The contractual doctrine of “fundamental breach” is both doctrinally complex and highly contextual. In Stearman v. Powers, 2013 BCCA 206, the Court concluded that, on the facts before it, a commercial tenant had not been justified in repudiating her lease and walking away from the premises, despite the fact that the building’s HVAC system filled her store with a foul odour.
While the case ultimately turned on its unique facts, the Court in Stearman provides useful guidance regarding the threshold for categorizing a problem with rented premises as a “fundamental breach” of contract, as well as the scope … Continue Reading
A recent decision involving solicitor’s negligence, Rajmohan v. Norman H. Solmon Family Trust, 2014 ONCA 352, required the Ontario Court of Appeal to consider two of the murkier issues relevant to limitations analysis — namely, (1) the doctrine of “fraudulent concealment” and (2) the doctrine of “special circumstances.”
It was alleged that a solicitor had been negligent in representing his client in a mortgage transaction. Because of the client’s intervening death, the claim was brought by the client’s estate. For that reason, the claim was subject to the absolute two-year limitation period under s-s. 38(3) of the Ontario … Continue Reading
Some causes of action are “continuing” in nature. Historically, torts such as trespass or nuisance have in some instances fallen into this category. More recently, Canadian courts have recognized that breaches of contract can also be continuing in nature, particularly in cases where the agreement calls for periodic payments that are dishonored. In essence, Canadian Courts have generally held that the failure to honor each of the scheduled periodic payments gives rise to a discrete, independent cause of action with its own limitation period.
The practical result of this approach has been that even if a claim for breach of … Continue Reading