CIVIL LITIGATION

Civil Litigation is a term that is conventionally used to describe disputes between parties where the dispute is not criminal in nature. Lawyers ordinarily treat many specialized legal areas as outside of this definition including personal injury, employment law,  family law and estate litigation, although these are all, technically, types of civil litigation.

Civil Litigation can take many forms depending on the type of case. However, in general, this is the legal process that lawyers and most lay people think of when they hear the word lawsuit. Ordinarily, a dispute begins with an exchange of letters between the lawyer for the complaining party and the opposing party, who may in turn retain his or her own lawyer. An effort is made to resolve the dispute. If the case does not get resolved, the complaining party may issue a claim through the Court.

The other party will then be served with the claim and thereafter the parties, depending on the size and nature of the case, may conduct examinations for discovery. This discovery process involves each party to the dispute being questioned under oath by the other party’s lawyer, but it is before the trial and conducted without the presence of a judge and in a setting less formal than a courtroom. If the case does not settle after these examinations, it may eventually go to mediation, arbitration, pre-trial settlement conference or, ultimately, a trial.

The vast majority of cases are resolved in one manner or another prior to a trial.

 

BREACH OF CONTRACT

Breach of contract means what you think it means. The word breach in Old English was braec, which meant breaking. Two parties have entered into a contract and one party (a person or a business) has failed to live up to his or her end of the bargain.

 

Before calling a lawyer or starting a lawsuit, how serious is the breach and what can be done about it? Perhaps the breach is minor and the party who has failed in some regard is willing and able to fix things. If a contractor promises to do certain work on Monday and does it instead on Thursday, this is minor and you are not relieved of your obligation to pay. If you negotiated for 25 year shingles and the contractor installed 20 year shingles, this is of greater consequence, but it does not mean that you pay nothing.

 

Minor breaches do not entitle the non-breaching party to walk away from the contract. The minor breach might warrant a price adjustment. This would have to be discussed with the party guilty of the breach. A price change would be an amendment to the contract. Contracts can be amended on consent. Each party should proceed in good faith. Courts are there when people cannot agree.

 

A major breach or a “fundamental” breach entitles the non-breaching party to walk away and treat the contract as being at an end. In law, this is called “repudiation”.

 

Most contracts can be oral and, therefore, an oral contract can be breached. Some contracts have to be in writing. However, if relations have soured with the other party, it is highly unlikely that there will be an agreement as to what the terms of the contract were. Contracts need certainty and, if uncertain and ambiguous, whether oral or written, they can fail for that reason. If a contract is “voided” for uncertainty, a party who has nonetheless received something of value will have to pay something. If the parties cannot agree, a court may have to decide what is fair and reasonable.

 

A contract is an exchange of value. Charitable or “gratuitous” promises are not contracts and are not enforceable, not that it would involve litigation in any event but, if your neighbour promises to cut your grass while you are away on vacation and fails to do so, that is not a breach of contract as it was not a contract in the first place.

Once again, please do not hesitate to call our firm for advice.

 

COMMERCIAL LITIGATION

Commercial litigation is in general any type of legal controversy related to business issues. Cases that fall under the heading of commercial litigation include but are not limited to:

 

  • Breaches of contract

  • Class actions

  • Business dissolution

  • Interference with business relationships

  • Disputes over non-compete clauses

  • Breach of fiduciary duty

  • Franchise issues

  • Shareholder issues

  • Partnership disputes

  • Debt collection

  • Constructions liens

  • Bankruptcy

  • Property disputes

  • Banking issues

  • Investment issues

  • Power of sale or mortgage foreclosures

 

Commercial litigation covers all business conflicts.

 

DEBT COLLECTION

This area of law needs little explanation. If someone owes you money and will not pay, often a firm letter from a lawyer will be effective in collecting the debt. If that is not successful, a law suit will be required. The debt may be personal such as a loan to a friend or relative. It may be a result of a business transaction. Monteith, Baker, Johnston & Doodnauth Professional Corporation will help you collect what is owing to you.

If you are the one owing the debt, we may be able to help you reach a compromise to satisfy the debt for less than the full amount owing. If there is an unjust claim against you, we will defend it vigorously on your behalf.

