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Blog

22 Jul

Plaintiff Suffers Blow: Punch to Face in Amateur Ice Hockey Game Found to be Not Reasonably Foreseeable

Thursday, July 22, 2021Stephen A. Thiele, James R.G. CookLitigationHockey, Sports Law, Torts

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Ice hockey is governed by rules which penalize certain physical infractions, including cross-checking, fighting, hitting from behind, and...

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19 Jul

AODA requirements for Websites

Monday, July 19, 2021Eliane Leal da SilvaCorporate LawAccessibility for Ontarians with Disabilities Act , AODA

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What is the AODA?

The Accessibility for Ontarians with Disabilities Act (the “AODA”) is a legislative framework intended to reduce and remove barriers for people with disabilities and...

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13 Jul

Wrong for City Councillor to have entered residential properties without permission

Tuesday, July 13, 2021Stephen A. ThieleLitigationPolitical Law, City Councillors, Integrity Complaints

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Politicians occupy an important position in our democracy. They are elected to represent all individuals and to make well-reasoned decisions that, among other things, steer and guide the economy, impose necessary limits on behaviour and put into place a social safety net that...

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9 Jul

Commission owed to real estate agent despite lack of written agreement

Friday, July 9, 2021James R.G. CookLitigationGTA Real Estate, Real Estate, Caledon, Buyer’s Representation Agreement, Small Claims Court

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In the real estate industry, relationships between buyers and their real estate agent are often governed by a written Buyers Representation Agreement (“BRA”). A BRA usually... 

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8 Jul

Court issues injunction to stop online harassment and intimidation pending trial

Thursday, July 8, 2021James R.G. CookLitigationHarassment, Landlord, Real Estate, Civil Litigation, Ontario Landlord and Tenant Board, YouTube, Internet Harassment

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Online harassment has become a major issue in Canadian society and has resulted in the burgeoning tort of “internet harassment” specifically designed to...

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5 Jul

Claim for online research costs rejected in Ontario commercial proceeding

Monday, July 5, 2021Stephen A. ThieleLitigationLegal Research, Costs

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As we have previously written, many courts are extremely reluctant to grant a winning party recovery for online legal research disbursements when making a costs award. A party who seeks the... 

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5 Jul

Oral agreement to transfer family home results in years of litigation between father and daughter

Monday, July 5, 2021James R.G. CookLitigation, Real EstateMississauga, GTA Real Estate

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Agreements between family members are often informal and not reduced to writing, even if they involve substantial assets such as real estate. The parties may think that they have agreed on some of the terms but... 

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2 Jul

Seller entitled to repossess townhouse after buyer fails to complete purchase

Friday, July 2, 2021James R.G. CookLitigationReal Estate, GTA Real Estate, Agreement of Purchase and Sale

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Sales of new condominiums and townhouses may sometimes allow a buyer to move into a unit on an “interim occupancy date” which may be several months before the purchase is scheduled to be finally...

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29 Jun

Student-Athletes Prevail in Antitrust Action Against the National Collegiate Athletic Association to Secure Education-Related Benefits

Tuesday, June 29, 2021Stephen A. ThieleLitigationSports Law, College, Student Athletes, University

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Last week, in the case of National Collegiate Athletic Association v. Alston et al. 594 U.S., the Supreme Court of the United States unanimously held that the rules of the National Collegiate... 

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28 Jun

Environmental injunctions need not pass the flagrant breach threshold

Monday, June 28, 2021James R.G. Cook, Kenneth JullLitigationConservation Authorities Act

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In Lake Simcoe Region Conservation Authority v. Eng, the applicant Conservation Authority obtained an interim injunction against the owner of a property in an area of...

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25 Jun

Court refuses to hear dispute over requisitions due to self-induced urgency

Friday, June 25, 2021James R.G. CookLitigation, Real EstateVendors and Purchasers Act

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Currently, the civil hearings list in Toronto is backlogged and suffering from what one Superior Court Justice has called “unacceptably long timeouts for civil motions and applications due to the effects of the...

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24 Jun

Tribunal’s independent legal research not procedurally unfair

Thursday, June 24, 2021Stephen A. ThieleLitigationLegal Research, Orders and Judgments, Procedural Fairness

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When a judge or an adjudicator renders a decision that is not anchored in the pleadings, evidence, positions or submissions of the parties, appellate courts have overturned the...

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24 Jun

The Disruptive Power of Blockchain from a Legal Perspective: Part 1: The Ontario Land Registry System

Thursday, June 24, 2021Aaron Pearce, Khalid KarimCorporate Law, Real EstateBlockchain, Blockchain Technology, Ontario Land Registry System

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Outside of the real estate sector, you would be hard pressed to speak to the average person about land registration unless they are buying or selling a property themselves...

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18 Jun

Zak Sabbath’s defamation claim allowed to continue against Mandy Morbid

Friday, June 18, 2021James R.G. CookLitigationSocial Media, Facebook, Defamation, SLAPP, Libel

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In early 2019, a former model and adult film performer, Amanda Nagy also known as “Mandy Morbid,” posted a message on her Facebook page saying that Zak Smith, her former husband,  artist, tabletop role-playing game (RPG) creator and... 

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16 Jun

“Business common sense” determines winner of commission dispute

Wednesday, June 16, 2021James R.G. CookLitigationReal Estate, Commercial Real Estate , Buyer’s Representation Agreement

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When courts have to decide whose version of a conversation is more likely to have occurred, recourse must often be had to the surrounding circumstances and any available...

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15 Jun

Late document disclosure may cause trial delays, adjournments, and dismissals

Tuesday, June 15, 2021James R.G. CookLitigationRules of Civil Procedure, Ontario Evidence Act

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Parties involved in civil litigation are required to produce all relevant documents in their possession, control or power to the opposite side. The Court of Appeal for Ontario has stated that...

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15 Jun

Integrity Commissioner’s ruling against Councillor upheld, but Council cannot unreasonably restrain his ability to communicate with constituents

Tuesday, June 15, 2021Stephen A. ThieleLitigationPolitical Law, Scope, Municipal Code of conduct for members

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In general, politicians at all levels of government in Canada are required to either adhere to a Code of Conduct or are subject to integrity legislation. These Codes or statutory provisions are designed to...

