Law Times

June 19, 2017

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Page 2 June 19, 2017 • Law Times www.lawtimesnews.com NEWS perior Court Justice Grant Dow, found that these two deficiencies were insignificant. The Court of Appeal dis- agreed. "In my review, they represent material deficiencies that are fatal to the ability of the pur- ported disclosure document to be a disclosure document within the meaning of the act," wrote Justice Kathryn Feldman. The motion judge also ac- cepted the franchisor's argu- ment that the franchisee could not say the contents of the dis- closure document were of im- portance to him, as he did not read the entire document. The Court of Appeal, how- ever, determined that it did not matter if the franchisee had not properly reviewed the docu- ments, as the material itself was deficient. The franchisor's obligations are not diminished when a fran- chisee does not closely study the contents of the disclosure docu- ment, Feldman said. Feldman said that the act im- poses significant disclosure obli- gations on franchisors for the benefit of franchisees. Milton Davis, the lawyer representing the franchisor, says he does not intend to seek leave from the Supreme Court of Canada to appeal the decision, as the matter is not of national importance because it concerns Ontario-specific legislation. He says the Court of Appeal applied a strict approach to the interpretation to the act. "It doesn't matter whether or not the franchisee even reads the disclosure document, which means it doesn't matter if the franchisee is not misled in any way, shape or form," says Davis, a partner with Fogler Rubinoff LLP. Ben Hanuka, the lawyer representing the plaintiffs, says the Court of Appeal decision is helpful to the franchise law bar to clarify what the test is for such matters. "Whether you advise a fran- chisor or whether you advise a franchisee, you've got to make an assessment about the nature of the deficiency and what's not compliant and whether those deficiencies are important and material. That you do on an ob- jective basis," says Hanuka, of Law Works PC. He says an im- portant takeaway for franchise lawyers is that technicalities matter in this area of law. LT jurisdiction. "Our position was that after one year had passed, the board no longer had the power to de- termine the matter, and because the board no longer had the power to determine the matter, there was no derivative ability for the court to determine that matter," says Dickson, a partner with Evans Philp LLP. When Sloan's decision was released in October 2016, it created a stir among many personal injury lawyers who represent tenants in such matters. LawPRO received dozens of notifications from concerned lawyers, prompting the insurer to become directly involved in the appeal. Daniel Zacks, the lawyer who represented LawPRO, says he cannot remember a lower court decision involving a limitations issue that has had a more dra- matic and immediate impact. Up until the lower court de- cision was released last year, Zacks says it was understood that claims brought on behalf of a tenant would be subject to the Limitations Act 2002, which meant a two-year limitation per- iod applied. This changed over- night with the decision, he says. "There are an awful lot of claims involving tenants and landlords, and a very large sub- set of those claims were com- menced within two years, but not within one year of the acci- dent," says Zacks, a lawyer with Clyde & Co Canada LLP. He says LawPRO figured that the best way to deal with the large number of insured lawyers that could be facing claims for failing to commence proceedings in time was to try to get Sloan's de- cision overturned. Rather than intervene in the case, the plain- tiff 's counsel invited LawPRO to participate in the appeal. Con- trary to the lower court decision, the Court of Appeal found that there was "no basis for importing the limitation period prescribed by" the Residential Tenancies Act into such a claim. Joel McCoy, one of the plain- tiff 's lawyers, says the main take- away for lawyers from the Court of Appeal's decision is that they will not be facing claims for missing limitations periods. "Their clients' rights remain in place and they're not put in a position to be treated any differ- ently," says McCoy, a lawyer with Bergmanis Preyra LLP. LT Continued from page 1 LawPRO heard from concerned lawyers Record corrected Continued from page 1 Order # 804218-65203 $4 2 volume looseleaf supplemented book Anticipated upkeep cost – $ per supplement 4-6 supplements per year Supplements invoiced separately 0-88804-218-3 Shipping and handling are extra. 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