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Certificate of Pending Litigation

Is Seeking A Certificate of Pending Litigation Without Notice Worth The Risk?

Justice Kurz’s recent decision, McNeil v. Kaloustian, highlights some of the risks associated with obtaining a Certificate of Pending Litigation (commonly known as a “CPL”) without notice. A CPL is a document registered on title to a property to provide a notice and warning to the public that the property is subject to a court dispute. Registering a CPL has the practical effect of restraining all dealings with the property (financing, mortgaging, sale, etc.).
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consequences of accessing privileged information

The Devastating Consequences of Accessing Privileged Information

The Supreme Court of Canada in Smith v. Jones described solicitor-client privilege as the highest privilege recognized by the courts. In its recently issued judgement in Continental Bank of Canada v. Continental Currency Exchange Canada Inc. 2022 ONSC 647 CanLII, the Superior Court of Justice underscored the sanctity of the privilege and provided a stark reminder to litigants of the powerful remedies available to the court when an opposing party accesses confidential and privileged information which is relevant to the issues in the litigation.
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contempt of court

How to deal with parties that disregard court orders

One of the most frustrating times for litigants is when a court issues an order against their adversary and it is ignored with impunity. In many cases, the non-compliant litigant is given several chances to adhere to the court’s order without facing sanctions. Watching your adversary flout the rules and treat court orders as suggestions can make the innocent litigant feel as if the court’s orders can be undermined or ignored. This angst gives rise to frustration, bewilderment and the question: is there a way to deal (effectively) with parties that disregard court orders?
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Limitation Period and Professionals

Limitation Periods and Professional Advisors: the ‘appropriate’ time to take action

Clients place a considerable amount of trust and confidence in their professional advisors (hereafter referred to simply as “professionals”) in the belief that, with their professional expertise, a particular outcome may be achieved. When the professional’s acts or omissions cause the client to suffer loss, the client is often faced with the following choice: sue the professional and pursue their legal rights through the courts, or allow the professional to take steps to try and remediate the issue.
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When should I bring a motion for security for costs?

Security for costs is the payment of money or other security into court by a plaintiff or plaintiff by counterclaim to cover future costs orders made in favour of a successful defendant. Forcing a plaintiff to post security to cover your client’s costs is important for ensuring that your client is not left with an unenforceable costs order after successfully defeating a claim. It is also a useful tool in defending your client against frivolous claims. However, far more than just an effective costs-protection device, a successful security for costs motion can demoralize a plaintiff and even make the plaintiff think twice about continuing to pursue its claim. But when should such a motion be brought?
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Does a Heter Iska Increase the Risk of Litigation?

Would an Ontario court enforce a Heter Iska? When a religious Jew lends another Jew money they often enter into an agreement called a Heter Iska. Faced with the biblical prohibition against charging interest on loans and the reality that lenders are more likely to lend people money when interest can be charged, the Rabbis created a halachic mechanism to still allow a lender to profit from the loan and not charge interest. This halachic document is called the Heter Iska. The Heter Iska characterizes the lender as an investor who provides capital for a business venture. The Heter Iska provides that the investor transfers ½ of the money as an interest-free loan, is to be repaid even in the case of total loss; the other ½ of the money is the investor’s share of the business venture, which entitles the investor to receive profit that not coincidentally is equivalent to the interest a lender would charge. Thus, at the end, the investor’s money would be returned, and any profits (or losses) would be shared. This halachic mechanism serves to ensure that Jews will not have a financial disincentive to loan one another money.
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When Does The Limitation Period Clock Start Ticking?

In 2006 Ferrara clearly knew someone thought his lawyer, Stephen A. Schwartz, was negligent. Arguably Ferrara would have to sue Schwartz by 2008 or his action would be statute barred. The Ontario Court of Appeal concluded that the limitation period was not triggered until 2009 which meant that Ferrara had until 2011 to start the law suit. In making that decision there was a divergence from a group of cases that suggested that the limitation period would have been triggered in 2006. But, that’s the end of the story. Let’s start at the beginning and review the implications on the issue of discoverability.
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