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14 Jun

Fitness franchise fails to obtain injunction to stop rebranding of fitness studio during the pandemic

Monday, June 14, 2021James R.G. CookLitigationCOVID-19, Franchise, Fitness Studio

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The COVID-19 pandemic has been particularly hard on businesses operating gymnasiums and personal training studios since public health authorities have deemed it unsafe for groups of people to...

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11 Jun

Claim for Road Access Act and prescriptive easement to landlocked property dismissed

Friday, June 11, 2021James R.G. CookLitigation, Real EstateHighway Traffic Act, Ontario Road Access Act

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In Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266 (CanLII), the Court of Appeal for Ontario affirmed that the appellants had no right to cross the respondents’ land to get to their otherwise landlocked property.

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10 Jun

Ontario third party advertising provisions held to be unconstitutional

Thursday, June 10, 2021Stephen A. ThieleLitigation, Political Law, Election LawConstitutionality, Third Party Advertising

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The ability to openly and freely debate political issues is the lifeblood of democracy. There is significant value in people being engaged in issues and voicing their positions to others, including government. However, in the past 20 years...

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10 Jun

Court reaches opposite conclusion on whether constructive dismissal claims are barred by Ontario COVID-19 Regulations

Thursday, June 10, 2021James R.G. CookLitigation, Employment Law, Employment Standards Act

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Employers may be relieved that in Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135 [not yet on CanLII], a second judge of the Ontario Superior Court of Justice reached an opposite conclusion to an earlier decision involving...

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9 Jun

Litigant Misses the Cut in Lawsuit After Being Hit in the Head by a Golf Ball

Wednesday, June 9, 2021Stephen A. ThieleLitigationSports, Torts, Negligence, Golf, Sports Law

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Spectating a live sporting event is typically an enjoyable experience. Whether in the arena watching a hockey game or on the course taking in a round of golf, there is a general entertainment value that comes with... 

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7 Jun

A Judge’s Duty is to Judge

Monday, June 7, 2021Stephen A. ThieleLitigationLegal Research, Rules of Civil Procedure

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A judge plays many roles, but one of the most important is to render a decision between conflicting parties. In rendering a decision, a judge must...

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7 Jun

Conviction set aside due to ineffective assistance of trial counsel

Monday, June 7, 2021James R.G. CookLitigationCanadian Charter of Rights and Freedoms, Ontario Court of Appeal

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In R. v. Trought2021 ONCA 379 the Court of Appeal for Ontario ordered a new trial for a man convicted of possession of cocaine for the purposes of trafficking on...

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4 Jun

Buyer’s failure to waive conditions nullifies agreement of purchase and sale

Friday, June 4, 2021James R.G. CookLitigation, Real EstateGTA Real Estate, Agreement of Purchase and Sale, Land Title Act

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While conditional offers may be rare in the Greater Toronto Area, where multiple bidders compete for most properties, buyers in less heated markets may...

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3 Jun

Court of Appeal affirms judicial notice of anti-black racism in granting relief from forfeiture

Thursday, June 3, 2021James R.G. CookLitigationOntario Court of Appeal , Tenant, Landlord, Restaurant, Courts of Justice Act

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In 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc.2021 ONCA 371, the Ontario Court of Appeal affirmed an application judge’s decision which...

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2 Jun

Who gets the dog? Court endorses broader ownership considerations for pets

Wednesday, June 2, 2021James R.G. CookLitigationPet Ownership, Family Pets

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On a day when travelers are learning that Air Canada has barred emotional support animals from planes, it is worth remembering that in the eyes of the law pets have traditionally...

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1 Jun

COVID-19 increases length of reasonable wrongful termination notice to 24 months

Tuesday, June 1, 2021Stephen A. ThieleLitigation, Employment LawWrongful Dismissal, Reasonable Notice, COVID-19, Wrongful Termination

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COVID-19 has had a devastating impact on our economy. Some businesses have gone bankrupt, while others have simply closed down forever. Many people have seen their work hours reduced, while others...

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31 May

Administrative Monetary Penalties in the Afterlife

Monday, May 31, 2021Kenneth JullLitigation, Bankruptcy and InsolvencyBankruptcy, Bankruptcy and Insolvency Act, Administrative Monetary Penalty

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Allegations of criminal or regulatory violations are often made in the civil and administrative law world. A securities broker may be alleged to have defrauded investors by making false statements regarding the use of...

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28 May

Letters of Request enforced in connection with U.S commercial litigation

Friday, May 28, 2021James R.G. CookLitigationLetters of Request, Rules of Civil Procedure, Ontario Evidence Act

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Recent decisions involving the enforcement of letters of request issued by U.S. courts reflect the continued openness of Ontario courts to...

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27 May

92-year old minority shareholder obtains oppression remedy

Thursday, May 27, 2021James R.G. CookLitigationShareholders’ Agreement, Courts of Justice Act, Ontario Business Corporations Act

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In V.M. Koury Investments Ltd. v. Bolton Steel Tube Co. Ltd., 2021 ONSC 3408 (CanLII), the 92-year old applicant owned 30% of the shares...

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26 May

Duty of professionals to respond promptly and cooperatively with regulators

Wednesday, May 26, 2021James R.G. CookLitigationOntario Court of Appeal , Law Society of Ontario, Rules of Professional Conduct

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The Ontario Court of Appeal has confirmed that professionals have a duty to cooperate promptly and fully with their regulator during the course of...

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26 May

Snow washing is now more difficult in Canada, but at what cost?

Wednesday, May 26, 2021Kenneth Jull, Ian SpiegelLitigationSnow Washing, Money Laundering

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For several years, the Canadian government has begun to focus on “snow washing”, the purifying of illegitimate funds through using shell corporations to launder money...

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25 May

Summary judgment denied over defamatory TV show first aired in Pakistan

Tuesday, May 25, 2021Stephen A. ThieleLitigationTorts, Defamation, Summary Judgment, Libel, Slander

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Ontario’s Rules of Civil Procedure provide that where there is no genuine issue requiring a trial, summary judgment shall be granted. It has been determined by Ontario courts that this rule is...

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25 May

Buyer loses $100,000 deposit after refusing to purchase condominium

Tuesday, May 25, 2021James R.G. CookLitigationReal Estate, Agreement of Purchase and Sale, Ontario Court of Appeal

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It is settled law in Ontario that when a buyer fails to complete an agreement of purchase and sale, the seller is entitled to retain the deposit without having to prove any loss. This means that... 

