Guidance from the Court – Procedure to Resolve Mortgage Discharge Issues under the Mortgages Act and the Rules of Civil Procedure

Mahdi Hussein, B.A. (Hons.), JDAppeals, Appellate Advocacy, Real Estate Litigation0 Comments

In Sub-Prime Mortgage Corporation v. 1219076 Ontario Limited, 2019 ONCA 581, the Ontario Court of Appeal was asked to determine, the proper procedure to discharge a mortgage or contest the discharge of a mortgage, under the Mortgages Act, and the Rules of Civil Procedure. In the lower court decision, Sub-Prime Mortgage Corporation (“Sub Prime”), the second mortgagee, issued two urgent applications against 1219076 Ontario Limited (“121”), the first mortgagee, to obtain an immediate discharge of two mortgages on two properties placed by 121, by paying money into court, pending further court orders, or a resolution between the parties, at para 1. In its application, Sub-Prime did not specifically seek an order determining the balance owing for each mortgage. To support its application, Sub-Prime cited and relied on section 12(3), 12(9) and 22 of the Mortgages Act, R.S.O. and Rule 14.05(a), (d), and (e) of the Rules of Civil Procedure, at para … Read More

Removing Deadwood from the Register – Challenging Registration for Non-Use of a Trade-Mark In Canada

Mahdi Hussein, B.A. (Hons.), JDTrademark Infringement0 Comments

In Barrette Legal Inc. v. Lawee Enterprises, L.L.C., the requesting party, (“Barette”), sought to remove the owner’s (“Lawee”) Mark, from the trade-mark register for non-use, pursuant to section 45 of the Trade-marks Act (“Act”). Lawee was the registered owner of the trade-mark “Smart For Life Cookie Thin”, which it used to describe and advertise cookies it sold (“goods”). Barrette challenged this registration for alleged non-use in Canada in between May 18, 2013 – May 18, 2016, at para 3. What Constitute “Use” of a Trade-Mark Section 4(1) of the Act states that a trade-mark is deemed to be used in association with goods, if at the time of the transfer of the property in, or possession of the goods, in the normal course of trade, it is marked on the goods or its packaging, or in any manner in which notice of the association is provided to the person whom … Read More

24 the New 36? Court of Appeal Reaffirms Presumptive Ceiling in Reasonable Notice Case

Mahdi Hussein, B.A. (Hons.), JDAppeals, Employment, Employment & Wrongful Dismissal0 Comments

In Dawe v. The Equitable Life Insurance Company of Canada, the Ontario Court of Appeal held that, absent exceptional circumstances, the presumptive ceiling for reasonable notice is 24 months. In Dawe, the plaintiff was a Senior Vice President of an insurance company and was terminated after 37 years of employment without cause, following a minor dispute relating to the purchase and use of promotional sporting event tickets. As a result, the plaintiff sued his employer for wrongful dismissal. Both the plaintiff and his employer moved for partial summary judgment on two issues: (1) the calculation of the proper notice period, and (2) the plaintiff’s entitlement to his employer’s bonus plan, at para 4. The plaintiff was successful on the motion for partial summary judgment and the motion judge determined that 30 months was the appropriate notice period and that the plaintiff was entitled to his bonus during this period. In … Read More

Commercial Lease Dispute Arbitrator – Leasing Disputes and Rent Arbitration

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer and ArbitratorCommercial0 Comments

David Alderson, LL.B., LL.M (Commercial and Corporate) –  Arbitrator for Commercial Lease Disputes David accepts appointments as a commercial arbitrator, including as commercial lease dispute arbitrator, at reasonable hourly rates and with good availability.   The Ontario Superior Court of Justice has appointed David in commercial arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. Local Experience David has appeared as a barrister in the Ontario Superior Court of Justice (including the Commercial List), the Divisional Court, the Ontario Court of Appeal, the Federal Court (Canada), Federal Court of Appeal (Canada) and as co-counsel in the Supreme Court of Canada. Preferred Arbitration Appointments He has legal experience in arbitration in under different institutional and ad hoc rules, in a wide variety … Read More

Toronto Arbitrator for Shareholder Disputes, Partnership Disputes and Property Disputes

