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Legal Blog: Civil Litigation

Jun
21
2021

Will Ambiguity

Barsoski v. Wesley 2020 Ont SCJ

A will required the trustees to hold the testator’s house and contents as a “home” for a beneficiary during his lifetime. The will established a $500,000 fund to ensure that the home was professionally maintained. The will provided that if the beneficiary was no longer living in the home, the home was to be sold, but the fund was to be used for the beneficiary’s living expenses. The judge had to decide whether the terms of the will granted a life estate or merely a license to live in the home. This decision was important because the beneficiary was seemingly not living in the home; rather, an acquaintance of his was. The judge held that the will created a license to occupy the home. She then found that the determining event (i.e., no longer living in the home) was void for uncertainty (i.e., What does it mean? Primary residence, stay in the house one or two weekends, intend to live there?) and that the entire gift, being only a license, failed due to the uncertain terms.

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Jun
11
2021

Discovery

Kaushal v. Vasudeva 2021 Ont SCJ

An affiant was being cross-examined on his affidavit in support of his position as a respondent in an oppression application. The cross-examination was being conducted remotely. The examiner affirmed with the affiant and his lawyer that, other than the interpreter and the lawyer, no one else was present in the room. It seems that this was a lie and that the affiant’s wife and son were both present during the cross-examination giving him hand and facial signals. Upon motion, the judge, who noted that this misconduct strikes at the very heart of the integrity of the fact-finding process, struck the affidavit in its entirety.

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Apr
27
2021

Costs Self-Represented

Donatelli- Venneri v. Stern Landesman Clark LLP 2020 Ont SCJ

The plaintiffs appealed an assessment officer’s taxation award against them. The judge dismissed the appeal and, in his decision on costs, noted that the plaintiffs behaved appallingly during the hearing and made unsupported allegations against the defendant law firm of misconduct and a lack of ethics. The judge ordered costs on a substantial indemnity basis and did so even though the law firm had acted for itself. He stated, “While they are self represented, all work docketed was counsel work. I also accept that time spent by a service provider who bills based on time is time not spent on billable work.”

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Apr
13
2021

Summary Judgment Methodology

Royal Bank of Canada v. 1643937 Ontario Inc. 2021 Ont CA

The debtors claimed that the bank had represented that the guarantees that they signed would result in a maximum exposure for all of them of $600,000. The guarantees when added together resulted in an exposure of $1.5 million. The motion judge granted summary judgment. The Court of Appeal reversed and sent to matter to trial. It held that, on a motion for summary judgment, the motion judge must first determine whether there is a genuine issue requiring a trial based solely on the evidence before the judge and, if there appears to be a genuine issue, determine if the need for a trial can be avoided by use of the enhanced powers to weigh evidence, evaluate credibility, and draw reasonable inferences. Because the motion judge did not seem to do this, but rather was more conclusory, and because the motion judge did not fully review all of the evidence and why she decided some evidence was not to be relied upon, the court held that she had not properly analysed the case and the evidence. The court also added that an “entire agreement clause” did not preclude or diminish the defence of misrepresentation.

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Apr
13
2021

Frivolous Appeal – Rule 2.1.01

National Bank of Canada v. Guibord 2020 Ont CA

The defendant appealed a timetabling endorsement, clearly an interlocutory order. A single judge of the Court of Appeal dismissed the appeal on grounds that the court lacked jurisdiction. The defendant then appealed that decision to a panel of the Court of Appeal. The plaintiff moved under Rule 2.1.01 for determination that the defendant’s appeal was frivolous, vexatious, and an abuse of process. The Court agreed that Rule 2.1.01 applied and that the defendant’s appeal was frivolous because it was completely devoid of merit. One cannot an appeal interlocutory order to the Court of Appeal without leave.

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Apr
13
2021

Settlement & Release

Reid v. Bracebridge 2021 Ont SCJ (Div Ct)

The parties, through their lawyers, had entered into a settlement of one action, leaving a second outstanding. The plaintiff then fired his lawyer, refused to sign the release that the settlement contemplated (taking the position that it was wider than it ought to be), and requested that the settlement not be enforced because it was contingent upon the release. The court noted that if it is not apparent that the wording of the release is an essential term of the settlement, then the settlement is enforceable and the parties have to then resolve the wording of the release by common sense within the framework of the settlement or by application to courts. In this case, the court held that the lawyers had agreed upon the terms of the release and that there was no indication that the plaintiff’s lawyer had acted without authority. The settlement was enforced.

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Apr
13
2021

Costs Appeal Leave

Auciello v. CIBC Mortgages Inc. 2020 Ont CA

Tests for standalone leave to appeal costs: “Leave to appeal will not be granted save in obvious cases where the party seeking leave convinces the court there are strong grounds upon which the court could find that the judge erred in exercising his discretion” and “(a) court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong.”

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Apr
13
2021

Standard of Review

Muise v. Mark Wilson’s Better Used Cars Limited 2021 Ont SCJ (Div Ct)

In dismissing an appeal, the court approved the following statement of a federal court judge as to palpable and overriding error: “Palpable and overriding error is a highly deferential standard. ‘Palpable’ means an error that is obvious. ‘Overriding’ means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.”

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Mar
15
2021

Discovery

Jane Doe 622952 v. Zhang 2020 Ont SCJ

Plaintiff wanted a video discovery. The defendant objected because, he said, the case involved credibility, best assessed in person. The judge did not agree that a purpose of discovery was to assess credibility; its purpose was to discover evidence and obtain admissions. Given the pandemic, he ordered discoveries and mediation by video. This case should not be taken as instructive to a situation in which there is an allegation of tailoring evidence.

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Jan
22
2021

CPL

Kirubakaran v. Tiller 2020 Ont SCJ

A motion for a certificate of pending litigation (CPL) is often brought without notice – usually for the reason that, if notice is given, the landowner will do something with the land and frustrate the motion. It is a one-sided motion and the court has to rely on the moving party to set out all of the relevant facts. Accordingly, a CPL may be vacated if its issuance came about pursuant to material non-disclosure, which would be an abuse of the court’s process. In this case, the plaintiff alleged that property was being held in trust for him pursuant to an undocumented transaction. On the motion to set aside the CPL, it became apparent that there were documents and that these documents, on their face, contradicted the plaintiff’s assertion of a trust. The judge set aside the CPL for non-disclosure of material facts.

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