Law Offices of Nizam Hashmi
100 Consilium Pl # 200 M1H3E3 Toronto, ON, Canada

#Civil #Litigation - #Injunction, #Motion: Toll-Free #1-844-642-7464; #(05-503-1486; #647-772-8187 **Ryerson Students’ Union v. Ryerson University, 2020 ONSC 1490 The plaintiff union and defendant university were parties to an operating agreement in place since 1986. The defendant collected annual fees from its students and remitted those to the plaintiff. An article in the student newspaper in 2019 reported that the executive had engaged in questionable spending through unau...Continue reading

#Civil #Litigation #Corporate #Commercial #Litigation: Toll-Free #1-844-642-7464; #905-503-1486; #647-772-8187 *Softcom Solutions Inc. v. Canada (Attorney General)] 2019 ONSC 7191 The Canada Revenue Agency (CRA) audited the corporate plaintiff, resulting in criminal charges against two of its principals. Following a lengthy preliminary inquiry which resulted in a committal for trial, the charges were stayed for unreasonable delay. The plaintiffs then commenced an action aga...inst the CRA and others for negligent investigation. The conduct of the CRA auditor, including his contacts with investigators in the Special Investigations section of the CRA, was a critical issue. The auditor had since died, but he had testified for about nine days at the preliminary inquiry and was examined in-chief, cross-examined and re-examined. The defendant sought leave to enter the transcripts of his testimony as evidence. Held, the transcripts should be admitted. The transcripts were admissible pursuant to the principled exception to the rule against hearsay. The defendants sought to rely on the substance of the auditor’s testimony and the plaintiffs had no opportunity to cross-examine him, so the transcripts were hearsay and presumptively inadmissible. However, the evidence met the necessity and reliability factors under the principled approach. The necessity factor was clearly met because the auditor was deceased. The reliability factor was met because the auditor’s conducting of the audit and his findings, being matters in issue in the present case, were reviewed in both direct and cross-examination. A review of the transcript revealed a rigorous cross-examination that provided an adequate substitute for testing the evidence in the civil trial. *source: Ontario Reports

#Civil #Litigation: #Sexual #Battery #Trial #Appeal: #Toll-Free 1-844-642-7464; #905-503-1486; #647-772-8187 Website: www.nhashmilaw.com **D. (B.) v. O. (D.) 2020 ONCA 29 The parties were co-workers engaged in a sexual relationship. The plaintiff testified that on a lunch break they went to a secluded area and had sexual intercourse. The defendant told the plaintiff to turn onto her stomach. The plaintiff felt excruciating pain, almost to the point of passing out. By the time... they returned to work, the plaintiff noticed that she was bleeding quite badly. She was treated for a rectal fissure. Expert medical evidence suggested that it would have taken a traumatic event beyond regular anal penetration to cause the injury. The defendant admitted at trial that he penetrated the plaintiff from behind, but vaginally, not anally. In cross-examination he was confronted with his statement of defence, in which he admitted to digitally penetrating the plaintiff’s anus. He denied it and could not explain why it was in the pleading. He had also disavowed the admission at his examination for discovery. The trial judge identified a number of deficiencies in the plaintiff’s evidence, noting that she gave differing accounts of the incident to different people, which were contradicted by her testimony at trial, and that she saw her family doctor on two occasions over the course of two weeks before mentioning her injury. The trial judge contrasted the plaintiff’s evidence with the defendant’s account, which he characterized as straightforward, and only partially undermined by his cross-examination on the statement of defence. The trial judge was not satisfied on a balance of probabilities that the plaintiff had proven either sexual battery or negligence. The plaintiff appealed. Held, the appeal should be dismissed. The trial judge was alive to the legal issue regarding the admissions in the statement of defence, and clearly treated the defendant’s trial evidence as an attempt to withdraw an earlier admission, which was within his discretion. It was not an error to focus on the battery evidence to the exclusion of the negligence evidence, as the judge observed that both causes of action were factually intertwined. The trial judge carefully evaluated all of the evidence and was simply not satisfied that the standard of proof had been met. His credibility findings were entitled to deference and there was no reason to disturb them. **source: Ontario Reports

