Newsletter Archives

"Building Relationships" – Lawyers

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December 2008

Much Ado

M. McGrath Ltd. v. Gibson LLP

Fraudulent cheque – trustee paying to beneficiary based on cheque – beneficiary not repaying funds – unjust

enrichment – mistake

Intemperance

Ranonicich v. Reamy

Self-represented litigant – noting in default when knew of lawyer acting for defendant – inflammatory statements -

chastised

October 2008

2nd Chance Revisited

Joseph v. Paramount Canada's Wonderland

Limitations Act – special circumstances no longer valid to join parties after expiry of period –

never were valid to commence new action

Non-Comp Revisited

H.L. Staebler v. Allen

Non-competition covenant rather than non-solicitation covenant – overbroad and therefore unenforceable

August 2008

Investment Lost

Jedfro Investments (U.S.A.) Ltd. v. Jacyk

Termination of agreement – means – unjust enrichment – juristic reason

June 2008

2nd Chance

Joseph v. Paramount Canada's Wonderland

St. Jean v. Cheung

Limitations Act – expiry – special circumstances for new action - special circumstances to join new parties to

existing action – section 21(1).

Ticket Cases

Best v. Deal

ticket case – limitation of liability – no contract

April 2008

Special

Guillemette v. Doucet

Assessment of solicitor's account – Limitations Act, 2002 – 2 years unless special circumstances

Amend Pleadings

Frohlick v. Pinkerton Canada Ltd

Conflict between Rule 26.01 and Limitations Act, 2002 – amending claim after limitation period – passage of

limitations period is prima facie prejudice that cannot be compensated – special circumstances

February 2008

Fraudbuster

Reviczky v. Meleknia

Fraud – priority – deferred indefeasibility – opportunity to avoid fraud – deal with fraudster – duty to enquire - agency

Condition Costs

Champlain Thickson Inc. v. 365 Bay New Holdings Ltd.

costs

December 2007

Conditions

Champlain Thickson Inc. v. 365 Bay New Holdings Ltd.

Condition precedent – whether damages arise – was condition met – commercial absurdity

October 2007

Outrageous

Lisik v. Personal Insurance Co. of Canada

Setting aside default judgment – sharp practice – duties of barrister

August 2007

Performance

Stack v. Zizman

Statute of frauds – part performance – test – necessary for actions to unequivocal to contract

Encroachments

Royt v. Goldenberg

Minot encroachment on City land – requisition for rescission – misrepresentation must be material – seller's

property information statement

June 2007

Closing Delay (2)

Logger v. Bear Inc.

Upgrade costs – confiscation clauses – setoff

Limitations

York Condominium Corporation No. 283 v. Jay-M Holdings Inc.

Ultimate 15-year limitation period – transition period

Most Paper

Liorti v. Menzies

Who is client – direction for funds – direction regarding agency – breach of trust – equitable damages – leave refused

April 2007

Demand Note

Hare v. Hare

Demand note – cause of action runs from date of note not date of demand – limitation period

More Paper

Liorti v. Menzies

Who is client – direction for funds – direction regarding agency – breach of trust – equitable damages

February 2007

Paper

Liorti v. Menzies

Who is client – direction for funds – direction regarding agency – breach of trust – equitable damages

December 2006

Closing Delay

Markey v. Tarion Warranty Corp.

Compensation for closing delay – new homes – Licencing Tribunal –

agreement of purchase and sale amendment – waiver of rights

October 2006

ILA Notes

Webb v. Tomlinson

Independent legal advice – meeting notes – advice on failure

of businesses in general

Gall

Joseph v. Lefaivre Investments (Ottawa) Inc.

Party to action sues other party and solicitor for conspiracy and negligence for commencing action – not

unlawful – no duty of care

August 2006

Ping Pong

Laredo Construction Inc. v. Sinnadurai

jurisdiction in Divisional Court – squabble between courts – stare decisis

Boomerang

Somerleigh v. Polhill

assessment – adversarial – upset client

June 2006

Good Deeds

D'Amore Construction (Windsor) Ltd. v. Lawyer's Professional Indemnity Company

lawyers – advice – professional courtesy – no duty to non-client

Best of Both Worlds

Woodcliffe Corp. v. Rotenberg

release – no claim over clause – stay if action and third party action – insert exception

April 2006

Land Fraud

Household Realty Corp. v. Liu and Chan

CIBC Mortgages Inc. v. Liu and Chan

CIBC Mortgages Inc. v. Saskatchewan (Registrar of Land Titles)

fraudulent power of attorney – fraudulent mortgage – immediate indefeasibility - deferred

indefeasibility – mortgage validity

February 2006

Penalty

Peachtree II Associates-Dallas LP v. 857486 Ontario Ltd.

