Civil Litigation and Disputes

Many defamation actions begin with an online post, a review or an email sent to people who know the person named. We read the words the way an ordinary reader would, including any meaning conveyed by innuendo from facts that reader already knows. The defences of justification, fair comment and qualified privilege turn on truth, opinion and occasion respectively, so we test the words against all three before anything is filed.

Once the other side serves a dismissal application, section 5 of the Act stops every further step in the proceeding, other than an injunction application, until the application and any appeal are finally resolved. We bring these applications for the person who spoke and oppose them for the defamation plaintiff. The evidence goes in by affidavit, with cross examination limited to seven hours a side unless the court extends that period, so the first affidavit does most of the work.

Clients who relied on a professional's advice or a negligent misstatement, and professionals whose work is now in question, instruct us on both sides of professional liability. Our lawyers retain the expert early, because the standard of care is usually proved through evidence of what a reasonable member of that profession would have done. That timing matters, since a court measures the conduct against the practice of the day, and causation remains a separate element the claimant must still prove.

When more than one party caused a loss, including a claimant whose contributory negligence added to the damage, section 1 of the Negligence Act apportions liability by degree of fault. Working from that section, our lawyers identify every party who shares the fault before the pleadings close. Where the claimant bears no share of the fault, section 4 makes the defendants jointly and severally liable, so any one of them can be made to satisfy the whole judgment.

Civil fraud has four elements, stated by the Supreme Court of Canada in Bruno Appliance and Furniture, Inc v Hryniak, 2014 SCC 8. We read the correspondence against each one, from the false representation and the defendant's knowledge of the falsehood to the reliance and the loss that followed. Getting that reading right early settles which defendants belong in the action, and whether conversion or tracing can reach property someone else now holds.

Breach of fiduciary duty occurs when a director, trustee, agent or business partner uses a position of trust for personal gain. We pursue an accounting of profits from the fiduciary, a constructive trust or tracing into the property the money bought, depending on where the value now sits. Where the fiduciary is our client, we test whether the relationship imposed a fiduciary duty at all, since many commercial relationships do not.

Owners come to us when a survey shows a fence, a building or a driveway on the wrong side of the boundary. Our lawyers bring and answer encroachment applications under the Property Law Act, where section 36 lets the court grant an easement, vest title on compensation or order the encroachment removed. That remedy matters in these disputes, since section 28 of the Limitation Act bars anyone from acquiring title by adverse possession, apart from rights acquired before July 1, 1975.

When a neighbour's drainage, construction work or tree roots interfere with the use of land, we advance or defend the nuisance or trespass action that follows. Working from the survey, the photographs and the history of each property, our lawyers establish what each owner was entitled to do. The remedy often shapes the strategy, since a permanent injunction to stop the interference and damages for past loss answer different needs.

The three-part test from RJR-MacDonald, [1994] 1 SCR 311, governs an interlocutory injunction sought before trial. We seek and oppose these orders on affidavit evidence, tested against a serious question to be tried, irreparable harm and the balance of convenience. Getting the first affidavit right matters, since an applicant usually undertakes to compensate the other side for any loss the injunction causes if the applicant later loses at trial.

A party commits civil contempt by disobeying a court order, and the Supreme Court Civil Rules set the application procedure in Rule 22-8. We prosecute and defend these applications against the three elements set in Carey v Laiken, 2015 SCC 17. Where the order was clear and the party knew of the order, the court still requires proof beyond a reasonable doubt that the party intentionally did what the order prohibited.

When a party's conduct in the litigation becomes reprehensible, the court can order special costs, which come far closer to the legal fees actually incurred than ordinary costs do. Working from the transcripts and the correspondence, our lawyers assess whether conduct such as untruthful evidence at discovery crosses that threshold. The threshold is high, and a court can decline special costs even where the conduct deserves criticism.

Parties come to us after a trial or chambers ruling, usually with 30 days from the date the order is pronounced to file a notice of appeal, and some orders also need leave to appeal. Our appellate work starts with the grounds, because a finding of fact stands unless the judge made a palpable and overriding error, while a question of law is reviewed for correctness. That difference decides which grounds are worth arguing, for the appellant and for the respondent answering the appeal.