The remedy of a Mareva injunction is so named having adopted the name of the plaintiff company in a 1975 English Court of Appeal decision (Mareva Compania Naviera SA v. International Bulkcarriers SA). Such an order prohibits the dissipation of the defendant’s assets. In effect, it provides a form of pre-judgment execution and has the […]
Category Archives: Complex Corporate Commercial 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 […]
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 […]
Mortgage Enforcement and Penalties
Introduction The general commercial practice for lenders is to include a contractual term imposing a greater interest rate if the loan goes into arrears. This is both an incentive and a deterrent. The borrower is motivated to keep the loan from defaulting and is, therefore, more likely to pay on time to prevent the increased […]
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 […]
Issue and Action Estoppel and Abuse of Process
Introduction All forms and attempts at relitigating matters that have already been determined are considered an abuse of process. The doctrine applies to any attempt to challenge a previous and final judicial determination. It is a very flexible doctrine and is unencumbered by the requierments on parties that exist under the concepts of issue and […]
When is Legal Commitment Unconscionable?
Introduction It is extremely difficult to set aside an agreement or transaction based on the doctrine of unconscionability. The adjective itself means an action not guided by one’s conscience and is unscrupulous, or not in accordance with what is just or reasonable, that is excessive or extortionate. A legal commitment may end up being seen […]
Dependent Contractors, Exclusivity & Reasonable Notice
Introduction Contractors in law are distinct from employees. Employees are entitled to a reasonable period of notice if the relationship is terminated by the employer. This is an implied term of any contract of employment at common law. A contractor is usually considered as being independent meaning that they control their work, use their own […]
Rolling Limitation Periods in Contract Litigation
Introduction The usual rule is that once an event occurs which triggers a possible legal action, the limitation period in which to do so commences and runs from that occurrence. A rolling limitation period is one that resets as a result of a recurring obligation by the defendant. The issue is not whether the plaintiff […]