At the end of April 2019, Paul Coulson and his experienced team of law clerks began sharing space with Menzies Lawyers at 150 Isabella Street, and are now practicing in association. Paul has more than 40 years of legal experience, focusing on real estate transactions, drafting wills, estate administration, business transactions, and family law matters. The range of services that his firm offers is a perfect complement to what Menzies Lawyers provides. See more about Paul Coulson's practice by visiting Paul Coulson Law at www.phclaw.ca.
 Slip and falls can happen anywhere, but are especially common on icy outside surfaces during Ottawa Winters. Injuries from falling on a slippery or unsafe surface can result in bruising, sprains, strains, broken bones, concussion, and even death. Owners of property, whether private or municipal, are required to keep public areas safe. It could be a sidewalk, laneway, or floor of a business. This responsibility arises from long-held legal principles, and from Ontario legislation known as the Occupiers’ Liability Act. If you’re hurt, whether seriously or not, you may have a claim if the property owner failed to keep the area where you’ve slipped and fell adequately maintained, repaired, or protected from unsafe situations. To preserve your legal rights, you generally have only two years from when you knew or should have known that you had a legal claim. If you miss this limitation period, and no lawsuit is started by the second anniversary of this date, you may be deprived of any compensation. It’s therefore crucial to get experienced legal advice for any accident or injury as soon as possible. Personal injury lawyers will help you marshal the necessary evidence, avoid settling for too little, and make sure that you get the compensation you deserve, including potential compensation for:
When a homeowner sells an Ontario property with an old unclaimed mortgage on title but can’t find the lender, what can be done? A similar question arises when the mortgage has already been paid off but was never discharged from title.
The owner’s real estate lawyer could try persuading the purchaser to proceed with the sale despite the existence of that mortgage. The purchaser might be satisfied with a statutory declaration from the vendor stating that the mortgage has been fully paid. A vendor may also be satisfied where enough proceeds from the sale are set aside in trust to cover the entire amount of the potential mortgage claimed. If things go awry, the purchaser’s title insurance policy might apply to cover any shortfall. These proposals, however, will often be rejected, forcing the vendor to obtain a Court order declaring the mortgage discharged. Otherwise, the deal will not close. Relief is available under the Mortgages Act, R.S.O. Where the mortgage has been paid in full, section 12(8) may apply: When a mortgagee has died and all money due upon the mortgage was paid to him or her in the mortgagee's lifetime or has been paid to a person entitled to receive the same after the mortgagee's death or where in any other case it appears that all money due upon the mortgage has been paid and for any reason a discharge or reconveyance cannot be obtained without undue delay and expense the court may make an order discharging the mortgage. In the case where the mortgagee (lender under a mortgage) cannot be found and there may be amounts outstanding, section 12(3) states: When a mortgagor or any person entitled to pay off a mortgage desires to do so and the mortgagee, or one of several mortgagees, cannot be found or when a sole mortgagee or the last surviving mortgagee is dead and no probate of his or her will has been granted or letters of administration issued, or where from any other cause a proper discharge cannot be obtained, or cannot be obtained without undue delay, the court may permit payment into court of the amount due upon the mortgage and may make an order discharging the mortgage. A mortgagor (borrower under a mortgage) can also seek relief under Ontario’s, Real Property Limitations Act, R.S.O. which provides that after 10 years from the date of the last payment or written acknowledgement of the debt, a mortgagee is time-barred from collecting on the old mortgage. The limitation period under the Real Property Limitations Act is meant to prevent old and forgotten or forgiven mortgages from hanging over the head of the borrower indefinitely. Even so, in the absence of the lender’s consent, a mortgagor will need obtain a Court order declaring the mortgage discharged before it can be deleted from title in Ontario’s Land Titles System. So, when it comes to dealing with an old mortgage, confirm its status before putting your home up for sale. Otherwise, alert your real estate lawyer as soon as the issue comes to your attention. Contact Menzies Lawyers today for a consultation about discharging an old mortgage. Call (613) 722-1313 or email info@menzieslawyers.com.  Shared driveways or laneways are a common feature in many urban areas, especially in older developments with a high density of residential buildings. Ottawa is no exception.