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer and ArbitratorCommercial0 Comments

David Alderson, LL.B, LL.M: Commercial Arbitrator for Shareholder Disputes, Partnership Disputes and  Joint Venture Disputes David accepts appointments as a commercial arbitrator (sole arbitrator and party appointee) at reasonable hourly rates and with good availability.        The Ontario Superior Court of Justice has appointed David as arbitrator in commercial arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. David has lived and practiced business  litigation and arbitration in Ontario, England, Bermuda and Dubai, in a wide variety of disputes in a diverse range of businesses and industries.  He is also admitted in New York State. His LL.B (Osgoode) and LL.M (Lond.) Commercial and Corporate, were granted in 1980 and 1988, respectively.  David has acted as counsel in both … Read More

When May an Academic Complaint be Brought to Court? Clarification from the Ontario Court of Appeal

Yona Gal, J.D., LL.MAdministrative Law, Contract Disputes, Jurisdictional Challenges0 Comments

In Lam v University of Western Ontario, 2019 ONCA 82, the Ontario Court of Appeal reiterated that courts have jurisdiction over claims for damages for breach of contract and tort even when the claims arose out of an academic dispute. Judicial History After commencement of the action by the student, the university brought a motion for summary judgment.  The principal basis for the motion was that the student’s claim related to the university’s decisions about teaching, mentoring, supervising and administering its Ph.D. program and therefore to matters that are “purely academic in nature” [para 22].  The motion judge granted summary judgment dismissing the action.  The motion judge held that academic issues must be distinguished from legal issues when reviewing a university’s conduct, and that academic issues are to be resolved by the university’s internal process, subject to judicial review [para 23]. In reversing the motion judge’s decision, the Court of … Read More

Irreparable Harm for Injunctive Relief Determined by Court, Not Agreement

Yona Gal, J.D., LL.MContract Disputes, Injunction & Specific Performance0 Comments

In dismissing a motion for an interlocutory injunction, the Ontario Superior Court in Homestead House Paint Co. Inc. v Jamieson, 2019 ONSC 2660 (“Homestead”), recently reiterated that a clause deeming a breach to cause irreparable harm does not displace the courts’ exclusive role to determine whether injunctive relief is appropriate and whether or not irreparable harm has been established. The RJR MacDonald Test In RJR-MacDonald v Canada (AG), 1994 SCC 117, the Supreme Court of Canada established the well-known test for an interlocutory injunction.  The moving party is required to prove that: There is a serious issue to be tried; That the moving party will suffer irreparable harm if the relief is not granted; and The balance of convenience favours granting the injunction. Irreparable Harm Irreparable harm is defined as harm that “cannot be quantified in monetary terms or which cannot be cured” [RJR-Macdonald]. In Homestead, the moving party argued … Read More

Court of Appeal Analyzes Exclusive Jurisdiction Clause

Andrew Ottaway, B.A. (Hons.), LL.B.Commercial0 Comments

In Forbes Energy Group Inc. v. Parsian Energy Rad Gas, 2019 ONCA 372 (CanLII), the plaintiff commenced an action seeking a declaration that it was not obligated to make payments to the defendants under a contract. The contract contained a clause stating that it was “governed by and construed in accordance with the laws of England and the Parties agree to attorn to the courts of England”.  The defendants sought to stay the action on the basis of that clause in favour of the courts of England. The motion judge granted a stay, finding that the plaintiff had failed to meet the test to displace a forum selection clause: to demonstrate “strong cause” that the clause should not be enforced. On appeal, the Court of Appeal stated the “strong cause” test only applies to forum selection clauses that grant exclusive jurisdiction to a foreign jurisdiction.  The motion judge did not … Read More

Determining a “Series of Incidents” under Ontario’s Human Rights Code

Yona Gal, J.D., LL.MAdministrative Law0 Comments

The recent decision in Martin v Trinity United Church, 2019 HRTO 726 highlights limitation periods and the applicable factors to determine what constitutes a “series of incidents” under Ontario’s Human Rights Code (“Code”). Limitation Period under Ontario’s Code Section 34 of the Code provides that a person who believes that his or her rights under Part I of the Code have been infringed must apply to the Tribunal: (a)   Within one year after the incident to which the application relates; or (b)   If there was a series of incidents, within one year after the last incident in the series. Late applications are allowed if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. Determining a “Series of Incidents” In order to establish that discrimination constituted a “series of incidents,” there must be a connection … Read More

