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Archive for ‘Case Comment’

Court Sets Aside Judgment Obtained at Uncontested Trial

In a rather unusual case, an Ontario Superior Court judge has set aside a default judgment that was obtained at an uncontested trial where the defendant intentionally decided not to show up.

In September, 2015 the lawsuit was set down for trial for the week of April 18, 2016. In the first week of March, 2016, the defendant’s lawyer informed her that they would not represent her at trial and the defendant signed a Notice of Intention to Act in Person shortly thereafter.

The defendant tried to obtain new counsel without success from March 4 to March 18. She then . . . [more]

Posted in: Case Comment

Standard of Review: The Great Passion of Canadian Law?

The great passion of Canadian law is standard of review. Judging by last week’s 5:4 decision in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, we can’t get enough litigation and case law on the subject.

First, a note about the style of cause, which is determined by the vagaries of court practices. The order of the parties should really be reversed, because it was Edmonton East (Capilano) Shopping Centres Ltd. (the “Company”) that started the case by filing a complaint with the Assessment Review Board (the “Board”) for the City of Edmonton (the . . . [more]

Posted in: Case Comment

A Sentence to Go “Home”

The bar has often lamented the lack of “plain language” by the bench, a necessary prerequisite for transparency and open access to the public.

At times, the need for this approach has been criticized as overlooking the needs of the parties. Sometimes, like in the Meads case, this approach is intended to address broader, systemic problems. As I told Canadian Lawyer Magazine a few years ago,

“I think the fact that the judge even made this ruling suggests how big a problem it is,” says Toronto lawyer Omar Ha-Redeye. “This is a hot issue. Family law is in crisis

. . . [more]
Posted in: Case Comment, Substantive Law: Judicial Decisions

Update: Brexit Score – End of Second Period: Henry VIII 2 Henry II 1

Or, Ms May may not and must not; at least, not yet.

(For readers outside of the (ice) hockey world, substitute “end of first half”.)

The UK QB ruled unanimously (3-0) this fine English morning that the Tory gov’t cannot use the Crown’s prerogative to initiate the UK’s withdrawal from the EU. The decision to withdraw or not – the decision whether to give notice under the applicable EU treaty – is for Parliament to make, not the party in power in Parliament; aka the “gov’t” or the Crown.

[111] for the reasons we have set out, we hold the

. . . [more]
Posted in: Case Comment, Justice Issues, Miscellaneous, Substantive Law, Substantive Law: Foreign Law

Tenants Not Liable for Prospective Rent When Lease Terminated Early

A recent Ontario Divisional Court decision has sought to clarify conflicting decisions and provide guidance as to the obligations of tenants when their landlords terminate their lease early.

In the case at issue the landlord received a number of noise complaints from neighbours about the tenant in question.

The landlord served a Notice to Terminate a Tenancy Early (Form N5) on the tenant. The Notice followed the standard N5 format and provided:

(a) that the tenant must move out before January 31, 2015;

(b) that the tenant had substantially interfered with the reasonable enjoyment of the residential complex by the . . . [more]

Posted in: Case Comment

Trumped, for Now

It’s small, in light of his other issues, but Donald Trump is once again embroiled in litigation, albeit outside of the United States, which may result in findings against him of at least negligent misrepresentation sufficient to produce personal liability: see Singh v Trump et al, 2016 ONCA 747 (CanLII), <http://canlii.ca/t/gv3z7>. 

The action had been dismissed, completely, on a summary judgment motion. The Ontario Court of Appeal, earlier this month, allowed significant portions of the appeal. As a result, subject to a successful appeal to the Supreme Court of Canada – I can’t see leave being granted – the

. . . [more]
Posted in: Case Comment, Miscellaneous

Entire Agreement Clause Doesn’t Trump Unconscionability

Donald Trump is estimated to have been involved in over 3,500 lawsuits, unprecedented for any presidential nominee. Most recently, he threatened to sue for defamation over further allegations of groping. Sources, however, indicate he hasn’t actually sued a news outlet in decades, and his threats may have a boomerang effect.

It’s clear that he has other legal disputes on this side of the border as well. Many of them involve the tower in downtown Toronto which bears his name. Only one of them has been reported though, and the Court of Appeal recently weighed in on this action . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

No Merit? No Problem! Eviction Order Stayed During Bogus Appeal

A recent decision demonstrates just how easy it is for residential tenants to game the system and live rent free.

The tenant entered into a one year lease for a residential premises in mid-town Toronto. The lease started March 1, 2015 and the monthly rent was $3,800.

By September, 2015 the tenant had started paying rent late. By January, 2016 he had stopped paying rent completely.

At a hearing at the Landlord and Tenant Board on June 16, 2016, the Board ordered the termination of the tenancy on consent and ordered the tenant to pay over $22,000 in arrears and . . . [more]

Posted in: Case Comment

Tenant Owing Over $50,000 in Arrears Evicted

A panel of 3 Divisional Court Judges has dismissed the appeal of a tenant who owed over $50,000 in rent and who was nearly 3 years in default on her rent payments.

After her initial default the tenant entered into a mediated agreement under which she had to make certain payments, failing which her tenancy would terminate. Not surprisingly, the tenant defaulted on the mediated agreement and failed to make any payments at all over the following 20 months.

The tenant appealed the eviction order and successfully had her own appeal adjourned one time. She tried to have the hearing . . . [more]

Posted in: Case Comment

Court of Appeal Clears Way for Mortgagees to Set Aside Sham Tenancies

The Ontario Court of Appeal has ruled that a provision of the Mortgages Act (“MA”) which allows lenders to set aside tenancy agreements for the purpose of taking possession of real property does not conflict with the Residential Tenancies Act, 2006 (“RTA”) and can be used by lenders to set aside “sweetheart” tenancy agreements that are designed to discourage the lender from taking possession or adversely affecting the value of the lender’s interest in the property.

In the instant case, the TD Bank took a mortgage on a condominium unit in July, 2011. On November 1, 2012 the owner defaulted . . . [more]

Posted in: 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