Blog
Blog
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
Ice hockey is governed by rules which penalize certain physical infractions, including cross-checking, fighting, hitting from behind, and...
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AODA requirements for Websites
Monday, July 19, 2021Eliane Leal da SilvaCorporate LawAccessibility for Ontarians with Disabilities Act , AODA
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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Wrong for City Councillor to have entered residential properties without permission
Tuesday, July 13, 2021Stephen A. ThieleLitigationPolitical Law, City Councillors, Integrity Complaints
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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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
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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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
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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Claim for online research costs rejected in Ontario commercial proceeding
Monday, July 5, 2021Stephen A. ThieleLitigationLegal Research, Costs
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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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
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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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
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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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
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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Environmental injunctions need not pass the flagrant breach threshold
Monday, June 28, 2021James R.G. Cook, Kenneth JullLitigationConservation Authorities Act
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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Court refuses to hear dispute over requisitions due to self-induced urgency
Friday, June 25, 2021James R.G. CookLitigation, Real EstateVendors and Purchasers Act
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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Tribunal’s independent legal research not procedurally unfair
Thursday, June 24, 2021Stephen A. ThieleLitigationLegal Research, Orders and Judgments, Procedural Fairness
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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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
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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Zak Sabbath’s defamation claim allowed to continue against Mandy Morbid
Friday, June 18, 2021James R.G. CookLitigationSocial Media, Facebook, Defamation, SLAPP, Libel
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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“Business common sense” determines winner of commission dispute
Wednesday, June 16, 2021James R.G. CookLitigationReal Estate, Commercial Real Estate , Buyer’s Representation Agreement
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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Late document disclosure may cause trial delays, adjournments, and dismissals
Tuesday, June 15, 2021James R.G. CookLitigationRules of Civil Procedure, Ontario Evidence Act
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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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
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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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
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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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
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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Ontario third party advertising provisions held to be unconstitutional
Thursday, June 10, 2021Stephen A. ThieleLitigation, Political Law, Election LawConstitutionality, Third Party Advertising
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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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
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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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
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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A Judge’s Duty is to Judge
Monday, June 7, 2021Stephen A. ThieleLitigationLegal Research, Rules of Civil Procedure
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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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
In R. v. Trought, 2021 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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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
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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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
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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Who gets the dog? Court endorses broader ownership considerations for pets
Wednesday, June 2, 2021James R.G. CookLitigationPet Ownership, Family Pets
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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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
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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Administrative Monetary Penalties in the Afterlife
Monday, May 31, 2021Kenneth JullLitigation, Bankruptcy and InsolvencyBankruptcy, Bankruptcy and Insolvency Act, Administrative Monetary Penalty
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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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
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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92-year old minority shareholder obtains oppression remedy
Thursday, May 27, 2021James R.G. CookLitigationShareholders’ Agreement, Courts of Justice Act, Ontario Business Corporations Act
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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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
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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Snow washing is now more difficult in Canada, but at what cost?
Wednesday, May 26, 2021Kenneth Jull, Ian SpiegelLitigationSnow Washing, Money Laundering
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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Summary judgment denied over defamatory TV show first aired in Pakistan
Tuesday, May 25, 2021Stephen A. ThieleLitigationTorts, Defamation, Summary Judgment, Libel, Slander
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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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
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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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
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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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
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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Nova Scotia court prevents anti-masking protest from happening
Thursday, May 20, 2021Stephen A. ThieleLitigation, InjunctionsCOVID-19, Remedies
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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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
“There is no such thing as negligence in the abstract,” notes Regional Senior Justice Calum MacLeod in Maisonneuve v. Langlois,...
