Commercial Litigation Blog

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 the grammar in your entire agreement clause matter? Yes, it does.

Whether you are buying your first home or papering a multimillion-dollar corporate deal, chances are you will see an “entire agreement” clause somewhere toward the end of your contract. Sometimes known as an integration clause, an entire agreement clause confirms that there are no other terms, conditions, warranties or collateral agreements to the agreement, whether express or implied, except for those expressly set out in the document to be signed. The reason for these types of clauses is obvious – you don’t want the other side taking the position that some previous draft or letter or e-mail formed part of your written contract, then suing you for breach or negligent misrepresentation.
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wrongful dismissal

Wrongful Dismissal: Rabbi gets record award

People often err when looking at the amount of damages a court will award for wrongful dismissal. They sometimes presume that the maximum damage awards are set in stone. As the case we review below will demonstrate, there are times that the courts are so troubled by the conduct of employers that new records are set in damage awards. So let’s talk about the firing of a Rabbi by a synagogue.
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Does a Heter Iska increase risk of litigation?

So I pose the question – is there a litigation risk to a lender who signs 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.
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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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Does A Constructive Trust Trump the Bankruptcy and Insolvency Act?

In the words of the Court of Appeal at paragraph 34, "those funds should be the subject of a constructive trust in favour of DSLC Capital Corp. in order to prevent the unjust enrichment of Credifinance Securities Limited." But, this is the end of the story. Let’s start at the beginning. DSLC Capital Corp. (DSLC) sought to invest in Credifinance Securities Limited (Credifinance) thinking that it was a member in good standing with the Investment Industry Regulatory Organization of Canada (IIROC). DSLC’s plan was to become a part owner of Credifinance so that DSLC could sell securities and other investments to its existing network of investors. Based on representations of the principal of Credifinance, DSLC loaned Credifinance $400,000 and, by share subscription agreement, proceeded to purchase a minority ownership interest in Credifinance.
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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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