 

EMPLOYMENT LAW INCLUDING WRONGFUL DISMISSAL

At Monteith Baker Johnston Doodnauth Professional Corporation we understand that being suddenly terminated from your job can have a profound impact on your life. You will want to know whether you received reasonable notice and severance pay.

You may be an employer who wants to know:

 

  • Do I have grounds to terminate an employee for consistent poor performance and/or insubordination towards management?

 

Or, perhaps, as an employee you want to know:

 

  • Do I have to put up with racism or sexually harassing comments by a co-worker?

 

Monteith Baker Johnston Doodnauth Professional Corporation and its lawyers are ready to assist you in ensuring that whether you are an employee or employer your rights are protected. We will provide you with advice and an effective strategy to successfully navigate you through these hard times.

In our employment law practice we assist clients with the following:

  • Wrongful dismissal

  • Constructive dismissal

  • Severance package review

  • Human rights and discrimination claims

  • Sexual or other harassment at work

  • Employment contracts

  • The rights and obligations of employers

  • Law of hiring

  • Long term and short term disability

  • Representation at administrative boards and tribunal hearings

Wrongful Dismissal

Wrongful dismissal is the term used in Canadian employment law to describe a situation in which an employer fails to provide proper notice or payment in lieu of notice to an employee when the employee is terminated. Terminations can be for just cause or without cause. In the case of a just cause termination it is important to understand whether or not an employer had the required and sufficient evidence to establish that they were justified in terminating you. In such circumstances an employer may take the position that they were justified in terminating you and that no notice or payment in lieu of notice is required. Our firm will provide you with a review of the circumstances surrounding your termination and offer advice on whether you have grounds to make a claim for wrongful dismissal.

 

In the case of a without cause termination it is important to look at whether or not the notice package is sufficient based on a number of criteria including, but not limited to:

  • Employment Standards Act

  • Terms of an employment contract

  • Employee’s age

  • Employee’s length of service

  • Type of position of employee

  • Ability to find comparable other employment

We would also determine whether you are entitled to bonuses, benefits continuation, stock options, vacation pay and moving expenses.

Constructive Dismissal

Constructive dismissal is a term that describes a scenario where you are still technically employed but an employer has fundamentally breached or altered a condition of your employment. For instance, your salary has been reduced significantly or your hours are reduced or your responsibilities have been scaled back significantly without due consideration or you are being relocated to another location. Abusive treatment or a forced leave of absence may also constitute constructive dismissal.

If such a breach of your rights has occurred it is important that you get legal advice so that you can communicate to the employer that you do not accept the breach. If the problem cannot be resolved you may have to resign and start an action for wrongful dismissal.

 

ESTATE LITIGATION

The death of someone in the family can, unfortunately, lead to disputes among surviving family members. The disputes are usually the result of a family member being unhappy with the portion of the estate left to him or her by the person who has died (the testator). If the person is unhappy enough, a lawsuit may result.

Estate litigation refers to a lawsuit involving a deceased person’s estate. Unless the lawsuit is settled by the persons involved in the dispute, the court will decide to whom the deceased person’s estate will go.

A person’s estate refers to the totality of the property that a person owns at death. The term property refers to everything the person owns, not just real estate. However, some property may not become part of the deceased person’s estate. Two people who, together, own property may be tenants in common or they may be joint tenants. If they are tenants in common, when one of them dies, his or her share of the property becomes part of his or her estate. If they are joint tenants, when one person dies, his or her share of the property goes to the person with whom the deceased person jointly owned the property and does not become part of the deceased person’s estate, or is not affected by the deceaseed person’s will or the law with respect to intestacies if there is no will.

What happens to a person’s estate when he or she dies? It depends on whether or not the person has a will. If the deceased person has a will, his or her property goes to whomever the will directs. This is assuming that the will is valid.

If the deceased person does not have a valid will, the deceased person is said to be intestate (without a will) and it is said that there is an intestacy.

In the case of intestacy, if the deceased person has a spouse, but no children, all of the deceased person’s estate goes to the spouse. If the deceased person had a spouse and one child, the spouse receives the first $200,000 from the estate and half of the remainder of the estate. The child receives the balance of the estate. If the deceased person had a spouse and two or more children, the spouse receives the first $200,000 from the estate and one-third of the remainder of the estate. The children then share the balance of the estate equally. If the deceased person has children but no spouse, the children divide the estate equally.

