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Amy Archer

The risk of self-incrimination in cross-border disputes: The use of Canadian discovery evidence in U.S. criminal/regulatory proceedings – Part I

A common scenario in which the privilege against self-incrimination is threatened occurs when a person is party to criminal or regulatory proceedings in the United States (U.S.) and civil litigation in Canada…more

Canada, Cross-Border, Fifth Amendment, Self-Incrimination

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Lianne J. Armstrong

Buyers Beware When Purchasing a Home

When purchasing a home, the purchaser should be aware that the doctrine of “Caveat Emptor” or “let the buyer beware” generally applies to the sale of a property. The purchaser has an obligation to inspect the property and to…more

Buyers, Defect, Duty to Disclose, Latent Defects, Property Owners

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Jennifer Barlow

Facebook Posts Breached Confidentiality Agreement

The decision of the Human Rights Tribunal of Ontario (“HRTO”) in Tremblay v. 1168531 Ontario Inc. serves as yet another reminder that Facebook postings can have significant consequences. It is also the first decision before the…more

Canada, Confidentiality Agreements, Facebook, Settlement

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Maia L. Bent

Amendments to the Statutory Accident Benefits Schedule Effective February 1, 2014

On December 17, 2013, the government published Ontario Regulation 347/13, amending the Statutory Accident Benefits Schedule. This Regulation comes into force on February 1, 2014. The changes will affect attendant care,…more

Canada, Healthcare, Statutory Accident Benefits

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Rivka Birkan-Bradley

The Supreme Court Holds that Preferability May Hinge on Substantive Access to Justice

In AIC Limited v. Fisher, 2013 SCC 69, the Supreme Court of Canada ruled on what makes a class action a preferable procedure under s.5(1)(d) of the Class Proceedings Act, 1992. The Supreme Court’s decision on this point came…more

Canada, Class Action, Rules of Civil Procedure, SCC

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C. Kirk Boggs

Back to Basics: Attempting to Make Sure a Trial Judge Applies the Proper Analysis to Cases Alleging Non-Repair of a Roadway

The underlying premise of this paper is that over the past 20-30 years Ontario courts have, on a number of occasions, both at the trial level and on appeal, failed to properly apply the traditional test for non-repair set out in…more

Apportionment, Dangerous Condition, Governmental Liability, Judges, Municipal Act

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Carolyn Brandow

A real estate broker was permitted to keep his registration where a brokerage loses its registration due to the conduct of the broker

While it may seem an odd result at first blush, the recent decision of the Court of Appeal clearly explains how this was one of the possible appropriate outcomes…more

Appeals, Brokers, Licenses, Real Estate Market

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John Brennan

Drunkenness and the Liquor Licence Act - What a Licensee Should Know

The Ontario Liquor Licence Act and Regulations govern all aspects of liquor licencing in the Province of Ontario. In addition to establishing the process by which a business may acquire a liquor licence, the legislation also…more

Canada, Licenses, Liquor, Liquor Control Acts, Public Drunkeness

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Rebecca Case

Proceeding Concurrently in Multi-Jurisdictional Hearings: Form or Substance?

When parallel class actions in multiple provinces are resolved by one settlement agreement, procedural and jurisdictional issues may arise regarding the conduct of the settlement approval hearings. Recent decisions have…more

Class Action, Cross-Border, Foreign Jurisdictions, Jurisdiction, Settlement

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Alysia Christiaen

Preparing for Mediation: Where the Real Advocacy Begins

The importance of mediations as an effective tool in reaching a settlement cannot be stressed enough. A mediation provides counsel with a very unique opportunity. It is often the one time in the entire litigation process where…more

Client Services, Damages, Liability, Mediation, Mediation Conferences

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Jennifer L. Costin

Supreme Court of Canada refuses to deduct pension earnings from wrongful dismissal damages

Mr. Waterman worked for IBM (United Kingdom) and subsequently IBM (Canada) for 42 years when he was dismissed without cause in March of 2009 and was given 2 months of pay in lieu of notice. Subsequently, he began collecting…more

Canada, Pensions, SCC, Termination, Wage Deductions

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Emily Da Silva

Compensation Awards in Sexual Assault Cases - Case Summary #2

M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135 M.B. moved to Canada in 2002 and began working at Deluxe Windows of Canada (“Deluxe Windows”) in December 2003 as a commissioned salesperson. She worked…more

Aggravated Damages, Appeals, Employer Liability Issues, Medical Expenses, Pain and Suffering

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Ian Dantzer

The Oppression Remedy

A corporation or company is a legal entity. That means it has the same rights and abilities as person. Problems arise in that corporations involve the interests of many individuals, whether they be its shareholders, directors,…more

Evidence, Minority Shareholders, Oppression Remedy, Standing

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Christopher R. Dawson

Planes, Trains and ...... Spacecraft?

