DRAFTING ERRORS AND THE RULE IN SAUNDERS V. VAUTIER

DRAFTING ERRORS AND THE RULE IN SAUNDERS V. VAUTIER

Will and court order drafters should be aware of the rule in Saunders v. Vautier, (1841) 41 E.R. 482), a decision of the English courts of equity from 1841. The rule occasionally comes to my attention when a will attempts to make a bequest to… Read more

Rectification of a Document

Rectification of a Document

Re McDonald Bankruptcy 2017 BCSC 1957 deals with an attempt to rectify  the terms of a written agreement in a bankruptcy proceeding. The court refused to do so based on the following legal rationale. 103      In Snell’s Equity, (32nd ed., 2011) in the first supplement… Read more

Gifts of Cheques

Gifts of Cheques

Teixeira v Markgraf 2017 ONCA 819 dealt with the issue of inter vivos gifts of  cheques. In the Teireira case the plaintiff was given a cheque to cash as a gift several days before the death of  the bank account holder. The cheque was for… Read more

Adjournment of a Trial

For a number of reasons it is sometimes necessary to seek an adjournment of a scheduled trial. 38      The adjournment of a trial is a discretionary matter. This discretion must be exercised in accordance with the interests of justice. There are a number of considerations… Read more

Partial Summary Trial Rebuked

Partial Summary Trial Rebuked

The Ontario Court of Appeal has issued a warning to lawyers that they should only bring partial summary judgment motions in the clearest of cases. In a recent judgment in Butera v. Chown, Cairns LLP,2017, the court allowed a $5-million negligence action brought against a… Read more

Summary Judgement Principles

Summary Judgement Principles

Summary Judgment Principles were discussed in Winter v Sherman 2017 ONSC 5492 [25]           Summary judgment is available where there is no genuine issue for trial: Hyrniak v. Mauldin, 2014 SCC 7 (CanLII), 366 D.L.R. (4th) 641, at para. 34. [26]        … Read more

Highest Court Encourages Alternatives to Trial

Highest Court Encourages Alternatives to Trial

The Supreme Court of Canada released its decision in Hryniak v. Mauldin (2014 S.C.C. 7, [2014] 1 S.C.R. 87) and encouraged alternative solutions to a trial. In her decision, Karakatsanis, J. called for “a shift in culture” (para. 20). She recognized that the adjudication of… Read more

Adding, Substituting and Removing Parties to an Action

Adding, Substituting and Removing Parties to an Action

Stewart v Stewart 2017 BCSC 1532 also dealt with Rule 6-2 (7) that deals with adding, substituting or removing parties to a court action. Rule 6-2(7)(a) provides: (7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules… Read more

Reasonable Cause of Action Must Be Claimed

Reasonable Cause of Action Must Be Claimed

Stewart v Stewart 2017 BCSC 1532 discussed the law relating to the failure to disclose a reasonable cause of action in the notice of claim, which if upheld by the court  can lead to the dismissal of the claim. 52 The legal framework is well… Read more

Conflict of Interest: Disqualifying a Lawyer

Conflict of Interest: Disqualifying a Lawyer

Stewart v Stewart 2016 BCSC 2256 dismissed an application to have an acting lawyer disqualified as counsel for having a conflict of interest. The court set out the criteria for such an application. The two questions to be asked in determining whether there is a… Read more

Rambling Journal Upheld As NOT a Valid Will

Rambling Journal Upheld As NOT a Valid Will

Re Hadley Estate 2017 BCCA 311 was upheld by the Court of appeal in finding that a rambling journal was not a will that could be “cured” by S 58 WESA. This was the first appeal court decision on Section 58 WESA. Section 58 of… Read more

Independent Legal Advice Necessary

Independent Legal Advice Necessary

Bertolo v Bank of Montreal 1986 CarswellOnt 801, a decision of the Ontario Court of Appeal was one the earlier cases in Canada to support the legal proposition that independent legal advice(ILA) must be present, if in this situation, a bank is to rely upon… Read more

The Threshold for Establishing Duress

Duress

Milionis v Rivas 2017 ONSC 5001 discussed the law of duress when an application was brought to seek a declaration that a $400,000 mortgage was invalid as it was purportedly signed under duress. The court disagreed as it is difficult to set aside an agreement… Read more

The Proportionality Principle

The Proportionality Principle

Campoli Electric Ltd v Georgian Clairlea Inc 2017 ONSC 4898 commented on the proportionality principle that is emerging in litigation- the quest for a cultural change to best promote the most expeditious and least expensive determination of every proceeding on its merits. Disinherited.com attempts to… Read more

Life Insurance Denied For Criminal Activity

Life Insurance Denied For Criminal Activity

Velentyne Estate v The Canada Life  2017 BCSC 1444 upheld the insurer’s exclusion clause that mortgage insurance would not be payable upon a death if the death resulted as a result of criminal activity. The Court found that the deceased was a drug dealer who… Read more