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Legal Blog:
Mar
25
2022
Interest Contrary to Interest Act
North Perimeter v. 6625844 Manitoba Ltd. 2021 Man QB
Judge granted an award in favour of general contactor against owner. The general’s invoices specified interest at 1.5% per month. The judge held that the rate did not comply with s. 4 of the Interest Act because it did not translate the monthly rate to a yearly rate (i.e. a monthly rate of 1.5% per month is more than 18% per year), The judge limited the interest to the 5% rate specified in the Act. Ontario law would not have allowed any interest other the CJA interest because nothing in the contract itself dealt with interest.
Continue Reading >Mar
25
2022
Misrepresent by Silence
Subway Franchise Restaurants of Canada Ltd. v. BMO Life Assurance Company 2021 Ont CA
The lease had a specific time period, calculated from the lease commencement, for the tenant to renew the term. The tenant was confused as to the start of the lease and notified the landlord that it chose to renew, but asked, if its assumed time period was wrong, the landlord should inform it and it would give a notice in accordance with the lease. The landlord did not reply. The tenant had the date wrong and claimed the landlord should have informed it. The court held that, unless the landlord lied or knowingly misrepresented or contributed to the tenant’ misapprehension, the tenant was out of luck.
Continue Reading >Mar
25
2022
Misrepresentation
Guaranteed Funeral Deposits of Canada (Fraternal) v. Assurant Life of Canada 2022 Ont SCJ
One party obtained a second amendment to an agreement by assuring the other that the first amendment had incorrectly deleted a section. The other party, whose representative was not knowledgeable about the first amendment, relied on that representation and agreed to the second amendment. The other party then realised that the section had been deleted for a reason and that the second amendment ought not to have been granted. The motion judge held that the first party misrepresented and granted rescission.
Continue Reading >Mar
23
2022
Fraudulent Conveyances & Limitations
Midland Resources Holding Limited v. Bokserman 2022 Ont CA
Motion judge granted an order that husband had fraudulently transferred the matrimonial home to wife and held that, after the matrimonial home was sold, wife held the replacement property in trust for husband’s creditor. The motion judge did not believe the defendants’ assertion that there was a separation agreement and a promissory note as consideration for the conveyance. Given that there were obvious badges of fraud, the Court of Appeal noted that the defendants had to satisfy the motion judge that they lacked a fraudulent intent when they transferred the home and failed to do so. The Court also agreed with the motion judge that the limitation period had not passed; nothing had alerted the creditor’s lawyer to search title. Also, the limitation period did not start until the appeal on the merits had been completed. The Court did not opine on whether the Limitation Act, 2002 or the Real Property Limitations Act applied.
Continue Reading >Mar
23
2022
Reply Factum
Prism Resources v. Detour Gold Corporation 2022 Ont CA
On a motion for leave to file a reply factum, the motion judge granted the motion and bemoaned the fact that the Rules did not call for a reply factum as of right.
Continue Reading >Mar
21
2022
Security to Vacate Lien
Bird Construction Group v. Trotter & Morton Industrial Contracting Inc. 2021 Man QB
General contractor attempted to vacate a claim for lien by posting a bond. The sub insisted that cash be posted instead and the judge agreed. The decision is under appeal.
Continue Reading >Mar
21
2022
Injunction
Parekh v. Schecter 2022 Ont SCJ
A dentist sold his dental practice to a dental corporation. To comply with one of the the terms of the sale, the dentist’s father, who started the dental practice, had to enter into an employment agreement with the buyer. Father negotiated the agreement and ultimately agreed that he would not compete for 2 years within a 5 km radius of the dental practice. Father then breached the non-compete clause and the buyer moved to enjoin father from competing. The judge held that the buyer demonstrated a strong prima facie case so that the other components of an injunction, irreparable harm and balance of convenience, were not as important. The judge granted the injunction and included a further injunction for solicitation of patients.
Continue Reading >Mar
04
2022
Leave For Limitations Period
984499 Ontario Inc. o/a Ekarte General Contracting v. 1159337 Ontario Ltd. v. M.R Wright and Associates Co. 2020 Ont SCJ (Div Ct)
Under the Construction Lien Act, the court had to give leave to the defendant to issue a third party claim. In this case, the defendant issued the third party claim without leave and, more than five years later, sought to regularize the claim by seeking leave nunc pro tunc (i.e., as if it had been obtained at the very start). The court refused leave and dismissed the third party action. One cannot move for leave after the expiry of a limitation period.
Continue Reading >Mar
04
2022
Settlement Discussions and Limitation Period
1352194 Ontario Inc. v. Vince 2021 Ont SCJ (Div Ct)
Section 11 of Limitations Act 2002 provides for the suspension of a limitation period if the parties have agreed to have an independent third party resolve the claim or assist them in resolving it. Hiring a lawyer to discuss the settlement of a claim after the limitation period has already expired will not suspend the limitation period. Further, the lawyer who is retained is not an independent third party.
Continue Reading >Mar
02
2022
Judicial Sale
RBC v. Wong 2022 Ont SCJ
An execution creditor of a debtor property owner moved for an order for judicial sale of the debtor’s property. In effect, the execution creditor had done nothing to attempt to sell the property by way of the ordinary sheriff’s process. The judge refused the order. He could see no reason why the creditor should not attempt to have the property sold by way of a sheriff’s sale in the ordinary course.
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