Obiter or Not? A Refresher from the Ontario Court of Appeal

Yona Gal, J.D., LL.MAppeals, Civil Litigation0 Comments

The recent case of The Catalyst Capital Group Inc. v VimpelCom Ltd., 2019 ONCA 354 [Catalyst], serves as a reminder that a court’s finding will not be considered obiter simply because there was another sufficient basis for the court’s decision. The Rule of Precedent The rule of precedent requires that courts render decisions that are consistent with the previous decisions of higher courts [Canada (AG) v Bedford, 2012 ONCA 186]. There are several well-known rationales for the rule: it promotes consistency, certainty and practicability in the law, sound judicial administration, and it enhances the legitimacy and acceptability of the common law [David Polowin Real Estate Ltd. v Dominion of Canada General Insurance Co., 2005 ONCA 21093]. Ratio vs Obiter The traditional dichotomy of ratio decidendi (“ratio”) and obiter dicta (“obiter”) is important for the scope of the rule.  Only the ratio is binding on a subsequent court.  Ratio refers to … Read More

Ontario Cottage Litigation Lawyers: Able to Assist in Disputes Involving Cottage Owners, Purchasers, or Sellers

Mahdi Hussein, B.A. (Hons.), JDCottage Litigation, Real Estate | Developers, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

From our office in Toronto, Ontario, we are able to provide efficient and result-oriented solutions with respect to the unique issues arising from cottage and recreational property disputes. Failures to Close Failures to complete an agreement of purchase and sale may be due to the Vendor or the Purchaser.  Failures of the Purchaser are often attributable to the Purchaser’s inability to obtain financing that was anticipated from a mortgage or another property sale.  In some instances, the Vendor may retain the deposit and claim damages for losses sustained from the failure to close. Failures to close may also be due to the Vendor.  Frequently, the Vendor’s failure to close is due to the Vendor’s inability to provide clean title to the property or to perform the necessary repairs prior to closing.  In some instances, a Purchaser will seek to recover damages for any resultant loss, while in other cases the … Read More

Can a Pre-Incorporation Contract Prevent the Forfeiture of a Deposit on the Failed Closing of a Property?

Mahdi Hussein, B.A. (Hons.), JDCommercial Contracts, Real Estate | Developers, Real Estate Litigation0 Comments

In Benedetto v. 2453912 Ontario Inc., the Ontario Court of Appeal considered whether a pre-incorporation contract could prevent the forfeiture of a deposit provided pursuant to an agreement of purchase of sale of real property. In this case, the purchaser signed an agreement for purchase and sale of real property, indicating that he was signing as a buyer “in trust for a company to be incorporated without any personal liabilities”. The purchaser then provided $100,000.00 as the deposit to secure the purchase of the property. The purchaser subsequently advised that he would not be closing on the transaction and sought the return of the deposit. The vendor refused and commenced civil proceedings resulting in a summary judgment motion, which was held in favour of the vendor. The Ontario Court of Appeal upheld the findings of the lower court and indicated that: A forfeited deposit does not constitute damages for breach … Read More

Court Considers Nuisance Test for Neighbours’ Tree in Allen v MacDougall

Yona Gal, J.D., LL.MCottage Litigation, Real Estate Litigation, Recreational Property Litigation0 Comments

In the recent case of Allen v MacDougall, 2019 ONSC 1939, a neighbour applied for a court order authorizing the destruction of a maple tree growing amid two Toronto properties. The Ontario Superior Court refused. In its decision, the Court clarified the applicable test for nuisance and confirmed that “the tendency of courts today is that trees are not lightly ordered removed on the basis of being a nuisance.” Facts The large maple tree sat jointly on the land of two neighbours.  According to s. 10(2) of The Forestry Act (“Act”), the maple is therefore owned by both neighbours: “Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.” The Applicants, as part of their home renovations and extensions, wanted the tree chopped down.  The Applicants claimed that their intended home addition on the north side of … Read More