limited partnership – enforce penalty – relief from forfeiture – common law – equity

Disclosure

Thomas v. Thomas Health Care Corp

rights to documents for directors and shareholders – right to financial records – sections

140-146 Business Corporations Act – guarantee at stake

December 2005

Depleted

Fareed v. Wood

power of attorney – poa for property – duties of attorney – fiduciary duty – accounting – compensation - bankruptcy

October 2005

Non-Competition

IT/Net Inc. v. Doucette

Departing employee – duty not to use confidential information – fiduciary duty –

non-competition convents - solicitation

August 2005

Enriched

Pacific National Investments v. Victoria (City)

Unjust enrichment – test – deprivation - juristic reason

June 2005

Whoops

Fotwe v. Citadel General Insurance Co.

Privilege – mistake in sending document – removal of solicitors - prejudice

April 2005

Misrepresentation

Mariani v. Lemstra

Real estate – house deficiencies – latent – fraudulent misrepresentation – negligent misrepresentation – caveat emptor –

entire agreement clause – negligent construction - damages

February 2005

Upset

    Laski v. Chan

        Real estate transaction – switch chattels – fraud – punitive damages

     Lingg v. Mills

        Lawyer's account – 22 years before render account – interest claimed – inadequacy of account

December 2004

Fiduciary (Bank)

    Scavarelli v. Bank of Montreal

        Fiduciary duty – bank advice given – small business loan – lawyer's advice

2004

Consideration

    Melko v. Estate of Lloyd

        Declaration on closing more stringent than in agreement of purchase and sale – unenforceable for

         no new consideration - betterment

Reserve

   Boschetti v. Sanzo
        Condominium reserve fund – negative balance - work orders – disrepair – warranty to comply
          with work orders.

August 2004

Family Disputes

    Wade v. Turpin
        Writing - Statute of Frauds – part performance
Undertaking

    Patel v. Ghuman

        Liable regardless if insufficient funds

June 2004

Check It

      Bessie v. Arsenau

        Solicitors' negligence - duty of care - insurance policy - family law

Nice Try

    Saved by Technology Inc. v. Thomas

        Limitation period - commences for mortgage when mortgage is in default

April 2004

Commission

    Century 21 Success v. Gowland

    Purchaser could not close – agent sued for commission – vendor not required to sue – no quantum

     meruit on commission matter

Bulky at SCC

    National Trust v. H & R Block Canada

    Supreme Court of Canada decision

    Bulk Sales Act – no approval or consent – no damages if lost nothing because of lack of consent

Costs

    Prosperine v. Ottawa-Carleton

    Costs for motion claimed at $121,000 - $30,000 awarded

February 2004

Error

    National Trust v. Newmaster
    Floating mortgages – discharge –line of credit not fully paid – prejudice to debtor – reliance of
    lawyer

December 2003

Punitive

    Kaur v. Moore Estate
    Breach of agreement – conspiracy – inducing breach of contract – aggravated damages – punitive
       damages

October 2003

Delay Delay

    Susin v. Baker

    Delay in setting down for trial - prejudice.

August 2003

Assessment

Tripkovik v. Glober

    Limitation to assess – runs from date of account – particularity of account.

Lien Tenant

    Williams & Prior v. Taskon Construction
    Lien on tenancy – lien must name tenant
2003

Faulty Distess

    Excellent Fashion v. Namdev Property Management

    Change locks – terminate tenancy – illegal distress – improper appraisals – improper sale

Late Changes

    Melko v. Lloyd Estate

    Condition to best of knowledge – no consideration for better condition than set out in

     agreement for purchase and sale

April 2003

Whipping Boy

    Turi v. Swanson

      Lawyer's professional negligence – note sufficiency – omitting consequences of not following

         advice – advice to be in writing - damages

February 2003

Shareholder's Loss

    Medicare Healthcare Inc. v. Shoppers Drug Mart
    Rule in Foss v. Harbottle – no cause of action for shareholder for corporation's loss
     – personal action not derivative action

Bulky to SCC

    Toronto (Overseas) Freight Services v. Grover

    Bulk Sales Act – bulk sale definition - salvage costs – valuation – payment of

     proceeds – trustee
    Leave to appeal granted to Supreme Court of Canada
Name Report

    Turi v. Swanick
    Lawyer liable for not explaining consequence of action
December 2002

Please Release Me

   Van Patter v. Tillsonburg District Memorial Hospital
   Sinclair-Cockburn Insurance Brokers Ltd. v. Richards
    Release – contribution and indemnity – binding – abuse of process

October 2002

Duress

    Gedja Holdings Inc. v. Gondosch

        Undue influence – guarantee – constructive knowledge – ILA - independent legal
            advice - ILA
July 2002

Strategy

    Griffiths v. Zambosco

        Judgment when not sued – negligence to joint owners – assignment of executions

         – unjust enrichment

2002

Interest

    Bank of America Canada v. Mutual Trust Co.

