Canada: Court Of Appeal Summaries (December 14- 18)

Last Updated: December 30 2015
Article by John Polyzogopoulos

Hello Again for the Final Edition of Blaneys' OCA Blog for 2015!

The Court of Appeal released a number of civil decisions this week in areas including family law (several decisions), med mal, real estate, offers to settle and other procedural issues. One interesting decision for our real estate colleagues was a decision in which the court concluded that the combined effect of s. 113(5)(a)(iv) of the Registry Act with the nemo dat principle ("no one gives what he does not have") protected the respondents' right of way through a laneway to their homes despite the fact that their rights of way were not registered on the servient tenement within the last 40 years.

Given that Christmas and New Years' Day both fall on a Friday this year, we intend to take a two-week break from publishing our blog and will be back on our regular schedule on January 8. However, in the unlikely event that the court releases a noteworthy decision during these next two weeks, we will endeavour to try to publish a summary as it arises.

On behalf of everyone here at Blaney McMurtry, I hope everyone has a very healthy and happy holiday season and wish you all the best for 2016!

CIVIL DECISIONS

Gold v. Chronas, 2015 ONCA 900

[Simmons, Epstein and Pardu JJ.A.]

Counsel:

James C. Morton, for the appellants

Michael W. Carlson, for the respondents

Keywords: Real Property, Registry Act ss. 113(5)(a)(iv), Easements, Rights of Way, Access, Laneway, Dominant Tenements, Servient Tenements, Easements Registered on Title to Dominant Tenement but not Servient Tenement, Nemo Dat Principle, 40 Year Period

Facts: The issues on this appeal concern whether the respondents are entitled to use a laneway located on the appellants' property to access their homes. When the respondents purchased their homes, their deeds included a right of way over a laneway located on adjoining land at the rear of their properties. In 2013, the appellants blocked the respondents' access to their homes via the laneway by erecting a pole at the entrance to the laneway. In response, the respondents applied for an injunction restraining the appellants from interfering with the respondents' use of the laneway. The application judge granted the respondents' application and prohibited the appellants from interfering with the use of the rights of way over the laneway as described in the respondents' deeds. The application judge concluded that the combined effect of s. 113(5)(a)(iv) of the Registry Act with the nemo dat principle protects the respondents' rights to their rights of way despite the fact that they are currently unregistered on the servient tenement.

Issues:

Did the application judge err in the interpretation and application of s. 113(5)(a)(iv) of the Registry Act?

Holding: Appeal dismissed.

Reasoning:

No. Registry Act s. 113(5)(a)(iv) is an exception, not only to the 40-year expiry period, but also to the 40-year title search period. Where s. 113(5)(a)(iv) applies, a right will not expire after 40 years, and an instrument registered outside the 40-year title search period will continue to affect the chain of title. The application judge correctly concluded that s. 113(5)(a)(iv) of the Registry Act can apply to protect a dominant tenement holder's right to use a right of way that was once registered on the servient tenement but the registration of which was not validly renewed within 40 years after its creation, so long as the right of way continues to be openly enjoyed and used by the owners of the dominant tenement. Through s. 113(5)(iv), the Legislature protects claims that are old, but not stale, in a manner that is consistent with the purposes of the Registry Act and that is not unfair to purchasers. Even though not validly renewed, the application judge found that the claims here were not stale because the respondents were openly enjoying and using the laneway as at the date of the application. That is because using the laneway was the only realistic way to access the respondents' homes and associated parking.

Stechyshyn v. Domljanovic, 2015 ONCA 889

[Weiler, Pardu and Benotto JJ.A.]

Counsel:

William G. Scott and Jillian van Allen, for the appellant

Philip Pollack and Sebastian Schmoranz, for the respondent

Keywords: Torts, Motor Vehicle Accident, Amendment of Defendant's Name, Unidentified Defendant, Misnomer, Limitation Period, Summary Judgment, Collateral Attack

Facts:

The appellant was a pedestrian struck by car operated by the respondent in 2008. The appellant took down the driver's information in a notebook. At the hospital, the appellant presented the notes to the police officer investigating the accident; the officer disappeared with the notes.

The appellant filed a Statement of Claim identifying the defendant as "John Doe" because he had no independent recollection of the driver. The appellant's counsel requested a copy of the accident investigation file from the Toronto Police Services, referencing Sgt. Olson, the location and the appellant. The Toronto Police Services replied saying there was no record of the accident and that Olson indicated he did not attend any calls pertaining to the accident.