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25 May

Discipline Committee Hearings Now Broadcast on YouTube

Tuesday, May 25, 2021Lad KucisHealth Law, LitigationOntario College of Pharmacists, College of Dental Hygienists of Ontario, College of Psychologists of Ontario, College of Chiropractors of Ontario

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Over the past few months, certain health professions colleges, including the College of Chiropractors of Ontario, the College of Psychologists of Ontario and the College of Dental Hygienists of Ontario, have...

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21 May

Fitness studio denied injunction to reopen during pandemic

Friday, May 21, 2021James R.G. CookLitigationState of Emergency, COVID-19, Emergency Management and Civil Protection Act, Human Rights Code

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In April 2021, the Province of Ontario declared a second state of emergency related to the COVID-19 pandemic, and issued a province-wide stay-at-home order, which...

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20 May

Nova Scotia court prevents anti-masking protest from happening

Thursday, May 20, 2021Stephen A. ThieleLitigation, InjunctionsCOVID-19, Remedies

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This past weekend, despite Ontario’s stay-at-home order, there were two major public protests in Toronto. On late Saturday afternoon (May 15th) an estimated crowd of...

 

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20 May

Professional negligence claim dismissed against lawyer despite conflict of interest and breach of the standard of care

Thursday, May 20, 2021James R.G. CookLitigationRules of Professional Conduct, Breach of the Standard of Care

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“There is no such thing as negligence in the abstract,” notes Regional Senior Justice Calum MacLeod in Maisonneuve v. Langlois,...

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14 May

$500,000 in damages awarded for comments about yellow Ferrari’s ownership

Friday, May 14, 2021Stephen A. ThieleLitigationDefamation, Damages, Torts

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Cars are a tremendous invention. Historically, among other things, cars changed the way that people travelled and reduced significantly the travel time between destinations. Cars are certainly very popular and...

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14 May

Compliance Order obtained against condominium owners for unruly behaviour and refusal to wear masks

Friday, May 14, 2021James R.G. CookLitigation, Real EstateCondominium, Compliance, Condominium Act, By-Laws, Masks

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Living in a condominium requires a balancing of interests between the residents and compliance with the rules and by-laws that govern the community. No owner can be permitted run amok or...

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4 May

Power of sale set aside due to mortgagee's refusal to provide discharge statement

Tuesday, May 4, 2021James R.G. CookLitigation, Real EstateOntario Mortgages Act, GTA Real Estate

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A mortgagor has a right to request a discharge statement from a mortgagee at any time prior to the mortgaged property being sold by... 

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3 May

Buyers’ liability to sellers in aborted real estate transactions - Part 2

Monday, May 3, 2021James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, GTA Real Estate

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We have previously addressed a number of circumstances in which buyers unsuccessfully attempted to back out of a binding Agreement of Purchase and Sale (APS) for the purchase...

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30 Apr

Injunction granted to stop defamatory posts published on Instagram

Friday, April 30, 2021Stephen A. ThieleLitigationDefamation, Torts, Injunction

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Social media is a great tool for, among other things, the promotion of personal or business interests, or connecting with like-minded individuals. It provides a window to... 

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29 Apr

Constructive dismissal claim resulting from temporary layoff not barred by Ontario COVID-19 Regulation

Thursday, April 29, 2021James R.G. CookLitigation, Employment LawEmployment Agreements, Employee, Employer, COVID-19, Constructive Dismissal , Employment Standards Act, 2000, Infectious Disease Emergency Leave (IDEL Regulation)

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In Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076, Justice D.A. Broad of the Ontario Superior Court of Justice dismissed an employer’s motion for summary judgment which sought the dismissal of an employee’s action for constructive dismissal arising...

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27 Apr

Agent’s claim to commission owing under BRA dismissed due to non est factum

Tuesday, April 27, 2021James R.G. CookLitigation, Real EstateGTA Real Estate, Mississauga, Buyer’s Representation Agreement

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Agents often require buyer clients to enter into a Buyer’s Representation Agreement (BRA) which sets out the buyer’s agreement to pay the agent a commission on... 

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26 Apr

Failure to disclose material facts to insurer voids coverage for delivering pizza

Monday, April 26, 2021James R.G. CookLitigationInsurance Policy, Insurance Law, Automobile Insurance, Ontario Insurance Act

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Failing to advise an insurance company of material facts relating to the policy may result in a loss of coverage at a time when it is needed most.

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22 Apr

Potentially fake app messages result in appeal from firebombing conviction

Thursday, April 22, 2021James R.G. CookLitigationFacebook, Fake News, SMS Text Messages, Text Now , Ontario Court of Appeal

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We have previously addressed the concerns of a civil court judge about the perils of having to deal with “fake news” in the form of spoofed emails and electronic documents. The Ontario Court of Appeal has addressed similar concerns as to...

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21 Apr

Recovering Online Legal Research Disbursements

Wednesday, April 21, 2021Stephen A. ThieleLitigationLegal Research, Disbursements

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In previous blogs, I have written about the careful scrutiny given by courts to claims for costs for online legal research incurred during a proceeding. In most instances, the claims have either been disallowed or...

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13 Apr

Full Names of Parties Now Published in HPARB Complaint Review Decisions

Tuesday, April 13, 2021Lad KucisLitigation, Health LawHealthcare, Disciplinary Hearing

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Historically, the names of parties in complaint reviews before the Health Professions Appeal and Review Board (HPARB) were not included on the version of the Decision and Reasons made available...

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13 Apr

Family Cottage Squabbles: Court orders family members to stop interfering with each other’s enjoyment of cottage property

Tuesday, April 13, 2021James R.G. CookLitigationReal Estate, Cottage Country, Trusts

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Cottage properties may be used by extended families over the years without regard to who has legal title or whether there are legally binding rules for ownership and use. When senior members of family age, disputes may...

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9 Apr

County Festival Feud: Plaintiff fails to prove verbal agreement or bad faith against festival organizers and municipality

Friday, April 9, 2021James R.G. CookLitigationOntario Limitations Act, Powassan, Municipal Act, Contract Law

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The annual “Smoke ‘N’ Spurs Festival” on the Labour Day Weekend in Powassan, Ontario, commenced in 2013. A caterer for the Festival from 2013-2015, claimed that he was lured away...