         Compound interest - contract damages – expectation interest – restitution interest

              – efficient breach

Privilege

    Re Dylex Ltd.

         Fraud allegation - solicitor- client privilege lost

Offer

    Scanlon v. Standish

         Rule 49 – common law on settlement offer – offer before action commenced

2002

Trouble

    Cook v. Craig

        Independent legal advice - ILA - non est factum - breach of fiduciary duty - withholding

          information - conflict of interest

2002

Communication

    Lemieux v. McCullough

Fiduciary duty – agreement already negotiated

More Bulk

Bulk Sales Act – payment of secured creditors

2001

Bulky
    Toronto (Overseas) Freight Services v. Grover

Bulk Sales Act – bulk sale definition - salvage costs – valuation – payment of proceeds – trustee

October 2001

Complex

    Pentland v. Anderson

Negligence Act – solicitors actions attributed to client – agent – prejudice – third party action – solicitor not liable to non-client

August 2001

Fair Oppression

    Downtown Eatery Ltd. V. Ontario

Common employer – oppression – good faith unnecessary

Bad Faith Bargaining

    Midwest Management v. B.C. Gas

    PCC No. 505 v. Cam-Valley Ltd.

June 2001

Due Diligence

    Pieckenhagan v. 1030553 Ontario Limited

Due diligence – no vendor representations – power of sale – Mortgages Act

Chequemate

    Contract Air Compressors Inc. v. A.W. Service Industries Inc.

Set-off – post-dated cheque – bill of exchange

April 2001

Negotiation Negligence

    Martel Building Ltd. v. Canada

No cause of action of negligent negotiation – bargain in good faith maybe

February 2001

Ounce of Prevention

Kondra v. Rutherford, Yetman and Linton

Lawyer's retainer – mere conveyancer

December 2000

Seal of Approval

    Friedmann Equity Developments v. Final Note

Undisclosed principal – seal on mortgage – exception to rule – agency – agent liable, undisclosed principal not liable – sealed contract rule – specialty

No Principal

    1080409 Ontario Ltd v. Hunter

Non-existent corporation - individual personally liable – section 21 of Business Corporations Act (BCA) – pre-incorporation contract

October 2000

CBAO to Rescue

    Silaschi v. 1054473 Ontario

Intervention - vendor's lien - priority to mortgagee

Legal Fees

    Plaza Financial v. National Bank

Assessment - special circumstances - disclose account and dockets

Retainer

    Re Toronto-Dominion Bank and Cooper

True retainer - trust retainer - garnish – seize

August 2000

I'll Pay - Guaranteed

    Royal Bank v. Bruce Industrial Sales

    CIBC v. Shire

Action on guaranty guarantee - guaranty guarantee agreement - change of terms of original loan - all guarantors do not sign - release of security

June 2000

Non-Client Duties

    Wilhelm v. Hickson

Negligent solicitor liable to disappointed beneficiaries - will

    De Los Reyes v. Timol

Solicitor for estate trustee - liability to opposing parties

April 2000

Sale or No Sale

    Logozzo v. Toronto-Dominion Bank

Power of sale - right to redeem - clause in agreement - section 22 Mortgages Act

Defrauded

    McIlroy v. Stanton

Fraud - changed original - solicitor reviewed copy only - damages

February 2000

Into the Breach

    Guarantee Co. of North America v. Gordon Capital

Rescission - repudiation - fundamental breach - condition - restitution - limitation period

Arbitration

    Kightly v. Beneteau

Shareholder's agreement - oppression

December 1999

Breath of Fresh Air

    Wong v. 407527 Ontario

Solicitor's duty to renegotiate agreement - solicitor's duties after receiving agreement

Grasping Interest

    Re 1037618 Ontario v. Thunder Bay

Interest not payable on arrears of realty taxes if taxpayer successful on appeal

October 1999

Assignment

    Lee v. Korea Exchange Bank

Section 53 Conveyancing and Law of Property Act - legal assignment - equitable assignment - power of sale - notice of assignment

Closing

    King v. Urban & Country Transport

    Domicile Development v. MacTavish

Ready willing and able - extend closing - new closing date reasonable time to close - accept repudiation

August 1999

Illegal Distress

    Falwyn Investors v. GPM Real Property

Illegal distress - terminate termination of tenancy - bailiff note - change locks

More Distress

    Cowie Industrial v. National Clearance

Section 48 and section 50 - Landlord and Tenant Act - Commercial Tenancies Act - fraudulent - clandestine - penalty - double value of arrears or double value of goods - excessive distress