#Business #Commercial #Litigation: Toll-Free #1-844-642-7464; #905-503-1486; #647-772-8187 Website: www.nhashmilaw.com **AIMCO RE GP Corp. v. CHC MPAR Church Holdings Inc.2019 ONSC 5864 A general partnership was formed by CHC Realty Development Corp. (CHC) and MPAR Holdings Inc. (MPAR), resulting in the formation of a limited partnership, CHC MPAR LP, for the purpose of acquiring and developing certain parcels of land in Toronto for student housing. MPAR was given the opp...Continue reading

#Civil #Law, #Litigation #Motion, #Trial, #Appeal #Court, #Partition #Sale #Claim, #Defence: Toll-free #1-844-642-7464, #905-503-1486, #647-772-8187 Website: www.nhashmilaw.com **Paulus et al. v. Fleury 2018 ONCA 1072 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....Continue reading

#Real #Estate #Property #Mortgage #Litigation: #Professional #Negligenc, #Mortgage #Security #Enforcement #Trial #Appeal: Toll-free #1-844-642-7464, #905-503-1486, #647-772-8187 Website: www.nhashmilaw.com *Hilson v. 1336365 Alberta Ltd.] 2019 ONCA 1000 Appeal by the defendants from trial judgment finding them liable on their personal guarantees respecting the amounts owed on 25 mortgages. Cross-appeal by the plaintiff from the trial judge’s decision reducing the amount owing... on the guarantees by 50 per cent to account for the proceeds of a settlement received by her. The plaintiff had sued the lawyer who had acted for her on these and other transactions for negligence. The allegations of negligence included but were not limited to failure to obtain proper security for her mortgage investments. That action was settled for a global sum. The trial judge reduced the amount owing on the guarantees by 50 per cent to account for the proceeds of the settlement and to avoid double recovery. Held, the appeal should be dismissed. Cross-appeal allowed. The trial judge did not err in finding that the applicable statutory limitation period for the claim on the guarantees was ten years pursuant to the Real Property Limitations Act and not the two-year period in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. The guarantees fell within any other instrument to repay the whole or part of any money secured by a mortgage in s. 43(1) of the Real Property Limitations Act. The trial judge erred in reducing the amounts owed under the guarantees. The facts of this case did not at this point engage the double recovery or double satisfaction principle. The trial judge’s determination that a 50 per cent reduction was appropriate was entirely speculative. The appellants had not established that their liability under the guarantees had been reduced by satisfaction of the guaranteed debt. The trial judge’s finding that the guarantees were valid and enforceable was not consistent with his finding that 50 per cent of the settlement should be attributed to the claim on the guarantees. Until the plaintiff actually achieved full or substantial satisfaction of the debt she was owed, there could be no question of double recovery. *source: Ontario Reports

#Civil #Law, #Litigation #Motion, #Trial, #Appeal #Court, #Debt #Loan #Security #Enforcement #Collection #Double #Recovery #Claim, #Defence: Toll-free #1-844-642-7464, #905-503-1486, #647-772-8187 Website: www.nhashmilaw.com *Hilson v. 1336365 Alberta Ltd.] 2019 ONCA 1000 Appeal by the defendants from trial judgment finding them liable on their personal guarantees respecting the amounts owed on 25 mortgages. Cross-appeal by the plaintiff from the trial judge’s decision reduci...ng the amount owing on the guarantees by 50 per cent to account for the proceeds of a settlement received by her. The plaintiff had sued the lawyer who had acted for her on these and other transactions for negligence. The allegations of negligence included but were not limited to failure to obtain proper security for her mortgage investments. That action was settled for a global sum. The trial judge reduced the amount owing on the guarantees by 50 per cent to account for the proceeds of the settlement and to avoid double recovery. Held, the appeal should be dismissed. Cross-appeal allowed. The trial judge did not err in finding that the applicable statutory limitation period for the claim on the guarantees was ten years pursuant to the Real Property Limitations Act and not the two-year period in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. The guarantees fell within any other instrument to repay the whole or part of any money secured by a mortgage in s. 43(1) of the Real Property Limitations Act. The trial judge erred in reducing the amounts owed under the guarantees. The facts of this case did not at this point engage the double recovery or double satisfaction principle. The trial judge’s determination that a 50 per cent reduction was appropriate was entirely speculative. The appellants had not established that their liability under the guarantees had been reduced by satisfaction of the guaranteed debt. The trial judge’s finding that the guarantees were valid and enforceable was not consistent with his finding that 50 per cent of the settlement should be attributed to the claim on the guarantees. Until the plaintiff actually achieved full or substantial satisfaction of the debt she was owed, there could be no question of double recovery. *source: Ontario Reports

