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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
08
2020

Susanne Balpataky’s Article: “COVID-19 – The Black Swan” on MBOT Magazine

Susanne Balpataky, as MBOT Chair 2020, wrote MBOT Magazine’s opening message for its spring 2020 edition. In a hopeful tone, Susanne reminds Mississauga’s thriving business community of their resilience and MBOT’s role in supporting them through this difficult time. In her message, Susanne also highlights that COVID-19 might have come unexpectedly, but we must remain positive that we will emerge stronger than ever.

Screenshot of Susanne's article in MBOT Magazine.

Read Susanne’s article here.

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Jun
01
2020

Realty Default

Real estate default cases keep coming. The issues are often the same: who breached, who was ready willing and able to close, was repudiation accepted, what happens to the deposit?

A key being placed in a hand.

Azzarello

The case of Azzarello v. Shawqi 2019ONCA820 had all of the issues, as well as an unusual one dealing with the deposit. Purchaser was unable to close the transaction and requested an extension, which was given. On the extended closing date, purchaser requested a further extension. Vendors agreed, but on terms that, if not met, purchaser would be in default of the agreement. Purchaser did not respond. Vendors did not tender. Ultimately, vendors re-sold the property at a significant loss.

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Jun
01
2020

Comma (2)

Posted in Lawyers' Issues

In our February 2020 newsletter, we commented on the Ontario Superior Court of Justice decision in Austin v. Bell Canada. In that case, an interpretation of a pension plan revolved around the placement of a comma. After a thorough review of grammatical rules of interpretation, the motion judge decided that the terms of one section, on its face, would indicate a construction that would result in a rounding to one decimal point, as set out in the Consumer Price Index. However, the judge then reviewed another provision of the plan and, based on the evidence he received, decided that a one-decimal rounding policy would render that section meaningless. He therefore decided that there should be 2-decimal rounding. This decision, deciding between a 1.49% or 1.5% interpretation, was not trivial. The plan went on to note that whatever the percentage, it would be rounded to the next whole number (i.e. 1% or 2%). A 1% difference in an annual increase of payments in a pension plan for 35,000 pensioners would, according to the Ontario Court of Appeal, result in an increase in the first year of over $10 million and, for the long term, over $100 million.

A comma punctuation mark.

In our newsletter, setting out the facts, the interpretation, and the decision, our main complaint lay with the drafting of the pension plan and our contention “that many agreements are simply drafted improperly.” In this case, Bell Canada was successful at the motion level and disaster was averted.

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Jun
01
2020

PJI

Prejudgment and post-judgment interest are set in accordance with the Courts of Justice Act. These interest rates are relatively low. Often, in loan agreements and other contracts, the parties set an interest rate that is higher than the rates set under the Act. These are referred to as contractual rates. The Act gives a judge discretion to allow a rate higher or lower than that provided in the Act – but there has to be good reason to do so.

In Capital One Bank v. Carroll, a 2019 decision of the Ontario Divisional Court, a deputy judge of the Small Claims Court, without giving any reasons, refused to award interest at 19.8% as set out in the contract for a MasterCard credit card.

A hand holding out a credit card.

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Jun
01
2020

Didn’t Know

Posted in Collections

We always enjoy reading collection action decisions in which the defence is somewhat unique or, in some cases, utterly ridiculous. These decisions have usually been decided on a summary judgment basis. In this regard, we report on Business Development Bank of Canada v. VDF Wine Importers, a 2019 decision of the Ontario Superior Court of Justice.

An individual holding a pen and signing documents.

Guarantee

The initial facts were not at all unusual. The bank loaned $100,000 to a corporation and the sole shareholder of the corporation guaranteed the loan. The corporation defaulted and the bank sued the guarantor for payment. By the time of the motion for summary judgment, the amount outstanding was only $25,000.

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May
27
2020

Contract Termination & Injunction

Bombardier Transportation Canada Inc. v. Metrolinx 2017 Ont SCJ

The contract contained a dispute resolution procedure. After giving a default notice and a notice that the owner might terminate the contract, the contractor, who had invoked the dispute resolution procedures, moved for an injunction to force the owner to continue with the dispute resolution procedures rather than terminate. Based on the unusual facts of the case, the judge granted the injunction.

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May
27
2020

Fraudulent Conveyance – Limitations

Anisman v. Drabinsky 2020 Ont SCJ

The fraudulent conveyance took place in 2015. The plaintiff did not obtain his judgment until 2018 and did not learn of the fraudulent conveyance until 2019, when he was preparing for a judgment debtor examination. The judge decided the following: (i) there is only a duty to investigate when there is something that leads one to investigate. It makes no sense to require multiple title searches on an ongoing basis when there is nothing to trigger the search. The plaintiff did not discover, nor ought he to have discovered, the fraudulent conveyance until that preparation commenced. (ii) Regardless, the 10 year limitation period in the Real Property Limitations Act applied, not the 2 year limitation period under the Limitations Act, 2002. The judge cited Conde v. Ripley as authority for this proposition.

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May
27
2020

Costs Thrown Away

Syed v. Petrie 2020 Ont SCJ

A mistrial was granted after the plaintiff collapsed on the witness stand. The judge awarded costs thrown away to the defendant. He noted that there were 3 scenarios for adjournments: (i) one of the parties was at fault and needed the adjournment, (ii) the court had its own scheduling problems, and (iii) a party requested an adjournment as a result of no fault on his part (e.g. death of a witness, illness of counsel, etc.). In the first category, the court will grant the adjournment, but with an order for the payment of costs thrown away. In the 2nd category, the court will grant the adjournment with no costs to either side. In the 3rd category, the court will grant the adjournment with costs still being awarded against the party requesting the adjournment. The judge differentiated between fault and responsibility. The party may not have been at fault, but it was still responsible for the wasted costs. Given that there was no fault in this case, the costs ordered to be paid were not payable until the end of trial.

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May
26
2020

Bankruptcy Misconduct

CBM Ready Mix Division v. 8377278 Canada Inc. 2019 Ont CA

Supplier obtained a default judgment against the contractor for a monetary award only. After the contractor assigned into bankruptcy, the supplier brought a motion seeking a declaration that the default judgment survived the bankruptcy under sections 178 (1)(d) & (h) of the Bankruptcy and Insolvency Act, relying on a breach of the deemed trust. The motion was dismissed and the dismissal was upheld by the Ontario Court of Appeal. The Court referenced its 2018 decision in LPIC v. Rodriguez, noting that it was not the job of a motion judge to go beyond the pleadings and the judgment to make fresh findings of fact.

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May
20
2020

The Legalese Republished Dora Konomi’s Article

On May 14, 2020, the Hellenic Canadian Lawyers’ Association (the “HCLA”) republished Dora Konomi‘s article on “How to Stay Productive While Working from Home: 10 Things that Work for Me” in its spring Legalese. The Legalese is HCLA’s semi-annual newsletter showcasing the organization’s activities and highlighting its members’ work and contribution.

The cover page of The Legalese spring 2020 newsletter.

In this edition, you’ll also find Dora’s spotlight as a past scholarship winner of the 2017 Andromache Karakatsanis Award for outstanding academic achievement and involvement in the Greek community at large.

Find the Legalese here.

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