Following on my blog on scheduling urgent hearings for commercial lease matters, this blog is on the scheduling of an urgent hearing involving a real estate closing. In Ali v. Tariq, 2020 ONSC 1695, the applicant had sold her property and discovered that a writ of execution had been registered against her property during routine searches performed for the closing. Apparently, her former father-in-law had obtained default judgment against her in small claims court and obtained a writ of execution at around the time of her divorce. A writ of execution filed in the county or district in which the property is located will effectively prevent the sale of the property until the judgment is set aside or fully satisfied. After the applicant’s offer to pay the sale proceeds into her lawyer’s trust account was rejected, the applicant sought an urgent hearing before the Ontario Superior Court of Justice under … Read More
Remote Arbitration Hearings | Remote Court Hearings – Emerging Protocols for COVID-19 / Coronavirus
“It is the duty of all the parties to seek to co-operate to ensure that a remote hearing is possible.” ~ Justice Teare (Commercial Court, a Queen’s Bench Division of the High Court of Justice, England and Wales) Protocols on the use of video conferencing in arbitration and court hearings are emerging: Remote Arbitration Hearings The Seoul Protocol on Video Conferencing in International Arbitration was drafted and discussed by a panel of arbitration practitioners in 2018, consisting of Kap-You (Kevin) Kim as moderator (Partner, Peter & Kim), Yu-Jin Tay (Partner, Mayer Brown), Ing Loong Yang (Partner, Latham & Watkins LLP) and SeungMin Lee (Partner, Shin & Kim), and has been revised to reflect comments from the Seoul International Dispute Resolution Center (released March 18, 2020). Remote Court Hearings The Ontario Superior Court of Justice Practice Directions and Notices regarding COVID-19 (updated March 31, 2020) has published the Notice Regarding Videoconference … Read More
Divorce and Separation: Who gets the family pet?
Upon separation or divorce, a contentious issue is often which party gets to keep the family pet. Despite furry friends often being just as important to the family as children, Ontario’s courts have refused to make custody orders in respect of family pets. Justice Timms in Warnica v Gering stated “Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise… Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children.” … Read More
COVID-19 / Coronavirus: Alternatives to Family Court
As of March 17, 2020, the Ontario Superior Court of Justice suspended all regular operations for an indefinite period. Similarly, as of March 20, 2020 the Ontario Court of Justice suspended all regular operations until May 29, 2020. Both courts continue to hear urgent and emergency family law matters. Without access to the courts, family law litigants can still avail of a number of different options to resolve their family law disputes. Indeed, there are numerous forms of alternative dispute resolution (ADR). With consent, parties at any stage of litigation can agree to settle their issues outside of court with ADR. These processes can be a cheaper, faster, and less acrimonious way to settle family law disputes than traditional court litigation. Collaborative family law is an out-of-court resolution process which puts families first. With collaborative practice, parties work together, with their lawyers and other neutral professionals, such as family professionals … Read More
Covid-19 Pandemic Closures: Considerations For Commercial Tenants And Landlords
What can commercial tenants and landlords do to protect themselves from the impact of Covid-19 related closures on commercial lease obligations? Here are some tips for businesses who are in the difficult situation of having to deal with potential defaults on commercial rent obligations related to closures or reductions due to the Covid-19 situation. 1. Review The Lease Agreement Carefully For Potentially Relevant Clauses In Ontario, the commercial landlord-tenant relationship is governed by the Commercial Tenancies Act, R.S.O. 1990, c. L.7., (the “Act”) which outlines the relationship, rights and obligations between commercial landlords and tenants. However these relationships are heavily governed by the commercial lease agreement in place between the landlord and the tenant, which can take precedence over the Act based on the agreement of the parties. Review the Act and more importantly, review your commercial lease agreement carefully to appreciate whether the agreement contemplates the type of situation … Read More
COVID-19 / Coronavirus: How to Schedule an Urgent Civil or Commercial List Hearing
On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled civil hearings were adjourned until further notice. The Notice to the Profession provides a procedure to schedule urgent and time-sensitive motions and applications where immediate and significant financial repercussions may result without a hearing. When motion or application materials are filed, by email to the appropriate courthouse, seeking an urgent hearing, the triage judge will determine whether or not the matter is urgent and should be scheduled for a hearing. There have been a few recent endorsements reported in respect to the scheduling of urgent commercial lease matters. Urgent Motion – Relief From Forfeiture In Oppong v. Desoro Holdings Inc., 2020 ONSC 1697, the applicant sought relief from forfeiture to set aside the landlord’s termination of the lease. Although the application was brought promptly and scheduled to be … Read More
Nick Poon Comments on Frustration and Force Majeure Clauses for The Huffington Post
Nick Poon was recently asked to comment on the doctrine of frustration and force majeure clauses in the context of travel refunds during the COVID-19 pandemic. The Huffington Post article is found here: You Can Still Get a Refund for a Flight Cancellation During Coronavirus Pandemic. If you require legal advice and representation in respect to contract termination and cancellation, frustration of contract and force majeure clauses and/or travel and tourism, please contact us for an initial consultation.
