Getting to know your inner ejusdem generis

With increasing frequency, one reads arguments by lawyers arguing their clients have a “strong” case or defence based on an interpretation of a contractual or statutory provision is so wrong, it is enough to make one weep.  Beyond the common complaint about the literacy of lawyers in their everyday correspondence or speech, the inexcusable lack of legal…

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Pleading the Blues in Franglais, before Ontario Courts

It took a week, but the court finally accepted their own prescribed form. Last week, I launched a motion on behalf of a francophone client. The bilingual registrar at the court house refused to accept the Notice of Motion because it did not employ a literal translation of the English text of the rule and court form. When my court clerk relayed my advice that the Notice employed the French version of the Ontario Rules of Civil Procedure, as well as the corresponding court form, the registrar still rejected it. Only after arming the clerk with the form from the Attorney General’s own website,…

Jaggers and the Law Society rule governing trust accounts

Fans of Charles Dickens’ novels will know that his lawyers are practitioners of an obscure art.  In that regard, they are plot devices, agents of change in the course of principal characters’ lives.  None is more iconic than Jaggers, or Mr. Jaggers, in Great Expectations.  The trustee of a sum of money left by an anonymous benefactor to the orphaned working-class boy Pip, Jaggers is instructed to disburse funds necessary to make Pip a gentleman.  The secret identity of the benefactor, not revealed until nearly the story’s end, is the source of a significant malentendu that drives Pip’s actions and character development. No one…

Early Lesson from the Duffy Trial: The Bar needs to focus, not wince at a “bright line” rule

Amid the media frenzy over the morality play unfolding in an Ottawa courtroom, the bar has a lesson to glean from the argument over the interaction between the Canadian Senate’s expense rules and the Criminal Code.  (“Blame the rules, not Mike Duffy, defence says“; “Mike Duffy trial: Defence to continue attack on vagueness of Senate rules.”) Mr. Duffy’s defence lawyer contends the Senate’s self-imposed rules permitted practices such as claiming housing expenses for property in the province of a senator’s appointment, even though the senator resided in another province most of the time.  The Crown argues strict observance of this expense rule, to satisfy a questionable…

What if … counsel had adduced better evidence? Deguise v. Montminy showed us the ‘What if’

Last July, in Deguise v. Montminy, 2014 QCCS 2672 the Québec Superior Court had occasion to revisit these issues from in Alie v. Bertrand & Frere Construction Co. Ltd., 2002 CanLII 31835, applying the Ontario Court of Appeal decision in that 2002 case to civil law concepts relating to allocation of responsibility among insurers in complex construction and property damage cases.  Many of the rulings in the decision were specific to Québec civil law. In one aspect, however, the case provided an opportunity to test the writer’s hypothesis that the Alie court called on parties and counsel to present expert…

Abolition of the 5% PJI rule in MVA cases, prospective or retroactive?

In the past weeks, have received numerous inquiries and feedback from the bar and the bench on my Gilbertson Davis LLP litigation blog post on s. 258.3(8.1) of the Insurance Act, regarding the abolition of the special 5% rule on prejudgment interest in motor vehicle tort actions.  Many colleagues in the civil defence bar have told me they have printed it out and used it as leverage at mediations and pretrial conferences.  The plaintiff bar has, as expected, argued the opposite, but the argument against retroactivity fails because the 5% rule has always been arbitrary.  It cannot be argued that 5% is…