Lien Trusts Require Separate Action
February 29, 2024 By Mark Mikulasik When the Construction Act replaced the Construction Lien Act one of the amendments we liked was the apparent ability to join a claim for breach of trust with the lien and breach of contract claims, simplifying and consolidating related claims into one action. Or so we thought. Turns out […]
Arbitration Clause In Employment Agreement Invalid
February 27, 2024 By Brian Babcock Ontario’s Employment Standards Act (or ESA) provides a complaint resolution process. THE ISSUE As a result, a provision in an employment contract requiring arbitration may be invalid as contravening that Act, which prohibits contracting out of the Act, except to provide a greater benefit. THE CASE The employer in […]
Credit Proofing Made Difficult
February 22, 2024 By Jonathon Clark People starting a risky business venture – which is pretty much everyone starting a new business- are frequently to protect their assets. THE ISSUE One popular method is putting the family home in the name of your spouse (or adult child). The doctrine of presumption of trust could protect […]
Covid and Business Interruption Insurance
February 20, 2024 By Brian Babcock The Court of Appeal continues to make it difficult to obtain insurance payouts for the COVID pandemic’s effect on your business. THE CASE SIR Corp. v. Aviva Insurance Company of Canada is an example that involves a business interruption claim made by a large chain of restaurants forced to […]
Commercial Insurance Is Not All The Same
February 15, 2024 By Jonathon Clark Have you read your commercial general liability policy? Coverages under these policies vary significantly. Unlike auto policies they are not uniform. Even homeowners policies are usually similar. CGLs vary company by company. Even the same company may issue different policies to cover different risks. THE ISSUES The wordings may […]
Time Limits and Judicial Review
February 13, 2024 By Mark Mikulasik Beware the time limit to apply for judicial review of an administrative decision. The Judicial Review Procedures Act provides that “an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made […]
How Clean Must Your Hands Be
February 8, 2024 By Nick Melchiorre In a previous article, we explained the concept of “clean hands” and how equity will not assist someone who the court decides had “unclean hands”. This brings back memories of debates with mothers over just how clean hands had to be. The Ontario Court of Appeal considered this in […]
What Is Spoliation?
February 6, 2024 By Brian Babcock Spoliation is the legal term for the intentional destruction or concealment of relevant documents, in a lawsuit, or when you expect a lawsuit. It is well-established in Ontario and elsewhere in Canada that this is at least a rule of evidence which gives rise to a rebuttable presumption that […]
Exceptional Circumstances In Employment Law
February 1, 2024 By Brian Babcock Employees in Ontario dismissed without cause are entitled to reasonable notice of termination or pay in lieu of notice. It is established law that in the absence of “exceptional circumstances”, the maximum award should be 24 months’ notice or pay. THE ISSUE The reliability of this “rule” is called […]
The Growth Of The Duty Of Good Faith
January 30, 2024 By Nick Melchiorre The duty of good faith performance of contracts continues to be defined by the courts. A recent Ontario Superior Court judgment applies it to minutes of settlement in a matrimonial dispute. It also applies it more broadly to the exercise of discretion under the agreement. THE CASE In Bross […]