Arbitration & Court Closure Due to COVID-19 / Coronavirus
Litigants and lawyers requiring timely resolution of disputes and who have no or limited access to the courts for trials or other hearings because of COVID-19 / Coronavirus related court closures, or for whom a public court-centered proceeding is inappropriate, may wish to consider arbitration as an alternative to litigation. In-person, video or teleconferencing determinations of arbitrated disputes at reasonable rates can resolve procedural and substantive issues more quickly than our courts in the current COVID-19 / Coronavirus related crisis, and very often in ordinary circumstances where congested dockets unfortunately preclude expedited case determinations. With the consent of the parties to litigation, and at virtually any stage of the litigation, an ad hoc arbitration can be arranged. Arbitration may be the forum best suited to the resolution of your dispute across a broad range of practice areas. Please see the Gilbertson Davis LLP Arbitration & Mediation Chambers webpage, and other … Read More
COVID-19 / Coronavirus: Can I take my child out of the province or out of the country?
Given the recent COVID-19 crisis which has caused significant upheaval for many families across the world, many parents may be considering the impact of COVID-19 on their ability to travel or relocate with their child. Relocating or travelling with a child following the breakdown of a relationship is a commonly contested issue as any relocation by one party may make access or visitation with the child difficult. The relocation may be due to a new job, moving closer to family following the separation, moving to a new school or simply for a change of scenery; regardless of the reason, parties should be aware of their rights, and the other parents rights, to move their child or children out of the province or to another country. The leading Supreme Court of Canada case on this issue is Gordon v. Goertz, which developed a two-fold test to determine whether the move should … Read More
Cyberbullying in Family Law
Cyber-bullying is a growing concern in family law litigation. Some provinces already have legislation to deal with such issues. While Ontario currently does not, in recent years Ontario courts have recognized new common law remedies to address these issues. In Yenovkian v. Gulian, 2019 ONSC 7279, Justice Kristjanson of the Ontario Superior Court of Justice recognized the act of publicly placing a person in a false light as a new cause of action under the tort of invasion of privacy. Yenovkian involved an extremely acrimonious separation and custody dispute involving two children, one of whom has special needs. Shortly after separating in 2016, the Respondent, Ms. Gulian, took the parties children to England and refused to return to Ontario. The Applicant, Mr. Yenovkian, engaged in a cyberbullying campaign spanning several years against his estranged wife. This campaign included videotaping court-ordered access visits with the children, without the children’s knowledge and … Read More
Contract Arbitrator – Event Cancellation Dispute Arbitrator, Force Majeure Clause Dispute – Reasonable Fees and Good Availability – Gilbertson Davis LLP Arbitration and Mediation Chambers
Contract Dispute Arbitrator Sole Arbitrator – $495.00 per hour, plus HST An arbitrator, or an arbitration tribunal, obtains jurisdiction to adjudicate and decide a dispute from an agreement / contract which has been made by the parties to the arbitration. This jurisdiction is not typically provided by legislation, though there are exceptions, such as the arbitration provision deemed by statute to be included in a condominium declaration. Even if there is no arbitration clause in the contract or agreement made by the parties and a dispute arises, then parties to that contract may still agree to have their dispute determined by arbitration. The parties to a contract may prefer to have a dispute determined by arbitration, since it is presumptively a confidential process, it may be faster and less expensive than going to court, or they may wish to participate in the selection of the adjudicator. Common Contractual Issues Arbitrated … Read More
Measures of Last Resort – The Benefits of Exit Provisions in Shareholder’s Agreements
The benefits of a shareholder’s agreement may not be fully considered when parties are intending to go into business together and become joint shareholders in a corporation. Perhaps the mood is optimistic and none of the participants anticipate that things might sour between them down the road. Sometimes corporations are formed absent such an agreement. However, among other benefits, these agreements become particularly useful in managing risk and guiding shareholders through governance issues and disputes that may arise, efficiently so as to minimize disruption to the corporation’s business. Absent a shareholder’s agreement, shareholders in a closely held corporation that cannot see eye-to-eye regarding the operation and path of the corporation, may become stuck in a deadlock where decision-making is effectively stifled due to a stalemate between them. Shareholder’s agreements can serve to provide mechanisms to address deadlock, protect the voice and rights of minority shareholders, provide a road map for … Read More