June 1999

Quick Closing Re-Visited

    Sheardown v. Slater

Solicitor makes no notes - solicitor not believed - failed to make enquiries

Dog eat Dog

    Parker v. White

Solicitor - good representation - misrepresentation - silence

April 1999

This Stinks

    Vaz-Oxlade v. Volkenstein

Solicitor's duty to renegotiate agreement

Director's Liability

    ADGA Systems v. Valcom

Strike out pleadings - personally liable for torts - even if act for corporation - independent tort - complaining parties contract with corporation - complaining parties do not contract with corporation

February 1999

Specialty

    872889 Ontario v. Iacovoni

Agreement of purchase and sale - contract under seal - limitation period - signed sealed and delivered - lost seal

Sloppy Builder

    Truster v. Tri-Lux Fine Homes

Name of corporation - personal liability - failure to use legal name on contract - section 10 of BCA Business Corporations Act - agent liability - change of name and status - notice

December 1998

Left Hand - Right Hand

    Sherwood Design v. 872935 Ontario

Contract on behalf of corporation to be incorporated - pre-incorporation contract - adoption - section 21 BCA Business Corporations Act

Oppression

    Levy-Russell v. Shieldings

Involuntary creditor - application under BCA Business Corporations Act - voluntary creditor

October 1998

Conflict of Interest

    Spagnuolo v. Calderone Shoe

Remove solicitor from record for conflict

A Novel Approach

    Gignac Sutts v. Harris

Oppression application under Business Corporations Act - section 248 BCA - personal liability of shareholders and directors - prospective creditors bring application - voluntary creditor - involuntary creditor

August 1998

Contract

    Trans-Pacific Trading v. Rayonier

Acceptance by post - acceptance by fax - revocation of offer

Sue Whom

    Taplen Construction v. Pascal

No partnership - corporation

Compassion

    Schittone v. George Minkensky Ltd.

Employer voluntarily paying employee after accident - employee sues tortfeasor as trustee

Assessment

    Re Enterprise Rent-A-Car v. Shapiro

Period for assessment starts after final bill of series of bills is delivered

June 1998

Death of a Corporation

    Swale v. National Bank

    602553 Ontario v. Shell Canada

Dissolution of corporation – revival - effect on action

April 1998

Say it Nicely

    Kleynhans v. Zucker

Absolute privilege – nasty demand letter

Try Anything

    1198728 Ontario v. Tally Capital

Inducing breach of contract

HUDAC (ONHWP) Revisited

    Beer v. Townsgate

Registration

February 1998

Big Mouth

    Yellow Submarine v. AGF Hospitality

Solicitor inducing breach of contract

Will Duties

    White v. Jones

    Hickson v. Wilhelm

Negligent solicitor liable to disappointed beneficiaries

Let's Make a Deal

    Gyro Capital v. Franzke

Full performance of conditions is necessary condition to enforce a deal for lesser  amount – compromise debt

December 1997

Quick Closing Risks

    Sheardown v. Slater

Writing

Builder Beware

    Pavlic v. Town-Wood Homes

Elevation change – merger of deed and agreement

Trust Under Land Titles

    Re Randvest & 741298 Ontario

Trust – Land Titles Act – section 62 - registered title – caution necessary

October 1997

Caught in a Bind

    Re/Max Garden City v. 828294 Ontario Inc.

    Kuhn v. Thiebault

    Bitz v. Cami Automotive

Seal – irrevocable direction – consideration – lawyer liable

HUDAC (ONHWP) Revisited

    Grudzinski v. Ontario New Home Warranty Plan

Major structural defects – house unusable – uninhabitable

August 1997

Distress

    Cowie Industrial v. National Clearance

Removal of chattels – section 48 – 50 – fraudulently – clandestinely – personal liability

Bum Cheque

    Fisch v. Vojimrovic

Lawyer relying on uncertified cheque

February 1997

Getting Paid

    Wells v. Biback

Special circumstances – full report and account necessary

Conflict of Interest

    Stritzel v. Wassenaar

Written agreement necessary

December 1996

Negligence Does Not Imply Damages

    Canada Trustco Mortgage Company v. Praetorious

Mortgage priority

    Canada Trustco Mortgage Company v. Bartlet

    Bruhill v. House

Client would have entered transactions anyway

October 1996

Negligence Manual

    Jaoen-Malgorn v. Irani

Solicitor's negligence – real estate – conflict of interest – written notes – report to client

HUDAC (ONHWP

    Beer v. Townsgate

    Skyrise Developments v. Abrahams

Registration before agreement of purchase and sale

August 1996

Reporting to Client

    Ruetz v. Morscher

Account – assessed – report – orally – writing

Inducing Breach of Contract

    Yellow Submarine v. AGF Hospitality

Solicitor Inducing breach – asserting rights on behalf of client