Who are Your “Friends”? Certainty in Estate Planning
September 27, 2021 By Brian Babcock A valid trust requires what are called the “three certainties” – certainty of intention to create a trust, certainty of subject matter (what property is in the trust?), and certainty of objects (who are the beneficiaries?). This applies to most gifts in wills, where the property is usually transferred […]
The Oppression Remedy and Marriage Breakdown
September 22, 2021 By Brian Babcock For many people, going into business with their spouse is a dream – who better as a business partner than your life partner? But what happens when that dream becomes a nightmare? According to the case of Fuentes v. Camino Construction, the oppression remedy under the Ontario Business Corporations […]
Compensation of Estate Trustees
September 22, 2021 By Brian Babcock Historically, estate trustees were not entitled to be paid for their work unless the will expressly provided for compensation. Now, in Ontario, the opposite applies – unless the will denies or limits trustees’ compensation, the trustees are entitled to reasonable compensation. This is paid out of the residue of […]
Tenant or Owner?
September 5, 2021 By Brian Babcock Ontario’s Landlord and Tenant Board has the jurisdiction to determine the ownership of buildings, including through a simplified summary process. That determination, however, may not finally determine rights or obligations flowing from an ownership interest. In Sutton v. Riddle, the Divisional Court, which hears appeals from the Board, has […]
Punitive Damages are Not a Consolation Prize
September 5, 2021 By Brian Babcock Punitive damages may only be awarded if the court finds that there is an “independent actionable wrong.” Misconduct alone is not enough. This principle, established at least since 2002, has been somewhat overlooked in recent years as judges easily found the requirement met by almost any malicious or intentional […]
Is working notice a good idea?
August 30, 2021 By Brian Babcock Sometimes, when a non-union employee is terminated without cause, the employer tries to gain value for the amounts payable to the departing employee by giving working notice. Whether or not this is a good idea depends upon all of the circumstances. If the departure is amicable, the employee is […]
Courts Continue to Favour Employees after Termination
August 30, 2021 By Brian Babcock We have written often about how Ontario courts tend to favour employees in wrongful dismissal law suits. Often, these cases involve the validity of a clause that attempts to limit payments sue on dismissal to less than required by law. Perretta v. A Rand Technology Corporation illustrates a somewhat different […]
How much risk can you afford?
August 23, 2021 By Brian Babcock A financing condition is common in a residential agreement of purchase and sale. It exists to protect the buyers if they cannot get the necessary loan to buy the property. If not waived, it allows them to walk away and the sellers then must remarket the property, with no […]
Watch Your Lease Renewal Dates
August 23, 2021 By Brian Babcock The Ontario Court of Appeal has given the duty of good faith in performing contracts a narrow reading, refusing to apply it to grant relief from forfeiture in a situation where a commercial tenant was outside the agreed dates for attempting to renew its lease. The case involved a […]
Enforceability of Arbitration Clauses in Employment Agreements
August 16, 2021 By Brian Babcock It may be that not all arbitration clauses in employment contracts are unenforceable. The Supreme Court of Canada decision in Uber Technologies v Heller has attracted a lot of attention for declaring that the particular arbitration clause in the Uber agreement was invalid because it was unconscionable. At a […]