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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.

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
21
2021

Cost Plus

Infinity Construction Inc. v. Skyline Executive Acquisitions Inc. 2020 Ont SCJ

A cost plus, CCDC 3 contract does not grant an unlimited right to the contractor to perform any work it wishes. It still has an obligation to exercise a degree of diligence in carrying out work so as to not incur costs significantly higher than the estimate without prior approval. Courts will imply a term preventing payment for wasteful and uneconomic use of labour and materials and, if there is an estimate providing a guidepost, the final price should fall somewhere near the estimate – unless the contractor promptly notifies the owner of an expected overrun. In this case, the contractor’s work and invoices were satisfactory. Contractual interest did not run until the invoices were provided, but there was no reason to eliminate interest in its entirety.

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Jun
17
2021

Assessment of Damages

Akelius Canada Inc. v 2436196 Ontario Inc. 2020 Ont SCJ

The vendor improperly refused to close a transaction involving seven residential apartment buildings and, two years later, sold the properties at a substantially higher price. The judge granted judgment for $775,000 for the purchaser’s costs thrown away on the aborted transaction. However, the judge ordered nothing for the increase in the value of the land. The evidence indicated that, as of the day of closing, there was no difference between the purchase price and the value of the properties. The judge also refused to grant damages based on lost profit because the money that was to have been used to purchase the properties was used by the purchaser to purchase other properties and the purchaser was unable to provide evidence to set out the return that the purchaser had received from the purchase of the new properties. Accordingly, the purchaser had either not mitigated or had fully mitigated its damages in that regard.

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Jun
17
2021

Limitations

Canning Construction Limited v. Dhillon 2021 Ont SCJ

A lawyer had failed to perfect the plaintiff’s claim for lien. Ultimately, the defendant went bankrupt and the plaintiff was unable to collect any money. The plaintiff waited until 2019 to commence its action, even after being told by the lawyer in 2014 that the lawyer had failed to perfect the lien. The plaintiff claimed that it had not discovered its cause of action against the lawyer until it finally realised that it would receive no monies under the bankruptcy. The judge disagreed and held that, subjectively, after receiving a statement of affairs of the bankrupt, a reasonable corporation represented by counsel ought to have known that there would not be full recovery. The judge noted that the plaintiff could not say that it was legally inappropriate to bring the action because (i) the plaintiff had not relied on the superior knowledge of the lawyer regarding an attempt to ameliorate the loss, and (ii) although the plaintiff had pursued an alternative remedy to obtain its money, that alternative remedy was not sought against the lawyer, but against a third party.

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Jun
14
2021

Setting Down Delay

Tarion v. Dunhill Development 2019 Ont SCJ

The plaintiff brought a motion under Rule 48.14, just before the five-year deadline, for an extension to set the matter down for trial. The Master refused to grant the extension because (i) the plaintiff was not able to account for 3½ years of the 5 years of delay and (ii) did not adduce sufficient evidence to rebut the presumption that the defendant would be prejudiced if there were an extension. Although the plaintiff noted that its engineering firm was still active, it did not address whether the engineering witness were still available nor did it reference the evidence of the contractors who had performed the remedial work.

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Jun
14
2021

False Pretences

Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc. 2020 Ont SCJ

In a prior action, the defendant been held liable for substantial damages for committing a breach of confidence and misappropriating the plaintiff’s trade secrets. The defendant then assigned into bankruptcy. The plaintiff brought a motion seeking a declaration that, upon discharge from bankruptcy, the defendant was not released from the debt owed to the plaintiff because that debt arose from the defendant obtaining property by false pretences as set out in section 178(1)(e) of the Bankruptcy and Insolvency Act (BIA). The plaintiff also requested a declaration that the automatic stay under section 69(1) of the BIA be lifted. The judge gave a complete list of considerations and granted both requests. The judge found that the defendant was a deceitful wrongdoer who should be precluded from benefiting from his dishonesty. He found that, because s. 178(1)(e) applied, the plaintiff would be materially prejudiced if the stay continued to operate.

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Jun
11
2021

Scott Schedule

One Source Fire and Life Safety Inc. v. Prica Group Construction Management Inc. 2021 Ont SCJ

The parties were ordered to produce Scott Schedules. A Scott Schedule performs the function of particulars, giving definition to the pleadings and therefore to the relevance of questions on discovery. The order specified that the defendant had to identify separately all deficiencies, incomplete work, and work omitted by agreement with a detailed description of each item. The defendant stated that it was unable to fully comply with the order because it had hired a replacement contractor to correct all deficiencies and complete the work and did not get a breakdown of the various deficiencies and completion items. The plaintiff requested an order, upon which the judge agreed, prohibiting the defendant from advancing any new claims for deficiencies without leave. That order could have been far more stringent.

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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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Jun
09
2021

Discretion – Good Faith

Dominus/Cityzen Brampton SWQRP Inc. v. City of Brampton 2020 Ont SCJ

A site plan agreement allowed for a security deposit of $646,000 and gave the City the discretion to release part of it. The developer had done everything other than approximately $50,000 of work. It had not been able to do that because of opposition from neighbouring landowners. The City refused to reduce the security to $50,000, probably because the neighbouring landowners had also sued the City and the developer. The judge noted that the City was wearing two hats: the first as the municipal regulator and the second as the actual owner/user of the development. The court held that the City had exercised its discretion in bad faith. The fact that the City had been sued in its capacity as owner did not give it a right to set off possible future damages against the security deposit obtained in its capacity as municipal regulator.

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Jun
09
2021

Fraudulent Mortgage

Mohammed v. Makhlouta 2020 Ont SCJ

A vendor gave and had registered a mortgage in favour of his brother after the purchaser’s requisition letter had been received and before closing. That mortgage was registered to secure prior loans from the brother. Although not stated in the reasons, it was apparent that the lawyer for the purchaser did not update the search of title before the transaction closed; no one knew about the mortgage until after the brother died and five years after closing when the purchaser was refinancing his existing mortgage. Brother’s estate took the position that the mortgage was valid. The judge held that the mortgage was fraudulent – because it was not for new consideration, but rather to gain an advantage against other creditors – and set it aside under the Fraudulent Conveyances Act.

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