Canada Legal Articles
Law related articles writen by lawyers
and experts witnesses practicing in Canada
An analysis and report of the findings of retrospective academic studies of medical malpractice claims in urology with a focus on the implications for their cause and frequency.
In Ontario there has been a number of court cases recently dealing with mistakes in the drafting of wills. The equitable remedy sought by litigants is "Rectification". The courts are debated how sure does the judges have to be to fix the mistake? Is the court limited in how it can fix the mistake? In exercising the remedy is the court limited to just deleting certain parts of the will? Can they add missing words? The author's review addresses how rectification has been dealt with in Ontario.
In Ontario Canada there is a current of cases in the Family Law and Estate Litigation context that suggest that a mistress may be considered a common law spouse under certain circumstances. If that is true, then when her/his paramour passes away the mistress may be able to seek support from the Estate under Part V of Ontario's Succession Law Reform Act. This is despite the fact that the deceased still may be legally married to another person.
In this case report we examine the effect of actual knowledge of a claim, the existence of a medical expert opinion report and the exercise of due diligence on the limitation period defense in a medical malpractice action in an Ontario case.
There are people who pretend to be lawyers and use the Internet to scam the naive and inexperienced. Others pretend to be clients and use unsuspecting lawyers as pawns in fraudulent schemes. These financial predators promise money or business opportunity.
The author compares courts' views of Public Policy in Illinois and the Province of Ontario with respect to testamentary documents disinherting someone for marrying outside the faith. In Illinois, the Court upheld the Disinheritence Clause because they placed a premium on the right of individuals to decide what happens to their assets after they die. In Ontario, a judge in obiter, thought such a clause was void on account of public policy.
In Ontario, Canada an adverse inference may be drawn if the trustee/ power of attorney/ executor fails to retain receipts supporting substantial cash withdrawals or expenses and be held personally liable for the unsubstantiated withdrawals
The Ontario attempt to harmonize its provincial sales tax regime with the federal GST has the charity sector struggling to understand the impact these sweeping changes will have on the various types of charities within the sector.
This year may be particularly beneficial for individuals in the latter category because of the unique opportunity afforded donors in the Conservative government's tax changes announced in the May 2006 budget. The most prominent of the changes allowed for the donation of shares in public companies to public charities (i.e. all but private foundations) on a tax free basis.
After the 2006 Budget, many observers expected that the elimination of tax on the donation of publicly listed securities to "public" charities would be extended to private foundations, and, indeed, Budget 2007 lived up to this prediction.
Overseas operation is fundamental to the operation of many charities, especially religious charities, and so it is important for these charities to have a good understanding of the law regarding carrying out charitable activities overseas. Given that the government subsidizes registered charities to the extent that it gives tax credits for the amount donated, it should not be surprising that the CRA attempts to exert as much control over funds spent overseas as funds spent domestically.
Since June 2005, the Canada Revenue Agency has had the power to impose penalties on charities for breaking certain rules which stop short of revoking the charity's registered status. These intermediate penalties range from a $500 penalty for not filing a charitable information return to paying 110% of an undue benefit bestowed upon a third party.
It is important for charities to be flexible in their thinking when raising funds. In this way, charities may be able to amass donations of items they would otherwise never have sought let alone receive. One such area that deserves further focus by charities is that involving life insurance.
The first and most obvious way is that charities dedicated to relieving poverty obviously have greater restraints put upon them in times when more people are suffering from poverty. Unfortunately, just as the individual suffers from these economic troubles, so too does the charity.
The first interesting change is the abolishment of the PST and the adoption of the HST. While the official government announcement indicated that the rebates available to charities under the HST effectively made charities revenue neutral between it and the PST.
In 1999, Parliament amended the Income Tax Act (the "Act") to create what are commonly called Third Party Civil Penalties. The provisions, which are broadly worded, ostensibly target those individuals who assist others in making what the CRA would believe is a false statement or omission on their tax returns.
For the second time in six years the Federal government is changing the disbursement quota calculation for charities. Originally instituted in 1976 as a way to force charities to spend their funds on their charitable activities, the quota has turned into a cross between a math nightmare and an obstacle for the growth of small charities.
