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Legal Blog: Civil Litigation

Jul
07
2020

Discovery Plan

Concord Adex Inc. v. 20/20 Management Limited 2020 Ont SCJ (MC)

The plaintiff and defendant proposed very different discovery plans. The Master noted that the principles in setting a discovery plan were as follows: (i) common sense and proportionality are important; (ii) the settling of a discovery plan is not meant to be a speculative motion on refusals or for a better affidavit of documents; (iii) a discovery plan is not meant to be a form of advance ruling on scope and propriety of questions; and (iv) proportionality and litigation culture shift require “want” to be replaced with “need”. The Master chose the defendants’ plan because it covered the appropriate time period, provided for delivery of supplementary affidavits of documents, and noted that the parties reserved their rights to seek broader production at a later date. The Master noted that the plaintiff’s plan was overly broad and was attempt to obtain an advance ruling on scope and relevance that ought not to have been put into a discovery plan.

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Jul
07
2020

Limitations

Beniuk v. Leamington (Municipality) 2020 Ont CA

Owners complained that use of a roadway caused damage to their house. They commenced a proceeding against the municipality before the Ontario Municipal Board and were unsuccessful. After that decision, they commenced a civil action claiming damages for nuisance and negligence, but did so more than 2 years after they commenced their proceeding before the OMB. The court first ruled that the regular 2-year limitation period applied rather than the 10-year limitation period under the Real Property Limitations Act. The court held that a negligence claim involving real property was very different from a claim to an interest in land and therefore the RPLA did not apply. The Court did reference cases in which a constructive trust claim and a fraudulent conveyance claim were held to fall within the RPLA. The court also held that, just because alternative processes were available, this did not, in itself, suspend the running of the limitation period. Although under some circumstances, it is appropriate to extend the limitation period, s5(a)(a)(iv) of the Limitations Act 2002, dealing with whether it is appropriate to commence a proceeding, does not necessarily permit a party to engage in litigation in stages for the same wrong. It is incumbent upon the claimant to explain why its approach was reasonable.

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Jun
09
2020

Quantum Meruit

Nijjar v. Feldman 2020 Ont SCJ

A real estate salesperson had been acting for his broker to obtain financing for a corporation. The salesperson left the employ of the broker, after he had obtained the initial letter of intent from the prospective mortgagee, and the broker and the corporation agreed to terminate the listing. The salesperson continued to assist the corporation in closing the transaction, but was not able to enter into another agreement with the corporation; they disagreed as to its terms. The judge held that there was no contract, but that the salesperson should be paid for his work after he had left the broker. Since, at one point, the corporation had offered to pay the salesperson $65,000, rather than the claimed $100,000, that was enough to quantify the services at $65,000. The reasons did not indicate why the settlement discussions were admitted into evidence.

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Jun
09
2020

Document Production

Falcon Lumber Limited v. 2480375 Ontario Inc. cob GN Mouldings 2020 Ont CA

The defendant continually breached orders requiring production of documents. The motion judge struck out its statement of defence and ordered costs of the motion against the defendant’s lawyers. The Court of Appeal upheld the decision and set out a number of factors when considering whether to strike out a party’s pleadings and indicated that these factors should include the extent to which the defaulting party’s conduct has increased the other party’s cost of litigating the action and delayed the final adjudication of the case on its merits. The court noted that the moment to make the order to strike will come much earlier in a simple claim for a modest amount than in a more complex one. In that regard, the court referenced the claim of $131,000 as modest. The Court also upheld the costs decision against the lawyers. They requested and received and adjournment ultimately determined to be no more than a delay tactic, provided final production of documents that were improperly redacted, and were complicit in the flagrant disregard of the Rules. Further, the Court noted that the lawyers were in a conflict of interest by acting for both the client and themselves on the appeal.

