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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

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
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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
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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
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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
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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
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Date_Published
2018-10-25
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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
Description

Heather Paterson Head shot.Public consultation might have helped to diffuse a conflict between the City of Markham and an area resident who hoped to donate the sculpture of a cow on stilts, Toronto civil litigator Heather Paterson tells AdvocateDaily.com.

But residents’ consternation over Charity, the stainless-steel cow sculpture which stands 7.6-metres high, prompted the removal of the statue. As a result, the would-be donor sued the municipality for $4 million and sought an injunction to prevent the municipality from moving it, says Paterson who was not involved in the case, and comments generally.

The Ontario Superior Court of Justice denied the injunction and the sculpture was ultimately moved.

“I think in the end the judge’s reasoning was, you can’t force people to take a gift,” says Paterson, a partner with Shibley Righton LLP, who has an active municipal defence practice.

In his decision, Justice P. Andras Schreck of the Ontario Superior Court wrote that the donor did not meet the well-established tests that the question be serious and that the party seeking the injunction will suffer irreparable harm if it is not granted.

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

Please click here to read the rest of the story.

Date_Published
2018-08-02
Description

Matthew Urback Head ShotThe dispute over the estate of Charles Manson offers lessons for testators with less controversial backgrounds, Toronto litigator Matthew Urback tells AdvocateDaily.com.

According to a report by NBC News, the fate of the notorious killer’s estate remains up in the air almost a year after his death, while a number of alleged heirs fight over the right to administer it.   

While the law in California, where the Manson fight is playing out, differs from that in Ontario, it still offers guidance to future testators here, says Urback, an associate with Shibley Righton LLP.

“You’re always better off leaving clear and unequivocal instructions about your estate plan,” he says. “You know better than anyone what you want to happen to your assets, but if you don’t leave clear instructions, it leaves your loved ones with a bit of a guessing game to figure out what you intended, when you’re no longer around to clear up any confusion.

“The problem in this case is that nothing was clear. Manson had a will, but the circumstances around how it was made were a bit fuzzy,” Urback 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
2018-07-30
Description

Heather Paterson Head shot. Law is all about people for Toronto civil litigator Heather Paterson.

While disputes in court can sometimes get ugly, Paterson, a partner with Shibley Righton LLP, tells AdvocateDaily.com that maintaining good relationships with colleagues and clients is one of her top priorities.

“In practice, you have to develop good and friendly working relationships with people, and hopefully you’ll work with them for a while,” she says. “That’s important for your own clients because they have to feel comfortable taking advice and giving instructions.”

Paterson also adopts a similar approach to her opponents in the courtroom.

“There are times when you have to be forceful, but it’s usually a friendly, collegial relationship between counsel,” she says. “Law is not a very big profession, even if it might feel that way sometimes. You come across the same people over and over again, so it’s really easy to trash a relationship if you’re not careful. A few missteps and your reputation can come tumbling down.”   

A large proportion of Paterson’s files involve insurance work on behalf of municipalities, defending mostly personal injury cases. In addition, she has developed a niche in professional liability defence work on behalf of architects accused of wrongdoing following building structure or design failures.

“It’s a fascinating area, and extremely varied,” Paterson says. “I’ve learned a great deal about things I knew nothing about, such as roofing trusses, glass balconies and the importance of the right shading co-efficient of window glass.

“But it’s nice to still be learning at this stage, and they’re great people to work with,” she 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
2018-07-03
Description

Isabelle EcklerParties to a dispute must take care when saying sorry for their actions, Toronto litigator Isabelle Eckler tells AdvocateDaily.com.

Although Ontario’s Apology Act prevents expressions of sympathy or regret from being used as evidence of liability in civil actions, Eckler, an associate with Shibley Righton LLP, points out that the Act only applies in certain situations, leaving litigants potentially sorry they ever spoke.

“An apology by or on behalf of someone is inadmissible in a civil proceeding or arbitration as evidence of the person’s fault or liability in connection with the event,” she explains. “But individuals have to be very careful about the context in which they apologize.”

For example, Eckler says an exception written into the law means that apologies elicited during examinations for discovery or in the course of trial testimony are not covered and may expose the individual to a finding of liability.

In addition, the “Apology Act does not affect the admissibility of evidence in a provincial offence or criminal matter,” she 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
2018-06-11
Description

Jonathan Miller Head ShotA fatal accident involving a self-driving car, though tragic in its outcome, will help regulators and manufacturers answer important questions as autonomous vehicles are more fully developed, says Toronto civil and commercial litigator Jonathan Miller.