Homeowners in most provinces know that the land transfer tax due on purchase of the home can be the straw that breaks the camel's back as far as affordability goes. Most provinces have a version of the land transfer tax (as called in Ontario, or the Property Transfer Tax or Land Purchase Tax in other provinces). The tax is generally calculated as a percentage of the property being transferred, so the higher the value of the property the greater the tax.
The advent of the HST system in Ontario has been treated with a distinct lack of enthusiasm by charities. On the one hand, as the HST system is based on the GST regime some may feel comfortable with HST as simply being an extension of the GST (the only problem is that the GST is an enigma to most). On the other hand, the silence about the HST in the charities community is in some ways surprising given the now enhanced consequences to directors and charities for misunderstanding the law.
We are periodically faced with the unfortunate situation when a charity or not for profit is forced into bankruptcy or receivership. Unfortunately, giving clear advice in the area is complicated by the relative lack of applicable law. In one circumstance we were confronted with a situation as to whether a going concern operating as a charitable trust could make a proposal in bankruptcy.
This case serves as a warning to any advisors that receive commissions paid by promoters to avoid potentially conflicting situations regardless of their confidence in the shelter. And perhaps more importantly, advisors should hold themselves to the highest fiduciary standards in all cases, even if their relationship with the donor is more fleeting thatn was the one between the Lembergs and Mr. Perris.
The first and likely most recurring situation is a return of member's dues. In theory, there is nothing wrong with the organization returning amounts paid by the members to the organization. However, in circumstances where the organization has provided some (non monetary) benefits to its members the organization would have to deduct the value of these benefits from the amounts being returned to the member.
This article addresses the risks to Israelis being sued in Ontario, Canada. Sometimes there is a tendency for Israeli defendants to ignore Ontario lawsuits. Perhaps they feel judgment proof because they have no assets in Canada. That may be unwise. Ontario may assume jurisdiction and grant judgments against Israeli defendants. Such judgments may be enforceable in Israel leaving the defendant's assets in Israel vulnerable to collection.
This article addresses the risks to Americans being sued in Ontario, Canada. Sometimes these defendants ignore Ontario law suits because they have no assets in Canada. That may be unwise. Ontario may assume jurisdiction and grant judgments against American defendants. Such judgments may be enforceable in the US.
Quite often, people charged with Theft Under are accused of stealing inexpensive item(s) worth under $100. Though inexpensive, property offences are taken seriously by the Courts. If found guilty, the result could be a criminal record.
The author reviews the specifics about weapons-related criminal charges that people face in Brampton, Newmarket, Toronto, and other regions in Ontario.
The author canvasses what questions should be asked when reviewing how an attorney for property has managed accounts. In the context of estate and trust litigation in Ontario Canada the author addresses the most common problems with accounts including whether they are in proper court format, if assets are missing, the location of joint assets, vouchers and the amount of compensation claimed.
Clients seek out lawyers who will take on cases on a contingency fee basis. The author discusses the factors that both the client and lawyer should consider before choosing this payment scheme and the legislative and statutory governance of this practice in Ontario, Canada.
Bringing legal expertise into business strategy development is the natural conclusion of the process which the author has advocated of lawyers to becoming more nuanced and practical business advisors.
Executors in Toronto often want to buy assets belonging to an estate. Beneficiaries often suspect the executors of wrong doing. The short answer is maybe, possibly, but not usually.
Looking for innovation in the delivery of legal services leads naturally to an examination of business of lawyering, as opposed to the practice of law, and there is a large range of potential new business models to be considered.
Law schools do not generally teach anything about business, as opposed to business law. As a result, lawyers learn about business legal forms and contracts, but nothing about the non-legal imperatives of running a business like corporate finance, marketing, or corporate strategy.
This article refers to the several recourses available to enable a syndicate of co-ownership to collect the contributions for common expenses (condo fees) from co-owners who are negligent in remitting these expenses.
The current economic climate, continued employment and employment relationships are more critical than ever. Loyal and productive employees afford and employer its best chance to emerge unscathed at the end of this lengthy recession. However, economic pressures may require an employer to reorganize or restructure its workforce. Doing so properly, and in accordance with the law, will ensure continued survival of your business, your profitability and your reputation.