If there is a will, but it is invalid, then it is of no effect and there is intestacy. A will may be invalid for several reasons. Some of these reasons are as follows:

 

  • The will may be forged;

  • The will may be improperly signed or witnessed;

  • The person who signed the will may not have been mentally competent when he or she signed the will;

  • The will may be the result of undue influence; or

  • The will may not accurately represent the intention of the testator.

 

To be mentally competent to sign a will, a person must:

 

  • Understand what a will is and what its effect is;

  • Know what he or she owns;

  • Know whom he or she should consider in deciding to whom to leave his or her estate; and

  • Have no disease of the mind which affects the person in deciding to whom to leave his or her estate.

 

Undue influence means influence by someone in a position of power or control that is great enough to persuade the person signing the will to leave his or her estate to someone whom the testator would not otherwise leave his or her estate.

The most common situations leading to a challenge of a will include:

 

  • Favouring one child over another, sometimes for good reason, sometimes not;

  • Making or changing the will when the testator is sick, old and feeble;

  • The deceased, having married two or more times, favours a subsequent spouse or stepchildren over children of the first marriage;

  • The deceased omits to include any reference in the will to certain property; and

  • Insufficient provision in a will for a dependant spouse or dependant children.

 

Wills can be revoked (cancelled) by signing a subsequent will or by declaring a former will to be revoked. When a person marries, all previously signed wills are automatically revoked and a new will should be signed.

At Monteith, Baker, Johnston & Doodnauth, we have lawyers experienced in the area of estate litigation who will ensure that your rights are protected should you have a claim or should a claim be made against you.

 

HUMAN RIGHTS CLAIMS

The Human Rights Code of Ontario strives to recognize and protect “the inherent dignity and the equal and inalienable rights of all members of the human family”. The goal is freedom from
discrimination for each individual.

The Human Rights Code can be reviewed by visiting the website of the Human Rights Tribunal of Ontario at www.hrto.ca. The Code enumerates specific grounds on which discrimination is
prohibited. As one would expect, discrimination is prohibited on the basis of such things as race, ethnicity, gender, sexual orientation and disability. There are other lesser known prohibited grounds such as “gender expression”.

People are to be free from discrimination in the areas of services, accommodation, entering into contracts and employment. Interestingly, “age” is defined as persons 18 years or older. Thus, the City of Oakville is within its right to ban 16 and 17 year olds from tarming beds. Otherwise, it would be unlawful discrimination against these mid-teenagers in the area of “services, goods and
facilities”.

 

The Ontario Human Rights Tribunal, which conducts hearings on human rights violation, is often faced with matters of fundamental justice. Obviously, discrimination in employment or with respect to finding a place to live is of great concern and importance. Persons who feel that their human rights have been infringed can bring an application before the Tribunal and seek
compensation from the offending party.

 

The Tribunal will try to mediate a solution, before proceeding to a hearing. If this does not work, the matter will go to a hearing where one can represent himself/herself or be represented by a
lawyer or paralegal.

 

Once again these matters can be stressful and complicated, and we invite you to call our firm for advice.

 

INSURANCE CLAIMS OTHER THAN MOTOR VEHICLE INSURANCE CLAIMS

We handle contractual disputes that may arise between you and your insurance company. For example, you may have a dispute with your home insurer over your claim for property damage caused by fire or some other cause. In the case of a relatively small amount of property damage, you most typically would not need a lawyer. However, in cases involving substantial damage to property disputes can often arise with your insurer over receiving a fair replacement value for the damage to your home or its contents.

Claims against insurance companies may also arise, for example, in the case of failure to pay life insurance proceeds, or with the failure of an insurer to honour medical bills incurred out of province. In these cases, your rights are governed by the contractual insurance policy that you have purchased. In addition to disputes over the amount of your claim, legal disputes can often arise over the interpretation of wording in the policy (whether your loss is covered), or in some cases whether the particular policy purchased was properly explained to you when you bought it.

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tel:905.895.8600 (Newmarket)

tel:905.773.8910 (Toronto)