Prescriptive Easements in Ontario Cottage Country

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Cottage Litigation, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

The Ontario Superior Court of Justice decision in Arcon Property Holdings Ltd. v. Nelson, 2019 ONSC 2267, involved a dispute between cottage owners over easement rights related to a 15 foot wide strip of land near Grand Bend. The right-of-way was mainly a paved road used by the cottage owners to access their properties from the road but it also extended past the pavement to the waterfront.  The applicant complained that the respondents parked their vehicles on the right-of-way which prevented them from accessing the beach, launching their boat, building ramps and structures to facilitate launching their boat and parking a trailer in their driveway. The applicant sought an order prohibiting the respondents from parking on the right-of-way and interfering with their easement rights.  The Court found that the applicant’s easement was merely for “ingress and egress, in, over and upon” the property and did not provide the applicant with the right to access … Read More

Court Finds Waterfront Cottage Sufficiently Unique for Specific Performance

Yona Gal, J.D., LL.MCottage Litigation, Cottage Purchase and Sale, Recreational Property, Recreational Property Litigation0 Comments

In Carr v Rivet, 2019 ONSC 1546, the Ontario Superior Court recently dismissed a motion to discharge a certificate of pending litigation (“CPL”).  In doing so, the Court held that a waterfront cottage on Talon Lake was sufficiently unique to form the basis of a claim for specific performance. Importantly, in addition to finding that the particular cottage was specifically unique to the plaintiffs, the Court noted that most waterfront properties are, by their nature, unique.  Unlike mass-produced properties, each waterfront property possesses different exposure and other water-related features that make it unique. Facts The day after their real estate transaction was supposed to close, the Plaintiffs commenced an action seeking specific performance.  Subsequently, the Plaintiffs successfully brought an ex parte motion to register a CPL against the property.  The Defendant then moved to discharge the CPL arguing, among other things, that the property was not sufficiently unique to support … Read More

Are Section 44 Exam Reports under SABS Subject to PIPEDA Disclosure?

R. Lee Akazaki, C.S., B.A. (Hons.), J.D.Accident Benefits, Administrative Law, Commercial, Privacy0 Comments

To date, the Ontario personal injury bar has assumed that assessors and “IME” companies performing examinations under s. 44 of the Statutory Accident Benefits Schedule (SABS) are subject to access requirements under the Personal Information Protection and Electronic Documents Act (PIPEDA).   The “leading case” on IME’s and PIPEDA, Wyndowe v. Rousseau, a decision of the Federal Court of Appeal, held that a doctor appointed to perform an independent medical examination under a disability insurance policy had to provide access to a final report and notes.  The disability insurer’s internal process under the private insurance policy would not have been a formal dispute resolution process and therefore not exempt from PIPEDA. Under clause 9(3)(d) of PIPEDA, an organization is not required to give access to personal information if it was “generated in the course of a formal dispute resolution process.”  Is a s. 44 examination subject to that exemption?  The federal Office of the Privacy … Read More

Court Clarifies “Clean Hands” Doctrine Applies to Post-Breach Conduct

Yona Gal, J.D., LL.MCommercial, Commercial Leasing0 Comments

In 232702 Ontario v 1305 Dundas, 2019 ONSC 1885, the Ontario Superior Court of Justice recently considered the “clean hands” doctrine in the context of a terminated commercial lease for non-payment of rent. Importantly, the Court clarified that the doctrine of “clean hands” is not restricted to conduct occurring prior to the breach, but encompasses subsequent conduct as well. The Test for Relief from Forfeiture Under s. 98 of the Courts of Justice Act and s. 20 of the Commercial Tenancies Act, a court may grant relief from forfeiture, including forfeiture of a lease for non-payment of rent. The court’s power to relieve from forfeiture is an equitable remedy.  It is discretionary, fact-specific and granted sparingly.  The party seeking relief must prove that enforcing the contractual right would lead to inequitable consequences. In Saskatchewan River Bungalows Ltd. v Maritime Life Assurance Co., the Supreme Court of Canada held that a … Read More