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 […]
Category Archives: Commercial Real Estate Litigation
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 […]
The Loss of a Bargain in Commercial Real Estate
Background: The defendants had owned a vacant commercial property since 1989. They obtained a mortgage for $250,000 with interest at 12% per annum. Payments on the mortgage ceased entirely around 2006. The mortgagee took no steps to enforce the mortgage. In 2016 the defendants agreed to sell the property to the plaintiff for $500,000.00. The […]
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 […]
Forfeited Deposits in a Commercial Real Estate Transaction
The Ontario Court of Appeal (“ONCA”) recently dealt with the issue of a claim for the return of a deposit in a commercial real estate transaction in Benedetto v. 2453912 Ontario Inc. The appellant, who had made the deposit, argued that the pre-incorporation contract made pursuant to s. 21 of Ontario’s Business Corporations Act (“OBCA”), […]
Real Estate Litigation: Continuous Use Clauses in Commercial Leases
The Ontario Court of Appeal (ONCA) recently reviewed a “continuous use” clause in a commercial lease in a dispute in which a landlord was suing a retail tenant after the tenant ceased retail operations prior to the lease coming to an end. What Happened? The defendant was a well-known retailer and a long-standing commercial tenant of […]
Specific Performance in Commercial Real Estate Transactions
Specific performance is an equitable remedy in the law of contract. Its effect is to require the party against whom the order is made to perform a specific act, such as the performance of an obligation in the contract in question. Specific performance is most often seen used in real estate transactions forcing the deal […]