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8 Apr

Business founder obtains oppression remedy against investors

Thursday, April 8, 2021James R.G. CookLitigationCorporations Act, Corporate Law, Oppression Remedy

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The oppression remedy in Canadian corporate law protects the reasonable expectations of stakeholders in a corporation. Shareholders, directors, and other stakeholders enter into...

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7 Apr

Owner of corporation personally liable for litigation misfeasance

Wednesday, April 7, 2021James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Personal Liability, Ontario

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One of the perceived benefits of using a corporation for real estate or other business transactions is to shield the individual owner from personal liability for costs and other...

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6 Apr

Recent treatment of the duty to defend in Ontario courts

Tuesday, April 6, 2021James R.G. Cook, Kenneth JullLitigationInsurance Law, Negligence, Ontario Court of Appeal , Insurance Policy, Policy, Class Action

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Where there is a dispute between an insurer and an insured over the insurer’s duty to defend a claim being made against an insured, the insured will ordinarily need to bring an application for... 

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5 Apr

Buyers not allowed to terminate purchase due to size misdescription or building permit concerns

Monday, April 5, 2021James R.G. CookLitigationReal Estate, Mississauga, Renovations

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While the discovery of misdescriptions as to the size of a property or unpermitted renovations may allow a buyer to terminate a purchase transaction,...

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5 Apr

Gratuitous Defamatory Tweets About Plaintiff Not Protected as a Matter of Public Interest

Monday, April 5, 2021Stephen A. ThieleLitigationTorts, Defamation, SLAPP, Pre-trial Disposition

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The internet and social media have spawned much civil litigation in the area of defamation. There is no cost to obtaining a Twitter account, for example, and to “tweeting” out a...

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1 Apr

A short walk to the beach – What is reasonably necessary for a prescriptive easement?

Thursday, April 1, 2021James R.G. CookLitigation, Real EstateEasement, Cottage Country, Lakefront

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One of the requirements to establish a prescriptive easement is that it is “reasonably necessary” for the better enjoyment of the owner of the land who claims the prescriptive

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28 Mar

Court dismisses non-competition injunction against former key employee

Sunday, March 28, 2021James R.G. CookLitigation, Employment LawEmployee, Employer, Contract Law, Restrictive Covenant, Non-Compete

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When relationships end between a business and an individual who was a principal thereof, the business may be understandably concerned about competitive ventures it may face from its...

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26 Mar

Federal Conservative Party Member Wins Pyrrhic Court Victory: Loses in Party Election

Friday, March 26, 2021Stephen A. ThieleLitigationPolitical Law, Contract Law, Contractual Rights, Political Parties, Membership

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I preface this political law blog with the full disclosure that although I am involved in party politics, I am not a member of any federal political party in Canada...

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26 Mar

Buyers’ liability to sellers in aborted real estate closings - Part 1

Friday, March 26, 2021James R.G. CookLitigation, Real EstatePlanning Act, Summary Judgment

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“The factual background to this summary judgment motion is a sad story that has frequently been retold in courtrooms across the land with the same tragic ending.”

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24 Mar

Motion to enjoin hotel quarantine law denied

Wednesday, March 24, 2021Stephen A. ThieleLitigation, Constitutional Law, Charter of Rights and FreedomsCOVID-19, Interim Injunction

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The COVID-19 pandemic has caused our governments to implement laws aimed at stopping the spread of the virus. While many of those laws arguably have a minimal effect or none at all on...

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22 Mar

Municipality improperly abandoned ratepayers by failing to oppose application for legal non-conforming use of lakeside land

Monday, March 22, 2021James R.G. CookLitigation, Real Estate, Municipal LawZoning By-Law, Norfolk County, Ontario

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Some municipal zoning restrictions are intended to address local planning needs for commercial and residential purposes, while other...

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15 Mar

Estate’s claim to recover $700,000 gift from elderly man to fiancée dismissed

Monday, March 15, 2021James R.G. CookLitigationTrustee Act, Ontario Court of Appeal

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We have previously written about gratuitous transfers of real estate between family members, and the requirement on the recipient’s part to prove that the transfer was intended to be a gift if the purpose... 

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15 Mar

A Victory for Freedom of Speech

Monday, March 15, 2021Stephen A. ThieleLitigationFreedom of Expression, Political Law, Canadian Charter of Rights and Freedoms

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The framers of the U.S. Constitution wrote that government “shall make no law…abridging the freedom of speech.” Although these words were written in the context of... 

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12 Mar

Legal non-conforming use prevents municipality from enforcing zoning by-law

Friday, March 12, 2021James R.G. CookLitigationZoning By-Law, Town of Caledon, Planning Act

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While some property owners may believe that they can do what they want with their own land, municipalities control development and the permitted use...

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11 Mar

Online e-commerce platform not required to provide services to retailer of products promoting hate or violence

Thursday, March 11, 2021James R.G. CookLitigationHate Speech

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The Ontario Superior Court of Justice dismissed an injunction sought by an online retainer against an e-commerce platform which refused to allow it to carry on business selling...

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10 Mar

Hockey tournament dispute leads to shareholder oppression remedy

Wednesday, March 10, 2021James R.G. CookLitigationHockey, Corporations Act

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Individuals involved in a small business venture may view themselves as equal partners, but if they make the decision to use a corporation for their business, they should be aware that the...

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9 Mar

Court grapples with fake electronic evidence and Zoom imposter witness

Tuesday, March 9, 2021James R.G. CookLitigationOntario Evidence Act, Rules of Professional Conduct, Zoom, Evidence

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As we discussed in a recent blog, technological advances have resulted in a digital revolution in the justice system, but these same... 

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8 Mar

Correcting some misconceptions about online legal research costs

Monday, March 8, 2021Stephen A. ThieleLitigationLegal Research, Costs, Online Searches

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The greatest revolution in law over the last 30 years has been the ability to access case law and secondary sources online. When I started law school at... 

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8 Mar

Claim for adverse possession of land against an unknown owner

Monday, March 8, 2021James R.G. Cook, Aaron PearceLitigation, Real EstateLand Title Act, Land Registry, Adverse Possession

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A claim for title by adverse possession can grant property rights to a non-owner of land resulting from their use or occupation of the lands over an...