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$500,000 in damages awarded for comments about yellow Ferrari’s ownership
Friday, May 14, 2021Stephen A. ThieleLitigationDefamation, Damages, Torts
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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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
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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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
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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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
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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Injunction granted to stop defamatory posts published on Instagram
Friday, April 30, 2021Stephen A. ThieleLitigationDefamation, Torts, Injunction
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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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)
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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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
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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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
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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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
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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Recovering Online Legal Research Disbursements
Wednesday, April 21, 2021Stephen A. ThieleLitigationLegal Research, Disbursements
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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Full Names of Parties Now Published in HPARB Complaint Review Decisions
Tuesday, April 13, 2021Lad KucisLitigation, Health LawHealthcare, Disciplinary Hearing
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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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
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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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
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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Business founder obtains oppression remedy against investors
Thursday, April 8, 2021James R.G. CookLitigationCorporations Act, Corporate Law, Oppression Remedy
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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Owner of corporation personally liable for litigation misfeasance
Wednesday, April 7, 2021James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Personal Liability, Ontario
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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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
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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Buyers not allowed to terminate purchase due to size misdescription or building permit concerns
Monday, April 5, 2021James R.G. CookLitigationReal Estate, Mississauga, Renovations
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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Gratuitous Defamatory Tweets About Plaintiff Not Protected as a Matter of Public Interest
Monday, April 5, 2021Stephen A. ThieleLitigationTorts, Defamation, SLAPP, Pre-trial Disposition
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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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
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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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
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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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
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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Buyers’ liability to sellers in aborted real estate closings - Part 1
Friday, March 26, 2021James R.G. CookLitigation, Real EstatePlanning Act, Summary Judgment
“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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Motion to enjoin hotel quarantine law denied
Wednesday, March 24, 2021Stephen A. ThieleLitigation, Constitutional Law, Charter of Rights and FreedomsCOVID-19, Interim Injunction
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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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
Some municipal zoning restrictions are intended to address local planning needs for commercial and residential purposes, while other...
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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
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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A Victory for Freedom of Speech
Monday, March 15, 2021Stephen A. ThieleLitigationFreedom of Expression, Political Law, Canadian Charter of Rights and Freedoms
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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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
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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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
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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Hockey tournament dispute leads to shareholder oppression remedy
Wednesday, March 10, 2021James R.G. CookLitigationHockey, Corporations Act
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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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
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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Correcting some misconceptions about online legal research costs
Monday, March 8, 2021Stephen A. ThieleLitigationLegal Research, Costs, Online Searches
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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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
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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Defaming a professional can be costly
Wednesday, March 3, 2021Stephen A. ThieleLitigationDefamation, Advertising, Alberta, Alberta Dental Association
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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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
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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Reputation can be everything
Thursday, February 25, 2021Stephen A. ThieleLitigationDefamation
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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“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
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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God’s law is not supraconstitutional
Monday, February 22, 2021Stephen A. ThieleLitigationGod's Law, Bible
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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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
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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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
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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You can’t play dress up with a defamation action
Thursday, February 18, 2021Stephen A. ThieleLitigationDefamation, Slander
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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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
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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Legal research in costs awards
Tuesday, February 16, 2021Stephen A. ThieleLitigationCivil Litigation, Legal Research, Costs
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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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
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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Defamation Judgment Upheld Against Pseudonymous Online Poster
Wednesday, February 10, 2021James R.G. CookLitigationDefamation
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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Criminal proceedings and the civil defamation claim: A limitation period lesson
Friday, February 5, 2021Stephen A. ThieleLitigationDefamation, Limitations Act, Ontario Court of Appeal
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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Disgorgement of profits could be a potential remedy in a defamation action
Tuesday, February 2, 2021Stephen A. ThieleLitigationDefamation, British Columbia, Damages
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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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
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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Internet Harassment Tort Recognized by Ontario Superior Court of Justice
Monday, February 1, 2021James R.G. CookLitigationDefamation, Harassment, Torts, Cyber-stalking
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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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
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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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
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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Patrick Brown takes down insurance company
Wednesday, January 27, 2021Stephen A. ThieleLitigationDefamation, Political Law, Insurance Law
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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Defamation claim against Twitter allowed to proceed in British Columbia
Tuesday, January 26, 2021James R.G. CookLitigationDefamation, British Columbia, Twitter
When defamatory statements are alleged to have been transmitted internationally via social media, the question of where to start a...
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Defamation suit surrounding BC’s foreign buyer tax is dismissed
Monday, January 25, 2021Stephen A. ThieleLitigationTorts, Defences, Defamation, Political Law
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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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
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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Plaintiffs who started debate on matters of public interest have defamation claim dismissed
Wednesday, January 20, 2021Stephen A. ThieleLitigationDefamation, Defences
Vigorous and passionate debate over matters of public interest are the lifeblood of democracy because it is often...
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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
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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Home Owners Ordered to Remove Pool built over Municipal Easement
Friday, January 15, 2021James R.G. Cook, Jonathan James NehmetallahLitigation, Real EstateMunicipal Act, Easement
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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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
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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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
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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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
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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Former Agriculture Minister Not Required to Testify
Friday, January 8, 2021Stephen A. ThieleLitigationCivil Litigation, Evidence, Witnesses, Political Law, Interprovincial Summonses Act
Despite courts moving to electronic hearings whereby theoretically a witness could appear virtually from anywhere...