In 2011, the defendant's insurer, Guarantee Company of North America, obtained an order for production of the Toronto Police Services file relating to the accident. The appellant received a copy of the police file, which indicated that Dusan Dolmjanovic was the driver and the officer's name was Officer Ollos.

On November 25, 2011, Master Muir made an Order granting the appellant leave to amend his Statement of Claim to substitute the respondent as named defendant for "John Doe". The respondent did not attend on the motion. Subsequently, the respondent brought a motion for an order dismissing the appellant's claim on the grounds that it was brought after the expiry of the two-year limitation period.

The motion judge granted the respondent's motion on the basis that the appellant did not exercise due diligence and did not take all reasonable steps to identify the respondent within the two-year limitation period.

Issue:

Did the motion judge err in finding that the appellant failed to take all reasonable steps to identify the driver?

Holding: Appeal Allowed

Reasoning:

The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. The law that governs the addition of a party after the expiry of a limitation period does not apply.

The respondent's motion for summary judgment was an indirect attack on the motion for misnomer. It would be a waste of money, time, energy and judicial resources to allow the correct defendant to be added on a motion for misnomer and then to allow a motion for summary judgment on the basis that the correction was made after the expiry of the limitation period. The law does not countenance such impracticality. The law treats the naming of the correctly named defendant as a substitution for the incorrectly named defendant and not the addition of a new party or the initiation of the action against the correctly named defendant.

McColeman v. French, 2015 ONCA 890 (Endorsement)

[Weiler, Pardu and Benotto JJ.A.]

Counsel:

Julie Michelle French, acting in person

Robert K. Bickle, for the respondent, Michael Allan McColeman

Inga Rinne, for the respondent, the Office of the Children's Lawyer

Keywords: Family Law, Custody, Access, Access Costs, Spousal Support, Child Support, Equalization of Net Family Property, Best Interests of the Child, Child Support Guidelines, Reasonable Apprehension of Bias

Facts:

The parties separated in 2010 after 13 years of marriage, with two sons now 17 and 14. Within six months of separation, the parties were in litigation and the case management judge requested involvement of the Office of the Children's Lawyer (the "OCL") to represent the children. At trial in 2014, the trial judge made orders relating to custody, child and spousal support and property equalization. The trial judge ordered that the children remain living with the respondent with access to the appellant at the children's discretion.

The appellant appealed all issues and alleged bias on the part of the trial judge. On cross-appeal, the respondent alleged the trial judge erred in reducing the appellant's child support obligations to reflect her access costs.

Issues:

(1) Did the trial judge err in his decisions with regard to custody and financial matters?

(2) Was the trial judge biased or did he appear to be biased based on the fact that the appellant worked in the courthouse where the trial took place?

(3) Did the trial judge err in reducing the appellant's child support obligations to account for access costs?

Holding: Appeal dismissed. Cross-appeal allowed and order for child support amended.

Reasoning:

(1) No. With regard to custody, the court found no reason to interfere with the trial judge's decision. The trial judge made no error in exercising his discretion, as he carefully reviewed the relevant factors in connection with the best interests of the children. In addition, an order for custody would be questionable, as one child is almost an adult and the other is a teenager.

Regarding financial matters, the court gave no effect to the appellant's submissions. First, the appellant sought equalization payments despite having declared bankruptcy post-separation. At that point, any right of action would have vested in the trustee in bankruptcy. Second, the trial judge was correct in not awarding spousal support to the appellant based on his finding that the parties had achieved self-sufficiency by the time of trial. Lastly, the court found no reason to interfere with the decision to dismiss the appellant's request for retroactive spousal and child support. To the extent that retroactive child support was appropriate, the trial judge correctly offset the amount by expunging the appellant's arrears of child support.

(2) No. The appellant did not meet the two-part objective test to establish bias, based on reasonableness. The court stated that the person considering the alleged bias must be reasonable and the apprehension of bias must also be reasonable. Based on the test, the court found no evidence of bias, actual or reasonably apprehended. Instead, it found the evidence and reasons disclosed a concerted attempt by the trial judge to be scrupulously fair in his dealings with the appellant.

(3) Yes. No evidence was led with respect to access costs, and the cross-appeal was therefore allowed. The court amended the order to reflect the appellant's child support obligations based on the table calculation under the Child Support Guidelines.

