
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.
Construction Act (#5)
In 2018, we devoted four newsletters to the revamp of the Construction Lien Act, including its change of name to the Construction Act (the “Act“). Most of the changes to the Construction Lien Act took effect as of July 1, 2018; the prompt payment and adjudication provisions took effect as of October 1, 2019. On November 6, 2024, the Act had its first revamp. The bill making these changes has been enacted, but has not yet been proclaimed into force. Similarly, contemplated new regulations have not yet been promulgated.
Rather than a whole-scale change, the new legislation is more akin to a significant tweaking of some existing concepts in the Act. We will now review the more important of these tweaks. To meet space requirements, we will limit our comments to a prime contract scenario; however, the changes are applicable to subcontracts with only slight variations.
Continue Reading >Krystyne Rusek’s Appointment by the Executive of the Trusts and Estates Section of the OBA
Krystyne Rusek has been appointed by the Executive of the Trusts and Estates Section of the OBA to act as the liaison for the OBA’s Civil Rules Review Taskforce. The Taskforce will be making submissions to the Civil Rules Review Group, co-Chaired by Allison Speigel and the Honourable Justice Cary Boswell, and participating in consultations regarding a proposed overhaul of the Rules of Civil Procedure.
Continue Reading >Corporate Attribution
The common law doctrine of corporate attribution provides guiding principles for when the actions, knowledge, state of mind, or intent of the directing mind of a corporation may be attributed or imputed to a corporation. Attribution is generally inappropriate if the directing mind acted to defraud the corporation or those actions were not designed to benefit the corporation.
The Supreme Court of Canada has ruled in both civil and criminal cases that it would give effect to the exceptions and would not apply the corporate attribution doctrine in the contexts of those cases.
The court has now discussed the corporate attribution doctrine in bankruptcy and insolvency contexts: Aquino v. Bondfield Construction Co. 2024 SCC 31 and Scott v. Golden Oaks Enterprises Inc. 2024 SCC 32.
Continue Reading >Direct Payments
In almost all legal cases, we can understand the positions of the parties. Some positions are better; some are worse. But at least they are reasonably arguable. In some cases, however, we just cannot fathom the position that the lawyers for one of the parties take. The case of Demikon Construction Ltd. v. Oakleigh Holdings Inc., a 2024 decision of the Ontario Superior Court of Justice, is one of those cases.
Motion
The construction manager of a condominium project registered a $5 million claim for lien. The developer posted security for $5,050,000 (i.e. the lien amount plus $50,000 for costs). The developer obviously needed to clear title so that mortgage money or unit sales would flow in the normal course.
Continue Reading >The Opening of the Courts: Chief Justice Morawetz’s Speech
On September 23, 2024, Chief Justice Morawetz gave a speech at the annual Opening of the Courts, in which he provided an update on the work of the Civil Rules Review, which our own Allison Speigel is co-chairing along with Justice Cary Boswell.
His remarks concerning the work of the Civil Rules Review were as follows:
“One significant measure towards addressing our Court’s backlog and the culture of complacency in the area of Civil, is a commitment to a complete reform of the Civil Rules of Procedure. Rules that have not been updated for 40 years.
Last Fall, Attorney General Doug Downey and I announced a Civil Rules Review. We assembled a team dedicated to this work. It is co-chaired by Justice Cary Boswell and Allison Speigel, and includes members of the judiciary, members of the private and public bar and expert legal academics.
The group launched phase one of their work in January.
From the outset, I hoped for bold and inspired thinking.
Continue Reading >No Claims Over – Release
A creditor commences an action against, seemingly, the only entity liable for the debt. It enters into minutes of settlement with that debtor and, as part of the minutes, it is to give a full and final release. The debtor wants a “no claims over” clause, but the creditor does not want to give up its rights to claim against someone else – just in case. The creditor and debtor disagree as to the form of the release. Will the release contain that clause and, if it does, what then? Those questions were answered in Haider v. Rizvi, a 2023 decision of the Ontario Court of Appeal.
Clause Meaning
A “no claims over” clause stipulates that not only will the releasor (creditor) release all its claims against the releasee (debtor), but it will also not commence any action against anyone else who might claim contribution and indemnity against the releasee relating to the same issues.
Continue Reading >Krystyne Rusek and Jennifer Lake co-author article, “Bifurcation in Estate Litigation”
Krystyne Rusek recently chaired Essential Updates on Court Processes for Estate Litigators, with fellow estate litigators, Matthew Rendely of Loopstra Nixon LLP and Priyanka Bahl of Elm Law.
Topics covered included bifurcation and new Rule 6.1.01 in estate proceedings, dismissal for delay in estate matters, and using Calendly on the Estates List and in other courts.
Krystyne’s paper on Bifurcation in Estate Litigation, co-authored with Jennifer Lake, covers the principles applied in ordering bifurcation, as well as case law under the new rule and possible application in estate matters.
Continue Reading >Advocacy
Advocacy is an art, not a science – but it still has rules. Break a rule and you are probably not a very good advocate. Good advocacy, whether written or oral, helps clients win cases. Bad advocacy helps clients lose cases. That said, depending upon the facts, good advocates can still lose cases and bad advocates can still win cases.
First Rule
Cases are usually won or lost on the facts. The law is normally established; the facts are whatever evidence counsel adduce to the court and then are found as part of the decision to be the facts. We talk about lawsuits, but they should really be known as factsuits. The job of a good advocate is to present all of the admissible facts necessary to support the client’s case.
Continue Reading >Minefield
We often refer to construction lien law as construction litigation, but with security. The problem for practitioners who dabble in the area is that lien law is also a minefield waiting to blow up on unwary or inexperienced lawyers. Sometimes mistakes can be cured; often they cannot be. Fortunately, lawyers are insured and LawPro, the lawyers’ insurer, will appoint a construction lawyer who knows what to do to deal with these mistakes and sometimes turn a sow’s ear into a silk purse. One such case was Gay Company Limited v. 962332 Ontario Inc., a 2023 decision of the Superior Court of Justice.
What Happened
We are actually not entirely sure – because the references to plaintiff and defendant are interposed from what we would expect. However, we will assume that a contractor registered a lien against the lands of an owner for $767,000. But it is not quite that simple.
Continue Reading >Krystyne Rusek’s Appointment as Technology Liaison for the Trusts and Estate Law Section Executive of the OBA
Congratulations to our Krystyne Rusek for her appointment as the Technology Liaison for the Trusts and Estate Law Section Executive of the Ontario Bar Association (OBA). The OBA, a branch of the Canadian Bar Associations, represents close to 17,000 lawyers, judges, notaries, law teachers and law students from across the province, and the voice of Ontario’s legal profession. Krystyne’s dedication and expertise promise to enrich her practice, strengthen our firm, and enhance the service we provide to our clients while advancing the profession.