Often, a larger portion of the driveway lies on one neighbour’s property, leaving the other neighbour with only a narrow strip that is not wide enough for vehicles to pass over without having to drive over the other’s property. Disputes can be avoided when the scope of obligations and rights are clearly set out in an agreement between property owners and registered on title. Without that, conflict can arise over ownership, use, and the maintenance of the driveway. There may be questions regarding what part of the driveway each side is entitled to use, when, and who might be responsible for maintaining the driveway surface, or removing snow, for example. If an agreement cannot be negotiated between the adjoining neighbours, a number of legal principles can be engaged to help determine how these claims are to be resolved should the dispute land in court. Possible remedies include the granting of prescriptive easements conferring a right-of-way, or title to a portion of the property by adverse possession. Without any ownership right or right of access, one or both of the neighbours may be left in the position of a trespasser whose entry onto the land in question can be prevented. Adverse Possession Adverse possession, commonly known as squatter’s rights, can confer an ownership right to property whose title is held by another. Adverse possession is not easy to establish. A person would have to show that he or she was in actual possession of a piece of land, had the intention to exclude the true owners who were in fact excluded and that such possession had been opened, notorious, peaceful, adverse, exclusive and continuous. Intent to exclude can be inferred when possession occurs under colour of right or by mistake as to the title or boundaries. Additionally, this continuous period of adverse possession had to have occurred for at least 10 years before the land in question was registered in the Land Titles System which is the system of electronic property registration in place across Ontario. It replaces the old registry system which recorded property interests on paper documents held at individual registry offices throughout the province. By virtue of section 51 of the Land Titles Act, any rights by adverse possession or from prescriptive easement had to have crystallized by the time land was registered in the Land Title System. Because all of the land in Ottawa has been registered in land titles, instances of viable claims for adverse possession and prescriptive easement will become more uncommon as time goes by. A recent case which confirmed the requirements to establish adverse possession can be found in Fazzari v. Pynn (2013, Ont. Superior Court). Prescriptive easement/doctrine of lost modern grant, and easement by necessity Easements can give a right to access a shared driveway, including a portion of the neighbour’s property. This is not an ownership right like adverse possession. Nor does it permit the parking of the vehicle on the neighbour’s side of the shared driveway. It is about the right to drive over part of a neighbour’s property to reach another property. A right of way, for example, is a type of easement. In situations where there is no specific grant of an easement (written agreement between two neighbours), one may be established by virtue of two other legal principles: prescriptive easements under the doctrine of lost modern grant, and easements by necessity. The leading case in Ontario relating to prescriptive easements and the doctrine of lost modern grant (discussed below) remains Henderson v. Volk (1982, Ont. Court of Appeal). Under the doctrine of lost modern grant, which the Court of Appeal acknowledged and affirmed, the claimant must demonstrate use and enjoyment under a claim of right that is continuous, uninterrupted, open and peaceful for a 20 year period. Where all of these elements can be established, the law will adopt a legal fiction that a grant of an easement was made despite the absence of any direct evidence that he was in fact made. Henderson v. Volk was cited in the more recent 2013 Court of Appeal case, 1043 Bloor Inc. v. 1714104 Ontario Inc. The Court’s majority held that a claim of right or use as of right means the claimant must have enjoyed the easement not as a result of permission but on the assumption that it had a legal grant of the easement. In that case, the owner of 1043 Bloor Street West could only access parking spaces at the back of its property by driving over a laneway shared with an adjoining owner. 1043 Bloor Street West had been built almost to the lot line, leaving mere inches between the building and the boundary of the property. The laneway had been built by the neighbour that ran along the boundary, and for years the owners and occupants of 1043 Bloor Street made use of it to reach parking in the back. The owner of 1043 Bloor Street lost a trial, appealed, and lost that as well, because before the 20 year period had run he had approached the neighbour to ask his permission for the right to use the lane. The court determined that in doing so it was clear that he was not using the laneway under the assumption he had a legal right to do so, and the 20 year period was therefore interrupted. The second type of easement is an easement by necessity. This easement arises when the right is deemed necessary for the reasonable use and enjoyment of land that is created by operation of law and not defeated by the Land Titles Act. The difficulty with obtaining a court order granting this type of easement is that the person claiming it has a very heavy onus to show that it is in fact necessary. The usual cases in which one is granted are those where the homeowner is completely landlocked - whether by foot or vehicle. Court decisions in these areas of law are highly dependent on the facts of the individual cases, and are sometimes difficult to reconcile. Given the potentially significant consequences to owners of shared driveways, getting appropriate legal advice is highly recommended. For assistance in evaluating the dispute over a shared driveway, or an estimate of costs, time and risk, please Contact Menzies Lawyer at 613-722-1313 or info@menzieslawyers.com. When you invest in a company, property, or project you put money or effort in. In exchange, you generally get an ownership interest.
