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Civil and Commercial Litigation

To put it simply, Shibley Righton LLP is recognized within the legal community and judiciary in Ontario as having a formidable strength and depth of expertise in litigation. Over one half of our firm's complement of lawyers practice in this area. As a result, we are particularly well-suited to address whatever litigation matters may confront our clients.

Our litigation lawyers advise and represent our clients in a wide and diverse range of matters before all levels of courts and various administrative tribunals, commissions and agencies. More importantly, we provide general counsel to assist our clients in ordering their affairs so that litigation may be avoided whenever reasonably possible. Even where litigation appears unavoidable, we help our clients assess the practicality and viability of alternative dispute mechanisms, such as arbitration and mediation, in order to determine the appropriate strategy in each case.

 

In addition to its work in specialty areas, including our Education and Public Law Group, Professional Liability Group, Labour and Employment Law Group, Construction Law Group, and Insolvency and Creditors Rights Group, the firm's extensive civil litigation practices includes:

  • all types of negligence actions, from product liability claims and defence, to negligent misstatements, to personal injury, etc.;
  • contractual remedies and enforcement, including damage claims, interpretation, injunctions and specific performance, with a particular expertise in complex or commercial disputes;
  • insurance defence, including defence of professional liability, long term liability and life claims.
  • municipal law, including issues relating to land development, disputes by or with municipalities and their related entities, by-law interpretation and enforcement, etc.;
  • shareholder and corporate disputes, from oppression remedy cases, to enforcement of shareholders agreements, to directors' and officers' liability;
  • mediation and arbitration to reduce the cost and time involved in dispute resolution;
  • enforcement of foreign judgments and orders, particularly through our longstanding relationship with foreign law firms, internationally through Multilaw and in North America through Lexwork International; and
  • appellate proceedings at all levels, right up to the Supreme Court of Canada.

Appellate proceedings at all levels, right up to the Supreme Court of Canada.

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Publications

Description

Jonathan Miller HeadShotA new online service should appeal to people who want simple wills at a low cost, but there is still a potential for misuse, says Toronto civil litigator Jonathan Miller.

“This generation spends so much time online, so this is the next logical next step,” says Miller, associate with the Toronto office of Shibley Righton LLP.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-05-30
Description

Marlin Horst head shotPeople who put down a deposit for a property on behalf of a company that is not yet incorporated could lose that money if the buyer pulls out of the deal, says Toronto corporate lawyer Marlin Horst.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-05-15
Description

Megan Mackey Head ShotCondo buyers who wish to avoid a dispute over construction deficiencies should choose their developer carefully, says Toronto condominium and commercial litigator Megan Mackey.

Mackey, partner with Shibley Righton LLP, says construction issues are a fact of life in the industry.

“I’m not sure that there’s ever been a condo built without some sort of problem,” she tells AdvocateDaily.com.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-05-13
Description

Jonathan Miller HeadShotHaving a robot successfully mediate a fee dispute in Canada is a great first step in showing how artificial intelligence (AI) can be used in our legal system, says Toronto civil and commercial litigator Jonathan Miller.

“I'm quite an advocate for employing technology to make the legal process more accessible and more efficient,” says Miller, associate with the Toronto office of Shibley Righton LLP.

“This seems like a reasonable tool to help with that,” he tells AdvocateDaily.com.

According to a recent article, the “online tool, which uses AI algorithms in place of a human mediator,” settled the three-month-long dispute in less than an hour.

“These robotic mediators certainly have their place,” says Miller, “and it's exciting to see that technology is being used in a way to facilitate the legal process.”

The article says the software was developed by a British Columbia company.

“I’ve never used it,” says Miller, “but I think it’s an exciting prospect for the legal profession. Some judges have already said they believe lawyers should be using more AI to reduce costs.”

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-04-12
Description

stefan rosenbaum head shotWinning a judgment in small claims court isn’t the end of the process, warns Toronto litigator Stefan Rosenbaum — now you have to collect.

“You'd think it would be fairly simple once you have a judgment against a business,” he tells AdvocateDaily.com. “But it isn't always.”

Even before launching an action, it’s prudent to consider the chances of actually collecting on a judgment, says Rosenbaum, an associate with Shibley Righton LLP.

