Legal Blog:

Lawyer’s Undertaking

Bridgepoint Financial Services Limited Partnership v. Galamini 2021 Ont SCJ

The plaintiff’s lawyer signed an undertaking that, upon receiving settlement funds, a lender paying money to the plaintiff to assist in the action would be repaid from the settlement money. Settlement was made, the lawyer received the funds, and then the lawyer forgot to pay the lender. The judge held that the lawyer was personally liable for the failed undertaking, but was only liable for the debt due on the day that it should have been paid. The interest on that debt was at the prejudgment interest rate, not the contract rate of 26% per year.

Transcript Use on Motion

Nur v. Lange 2021 Ont SCJ (Associate Judge)

Use of opposite party’s discovery transcript in a motion for summary judgment. If the entire transcript is submitted, without qualification, the opposite party can use that discovery transcript as evidence of its position. However, if the use is qualified or only excerpts are submitted, the submitting party does not have that problem.

Declarations Under BIA – Fraud

784773 Ontario Limited v. Larkin 2021 Ont SCJ

The judge granted a partial summary judgment for the amount that the defendant had admitted he had taken improperly. The judge also issued a declaration that the judgment debt arose out of fraud, embezzlement, misappropriation, or defalcation occurring while the defendant was acting in a fiduciary capacity [for use to fall within BIA s. 178(1)(d)]. The judge acknowledged that some judges had held it was improper to issue such a declaration when there had been no bankruptcy and that other judges had allowed the declaration.

Bank of Montreal v. Mathivannan 2021 Ont SCJ

Motion for default judgment for a debt due. The judge issued the judgment for the debt, but refused to make a declaration that the debt arose out of fraudulent misrepresentation and false pretences [for use to fall within BIA s. 178(1)(e)]. The judge refused the declaration because (i) the plaintiff had not adduced sufficient facts to prove that allegation; and (ii) in any case, because the defendant had not yet become bankrupt, the request was premature.

Cross-Examination – Improper Interference

Shukla v. Fenton 2021 Ont SCJ

Under Rule 34.14, a party has the right to adjourn a cross-examination and move for directions if the right to examine is being abused by an excess of improper questions or interruptions. If the party is successful, the party will get costs and an order clamping down on the other party’s counsel on a new examination. If the party is unsuccessful, that party will no longer be able to continue the examination. This case sets out what an opposing party’s counsel may or may not do. The judge took no issue with the objections being made, but rather about the repetitive and argumentative manner in which they were being made.

Pierringer Agreement Disclosure

Singh et al v. Mann et al 2021 Ont SCJ

Not only must a plaintiff disclose a Pierringer agreement that the plaintiff makes with one of the defendants and provide details of its basic terms, the plaintiff must produce the entire agreement and redact only the settlement amount and dates of payment.

Set Aside Noting of Default

Franchetti v. Huggins 2022 Ont CA

This case again sets out the governing principles in determining a motion to set aside a noting of default: parties’ behaviour, length of defendant’s delay, reasons for it, complexity and value of the claim, prejudice, and whether the defendant has an arguable defence on the merits.

Appraisal Under Insurance Act

Desjardins General Insurance Group v. Campbell 2022 Ont CA

Sections 128 and 148 the Insurance Act operate as a relatively cheap and effective means by which the quantum of an insured loss can be established. The insured and insurer each appoint an appraiser; the two of them attempt to come to an agreement, but, if they cannot, an umpire, whom the appraisers choose, reviews the quantifications of each and picks the one that the umpire feels is better. The umpire must be impartial, but the appraisers do not have to be.

Holograph Will – Competency

Joy Estate v. McGrath 2022 Ont CA

A signed will in the testator’s handwriting is a valid holograph will, even if it is also a suicide note, as long as the testator had a sound disposing mind. The testator may have been using alcohol and drugs at the time; however, that medical condition does not preclude a finding of testamentary capacity as long as the testator could discern the elements of a sound disposing mind. In this case, the court held that the testator passed all the tests when writing the will (and then hanging himself): he understood the nature and effect of the will, knew the nature and extent of his property, understood the extent of what he was giving, remembered the people that might be expected to benefit under the will, and understood, if applicable, the nature of claims that might be made by people who were being excluded under the will. As to costs of the action, there is a two-step process: determine whether there are reasonable grounds on which to question capacity or whether difficulties or ambiguities arose that the testator caused. If there are, the estate will pay all the costs; if there are not, the losing litigant will pay the costs.

Mutual Wills – Mirror Wills

Gefen Estate v. Gefen 2022 Ont CA

Mirror wills (in which the wills of two spouses are mirror images of each other) do not become mutual wills unless there is a binding contract that the makers of the will may not change their wills after the first death of the willmakers. Some loose understanding or sense of moral obligation is insufficient; the mutual wills must be proven by clear and satisfactory evidence on a balance of probabilities.

Writs Bind

Before closing a land transaction, real estate lawyers search for writs of execution that may be filed against the vendor. Why? Because writs against a debtor will bind the lands of that debtor and a purchaser will take title subject to those writs. But do all writs bind the land? That question, which most real estate lawyers assumed had an affirmative answer, was dealt with in Dhatt v Beer 2021 ONSC 770 (SCJ).

Mess

It started as a simple real estate transaction and turned into the case from hell. The vendors decided in their wisdom not to close the transaction. The purchasers sued and obtained a judgment for specific performance and an order for costs to be paid from the purchasers’ purchase price. The vendors did not like this decision and appealed it. The previous lawyers for the vendors were also not pleased with this decision and, more importantly, were not pleased that the vendors had not paid their fees.