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 […]
Category Archives: Litigation & the Law
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 […]
The Arbitration Act, Stays & the Right to Appeal
The Arbitration Act of Ontario, in section 7, provides a mechanism to stay actions brought where the action’s subject matter is to be decided by arbitration pursuant to an agreement to do so made by the parties. Exceptions, in whole or in part, to the rule are provided in the statute at sub-sections 7(2) to […]
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 […]
Judgment Debts, Fraud and Bankruptcy
Many people assume that bankruptcy protects them from all creditors, across the board, however, this is not the case. In certain circumstances, debts may still be enforced even after a discharge in bankruptcy. When a creditor sues a debtor and a judgment is awarded, this judgment may survive an assignment into bankruptcy in certain circumstances. […]
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 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 […]
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 […]
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 […]