A recent decision of the Ontario Divisional Court upheld a contractually agreed-upon limitation period and enforced it against a third party, even in circumstances where it appeared to be at odds with the statutory provisions of the Limitations Act, 2002.
The hardest mistake to fix in litigation may be missing the limitation period. Almost every other mistake can be fixed, but missing that critical window for bringing a claim can be catastrophic.
The Ontario Rules of Civil Procedure allow for certain matters to proceed by way of application, where a court can determine a discrete legal issue without the need for a full trial. Although an application can be an expeditious and cost-effective way to resolve a legal dispute, lawyers should be careful to ensure the issues in the case are the proper subject matter of an application. The Ontario...
Lawyers sometimes describe cases as being like a law school problem. Sometimes that means that the case raises difficult and complicated questions of law and fact that are nearly impossible to resolve. And sometimes it means that the case raises an obscure issue that seems more like a dispute between property owners in 19th century England. Gallant v Dugard squarely falls into the latter category.
A recent decision of the Divisional Court of Ontario has opened the door for a limited expansion of the discovery process under the Small Claims Court Rules (“Rules”). In Riddell v Apple Canada Inc, the Divisional Court upheld an order for inspection of property, made by a Deputy Judge of the Small Claims Court. The decision clarifies the Rules concerning discovery-type motions in the Small...
Is it improper for an opinion expert to hire his or her own lawyer to help prepare an opinion? That was the issue in the recent decision of Justice Perell in Wright v. Detour Gold. Justice Perell ruled that there was nothing improper in an expert retaining counsel to assist with the preparation of the opinion. The reasons are interesting in their conceptualization of the expert’s overriding duty...
Lawyers are continually reminded of the importance of pleadings—and, perhaps not surprisingly, of naming the correct corporate entity as defendant. So what if a party name is slightly off? What may look like a simple misnomer could in fact end your lawsuit. Justice Daley of the Ontario Superior Court of Justice addressed this issue in Anderson-Munroe v. Sheraton Hotels.
In Ontario, if a product harms consumers, a manufacturer may apologize without risk of the apology being used as an admission of liability in subsequent civil proceedings. Indeed, Ontario’s Apology Act expressly protects defendants from their apology being used in a determination of fault or liability.
A recent Alberta trial decision reads like something out of an antiquated law school casebook in which damages are claimed based on the disappointment of one spouse (usually the husband) about the past conduct or character of the other (usually the wife).
Many counsel have undoubtedly been asked by their clients what remedies are available in the face of an opposing party who opts not to comply with a court order. In Ontario, a party may bring a motion for a contempt order to enforce an order requiring a party to do an act (or abstain from doing an act) other than the payment of money. While certain litigants may be enticed by the option of...
Misfeasance in public office is a difficult claim to prove. A successful action requires plaintiffs to demonstrate that a public officer engaged in deliberate misconduct knowing that such misconduct was likely to cause harm to the plaintiff. In many cases, evidence of the requisite mental element is lacking.
Brevity is not always a virtue, especially when a trial judge’s decision leaves the palate of an appellate court dry. The line between insufficient reasons and succinctness was explored most recently in Dovbush v. Mouzitchka.
In a recent decision, the Ontario Superior Court awarded costs on a partial indemnity scale which constituted 75% of the costs actually incurred by the successful party. The decision demonstrates the possibility of a generous costs award on a partial indemnity scale where the issues at stake are important and complex, and both written materials and oral submissions are of high calibre.
Lo Faso brings up the tension between fair and just court process and ensuring that all facts are available to adjudicate a dispute.
March 19, 2015
In Ontario, either party in a civil action can demand that its case be decided by a jury. In Kempf v. Nyugen (2015 ONCA 114), the Court of Appeal for Ontario addressed the question of when a case can be removed from a jury's hands because it is too complex, in a decision that strengthens the right to have civil cases decided in jury trials.
Lazy litigants beware: not only is your (in)action subject to a dismissal motion under Rule 24 of the Rules of Civil Procedure, it is also subject to the court's inherent jurisdiction. According to the Ontario Court of Appeal in Wallace v. Crate's Marine Sales Lotd, 2014 ONCA 671, inordinate delay in pursuing an action could be construed as an abuse of process, and as undermining the...
At least one Superior Court judge seems to think so. In a decision on costs, Justice David Brown made the following comment regarding the claims for photocopying: