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Often times, in the event of a failure to close in a real estate transaction, liability can turn on tendering. In essence, tendering serves as evidence of a party’s readiness, willingness and ability to close. Put differently, where a real estate transaction falls through, the party claiming repudiation of the contract can use their tendering…

Where a borrower does not take any action as the mortgage term approaches its maturity date and the balance has yet to be paid, the mortgage may either renew automatically or go into arrears. In order for a mortgage to be renewed automatically, (i) the lender must be willing to renew; and (ii) the borrower…

Academic misconduct may be construed as any behaviour, intentional or otherwise, that gives a student (or assists another student) in attaining an unearned or unfair advantage in academic work over other students. Examples of academic misconduct where students may find themselves before the university’s disciplinary review board may include: Disciplinary procedures within an academic institution…

Where an employee is wrongfully dismissed, they have an obligation to mitigate their losses by finding comparable employment. The Ontario Court of Appeal provided further insight into what this duty entails in the decision of Merida Lake v La Presse Inc (2022). In that case, a 52-year-old employee had worked for a French language newspaper…

An employer has an obligation not to prevent an employee from claiming coverage to disability benefits. In Egan v Alcatel Canada Inc (2006), the employee was denied long term disability benefits as her employer had cancelled her insurance coverage prior to the expiration of the reasonable notice period. The trial judge had held that, given…

What are an insurance company’s obligations when handling their client’s claims? For one, an insurance company has a duty of good faith, which amounts to acting fairly and promptly in investigating and assessing the claim, as well as in deciding whether or not to pay the claim. There is no hard or fast rule, but…

The Construction Act protects the supply of goods and services within a construction contract pyramid through liens, which arise as soon as there is a contract for work in bettering land. The Act applies when the following events occurred after July 1, 2018: the prime contract was entered into; the procurement process for the improvement…

An agreement of purchase and sale is a binding contract. However, in many instances, a purchaser may be unable to close on the agreement and will be forced to default. These reasons may include lack of financing, or falling market prices that it had not accounted for. When a buyer fails to close, they are…

Real estate agents can be held liable for damages under the common law if they are negligent in the performance of their duties. Some examples of negligence include: Failing to point out an ambiguity in the agreement to their client; Placing themselves in a conflict of interest; Failing to obtain security for the vendor’s warranty;…

Have you been injured while taking an airplane? The airline company may be liable for damages. International law dictates that, depending on where the airplane was at the time of your injury, a different test applies to establish liability. If you were on a domestic flight, negligence must be established under common law principles. Essentially,…

Door-to-door scams have been on the rise in Ontario, according to data from the Canada Anti-Fraud Agency and the FSRA. These occur where a representative, generally from an unknown company, attends an individual’s home unsolicited. These representatives target vulnerable populations and compel them to sign agreements that are highly one-sided, but are falsely held out…

Wrongful dismissal occurs where an employee is terminated without just cause, and without reasonable notice. An entitlement to reasonable notice is implied in all contracts of employment. If an employee was wrongfully terminated, they may have claim for the amount of reasonable notice. This is assessed based on the following factors: the character of their…

Ontario riders or passengers on public transportation are often mislead to believe that compensation for injuries sustained by riding a public transit vehicle such as TTC is limited to there being a collision. As of 2011, the “no crash, no cash” rule comes from section 268(1.1) of the Insurance Act which prevents injured passengers from…

In a recent blog post[1] shared on Shopify’s website by its CEO, Tobias Lütke, Shopify announced that it would be laying off 10% of its workforce by the end of the day. Those affected will get “16 weeks of severance pay, plus an additional week for every year of tenure at Shopify”. Layoff is illegal…

Some people experience COVID-19 symptoms long after the average time period. It has been reported that some continue to experience symptoms more than 12 weeks after getting COVID-19. This is called “long COVID” or “COVID Long haulers”. It refers to the longer-term effects some people experience after their initial infection. For adults, these symptoms can…

If you purchased a home and later found an issue that was intentionally hidden from you by the seller, you could receive compensation for that misrepresentation. The general rule is “buyer beware” in that a seller has no obligation to disclose a patent defect, meaning a defect that is discoverable upon a reasonable inspection.  However,…