Fly-by-night contractors are notoriously hard to track down, he says, and you could spend thousands more trying to enforce the court's decision.

In most cases, you will be able to collect from the other party, says Rosenbaum, especially if they’re a well-established enterprise with employees, a head office and other locations. You’ll also find it relatively easy to collect from a party if they own property or a home, for example.

The first search should be to see if they are bankrupt, he says, because if they are, there's little point in continuing.

You should also do a litigation search to see what other court matters they may have been dragged into, he says. It might turn up the names of other parties that are looking to collect, and you may be able to share notes with them since you both have a common purpose.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

 

Date_Published
2019-04-03
Description

Jonathan Miller HeadShotCounsel must develop strong communication skills if they hope to keep client expectations in check when it comes to a potential settlement, Toronto civil and commercial litigator Jonathan Miller tells AdvocateDaily.com.

Miller, associate with the Toronto office of Shibley Righton LLP, says he begins thinking about how to manage a client’s expectations from the very beginning of a file.  

“If you don’t promise someone the moon, then hopefully they won’t be expecting it, but managing expectations is very much an ongoing process,” he says. “As things progress, opinions can change, and you might have to revise the advice you’ve given them in terms of recovery or loss. But if you set the stage early, it’s easier to adjust those expectations down the road.”

Miller says crafting a claim can be a particularly challenging time, especially when acting for a plaintiff with little experience in the legal realm. Lawyers may wish to advance claims under certain heads of damages for tactical reasons, even if the chances of success are small, he adds.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
.


Date_Published
2019-04-01
Description

stefan rosenbaum head shotIn this second instalment of a three-part series on how to be successful in small claims court, Toronto litigator Stefan Rosenbaum discusses how to prepare for the process.

You don’t have to be a lawyer or paralegal to go to small claims court, but you should understand the process before launching your case, says Toronto litigator Stefan Rosenbaum.

Rosenbaum, an associate with Shibley Righton LLP, says participants can represent themselves in small claims court, which is an advantage for some but not all.

In part one of the series, he laid out the basics of taking your case to small claims court and whether to hire a lawyer or paralegal for the entire process or to just guide you along the way while you do all of the legwork and appear in court alone. 

The action begins when the plaintiff files a claim that outlines the issues and tells the court what they are seeking in compensation and why, explains Rosenbaum.

“Unlike Superior Court, there are no discoveries or affidavits,” he tells AdvocateDaily.com. “It’s pretty stripped down.”

The defendant then has 20 days to file a response, Rosenbaum says.

“When served with a claim, it’s best that you contact a lawyer or paralegal quickly, within one or two days, so you don’t leave it to the 19th day to show up in my office,” he says. “That causes problems.”

You’ll need to provide a list of witnesses you intend to call, though Rosenbaum generally advises against bringing in paid expert witnesses.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
.


Date_Published
2019-03-18
Description

stefan rosenbaum head shotIn this second instalment of a three-part series on how to be successful in small claims court, Toronto litigator Stefan Rosenbaum discusses how to prepare for the process.

You don’t have to be a lawyer or paralegal to go to small claims court, but you should understand the process before launching your case, says Toronto litigator Stefan Rosenbaum.

Rosenbaum, an associate with Shibley Righton LLP, says participants can represent themselves in small claims court, which is an advantage for some but not all.

In part one of the series, he laid out the basics of taking your case to small claims court and whether to hire a lawyer or paralegal for the entire process or to just guide you along the way while you do all of the legwork and appear in court alone. 

The action begins when the plaintiff files a claim that outlines the issues and tells the court what they are seeking in compensation and why, explains Rosenbaum.

“Unlike Superior Court, there are no discoveries or affidavits,” he tells AdvocateDaily.com. “It’s pretty stripped down.”

The defendant then has 20 days to file a response, Rosenbaum says.

“When served with a claim, it’s best that you contact a lawyer or paralegal quickly, within one or two days, so you don’t leave it to the 19th day to show up in my office,” he says. “That causes problems.”

You’ll need to provide a list of witnesses you intend to call, though Rosenbaum generally advises against bringing in paid expert witnesses.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
.


Date_Published
2019-03-18
Description

stefan rosenbaum head shotIn this second instalment of a three-part series on how to be successful in small claims court, Toronto litigator Stefan Rosenbaum discusses how to prepare for the process.