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Freelance Consultants Not Bound by Non-Competition Agreement
Friday, January 8, 2021James R.G. CookLitigation, Employment LawCivil Procedure, Trial Procedure, Non-Compete, Contract Law
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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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
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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Court Prohibits Competing Restaurant Business from Opening
Wednesday, December 30, 2020James R.G. CookLitigationNon-Compete, Restaurant, Interlocutory Injunction , Ottawa, Shareholders’ Agreement
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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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
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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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
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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Election law’s substantive approach applies to judicial recounts
Thursday, December 24, 2020Stephen A. ThieleLitigation, Election Law, Public Law, Political Law
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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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
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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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
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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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
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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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
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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The frailties of online legal research: the words “and” and “or”
Monday, December 14, 2020Stephen A. ThieleLitigationResearch, COVID-19, Lexis Advance, Quicklaw, CanLII, NextCanada
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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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
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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Parent’s Claim to Recover Home Transferred to Daughter Dismissed
Friday, December 11, 2020James R.G. CookLitigation, Estate PlanningReal Estate, Wills, Trusts, Smith Falls
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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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
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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Who is that guy? A lesson in the law of defamation
Wednesday, December 9, 2020Stephen A. ThieleLitigationDefamation, Supreme Court of Canada
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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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
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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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
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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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
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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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
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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Injunction to Remove Allegedly Defamatory Social Media Posts Dismissed
Friday, November 27, 2020James R.G. CookLitigationDefamation, Damages, Social Media, BLM Movement, Free Speech
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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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
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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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
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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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
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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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
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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Volunteer Coaches’ Defamation Claim Dismissed as Contrary to Public Interest
Monday, November 2, 2020James R.G. CookLitigationDefences, Ringette, Coaching, Defamation
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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Injunction Granted to Hotel to Enforce Noise By-Law
Wednesday, October 28, 2020James R.G. CookLitigation, Municipal LawEnvironmental Protection Act, Municipal Act
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 Tire, 2020 ONSC 6198 (CanLII), a hotel in...
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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
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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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
In Bilotta v. Booth, 2020 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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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
On October 20, 2020, the Ontario Government introduced Bill 218, Supporting Ontario’s Recovery Act, 2020, which if passed, would...
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Real Estate Investor’s Claim for Lost Opportunity Damages Rejected
Tuesday, October 20, 2020James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Damages
In Akelius Canada Inc. v. 2436196 Ontario Inc., 2020 ONSC 6182 (CanLII), the Ontario Superior Court of Justice...
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Caveat Emptor Applied to Alleged Basement Flooding Damage
Wednesday, October 14, 2020James R.G. CookLitigation, Real EstateFlooding, Termination, Damages
In Giancola v. Dobrydnev, 2020 ONSC 6007 (CanLII), the Ontario Superior Court of Justice rejected a buyer’s attempt to...
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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
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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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
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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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
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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Real Estate Agent’s Defamation Claim Survives Anti-SLAPP Motion
Thursday, September 24, 2020James R.G. CookLitigation, Real EstateDefamation, Online Review, Anti-SLAPP Legislation
In Niu v. Cao, 2020 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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Business Interruption Insurance in the Time of COVID-19: Some Recent Judicial Consideration
Monday, September 21, 2020Stephen A. Thiele, James R.G. CookLitigation, Bankruptcy and Insolvency, Insolvency law, Insurance ActCOVID-19, Ontario, Business Interruption Loss Policy, Ontario Business Loss Coverage Litigation, Prevention of Access Clauses , Disease Clauses, Financial Conduct Authority
The COVID-19 pandemic has caused a significant slowdown in many sectors of the economy, forcing businesses to either seek creditor protection or...
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Fence Dispute Leads to $70,000 Defamation Judgment
Monday, September 14, 2020James R.G. CookLitigation, Real EstateDefamation, Small Claims Court, Libel, Slander
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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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
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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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
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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Unconscionability in Real Estate Transactions Post-Uber
Monday, August 31, 2020James R.G. CookLitigation, Real EstateIrrevocability Clause, Contract Law, Toronto
In Forest Hill Homes (Cornell Rouge) Limited v. Wei, 2020 ONSC 5060 (CanLII), Justice F.L. Myers applied the Supreme Court of Canada’s recent review of the...
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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
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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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
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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