Where that interest is in dispute, Vesting Orders of the Ontario Superior Court can often be obtained to declare or create an ownership interest, typically in land but frankly in any item capable of defined ownership or earmarks. Vesting Orders can lodge title to a block of shares that are privately held or in a publicly held company, the rights of ownership of a car, boat or plane. They are used where there are competing claims. Anyone who has an interest in the property is summoned to Court to explain their position. Typically these are decided on the basis of an application. Written evidence including affidavits, surveys or any form of reliable evidence that can be of assistance to the Court. The Court has an equitable jurisdiction to do what is fair, just and right, and takes a practical, common-sense approach to cutting through the tangle of competing interests to impose order. Our firm has helped clients in Ottawa obtain Orders in a variety of circumstances. On one occasion, purchasers of a home discovered at the last minute that the claims against the property by way of mortgages and judgments exceeded the value that they had agreed to pay. No one would back down or agree to a sensible solution. Both the vendors and the purchasers still wanted the sale to go ahead, so they engaged us. Just before the application hearing, the parties realized that the Court was likely to approve the sale, grant title to the property through a Vesting Order, and also order that the net proceeds from the sale (after paying the mortgage and what had to be paid to give good title to the purchasers), be paid into Court where the parties could argue priority or otherwise divide it pro rata. The Vesting Order gave the purchasers title to the property. The competing interests preserved their rights, but now the subject of their quarrel was about money paid into Court rather than property. Best of all, the vendors and purchasers could more or less get on with their lives. Vesting Orders are also handy where the process of taking property from Ontario’s Land Registry system to Land Titles has orphaned certain pieces of land or a right of way, long disused, and long treated as someone’s property, which requires correction to title. While you don’t use a Vesting Order if you know who owns the property, it is a powerful remedy of choice where something that has for years, and several transfers of ownership, been treated as part of another property, or where tracing ownership is either lengthy, expensive and problematic (e.g. are we sure we have included everybody?). In bringing forward the Vesting Order, the Court will want to be satisfied that those who have a genuine interest in the property have been given notice. Where there are adjoining landowners it is a good idea to include them. Generally it is a good idea to provide for a delay of several months in order to make sure that anyone who wants to have a say, or at least look at the surveys and go out and see the properties, has a chance to do so. Typically, we bring these Vesting Orders at the expense of the person who wants the property. Sometimes a vendor and purchase will both hire us and split the cost. Where it is simply clearing up title we normally ask for costs from anyone who opposes and really doesn’t have a reason to do so. Sometimes a farmer who has, years ago, used the right of way to gain access to a far field will come forward. However, if he or she hasn’t used the right of way in ten years, and even better, if it has been fenced off or, in some other way, access has been treated as not permitted, his or her claim will usually not be considered. Aside from the general equitable jurisdiction of the court, a plethora of legislation may also be relevant to the specific circumstances of each case including, among others, sections under Ontario’s Land Titles Act, Surveys Act, Real Property Limitations Act, and Courts of Justice Act which provides in section 100 that “a Court may by order vest in any person an interest in real property that the court has authority to order to be disposed or conveyed.” For assistance in evaluating whether a Vesting Order is appropriate, or an estimate of costs, time and risk, please contact Richard Nishimura (Extension 229) or Douglas Menzies (Extension 222) of our office at 613-722-1313. If a severance will be required, or there are more complicated title or Planning Act considerations, please contact Sabrina Herscovitch (Extension 204). Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation matters. This blog article by Douglas Menzies is for informational purposes only and does not constitute legal advice.  The recent decision, Johar v Best Buy Canada Ltd., 2016 ONSC 5287, demonstrates the power of the Summary Judgement tool for a Plaintiff in a wrongful dismissal case. In this case a repair technician at Best Buy was fired with cause. The Court took into account the Plaintiff’s age (46 years old), length of service (10 years), and whether there was any other type of comparable work in determining the reasonable notice which should have been provided to the Plaintiff. The Court described termination with cause as “capital punishment” of employment law. Dismissal is warranted when the misconduct is serious that it strikes at the heart of the employment relationship.
