Legal Blog:

Adjudication

Anatolia Tile & Stone Inc. v. Flow-Rite Inc. 2023 Ont SCJ (Div Ct)

Losing party to an adjudication applied for leave to bring an application for judicial review. The court set out the test for leave. The applicant must show either (i) good reason to doubt that the adjudicator’s decision was reasonable or (ii) good reason to believe that the process the adjudicator followed was sufficiently unfair that it probably affected the decision rendered and either (iii) the unreasonableness or procedural unfairness cannot be remedied in other litigation or arbitration between the parties or (iv) the application raises issues of principle that transcend the interests of the parties and should be settled by the court. In this case, the court refused leave without giving reasons.

Ultimate Limitation

We read a lot about the 2-year limitation period, much of which deals with when that period commences to run. We do not hear much about the ultimate limitation period of 15 years. Why? Because it has not come up often. The Limitations Act, 2002 was only proclaimed in force as of January 1, 2004 so, to date, not many situations have arisen in which the ultimate limitation period is relevant. One such case was Soetemans v. Design Concrete Systems Ltd., a 2022 Ontario Superior Court of Justice decision.

Relevant Section of Act

s.15(1) – “Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.”

Capacity and Undue Influence

De Smedt v. Cheshire 2023 Ont SCJ

2017 will challenged on grounds of undue influence and lack of capacity. Judge held no undue influence because son got involved only when hospital requested a POA for personal care. Willmaker and lawyer, not son, came up with concept of preparing and signing the new 2017 will. Judge, however, held that the willmaker lacked capacity; the medical evidence of dementia overwhelmed the lawyer’s inadequate evidence on capacity, inadequate investigations, and inadequate notes.

Priority Between Purchaser and Writ

Kandlproperties Inc. v George Street Law 2023 Ont SCJ

Execution debtor signed agreement for sale with arms’ length purchaser after judgment, but before the writ was issued and filed. The agreement was closed after the writ was filed.  The execution creditor commenced an action against all parties and then moved to enjoin the purchaser from dealing with the property. The judge relied on the priorities set out in Dhatt v. Beer and refused the injunction. The judge held that the purchaser, whose agreement pre-dated the writ filing had an equitable interest in the land in priority to the creditor. However, the execution may still be successful in the action against the purchaser if, after the sale proceeds were used to pay the encumbrances on the land, the sale proceeds could have been used to pay part or all of the execution debt, but, instead, were paid to the execution debtor.