The plaintiff in a recent case was a tenant of a farm property for a one-year term. The plaintiff and the landlord drafted a renewal lease. This gave the tenant another year and an option to purchase the farmland. Unfortunately, neither party signed the draft lease and landlord died shortly thereafter.
The Alberta Court granted Summary Judgment in favour of the estate, denying the plaintiff’s action to enforce the draft lease, since absence of execution breached the statute of frauds (involving dealings with real property).
The fact that the plaintiff stayed on paying rent after expiration of the original lease could not be established as “part performance” to get around the strict interpretation of the statute. The plaintiff’s rent was consistent with the obligation of an over-holding tenant. Corroborating evidence of the new agreement did not make the draft release enforceable. (Peters v. Wilson Estate, 2011)
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Proportionality: The Ontario courts have recognized that acts in actions and proceedings have to be proportionate to amounts claimed.
In a recent case, the plaintiff was employed by a law firm for two years, and then let go. She sued for wrongful dismissal.
The firm counterclaimed for fees owed by clients of the plaintiff while at the defendant firm. The firm then proposed to add 165 former clients to the counterclaim.
The court held that the action had already identified the files, clients, retainer and fees, and to add 165 defendants by counterclaim was not sensible and not proportionate to the issues involved. (Oakley v. Levinter & Levinter, 2011)
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Right of survivorship: A creditor’s efforts to attach one half of a bankrupt spouse’s matrimonial property failed in a recent case.
The debtor held his matrimonial home with the spouse as joint tenants. The debtor became bankrupt and died, and his estate was bankrupt within one year of his death. The spouse obtained sole ownership by right of survivorship.
The creditor’s attempt to impose a trust on the deceased’s half of the house or overturn alleged vesting in the spouse failed. The court confirmed title in joint tenancy means:
(a) Each party has an inchoate right of survivorship “at time property is acquired”.
(b) Each spouse has a chance to acquire the whole of the property and risked that he/she might predecease the other. This was mutual consideration.
(c) The spouse owned the property prior to the date of bankruptcy.
d) The law that provides “right” of survivorship (automatic vesting). (Cameron (Re), 2011)
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Summary judgment motion: In Ontario and many of the provinces, there is a court procedure that can be evoked, asking a motions judge to dismiss an action on affidavit evidence (or oral evidence) and on the facts at a stage where the person moving says a full trial is not needed.
Likewise, a plaintiff can ask for summary judgment for an award of damages and costs where there is no “actual defence” to the action. This procedure requires each party to put its best foot forward before any trial takes place.
In one such Ontario case, a summary judgment motion was not successful and the original judge hearing it awarded the other party $345,000 costs. On appeal to the Divisional Court, the costs were reduced to $145,000.
I am certain that most laypersons would agree that a hefty price can be paid for trying to shorten a case unsuccessfully.
Most of these cases can be found at www.canlii.org.
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