In this case, reasonable notice was not provided to the Plaintiff employee, and the Defendant could not prove with cause dismissal. Thus, the Plaintiff was awarded $55,796.29 in damages, and a substantial costs award totalling $27,500.00. Since the Plaintiff proceeded via Summary Judgment he was successful in his claim without having to call a single witness. Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation, family law, and estate matters. This blog article by Jonathan Solomon is for informational purposes only and does not constitute legal advice. In Ontario, a Will can be challenged on the basis that it violates public policy, but the Court of Appeal in Spence v. BMO Trust Co. made clear that grounds for that are narrow. In this case, a beneficiary under a Will, a black woman, was disinherited by her father because she had children with a white man. The Court upheld the Will as valid.
While the Court can intervene where the maker of a Will requires that an executor, trustee, or a beneficiary violate public policy, if one heir is disinherited in favour of a different worthy heir, the Will may stand (assuming no other objectionable grounds exist). The case affirms the importance of supporting a Will maker’s freedom, regardless of how unsavory his or her motivations are for making a particular Will. Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation, family law, and estate matters. This blog article by Richard Nishimura is for informational purposes only and does not constitute legal advice.  In Ottawa, the Family Court is set up such that when a party files their material they receive a ‘first Court date’. Up until recently, that date was used for the parties to meet up with the registrar and schedule their availability for a Case Conference. If possible, they would attend at the free mediation services offered through the Family Law Information Centre (FLIC). The first appearance was not very helpful, and unless the lawyers agreed to turn that appearance into a Case Conference, they could not proceed with Court for a number of months. A Case Conference is when you can actually proceed before a Judge or Master, discuss the exchange of documents/information necessary to resolve issues, and potentially address some of the issues. It is also an opportunity for both parties’ lawyers to meet up and have face to face conversations. In April I attended the Annual Family Law Conference held in Montebello, Quebec, and Justice Johanne Lafrance-Cardinal from Cornwall informed the audience of the new approach to first appearances. In Cornwall the system changed such that matters could actually proceed before a Judge on a first appearance Court date, and people can actually get an Order for certain procedural matters, on consent. It appears that the Ottawa Family Bar listened to Justice Johanne Lafrance-Cardinal and they have embraced this new approach to the first Court date. This is a welcome change. In Ottawa, this first Court appearance is now becoming an actual step in the process, and this will prevent delays. This is a necessary change. If you have a first Court appearance coming up, do not hesitate to contact Menzies Lawyers, we can assist you in making the most out of that Court date. For assistance in evaluating your family law matters, please contact Jonathan Solomon (Extension 203) or Sabrina Herscovitch (Extension 204) of our office at 613-722-1313. Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation and family law matters. This blog article by Jonathan Solomon is for informational purposes only and does not constitute legal advice.  In Ottawa there is currently a 13 week wait for the first case conference in a family law matter. Often individuals want their lawyer to take action, at times to their own detriment. If a party brings an urgent motion that has no merit, it could result in costs being awarded against them. The line is quite clear as to when the Court will entertain an urgent motion.
An “urgent” or “emergency” motion is usually the exception to the rule in family law cases. An urgent motion contemplates matters such as abduction, threats of harm, and dire financial circumstances. The authority to bring such a motion is pursuant to Rule 14 of the Family Law Rules, which indicates that “[n]o notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.” A lawyer should appropriately advise their clients of the chance of success, because often what is urgent to a client is not considered urgent by the Court. The leading case in Ontario on urgent motions is Rosen v. Rosen, [2005] OJ No 62 (QL), whereby the Court confirmed that “…an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference.” A recent Ontario Superior Court decision Holmquist v Holmquist, 2016 ONSC 1796, found that even in instances where access of a child is withheld, by one parent from another, this would not necessarily qualify the matter as urgent. You should consult with a lawyer to analyze your case before moving forward with an urgent motion. The Court has also indicated that the first step should be an inquiry as to when case conference dates are available to deal with the matter. If there is a particularly pressing issue, the trial coordinator should be made aware of this, as there may be times that could be made available for cases of urgency in order to obtain a faster case conference date. For assistance in evaluating your family law matters, please contact Jonathan Solomon (Extension 203) or Sabrina Herscovitch (Extension 204) of our office at 613-722-1313. Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation and family law matters. This blog article by Jonathan Solomon is for informational purposes only and does not constitute legal advice.  The Courts have referenced the Ontario Court of Appeal (ONCA) decision, M v. F., 2015 ONCA 277, on multiple occasions since it was rendered. In this analysis I have focused on expert evidence and critique evidence regarding overnight access disputes.