You don’t have to be a lawyer or paralegal to go to small claims court, but you should understand the process before launching your case, says Toronto litigator Stefan Rosenbaum.

Rosenbaum, an associate with Shibley Righton LLP, says participants can represent themselves in small claims court, which is an advantage for some but not all.

In part one of the series, he laid out the basics of taking your case to small claims court and whether to hire a lawyer or paralegal for the entire process or to just guide you along the way while you do all of the legwork and appear in court alone. 

The action begins when the plaintiff files a claim that outlines the issues and tells the court what they are seeking in compensation and why, explains Rosenbaum.

“Unlike Superior Court, there are no discoveries or affidavits,” he tells AdvocateDaily.com. “It’s pretty stripped down.”

The defendant then has 20 days to file a response, Rosenbaum says.

“When served with a claim, it’s best that you contact a lawyer or paralegal quickly, within one or two days, so you don’t leave it to the 19th day to show up in my office,” he says. “That causes problems.”

You’ll need to provide a list of witnesses you intend to call, though Rosenbaum generally advises against bringing in paid expert witnesses.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
.


Date_Published
2019-03-18
Description

stefan rosenbaum head shotIn this first instalment of a three-part series on how to be successful in small claims court, Toronto litigator Stefan Rosenbaum discusses how to get a claim started.

While Ontario small claims court proceedings are ostensibly designed for non-lawyers to settle matters without the expense of suing in Ontario Superior Court, the process still requires some legal expertise, says Toronto litigator Stefan Rosenbaum, who handles such matters as part of his practice.

Rosenbaum, an associate with Shibley Righton LLP, says small claims courts will hear cases worth $25,000 or less and caps legal fees that can be awarded after trial to 15 per cent of the total claim — provided there aren't any extenuating circumstances. 

“Certainly they can represent themselves — and people do — or they can hire a paralegal or a lawyer,” says Rosenbaum, adding that some offer flat fees for guiding litigants before trial.

“And you sometimes get big guns coming in to oppose your claim,” he tells AdvocateDaily.com. “I had a case recently which involved a Bay Street lawyer from a big firm.”

Small claims court is the venue for such disputes as unfinished renovation contracts, wrongful dismissals if the amounts are relatively small, damage caused by a pet, and claims for money owed under an agreement, like unpaid accounts for goods or services sold and delivered, unpaid loans or rent, and bounced cheques, explains Rosenbaum.

You can also claim for damages, such as to property, or clothes damaged by a dry cleaner, personal injuries or breach of contract, he says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-02-15
Description

Jonathan Miller HeadShotWhile more judges are assessing costs in cases where artificial intelligence (AI) could have reduced the number of billable hours, there are still a number of unanswered questions surrounding its use, says Toronto civil and commercial litigator Jonathan Miller.

“Judges are prepared to tell lawyers that AI could have been used in court preparation. They’re saying, ‘You shouldn’t be entitled to all the costs you incurred to do that research,’” Miller tells AdvocateDaily.com.

He says there are a number of online sources, such as CanLII, that help lawyers find and compile information, but there are also companies developing AI research to make searches more efficient. 

“In some cases, you can plug in a set of parameters, and it will look at case law and say, ‘Here’s your answer,’” says Miller, an associate with the Toronto office of Shibley Righton LLP.

He recently explored an AI program focusing on employment law, and while enticing, he says there are still many questions left unanswered about the new technology.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

 

Date_Published
2019-02-04
Description

stefan rosenbaum head shotWinter’s grip brings more than just snow and ice — it also brings potential legal liability from slip and fall claims, says Toronto litigator Stefan Rosenbaum.

The key question is whether an owner is responsible for maintaining the sidewalk in front of their property or whether that falls to the municipality, says Rosenbaum, an associate with Shibley Righton LLP.

The answers are more complex than they initially appear, he tells AdvocateDaily.com.

“If the city owns the sidewalk, the homeowner is bound by municipal bylaws to clear them within a specified period of time, which varies from jurisdiction to jurisdiction. A bylaw officer can issue a ticket with a fine if they don’t comply,” explains Rosenbaum.