What are my options if I was attacked by a dog? Were you bitten by a dog and sustained injuries? In Ontario, if a dog bites or attacks you, the dog’s owner is responsible for any harm or injury resulting from the attack. The Dog Owners’ Liability Act imposes strict liability on the owners of…

In the employment context, the duty to mitigate is a duty on the employee to take reasonable efforts to secure comparable alternative employment after termination. A wronged employee is entitled to recover damages for the losses she/he has suffered but the extent of those losses may depend upon whether they have taken reasonable steps to…

If you default on your mortgage, the lender acquires certain rights in order to help them recover the money they loaned you. Subject to certain requirements, a lender has the right to sell your property, through power of sale proceedings. A lender can also foreclose on your property. However, in some circumstances, you can take…

If you are involved in a car accident, depending on the nature of your injuries, a number of benefits may be available from your insurer. The following outlines the different benefits available: Income Replacement Benefits (IRBs) Eligibility You were employed at the time of the car accident, and within 104 weeks after the accident, as…

If you are injured in a car accident caused by someone else’s negligence, you could receive compensation, called damages, for the injuries sustained. There are different types of damages available, including general damages and special damages. General Damages General damages are meant to compensate for non-pecuniary losses, such as pain and suffering, loss of life…

If an employer unilaterally reduces your pay or reduces your hours worked, it may constitute constructive dismissal where such a reduction is to an extent that it fundamentally changes the employment relationship. Whether a reduction in pay or work hours fundamentally changes an employment relationship depends on the specific facts. However, courts have found that…

The Courts of Ontario have yet to provide a definite answer to this question.  However, there are viable legal arguments that support that an employer who terminates an employee, solely for their vaccine status, may not be able to do so “with cause” and consequently avoid providing statutory and common law reasonable notice of termination.…

Constructive dismissal occurs when an employer unilaterally makes a significant change to a fundamental condition of an employee’s employment. Even though the employer does not expressly terminate the employee, the employee is entitled to treat their employment as terminated. The departure of the employee will be considered a termination, rather than a resignation. An employee…

Two recent court cases have discussed the implications of COVID-19 on reasonable notice periods for employees that are terminated without cause.   In Snider v Reotech Construction Ltd. (2021) the Court found that the employee was entitled to an extended reasonable notice period due to the pandemic. The employee in the case was terminated without…

In a recent Federal Court of Appeal decision, Blue v Canada (Attorney General), 2021, the Court clarified when a person is incapable of applying for Canada Pension Plan Disability benefits. The Claimant, Cate Blue, suffered from several psychological conditions that prevented her from working. In May 2016, Ms. Blue applied for Canada Pension Plan Disability…

Mortgage default occurs when a borrower breaches one or more terms of their mortgage agreement. For example, default occurs where a borrower fails to make a stipulated mortgage payment. When a borrower defaults, a lender has a right to certain enforcement mechanisms to facilitate their recovery of the amount of money they loaned, as well…

If you have a mental health illness, such as anxiety, depression, or PTSD, that prevents you from doing your job, you may be entitled to Long Term Disability (LTD) benefits. LTD benefits provide replacement income if you become disabled and can no longer work. It typically replaces between 60 to 85% of your pre-disability income.…

You are entitled to common law severance if you are terminated without cause, even if you do not have a written employment agreement. All employees are entitled to common law severance, unless there is an enforceable clause in their employment contract that stipulates that they are not entitled to common law notice. Common law severance…

Layoff is illegal in most circumstances. If your employer has temporarily laid you off, you may have a claim against your employer for monetary compensation or what is referred to as severance. In Martellaci v CFC/INX Ltd., the Court noted that if an employer puts an employee’s employment status on hold (as is the case…

In May 2020, in response to the ongoing COVID-19 pandemic, the Ontario government introduced O:Reg. 228/20: Infectious Disease Emergency Leave (the “IDEL”), a regulation under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”). The IDEL provides that during the “COVID-19 period” (March 1, 2020 to January 1, 2022), non-unionized employees whose hours…

What do I do now that my Canada Pension Plan disability (CPP-D) benefits application has been denied? How can I successfully obtain CPP-D benefits? These are common questions, which we have heard from a number of clients, who have come to us with respect to their CPP-D benefits applications. What are CPP-D BENEFITS? The CPP-D…

