Parties to civil proceedings in Ontario are permitted to bring into the litigation all persons they feel should be present to effectively and completely adjudicate on all the issues raised and who fit the criteria set out in the Rules of Civil Procedure. Those who are named as defendants can bring additional parties in through […]
Category Archives: Commercial Real Estate Litigation
Fraud, Letters of Credit & the Autonomy Principle
A standby letter of credit is a promise from a bank to a creditor that the bank will pay funds to the creditor in the event of a default by a debtor, so long as certain conditions are met. For example, a commercial landlord may require a standby letter of credit from a tenant’s bank […]
Commercial Tenant Prevented From Using Force Majeure to Escape Rent Obligations
We wrote about the issues of frustration and force majeure in our previous post called “Force Majeure and Frustration in Contracts Following the COVID-19 Pandemic” Force majeure clauses are dealt with through the law of contract. Such a clause needs to be an express term and will not be implied. These clauses act as a […]
Constructive Trusts: A Remedy for Wrongful Conduct
Constructive trusts are sometimes used by a court to impose a remedy for a party who was deprived of their rights to property via the wrongful or fraudulent conduct of a third party. This is an equitable remedy created through the common law to make the situation right, as though the wrongful conduct had not […]
The Rule in Foss v. Harbottle
The rule in Foss v. Harbottle is well established in Ontario law. The rule prevents shareholders from suing for a loss in the value of their shares brought about by a wrong done to the corporation. The rule is a consequence of the separate legal personality of the corporation. Just as shareholders (subject to limited […]
Excessive Delay Dismissal Saved by the Counterclaim
Efficiency and finality in legal matters require respect for, and enforcement of, the agreed-upon rules including any set or procedural time limits. Yet at the same time, it is desirable to ensure the merits of each dispute are given their due. How much delay in a proceeding or transaction is considered “too much”? When is […]
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 […]
The Doctrine of Deferred Indefeasibility in Land Transactions
Introduction Cases involving two innocent parties involved in litigation after a fraudster has played and deceived them both are especially difficult. Each blameless party is now faced with a win-all or lose-all situation. This blog will look specifically at cases of this sort involving land, and how the doctrine of “deferred indefeasibility” comes into play. […]
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 […]
Certificates of Pending Litigation: An Overview
Introduction Where a legal proceeding seeks to establish an interest in real property, one of the risks for the plaintiff or applicant is that the land will be sold or further encumbered. A possible remedy for that concern is a Certificate of Pending Litigation (CPL) under Rule 42.01 of the Rules of Civil Procedure (the […]