bankruptcy does not discharge a debt or liability arising (d) out of fraud while acting in a fiduciary capacity or (e) when property or services are obtained by false pretences or fraudulent misrepresentation. Many applicable legal concepts apply equally to ss. (d) and (e). These concepts are set out in Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc. a 2020 decision of the Ontario Superior Court of Justice subsequently appealed to the Ontario Court of Appeal.
