The legislation is meant to codify the laws of the applicable jurisdiction and provide guidelines and rules for courts, and society at large. However, despite best efforts on the part of those who drafted the documents, sometimes the meaning of certain clauses can be interpreted in more than one way. Sometimes this is a result […]
Category Archives: Commercial Litigation
Security for Costs
What is an Order for Security for Costs? Granting a motion for security for costs is a discretionary remedy of the court under the Rules of Civil Procedure (the “Rules“) in favour of the defendant. The defendant will bring a motion requesting an order that the plaintiff must post security for the defendant’s litigation costs […]
Oppression Claims & The Business Judgment Rule
Oppression is defined under the Ontario Business Corporations Act as conduct that is “oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer of the corporation”. This conduct does not need to be illegal so long as it fits the definition set out in the legislation. […]
The Tort of Abuse of Civil Process
Abuse of process occurs when a court determines that a party’s actions are detrimental to the administration of justice in some way. Establishing Abuse of Process The tests for the tort of abuse of civil process are difficult ones to overcome. They arise in unusual situations. First, there must first be collateral and improper purpose […]
Setting Aside a Default Judgment
What is a Default Judgment? A default judgment is often granted in favour of a plaintiff when the defendant, although served, either fails to appear in court or respond to a claim within the predetermined time limit. Can a Party Successfully Have it Set Aside? Setting aside a default judgment is a discretionary remedy based […]
Norwich Orders as a Tool of Discovery
What is a Norwich Order? A Norwich order compels a third-party, usually innocent, to preserve and produce evidence in its possession to the moving party. It is a rare and extraordinary remedy generally only given in specific circumstances. It is a creature of equity and is a discretionary remedy. The goal is to obtain information […]
Larger Limits for Smaller Claims
Many clients have smaller monetary disputes that initially may not seem worth the effort to enter into or continue with litigation. The practical realities are that such disputes soon eat up the legal budget. If it’s cheaper to pay than fight, you might as well pay or let it go. Is there an alternative? Ontario […]
Verbal Terms Cannot Contradict the Written Contract
Introduction We all say we know the consequences of signing a legal document. We would say it means that we have entered into a binding contract according to its terms. This is so whether we have read the terms or not. Yes, there may be defences available such as a non est factum (not my […]
The Northern Picasso and a Sale by Description
Introduction The deceased Anishinaabe visual artist Norval Morriseau was the founder of the Woodfield school of painting and became known as the Northern Picasso. He is perhaps the best known Indigenous Canadian artist of his time. The case below centres on one of his paintings, entitled “Spirit Energy of Mother Earth”, that claims to be […]
Is There a Duty to Speak Up About Adverse Case Law?
Introduction A lawyer citing case law before an adjudicative body does so to provide authority to the adjudicator in support of their client’s position. An adjudicative body includes administrative tribunals as well as the courts. Case law can be binding or simply persuasive. Both types require relevance, meaning they must speak to the same issue […]