Legal Blog: Civil Litigation

Pierringer Agreement

Cadieux v. Cadieux 2025 Ont CA

Catastrophically injured children sued their father, another driver, and the City of Ottawa after an accident. The children entered into a Pierringer Agreement with Ottawa and sought court approval, also moving to amend their pleadings to limit claims against non-settling defendants to their joint and several liability. The non-settling defendants argued that the agreement prejudiced them because Ottawa had a deep pocket and other defendants, even with some insurance, did not. The court approved the agreement, finding that the mere possibility of a non-settling defendant being unable to obtain full contribution from another non-settling defendant was speculative and did not constitute sufficient prejudice.

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15-Yr Limitation and Wills

Tessaro v. Gora 2025 Ont SCJ

A lawyer drafted a will that had an ambiguous residual clause. The beneficiaries under each interpretation settled the issue between themselves and both sued the lawyer for the damages that they incurred because of the ambiguity causing the settlement. The lawyer drafted the will in 1991. The beneficiaries commenced their actions in 2019 and 2020. The beneficiaries had no problem meeting the basic two-year rule under the Limitations Act, 2002 because they did not know of the problem until after the testator died in 2018 and, indeed, until their settlement in 2024. However, the motion judge decided that s.15(2) of the Act precluded their actions because the 15-year absolute limitation period, which started January 1, 2004, had expired.

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.

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.

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.

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.

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.

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.

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.

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.