Riccio v Canada (Attorney General), 2021 FCA 108 On May 27, 2021, the Federal Court of Appeal (FCA) judicially reviewed a decision of the Social Security Tribunal (SST) Appeal Division, which had denied Canada Pension Plan disability (CPP-D) benefits to the Applicant, Mr. Riccio. Following the seminal case, Villani v Canada (AG), the Federal Court…

It is often said that litigants only get one kick at the can and cannot try again later with a better pair of boots. The doctrine of functus officio operates to effectively impose the same restraint on judges. As a general rule, once a judge has rendered a final decision, she is barred from reopening,…

For all its strengths, our adversary system has its shortcomings. Since the parties control the presentation of their case, if a fact or law is not in a party’s interest to bring up, the judge may never hear of it, however relevant it may be. To overcome this shortcoming, the court can, in exceptional circumstances,…

Like American politics, the legal profession has suffered a decline in civility. In the heat of a hard-fought trial, “my friend” is treated more like a foe. Words traded verge on the rude and crude. Unlike politicians, lawyers are bound, as a matter of professional obligation, to be courteous and civil. At the same time,…

An evidence revolution has been afoot for some years with the gradual ascendancy of a principled approach to admissibility in favour of the traditional rules-and-exceptions approach. Marking the latest milestone in the revolution is the new analytical framework for admitting prior consistent statements articulated by Justice David Doherty in R. v. Khan. Revamping the Law…

Charitable giving has a long and honourable tradition, as the names of many university buildings and hospital wings attest. Ryerson’s Ted Rogers School of Management is a tribute to its namesake, whose family has donated over $27 million to the university. Earlier this year, the main campus of Toronto Ease General was rechristened Michael Garron…

Over a century ago, without his knowing it, legendary jurist Oliver Wendell Holmes spawned the case for judicial diversity in ten words: “the life of the law is not logic, but experience.” Bursting from these words is a truth we have known all along. Legal issues often pose uneasy choices. In choosing whose stories to…

It was meant to be an opportunity to clear the air, but the Supreme Court of Canada’s decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 only added to the humidity when it comes to the standard of review in contractual interpretation cases. Ledcor is Unlikely to Settle the Dust Law Times…

One in three adolescent students in Canada have been bullied recently. Physical fighting has increased since 2002, with 21 per cent of grade six boys reported participating in a fight in the past 12 months back then, compared with 24 per cent in 2010. With the growing popularity of social media, cyber-bullying has also been…

Corporate law is by and large built on a legal fiction: the fiction of the corporation as an entity separate from its shareholders, directors and officers. This conferral of separate identity allows corporations to operate as people by owning properties, entering into contracts, suing and being sued. Lifting the Corporate Veil a Rare Occurrence The…

Zachary Silverberg Drivers whose licenses have been suspended due to unpaid judgment debts arising from motor vehicle accidents, who go on to file for bankruptcy after the judgment, may have their licenses reinstated after their discharge from bankruptcy. Legislative and Constitutional Background Section 198 of Ontario’s Highway Traffic Act (HTA) mandates that the driver’s license…

All frauds involve breaching people’s trust. More often than not, sophisticated frauds are enabled by individuals and entities with varying degrees of connection to the fraudsters, such as banks, directors of corporate trustees, brokers, accountants and lawyers. Proving Third Party Liability in Fraud The Lawyers Weekly – July 17 2015

An issue that transpires on every civil appeal is the applicable standard of review. The standard of review is important because it dictates the level of deference the appellate court is to show. Law Times, June 29, 2015 Speaker’s Corner: Time to revisit Sattva on the standard of review?

