Canada Legal Articles
Law related articles writen by lawyers
and experts witnesses practicing in Canada
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Under the the common law and Ontario statute and regulations the attorney for property has a absolute strict duty keep accounts of all transactions involving the property of the grantor of the Power of attorney. Justice Strathy, in his judgment, addresses what happens when the attorney fails to keep proper accounts. In this case, the Attorney lost all rights to compensation, he had to return money wrongfully taken from the grantor and ended up personally paying the legals fees on the other side.
Moe Maraachli and Sana Nader's recent dispute with a hospital over the fate of their terminally ill child highlights a debate over end of life issues. The author reviews an Ontario case to highlight how Ontario has dealt with the tension of a patient’s right to consent to treatment and a doctor's right to advocate for what he/she feels are in the best interests of the patient.
The author explains how to protect a medium sized estate from bankruptcy without going to the expense of establishing an offshore trust.
DNA testing is growing in importance in Ontario estate litigation cases. In his analysis of Proulx v. Kelly the author describes how the biological connection impacts on rights in an intestacy and the statutory presumptions of parenthood on Ontario.
The author reviews the factors taken into account when Canadian courts decide if a non compete restrictive covenant is valid. Canadian courts ask if the restrictive covenant is ambiguous. Is it unreasonable? In determining the unreasonableness of the prohibition to compete Ontario courts look at the geographic coverage of the restriction, the activity being restricted and how long the ex employee is forbidden to compete.
This article addresses a situation where Americans involved in Ontario law suits may have to travel to Canada to be deposed. Ontario's regulations provide for the court to use its discretion in determining the manner and place of the deposition. The author uses a fictional scenario to demonstrate the issues canvased by the court and reviews relevant Canadian case law.
In Ontario, the courts differentiate between equitable and legal remedies. A litigant may obtain an equitable remedy at the court's discretion while a legal remedy is granted to the litigant by way of right. The article addresses the question as to whether Ontario courts will exercise their equitable discretion if party seeking the equitable remedy has come to court without clean hands.
In Ontario, businesses are incorporated for many reasons including shielding its shareholders from personal liabilities. The Ontario Business Corporations Act's oppression remedy is one way in which debtors may pierce the corporate veil. This article discusses another difficulty for shareholders. Canadian courts have found shareholders' personally liable when said shareholder failed to "bring home" to the debtor that he is negotiating on behalf of his corporation.
Protecting your property is an important thing. How do you do it? Why do you do it?
We have all heard of the saying “he says-she says”. Absent an agreement, the “he says-she says” can become a problem, especially for the grieving party. We have heard of prenuptial agreements, separation agreements, commercial agreements, confidentiality agreements, and a plethora of other agreements. It is conceivable to draft up an agreement for any given situation.
In Canadian courts, arbitration agreements are broadly interpreted and if a dispute could arguably fall within the scope of an arbitration clause, the court should refer the parties to arbitration. Courts should permit the arbitrator to determine if the claim falls within the scope of the arbitration clause. However, that doesn't mean there is no litigation over arbitration clauses.
Ontario courts order security for costs to protect local defendants from foreign litigants who launch frivolous or vexatious claims and do not have the money to cover a potential cost award against them. Foreign plaintiffs may have assets outside of Ontario and possibly defeat a security for costs motion if his assets are accessible to satisfy a judgment because of reciprocal enforcement legislation.
In British Columbia disinherited adult children have a strong claim against a parent's estate based on their moral entitlement to an inheritance. Tataryn was the seminal case in British Columbia. The importance of adult children dependent's moral claim in Tataryn was adopted by the Ontario Court of Appeal. But there is no clear court decision in Ontario suggesting that the moral claims of non dependent children are legally enforceable in Ontario.
In Ontario section 33 of the Marriage Act suggests that the person who breaks up an engagement is irrelevant to a court's determination about who should get the ring. Notwithstanding the legislation, the common law apparently continues to penalize the person who broke off the engagement. The author reviews the law and canvasses some of the academic responses to the law.
By Connolly Law
The recent decision of the Supreme Court of British Columbia in Brewster v. Lenzi, considers the enforceability of mutual will agreements and the relief available when an agreement is breached.
By Connolly Law
There are different ways of disposing of personal effects in a will, one of which is making specific gifts to named beneficiaries. Sometimes people mistakenly believe that verbally telling their prospective executors how assets are to be distributed or writing the names of various relatives’ on masking tape and labeling items are effective ways of planning for the subsequent distribution of the items.
The author reviews Ontario’s laws of inheritance in the context of second marriages. He addresses the risk to implementing a person's testamentary intentions. For example, in Ontario, under certain circumstances a new marriage revokes previous wills, the failure to provide full and frank disclosure may invalidate a domestic contract and a court may still order a deceased’s estate to pay support to a dependant regardless of any agreement made to the contrary.
The author looks at the advantages of immigration to 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.