In M. v. F., the parties dated sporadically from 2006 until June 2009. The parties lived together for approximately two months, during that time frame the Applicant mother (Appellant) became pregnant. The child was 6 years old at the time of the trial and 8 years old at the time of the appeal. The contentious issue at the trial was overnight access of the child by the Respondent father (Respondent in Appeal). The parties had children from other relationships, and they were in a continuous bitter dispute over the parenting of the child of their union. The father accused the mother of using marijuana. The mother accused the father of alcohol dependence/abuse, narcissism, and that he had previously abused her. Each party had peculiar allegations against each other. Nonetheless, the father was granted overnight access of the child of the union and was completely successful at the heart of the issue in dispute. Both parties in these proceedings wished to have an assessment conducted pursuant to section 30 of the Children’s Law Reform Act, R.S.O Chapter C.12 (CLRA). Both parties agreed to use the same psychologist, Dr. Burtkowsky, which they used for mediation with respect to parenting arrangements. However, Dr. Burtkowsky was concerned about conducting the assessment after having been involved in the mediation. Both parties signed the appropriate waiver and consents to have him proceed. Two reports were prepared by the aforementioned psychologist, one was prepared a year after the assessment appointment, and a second report was requested and prepared in anticipation of the trial. Dr. Burtowsky’s two reports and oral testimony were given as evidence at trial. The waivers and consents were signed after the mediation was conducted. One challenge to both of Dr. Burtowsky’s reports was whether or not the information received during the mediation, which was obtained during privileged discussions, could influence his opinion. For trial, the mother retained a second expert, Dr. Jaffe, in order to critique Dr. Burtowsky’s reports, and to raise concerns about Dr. Burtowsky’s “assessment for the court’s consideration.” At trial, the Court found that Dr. Jaffe lacked information, and that even he might have changed his mind if he had more facts. The Trial Judge admitted Dr. Jaffe’s critique into evidence, though the report was given little weight based on the fact that in did not meet the R v Mohan, [1994] 2 SCR 9 (hereinafter “Mohan”) standards. The factors to be considered for expert evidence includes: 1) Relevance of the evidence, 2) Necessity in assisting the trier of fact, 3) Whether the expert is properly qualified, 4) Not in breach of another exclusionary rule. In Armstrong v Armstrong, 2016 ONSC 126, O.J. No. 861, Justice Wein stated that there is “…a strong discouragement against the unnecessary use of "expert" or quasi expert reports in family law cases, whether in the context of issues of custody or in valuation issues. For example in M. v. F., 2015 ONCA 277, Justice Benotto, following Sordi v. Sordi 2011 ONCA 665 and Mayfield v. Mayfield (2001) 18 R.F.L. (5th) 328, (Ont. Gen. Div.) noted that critique evidence "generally -- as here - has little probative value, adds expense and risks elevating the animosity between the parties." In M. v. F., Dr. Jaffe’s critique report was admitted but given little weight. There are instances whereby an expert’s critique report is relevant. In the 2016 Ontario Superior Court decision, Ascani v. Robert, 2015 ONSC 4585, O.J. No. 3832 (hereinafter “Ascani”), the Court was persuaded to include a report that dealt with the critique of the process and conduct of an investigation. In Ascani, the critique report dealt with the Office of the Children’s Lawyer (OCL) report with respect to the procedure used by the OCL. The Court considered the evidence of the process required in completing an assessment. The admittance of such a report is also ensuring procedural fairness of the process. If Dr. Jaffe’s report solely questioned process and conduct of Dr. Burtowsky’s assessment it likely would have been given more weight, but that was not the case in M. v. F. There is likely an eagerness of the parties (or their lawyers) to engage in a ‘battling of experts’ to even the playing field, especially when a report is not in their interest. However, given the little weight given to these “critique” reports, engaging an expert for these purposes could prove costly and not worthwhile in the broader picture, unless there is a potential challenge to procedure or process. For assistance in evaluating your family law matters, please contact Jonathan Solomon (Extension 203) or Sabrina Herscovitch (Extension 204) of our office at 613-722-1313. Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation and family law matters. This blog article by Jonathan Solomon is for informational purposes only and does not constitute legal advice. |
AuthorsMarc Binavince, Archives
April 2019
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