#Civil #Law, #Litigation #Motion, #Trial, #Appeal #Court, #Limitation, #Discoveribility #Medical #Malpractice, #Claim, #Defence: Toll-free #1-844-642-7464, #905-503-1486, #647-772-8187 Website: www.nhashmilaw.com *Rumsam v. Pakes 2019 ONCA 748 The plaintiff attended an urgent care clinic with a wrist injury in July 2007. She was assessed by Dr. P, who ordered an x-ray. Later that month, the clinic received a mailed copy of the x-ray report, which recommended a follow-up x-ray.... That recommendation was not communicated to the plaintiff. Her pain worsened, and she required two surgeries. She reached the age of majority in June 2010. In May 2012, she commenced an action against the clinic and Dr. P claiming damages for negligence in failing to advise her of the recommendation for a follow-up x-ray. By August 29, 2013 at the latest, the plaintiff was aware that the x-ray report had been reviewed by an unidentified clinic doctor, and not by Dr. P. In January 2017, she moved to add Dr. K as a defendant on the basis that Dr. K had reviewed the x-ray report and had failed to advise and treat her. The motion judge found that the claim against Dr. K was not statute-barred and granted the motion. The defendants appealed. Held, the appeal should be allowed. The presumptive limitation period did not begin to run until the plaintiff turned 18 in June 2010, and would have expired in June 2012, but for the discoverability principle. By August 29, 2013 at the latest, the plaintiff knew that a second clinic doctor was involved in her care; the second clinic doctor knew about her x-ray findings; that doctor did not inform her of the recommendation to undergo a second x-ray; and as a result, she required two surgeries and suffered damages. The only thing she did not know by August 29, 2013 was the name of the second doctor. As of August 29, 2013, she was obliged to exercise reasonable diligence to secure the name of the second doctor in order to comply with s. 5(1)(b) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. She failed to do so, as she did not make any inquiries to determine the identity of the doctor from August 29, 2013, when the limitation period began to run, until until Dr. P’s examination for discovery in August 2014. Her claim against Dr. K was statute-barred. *source: Ontario Reports

#Civil #Litigation- #Judgement and #Orders, #Interest, #Damage: #1-844-642-7464, #647-772-8187; #905-503-1486 Website: www.nhashmilaw.com *Extreme Venture Partners Fund I LP v. Varma 2019 ONSC 4459 The plaintiffs obtained judgment against the defendants on the basis that the defendants had breached their fiduciary duties and conspired to conceal and acquire assets on an undervalued basis. They were awarded damages and an order for disgorgement of profits, both in U.S. dollars.... The trial judge sought submissions on the applicable exchange rate and on prejudgment interest. The defendants submitted that the court should exercise its discretion under s. 121(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to use the exchange rate that existed on the date of the transactions in question, rather than applying the default rule in s. 121(1) that the applicable exchange rate was the rate existing on the date of payment. Held, the default exchange rate should be used; the plaintiffs should be awarded prejudgment interest. The fact that the Canadian dollar was now significantly weaker than on the date of payment did not constitute a reason to depart from the default exchange rate in s. 121(1) of the Courts of Justice Act. While the judgment did not refer to prejudgment interest, the plaintiffs had pleaded prejudgment interest and the court was still seized of the matter. The plaintiffs were not required to ask the court to reconsider the reasons for judgment in order to be entitled to prejudgment interest. *source: Ontario Reports

#Family #Law & #Court #Litigation: Toll-free #1-844-642-7464; #905-503-1486; #647-772-8187 Website: www.nhashmilaw.com *Mulholland v. BMO Trust Co.2019 ONSC 5785 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. The son began managing the daily workings of the farm and by 1996 had completed numerous betterment projec...Continue reading

#Family and #Divorce #Law, child access, custody, Hague convention: Toll-free #1-844-642-7464; #905-503-1486; #647-772-8187 Website: www.nhashmilaw.com *Morwald-Benevides v. Benevides 2019 ONCA 1023 In a highly contentious matter involving child custody and support, the mother had dismissed five counsel before deciding to represent herself. The trial judge appointed one of the dismissed lawyers as amicus curiae to assist the Court in making decisions that relate to the best ...Continue reading