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The Basics About Interpreting Contracts

When you sign a contract, the idea is that you've put your relationship with another person in writing so that you don't have to argue later on about what you really meant.  Of course, contracts are not always clear, and even where they are clear, the parties may not have really meant to say what they said.  So an age-old issue that the courts have to deal with is when you can look behind the written contract to find out what the parties really meant.  And a more recent issue that the courts have been working through in the past decade or so is whether (and when) a party must act in good faith to not only meet the strict language of the contract, but also to give effect to the underlying understanding between the parties.

Published in General Interest

Once a builder has closed in the walls on a new piece of construction, it can be hard to tell whether they did their job properly. So what happens if a major flaw is discovered years later, and after the property has had a few different owners? The case of Vargo v. Hughes, 2013 ABCA 96, from the Alberta Court of Appeal is a good example of what needs to happen for a subsequent owner to be able to go after the original builder.


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2012 Ontario Court of Appeal - In Review

2012 was a year of transition for the Ontario Court of Appeal, with 4 new judges being appointed, in addition to the appointment of Justice Hoy late in 2011.  Last year I wrote some articles looking at some Court of Appeal statistics (some examples are here, here and here), so here is an update for 2012.  The short version being that the court was fairly busy this year, notwithstanding the turnover in judges, helped in part due to heavy use of "ad hoc" judges pulled from the Superior Court bench.

Published in Appeals


Right now it takes approximately 4 to 5 months to get a motion date in front of a Master in Toronto for a short motion (anything from a few minutes to 2 hours).  This is compared to 1 to 2 months only a couple of years ago.  Which means (a) cases end up sitting still for months on end while both parties wait for the court to get around to hearing a motion, which is tough to explain to clients, and (b) parties who want to delay a case for 4+ months have a nice easy way to do it.  I don't pretend to have any inside information to explain the current delays, other than what I've heard from various Masters, but Master Haberman has released a decision that vents her frustrations on this, to a certain extent (after the jump). 


Published in Litigation Costs
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Holding a Grudge, Litigation Style

I've blogged about vexatious litigants in the past.  Some vexatious litigants have bursts of energy, and file multiple claims in a short time.  Some vexatious litigants are in it for the long haul, and have one issue that they pursue doggedly for years and years.  A recently declared vexatious litigant in the case of Burton v. Assaf, 2013 ONSC 1392 may have set the record in the latter category.


Published in General Interest

One of the vaguest areas of law in Ontario is how to deal with fixing costs for a successful party.  The law on how costs are calculated are intentionally vague, leaving a great deal of discretion in the hands of judges to deal with costs.  The concepts of "partial indemnity" and "substantial indemnity" costs are sufficiently confusing already, however a few recent decisions have thrown some more uncertainty into the pile - cases dealing with how much "partial" means in the circumstances of lawyers who are acting at reduced rates. 


Published in Litigation Costs