At one time only a select few people had the privilege of going into space. It required extensive training and you had to be either an astronaut or a cosmonaut. In the years following that, the Russian Government sought to…more

Aerospace, Aviation Industry, Technology, Virgin Airways

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Peter Downs

Controlled Intersection: What is the legal duty upon the dominant driver?

Can a driver proceeding through a green light at an intersection be found negligent if he is unaware of a vehicle coming through the intersection on a red light and a collision ensues? Put another way, can the driver with the…more

Car Accident

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Matt Duffy

Goodbye Consent Dismissal Orders

On October 22, 2013, Financial Services Commission of Ontario (“FSCO”) announced that the Dispute Resolution Practice Code is being amended effective November 1, 2013 to eliminate the issuing of Consent Dismissal Orders in all…more

Canada, Consent, Dismissals, FSCO

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Laura L. Emmett

Sietzema v. Economical

Some appellate clarity on the issue on non-earner benefit is now emerging some two years after the confusion arising from the appellate decision in Galdamez v. Allstate…more

Allstate, Employee Benefits, Statute of Limitations

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Eni Eski

Auditors’ Liability to Third Parties: An emerging defence – Part I

Interesting policy issues arise when auditors of corporations whose management has fraudulently misrepresented the company’s financial statements find themselves defending claims brought on behalf of the corporation by entities…more

Auditors, Audits, Third-Party Liability

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Sonia Fabiani

Unsuccessful Summary Judgment Motion to Dismiss Non-Earner Benefits

The Court has rendered another decision in relation to a Summary Judgment Motion brought by an Insurer to dismiss a Plaintiff’s claim for non-earner benefits…more

Canada, Motion to Dismiss, Summary Judgment, Unemployment Insurance

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Trevor Fisher

Should I Bring a Change of Venue Motion?

There has been some confusion in recent case law as to the proper test to be applied on a change of venue motion. It is clear that the starting point for where an action can be commenced is straightforward: the plaintiff can…more

Transfer of Venue, Venue

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Marc A. Flisfeder

Ontario Government’s Bill 171 Threatens Access to Justice for Personal Injury Plaintiffs

In March of this year, the Ontario Minister of Finance Charles Sousa introduced Bill 171: Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014. The Bill proposes concerning changes to the process that an injured…more

Auto Insurance, Car Accident, Claim Procedures, Insurance Fraud, Mediation

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Danielle Gauvreau

Compelling Evidence, Burden of Proof, and the Minor Injury Guideline: Belair and Scarlett (Appeal)

The long-awaited appeal decision in Belair Insurance Company Inc. and Scarlett was recently released. - Mr. Scarlett was injured in an accident on September 18, 2010 in which he suffered sprains and strains. He also…more

Burden of Proof, Canada, Insurance Companies, Slip and Fall

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Nigel G. Gilby

The Importance of Having Sufficient Insurance Coverage

Question: "I drive a truck and a close friend of mine will borrow my truck sometimes for errands, and then I just use his car. We have different vehicle insurance policies. If I was to get in an accident with his vehicle, could…more

Auto Insurance, Canada, Car Accident

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Elizabeth K.P. Grace

Violation of Human Rights May Now Yield Additional Remedies in Abuse Cases

Ontario’s human rights legislation underwent various amendments in 2008. For the first time, a court deciding a civil lawsuit was allowed to order remedies for violation of human rights protected under the Human Rights Code. In…more

Canada, Discrimination, Human Rights, Sexual Abuse, Sexual Assault

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Brian Grant

Opportunities for Summary Judgment in Municipal Liability Cases

In light of the decision in Combined Air Mechanical Services v. Flesch, counsel in municipal cases must re-assess their opportunities for summary judgment. In Combined Air, the Ontario Court of Appeal identified a new category…more

