PUBLICATIONS

In the construction industry, where a tangled web of inter-related contracts can be the norm, questions often arise as to whether a non-party seeking to avail themselves of benefits in one contract is also subject to its various restrictive covenants. In the Husky case discussed below, the ABKB clarified that parties take the good and they take the bad.

First Published in Advocates Quarterly. This paper addresses whether the same principles regarding the “real and substantial possibility” standard of proof apply to a hypothetical past loss claim as they do to a hypothetical future loss claim, and the interplay between the two standards of proof applicable to hypothetical claims: balance of probabilities for the “but for” causation test, and “real and substantial possibility” for damages.

In order to protect limitation periods, especially in cases where liability is yet to be determined, there is an obligation on counsel to identify, name, and pursue all parties who may be liable to the plaintiff(s). However, as the discovery process begins, parties often become aware that they have added in a party that will bear no liability to the plaintiff(s). Often, parties are able to consent to a dismissal or discontinuance without costs; however, there are cases in which defendant(s) will not go out without costs. In these cases, parties can move for a ruling under Rule 23.05...

In 1985, Rule 49 of the Rules of Civil Procedure was introduced to encourage parties to make and accept reasonable offers to settle. This has had the effect of discouraging parties from delaying the judicial process and increasing costs unnecessarily. Rule 49 has had a considerable effect on litigants by virtue of the risk of a large costs award following trial.

To trigger the cost consequences under Rule 49, an offer must meet strict requirements:

This 2019 decision of the British Columbia Court of Appeal was the third in a trio of appeals regarding the topic of disengaging assets owned by insolvent entities subject to a Companies' Creditors Arrangement Act (“CCAA”) proceeding from assets owned by other affiliated entities that were not insolvent.

In Akelius Canada Inc. V. 2426196 Ontario Inc., J. Morgan ruled on the matter of whether a European based real estate investor who suffered a breach of contract by a seller in Toronto could be awarded damages based on a loss of opportunity to cash in on a local real estate boom.

The Supreme Court recently undertook to further refine the duty of honest performance in contract law. In a significant ruling on December 18, 2020, the Court held that this duty of honest contractual performance extends beyond lies to include knowingly misleading another party, whether through a partial truth, an omission, or even silence.

In a recent Court of Appeal decision, the Court upheld the defendant occupiers' successful summary judgment motion in a trip-and-fall case. Despite the plaintiff having expert evidence stating an unsafe elevation in the floor caused him to fall, the Court of Appeal ...

In Ontario, the provincial legislation shows a commitment to protecting contractors and subcontractors by enabling them to collect outstanding balances owing for services and materials through the use of construction trusts, holdbacks and liens. This case confirms this commitment and is a helpful decision for provincial contractors.

In Ontario, there is a well-established practice of asking jurors to provide reasons for their verdicts. The jury is not absolutely required to provide this information. There is a presumption of integrity regarding general verdicts; simply because the jury did not explain its verdict is not a ground for appeal.

The exception to this presumption arises in professional negligence cases...

In Ontario, s.4 of the Limitations Act, 2002, (“Act”) establishes a two-year limitation period for a claimant to commence an action, which begins to run once the claim is discovered. However, there exists an exception for those claimants that are “incapable” to commence the proceeding.

In this case study, a man suffering from mental illness and psychotic delusions, killed his son and later commenced an action against the drug company...

Amid the ongoing COVID-19 pandemic, courts in Ontario have been working to modify existing online infrastructures and acquire new technologies in order to meet the needs of Ontarians and to maintain the safety of those who work in the courts. In doing so, the Ministry of the Attorney General ("MAG") has recently expanded the Justice Services Online platform and procured "CaseLines" for the use of the Ontario Superior Court of Justice.

The following are some updates around civil matters in the Superior Court of Justice in the Central East Region. Please note they are all subject to change.

The interpretation of a corrosion exclusion was one of the major issues considered in the recent decision in MDS Inc. v Factory Mutual Insurance Company. For reasons outlined below, I believe the interpretation and determination regarding its applicability in the circumstances of the case were incorrect.

You have just been sued for breach of contract by a former business partner.

As you skim through a legal document that sets out a laundry list of your alleged failures and faux pas, a few paragraphs jump out at you. Why does the document make reference to an argument over the design of your company's logo? And why is there commentary on the not-so-secret office romance between two of your employees? As far as you can tell, neither of these issues have anything to do with the contract in dispute.

This appeal concerns the tendering process used by Alberta Environment and Parks to solicit bids for a contract for the operation, monitoring and servicing of water and wastewater services in the Kananaskis Region.

This case highlights three important factors to consider during the tendering process...

Following up our recent article on Business Interruption amid the COVID-19 pandemic, the March 30, 2020, Ontario Superior Court decision MDS Inc. v. Factory Mutual Insurance Company continues to remind us that the old adage, ‘you get what you pay for' rings loud and true...

On March 15, 2020, Chief Justice Morawetz released a Notice to the Profession advising that as a result of the pandemic, the Superior Court of Justice had adjourned all scheduled civil hearings, effective March 17, 2020.

