In my May 2025 article for the Toronto Law Journal, "The Shifting Landscape of Mortgage Enforcement: A Power of Sale Perspective in Ontario," I commented on the notable uptick in Power of Sale proceedings, a trend fueled by rising interest rates and persistent economic uncertainty. As this wave of mortgage defaults continues, real estate and litigation counsel are increasingly confronted with scenarios that extend beyond the straightforward exercise of paying out a mortgage on the borrower’s side or power of sale on the lender’s side. A particularly challenging situation arises when a guarantor is involved, creating a complex interplay of liability, security, and, in some cases, family drama.

We were recently faced with this scenario: a family member acted as a guarantor (also known as a “surety”) on a mortgage, but holds no registered interest in the property. The primary borrower has defaulted and the guarantor is now legally obligated to pay the debt. However, the borrower is being uncooperative and refusing to sell, putting the guarantor in a precarious position and liable for the debt with no control over the underlying asset. This article builds on the themes of our previous discussion by examining a powerful, and perhaps underutilized, statutory remedy for this very conundrum: Section 2 of Ontario's Mercantile Law Amendment Act (“the MLAA”). This provision allows a guarantor who pays the debt to demand an assignment of the lender’s security, effectively "stepping into the shoes" of the lender. This transforms the guarantor from an unsecured creditor with limited options into a secured creditor, armed with the full enforcement rights of the original mortgagee.

The interests at stake in a recent investigation by the Office of the Privacy Commissioner of Canada (the “OPC”) can be evoked in two imaginative exercises. First, how would you feel if you had been accused of a crime, the charge had been stayed many years ago, but news articles about the incident were still easily accessible to anyone who typed your name into a search engine? Alternatively, how would you feel if, as a user of Google, you knew that accurate information had been “de-listed” so that, while it still existed somewhere among the billions of webpages on the internet, any search you performed might not return complete results?

The OPC investigation considered whether Google could be required under the Personal Information Protection and Electronic Documents Act (“PIPEDA”) to remove information relating to an individual from its search results. The complaint was brought by an individual who had been charged long ago with non-disclosure of their HIV status, but the charge was stayed and the matter never went to trial. (The Department of Justice and the Attorney General of Canada have since issued directives not to prosecute HIV non-disclosure cases where there is no realistic possibility of transmission.) The ongoing availability of information (such as media articles) about the charges in response to a search for the individual’s name had caused them significant and concrete harm, including stigmatization and loss of employment opportunities.

At a recent mediation, one defendant proposed a Pierringer agreement (often misspelled “Perringer”) with the plaintiff to cleanly resolve its exposure and exit—leaving the plaintiff to continue solely against the holdout defendant everyone recognized as the problem. Plaintiff’s counsel was new to Pierringers, and I stepped in to map the guardrails, to explain what gets disclosed, what does not, how to amend the pleading to limit the remaining claim to several liability, and how crossclaims fall away.

That moment on a mediation, grounded in my own experience drafting and operationalizing these deals, mirrors where Ontario now is after the Court of Appeal’s recent decision in Cadieux v Cadieux.[1] The Court has doubled down on the legitimacy and utility of Pierringers, and the bar needs to catch up.

Fiduciaries, such as trustees, attorneys, and estate trustees, are all under a legal obligation to keep proper records and accounts, in order to be able to prove that they were administering the property in their care “in an honest and prudent manner.” As recently noted by Justice Myers, fiduciaries “are accountable to the penny. The only way to hold them to account and to protect the vulnerable people under their charge is through transparency. To paraphrase Justice Brandeis, ‘Sunlight disinfects.’”

To this end, fiduciaries may be compelled to pass their accounts. When this occurs, it is incumbent on the fiduciary to provide a full and complete accounting which is properly formatted and accompanied by proper documentation, in compliance with the Rules of Civil Procedure (the “Rules”). This article explores the nature of these requirements, when imperfect accounts may suffice, and the potential consequences that may result from an imperfect accounting. While proper accounts are undoubtedly the ideal, fiduciaries are not held to a standard of perfection — rather, the standard is that of a person of ordinary care and diligence, managing their own affairs. Accordingly, the court has discretion as to how to proceed when faced with imperfect accounts.

Join fellow personal injury and insurance professionals for a relaxed, engaging evening of conversation, connection, and community.

The Meet-up is a fun and casual forum for lawyers to socialize, learn and connect.

==============================

Generously Sponsored By:

==============================

Event Details

• FREE EVENT
• Date: Thursday, November 13, 2025
• Time: 5:30 p.m. – 8:00 p.m.
• Location: Hemingway’s Restaurant and Bar, 142 Cumberland St, Toronto, ON
                     2nd floor, in the Shotover Bar

This event is for lawyers only (No vendors or law school students). All attendees must register in advance. "No Walk-ins" accepted.

While generative AI systems are quickly evolving, they remain susceptible to a variety of attacks that cause them to deviate from user expectations. Among the most concerning of these are prompt injections.

We are proud to announce that the 2026 Award of Distinction will be presented to Tom Curry, of Lenczner Slaght at the TLA Awards Gala.

The TLA Award of Distinction is presented each year to a Toronto lawyer in recognition of their outstanding contribution to the legal profession throughout a distinguished and lengthy career.

Join us for an unforgettable evening filled with celebration, connection, and inspiration! Enjoy drinks, delicious food, and ample networking opportunities.

Purchase your ticket before they sell out!

