News & Events

Andrea Hill and David Howell part of Annual Advocacy Conference

The 18th Annual Advocacy Conference takes place at the Hamilton Convention Centre on December 6th and two of ESB's lawyers will be a part of the program. Andrea Hill will be one of the four panelists discussing Current Issues in Equality, Diversity and Inclusion and David Howell will join his two[...]

ESB Lawyers Welcomes Brent Murphy

After articling at ESB, and being called to the bar on June 26, 2018, Brent Murphy has joined the firm as a member of the Litigation Practice Group.  Brent is a graduate of the Schulich School of Law at Dalhousie University in Halifax.[...]

Kylie Weber joins ESB Lawyers

We are pleased to announce that Kylie Weber has joined the Litigation Practice Group at ESB Lawyers.  After completing her Juris Doctor with distinction at Western University and articling with a reputable firm in London, Kylie was called to the Bar on June 20, 2018.   As a member of[...]

Publications

Evans’ Insights – The Supreme Court of Canada on Mortgage Statements

If you knew as little as I do about web site function, you should be nervous because you are at the back of a terribly long line. So how you found this note reflects search gifts hidden behind mysterious keys for me. Well done.

I plan to write regularly about the decisions and the reasoning of the Supreme Court of Canada when those insightful judges speak out about issues and ideas which have influence on the business interests and personal interplay of Canadians. Less probable topics are the justice disputes about and affecting a relatively narrow interest. I know – you can hardly wait.

A development surfacing has seen the Court granting leave and pronouncing on transactional legal issues. Appointed in 2014 from a distinguished Montreal advocacy practice, Justice Suzanne Côté is writing extensively on business issues where the Court has perceived a need to better the law. In mid-November Justice Côté released reasons on a mortgage issue.

Everybody has a mortgage.  A few are the lenders.  Most though are borrowers. In order to pay off a mortgage what you need from the lender mortgagee is an accounting – a statement setting out exactly how much is owed. Usually that is not[…]

The Status of Status Hearings: Civil Rules Committee amends Rule 48 beginning New Years’ Day

On September 6, 2014, Ontario Regulation 170/14 was gazetted. It contains a number of significant amendments to the Ontario Rules of Civil Procedure that all counsel practicing civil litigation in this province need to know.

Dismissal of Action for Delay—effective January 1, 2015

The current Rules 48.14 (Action Not On Trial List) and 48.15 (Action Abandoned) have been revoked. This is a major change to the Rules with respect to administrative dismissals, directly aimed at improving the efficient use of judicial resources.

In their place, a new Rule 48.14 is enacted. Actions will now be dismissed by the Registrar if not set down for trial by the later of the fifth anniversary of their commencement and January 1, 2017, or, if struck off the trial list and not restored by the later of the second anniversary of being struck off the list and January 1, 2017 [r.48.14(1)].

A key point is that such dismissal for delay will occur without any prior status notice to counsel or the parties. Instead, a dismissal order (Form 48D) will be sent to counsel after the fact. Counsel are made subject to a duty to promptly provide a copy of the dismissal order to the client. (No timeframe for[…]

Doctrine of misnomer continues to evolve

As a result of the new Limitations Act in Ontario, the only way to add a party to an action after the expiry of the limitation period is by using the doctrine of misnomer. The Act requires parties to commence actions within the limitation periods and a failure to do so can be fatal to a claim. The doctrine of misnomer can preserve a litigant’s claim in the event of errors in naming a party at an early stage in the litigation.

In the recent decision of Casselman v. Casselman (2014 ONSC 1267), Justice Tucker used the doctrine of misnomer to add a party to a claim after the expiry of the limitation period.

In Casselman, the Plaintiff was injured when the car in which she was a passenger was struck by an unidentified vehicle. The driver of the vehicle in which the Plaintiff was a passenger was insured by Economical, which was liable for injury and damage caused by unidentified vehicles up to a maximum of $200,000.00. The Plaintiff was independently insured by Aviva who would be liable for any damages in excess of that amount.

Shortly after the accident, the Plaintiff put Economical on notice of a potential claim under the[…]

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