What is a Default Judgment? A default judgment is often granted in favour of a plaintiff when the defendant, although served, either fails to appear in court or respond to a claim within the predetermined time limit. Can a Party Successfully Have it Set Aside? Setting aside a default judgment is a discretionary remedy based […]
Category Archives: Appellate Litigation
Verbal Terms Cannot Contradict the Written Contract
Introduction We all say we know the consequences of signing a legal document. We would say it means that we have entered into a binding contract according to its terms. This is so whether we have read the terms or not. Yes, there may be defences available such as a non est factum (not my […]
The Northern Picasso and a Sale by Description
Introduction The deceased Anishinaabe visual artist Norval Morriseau was the founder of the Woodfield school of painting and became known as the Northern Picasso. He is perhaps the best known Indigenous Canadian artist of his time. The case below centres on one of his paintings, entitled “Spirit Energy of Mother Earth”, that claims to be […]
The Doctrine of Deferred Indefeasibility in Land Transactions
Introduction Cases involving two innocent parties involved in litigation after a fraudster has played and deceived them both are especially difficult. Each blameless party is now faced with a win-all or lose-all situation. This blog will look specifically at cases of this sort involving land, and how the doctrine of “deferred indefeasibility” comes into play. […]
Is There a Duty to Speak Up About Adverse Case Law?
Introduction A lawyer citing case law before an adjudicative body does so to provide authority to the adjudicator in support of their client’s position. An adjudicative body includes administrative tribunals as well as the courts. Case law can be binding or simply persuasive. Both types require relevance, meaning they must speak to the same issue […]
Pierringer Settlements Update
Introduction In two previous blogs, we have discussed both Mary Carter and Pierringer settlements. This blog provides an update on recent developments on the impact and effect of Pierringer settlements following Alberta’s Court of Appeal (ABCA) decision in Canadian Natural Resources Limited v. Wood Group Mustang. Although the decision is not binding in Ontario, it […]
Unjust Enrichment by Wrongdoing & Waiver of Tort
Introduction The meaning of the term “waiver of tort” is by no means clear. At its strongest, it has been described as an independent cause of action that does not require the plaintiff to prove any damage suffered by them as a result of the wrongful conduct of the defendant. The remedy would be disgorgement […]
When will the Courts Hear a Moot Case or Appeal?
Introduction What happens to a lawsuit or an appeal when the issues in dispute are superseded or resolved by extraneous events? The proceeding becomes “moot” as a result of losing its practical significance. The legal outcome has been decided not by the court in question but by the incidental happenings. As a result, the court […]
Anticipatory Breach of Contract and the Limitations Act
Introduction An anticipatory breach of contract occurs where one party to a contract expresses, or it becomes clear by the circumstances, that they are not going to perform on the due date. The innocent party may accept the repudiation when it occurs and seek damages, or instead, wait until the performance was contractually due and […]
Considerations Regarding Partial Summary Judgments
Introduction Rule 20.01 of the Ontario Rules of Civil Procedure sets out the procedure to follow when any party feels they have a good case for summary judgment. The Rule contemplates such motions being brought to resolve all, or only one part, of the claim or defence. The question that arises is when is the […]