==============================

Event Details:

Date: Thursday, February 26, 2026
Time: Cocktail reception to begin at 6:00 p.m. | Awards presentation at 7:30 p.m.
Location: The Omni King Edward Hotel, Crystal Ballroom (37 King St E, Toronto, ON)

==============================

Presenting Sponsor:

==============================

Ticket Price

Individual Rates

Member - $196 +HST
Non-member - $258 +HST
New Lawyer (under 10 years call) - $180 +HST

Group Rates

Members, Package of 5 tickets - $880 +HST
Members, Package of 10 tickets - $1,760 +HST
Non-Members, Package of 5 tickets - $1,160 +HST
Non-Members, Package of 10 tickets - $2,320 +HST

(For assistance with group ticket orders, please contact Sandra Porter at sporter@tlaonline.ca or (647) 247-4782 x 223.)

Purchase your ticket before they sell out and join us for an unforgettable evening.

Canadian Courts, administrative tribunal bodies, and law societies continue to move to respond to the rise in the use of generative artificial intelligence tools, like ChatGPT, in litigation. This push has been driven, in part, by an increase in the number of submitted briefs containing fictitious or 'hallucinated' AI generated legal citations.

Declaration Regimes Adopted

As 2023 was coming to a close, the Federal Court issued a Notice to the Parties and the Profession on the use of artificial intelligence in court proceedings. Consistent with several other provincial courts, the Notice required parties to inform the Court, and the other parties, if they have used artificial intelligence to create or generate new content in preparing a document that is filed with the Court. If any such content had been included in a filed document, the Notice provided that the first paragraph of the text in that document must disclose that AI had been used.

On September 22, 2025, Ontario Regulation 221/25 was filed to amend the Rules of Civil Procedure (RCP) and Ontario Regulation 222/25 was filed to amend the Rules of the Small Claims Court (SCCR). These regulations make various changes respecting the enforcement of orders.

The amendments in the regulations and the associated forms will come into force on October 6, 2025.

In summary, O. Reg. 221/25 amends the RCP by:

• Allowing writs of seizure and sale under Rule 60 to be electronically issued through ministry approved platforms (e.g. Civil Submissions Online Portal), where available, and to permit other enforcement documents under Rule 60 to be electronically filed with the civil enforcement office (sheriff). Filing issued writs electronically will remain exclusively through available Teranet Inc. services. Rule(s) updated: 4.05.2, 4.05, 15.01.1(1.1), 60.02(3), 60.07, 60.07(1.1) to (1.3), (5.2), (5.3), (6), (8), (8.1), (11.1), (12.3), (13.0.1), (25), 60.07.1(3), 60.15(4), 60.16(1.1), 60.20.
• Introducing flexibility in the means of advertising notices of sale of land and personal property by the sheriff. Rule(s) updated: 60.07(16), (19), (21), (24).
• Introducing new subrule 60.10(4) to clarify the one-year duration for writs of possession applies to eviction orders under the Residential Tenancies Act, 2006.
• Further housekeeping under Rule 60:
  • streamlining administrative processes to permit court staff to send documents and notices to parties and their representatives by email. Rules updated: 60.07(12), (12.1), (12.2), (12.3), (13.6), (16), (19), 60.13, 60.14, 60.15.
  • clarifying that writs of seizure and sale may be renewed only once within each six-year period and the duration period. Rules updated: 60.07(6), (8) and new subrule (9.1).
  • eliminating the need for writs of execution to be retained indefinitely by the sheriff once expired or withdrawn. Rule updated: 60.15.
  • requiring creditors to provide a statement of amounts owing if requested by the sheriff. New subrules 60.16(4)-(6).
  • clarifying the sheriff’s authority to suspend distribution to creditors when a garnishment hearing is pending. New subrule 60.08(16.1.1)
  • eliminating the need for the registrar to send to the sheriff a copy of the issued notice of garnishment and supporting requisition and affidavit. Subrules updated: 60.08(6) and (6.4)

Forms 60A, 60E, 60H and 60H.1 are updated to support the amendments.

In summary, O. Reg. 221/25 amends the SCCR as follows:

• Rule 20.07 is updated to allow writs of seizure and sale of land to be electronically issued through a ministry approved platform, where available.
• Subrules 20.06(2) and (3) are updated to clarify writs of seizure and sale of land may be renewed only once within each six-year period and the duration period.
• Forms 20C, 20D and 20N are updated to support the amendments.

The revised forms are available for download on the Ontario Court Forms Website: RCP and SCCR.

Most franchise agreements contain restrictive/non-compete covenants which require that, upon expiration or termination, the former franchisee and their principals (collectively the “franchisee”) are restricted from carrying on a similar business, for a certain time, and within a certain geographical area.

Courts are generally loath to enforce covenants against competition and will only do so where the covenant is, inter alia, reasonable. Cases dealing with the enforceability of restrictive covenants arise along a continuum, from the employment context at one end, in which there is almost no bargaining power between the parties, to the sale of a business, on the opposite end, where the parties are usually considered to be of equal bargaining power. While the general legal framework is the same, the level of scrutiny applied by appellate courts in determining whether a restrictive covenant is reasonable will be greater in the employment context than in the commercial context, due to the lesser degree of bargaining power in the employment context. As a generalization, in the franchise context, the level of scrutiny to be applied to a restrictive covenant will depend in part on whether the franchise agreement is truly a contract of adhesion (meaning that the franchisee had little ability to negotiate the agreement). Where the franchisee truly negotiated the franchise agreement, the court will likely be more inclined to apply a level of scrutiny reserved for disputes between vendor/purchaser as opposed to employee/employer.