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Jun
01
2020

PJI

Prejudgment and post-judgment interest are set in accordance with the Courts of Justice Act. These interest rates are relatively low. Often, in loan agreements and other contracts, the parties set an interest rate that is higher than the rates set under the Act. These are referred to as contractual rates. The Act gives a judge discretion to allow a rate higher or lower than that provided in the Act – but there has to be good reason to do so.

In Capital One Bank v. Carroll, a 2019 decision of the Ontario Divisional Court, a deputy judge of the Small Claims Court, without giving any reasons, refused to award interest at 19.8% as set out in the contract for a MasterCard credit card.

A hand holding out a credit card.

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May
27
2020

Costs Thrown Away

Syed v. Petrie 2020 Ont SCJ

A mistrial was granted after the plaintiff collapsed on the witness stand. The judge awarded costs thrown away to the defendant. He noted that there were 3 scenarios for adjournments: (i) one of the parties was at fault and needed the adjournment, (ii) the court had its own scheduling problems, and (iii) a party requested an adjournment as a result of no fault on his part (e.g. death of a witness, illness of counsel, etc.). In the first category, the court will grant the adjournment, but with an order for the payment of costs thrown away. In the 2nd category, the court will grant the adjournment with no costs to either side. In the 3rd category, the court will grant the adjournment with costs still being awarded against the party requesting the adjournment. The judge differentiated between fault and responsibility. The party may not have been at fault, but it was still responsible for the wasted costs. Given that there was no fault in this case, the costs ordered to be paid were not payable until the end of trial.

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Apr
26
2020

Affidavit of Documents

Seifert v. Finkle Electric Ltd. 2020 Ont SCJ

An affidavit of documents that lumps a number of documents into one group is improper and must list each document separately. For example, an affidavit, which says the following, is deficient: “Tab 2. Document Description – Client provided file to xyz law firm containing various records. Date – Various”

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Apr
26
2020

Constructive Trust, Express Trust

Serbian League of Canada v. Stojanovich 2020 Ont SCJ

Three members of a charitable organisation purchased property in 1964 for the use of the charity. In doing so, they paid $3,000 and gave a mortgage of $15,000. Approximately 54 years later, the charity wanted to sell the property and realised that title was still in the name of the individuals, who were long since dead. Their estates claimed that the property was theirs. The judge found that, aside from the payment of the $3,000, the individuals paid nothing towards the mortgage or improvements to, or upkeep of, the property. The judge held that there was no bare trust or express trust. Merely because the deed had the words “in trust” appearing in it was not sufficient to satisfy the necessity for certainty of object; no one had been able to give any evidence as to the intention of the parties at the time the property was purchased because the individuals who purchased it were dead. The court also held that the trust did not comply with section 9 of the Statute of Frauds because there had to be evidence in writing signed by the owners (i.e. the individuals) evidencing the trust. The judge did find that there was unjust enrichment and, in this case, a constructive trust. Since the property had been sold and the sale proceeds held in trust, the judge decided that the estates should receive 25% of the sale funds and the charity the remaining 75%.

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Apr
26
2020

Third Party Action Leave

Tadiem v. Allied Properties Management LP 2019 Ont SCJ

The defendant by counterclaim wanted to add a third party to that counterclaim, but, because of rule 29.02 and the fact that the third party claim had not been issued within 10 days after the reply, the defendant by counterclaim needed to seek leave of the court. The plaintiff by counterclaim resisted the motion, alleging that the proposed third party claim did not disclose a reasonable cause of action. The Master and the judge on appeal noted that the third party claim did provide a proper cause of action, both in contract and in tort. The judge noted that, in deciding whether to grant leave, the court could consider whether the proposed third party claim was tenable, but that the threshold for establishing that was very low and akin to the test applicable in motions to strike. The third party claim was allowed.

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Mar
23
2020

Limitations – Will

Piekut v. Romoli 2020 Ont CA

An application for a declaration that a will or codicil or, indeed, any other document is invalid is not subject to the Limitations Act if no consequential relief is sought in the proceedings [section 16(1)(a)].

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