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Archive for ‘Case Comment’

Show Me the Pleading: Show Me the Evidence 

 

Currently finding pleadings, motion records, or factums filed with the courts online is nearly impossible. It is not only an issue of access to justice, it is an issue of accuracy.
Reading decisions without the filed materials is like being a detective with only half of a magnifying glass. You have the ultimate decision, but you don’t have the underlying pleading, motion record, or argument that the decision is based on. This is problematic. Judges and lawyers need to have access to the material filed to truly appreciate the case law before them. Most decisions turn on the facts, . . . [more]
Posted in: Case Comment, Justice Issues, Technology

Agent Not Liable After Client Buys Useless Parcel Located Near Former Dumpsite

In a recent case, the plaintiff sued the defendant agent and her brokerage for negligent misrepresentation in connection with the plaintiff’s purchase of a vacant three plus acre parcel of land that the plaintiff acquired with the intention of building a house on the property.

The agent initially acted for the vendors and prepared an MLS listing based on information from the vendors. The listing indicated that the property was “suitable for building your dream home” and was zoned as “residential.”

The listing agreement ultimately expired and the vendor decided to re-list the property with another broker. The second . . . [more]

Posted in: Case Comment

Court Rules Tribunal Required to Consider Lesser Penalties in Case of Mortgage Broker License Revocation

The Ontario Divisional Court has overturned a decision of the Financial Services Tribunal in which the Tribunal revoked a mortgage brokers license because the Tribunal failed to give sufficient consideration to lesser penalties before revoking the license.

On two separate occasions the broker registered a mortgage against the matrimonial home of a client and his wife, at the request of the client. The client also happened to be a registered mortgage broker.

The broker did not speak to the wife nor did he witness her signature on the mortgage documents. Instead, he simply trusted his client that she had in . . . [more]

Posted in: Case Comment

Is Zealous Advocacy Passé?

“Counsel who are the target of professional vilification by their opponents are not obliged to simply ‘deal with it’. The often misused adage that “a hard fought trial is not a tea party” does not license abusive and unprofessional behaviour towards opposing counsel.” [Emphasis added.]

In Groia v. The Law Society of Upper Canada, 2016 ONCA 471, the Court of Appeal affirmed the decision of the Law Society Hearing Panel and the Appeal Panel. The Panels found that Mr. Groia’s conduct at trial transcended rudeness and entered the realm of professional misconduct. In particular it was found . . . [more]

Posted in: Case Comment

Buyer Tries Everything to Avoid Paying Commission to Agent

A recent decision of the Divisional Court demonstrates that some people will try anything to avoid paying a commission to their real estate agent.

The buyer was under a representation contract with an agent. During that time the buyer and his wife found a house that they liked through an open house on the same street that they currently lived on.

The buyer emailed his agent to tell him that they had found a house that they had liked and that although the list price was $439,900 they were able to get it for only $430,000. The buyer went on . . . [more]

Posted in: Case Comment

Email: Friend or Foe of the Courts?

In Ontario most court documents are filed in paper, with e-filing appearing mostly to be a distant dream. Similarly, court documents, other than originating documents, tend to be served by fax and not by email. Everyone loves that fax confirmation page despite the fact that emails can come with a read receipt.

So should we be allowed to communicate with the court through email? Should the court be encouraged to communicate with litigants via email?

Email is a blessing and a curse. It is easy to use. It is fast. It is convenient. But on the other hand, important emails . . . [more]

Posted in: Case Comment, Practice of Law, Technology

More Abuse of Our Justice System by Residential Tenants

I’ve written a number of posts lately about tenants who abuse the system and the calls from the judiciary to have our tenancy laws reformed. A decision released two weeks ago is another all-to-familiar another example of how residential tenants can game the system to their advantage.

 

The tenant entered into a one year lease agreement with the landlord on July 15, 2015. He took possession of the unit on July 20, 2015. He paid his first and last month’s rent but did not make any of the other rental payments (which were to be $1,400 per month).

  . . . [more]

Posted in: Case Comment, Justice Issues

Apology for Workplace Sexual Harassment

It was recently reported in the media that after signing a peace bond, Jian Ghomeshi apologized in court on May 11, 2016, for his “sexually inappropriate conduct” towards a former co-worker who accused him of sexually assaulting her. Following the apology, the Crown withdrew the criminal charge of sexual assault for which Ghomeshi was slated to stand trial on June 6, 2016. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Panel of Judges Rule Landlord Must Keep Tenant Until Death

A panel of 3 Divisional Court judges have overturned a ruling of the Landlord and Tenant Board (“LLTB”) and have ruled that a landlord is prohibited from terminating the tenancy relationship with his tenant until she dies.

The landlord and tenant are brother and sister. In 2006 they entered into a tenancy agreement which permitted the sister to live in the brother’s basement for the rest of her life in exchange for $500 per month in rent. The written tenancy agreement explicitly stated that the tenancy was not for a fixed term.

In 2014 the brother attempted to terminate the . . . [more]

Posted in: Case Comment

Judge Calls for Tenancy Law Reforms After Finding Tenant “Gaming the System”

An Ontario Superior Court Judge has expressed his hope that legislative changes will be made to stop unscrupulous tenants from “gaming the system”.

The facts of the case are straight forward and rather appalling.

The tenant entered into an agreement to lease a condominium in downtown Toronto starting in September, 2015. The rent for the first month cleared but the rent for October bounced. The tenant has not paid another cent since that time, although he continued to reside in the unit.

The landlord served a “Notice to End Tenancy Early for Non-Payment of Rent” on October 16, 2015. On . . . [more]

Posted in: Case Comment, Justice Issues, Substantive Law: Judicial Decisions

Are Landlords Entitled to Take Photos for the Purpose of Listing or Sale Without the Consent of the Current Tenant?

A panel of three Ontario Divisional Court Judges have held that residential landlords are not permitted to photograph a property while it is occupied by a tenant unless the lease explicitly permits such photographs to be taken, or the landlord obtains the express consent of the tenant.

The Ontario Landlord and Tenant Board ordered a tenant to be evicted when she refused to allow the landlord access to the property for the purpose of photographing it so that it could be listed for sale. The tenant refused on the basis that her privacy would be invaded if photographs of her . . . [more]

Posted in: Case Comment

No Limitation Period for Continuing Breach of Contract

The Ontario Court of Appeal has reaffirmed that in cases where there is a continuing breach of contract the limitation period for bringing the lawsuit resets each day as the continuing breach continues to occur.

 

The ruling occurred in the context of a commercial leasing dispute. One of the clauses of the lease required the tenant to carry on its business on a continuous basis from the leased premises. Although the tenant continued to pay rent, it failed to operate from the leased premises as required by the lease. The landlord sued the tenant after the end of the . . . [more]

Posted in: Case Comment, Substantive Law