König v. Hobza, 2015 ONCA 885

[Cronk, Epstein and Huscroft JJ.A.]

Counsel:

Ronald Flom and Robert W. Trifts, for the appellant

Sarit E. Batner and Vladimira Ivanov, for the respondents

Keywords: Corporate Law, Oppression, Civil Procedure, Costs, Discretion, Rules of Civil Procedure, Rule 49 Offers, Rule 57, Substantial Indemnity Costs, Partial Indemnity Costs

Facts:

The appellant was successful in an oppression action against the respondents. The trial judge awarded the appellant his costs on a substantial indemnity basis. The trial judge considered an offer by the respondents served four days before the commencement of trial to be a valid rule 49 offer (the "Offer"), but held that rule 49.10 was not engaged because the trial judgment was more favourable than the Offer. The respondents appeal. The Ontario Court of Appeal upheld the finding of oppression but reduced the damages award and remitted the matter back to the trial judge to consider the costs award in the light of the reduction in damages. In reconsidering costs, the trial judge found that the Offer was more favourable than the revised judgment. Against that background, he awarded the appellant his costs up to the date of the Offer on a substantial indemnity scale, and the respondents their costs after the Offer on a partial indemnity scale.

Issues:

(1) Was the trial judge permitted to give effect to an offer to settle under rule 49.10 even if it was served fewer than seven days before trial?

(2) If it was not a valid rule 49 offer, was the trial judge entitled to exercise his discretion to fix costs in the way he did in this case?

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge erred in treating the offer as a valid rule 49 offer. First, the wording of rule 49.10 makes it clear that the seven-day timing requirement is mandatory. Second, a no "near miss" policy applies to the timing requirement under rule 49.03 as well as to the amount of the judgment.

(2) Yes, the trial judge was entitled to exercise his discretion in the way that he did. In this case, the trial judge was entitled to take the Offer into account pursuant to rule 49.13, and pursuant to rule 57.01(1). A trial judge can employ his or her discretion under rule 49.13 without explicitly referring to it. The trial judge also took the required holistic approach to awarding costs in the second costs endorsement.

Polera v. Wade, 2015 ONCA 895

[Weiler, Pardu and BenottoJJ.A.]

Counsel:

Jasmine T. Akbarali and Zohar Levy, for the appellant

Ron Bohm and Amani Oakley, for the respondent

Keywords: Tort Law, Negligence, Medical Malpractice, Contributory Negligence, Civil Procedure, Summary Judgment, Genuine Issue for Trial, Credibility, Procedural Fairness

Facts:

The respondent, Felicity Polera, went to see the Canadian Hearing Society ("CHS") in 2004 because she was experiencing some hearing loss in her right ear. She was fitted with a hearing aid and was sent for an MRI. The appellant, Dr. Wade, failed to detect Ms. Polera's brain tumour on the MRI. In 2007, Ms. Polera had lost all hearing in her right ear and Dr. Wade once again ordered an MRI, and on this MRI he noticed the tumour. Dr. Wade arranged for the follow-up medical care, which involved surgeries that have left Ms. Polera with serious injuries.

Dr. Wade admitted that he breached the required standard of care in failing to detect the tumour on the 2004 MRI and that these breaches caused Ms. Polera's injuries. On summary judgment, the motion judge found there was no genuine issue for trial with respect to either the defence of contributory negligence or the listing of Ms. Polera's specific injuries.

Issues:

(1) Did the motion judge err in dismissing the defence of contributory negligence?

(2) Did the motion judge err in listing Ms. Polera's specific injuries?

Holding: Appeal dismissed.

Reasoning:

(1) No. Dr. Wade argued that Ms. Polera contributed to her injuries because she had missed CHS appointments and that she had cancelled an "emergency appointment" with his office. He claimed that the missed appointment added six months of delay to the tumour's diagnosis. The suggestion that she had missed an "emergency appointment" arose from a note in the file of the CHS audiologist which said "will ask ENT for an emergency appt." Ms. Polera denied being told it was an "emergency appointment".

Dr. Wade submitted the audiologist's note was a major credibility issue that required a trial. The court disagreed, finding that there was no evidence that the audiologist told anyone about the contents of the note. Dr. Wade had three years to obtain the audiologist's evidence and failed to do so. Further, once Ms. Polera learned that she had a brain tumour, she never called or missed any appointments. The motion judge found that the necessary findings of fact could be made on the evidence before him and that there was no need for contributory negligence to go to trial.

