Legal Blog:

Conflict of Interest

Marchant Realty Partners Inc. v. Milborne 2022 Ont SCJ

Without consent, a law firm cannot act for one client whose interests are adverse to a current client or a “near client”. Even if the old client is not a “near client”, a lawyer still cannot act against the old client if the law firm is able to use confidential information that it received from the old client. In this case, the individual was held to be a near client because he was sufficiently involved in or associated with corporations who were the lawyers’ current clients. Even if he were not, he had given confidential information to the lawyers in past retainers that would give the lawyers an advantage in the present guaranty and debt collection proceedings against him.

Ultimate Limitation Period

Soetemans v. Design Concrete Systems Ltd. 2022 Ont SCJ

A hog finishing barn was constructed in 2002. On August 16, 2017, a beam failed and the structure partially collapsed. The owner’s action was started July 2, 2019, well within the 2-year limitation period (based on discoverability), but outside of the s. 15(2), 15-year ultimate limitation period (in which discoverability is irrelevant) that started January 1, 2004 (extended pursuant to the transition provisions of the Limitations Act, 2002). The defendants relied on the ultimate limitation period and brought a motion for summary judgment to dismiss the action. The judge dismissed the motion because, under s. 15(4)(c)(i), the ultimate limitation period does not run when the defendant wilfully conceals the damage or the fact that the defendant caused it. The issue of wilful concealment was very much a genuine issue that necessitated a trial.

Adjudication (2)

The adjudication cases keep on coming. We will discuss two more of them, both emanating out of the Ontario Superior Court of Justice. The first, Pasqualino v. MGM-Homes Design Inc., dealt with a situation in which a contractor obtained an adjudication order, after the contractor had registered a claim for lien and seemingly after the contract was completed. The second, Okkin Construction Inc. v. Apostolopoulos, dealt with a situation in which an adjudication order was made in favour of a general contractor after its subcontractor registered its own claim for lien.

Pasqualino

A contractor registered a $169,000 claim for lien. The owner vacated the claim for lien by paying $211,000 into court. Then the contractor filed a notice of adjudication. Approximately one month later, an adjudicator decided that the owner had to pay $120,000 to the contractor. At the adjudication, neither party raised an issue as to the adjudicator’s jurisdiction to make his award. The owner brought a motion pursuant to s. 13.18 of the Construction Act for leave to bring an application for judicial review to set aside the adjudicator’s award.