“What I took away from this incident is that it will provide a test case and give some advance warning of issues that developers and users of this technology need to consider and question before these vehicles are put on the road,” says Miller, an associate with the Toronto office of Shibley Righton LLP.

The accident, which occurred when a pedestrian was struck while walking her bike across a poorly lit road in Arizona, is believed to be the first time an autonomous vehicle has been linked to a pedestrian death, The New York Times reports.

“I’m not aware of a lawsuit being launched yet, but I think that whatever comes out of this case, it will get a significant amount of attention because there are a number of issues that could come up,” Miller 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
2018-05-02
Description

Matthew Urback Head ShotThe often-subtle signs of elder abuse make it a tricky problem to diagnose, Toronto litigator Matthew Urback tells AdvocateDaily.com.

Urback, an associate with Shibley Righton LLP, says he expects financial mistreatment of older individuals to peak in the coming years as an increasing proportion of the population falls into the over-65 category and we continue the biggest wealth transfer in history between those in the Baby Boomer generation and their beneficiaries.

“The difficulty with financial elder abuse is that the signs aren't, on their own, demonstrative. Each potential sign is really just a hint and in some of those situations, the conduct could be completely innocent,” he explains. “In other situations, there may be more going on, which makes it very challenging to spot.”   

Still, he urges family members of older individuals to keep their eyes peeled because of the potentially devastating consequences of elder abuse.

“Each case will be unique, but there could be a loss of money and other property, as well as damage to relationships,” Urback says. “It’s important to be aware of some of the red flags. Then if you do see something, it may be appropriate to look a little closer or act from there.

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

Please click here to read the rest of the story.

Date_Published
2018-04-20
Description

Jessica VickermanA new mandatory adjudication system for construction disputes in Ontario should improve the efficiency of the construction industry, Toronto litigator Jessica Vickerman tells AdvocateDaily.com.  

The interim dispute resolution process is a key plank of Bill 142, the Construction Lien Amendment Act, passed by the provincial legislature on Dec. 5 and designed to bring a “prompt payment” regime to Ontario.  

Vickerman, an associate with the Toronto office of Shibley Righton LLP, says the amendments represent the first major revision to Ontario construction lien law since 1983.

“The impetus behind these changes is to keep the money flowing through the industry — from owners to contractors to subcontractors — and to speed up payment times,” she says.

”The mandatory adjudication system supports that aim by creating a way to quickly and inexpensively resolve disputes over money.”

The procedure kicks in when one party raises a contractual issue related to the value of services or materials, payment, and set-off and release of holdback, among others.

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

Please click here to read the rest of the story
.

Date_Published
2018-04-13
Description

Jonathan Miller Head ShotBusiness deals and agreements between family members should be confirmed with a written contract to protect the interests of all of the parties involved,  says Toronto civil and commercial litigator Jonathan Miller.

Handshakes and verbal agreements are fraught with the possibility of becoming a point of contention between the people involved when trying to recall just what was agreed to, says Miller, an associate with the Toronto office of Shibley Righton LLP.

"A handshake and a couple of conversations" isn’t exactly the best evidence, he tells AdvocateDaily.com.

"Plan for the worst. It’s an awkward conversation to have at the beginning, particularly with business contacts and family members, but having the discussion up front can help prevent headaches down the road if things go sour," Miller says.

"It’s along the same lines as going into a marriage with a prenuptial agreement."

Miller cites three files he’s handling where unwritten deals are being contested. One case involves a family; the second is among acquaintances in a business deal; and the third deals with an arm’s-length, third-party relationship.

Agreements and deals should be formalized on paper, says Miller, no matter what the relationship is between those involved.

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

Please click here to read the rest of the story.

Date_Published
2018-03-27
Description

Marlin Horst head shotProposed rules around syndicated mortgage investments (SMI) will help “weed out” those who are taking advantage of unsophisticated investors, Toronto corporate and commercial lawyer Marlin Horst tells The Lawyer’s Daily.

An SMI “is a method of funding commercial or residential developments where two or more people pool their money to invest in large-scale real estate projects,” the article states. “The investment is a mortgage registered against title to the property that is being developed.”

The legal publication notes the Financial Services Commission of Ontario has issued more than $1 million in fines against companies involved in the SMI market and the Canadian Securities Administrators (CSA) has put forward proposed amendments in an attempt to harmonize the regulatory framework across Canada.

Horst, a partner with Shibley Righton LLP, says the syndicated mortgage market is “ripe for taking advantage of less sophisticated investors,” who think a mortgage is a good, safe investment.

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

Please click here to read the rest of the story.

Date_Published
2018-03-22

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