Legal Blog

Master – Summary Judgment Jurisdiction

R&V Construction Management Inc. v. Baradaran 2020 Ont SCJ (Div Ct)

Although, on a motion for summary judgment in the normal course, Masters do not have the enhanced powers given to judges, they do have jurisdiction to use the enhanced powers in their capacity as referees under the Construction Act. The motion judge was overruled on this issue. However, the court set aside the Master’s dismissal of the action because of a lack of natural justice. The defendant, who was not represented, had brought a motion to discharge the plaintiff’s lien or reduce lien security. Instead, the Master granted summary judgment against him for a motion that neither he nor the plaintiff had brought.

Limitation – Debt Acknowledgement

Michel v. Spirit Financial Inc. 2020 Ont CA

When a limitation period expires, it cannot be revived by an acknowledgement of the debt. The acknowledgement must be made before expiry of the limitation period.

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.

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.

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.

Inspection

Pordell v. Crowther 2020 Ont SCJ

A fire occurred in a house before the closing of an agreement for sale. The agreement was based on the standard OREA form of contract. It stated that the buildings remain at the risk of the seller and that the seller holds all insurance policies in trust for the parties as their interests may appear. It gives buyer the right to terminate the agreement or complete it and take the insurance. Notwithstanding the agreement, no insurance was available because seller had left the property empty for more in 30 days. Buyer attempted to view the damage and obtain information regarding the repairs that seller made. Seller stonewalled buyer and, accordingly, buyer refused to close. The judge ordered the return of buyer’s deposit.

Derivative Action

Tran v. Bloorston Farms Ltd. 2020 Ont CA

Tenant’s corporation ran a business from tenant’s land. Landlord improperly terminated the lease and, consequently, the business failed. Tenant sued for the diminution in the value of her shares in the corporation. Landlord argued that, based on the rule in Foss v. Harbottle, a shareholder had no right to sue for a wrong done to the corporation and, accordingly, the tenant had no right to claim that loss against landlord. The court noted that there were exceptions to this rule. An applicable exception occurs when the shareholder is not suing for a wrong done to the corporation for which the corporation can sue. In this case, the corporation, which had no relationship to the landlord, had no right to sue and, if tenant had no right to sue, the improper actions of landlord would have no remedy. The court ordered landlord to pay to tenant the loss of the value of the corporation’s business.

Susanne Balpataky presents, “The New Infectious Disease Emergency Leave: How it Impacts your Workplace” at MBOT Webinar

On June 25, 2020, Susanne Balpataky, partner with Speigel Nichols Fox LLP, presented at MBOT’s webinar: Getting Back to Work and Understanding the New Normal and discussed the Employment Standards Amendment Act and the new Infectious Disease Emergency Leave Regulation. Susanne highlighted implications, considerations, and exceptions under the new regulation.

The video presentation is available here.

If you or your business have questions regarding employment, please contact Susanne at: susanne@ontlaw.com

Waiver of Tort

Atlantic Lottery Corp. Inc. v. Babstock 2020 SCC 19

Class action in which the class plaintiffs alleged that video lottery terminal machines were so deceptive that they contravened the Criminal Code and that, based on three causes of action, the lottery corporation had to return to the class all profit that the corporation earned from the machines. The lottery corporation moved to dismiss the action on the basis that it had no reasonable chance of success.

What is waiver of tort?

When a tort was made out, but the plaintiffs chose to pursue a claim to recover the defendant’s ill-gotten gains, the plaintiff was said to “waive the tort.” This term was a misnomer. The plaintiff was not waiving the wrongfulness of the defendant’s conduct, it was electing to pursue an alternative, gain-based, remedy. The court stated that the term “waiver of tort” generates confusion and should be abandoned. It also noted that, in order to make out a claim for disgorgement, which is exactly what the plaintiffs wanted, a plaintiff must first establish actionable misconduct.

Rectification

2484234 Ontario Inc. v. Hanley Park Developments Inc. 2020 ONCA 273

Purchaser claimed rectification of an agreement relating to an easement over part of land necessary to allow access to other lands that purchaser had purchased from vendor.

The Court noted that “Rectification is an equitable remedy available to correct a document that fails to accurately record the parties’ true agreement. It is not available to correct an improvident bargain or to fill a gap in the parties’ true agreement, even when the omission defeats what one (or both) of the parties was seeking to achieve. As an equitable remedy, it is also not available when the party seeking it does not have ‘clean hands’.”