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Legal Blog: Civil Litigation

Oct
19
2022

Partial Summary Judgment

NDrive, Navigation Systems S.A. v. Zhou 2022 Ont CA

A person (the rep) who was supposed to be assisting the plaintiffs in an arbitration did all sorts of nasty things; in particular, he kept the plaintiff’s settlement money without even notifying the plaintiff of the settlement. The plaintiffs commenced an action against the rep and the lawyers who had acted for the plaintiffs in the arbitration. The plaintiffs moved for and obtained partial summary judgment against the rep for the amount improperly retained and punitive damages. The court agreed that partial summary judgment was proper. There was no risk of duplicative or inconsistent decisions in the remaining portion of the action and the issues regarding the remaining defendant were factually related, but not legally similar, to the issues dealt involving the rep.

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Sep
14
2022

Stay of Court Decision

Ernst & Young v. Aquino 2022 Ont CA

The individual who had fraudulently issued false invoices to his corporations wanted to appeal the Court’s ruling to the Supreme Court of Canada and stay the effect of the ruling until after the appeal was heard. Unlike an appeal to the Court of Appeal, there is no automatic stay; the Court of Appeal had to grant the stay. The test to do so is similar to the granting of an injunction: serious issue, irreparable harm, and balance of convenience. The Court refused the motion, given the appellant’s admitted fraud.

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Sep
14
2022

Default Judgment

Paul’s Transport Inc. v. Immediate Logistics Limited 2022 Ont CA

Appeal by defendant to set aside or vary a default judgment. The Court of Appeal ruled that, although allegations of fact in a statement of claim are deemed by Rule 19.02(1) to be true, allegations of mixed fact and law are not covered by the Rule and are not deemed to be true (e.g. allegations of implied terms of the contract, allegations of negligence etc.). In this case, however, the contentious issue regarding the interest rate was not found as a fact based on the allegations in the statement of claim; it was found based on affidavits and cross-examinations.

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May
30
2022

Expert Reports Late Deliver

Agha v. Munroe 2022 Ont SCJ

Rule 50.03 has changed regarding timelines within which expert reports be served. Previously, if a report was served late, a trial judge had to grant leave to allow the expert evidence, but on terms that were just. The new rule, Rule 53.08, states that leave may (not shall) be granted and only if (i) the party at fault gives a reasonable explanation for the failure and (ii) the granting of leave would neither prejudice the opposing party that could not be compensated by costs or an adjournment nor unduly the conduct of the trial. In this case, the request for leave came in the middle of trial and the judge refused to grant it.

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May
30
2022

Will – Pour Over Clause

Vilenski v. Weinrib-Wolfman 2022 Ont SCJ

The will contained a provision (the “pour over clause”) by which the residue of the estate was to be paid to the trustees of an existing inter vivos trust, which also happened to be an Alter Ego Trust. The judge followed precedent in British Columbia to declare the pour over clause to be invalid because the trust was set up so that it could be amended. The mere possibility of an amendment once the disposition had “poured over” into the trust was outside the strict formality requirements for testamentary documents. Because the clause was held to be invalid, the court declared an intestacy.

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May
02
2022

Limitation – Proceeding Appropriate

Thermal Exchange Service Inc. v. Metropolitan Toronto Condominium Corporation No. 1289 2022 Oct CA

Section 5(1)(a)(iv) of the Limitations Act, 2022 notes that limitation period does not start to run until, having regard to the injury or damages, “a proceeding would be an appropriate means to remedy it.” Appropriate means legally appropriate, not tactically appropriate. Contractor was attempting to be paid for its ongoing work on condo units and condo manager kept saying that she would take care of it, but needed more time because she was busy. This went on for years – until the manager stated for the first time that, if the unit owners did not pay the condo, then the condo would not pay the contractor. The court found that it was only then that it became legally appropriate to bring a proceeding; until then, because of the manager’s statements, the contractor reasonably believed it would be paid once the manager got around to reviewing the invoices.

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Apr
28
2022

Lawyer’s Undertaking

Bridgepoint Financial Services Limited Partnership v. Galamini 2021 Ont SCJ

The plaintiff’s lawyer signed an undertaking that, upon receiving settlement funds, a lender paying money to the plaintiff to assist in the action would be repaid from the settlement money. Settlement was made, the lawyer received the funds, and then the lawyer forgot to pay the lender. The judge held that the lawyer was personally liable for the failed undertaking, but was only liable for the debt due on the day that it should have been paid. The interest on that debt was at the prejudgment interest rate, not the contract rate of 26% per year.

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Apr
26
2022

Transcript Use on Motion

Nur v. Lange 2021 Ont SCJ (Associate Judge)

Use of opposite party’s discovery transcript in a motion for summary judgment. If the entire transcript is submitted, without qualification, the opposite party can use that discovery transcript as evidence of its position. However, if the use is qualified or only excerpts are submitted, the submitting party does not have that problem.

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Apr
22
2022

Cross-Examination – Improper Interference

Shukla v. Fenton 2021 Ont SCJ

Under Rule 34.14, a party has the right to adjourn a cross-examination and move for directions if the right to examine is being abused by an excess of improper questions or interruptions. If the party is successful, the party will get costs and an order clamping down on the other party’s counsel on a new examination. If the party is unsuccessful, that party will no longer be able to continue the examination. This case sets out what an opposing party’s counsel may or may not do. The judge took no issue with the objections being made, but rather about the repetitive and argumentative manner in which they were being made.

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Apr
22
2022

Pierringer Agreement Disclosure

Singh et al v. Mann et al 2021 Ont SCJ

Not only must a plaintiff disclose a Pierringer agreement that the plaintiff makes with one of the defendants and provide details of its basic terms, the plaintiff must produce the entire agreement and redact only the settlement amount and dates of payment.

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