Many clients have smaller monetary disputes that initially may not seem worth the effort to enter into or continue with litigation. The practical realities are that such disputes soon eat up the legal budget. If it’s cheaper to pay than fight, you might as well pay or let it go. Is there an alternative? Ontario […]
Category Archives: Contract Disputes
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 […]
When is Legal Commitment Unconscionable?
Introduction It is extremely difficult to set aside an agreement or transaction based on the doctrine of unconscionability. The adjective itself means an action not guided by one’s conscience and is unscrupulous, or not in accordance with what is just or reasonable, that is excessive or extortionate. A legal commitment may end up being seen […]
Dependent Contractors, Exclusivity & Reasonable Notice
Introduction Contractors in law are distinct from employees. Employees are entitled to a reasonable period of notice if the relationship is terminated by the employer. This is an implied term of any contract of employment at common law. A contractor is usually considered as being independent meaning that they control their work, use their own […]
Rolling Limitation Periods in Contract Litigation
Introduction The usual rule is that once an event occurs which triggers a possible legal action, the limitation period in which to do so commences and runs from that occurrence. A rolling limitation period is one that resets as a result of a recurring obligation by the defendant. The issue is not whether the plaintiff […]
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 […]
Do Courts Have the Discretion to Override Arbitration Clauses?
Contracting parties normally have their remedy for breaches through the court process. However, they may agree in advance to have any differences that arise resolved through mandatory and binding arbitration. Section 7(1) of the Ontario Arbitration Act (the “Act“) allows a party of such an agreement, if the other commences a lawsuit, to apply to […]
Recent Uber Decision Revisits The Use of Arbitration Clauses
With Heller v. Uber Technologies Inc., the Ontario Court of Appeal (ONCA) kicked 2019 off with a decision that will likely have long-lasting implications beyond the parties involved. The case scrutinized an arbitration clause included in all agreements that Uber has with its drivers (who the company also claims are independent contractors, not employees). The ONCA ruled that […]
Market Pressures on Contractual Obligations
We have all envied, or maybe abhorred, the skilled professional athlete who suddenly demands, and receives a contract enhancement or extension. The impetus is often some other similar athlete being awarded an extravagant sum in contractual negotiations which alters the fair market value of the contracts in that sport. Well, if it works in professional […]