Law Times

October 23, 2017

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Page 2 OctOber 23, 2017 • Law times tation period had expired. Butera alleged the firm failed to take the position that a six- year limitation period applied rather than the two-year one. In the original action, Butera, who owns a Mitsubishi deal- ership, sued a number of Mit- subishi companies for breach of contract, misrepresentation and negligence, as well as breaches of provisions in the Arthur Wis- hart Act. A judge granted summary judgment to Mitsubishi dis- missing the action, as the ap- plicable two-year limitations period had passed. He ordered Butera to pay $150,000 in costs for the action and summary judgment motion. When they appealed that decision, the appellants argued that a six-year limitation period should have applied, but the court struck down that ground as Butera's lawyers had conced- ed two years as the appropriate limitations period. Bringing up the six-year limitations period was raising a new issue, Mitsubishi argued. When Butera then sued Chown Cairns for negligence, he claimed $5 million in dam- ages f lowing from lost oppor- tunity to argue the merits of the claims. Chown Cairns then brought its motion for partial summary judgment, arguing that the is- sue of common law and statu- tory misrepresentation did not require a trial. Superior Court Justice Ed- ward Belobaba granted the motion, which dismissed a por- tion of the damages claim that related to misrepresentation. Belobaba found the appellants had failed to appeal a misrepre- sentation finding of the original decision. The Court of Appeal, how- ever, found Belobaba failed to consider whether partial sum- mary judgment was appropri- ate in the context of the case as a whole. "These claims are inter- twined with the misrepresenta- tion claims," Pepall wrote. "An award of partial sum- mary judgment in these cir- cumstances may lead to incon- sistent results to the extent the misrepresentation claim were not barred due to a limitation period." Pepall added that if the whole case had been considered, par- tial summary judgment would not serve the "objectives of pro- portionality, efficiency, and cost effectiveness." In the decision, the court laid out four potential risks parties should consider before bringing a motion for partial summary judgment. Parties need to keep in mind the cost of such a motion, whether the motion risks de- laying the final outcome of the case, the increase in summary judgment motions judges are hearing and whether the record available at the hearing of such a motion will be as expansive as the record at trial, the decision said. Jeff Saikaley, a partner with CazaSaikeley LLP, says the deci- sion is a call to lawyers to recon- sider bringing partial summary judgment motions. "There are some circum- stances where those partial summary judgment motions are appropriate and others where they are not," he says. He says that in a typical case a partial summary judgment motion could be useful to de- termine liability but not dam- ages, which could reduce the length and complexity of a trial. But in a case like Butera, where only one of the issues on liabil- ity is put forward on a summary judgment motion, Saikaley says a partial summary judgment could cause duplication and in- consistent findings. John Campbell, who repre- sented the law firm, declined to comment on the decision, as the case is ongoing. LT Entire $5-million legal negligence action to go to trial with which it can deal, it is not clear what kinds of disputes future regulations will permit the tribunal to adjudicate. And there is some debate as to how wide the tribunal's jurisdiction should expand. Escayola says it is unfortunate that the tribunal will not adjudicate disputes in- volving managers or builders, or Tarion, and that the issues the tribunal will only deal with are ones that would have been dealt with in Small Claims Court. "You've removed the actual meat and potatoes of what I thought the tribunal would want to deal with," he says. "So we haven't lightened the load from the Superior Court of Jus- tice." Escayola says practitioners and their clients might not want to wait to have their compliance matters heard by the tribunal, as it is not clear if and when its jurisdiction will widen. Christy Allen, of Davidson Houle Allen LLP, says that while lawyers in Ontario are focusing their current concerns around the limited jurisdiction of the tribunal, future concerns will likely be whether the body can deal with the sheer volume it will likely see as it starts to ad- judicate different types of mat- ters. Lawyers say the condo- minium authority is looking to develop a format for the tribunal that will do away with the need for representation in an effort to make it an accessible forum. But lawyers say this might not be realistic in an area of law that can be quite complex, espe- cially with the long list of new regulations being implemented. Allen says complainants might not necessarily need representation in some of the specific straightforward issues such as records. However, if the regulations end up conferring the amount of authority given to the tribunal by the legislation, trying to make the tribunal accessible may be difficult in practice, she says. "Once the issues that the tribunal starts to deal with be- come more complex, the more complex they are, the greater the need for legal representa- tion, whether it's a lawyer or a paralegal," she says. Allen says she also has con- cerns that the tribunal could eventually lead to a substantial increase in complaints being launched in this area. "It opens the door to be more accessible, which is a good thing on one hand, but on the other hand, it means there's a possibil- ity of having an unmanageable volume of complaints being re- ceived by the tribunal," she says. Chris Jaglowitz, who sat on the working group that advo- cated for the tribunal, says the initial jurisdiction of the tribu- nal should be very narrow, as it needs to start with a manage- able load. But he also fears the tribunal may be going online too early and too quickly. The chairman of the tribunal was only just named, and law- yers say the condo authority has released little information about the platform or its rules. "I have a sinking feeling that unless the tribunal is well pre- pared to hit the ground running when it opens its doors, it will bog down and fall way short of its potential," says Jaglowitz, who is a condo lawyer with Gar- diner Miller Arnold LLP. He adds that given the CAT is funded largely by a levy paid by condo unit owners, the tri- bunal will have a lot to live up to and must be able to dsmonstrate good value very quickly or else may risk losing its clients' con- fidence. Priya Ramsingh, a spokes- woman for the Condominium Authority of Ontario, did not provide a timeline as to when the CAT's jurisdiction will be expanded, but she said the tri- bunal will start accepting ap- plications for records-related disputes on Nov. 1. "It is expected that the types of disputes that can be heard by the CAT will expand over time as more is known about the priority areas to be added to its jurisdiction," she said. While the tribunal will likely play a growing role going for- ward, Jaglowitz says the tribu- nal's importance will be second- ary to the CAO's principal man- date of providing information to condo stakeholders that they can use to resolve disputes early. "If the information and edu- cation delivery is successful, there should be fewer disputes for the tribunal to handle," he says. LT CAT will start receiving applications Nov. 1 Continued from page 1 NEWS Continued from page 1 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM Integrated Legal Marketing Solutions Put Your Digital Marketing Tactics into High Gear Untitled-3 1 2017-10-18 10:06 AM

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