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Legal Blog

Disclaimer of Liability: The Speigel Nichols Fox LLP Blog is intended to provide helpful general information; however, it is not legal advice. You must consult a lawyer if you have a specific legal question or issue that requires an answer.

Jan
22
2024

Krystyne Rusek co-authors article, “You’re Going to Court In Person?!! An update on courtroom technology from your Section Technology Liaisons”

Krystyne Rusek, counsel with Speigel Nichols Fox LLP, and with the assistance of Matthew Bradley, co-authored the article, “You’re Going to Court In Person?!! An update on courtroom technology from your Section Technology Liaisons” for the Ontario Bar Association. The article explores the gradual return back to in-person hearings and how lawyers are expected to use technology, with pointers on how to avoid disruptions and pitfalls.

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Jan
22
2024

Krystyne Rusek moderates panel, “Will Validation, Substantial Compliance and Electronic Documents: Updates and Future Changes”

Posted in SNF News

On February 8, 2024, Krystyne Rusek, counsel at Speigel Nichols Fox LLP, is moderating a panel for the Ontario Legal Conference: Family, Estates and Real Estate Law. Krystyne will moderate the panel on “Will Validation, Substantial Compliance and Electronic Documents: Updates and Future Changes” with Liza Saad, Tupman & Bloom LLP, and Demetre Vasilounis, Fasken Martineau DuMoulin LLP. The panel will address how the law has developed since the Succession Law Reform Act was amended in January 2022 to permit judges to validate wills that are non-compliant with formal requirements under the Act.

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Jan
01
2024

Costs (2)

Posted in Construction

Speaking of costs, in Prasher Steel Ltd. v. BWK, a 2023 decision of the Ontario Superior Court of Justice, the defendants were wholly successful in a decades-long contract dispute. The trial judge was tasked with determining the appropriate scale, and award, of costs.

A pen on a paper with calculations.

The defendants asked for substantial indemnity costs. The judge noted that the normal scale of costs is only partial indemnity and that a higher scale of costs is reserved for exceptional circumstances, such as reprehensible or outrageous conduct on the part of one of the parties. Here, the judge agreed that substantial indemnity costs were appropriate for several reasons:

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Jan
01
2024

Lien Start Date

Posted in Construction

When a subcontractor supplies materials or services (collectively, “services“) to an improvement and is not paid, it has the right to register a lien against the project lands. Under the current Construction Act, a sub has to register its lien within 60 days of the last supply of the services. Under the old Construction Lien Act, a sub had only 45 days. The lien period also starts to run upon publication of substantial performance of the prime contract, but that alternative is not the subject of this newsletter. So, when does the sub last supply its services? That was discussed in Ozz Electric Inc. v. Bondfield Construction Company Limited, a 2023 decision of an associate judge of the Ontario Superior Court of Justice.

A calendar with a date marked in red.

Parties

The sub, Honeywell, supplied services; the general, Bondfield, did not pay for them in full; and Honeywell registered a lien against the project lands on February 21, 2020. This registration was based on an alleged last supply of services of January 8, 2020. The project was governed by the old Construction Lien Act so that Honeywell had only 45 days to register its lien.

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Dec
19
2023

Oppression

Pereira v. TYLT Technologies Inc. 2023 Ont CA

The corporation’s founder and officer, director, and shareholder was fired by his co-founder and an outside director and removed as a director. His unvested shares were to be purchased pursuant to a shareholders’ agreement at a nominal value. Regardless of the shareholders’ agreement and that an employment agreement allowed the termination, the Court of Appeal noted that the oppression remedy, which was equitable, requires not just a legalistic analysis, but a determination of whether the actions of the majority were “fair.” The court found that the founder could reasonably expect that he would continue in his role with the corporations at least until his shares were fully vested. The court remitted the matter to be heard by way of a trial to determine whether the majority acted properly so that it was in the best interests of the corporation to divest the founder of a further role in the corporation and the unvested shares.

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Dec
19
2023

Limitation Refreshed

Anderson Sheet Metal Ltd. v. Comtract Compressors Inc. 2023 Ont SCJ

Under s. 13(1) of the Limitations Act, the start date of a limitations period can be “refreshed” by way of an acknowledgment of liability from the debtor. The acknowledgment may be made by way of email, but must be made before the original limitation period expires. In this case, the creditor sent a statement of account, referencing a number of invoices, and asked when more payments would be forthcoming; the debtor responded, “we have obviously been having some difficulties in paying off this account. I will see what I can send you in the next week or so.” That was enough for the judge to conclude that the limitation period re-started from the date of that response and that any invoices that had not expired at that date had a new two-year limitation period.

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Dec
01
2023

Overturned

Subject to a decision of the Supreme Court of Canada, a decision of the Ontario Court of Appeal is binding on that court and any lower court – until it is not. Before the Ontario Court of Appeal will overturn a prior decision of a three-person panel of that court, it will deal with the appeal by way of a five-person panel. This is what happened in Bank of Montreal v. Iskenderov 2023 ONCA 528.

A group of referees on a football field.

Fraudulent Conveyance

In this case, husband and wife were defendants in a fraudulent conveyance action and sought, by way of a summary judgment motion, to dismiss the action on grounds that the limitation period had passed. If the applicable limitation period were the 10-year limitation pursuant to the Real Property Limitations Act (RPLA), the defendants were out of luck; if it were the two-year limitation period pursuant to the Limitations Act, 2002 (New Act), the defendants had a chance.

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Nov
20
2023

Limitations and Assigned Action

AssessNet Inc.  v. Taylor Leibow Inc., bankruptcy trustee 2023 Ont CA

Creditor sued debtors’ former bankruptcy trustee. It first needed to obtain a s. 38 order and an order granting leave to do so under s. 215 of the BIA. The trustee claimed that the action was statute barred. Section 12 of the Limitations Act deals with an assigned action (including an action under s. 38 which was assigned from the current trustee in bankruptcy) has to be brought within 2 years from earlier of the dates that the predecessor and the claimant first knew or ought to have known of the matters in issue. In this case, the fact that the creditor’s representative was an inspector of the bankrupt estate was irrelevant because an inspector owes a duty to act in the best interests of the estate, not in its own best interests and suing the then trustee was not in the best interests of the estate. Further, the claimant was not able to sue the trustee until it obtained the s. 38 and s. 215 orders and the action was commenced within two years of obtaining them.

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Nov
20
2023

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.

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Nov
17
2023

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.

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