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Legal Blog: Civil Litigation

Dec
18
2020

Certificate of Pending Litigation

Khanna v. Singh 2020 Ont SCJ

Motion to vacate a certificate of pending litigation (CPL). Plaintiffs claimed that they had an interest in land because they had loaned $50,000 to the defendants for the purchase of that land. However, the statement of claim did not allege a trust and only requested repayment of the loan. The judge did not feel that there was an actual interest in the land being claimed, but vacated the CPL on other grounds: there was no claim that the land was unique, damages were very easy to calculate and would clearly be a satisfactory remedy, and a CPL would substantially interfere with the defendants’ ability to manage their interests in the property.

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Dec
08
2020

Kim Ferreira Presents, “Discovery is a Tool. Cross is an Art”, at Peel Law Association’s CPD

During the pandemic, our lawyers are finding engaging ways to stay connected and share their insights. On October 28, 2020, Kim Ferreira, partner with Speigel Nichols Fox LLP, presented “Discovery is a Tool. Cross is an Art” at Peel Law Association’s virtual CPD. Kim provided an overview of the process of examinations for discoveries in the civil context and contrasted it to cross-examinations at trial. He also provided useful tips on how to conduct a virtual examination. Kim then discussed the issues with the Honourable Justice A. William J. Sullivan and answered questions from the audience.

If you would like a copy of the presentation, contact Kim at: kim@ontlaw.com

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Nov
03
2020

Costs

Stikeman v. Gottlieb 2020 Ont SCJ

An impecunious plaintiff, who resoundingly lost his action that was intended to harm the reputation of the defendants, was held liable for costs – regardless of his inability to pay them.

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Nov
03
2020

Costs Outline

Kossay El-Khodr v. Northbridge Commercial Insurance Company 2020 Ont SCJ

Successful party wanted to obtain more costs than was set out in its costs outline. That amount was lower than it should have been due to inadvertence. The judge refused to do so. The purpose of a costs outline is to force a party to commit to an amount it will be seeking in costs so that, if it is unsuccessful, it cannot be heard to say that the motion was simple or unimportant in order to diminish the costs that otherwise would be payable to the opposite party. Allowing the party to then increase the costs, when successful, would give it the benefit of potentially driving down the costs it would be required to pay if unsuccessful without any corresponding detriment if successful.

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Nov
03
2020

Pleadings

Siemon v. Perth Standard Condominium Corporation 2020 Ont CA

The plaintiff did not plead specific statutes, but pleaded the underlying facts and complaint. The court held that “It is only when a statutory provision would take the opposing party by surprise that it must be specifically pleaded before it can be relied on.”

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Oct
13
2020

Costs – Modest Judgment

Brophy v. Harrison 2019 Ont SCJ

The plaintiff, in a personal injury matter, received a net award of $17,000. The defendant claimed that the costs should be based on Small Claims Court costs and that the amount being claimed had to be proportionate to the amount at stake. The judge held that the costs would be regular costs; the plaintiff’s case had merit and her decision to continue to trial was reasonable in the absence of any offers from the defendant. The court also held that declining to make realistic costs awards in modest cases would send a message to litigants that is not worth one’s while to pursue legitimate claims in court because one cannot possibly make it cost-effective to do so. Finally, the defendant could not complain about the quantum because it chose not to submit its own costs outline. The judge awarded $210,000 in costs plus disbursements of $65,000.

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Oct
13
2020

Privacy

Yenovkian v. Gulian 2019 Ont SCJ

Matrimonial matter in which one of the issues related to the right to privacy. Father, who was represented throughout but not at trial, was a nasty piece of work. He engaged in a continuing process of online bullying, attacks on the administration of justice, and false reports to childcare services and police. The court recognized the final tort in the American four-tort catalogue: publicity that places a plaintiff in a false light in the public eye. The other 3 torts had been previously recognized in Ontario. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. Although facts being adduced for this cause of action will often be sufficient to prove defamation, defamation is not required. The judge ordered damages of $100,000 in this category.

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Sep
25
2020

Delay Dismissal

Samuels v. Mai 2020 Ont CA

2011 action for $50,000 under the Simplified Procedure Rules. Nothing happened for four years after pleadings closed; both parties obtain new counsel by 2017. A Master, at a status hearing, extended the time for the action to be set down for trial to June 1, 2018. The plaintiff did nothing. In January 2018 the defendants moved to dismiss the action for delay. Between January and August 2018, the parties delivered affidavits of documents. Ultimately, the motion was adjourned to July 2019 and both parties delivered materials. The motion judge dismissed the plaintiff’s action for delay, but the counterclaim remained. The Court of Appeal set aside the decision because the motion judge failed to consider “a critical contextual factor: the dismissal of the appellant’s claim left the respondents’ counterclaim alive.” The court held that it was not in the interests of justice to dismiss a plaintiff’s claim while permitting the defendants to litigate the same issues in their counterclaim.

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Sep
25
2020

Costs – Offer to Settle

Welton v. United Lands Corporation Limited 2020 Ont CA

A plaintiff had been successful at trial, obtaining an award of $182,000 (although she claimed millions). The defendants had submitted an offer in May 2019, four days before the trial of the 2012 action, at $190,000 plus costs. Its previous offer had been submitted in 2012 for $15,000. Although the 2019 offer did not comply with Rule 49, the trial judge used his residual discretion to allow the plaintiff her costs to the date of the 2019 offer at $33,000 and the defendants their costs after the date of the offer of $41,000. The Court of Appeal held that it was unreasonable to make a last-minute settlement offer after the Rule 49 deadline had expired, following a previous offer that could only be described as contemptuous. The court overturned the costs award and allowed the plaintiff $84,000 in costs.

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Aug
24
2020

Knowing Assistance/Knowing Receipt

Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Garcia 2020 Ont CA

The issue was whether the wife, who was also a sole shareholder of a corporation involved in the transfer of funds, was liable either for knowing receipt or knowing assistance of the fraud that husband carried on. In effect, when is a stranger to a fiduciary relationship made liable to the beneficiary of that relationship? As to knowing assistance, the stranger needs to have actual knowledge of the fiduciary relationship and the fraudulent and dishonest conduct and assist in that conduct. Actual knowledge would encompass wilful blindness or recklessness. Wilful blindness is a subjective standard that depends upon the stranger’s actual state of mind; it is not an objective standard as to what the stranger ought to have known. Mere carelessness or negligence is not sufficient. Knowing receipt requires that the stranger receive trust property with actual or constructive knowledge that the trust property is being misapplied. Unlike knowing assistance, the requirement of actual knowledge includes knowledge of facts that would put a reasonable person on inquiry and that inquiry is not made.

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