From Civil Litigation

Let’s be honest about the SCC’s new ‘fair opportunity’ doctrine in contract law

On November 13, the Supreme Court in Bhasin v. Hrynew, 2014 SCC 71 (CanLII) changed the law of contract in Canada by imposing duties of good faith and honesty on all contractual relations.  Until now, the duties have been applied to agreements in situations of power imbalance, notably insurance, employment and franchises. The plaintiff, Mr. Bhasin, was a dealer in education savings plans, a type of consumer investment, offered by the corporate defendant. At the end of the three-year contract, the corporate defendant decided to invoke a notice provision blocking the automatic renewal of the contract.  The reason for its…

McMurtry Gardens

A day in court is a day in court, no matter your ability to pay for Access to Justice

The “blawgosphere” seems to have lit up this week with the release of Morland-Jones v. Taerk, a dispute between neighbours in the affluent Toronto, Canada, neighbourhood of Forest Hill.  Essentially, the Ontario Superior Court ruled that the case, an interlocutory injunction matter involving multiple allegations of trespass and invasion of privacy, should be dismissed because “there is no…

Is belief in law logical?

Many years ago, I agreed to act for an elder of the Celestial Church of Christ, a religious order based in Nigeria.  A member of his congregation had asked him to be a “character reference” on a bank loan.  It turned out to be a guarantee on a sub-prime mortgage.  To make a long story short, my client ended up on the hook for an amount equivalent to twice his annual gross family income, and he had an aggressive creditor after the mortgage company sold the debt on.  By the time he arrived in my office, the congregant had defaulted,…

Hryniak v. Mauldin: Which way has the #SCC swung the summary judgment pendulum?

The Ontario civil litigation bar will now be abuzz for a while with the Supreme Court of Canada’s decision in Hryniak v. Mauldin, released yesterday.  There was a clear departure from the Court of Appeal for Ontario’s 2011 decision in the decision in Combined Air Mechanical Services v. Flesch, whose “full appreciation” test has been seen in some quarters as an attempt to preserve the sanctity of the civil trial and a setback to the efficacy of the summary procedure.  The judgment of Justice Karakatsanis is steeped in the language of access to justice as the driving force for opening up summary judgment…

Moore v. Getahun: A ‘Glendower’ solution to stamp out manipulation of expert opinon

More often than not, referral of a legal problem to lawmakers, or to rules committees for broad consultation, is manifestly preferable to making up procedural law on the fly.  In the Ontario Superior Court decision released this week in Moore v. Getahun, 2014 ONSC 237 (CanLII), the trial judge issued an injunction against the practice of litigation counsel reviewing draft reports with expert witnesses. The relevant paragraphs from the ruling appear at paragraphs 50-52: [50]           For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty…

Unbundling as a law practice business model for litigation

Despite the splash that ‘unbundling’ made as a model for legal service delivery, it has largely been the domain of family law and small claims litigation.  As a business model, unbundling presents considerable challenges for the law practice.  My recent paper, Drawing Clear Boundaries: Unbundling Litigation Without Letting It All Hang Out, provides some do’s and don’ts of making limited-scope retainers work in a litigation practice.   Terms of use / Mentions légales

Why Civil Litigators Have to Keep Current on Criminal Law

In the privacy of mediation rooms, I often listen to assertions made by counsel about certain facts, such as soft-tissue injuries suffered in a car crash, and then I ask: How are you going to prove that? I may as well have asked a question about Heidegger’s thoughts on the revelation of reality.  The lack, most of the time, of a satisfactory answer to my question comes from the apocryphal nature of the rules of civil evidence in Canada, and from the dearth of actual trial experience among litigators called to the bar in the last 15 years. (la version française…

Inside the life of a reserved summary judgment

Some welcome editorial comments this week from Justice D. M. Brown, of the Superior Court of Ontario, in Western Larch Limited v. Di Poce Management Limited, 2012 ONSC 7014. Starting at para. 269 of the decision, the judge candidly describes the disproportionate time required to make rulings on complex summary judgment motions. In a nutshell, he takes aim at one area of judicial allocation, judgment writing time. He says the internal scheduling protocols should be updated to reflect the time needed to deal with summary judgments, which may take up little hearing time but deal with issues as complex as…

Beyond First Principles in Arbitration Practice

For many lawyers, barristers and solicitors, and corporate clients, commercial arbitration may seem like a parallel or alternate universe.  Not quite there.  Maybe not quite legal.  Certainly difficult to get past the initial ‘Take me to your leader’ moment with the denizens of the other world.  As a club of senior practitioners, the arbitral practice has some of the hallmarks of commercial litigation circa 1950.  It need not be that way. The truth about commercial arbitration is that, for the most part, we make it up as we go along.  New lawyers are probably better suited to navigate the various domestic…

Reading Insurance Law – Of Emperors and Clothes

We lawyers can sometimes adopt a herd mentality.  A senior lawyer or judge says something.  You go back and read the case.  You may be reluctant to voice your difference.  That’s how we, as a profession, can just get things wrong.  The example here comes from insurance law, but you can apply it to your area of expertise.