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Legal Blog: Civil Litigation
Nov
20
2023
Unjust Enrichment
Sase Aggregate Ltd. v. Langdon 2023 Ont CA
Husband stole money from his employer. The employer sued wife claiming that the stolen money went into the renovations of wife’s house. The court found that the wife demonstrated that she used money from legitimate sources to fund the renovations and that there was therefore no unjust enrichment – other than about $177,000 for which wife could not account. The court held that wife did not knowingly receive the fraudulent funds or knowingly assist husband in his fraudulent conduct. Although stolen money went into their joint account, it was immediately moved to third parties and wife knew nothing about the deposits or the transfers. For whatever reason, the employer was not able to trace where the funds ultimately went.
Continue Reading >Nov
17
2023
Firm Settlement
ADT Security Service v. Fluent Home 2023 Ont SCJ (Div Ct)
The parties settled at a pretrial and informed the pretrial judge that it was a firm and binding agreement. The defendant then raised issues about the release and wanted payment terms that had not previously been discussed. The court noted that if parties settle litigation and then disagree on non-essential terms of the settlement, the court imposes reasonable terms. The court held that 30 days for payment was reasonable and that the precise wording of the release, on which the parties ultimately agreed, was not an essential term in the context of the settlement.
Continue Reading >Oct
11
2023
Case Conference Judicial Powers
Miller v. Ledra 2023 Ont SCJ
At a case conference for leave to schedule a motion or application or an appeal from an associate judge, the presiding judge may, instead of scheduling the interim proceeding for resolution, actually resolve the issue at hand if the prejudice allowing an adjournment or moving the issue forward would outweigh the prejudice to the losing party of deciding the issue. In this case, the only issue was the production of financial statements for 3 years – even though the respondent denied that the applicant was a shareholder. The judge held that the prejudice to the respondent would be minimal.
Continue Reading >Oct
11
2023
Real Property Limitations Act
Bank of Montreal v. Iskenderov et al 2023 Ont CA
A 5-judge panel of the court overruled Anisman v. Drabinsky 2021 Ont CA and decided that an action for a fraudulent conveyance is governed by the 2-year limitation period of the Limitations Act, 2002 rather than the 10-year limitation period of the RPLA. The court also noted that the relief available under the FCA was not the return of title to the name of the fraudulent transferor; rather, it was a declaration that the creditor could treat the transferred property as exigible for the debts that the transferor debtor owed to the creditor.
Continue Reading >Sep
20
2023
Exhibits
Wasylyk v. Simcoe (County) 2023 Ont CA
Expert reports, technically being hearsay, are not usually marked as exhibits; they are treated as aide memoires. However, although they may not be numbered exhibits, they should be made lettered exhibits which, although not evidence, become part of the trial record for appeal purposes. It allows an appeal panel to appreciate the arguments with the benefit of the same material that the trial judge had. This applies equally to all aide memoires, such as summaries and spreadsheets.
Continue Reading >Sep
19
2023
Spoliation
Trillium Power Wind Corporation v. Ontario 2023 Ont CA
Spoliation arises out of the destruction of potentially relevant evidence. It occurs when a party intentionally destroys evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. It is not yet a self-standing cause of action; rather, it is a rule of evidence giving rise to a rebuttable presumption that the destroyed evidence would have been unfavourable to the party who destroyed it. In this case, Ontario government employees deliberately destroyed relevant evidence, but that evidence would not have affected the results in the action. Since spoliation is an abuse of process, the court denied Ontario its costs on the summary judgment motion in which it was successful and granted the appellant’s costs for the appeal.
Continue Reading >Sep
19
2023
Litigation Privilege
Joffe v. Budds’ BMW 2023 Ont SCJ (Div Ct)
If a party on discovery is asked for facts contained in his or her file relating either to his own case or to that of his opponent, he or she must disclose the relevant facts contained in any statement notwithstanding that the source of information is a privileged report or document. Conversely, the party does not have to produce the document itself.
Continue Reading >Jul
21
2023
Release Terms Implied
Haider v. Rizvi 2023 Ont CA
The parties entered into minutes of settlement at a pre-trial. The minutes called for a full and final release, but went no further than that to describe it. The release was also subject to an undertaking of the releasor to indemnify the releasee against claims being made as a consequence of personal guarantees of the releasor’s corporation. The Court of Appeal analysed the circumstances of the settlement and held that (i) the parties were agreeing to extinguish each other’s full underlying liability relating to the subject matter of the settlement; and (ii) a no claims over clause was a natural extension of the agreement and was consistent with the parties’ goal of providing a full and final release.
Continue Reading >Jul
10
2023
Revocation of Beneficiary Designation in RSP, RIF, TFSA
Alger v. Crumb 2023 Ont CA
A will had the usual opening clause that revoked all prior wills and testamentary dispositions. The issue was whether that clause was sufficient to revoke beneficiary designations under a RIF (or RSP) and TFSA. Section 52(1) of the Succession Law Reform Act provides that a revocation in a will revokes a designation in an “instrument” (e.g., RIF) only if the revocation relates expressly to the designation, whether generally or specifically. The court held that the general revocation clause did not relate expressly to the existing designation by instrument for the RIF or the TFSA and was therefore ineffective to revoke those designations.
Continue Reading >Jul
10
2023
Arbitrator Chosen
Van Doorn v. Loopstra Nixon 2023 Ont SCJ
Usual clause in which the dispute was to be dealt with arbitration with one arbitrator. The parties could not agree on an arbitrator so a judge had to parse the resumes of each candidate and pick what seemed to be the best one for the dispute.
Continue Reading >