The Notice to the Profession allows for the hearing of urgent and time-sensitive motions and a limited number of other matters...

While it has been “business as usual” for some Canadian companies and organizations, with employees working from home, many industries have been forced to cease operations or operate at reduced capacities...

There are various issues operating for an insurer, in both quantifying and crystallizing the terms of the loss, to determine if coverage is triggered pursuant to any given policy of insurance...
 

Recently, the Ontario Government has been working toward enacting an overhaul of the Construction Act in hopes to modernize the legislation. The transition rules for these changes are set out in section 87.3 of the amended legislation. As of July 1, 2018, amendments to the construction lien and holdback rules came into effect. A new round of changes are now about to come into effect on October 1, 2019, pertaining to the prompt payment and adjudication process, and amendments related to liens.

In July 2018, the Ontario Court of Appeal handed down its decision in Gillham v Lake of Bays (Township) (“Gillham”),1 wherein the Court of Appeal struggled with the issue of whether a claim made after the limitation period could be permitted. 

Oftentimes, builder's risk policies contain waivers of subrogation, and contractors, more often than not, are listed as additional insureds. For this reason, subrogated claims are few and far between in the construction context. However, the recent case of Maio v. Mer Mechanical Inc., 2018 ONSC 4426 (“Maio”) suggests that subrogation may be possible.

To what extent must service technicians warn their customers of particular risks associated with the product they are servicing? After presiding over a seven-day trial on liability alone, Madame Justice S. Gomery grappled with this very question and provided a framework to help answer it in her recent decision in Maxrelco v Lumipro Inc., 2018 ONSC 3638.

This decision explains what factors would trigger the duty to warn and in what circumstances would they attract liability.

In a recent decision, the Federal Court of Appeal confirmed that common interest privilege (“CIP”) is a principle of Canadian law. This principle is unlike solicitor-client privilege, in that communication between counsel and a third party may be considered privileged if the shared information is to benefit both parties, especially with respect to the furtherance of a commercial transaction. The court overturned a Federal Court decision which held that that CIP is not a principle of Canadian law.

The Construction Lien Act can be a daunting piece of legislation to approach. Combining tight deadlines, technical definitions, and a sometimes complex interplay between its own provisions, it is no wonder that it is often viewed with some trepidation by lawyers and clients alike. 

The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property. The premises constituted approximately 3% of the rentable area of the building. All of the other tenants had left as a result of agreements made with the Landlord, which offered to relocate the Tenant into similar premises in an adjoining building, and to pay compensation. After some bargaining, the Tenant refused to move...

The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property. The Tenant refused to vacate, despite offers for compensation from the Landlord. The Landlord issued a notice to vacate and the Tenant sought and obtained an injunction...

Several years ago, mould issues in residential or commercial buildings would only have been a major concern in exceptional circumstances. However, technology and detection techniques have resulted in a proliferation of mould based claims and associated legal issues. Allegations of health impacts caused by mould are common in so-called “sick building syndrome” litigation. Property damage claims relating to mould also increasingly include some personal injury allegations, perhaps based on nothing more than common respiratory symptoms or rashes.

One alternative measure of damages for real property, is based on the cost of repair reduced by the amount to which those repairs will better the property; a concept known as betterment. Betterment and the court's interpretation...

In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (“Ledcor”), the Supreme Court of Canada clarified the construction of ‘faulty workmanship' exclusions in all-risk policies and the level of deference an appeal court must give regarding a lower court's interpretation of a contract.

The decision in Ledcor may be praised for providing greater clarity to insurers and insureds, but may also be an unwelcome development to those who embraced the Supreme Court's 2014 decision in Sattva Capital Corp. v. Creston Moly Corp. (“Sattva”) as a bar to extensive litigation over contractual interpretation.

On April 30, 2016, an expert review of Ontario's Construction Lien Act was submitted to the Ministry of the Attorney General and the Ministry of Economic Development, Employment, and Infrastructure. This review, which was just released to the public, contains recommendations which will be considered in drafting legislation to be presented in Spring 2017. If the recommendations are implemented, even in part, it would form a sea of change in construction law and the most significant reform to this area of law in 33 years.

While the review recommends a reform to virtually every aspect of the Construction Lien Act, some of the most remarkable recommendations are as follows:

Course of construction policies ("COC"), also known as builders' risk or all-risks policies, underwrite specific risk that arise during the construction process. A significant amount of judicial ink continues to be spilled in Canada (and abroad) about the common exclusion clauses within such policies pertaining to faulty or improper workmanship, design, or materials.

Today the Ontario Court of Appeal released its long-awaited decision inMoore v. Getahun, dealing with significant issues in relation to the preparation and use of expert witness reports at trial, including the scope of permissible communications between counsel and expert witnesses.

Until recently, there have been conflicting decisions as to whether the Ontario New Home Warranties Plan Act (the “Act”) constitutes an exclusive statutory scheme for dealing with claims by new home buyers against builders. The Court of Appeal has recently confirmed that home buyers can pursue remedies against builders in the courts.