Highways, Municipalities, Notice Requirements, Rule 20 Motion, Safety Precautions

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Greg Hatt

Transaction Letters of Intent

If you are selling or purchasing a business, the first document that is likely to be involved is a letter of intent. This is a document that sets out in brief terms the agreement of the parties on the key business terms of the…more

Contract Formation, Letters of Intent, Negotiations

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Gillian T. Hnatiw

Divisional Court Applies Supreme Court’s Guidance on Preferability and Certifies Claim Against Religious Boarding School

In Cavanaugh v. Grenville Christian College (“Cavanaugh”), a group of former students from an Anglican boarding school have alleged that they were subjected to systemic physical and psychological abuse to promote and…more

Assault, Battery, Breach of Duty, Fiduciary Duty, Intentional Infliction of Emotional Distress

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Tyler Kaczmarczyk

Court of Appeal Discusses Coverage Exclusions in Homeowner’s Insurance Policy - Bawden v. Wawanesa Mutual Insurance Company, 2013 ONCA 717

This recent decision of the Ontario Court of Appeal contains an interesting discussion regarding the applicability of a coverage exclusion found within many standard homeowner’s insurance policies — the exclusion of claims…more

Bodily Injury, Canada, Exclusionary Clauses, Homeowner's Insurance, Third-Party Liability

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Gillian Kafka

Status Hearings: Faris v. Eftimovski

For sometime now, litigants have largely treated status hearings as an ineffective procedural necessity in the litigation process. The result of these hearings is all too often an aggressive, court-approved litigation timetable…more

Canada, Dismissals, Litigation Strategies, Prejudice, Status Hearings

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Ted Kalnins

Statutory Claims Against Manufacturers

When a dissatisfied consumer sues a manufacturer in Ontario, the unhappy consumer will frequently rely upon the Sale of Goods Act and the Consumer Protection Act, 2002. However, neither statute applies if the consumer did not…more

Canada, Consumer Protection Act, Manufacturers, Retailers, Sale of Goods Act

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Joshua S. Koziebrocki

Supreme Court’s Decision in R v. Nedelcu and its Impact on Litigation Involving Both Civil and Criminal Components

R v. Nedelcu, 2012 SCC 59, is a recent Supreme Court of Canada decision which clarifies the scope of the right against self-incrimination, protected by section 13 of the Charter. The case considers the question of whether and to…more

Canada, Civil Liability, Criminal Prosecution, Discovery, SCC

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Peter Kryworuk

To Costs or Not To Costs – Is That the Question?

The Law Commission of Ontario has now released the scope of its review of Class Actions, and, as expected, this review will entail an examination of the costs regime in Ontario. Currently, costs in class proceedings follow the…more

Canada, Class Action, Class Certification, OLRC, SCC

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Dara Lambe

Navigating The All-Risks Policy: Is Wear And Tear A Fortuitous Risk?

In its decision in 1422253 Ontario Limited O/A Esso Fourth Avenue Gas Bar v. Coachman Insurance Company, 2013 ONSC 5740, the Divisional Court held that damages resulting from wear and tear can, in certain circumstances, be…more

All-Risks Insurance, Canada, Damages, Storage Tanks

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Marinus Lamers

Commentary on Schmitz v. Lombard

On February 4, 2014, the Ontario Court of Appeal may have finally put to rest the longstanding issue regarding the length of the applicable limitation period and when it begins to run regarding claims for underinsured motorist…more

Auto Insurance, Canada, Uninsured and Under-Insured Motorists

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Michael Lerner

Keep the Holiday Season Happy and Merry

At this time of year, a number of businesses entertain their customers, clients and employees at a seasonal party. On some occasions, the party is held onsite. In other instances, the party may be at a licensed premise or…more

Canada, Holiday Parties

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Zohar Levy

Insurers Beware: Duty to defend insured can arise even without ongoing duty to indemnify

We have invited Zohar Levy, a lawyer in our insurance defence practice group, to do a guest blog on a topic we thought might be relevant to some of you. In the recent decision in Jevco Insurance Company v. Malaviya,…more