The court disagreed with Dr. Wade's argument that he was denied procedural fairness because he did not know the issue of contributory negligence would be before the motion judge. The record before the court showed that Dr. Wade was aware that contributory negligence was going to be an issue, with the court citing passages from the facta that had addressed the issue.

Finally, Dr. Wade submitted that the motion judge had misplaced the burden with respect to which party was required to adduce evidence supporting contributory negligence at the summary judgment hearing. Specifically, Dr. Wade argued that Ms. Polera should have produced evidence from the audiologist regarding the "emergency appointment" and that the only evidence with respect to contributory negligence was Ms. Polera's examination for discovery transcript, filed without the mandatory supporting affidavit.

The court found that the motion judge was entitled to consider Ms. Polera's discovery evidence because Dr. Wade had relied on it in his own submissions. Also, the onus was not shifted by the motion judge because the evidence that Ms. Polera had not been told of any urgency was not contradicted by Dr. Wade and that the resolution of the issue did not then turn on the onus of proof.

(2) No. The motion judge did no err in listing the specific injuries. There was no cross-examination on the three expert reports that were filed. Evidence can still be called by the parties with respect to the degree to which a specific injury affects Ms. Polera and thus, the quantum of damages.

Fielding v. Fielding, 2015 ONCA 901

[Feldman, Lauwers and Benotto JJ.A.]

Counsel:

Gary S. Joseph and Elissa H. Gamus, for the appellant

Ilana Zylberman Dembo and Michael Zalev, for the respondent

Keywords: Family Law, Custody, Mixed Parental Alienation, Recommendations for Proposed Therapy, Net Family Property, Family Law Act ss. 4(1) & 5(6), Pre-Judgment Interest, Spousal Support Award, Family Law Rules R. 24, Costs, Settlement Offer

Facts: The parties to this appeal are physicians who were married and lived together for seventeen years until their separation in late December 2010. There were two trials: one for custody and the other for the financial issues. The husband and wife each sought custody of their three teenage children (Katie, Sean, and Natalie). The family dynamics were dysfunctional, and both parents acted unreasonably and not in the best interests of their children. The trial judge ordered that the father have sole custody of Katie and Sean, and the mother have sole custody of Natalie, and also made recommendations for proposed therapy based on the expert opinion of a doctor. The trial of the financial issues included a calculation of the net family property (the "NFP") of each party, the wife's entitlement to support, and the costs award. The wife appealed both decisions.

Issues:

(1) Did the trial judge err in making a recommendation for proposed therapy by accepting the expert opinion of a doctor?

(2) Did the trial judge err in making the following financial considerations:

(a) Declining to include the mortgage in the calculation of the husband's NFP?

(b) Declining to grant unequal division of the NFP in favour of the wife?

(c) Declining to order pre-judgment interest ("PJI") on the equalization payment?

(3) Did the trial judge err in assessing spousal support for the wife?

(4) Did the trial judge err in the costs ordered against the wife on the financial issues?

Holding: Appeal dismissed.

Reasoning:

(1) No. First, it was open to the trial judge to accept the recommendations of the doctor's opinion for therapy based on findings of mixed parental alienation. She addressed the criticisms of the doctor's report and testimony, and made findings of fact based on the evidence. Second, time has overtaken the custody issue so that this appeal is moot. The children are all between 18 and 19 years old. Their actions have given voice to their wishes and demonstrate their capacity for self-determination. Custody legislation and jurisprudence concerns children, not young adults.

(2)(a) No. The trial judge concluded that the mortgage on the matrimonial home at the date of marriage related directly to its acquisition or significant improvement, as it replaced the financing used to acquire or maintain the property. As such, pursuant to s. 4(1) of the Family Law Act, the mortgage was not included in the calculation of the husband's NFP. This decision by the trial judge was a clear application of the statutory framework to a finding of fact based on the evidence at trial.

(2)(b) The trial judge found that any potential unjust enrichment had been adequately compensated for by the equalization calculation, and that the threshold for "unconscionability" under the criteria established by s.5(6) of the Family Law Act was not met. The discretionary decision to refuse to grant an unequal division of NFP was grounded in the evidence and her factual findings.

(2)(c) No. The trial judge noted that the wife had use of the matrimonial home, lived in the home, and did not pay rent. PJI is discretionary and may not be awarded where the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial and the asset generates no income.