A brief explanation of British Columbia's consumer protection legislation for pre-sale purchasers of condominiums, and comment on how the courts have recently enforced the legislation in disputes between developers and purchasers.
Your practice is doing well. Interest rates are low. Your lease is about to expire, and you are tired of paying rent. You want to buy a commercial property (the “Building”) that will be owner-occupied. You may also have additional space available for rent. After some time, you may want to sell the Building or rent it out in its entirety. So what do you do?
On February 16, 2010, Canada’s Finance Minister announced changes to federal mortgage rules that will take effect on April 19, 2010. The new rules will likely affect all residential real estate purchasers in Canada. This article discusses the serious financial impact of the new rules on condominium pre-sales.
It is important for people who wish to stop estate assets from being distributed to know that a certificate of appointment (“Probate") is not always necessary to effect the transfer of assets.
Probate in Ontario is called "a certificate of appointment of estate trustee with a will". This article addresses what steps have to be taken in Ontario to stop the process of getting a Will probated.
This article will briefly discuss the advantages and disadvantages of the two common structures – share purchase or asset purchase arrangements.
The late William F. Buckley Jr. was a renowned political commentator and writer whose conservative views were much admired by right wing proponents of “law and order”, a term referring to harsh criminal law policies including “zero tolerance” in the so-called “war on drugs”.
Elderly people who are lonley, depressed, ill and cognitively impaired are especially vulnerable to financial predators who marry them as part of a plan to obtain control and ownership of their assets. This article is a review of an Ontario case called Banton v. Banton in which Justice Cullity of the Superior Court of Ontario, Canada dealt with such a situation, set aside the Will and addressed the differing capacities for making a Will and getting married.
There may be as many as 150,000 seniors being victimized in Ontario Canada.(FN1) The abuse can take many forms. One common form of abuse is financial. The purpose behind this article is to provide some information to people on the first steps they might consider when discovering the problem. Let’s first talk about signs of financial elder abuse.
Why is filing a Notice of Objection so important? Once filed, the court registrar will not issue a certificate of appointment (Probate) without notice to the Objector. Probate tells the world that the Will is valid & the executor is in charge of the assets. There is a risk that when granted Probate, the executor can sell the assets or remove out of the jurisdiction and thereby make collection difficult.
This text reports some myths relating to the contingency fund that we identified through the exercise of our specialty. Following is the list of the syndicate's obligations relating to the contingency fund.
The rental of dwellings in an immovable in divided co-ownership is common in Quebec. Nevertheless, this is a delicate operation, requiring several measures of precaution and should never be done blindly.
When advising business clients about doing business in Canada, lawyers must turn their minds not only to the kinds of corporate vehicles which Canadian law permits but also the vailable remedies if disputes arise. This paper highlights the remedies available in common law jurisdictions of Canada to protect shareholders and others from abusive corporate action, including oppression remedy, derivative actions, court-ordered meeting, investigations and winding up.
Ontario revised its Rules of Civil Procedure to make the civil justice system more accessible and affordable for Ontarians. The changes touched on: * Discovery * Pre-Trials * Simplified Procedure * Experts *Service Filing Deadlines * Case Management * Summary Judgment * Dismissal & Status Hearings. This article does not cover every change to the Rules of Civil Procedure. It covers two aspects of the changes which are of heightened interest to the public at large.
In the enlightened age of mediation, more than of 90% of all lawsuits eventually settle. Good counsel must now see the pleadings in a different light. The Statement of Claim or Complaint is a very useful marketing tool. If drafted with its audiences in mind, it can go a long way to help achieve a good settlement. The authors are experience business litigation lawyers in Toronto, Canada.
Assessing the prospects of success on appeal and winning on appeal are among the most difficult aspects of an advocate’s role. Losing party’s counsel is confronted with human and analytical challenges which can be more complicated than the events which led to the unsatisfactory trial judgment, jury verdict, arbitral award or tribunal decision. Winning counsel has to deal with the possibility of reversal.