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3 Mar

Defaming a professional can be costly

Wednesday, March 3, 2021Stephen A. ThieleLitigationDefamation, Advertising, Alberta, Alberta Dental Association

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The law of defamation is unique in that general damages are awarded at-large. There is no upper ceiling for an award and there is little value to be gained in attempting to compare...

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27 Feb

The judicial rant heard around the legal profession: a legal research lesson

Saturday, February 27, 2021Stephen A. ThieleLitigationCivil Procedure, Legal Research, Transfer Motion, Rules of Civil Procedure

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As we approach the one year anniversary of Ontario’s declaration of a state of emergency because of Covid-19 pandemic, the stresses and strains caused by the lockdown can be seen and...

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25 Feb

Reputation can be everything

Thursday, February 25, 2021Stephen A. ThieleLitigationDefamation

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The tort of defamation is all about the protection of a person’s reputation. Where a person suffers a loss of reputation because of words spoken or published about... 

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23 Feb

“Enough is Enough” – frustration expressed by Ontario Courts over litigation misconduct during the pandemic

Tuesday, February 23, 2021Gavin J. Tighe, James R.G. CookLitigationFrustration, COVID-19

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At the time of this writing, it has been almost a year since civil litigation was routinely conducted in a physical courtroom. While parties and their...

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22 Feb

God’s law is not supraconstitutional

Monday, February 22, 2021Stephen A. ThieleLitigationGod's Law, Bible

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Although Part 1 of Canada’s Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 references “the supremacy of God”, this...

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22 Feb

Letters of Request denied for access to confidential business information

Monday, February 22, 2021James R.G. CookLitigationLetters of Request, Referral Agreement, Ontario Court of Appeal

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The process by which a foreign court seeks the assistance of an Ontario court to gather evidence for use in local proceedings, as discussed...

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22 Feb

Airbnb renters of landlocked cottage allowed to access lake via right-of-way

Monday, February 22, 2021James R.G. CookLitigationAirbnb, Right-of-way Access , Bay of Quinte, Cottage Country

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It is not uncommon for non-lakefront cottage properties in Ontario to have access to the water via a right-of-way (ROW). ROWs may be registered on title or...

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18 Feb

You can’t play dress up with a defamation action

Thursday, February 18, 2021Stephen A. ThieleLitigationDefamation, Slander

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The law of defamation is subject to many strict rules, which may vary from province-to-province under respective special libel and slander... 

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17 Feb

Breach of privacy class action against Facebook relating to Cambridge Analytica dismissed

Wednesday, February 17, 2021James R.G. CookLitigationClass Action, Facebook, Cambridge Analytica, Privacy Rights

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The Ontario Superior Court of Justice has dismissed a class action against Facebook for breach of privacy arising from what the motion judge described as...

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16 Feb

Legal research in costs awards

Tuesday, February 16, 2021Stephen A. ThieleLitigationCivil Litigation, Legal Research, Costs

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Despite its importance, legal research is often a line item that comes under close scrutiny when a court awards costs to a...

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16 Feb

Proposed Danforth Shooting class action against Smith & Wesson relating to authorized user technology allowed to proceed

Tuesday, February 16, 2021James R.G. CookLitigationRules of Civil Procedure, Class Proceedings Act, 1992, Handgun

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The Ontario Superior Court of Justice has dismissed a motion by Smith & Wesson Corp to throw out a potential class action for negligent manufacturing of the firearm used in a mass shooting in... 

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10 Feb

Defamation Judgment Upheld Against Pseudonymous Online Poster

Wednesday, February 10, 2021James R.G. CookLitigationDefamation

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In Theralase Technologies Inc. v Lanter, 2021 ONSC 943 (CanLII)Justice F.L. Myers dismissed a motion to set aside default judgment obtained against a defendant who...

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5 Feb

Criminal proceedings and the civil defamation claim: A limitation period lesson

Friday, February 5, 2021Stephen A. ThieleLitigationDefamation, Limitations Act, Ontario Court of Appeal

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In Ontario, section 4 of the Limitations Act, 2002 establishes a general two-year limitation period for commencing an action from... 

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2 Feb

Disgorgement of profits could be a potential remedy in a defamation action

Tuesday, February 2, 2021Stephen A. ThieleLitigationDefamation, British Columbia, Damages

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Remedies are an important aspect of any case. In the law of defamation, the usual remedy sought by most plaintiffs is general damages for reputational harm. In a defamation case...

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1 Feb

Limitation period avoided: Claims of republication of libel by third party allowed to be added action because stories were on internet

Monday, February 1, 2021Stephen A. ThieleLitigationTorts, Defamation, Republication, Limitation Periods

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Across the country, limitation periods have been enacted to regulate the time in which an action can be commenced. Defendants are entitled to finality, and... 

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1 Feb

Internet Harassment Tort Recognized by Ontario Superior Court of Justice

Monday, February 1, 2021James R.G. CookLitigationDefamation, Harassment, Torts, Cyber-stalking

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Cyber-stalking and anonymous malicious postings on the internet, which may be disseminated across a variety of sites and platforms across the world, are issues to which the...

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28 Jan

Defamation action against Ontario Premier dismissed under Courts of Justice Act

Thursday, January 28, 2021Stephen A. Thiele, Gavin J. Tighe, Rojin JazayeriLitigationDefamation, Political Law, Police Services Act, Members’ Integrity Act, Courts of Justice Act

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Early last year, the Premier of Ontario, Doug Ford, in a highly sensationalized lawsuit was sued for defamation by a former Deputy Commissioner and... 

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27 Jan

Township Liable to Muskoka Cottage Owners for Failing to Inspect Building Permit

Wednesday, January 27, 2021James R.G. CookLitigationCottage Country, Muskoka, Building Code Act, Building Code

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Owners of a cottage in Muskoka obtained judgment against the Township of the Lake of Bays in the amount of $361,875, resulting from the...

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27 Jan

Patrick Brown takes down insurance company

Wednesday, January 27, 2021Stephen A. ThieleLitigationDefamation, Political Law, Insurance Law

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An issue that sometimes arises in defamation actions is whether the costs of a prosecution or a defence is covered by an insurance...

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26 Jan

Defamation claim against Twitter allowed to proceed in British Columbia

Tuesday, January 26, 2021James R.G. CookLitigationDefamation, British Columbia, Twitter

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When defamatory statements are alleged to have been transmitted internationally via social media, the question of where to start a...