(3) No. The trial judge awarded the wife unlimited term spousal support. She considered the Spousal Support Advisory Guidelines (the "SSAGs"). The trial judge concluded that $10,000 was appropriate, as it would provide the wife with sufficient funds to meet her reasonable needs. The trial judge adjusted the spousal support retroactively and calculated the amount owing by way of a lump sum. Given the ongoing animosity between the parties, it was reasonable to make a decision that offered finality.

(4) No. The trial judge reviewed the settlement positions prior to trial. She concluded the wife's offers to settle were unreasonable, and that the husband put forward a very reasonable offer. In the end, the trial judge found that the husband was entitled to partial recovery of costs. Discretionary costs decisions should only be set aside on appeal if the court below has made an error in principle or if the costs award is plainly wrong. Here, the trial judge referred to rule 24 of the Family Law Rules, the factors enumerated therein, and exercised her discretion to award costs to the husband but also to reduce this award in accordance with his unreasonable behaviour. In determining success at trial, the trial judge did more than consider the husband's last offer. She also reviewed the provisions of the Family Law Rules, asked for submissions, thoroughly analysed the multiple interim orders made (including the references to costs), and examined the ongoing positions of the parties. The trial judge was in the best position to make this determination.

Jackson v. Arthur, 2015 ONCA 902

[MacPherson, Sharpe and van Rensburg JJ.A.]

Counsel:

Anthony Macri, for the appellant

Robert A. Fernandes, for the respondent

Keywords: Family Law, Custody, Bias

Facts:

The appellant mother appealed an order awarding sole custody of two children to the respondent father. At trial, the parties agreed that the best custodial arrangement for their two children was sole custody to one parent because of their deeply acrimonious and dysfunctional relationship. After a seven day trial, the trial judge awarded sole custody to the respondent with generous access to the appellant. The appellant appeals on several grounds.

Issues:

(1) Did the trial judge err by hearing evidence in the absence of the self-represented mother?

(2) Did the trial judge's comments create a reasonable apprehension of bias?

(3) Did the trial judge demonstrate bias by ordering an equal division of parenting time once the trial resumed?

(4) Did the trial judge err by ignoring evidence of the appellant's good parenting and by failing to give sufficient weight to evidence relating to domestic violence in the parties' relationship?

(5) Did the trial judge err in calculating child support arrears?

Holding: Appeal dismissed on all issues but one.

Reasoning:

(1) No. After the first two days of trial, the appellant did not show up for the third day. She went to the hospital but did not contact anyone at the court to explain her absence. The court made unsuccessful efforts to find her. In these circumstances, the trial judge allowed the trial to continue. The appellant made no effort to contact the court for six days. Furthermore, on the third day of trial the father's final witness testified about property issues which were not relevant to the appeal.

(2) No. There was nothing troubling about the trial judge's comments blaming the appellant for her absence from the trial and the trial judge's skepticism about her explanation for the absence. The comments were far removed from raising a legitimate issue of potential bias.

(3) No. The order reflects the parties' shared view at the time it was made.

(4) No. The trial judge did not ignore evidence of the appellant's good parenting. The trial judge's ultimate conclusion was that both parents were good parents and could be given sole custody. On the father's violence issue, the trial judge accepted the evidence of Peel Children's Aid Society that "the father's inappropriate disciplining of the Children has been dealt with."

(5) Yes. The parties agreed that there was a miscalculation of child support arrears.

CIVIL ENDORSEMENTS

Leong v. Ryabikhina, 2015 ONCA 886

[Sharpe, Blair and Huscroft JJ.A.]

Counsel:

No one appearing for the appellant

Katherine A. Booth, for Dr. Renata Leong

Christopher M. Hubbard, for Dr. Renata Leong

Jonathan Gutman, for St. Michael's Hospital

Keywords: Vexatious Litigants

CRIMINAL AND CAPACITY DECISIONS

McLellan (Re) 2015 ONCA 888

[Feldman, Gillese and Watt JJ.A.]

Counsel:

Anita Szigeti, for the appellant Daniel McLellan

Philippe Cowle, for the Crown

Kathryn Hunt, for the Centre for Addiction and Mental Health

Keywords: Criminal Law, NCRMD, Criminal Harassment, Uttering Death Threats, Discharge with Conditions, Review Board, Significant Threat to Public Safety Test

R. v. Foreman, 2015 ONCA 884

[Feldman, Gillese and Watt JJ.A.]

