The Cost Of Settling Unreasonably
March 19, 2024 By Jonathon Clark A settlement agreement between parties to a lawsuit is a contract, and will be enforced by the court where the parties: had a mutual intention to create a legally binding contract; and reached agreement on all of the essential terms of the settlement. Where the agreement is in writing, […]
What Is An Examination for Discovery
March 12, 2024 By Jonathon Clark After pleadings are exchanged in a civil litigation action, the next step in the litigation is to schedule examinations for discovery. An Examination for Discovery is an oral examination under oath, which would be held with a Court Reporter present, at which time each lawyer involved has an opportunity […]
So, You Want To Be A Witness…
March 5, 2024 By Jonathon Clark No one really WANTS to be a witness, but sometimes we have no choice. Courts run on evidence, and evidence comes through witnesses, whether in an affidavit or in person. We have already written about the serious business of affidavits. Being a witness in person is different but just […]
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 […]
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 […]
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 […]
An Oppression Remedy Is An Equitable Remedy
January 23, 2024 By Jonathon Clark The terms of an employment contract will not override the reasonable expectations of a substantial shareholder under the oppression remedy. THE CASE The Plaintiff in Pereira v. TYLT Technologies Inc. (TYLTGO) was a co-founder of the corporation’s business. Though he and his co-shareholder had agreed to sell the business […]
Interpreting Rights of First Refusal
January 11, 2024 By Brian Babcock A right of first refusal (ROFR) may be a valuable aspect of a business agreement. No wonder that there are often disputes about the meaning of the rights, or their enforceability. THE CASE Some of the principles are reviewed by an Ontario Superior court judge in McMullen v. Dilawri […]
Sealing Orders, Removing Lawyers, and Privilege
January 9, 2024 By Brian Babcock If you are involved in a corporate dispute, such as a fight between shareholders, consider a sealing order to protect sensitive corporate information. THE ISSUE As we have written before, the general principle is that court proceedings, including filings, ought to be public and available for review. THE CASE […]