When Shareholders Need an Auditor or Inspector
I address here in a general way the procedures available for a shareholder or group of shareholders seeking the assistance of the court to have an auditor or inspector appointed. Financial Statements – None or Inaccurate Shareholders in closely-held Ontario corporations sometimes have concerns about the accuracy of the financial statements when the company does not have an auditor. Oppressive or Unfairly Prejudicial Conduct In other cases, a shareholder in an Ontario corporation may consider that the corporation has been carried on, or the powers of the directors are, or have been, exercised, in a manner that is oppressive or unfairly prejudicial to, or that unfairly disregards, the interests of the shareholder. Corporation and Fraud One or more shareholders may have concerns that the corporation’s business is, or has been, carried on with the intent to defraud, that the corporation was formed or dissolved for a fraudulent or unlawful purpose, … Read More
Legal Consequences of COVID-19 / Coronavirus on Commercial Contracts
Impact of COVID-19 / Coronovirus Events on International and Domestic Commercial Contracts The reports from China show that COVID-19 / Coronavirus not only has a tragic impact on the lives of very many, but has already caused the consequential events of closure of manufacturing, halting exports and affecting transportation operations. This can be caused by forced movement of labour, government-ordered closure and / or state sanction and embargo, or the business decision to cease production. Interruption of Supply, Outsourcing and Transportation of Goods This often has serious consequences for Canadian companies dependent upon foreign supply, outsourcing of manufacturing and the international carriage of goods. The central question is often whether or not the performance of a supply, outsourcing or transportation contract is legally suspended or excused because of the events surrounding the spread of COVID-19 / Coronavirus. Frustration | Impossibility International trade and transportation contracts may not expressly refer to … Read More
Six Ways to Get an Annulment in Ontario
Civil annulments are uncommon in Ontario as most separating spouses in Ontario choose to get a divorce. Annulments deem a marriage invalid, rendering the marriage null and void, as if it never happened. Essentially, an annulment means your marriage never occurred in the eyes of the law. Annulments are granted under a few specific grounds: 1. One of the spouses does not have the capacity to marry or could not consent to the marriage. Section 7 of Ontario’s Marriage Act states no one shall issue a licence to or solemnize the marriage of any person who lacks the mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason. Predatory marriages, where a financially motivated person marries an elderly person to gain access to and control over their property, assets and estate, can fall under this category if the victim … Read More
Hurdles To Recognition and Enforcement Of Foreign Judgments
In the recent Ontario Court of Appeal decision of H.M.B. Holdings Limited v. Antigua and Barbuda, 2020 ONCA 12, the Court of Appeal rendered a split (2-1) decision regarding the recognition of a foreign judgment which muddies the waters on the analysis to be applied to s.3(b) of the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5 (REJA) Original Judgment: In this case H.M.B. Holdings Limited (HMB) was successful in obtaining judgment on February 26, 2014, against Antigua and Barbuda from the Judicial Committee of the Privy Council (the JCPC), which is the highest court of appeal for certain British territories and Commonwealth countries including Antigua and Barbuda. The case related to damages sought by HMB due to the expropriation of resort lands by the Antiguan government. The case has garnered some media attention because of the manner in which the lands were expropriated. HMB then brought a common law … Read More
Judgment Against Anonymous Blogger – Service on Pseudonym
In the recent decision of the Ontario Superior Court of Justice, Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, (“Theralase Technologies Inc.”) the court granted judgment in libel against anonymous and unidentified bloggers. In his reasons, Justice Myers held that the court has jurisdiction to grant judgment against unidentified defendants, despite the fact that the plaintiffs and the court do not know the defendant’s name, for defamatory statements published on the internet, “where a form of service can reasonably be expected to bring court proceedings to the attention of an unidentified defendant at whom the litigation finger has been appropriately pointed…” While noting that nothing in the Rules of Civil Procedure anticipates final judgments being granted against unidentified defendants, because civil proceedings generally involve claims and judgments in personam (against a person), the court observed that there are many cases started with placeholder names like “John Doe” pending the identification of … Read More