Duty to Defend, Indemnification, Insurers

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David D. Lyons

Are you ready for Canada's Anti-Spam Legislation? Should you be? Part II

If your organization has not yet taken steps to comply, we suggest taking the following steps both to prepare for the possible implementation of Canda's Anti-Spam Legislation ("CASL") and to improve your e-mail marketing…more

Canada, Email, Marketing, Spam

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Domenico Magisano

Consignment: Recovering Goods or Proceeds from a Bankrupt Client

When a client goes bankrupt, an unpaid supplier is often left with few remedies. Generally speaking, the unpaid supplier’s recovery is limited to their proportional share of what is left of the proceeds from the bankrupt’s…more

Consumer Bankruptcy, Recovery Laws, Trusts

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Joseph Masterson

Possession is Key in Consent Case

The Ontario Superior Court of Justice recently had to consider the vicarious liability of a vehicle’s owner for the negligence of an impaired driver in Watts v. Boyce, Dunham and the Co-operators General Insurance Company, 2013…more

Canada, Car Accident, DUI, Vicarious Liability

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Anna Matas

Expanding Amicus Services in Civil Lawsuits

I was recently interviewed by Law Times regarding Pro Bono Law Ontario’s (PBLO) focus on expanding its amicus curiae services in civil lawsuits. Both Elizabeth K.P. Grace and I were approached by PBLO in connection with this…more

Canada, Pro Bono

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Andra Maxwell-Baker

Argue v. Tay (Township): Supreme Court Denies Leave to Appeal after Claim is Dismissed for Failure to Comply with 10-day Municipal Act Notice Requirement

The Supreme Court of Canada has dismissed the plaintiff’s application for leave to appeal after her claim was dismissed on a summary judgment motion for failure to provide written notice to the clerk of the municipality within…more

Canada, Car Accident, Constructive Notice, Municipalities, Notice Requirements

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Brian P.F. Moher

Supreme Court Denies Leave in Self-Identified Problem Gamblers Class Action – Class Action Remains Uncertified

In Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501, the Ontario Court of Appeal dismissed the appeal of an unsuccessful certification motion. The class action was commenced on behalf of residents of Ontario and…more

Canada, Class Certification, Gambling, Lottery

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Louise Moher

Proceeding Concurrently in Multi-Jurisdictional Hearings: Form or Substance?

When parallel class actions in multiple provinces are resolved by one settlement agreement, procedural and jurisdictional issues may arise regarding the conduct of the settlement approval hearings. Recent decisions have…more

Class Action, Cross-Border, Foreign Jurisdictions, Jurisdiction, Settlement

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Lisa Munro

Auditors’ Liability to Third Parties: An emerging defence – Part I

Interesting policy issues arise when auditors of corporations whose management has fraudulently misrepresented the company’s financial statements find themselves defending claims brought on behalf of the corporation by entities…more

Auditors, Audits, Third-Party Liability

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Andrew C. Murray

Settlement of Personal Injury Claims On Behalf of Persons Under a Disability

In This Paper: - Introduction - The Historical Context - The Current Regime Rules of Civil Procedure - Issues - (a) Required Evidence - (b) Legal Fees - (c) Recent…more

Bodily Injury, Disability, Settlement

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Shauna Powell

Personal Injury Motor Vehicle Litigation: SABS and Tort

The purpose of this paper is to provide a general overview of the tort and the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“SABS”) systems that apply to personal injury motor vehicle litigation. It must…more

Bodily Injury, Car Accident, Motor Vehicles

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Shannon Puddister

Consignment: Recovering Goods or Proceeds from a Bankrupt Client

When a client goes bankrupt, an unpaid supplier is often left with few remedies. Generally speaking, the unpaid supplier’s recovery is limited to their proportional share of what is left of the proceeds from the bankrupt’s…more

Consumer Bankruptcy, Recovery Laws, Trusts

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Brian Radnoff

Striking Oil?: Court allows secondary market securities class action for shares purchased on a foreign stock exchange

In Kaynes v. BP, 2013 ONSC 5802, Justice Conway determined that a statutory claim for secondary market misrepresentation under the Ontario Securities Act (“OSA”) is a “statutory tort” over which the Ontario Superior Court of…more

