Legal Blog

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.

Allison Speigel and Krystyne Rusek Serve on the OBA Executive

Speigel Nichols Fox LLP would like to congratulate Allison Speigel and Krystyne Rusek who will serve the Ontario Bar Association in various roles for the 2023-2024 year. Allison Speigel will act as the Public Affairs Liaison for the Civil Litigation Section Executive and Krystyne Rusek will act as the Technology Liaison for the Trusts and Estates Law Section Executive.

Their dedication and involvement ensure that our profession, clients, and the justice system will be better served. To learn more about the OBA please visit here: https://www.oba.org/Advocacy/About

Personal Liability

On occasion, an unscrupulous principal sweet talks an unsuspecting owner into signing a construction contract with the principal’s corporation and either the principal has no intention to complete the project properly or has no ability to do so. Can the owner recover damages against the corporation and its principal and, if so, what damages? These issues were discussed in Li v. Zhu, a 2023 decision of an associate judge of the Ontario Superior Court of Justice.

Discovery RPLA

Browne v. Meunier 2023 Ont CA

The court held that the common law discovery principle applied to a claim under the Real Property Limitations Act regardless that the specific discovery principles are not outlined in that Act – as is done in the Limitations Act, 2002. However, the court also held that the claimant’s predecessor in title ought reasonably to have discovered the problem and that discovery occurred when the predecessor ought to have known, not when the claimant knew or ought to have known. As a result, fraudulent conveyances, which are governed by the RRPLA, are subject to the discovery principle.

Honest Performance Breach

Bhatnager v. Cresco Labs Inc. 2023 Ont CA

The vendor claimed that the purchaser ought to have informed the vendor of an after-closing occurrence that would have affected the vendor’s entitlement to a post-closing adjustment. Motion judge agreed, but held that purchaser suffered no damages because the evidence showed that, knowing about the problem or not, the purchaser could have done nothing about it. The Court of Appeal dismissed the appeal and stated that a breach of a duty of honest performance (per the SCC in Callow) does not presume a claimant’s damages; the claimant must still prove that there was a lost opportunity that had monetary adverse effects. The Court also held that, on the evidence, that there actually was no breach – because the vendor had told the purchaser of the problem on a timely basis.

Writ Priority

Senthillmohan v. Senthillmohan 2023 Ont CA

Court directed the sale of the matrimonial home held in joint tenancy by wife and husband. Husband’s execution creditor filed a writ, husband and wife sold the home, and execution creditor agreed to temporarily lift the execution to facilitate the sale with the proceeds in trust. Wife moved to have her portion of the proceeds paid to her without payment of the execution creditor. The creditor took the position that its writ bound the interests of both husband and wife and had to be paid first in priority. The court held that it mattered not whether the wife’s interest was as a joint tenant or tenant in common, the execution binds only the execution debtor’s interest in jointly held property. Wife received her portion of the net sale proceeds without payment to the creditor.

Patent-Latent

In most completed real estate transactions, the purchasers are relatively satisfied with the condition of the property that they purchased (i.e., for the most part, the property is in the condition that the purchasers expected it to be). Sometimes, however, the property is most certainly not in that condition, the purchaser sues, and the outcome depends upon whether the defects were patent or latent or concealed. These were the issues in Purdy v. Russell 2022 ONSC 4692.

Ancillary Claims

The limitations period for claims dealing with land is 10 years; the ordinary limitations period is only two years. Can an otherwise tenable trust claim in land be defeated by a two-year limitation period because, before the claimant commenced the action, the land was sold? This issue was decided in Studley v. Studley, a 2022 decision of the Ontario Court of Appeal.