While some landlords try to get around that liability by inserting a clause into a lease pushing the responsibility onto the tenants, there’s jurisprudence that even if a tenant agrees to clear snow, it remains the owner’s ultimate responsibility, says a report in the Toronto Star.

But that’s the least of their worries, says Rosenbaum. The bigger issue is the legal liability when someone slips and falls on a public sidewalk and sues either the city or the person occupying the adjacent home.

“Generally, the municipality will try to shift the liability back onto whoever was responsible for the property,” says Rosenbaum, who acts for municipalities such as the City of Toronto.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-12-24
Description

Marlin Horst head shotExecutors should make sure beneficiaries are fully informed before taking compensation from the estate according to a recent decision, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com

The case involved a disputed passing of accounts by a lawyer acting as an estate trustee on a $3-million estate.

The lawyer, who spent 10 years without formally passing accounts, argued beneficiaries’ objections to actions more than two years old should be struck out under the Limitations Act.

However, a unanimous panel of appeal court judges, sitting as the Divisional Court, upheld a lower court judge’s ruling in favour of the beneficiaries.

“By filing a notice of objection to accounts in response to an estate trustee’s application to pass accounts, a beneficiary is not commencing a proceeding in respect of a claim within the meaning of s. 4 of the Limitations Act,” Appeal Court Justice David Brown wrote for his colleagues in dismissing the appeal.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
.


Date_Published
2018-12-21
Description

Marlin Horst head shotA defrauded corporate lender who unsuccessfully tried to sue the government to cover $1.8 million in losses was always facing an uphill struggle, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com.

A better strategy for the lender would have been to conduct more stringent due diligence at the outset rather than suing the Crown after the fact, says Horst, partner with Shibley Righton LLP.

The Ontario Court of Appeal matter involved a lender who advanced $1.8 million in mortgages to a man on the grounds he was the sole owner and officer of a company. The loans were advanced after the lender checked the Ministry of Government and Consumer Services' corporate registry and found the man was listed as a director and officer.

However, it transpired that this was a complete fabrication and the man had merely filed a change order to the registration with no authority whatsoever.

The appellant argued that the ministry owed a duty of care to reasonably ensure the accuracy and reliability of the information it collected, maintained and disseminated for a fee when it knew or ought to have known that the appellant would rely upon such information.  

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-11-26
Description

peter murphy headshotIn the first instalment of a two-part series, Toronto corporate lawyer Peter Murphy looks at the issues facing cannabis store retailers. 

Prospective cannabis retailers need to proceed carefully as a new gold rush gets underway in the market for bricks-and-mortar sales of the newly legal drug, Toronto corporate lawyer Peter Murphy tells AdvocateDaily.com

Following the federal government’s recent legalization of cannabis for recreational use, the provincial government unveiled its own framework for licensing retailers in the Cannabis Licence Act (CLA).

And Murphy, partner with Shibley Righton LLP, says the province’s private sector model for retail stores has sparked a scramble for the best locations.

“Cannabis retail in Ontario is the new gold rush,” he says. “There’s a huge potential opportunity here, and many new businesses are going to be getting into this.”

While the former Liberal government had planned a provincial monopoly over the retail sales of cannabis, similar to the LCBO, Premier Doug Ford's Tory administration has established a licensing regime for private retailers overseen by the Alcohol and Gaming Commission of Ontario (AGCO).

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-11-19
Description

Jessica VickermanConstruction lien litigation could be dramatically reduced once new legislation fully kicks into gear, Toronto litigator Jessica Vickerman tells AdvocateDaily.com.

Bill 142, the Construction Lien Amendment Act, which is designed to bring a “prompt payment” regime to Ontario, has been implemented in stages since its passage at Queen’s Park last year. The amendments, which represent the first major revision to Ontario construction lien law since 1983, will be fully phased in by October 2019, says Vickerman, an associate with the Toronto office of Shibley Righton LLP.

She says Ontario’s Superior Court currently has a specialized system in some jurisdictions for handling construction lien disputes, with a number of masters devoted entirely to hearing them.

However, Vickerman says the amendments will bring Ontario in line with other prompt-payment jurisdictions around the world with the creation of a new mandatory interim adjudication system for construction disputes.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-10-30
Description

stefan rosenbaum head shotPlaintiffs who alleged they were constructively dismissed as a result of workplace bullying face an uphill battle proving their case in court, Toronto litigator Stefan Rosenbaum tells AdvocateDaily.com.