Canada, Foreign Exchanges, Investors, Jurisdiction, Ontario Securities Act

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Alfonso Reales

Norwich Order against OPP in car accident case upheld on appeal

On March 11, 2013, the Ontario Court of Appeal released its decision in Muller v. Bluewater Recycling. The decision under appeal had been successfully argued by Alfonso Campos Reales, personal injury lawyer from Lerners. The…more

Canada, Car Accident, Conflicts of Interest, Mootness

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Kevin Ross

Quantifying Discretion in Costs and Fee Approvals

When a class action settles, a motion is brought to approve the settlement. Where plaintiffs' counsel requests payment, the counsel fee must be approved by the court. Similarly, where a certification motion is heard and where…more

Canada, Class Action, Settlement

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Stephen Schenke

Defendant’s obligation to disclose surveillance

In the June 24, 2013 decision of Arsenault-Armstrong v Burke, Mr. Justice Hambly of the Ontario Superior Court ruled on the obligation of a defendant to produce surveillance evidence. The defendant conducted surveillance of the…more

Canada, Duty to Disclose, OSC, Surveillance

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Dylan M. Scott

Insider Trading - Private Corporations

Insider trading at large publicly traded corporations makes news headlines and is the stuff of Hollywood movies. Less talked about is Canadian and Ontario corporate laws prohibiting insider trading in privately held…more

CBCA, Insider Trading, OBCA, Privately Held Corporations

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Ian D. Shewen

May the 50% Rule Rest in Peace

The time has come to repeal the 50% Rule (the “Rule”). The Ontario Legislature took a step in this direction by exempting renewable energy co-operatives from the application of the Rule. In so doing the Legislature recognized…more

Canada, Energy Policy, Environmental Policies, Renewable Energy

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William Simpson

Helping You Help Your Patients: Learning about insurance issues in MVA cases

In This Presentation: - Motor Vehicle Accident Legislation - Tort Claims - Pecuniary Loss - Non-Pecuniary Losses - Threshold - Limitations - Statutory Accident Benefits -…more

Attendant Care, Car Accident, Catastrophic Impairment, Collateral Benefits, Limitation Periods

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Jason Squire

Ontario Court of Appeal Overturns Timminco

The Court of Appeal for Ontario, 2014 ONCA 90, has determined that the commencement of a class action for statutory misrepresentation in the secondary market within the three year limitation period provided in Part XXIII.I of…more

Canada, Ontario Securities Act

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Fred Tranquilli

Is a Deal a Deal?

So you’ve found your dream neighbourhood. Close to parks and schools. Near your children’s friends. Safe. Close to work. You find the perfect house for you and your family in your dream neighbourhood and it is for sale. You…more

Canada, Real Estate Market, SCC

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Yola Ventresca

When Does an Employee Lose Entitlement to Notice of Termination and Termination Pay?

Under the Employment Standards Act, 2000, an employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer is not entitled to notice of…more

Canada, Hiring & Firing, Notice Requirements, Termination

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David Waites

Joint Accounts: Is the Surviving Owner Really Entitled to the Money?

Joint bank accounts can provide that the survivor of the joint owners is entitled, by right of survivorship, to the balance left in the account upon the death of the other joint owner. But will this actually occur?…more

Estate Planning, Joint Accounts

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Matthew J. Wilson

Assigning Contracts: Making Sure Third Parties Know Who You Are

A conveyance of commercial real estate involves the same basic principles as the conveyance of residential real estate. Despite the agreements being for a larger value, closing dates, title searches, requisitions, and many other…more

Assignments, Contract Formation, Third-Party Relationships

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Stuart Zacharias

Thirty Day Rule: Recovering Goods or Proceeds from a Bankrupt Client

When a client goes bankrupt, an unpaid supplier is often left with few remedies. Generally speaking, the unpaid supplier’s recovery is limited to their proportional share of what is left of the proceeds from the bankrupt’s…more

Commercial Bankruptcy, Creditors, Goods, Insolvency, Suppliers

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Leanne Zawadzki

Simser v. Aviva.

The Appeal decision in Simser v. Aviva (Appeal P13-00004) was recently released by the Financial Services Commission of Ontario (FSCO) on January 9, 2014. The appeal concerned clause 3(7)(e) of the Statutory Accident…more

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