Counsel:

Mark Halfyard and Breana Vandebeek, for the appellant

Jeremy Streeter, for the respondent

Keywords: Criminal Law, Drug and Firearms Offences, Conviction, Charter s.24(2), Grant Test

R. v. Sheriffe, 2015 ONCA 880

[Strathy C.J.O., MacPherson and Watt JJ.A.]

Counsel:

Richard Litkowski, for the appellant Christopher Sheriffe

Nathan Gorham and Breana Vandebeek, for the appellant Awet Asfaha

Susan Reid and Michael Perlin, for the respondent

Keywords: Criminal Law, First Degree Murder, Conviction, Joint Trial, Cut-Throat Defence

R. v. Ansari, 2015 ONCA 891

[Strathy C.J.O., Watt and Epstein JJ.A.]

Counsel:

John Norris and Breese Davies, for the applicant

Croft Michaelson, Q.C., for the respondent

Keywords: Criminal Law, Terrorism Offence, Conviction, Extension of Time to Appeal Sentence, Criminal Code s. 684

R. v. Malkowski, 2015 ONCA 887

[Simmons, van Rensburg and Benotto JJ.A.]

Counsel:

Vincenzo Rondinelli, for the appellant

Grace Choi, for the Crown

Keywords: Criminal Law, Dangerous Driving Causing Death, Conviction, Test for Legal Causation, Intervening Cause

R. v. Prins, 2015 ONCA 892

[Weiler, Pardu and Benotto JJ.A.]

Counsel:

Robert B. Carew, for the appellant

Michael Kelly, for the respondent

Keywords: Criminal Law, Fraud and Forgery, Factual Errors

R. v. Anderson, 2015 ONCA 894

[Doherty, Pepall and Tulloch JJ.A.]

Counsel:

Howard L. Krongold, for the appellant

Andreea Baiasu, for the respondent

Keywords: Criminal Law, Transfer of a Firearm

R. v. Milliken, 2015 ONCA 897

[Doherty, Pepall and Tulloch JJ.A.]

Counsel:

James Harbic and Robert Harbic for the appellant

Gillian Roberts for the respondent

Keywords: Criminal Law, Child Pornography, Criminal Code s. 686(1)(a)(i), R. v. Biniaris

R. v. Siconolfi, 2015 ONCA 896

[Doherty, Pepall and Tulloch JJ.A.]

Counsel:

Catriona Verner, for the appellant

Campbell, for the respondent

Keywords: Criminal Law, Criminal Negligence Causing Death, Sentencing

R. v. Vienneau, 2015 ONCA 898

[Doherty, Pepall and Tulloch JJ.A.]

Counsel:

Howard Krongold for the Appellant

Dayna Arron for the Respondent

Keywords: Criminal Law, Attempted Murder, Sentencing, R. v. Boucher

R. v. Lucchese, 2015 ONCA 899

[Doherty, Pepall and Tulloch JJ.A.]

Counsel:

Edward L. Burlew, for the appellant

Hannah Freeman, for the respondent

Keywords: Criminal Law, Firearms Prohibition, Competitive Shooting

R. v. Ward, 2015 ONCA 893

[Doherty, Pepall and Tulloch JJ.A.]

Counsel:

Brian Eberdt, for the applicant/appellant

Dayna Arron, for the respondent

Keywords: Criminal Law, Bias

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
John Polyzogopoulos
Events from this Firm
19 Jan 2017, Speaking Engagement, Toronto, Canada

Andrea Rush will be speaking at this year's 21st Annual Intellectual Property Law: The Year in Review. Her presentation is entitled, 'Ethical Considerations in the Management of a Global IP Practice'.

19 Jan 2017, Speaking Engagement, New Orleans, United States

Our Partner, Chris McKibbin, will be speaking at the ABA Fidelity and Surety Law Committee's Midwinter Meeting in New Orleans, Louisiana on January 19, 2017. This year’s Fidelity Program, Master Class: Enhancing The Fidelity Bond Professional’s Toolbox, acts as a “prequel” to the 2016 Midwinter Meeting’s presentation on the mediation of a fidelity claim.

8 Mar 2017, Speaking Engagement, Toronto, Canada

Bob Potts has been invited to present at the 2017 edition of the Osgoode Certificate in Fundamentals of Aboriginal Law.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.