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Law Offices of Nizam Hashmi > Uncategorized

Rumsam v. Pakes – Limitation Period, Discoverability

*Rumsam v. Pakes 2019 ONCA 748 Limitations — Discoverability — Reasonable diligence — Plaintiff suing clinic and doctor who treated her for wrist injury for negligence in failing to advise her that follow-up x-ray was required — Plaintiff discovering by August 2013 at latest that x-ray report that recommended follow-up x-ray was reviewed by unidentified clinic doctor and not by defendant — Plaintiff moving to add that doctor as defendant in January 2017 — Motion judge erring in granting motion — Plaintiff not exercising reasonable diligence after discovering claim against unidentified doctor as she took no steps to determine doctor’s identity for...

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Mulholland v. BMO Trust Co- Succession Law Reform Act, Equitable Remedy

*Mulholland v. BMO Trust Co.2019 ONSC 5785 Civil procedure — Costs — Full indemnity — Substantial indemnity — Estoppel — Proprietary estoppel — Elements — Representation element — Reliance element — Detriment element —  Trusts and trustees — Trustees — Duties — Trusts and trustees — Trustees — Liability — Wills and estates — Dependants’ relief — Entitlement —Succession Law Reform Act, R.S.O. 1990, c. S.26. The respondent and her husband had nine children. In 1983, one of the children left school due to health problems and returned to live with his parents on a horse farm property his father had recently purchased....

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Family Law: Spousal Support, Summary Judgment

*Birnie v. Birnie Estate] 2019 ONSC 2152 The applicant and B entered into a separation agreement in 2004 that required B to obtain a life insurance policy in the amount of $500,000 designating the applicant as the irrevocable beneficiary and to maintain that beneficiary designation for so long as he was required to pay spousal support to the applicant. B did not obtain the contemplated insurance. He died in 2017. The applicant brought an application for an order requiring B’s estate to pay her $500,000 and a motion for summary judgment. Held, the motion should be granted. The sole purpose of the life...

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Civil Litigation: Contract, Trust, Property, Real Estate, Damage, Trial, Appeal

**Paulus et al. v. Fleury2018 ONCA1072 During a pre-trial conference in an action for damages arising from a motor vehicle accident, counsel for the plaintiffs stated that he had “independent” witnesses to the collision who were “good people” and “solid good witnesses”. The defendant’s counsel agreed to settle theclaim. Defence counsel thendiscovered that the witnesses’ son lived across the street from the plaintiffs. He repudiated thesettlement. The plaintiffs brought a motion to enforce the settlement. Theyarguedthatwhentheircounseldescribedthewitnessesasindependent,hemeant that they could give evidence extrinsic to that of the plaintiffs, as they were in a separate car in a separate lane, and not that they did not know the plaintiffs. The motion judge rejected that interpretation. He found that the plaintiffs’ counsel’sstatementthatthewitnesseswere“independent”wasastatementoffact,not opinion, and that it was untrue. He concluded that the statement amounted to civil fraud and...

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Family Law: Spousal Support, Property​ Division

Climans v. Latner 2019 ONSC 1311** The parties separated in 2015 after a 14-year relationship that was sexual in nature. During that relationship, they maintained separate Toronto residences. The applicant claimed that she kept her own house so that her children from a previous marriage could be close to their school. The respondent, who was extremely wealthy, paid all of the applicant’s expenses and provided her with spending money. They exchanged rings and held themselves out to others as a couple. After the separation, the applicant brought an application for spousal support. The respondent claimed that the applicant was his...

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Aquilina v. Aquilina, Family & Divorce Law

Family & Divorce Law, equalization of net family property, intestate, election *Aquilina v. Aquilina, 2018 ONSC 3607 The applicant’s husband died intestate shortly after receiving a cancer diagnosis. The deceased’s complex international estate would not be an easy one to administer. As yet, the estate had no administrator. The applicant brought an application to extend the six-month deadline under s. 6 of the Family Law Act (“FLA”) for electing to receive an equalization payment under the FLA in lieu of her entitlement under the Succession Law Reform Act. Held, the application should be allowed. Any time prescribed by the FLA can be extended pursuant...

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Commercial, Real Estate, Breach of Contract Litigation

*Romijay Enterprises Ltd. v. 11 Yorkville Partners Inc. 2017 ONSC 2388 The plaintiff R Ltd. owned one unit in an eight-unit condominium property. The wife of R Ltd.’s controlling mind B had renovated the unit for use by B’s law firm. After his wife died of cancer, B stopped practising law and transformed the unit into an alternative healing centre. The defendant Y Inc. owned five units in the property. It wished to cause the condominium corporation to sell the property to a non-arm’s-length purchaser, and relied upon s. 124(2) of the Condominium Act, 1998, which provides that a condominium corporation...

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Wrongful Dismissal: Brake v. PJ-M2R Restaurant Inc.

**Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402 Employment — Wrongful dismissal — Constructive dismissal — Employer telling restaurant manager that she could accept demotion to position as first assistant with meaningfully inferior benefits or be fired — Employee constructively dismissed — Employee not obliged to accept humiliating demotion in order to mitigate her damages. Employment — Wrongful dismissal — Damages — Mitigation — Trial judge awarding constructively dismissed employee damages based on notice period of 20 years (inclusive of statutory entitlement to termination and severance pay) — Employment income earned by employee during statutory entitlement period not subject to deduction...

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Corporate Fraudulent Case: Midland Resources Holding Ltd. v. Shtaif

**Midland Resources Holding Ltd. v. Shtaif, 2017 ONCA 320 Actions — Bars — Settlement — Plaintiff shareholders induced by defendants’ deceit and fraudulent misrepresentation to invest in sham company to develop oil and gas fields in Russia — Fraud coming to light in June 2006 — Parties entering into settlement agreement and reorganizing venture using new company — Plaintiffs suing defendants for fraudulent misrepresentation, deceit and conspiracy — Settlement agreement not precluding plaintiffs from asserting any claims for period before June 2006. Corporations — Directors — Duties — Trial judge erring in finding that director was liable to shareholder for breach...

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