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25 Jan

Defamation suit surrounding BC’s foreign buyer tax is dismissed

Monday, January 25, 2021Stephen A. ThieleLitigationTorts, Defences, Defamation, Political Law

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The law of defamation is fascinating because the fact scenarios of each case are unique. Where matters of public interest are involved, people are prone to express opinions about the...

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25 Jan

Subway’s $210 million chicken content defamation claim against the CBC restored by Court of Appeal

Monday, January 25, 2021James R.G. CookLitigationDefamation, Anti-SLAPP Legislation, Subway, CBC, Chicken

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The Ontario Court of Appeal has restored Subway’s defamation action against the CBC which was dismissed in 2019 pursuant to Ontario’s...

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20 Jan

Plaintiffs who started debate on matters of public interest have defamation claim dismissed

Wednesday, January 20, 2021Stephen A. ThieleLitigationDefamation, Defences

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Vigorous and passionate debate over matters of public interest are the lifeblood of democracy because it is often...

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18 Jan

Notoriously Bad Movie leads to Unprecedented Order for Security for Costs of Trial Judgment

Monday, January 18, 2021James R.G. CookLitigationCopyright, Ontario Court of Appeal , Rules of Civil Procedure, Documentary Film-makers, Copyright Act

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For perhaps the first time, the Ontario Court of Appeal has ordered an unsuccessful litigant to post security for costs of a trial judgment before being allowed to proceed with...

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15 Jan

Home Owners Ordered to Remove Pool built over Municipal Easement

Friday, January 15, 2021James R.G. Cook, Jonathan James NehmetallahLitigation, Real EstateMunicipal Act, Easement

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Home buyers would do well to ensure that their local municipal by-laws and easements do not prohibit their development plans before they embark...

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15 Jan

President of Queen’s Privy Council for Canada to be an “adverse witness” in potato farmer’s case

Friday, January 15, 2021Stephen A. ThieleLitigationEvidence, Political Law, Witnesses, Adverse Witness

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The examination of witnesses at a trial is governed by certain basic rules. For a witness who is being questioned by the side for which that person is a...

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14 Jan

Employer Breached Employee’s Right to Privacy by Reviewing Private Messages sent from Work Laptop

Thursday, January 14, 2021James R.G. CookLitigationArbitration, Canadian Charter of Rights and Freedoms, Canadian Human Rights Act, Canadian Media Guild

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Employees frequently use laptop computers provided to them by their employer for personal matters as well as employment-related tasks. To what extent can an employer review private messages...

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13 Jan

Ontario’s New Stay Home Order Effective January 14, 2021

Wednesday, January 13, 2021Soma Ray-EllisLitigation, Employment LawCOVID-19, Ontario, Child Care and Early Years Act, Emergency Management and Civil Protection Act

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The Ontario government, in consultation with the Chief Medical Officer of Health and other health experts, has responded to the unsettling levels of mobility in the province and has declared a second provincial emergency under...

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8 Jan

Former Agriculture Minister Not Required to Testify

Friday, January 8, 2021Stephen A. ThieleLitigationCivil Litigation, Evidence, Witnesses, Political Law, Interprovincial Summonses Act

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Despite courts moving to electronic hearings whereby theoretically a witness could appear virtually from anywhere...

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8 Jan

Freelance Consultants Not Bound by Non-Competition Agreement

Friday, January 8, 2021James R.G. CookLitigation, Employment LawCivil Procedure, Trial Procedure, Non-Compete, Contract Law

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Freelance consultants may often be faced with a decision to enter into contracts which purport to limit their ability to seek out what might be construed as...

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4 Jan

Recent Treatment of Letters of Request from U.S. Courts by the Ontario Court of Appeal

Monday, January 4, 2021Stephen A. Thiele, James R.G. CookLitigationLetters of Request, Ontario Evidence Act, Ontario Court of Appeal

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As a result of the highly integrated economies and efficient cross-border movement between Canada and the United States (at least prior to the 2020 pandemic), the courts in each country frequently seek each other’s...

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30 Dec

Court Prohibits Competing Restaurant Business from Opening

Wednesday, December 30, 2020James R.G. CookLitigationNon-Compete, Restaurant, Interlocutory Injunction , Ottawa, Shareholders’ Agreement

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Many will be grateful to see 2020 in the rearview mirror, none more so than restaurant owners. With restaurants scrambling to re-focus on take-out service, perhaps the last thing...

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28 Dec

Housing construction project turned sour results in personal liability and dismissal of defamation claim

Monday, December 28, 2020Stephen A. ThieleLitigation, Real EstateAlberta, Fraud, Dream Home, Construction , Kickbacks

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Although building a house can take much planning and hard work in securing a developer, labour and material, it is meant to be a joyous exercise which...

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24 Dec

Court Denies Mortgagee’s Claim for Unproven Fees and Charges under Overdue Mortgage

Thursday, December 24, 2020James R.G. CookLitigation, Real EstateMortgage Fees, Ontario Mortgages Act, Interest Act

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Mortgagees suing to recover amounts owing under a mortgage in default should not expect a court to rubber stamp the amounts claimed for fees...

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24 Dec

Election law’s substantive approach applies to judicial recounts

Thursday, December 24, 2020Stephen A. ThieleLitigation, Election Law, Public Law, Political Law

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Over eight years ago, the Supreme Court of Canada in Opitz v. Wrzesnewskyj, 2012 SCC 55 rejected a bid to overturn a close election result under a contested election application by applying a...

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23 Dec

Viewing the Supreme Court of Canada’s decision in Callow through a compliance lens

Wednesday, December 23, 2020James R.G. Cook, Kenneth Jull, Jonathan James Nehmetallah, Ian SpiegelLitigationContract Law, Supreme Court of Canada, Compliance

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The Supreme Court of Canada released its decision in C.M. Callow Inc. v. Zollinger on December 18, 2020. This decision is ground-breaking in the world of contracts, and can...

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22 Dec

Seller Not Responsible for Zoning or Future Use Limitations of a Property

Tuesday, December 22, 2020James R.G. CookLitigation, Real EstateZoning By-Law, Agreement of Purchase and Sale, Ontario

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A recent decision of the Ontario Superior Court of Justice affirmed that preliminary discussions between a buyer and seller regarding the potential zoning or...

