Let’s have a look at a real case, namely Krawchuk v. Scherbak.
The purchaser bought the property in June 2004.
The foundation was unstable and the purchaser sued. The limitation period was 2 years later. After that, the case would have been statute barred.
In all likelihood sometime in 2006, the lawsuit would be initiated. Examinations, the exchange of documents and pre-trial discoveries would take 12 months or so. Once that stage is complete, the case is set down for trial. The waiting period in most jurisdictions is another 12 to 18 months.
In this circumstance, the case was tried in the Superior Court of Ontario over a 12 day period in June 2009. That means the actual trial was 5 years after the deal.
You will appreciate that it would be somewhat difficult for the witnesses to testify, 5 years after the fact. Those with documents, notes and emails would likely be preferred.
The trial Judgment was appealed to the Ontario Court of Appeal, which heard the case over 2 days in October 2010, and released its decision 6 May 2011, almost 2 full years after the trial. On appeals, just legal documents and transcripts of the original trial are used. There are no witnesses or oral testimony.
The unsuccessful party sought leave to appeal the case to the Supreme Court of Canada. The application was denied on 8 December 2011, which was about 7 ½ years after the real estate deal.
The Supreme Court of Canada deals with the law on the date the case comes before it. The Court may indeed establish a new standard.
The December 2011 decision will in a sense be a decision concerning the status of the law in June 2004.
So, here’s the trick! How do you know, in June 2004, what the Supreme Court of Canada will think about the case, and the law that it applies to the case in December 2011?
In terms of litigation, the matter of what the law was in June 2004 is not relevant. The real question is the expectation of what the law will be in 7 ½ years. And, that’s often just “guesswork”.
What is the law? (not quite so relevant)
What will the law be in 7 ½ years? (now, this is THE question)
Brian Madigan LL.B., Broker, Realtor