“Courts are very hesitant to find that an employee was constructively dismissed on the basis of harassment,” says Rosenbaum, an associate with Shibley Righton LLP. “Unfortunately, society expects us to put up with a certain amount of friction when we go to work.

“Not every instance of hurt feelings is going to rise to the level of harassment, and the onus is on you, as the plaintiff, to prove not only that it occurred, but that it led to your constructive dismissal,” he says.  

Rosenbaum says there are ways plaintiffs can boost their chances of success in court.

“You need to take detailed notes of the harassment that occurs and what happened afterwards. That includes when you told your boss about it and what, if any, action was taken by management as a result,” he says. “If the abuse is verbal, then there needs to be a documented pattern of it.”

If the matter comes before the courts, Rosenbaum says a judge will be looking at the allegations from the perspective of a “reasonable objective bystander,” which means plaintiffs have to consider whether another person would react in a similar way when faced with that situation.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
.


Date_Published
2018-10-25
Description

Heather Paterson Head shot.A recent ruling that found the city of Calgary liable for the injuries a man suffered during a brutal beating at a rapid transit walkway may not hold much sway over future cases involving duty of care, Toronto civil litigator Heather Paterson tells AdvocateDaily.com.

Paterson, a partner with Shibley Righton LLP who has an active municipal defence practice, says each case would have to be adjudicated based on its own unique facts.

She says the circumstances in the 2007 case, which involved a 20-minute beating of a man on an aerial walkway linking two Calgary public transit stations, amounted to a "perfect storm of everything that could go wrong."

"And it did, but it's hard to know how that will translate for cases that happen in 2018 because you're going to deal with very different circumstances. Each location will be different, as will the facts and particulars of the incident," Paterson says.

The case, which is being appealed, involves a young man who was attacked Jan. 1, 2007 as he walked through an aerial walkway linking two Light Rail Transit stations. The sustained assault caused significant injuries and was captured by video surveillance.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-10-03
Description

Jessica VickermanVANCOUVER — A professional association of engineers in British Columbia is alleging negligence or unprofessional conduct against three engineers after the 2014 collapse of a tailings dam at the Mount Polley mine.

Engineers and Geoscientists British Columbia says disciplinary hearings against Laura Fidel, Stephen Rice and Todd Martin will take place next year.

The association's investigation committee alleges that three individuals involved in the design, construction and monitoring of the tailings storage facility demonstrated negligence and or unprofessional conduct in the course of their professional activities.

The allegations have not been heard by a disciplinary panel and are unproven.

The disaster at the gold and copper mine was one of the largest in the province's history and sent 24 million cubic metres of mine waste and sludge into nearby waterways.

In an interview with AdvocateDaily.com, Toronto litigator Jessica Vickerman says the case illustrates why professionals shouldn't take on responsibilities beyond their qualifications. 

his is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-09-28
Description

Heather Paterson Head shot.When public and corporate interests collide, the former will often override the latter —particularly when an element of safety is involved, Toronto civil litigator Heather Paterson tells AdvocateDaily.com.

“Municipalities’ decisions aren’t immune to challenge, but the bylaw must have a proper purpose and its subject matter has to be a municipal issue,” Paterson, a partner with Shibley Righton LLP, who has an active municipal defence practice. “It has to be something that’s in the public interest and in response to citizen’s needs.”

She points to a recent situation in a small Quebec municipality where a company had a permit to do some oil and gas exploration, but the village feared the drilling would negatively impact its drinking water.

Ristigouche Sud-Est, just north of the New Brunswick border, passed a bylaw creating a two-kilometre no-drill zone around potable water sources in the community. The company challenged the municipality’s authority to pass it and launched a $1-million lawsuit, arguing the village hastily adopted the new law, illegally targeting it and making it impossible for it to drill, Paterson says.

“Municipalities have very broad discretion to enact new laws, provided they’re considered to be within their purview of authority and the decision impacting the bylaw is reasonable,” she says. “In this case, the municipality had an obligation to its citizens to provide safe drinking water.”

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-08-29

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