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21 Dec

Legal research and the duty to disclose relevant law

Monday, December 21, 2020Stephen A. ThieleLitigationRules of Professional Conduct, Research, Disciplinary Hearing, Ethics, Legal Research, Law Society of Ontario

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Legal research is important. In general, every legal issue requires some form of legal research because each legal issue is informed either by...

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15 Dec

To Conserve and Protect? Bill 229's Impact on Conservation Authorities

Tuesday, December 15, 2020Jonathan James NehmetallahLitigation, Municipal LawConservation Authorities Act, Bill 229: Protect, Support and Recover from COVID-19 Act (Budget Measures) 2020, LPAT: Local Planning Appeal Tribunal, Conservation Authority

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Ontario has 36 conservation authorities that act as community-based management agencies who undertake watershed-based programs to protect the community from...

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14 Dec

The frailties of online legal research: the words “and” and “or”

Monday, December 14, 2020Stephen A. ThieleLitigationResearch, COVID-19, Lexis Advance, Quicklaw, CanLII, NextCanada

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I have been a legal research lawyer for almost 30 years. When I started law school in 1987 the use of laptops to take notes in lectures was completely unknown. Our first year legal research and writing class was based... 

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14 Dec

Civil Conspiracy Established against Directors of Shell Company for Loss of Investment

Monday, December 14, 2020James R.G. CookLitigation, Civil LawOntario Court of Appeal , Fraud

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The Ontario Court of Appeal has confirmed that liability for civil conspiracy may arise from the “constructive intent” of a defendant to cause harm even if they are not in direct communication with the plaintiff during...

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11 Dec

Parent’s Claim to Recover Home Transferred to Daughter Dismissed

Friday, December 11, 2020James R.G. CookLitigation, Estate PlanningReal Estate, Wills, Trusts, Smith Falls

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Property is often transferred between family members without money exchanging hands. There are many reasons for doing so, including estate planning, assisting children with buying a home, removing property from...

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11 Dec

Can your boss force you to take the COVID-19 vaccine?

Friday, December 11, 2020Soma Ray-EllisLitigation, Employment LawCOVID-19, Employer, Employee, Employment Agreements, Ontario, Human Rights Code, Occupational Health and Safety Act

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If 2020 has felt like a horror movie, the COVID-19 vaccine is the highly anticipated final act. Now with the vaccine’s...

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9 Dec

Who is that guy? A lesson in the law of defamation

Wednesday, December 9, 2020Stephen A. ThieleLitigationDefamation, Supreme Court of Canada

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The law of defamation is about protecting a person’s reputation. Accordingly, as determined by the Supreme Court of Canada in the seminal case of...

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8 Dec

HBC’s Efforts to Withhold Rent Due to Landlords’ Failure to Maintain “First Class” Shopping Centres

Tuesday, December 8, 2020James R.G. CookLitigationCOVID-19, Retail Shopping, Commercial Landlord, Commercial Tenancies Act, HVAC

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During the COVID-19 pandemic, with consumers leery of indoor shopping and retailers being forced to keep their doors closed due to health...

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7 Dec

Ontario Court of Appeal Upholds Doctor’s Damages for Defamatory Postings on RateMDs.com

Monday, December 7, 2020James R.G. CookLitigationDefamation, Damages, Ontario Court of Appeal

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In response to a series of negative and untruthful online reviews, a medical doctor sued the author of the posts for defamation and was awarded...

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2 Dec

Misrepresentation in Square Footage leads to Rescission of Agreement of Purchase and Sale

Wednesday, December 2, 2020James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Stouffville, Ontario Court of Appeal , Misrepresentation

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A misrepresentation by the seller and real estate agent as to the square footage of a residential property in Stouffville, Ontario resulted in the rescission of the Agreement of Purchase and Sale... 

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30 Nov

Abandoned Use of Easement Leads to Loss of Backyard Parking Pad

Monday, November 30, 2020James R.G. CookLitigationToronto, Easement, Land Title Act, Conveyancing Law and Property Act , Real Estate

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In a densely populated city like Toronto, many older neighbourhoods contain tightly-packed homes separated by narrow easements which provide access to...

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27 Nov

Injunction to Remove Allegedly Defamatory Social Media Posts Dismissed

Friday, November 27, 2020James R.G. CookLitigationDefamation, Damages, Social Media, BLM Movement, Free Speech

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A recent case of the Ontario Superior Court of Justice illustrates the difficulties that a plaintiff may encounter when seeking to stop allegedly defamatory posts...

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12 Nov

Preparing for the ONCA

Thursday, November 12, 2020Clifford S. Goldfarb, James M. Parks, Heather KeachieNon-Profit and Charities, Corporate LawNot-for-profit Corporations Act (ONCA), Corporations Act, Ontario

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The Not-for-profit Corporations Act (Ontario) (ONCA) that we have been waiting for since 2010 is likely going to come into effect on January 1, 2021 or shortly thereafter. When it comes into effect...

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9 Nov

Dock Dispute leads to Nuisance Claim and $598,000 Costs Award

Monday, November 9, 2020James R.G. CookLitigation, Real EstateCottage Country, Ontario Court of Appeal , Damages, Ontario Ministry of Natural Resources and Forestry , Lake Simcoe, Boat Dock

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After years of litigation, a dispute between neighbours of waterfront properties on Lake Simcoe led to a mandatory order requiring the removal...

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6 Nov

Municipality Restrained from Interfering with Cottage Owners’ use of Fire-Pit Lands

Friday, November 6, 2020James R.G. CookLitigation, Real EstateCottage Country, Zoning By-Law, Georgian Bay, Fire-Pit

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Seasonal residents of cottage properties in Tiny Township obtained an injunction prohibiting the municipality from interfering with their use of disputed lands containing...

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5 Nov

Injunction to Stop Neighbour’s House Construction near Escarpment Dismissed

Thursday, November 5, 2020James R.G. CookLitigation, Municipal Law, Real EstateBuilding, Building Code Act, 1992, Conservation Authorities Act

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A property owner’s application for an injunction against his neighbour to stop construction of a property which he claimed was in contravention of municipal and conservation authority regulations was...

