Tag Archives: Fogler Rubinoff

Ontario Court of Appeal: No Right to Require Proof of a Will in Solemn Form

In a decision released March 8, 2016 – Neuberger v. York, 2016 ONCA 191 – the Ontario Court of Appeal rejected the argument that Ontario’s  Rules of Civil Procedure (“Rules”) give a person the right to require that a will be proved “in solemn form” before it is subject to probate.

Chaim and Sara Neuberger had two daughters – Edie and Myra.  Chaim’s long-standing intention was to provide for his daughters equally on his death.  Chaim died on September 25, 2012 at age 86.  Sara predeceased him.  He left a real estate empire estimated to be worth over $100 million.  Edie and Myra survived him.  Each daughter has adult children.

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USE IT OR LOSE IT- in Canada

Group of Hands Holding Letter Trademark

Under the Canadian Trade-marks Act, one can request that the Registrar of Trade-marks commence Section 45 Proceedings to cancel a trademark registration for non-use.  The Act states that the Registrar shall, upon the written request by any person (who pays the prescribed fee) after three years from the date of registration of a trademark, unless the Registrar sees good reason to the contrary, give notice to the registered owner of the trademark, requiring the registered owner to furnish within three months an affidavit or a statutory declaration, showing, with respect to each of the goods or services specified in the registration, that the trade-mark was in use in Canada at any time during the three year period immediately preceding the date of the notice.

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Court of Appeal Rejects Lawyer’s Application to Set Aside Fraudulent Misrepresentation Finding

In a recent decision – Meridian Credit Union Limited v. Ahmed Baig, 2016 ONCA 150  – the Ontario Court of Appeal affirmed a motion judge’s decision to grant summary judgment against the party who had made the motion despite the fact that the responding party had not made a cross-motion for judgment.  The court also upheld a finding by the motion judge that the defendant  was personally liable for fraudulent misrepresentation; failed to disturb the motion judge’s finding that the defendant could be held vicariously liable for his lawyer’s fraudulent misrepresentation; and refused leave of the lawyer, and his law firm, to introduce fresh evidence on appeal .  The court dismissed the lawyers’ argument that they had a right to be heard and refused to set aside the findings of fraudulent misrepresentation the motion judge had made against them.

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ILN Today Post

Lawrence D. Adelberg joins Fogler Rubinoff LLP

We are pleased to welcome Lawrence D. Adelbert to Fogler, Rubinoff. Lawrence will be joining our corporate department to continue his broad commercial practice in corporate, real estate and leasing.

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Court Lifts Automatic Stay Pending Appeal in the "Interests of Justice"

In Ontario, the delivery of a notice of appeal automatically stays any order, final or interlocutory, for payment of money, other than a support order or a support enforcement order – rule 63.01(1) of the Rules of Civil Procedure (Rules).  Judgment debtors knowing that an appeal may have little or no merit, will often deliver a notice of appeal as a matter of course in order to buy themselves more time to delay or frustrate the ability of a judgment creditor to enforce the judgment.

The Rules also provide that:  “A judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided by subrule (1) does not apply’ – rule 63.01(5). 

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Appeal Court Finds Judicial Bias on Jurisdiction Motion

In a recently released decision, the Ontario Court of Appeal found that a motion judge’s actions on a jurisdiction motion gave rise to a reasonable apprehension of bias.  As a result, the Court of Appeal set aside the order made at the motion and ordered that the jurisdiction motion be heard again before a different judge of the Ontario Superior Court.  The full decision is report at Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60.

In the action, various plaintiffs, including plaintiffs in Ontario, sued four foreign defendants for breach of franchise agreements.  The defendants brought a motion to dismiss the action arguing that the Ontario court lacked jurisdiction.  In the alternative, they asked the court to stay the action on the basis of forum non conveniens.  The motion was heard before Justice David Corbett of the Ontario Superior Court of Justice.  Justice Corbett dismissed the motion.  He found that there was jurisdiction simpliciterin Ontario for all claims, including for those claims that had arisen in other Canadian provinces.  He also held that Ontario was the most convenient forum in which a single proceeding would be held. 

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Appeal Court Finds Judicial Bias on Jurisdiction Motion

In a recently released decision, the Ontario Court of Appeal found that a motion judge’s actions on a jurisdiction motion gave rise to a reasonable apprehension of bias.  As a result, the Court of Appeal set aside the order made at the motion and ordered that the jurisdiction motion be heard again before a different judge of the Ontario Superior Court.  The full decision is report at Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60.

In the action, various plaintiffs, including plaintiffs in Ontario, sued four foreign defendants for breach of franchise agreements.  The defendants brought a motion to dismiss the action arguing that the Ontario court lacked jurisdiction.  In the alternative, they asked the court to stay the action on the basis of forum non conveniens.  The motion was heard before Justice David Corbett of the Ontario Superior Court of Justice.  Justice Corbett dismissed the motion.  He found that there was jurisdiction simpliciterin Ontario for all claims, including for those claims that had arisen in other Canadian provinces.  He also held that Ontario was the most convenient forum in which a single proceeding would be held. 

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ILN Today Post

Federal Employment Dismissal Case Argued by Firm before Supreme Court of Canada Considered 1 of 5 most Important Cases to be Heard in 2016

On 19 January 2016, Ronald M. Snyder, Partner, argued before the Supreme Court of Canada that Federally regulated non-unionized employees can be dismissed without cause. This follows on the heels of Ronald’s success before the Federal Court of Appeal in 2015 where he overturned nearly 40 years of arbitral jurisprudence that held such employees could only be dismissed for “just cause.”

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ILN Today Post

Fogler, Rubinoff announces new managing partner

Fogler, Rubinoff LLP is pleased to announce that Michael S. Slan has been appointed Managing Partner effective January 1, 2016.

Michael Slan has played a key leadership role for many years including as head of the Corporate Department and as a member of several committees including the Executive Committee.

Michael Slan succeeds Michael H. Appleton, Q.C., who has overseen the firm’s significant growth since becoming Managing Partner in 1982. Michael Appleton will continue to be associated with the firm in the capacity of Managing Partner Emeritus.

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Supreme Court Set to Rule Upon Dismissal Provisions of Canada Labour Code

On January 19, 2016 the Supreme Court of Canada will hear arguments in the case of Joseph Wilson v. Atomic Energy of Canada Limited (“AECL”)(2015 FCA 17).  The case involves the proper interpretation of certain provisions of the Canada Labour Code(“Code”) and whether an employee whose employment is subject to the Code, if dismissed without cause, has automatically been unjustly dismissed. 
 
In this case, AECL had employed Mr. Wilson for four and a half years.  Starting out as a Senior Buyer/Order Administrator, Mr. Wilson had received many promotions.  His last position was Procurement Supervisor, Tooling.  That position was not managerial.  On November 16, 2009, AECL terminated Mr. Wilson’s employment without cause.  AECL offered Mr. Wilson a severance package equal to roughly six months’ pay in exchange for a full and final release.  Had his severance package been determined in accordance with the minimum statutory notice and severance requirements under the Code, he would have been entitled to only 18 days’ pay. 
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