We are estate lawyers and business lawyers in Toronto who keep abreast of new legal developments.
The Christmas season is behind us and the annual speculation over immaculate conception forgotten for most. A new tort was born just before the holidays and unfortunately not accorded much fanfare. New torts are almost as rare as shining stars in the East and deserve to be either publicly celebrated or vilified.
The new tort is invasion of privacy. Or perhaps more accurately stated, the old tort of invasion of privacy been has now been restated to expressly include intrusion upon exclusion. Or put another way, a new leg of the old tort has grown. Or perhaps an old leg of an old tort has now merely been recognized. Or put another way …
Whatever the proper academic analysis of the jurisprudence may be, the bottom line is that the Ontario Court of Appeal did something it rarely does. In a one in a thousand ruling the Court would step up to recognize a new remedy for the 21st century and then lay out its reasons in a laudable display of plain language.
Judges and lawyers are by training slaves to precedent. Every time an action is commenced in a Court the hard question is always asked – what is the legal cause of action? If there is no cause of action, one can expect the defendant to quickly move to strike the statement of claim for failing to disclose a cause of action. 999 times out of a thousand the defendant will succeed on this motion. Read the rest of this entry »
FEAR
In my experience, there is common misconception that the fear faced by the living in drafting their Will is confronting their death. The fundamental fear as I have observed it is not the fear of the unknown but fear of the known.
Who do I trust after my death to administer all of my assets with the same care and attention that I administered them? Who do I trust in death to deal with my bank, my broker, my life insurance company, CRA, lawyers, real estate agents and family members? Who could possibly fill my shoes? With all these questions swirling about, the client may experience paralysis and the years go by without the Will being prepared.
I present in this blog some obvious, but I think under-considered, alternate executors to assist the client to clear the mental hurdle.
ANXIETY
We live in an increasingly individualistic world where the middle class are hired and fired at will, divorce rates are at 50% and citizens are increasingly self-reliant. In this environment, the reaction of some individuals has been to become more and more protective of in their private financial affairs.
Read the rest of this entry »
Economically powerful parties are increasingly inserting clauses in their one-way contracts to prevent any claims by the weaker party. Realistically, the weaker party has no negotiating power and just signs off in the hope that things will work out for the best. Think the banks. Think big business. Think your government.
The courts have long supported the concept of commercial certainty and in almost all cases will enforce contracts literally and without undue delay. The procedural mechanism of the summary dismissal motion in Ontario was designed perhaps with such contractual limitation clauses in mind.
On the other hand, the law never ceases to surprise the clients, the lawyers and, sometimes, the judges themselves. Read the rest of this entry »
For many civil litigation lawyers, the merits of the case and the complexity of the legal issues are their daily bread. They pursue their intellectual fascination with the power and process of the law. Of course for some lawyers, the fees to be earned is their raison d’être and you may be familiar with one or two of these members of our bar.
What is lost between Pericles and the plumber is some early, sustained focus on the costs to the client of proceeding with any type of litigation and the client’s understandable terror that he will suffer a costs order. The costs order represents a triple insult – usually the loss on the case, the sting of legal fees thrown away on his own counsel, and the ignominy of signing the cheque payable to the opponent’s advocate.
Any counsel who has practiced in the civil Courts will at some point have experienced the client remorse of the lost case and the costs order. This cannot be avoided.
But what can be done is that both lawyer and client start discussing costs more seriously early on. Read the rest of this entry »
Earlier this year the Ontario legislature followed the lead of four other provinces and passed the Apology Act, 2009, with surprisingly little fanfare.
In the past, counsel, particularly in civil actions, have relied on the apology, whether oral or in writing, as strong evidence of proof of liability on the part of the apologizer. While the Court has rarely been swayed by this piece of evidence standing alone, in some cases it has been an important piece of the puzzle in proving liability. Think of a wrongful dismissal case where the guilt-ridden manager unburdens himself to the employee and then delivers the bad news in line with HR’s policy. Read the rest of this entry »