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2 Nov

Volunteer Coaches’ Defamation Claim Dismissed as Contrary to Public Interest

Monday, November 2, 2020James R.G. CookLitigationDefences, Ringette, Coaching, Defamation

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The Ontario Superior Court of Justice dismissed a defamation claim which arose from an email sent by parents of a competitive ringette player expressing their dissatisfaction with

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28 Oct

Injunction Granted to Hotel to Enforce Noise By-Law

Wednesday, October 28, 2020James R.G. CookLitigation, Municipal LawEnvironmental Protection Act, Municipal Act

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Potential harm to a hotel’s online reputation for providing a quiet night’s sleep may be sufficient grounds to obtain an injunction to restrain a noisy neighbour. In JJ’s Hospitality v. Kal Tire2020 ONSC 6198 (CanLII), a hotel in...

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27 Oct

Changes in Payment Model for Pharmacy Services Provided to Long-Term Care Home Residents

Tuesday, October 27, 2020Lad KucisLitigation, Health LawOntario Government, Retirement Homes , Pharmacy, Long-term Care Homes, Ministry of Health

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Effective January 1, 2020, the Government of Ontario announced significant changes to the way that pharmacies are paid for services provided to long-term care (LTC) home residents, as set out in...

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23 Oct

Discovery of Water Damage Insufficient to Terminate Real Estate Purchase Transaction

Friday, October 23, 2020James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Damages, Flooding, Insurance Policy

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In Bilotta v. Booth2020 ONCA 522, the Ontario Court of Appeal determined that the buyer of a residential property did not have the right to...

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21 Oct

Proposed Legislation Would Shield Retirement Homes and Long-Term Care Homes from COVID-19 Lawsuits

Wednesday, October 21, 2020Lad KucisLitigation, Health LawCOVID-19, Retirement Homes , Bill 218, Supporting Ontario’s Recovery Act, 2020

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On October 20, 2020, the Ontario Government introduced Bill 218, Supporting Ontario’s Recovery Act, 2020, which if passed, would...

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20 Oct

Real Estate Investor’s Claim for Lost Opportunity Damages Rejected

Tuesday, October 20, 2020James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Damages

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In Akelius Canada Inc. v. 2436196 Ontario Inc., 2020 ONSC 6182 (CanLII), the Ontario Superior Court of Justice...

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14 Oct

Caveat Emptor Applied to Alleged Basement Flooding Damage

Wednesday, October 14, 2020James R.G. CookLitigation, Real EstateFlooding, Termination, Damages

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In Giancola v. Dobrydnev, 2020 ONSC 6007 (CanLII), the Ontario Superior Court of Justice rejected a buyer’s attempt to...

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9 Oct

Township’s Prescriptive Easement Upheld by Court of Appeal

Friday, October 9, 2020James R.G. CookLitigation, Municipal LawOntario Court of Appeal , Land Title Act, Land Registry

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In Paleshi Motors Limited v. Woolwich (Township)2020 ONCA 625 (CanLII), the Ontario Court of Appeal affirmed that a Township had established a prescriptive easement over private lands for the...

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7 Oct

Partial shutdown of business does not preclude business interruption claim

Wednesday, October 7, 2020Stephen A. Thiele, James R.G. CookLitigation, Insurance ActCOVID-19, Business Interruption Loss Policy

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As we head into the seventh month of the artificial economic lockdown ordered by Canadian governments at all levels and brace ourselves for the second wave of the COVID-19 pandemic, businesses in multiple sectors continue to seek compensation from their...

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5 Oct

Ontario Court of Appeal Declines to Enforce “Building Scheme” Restrictions

Monday, October 5, 2020James R.G. CookLitigation, Real EstateOntario Court of Appeal , Development, Ontario, Restrictive Covenant, Land Title Act

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A recent decision of the Ontario Court of Appeal dismissed a developer’s attempt to enforce a “building scheme” restricting the construction of an...

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24 Sep

Real Estate Agent’s Defamation Claim Survives Anti-SLAPP Motion

Thursday, September 24, 2020James R.G. CookLitigation, Real EstateDefamation, Online Review, Anti-SLAPP Legislation

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In Niu v. Cao2020 ONSC 5407 (CanLII), an Ontario real estate agent was permitted to proceed with a defamation claim stemming from online postings maligning...

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21 Sep
14 Sep

Fence Dispute Leads to $70,000 Defamation Judgment

Monday, September 14, 2020James R.G. CookLitigation, Real EstateDefamation, Small Claims Court, Libel, Slander

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A dispute between two neighbours over a fence led to a $70,000 judgment against an online activist who posted defamatory comments about one of the...

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4 Sep

Lake access easements should be carefully scrutinized prior to purchase

Friday, September 4, 2020James R.G. CookLitigation, Real EstateCottage Country, Right-of-way Access , Lake Waseosa

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In a dispute not uncommon to Canadian cottage country, the Ontario Court of Appeal recently addressed whether the owner of a non-lakefront property...

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2 Sep

Buyer’s Claim for Lost Value Damages of a Residential Subdivision Home

Wednesday, September 2, 2020James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Contract Law, Damages

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The party seeking damages arising from a failed real estate transaction is often the seller, who seeks to recover the agreed-upon sale price from a buyer. Conversely, when a seller breaches the agreement...

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31 Aug

Unconscionability in Real Estate Transactions Post-Uber

Monday, August 31, 2020James R.G. CookLitigation, Real EstateIrrevocability Clause, Contract Law, Toronto

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In Forest Hill Homes (Cornell Rouge) Limited v. Wei2020 ONSC 5060 (CanLII), Justice F.L. Myers applied the Supreme Court of Canada’s recent review of the...

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17 Aug

Online Reviews, Freedom of Expression and Anti-SLAPP Legislation: 910938 Ontario Inc v Moore

Monday, August 17, 2020James R.G. CookLitigationComplaints, Defamation, Anti-SLAPP Legislation, Online Review

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Consider a time when you had a terrible customer service experience while shopping, going to the dentist, or grabbing a bite to eat with some friends. Perhaps you felt sufficiently motivated to post a negative...

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30 Jul

Opportunity for Increased Tax Savings from Income Splitting with a 1% Prescribed Rate Loan

Thursday, July 30, 2020Lindsay Ann HistropCorporate Law, Tax and Estate PlanningIncome Splitting, Tax Savings

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In this blog we will explain how you may be able to benefit from a 1% prescribed-rate loan to split income with certain family members who are taxed at a lower marginal rate.

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