The lawyers and staff of LMK congratulate their friend and colleague on this most prestigious and well deserved award! The Catzman Award for Professionalism & Civility The Catzman Award was created in 2008 by the Catzman family, together with The Advocates’ Society and the Chief Justice of Ontario’s Advisory Committee on Professionalism, in memory of…

This past December’s round of judicial appointments by Justice Minister Peter MacKay has put the issue of judicial diversity squarely back in the spotlight. Law Times, February 2, 2015 Speaker’s Corner: Why judicial diversity matters

The N.W.T. Court of Appeal has upheld a 2013 ruling that found Bell Mobility liable after charging customers in the territories for 911 services not available in their communities. Since around 2004, Bell Mobility charged all customers in N.W.T., Nunavut and Yukon the same 75 cents a month for 911 service it charged its customers…

Bell Mobility Inc. has lost an appeal of a class-action judgment that found the company liable to thousands of cellphone subscribers in Canada’s three northern territories over fees for non-existent 911 services. The Northwest Territories Court of Appeal concluded that the trial judge, who presided over what was the territory’s first class-action lawsuit to go…

The amount of time people are spending online, particularly on social networking sites, has important ramifications for family law litigation. The Lawyers Weekly, November 14, 2014 Social Media Increasingly Relevant to Litigation

Temporary work has become the new reality for many Canadians. According to Statistics Canada, as of May this year 2.1 million individuals were employed in jobs with predetermined end dates. Since the recession, temporary employment has grown three times faster than permanent work. The Lawyers Weekly, July 11, 2014 Explicit Language Needed for Fixed-term Contracts

Have you received a status notice recently? Rumour has it the Ontario Superior Court may be considering doing away with status notices due in part to its inconsistent implementation throughout the province. For non-litigators, a status notice is a form issued by the court advising that it will dismiss the matter unless the parties do…

One of the things lawyers look forward to least, short of having the their fees wholly ignored and unpaid, is having their fees challenged by clients. Ontario’s Solicitors Act sets out a process for a lawyer’s account to be assessed by an assessment officer of the Superior Court of Justice. Section 3 entitles a client…

As Supreme Court Chief Justice Beverley McLachlin and former Ontario chief justice Warren Winkler have famously lamented, the costs of going to trial pose a great disincentive to access to justice for many civil litigants. According to the 2013 Canadian Lawyer legal fees survey, the cost of taking a civil action through to a two-day…

Lying close to the top of the litigator’s toolbox is a familiar, well-used instrument: the injunction. Injunctions have been sought and issued in wide-ranging circumstances, including in property litigation, commercial actions, IP infringement proceedings, labour disputes, and in cases of public proteses. They have been used to assist in preserving evidence (Anton Piller order, a.k.a.…

Do you see yourself reflected in the Canadian judiciary? For many in our increasingly diverse society and profession, the answer is “no”. There is a glaring gap of diversity among our judges. According to a 2012 study by Ryerson University’s Diversity Institute, only 2.3 percent of federally appointed judges (i.e., on provincial superior and appellate…

Anna Wong As we approach the eighth anniversary of the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) and the fifth anniversary of our revamped human rights system, we reflect on the interplay between the AODA and the Human Rights Code (HRC). JUST. Magazine, April 2013 The AODA and Human Rights Code: Do You Know…

Who gets the ring when the engagement is ended? Three possibilities to consider. These days, engagement rings come in a dazzling array of shapes, sizes, and colours, from the blue sapphire presented to Kate Middleton to the emerald-cut diamond worn by Angelina Jolie. Unfortunately, an engagement does not always end with a trip down the…

The last few years bore witness to a number of significant changes at Legal Aid Ontario (LAO). As part of its modernization plan, in 2009-2010, LAO closed its network of 51 legal aid application offices and moved to a new service delivery model that focuses on services from 56 courthouse locations, call centre and Internet-based…

Commercial contracts are not created in a vacuum. In the event of a dispute, can parties adduce evidence outside the “four corners” of the document (e.g. prior drafts, negotiations) to support their interpretation? As a starting point, the goal of every interpretative exercise is to determine objectively the intention of the parties at the time…

With budgets as tight as skinny jeans these days, many organizations may find it a burden to set aside resources to better accommodate workers and customers with disabilities. But an economic case can be made for such an initiative: the disability market — currently, about 4.4 million Canadians and expected to grow as the population…

Anna Wong & Sam Marr The recent recession has spawned an unprecedented spike in personal bankruptcy filings. According to figures from the Office of the Superintendent of Bankruptcy Canada, personal bankruptcies hit a record high of 116,381 in 2009, falling slightly in 2010. A question for those in the construction industry is this: Does liability…