Introduction It sounds like trite advice to hear that a party must put their best foot forward on a motion for summary judgment. It is hard to believe this warning could ever be considered overused and consequently of little import, and therefore ignored. However, it continues to happen and most surprisingly by both plaintiffs and […]
Category Archives: Commercial Litigation
Incorrectly Named Defendants – Misdescription or Misnomer?
Introduction It is not uncommon for a plaintiff to be uncertain about a defendant’s correct legal name. Despite searches and inquiries, the ignorance may continue with the defendant being improperly named in the Statement of Claim. What happens then when the claim is served on the right person but has incorrectly spelled or identified the […]
Considerations When Deciding on Motions for Adjournment
Introduction: An adjournment is a postponement of a legal proceeding. The request is made by one of the parties to the litigation. The request can be met with agreement or opposition. Even with consent, an adjournment is not made as of right and must be judicially sanctioned. In order for a court to allow an […]
Do Courts Have the Discretion to Override Arbitration Clauses?
Contracting parties normally have their remedy for breaches through the court process. However, they may agree in advance to have any differences that arise resolved through mandatory and binding arbitration. Section 7(1) of the Ontario Arbitration Act (the “Act“) allows a party of such an agreement, if the other commences a lawsuit, to apply to […]
The Tort of Intentional Infliction of Mental Suffering
In last week’s blog, we discussed several recent changes to the common law, and in part, the Ontario Court of Appeal (“ONCA”), decision in Merrifield v. Canada (Attorney General) wherein the existence of a proposed tort of harassment was dealt with by the court. The ONCA decided that the tort does not currently exist in […]
New Causes of Action in the Common Law of Ontario
The common law is an organic process but one that grows and develops slowly. This blog discusses how and when common law can change. Evolution or Revolution? The common law has been developed slowly over time by our courts of justice. It is judge-made law of ancient origin and development. It is evolutionary, not revolutionary. […]
Jurisdiction Matters
Introduction In April of 2013, the Rana Plaza building in Bangladesh collapsed killing and injuring thousands of people there. Many of the victims were employed to make garments for Joe Fresh, a recognizable and popular brand of clothing for Loblaws, a Canadian business. A class proceeding was commenced in Ontario seeking to recover billions of […]
Recent Uber Decision Revisits The Use of Arbitration Clauses
With Heller v. Uber Technologies Inc., the Ontario Court of Appeal (ONCA) kicked 2019 off with a decision that will likely have long-lasting implications beyond the parties involved. The case scrutinized an arbitration clause included in all agreements that Uber has with its drivers (who the company also claims are independent contractors, not employees). The ONCA ruled that […]
Oppression and the Right to Financial Information
Recently we wrote to provide an overview of the Oppression Remedy. There, we learned that the leading case dealing with the interpretation of the oppression remedy was the Supreme Court of Canada’s (SCC) decision in BCE Inc v Debentureholders. The Divisional Court of Ontario has recently released its decision in APAC Limited v. Cronin which dealt […]
A Set-Off in Litigation: A Shield or a Sword
In litigation, a set-off is, most simply, a credit sought by the defendant to be applied against a plaintiff’s claim. Essentially, it is an amount that the defendant claims the plaintiff owes him/her which should be subtracted from any damages claimed by the plaintiff. In Canadian law, there are two types of set-offs: legal and […]