The Federal Court of Appeal in Cosmetic Warriors Limited v. Riches, McKenzie & Herbert LLP, 2019 FCA 48, set aside the decision and allowed the appeal of the Federal Court judgment allowing an appeal from a decision of the Registrar of Trade-marks, made through her delegate, a hearing officer of the Trade-marks Opposition Board, that found that the trademark had been used in the “normal course of trade” within the meaning of subsection 4(1) of the Trademarks Act, RSC 1985, c T-13 ( the “Act”) and thus maintained the registration of a trade-mark in a proceeding challenging the registration for non-use under section 45 of the Act. In issue was the trade-mark “LUSH,” as registered for use in association with “[c]lothing, namely, t-shirts.” In its decision, the Federal Court of Appeal described that: “The T-shirts and tank tops bearing the LUSH trade-mark are sold by Lush Canada in limited quantities … Read More
Liability of Directors and Officers | Oppression Remedy | Shareholders Claims
The lawyers in our Business Dispute Practice Group have acted in Ontario and other jurisdictions for small, mid-sized and large corporations (incorporated in Ontario and in Canada), shareholders, directors, officers, and executives in corporate disputes and shareholder disputes. We have acted for clients in both oppression remedy action and derivative actions. Oppression Remedy The oppression remedy is a mechanism in the Ontario Business Corporations Act and the Canada Business Corporations Act to protect the interests of shareholders and stakeholders in a corporation against wrongful conduct. Whether the Ontario or Canada Act will apply depends on the jurisdiction in which the corporation was incorporated. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the acts of other shareholders, the board of directors or other affiliates of the corporation. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the … Read More
UN Convention on Contracts for International Sale of Goods | Ontario’s International Sales Convention Act
Some international traders are still not aware that the UN Convention on Contracts for the International Sale of Goods is the law of Ontario, Canada, by virtue of the Ontario International Sales Conventions Act, RSO 1990, c I.10. The Convention Status Chart is located here. Pending entry of the United Nations Convention On Contracts for the International Sale of Goods into force in these jurisdictions should be noted*: DPR Korea on 01.04.2020 Guatemala on 01.01.2021 Lao PDR on 01.10.2020 Liechtenstein on 01.05.2020 *Authoritative information on the status of the treaties deposited with the Secretary-General of the United Nations, including historical status information, may be obtained by consulting the United Nations Treaty Collection. The UNCITRAL Secretariat also prepares yearly a document containing the Status of Conventions and Enactments of UNCITRAL Model Laws, which is available on the web page of the corresponding UNCITRAL Commission Session. Please read our archive of blog … Read More
The Matrimonial Home: What Happens Post Separation?
The matrimonial home is often viewed as sacred ground for divorcing couples and disputes commonly arise over the ownership and possession of the property. In Ontario, special status is given to the matrimonial home due to it often being the most valuable and sentimental asset that a couple or family possesses. What is a ‘matrimonial home’? Section 18 of the Ontario Family Law Act defines the matrimonial home: “every property in which a person has an interest and that is, or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and their spouse as their family residence”. Can there be more than one ‘matrimonial home’? There can be more than one ‘matrimonial home’ as long as at the date of separation, all of the properties are “ordinarily occupied” by the spouses as the “family residence”. The residence(s) being claimed as the ‘matrimonial home’ must … Read More
Common Law Couple Entitlements
Common Law Couples A common law relationship is not defined universally in law. Federal and provincial legislation use differing criteria to define common law relationships. For example, Ontario’s Family Law Act, defines common law relationships as one where parties reside together for at least three years or where parties are in a relationship of some permanence and have a child. Whereas, under the Income Tax Act, a common law relationship is defined as one where parties are in a conjugal relationship and living together for at least twelve continuous months. When you reside as common law spouses you are ‘spouses’ for the purpose of Government programs or benefits, except for those specifically applicable to ‘married spouses’. There is no formal separation process which must be followed. Married Couples A married couple is a couple who have chosen to commit their lives together and have undertaken to legally bind their relationship. … Read More
Limitation Period Considerations in Derivative Proceedings
Under modern business corporation legislation, a claim for wrongdoing against a corporation can only be brought by the corporation itself, or by way of a derivative action for which leave from the court is required. In Ontario, there is a standard two-year limitation period that applies to the commencement of most lawsuits, including derivative claims on behalf of a corporation. When wrongs done to a corporation are alleged to have been done by a director or directors who exercise control and decision-making on behalf of the corporation, it is unlikely that those same directors will agree to commence a claim on behalf of the corporation for those wrongs. It is then up to other interested stakeholders, such as shareholders, to seek leave to commence a derivative claim on behalf of the corporation for the wrongs done to the corporation. Until the release of a 2015 Supreme Court of Canada ruling … Read More
Do I have to split an inheritance I’ve received in my divorce?
During a divorce, couples often argue over whether an inheritance received by one spouse is to be included in the assets and property to be divided. As a rule, inheritances or gifts received by one spouse are excluded from the property division calculation used when spouses separate and divorce. Be aware that the inheritance or gift must not be treated as matrimonial property or placed into a joint account, as this will create complex accounting issues in your joint finances which will be difficult to unravel to prove the ownership of the inheritance or gift. At the time of the divorce, the inheritance or gift must still be in existence, whether this is in the form of a physical object, or non-tangible property such as stocks and shares. Upon receipt of inheritance or a gift, unless a spouse wishes for it to form part of the matrimonial property, a spouse … Read More
2020 – Does the 20th year of marriage mean an indefinite spousal support obligation?
With 2020 now upon us, it seems appropriate to consider the impact of reaching your twenty-year anniversary and what impact this may have on your spousal support obligations. The Spousal Support Advisory Guidelines suggest that where spouses have been together for twenty years or more, the duration of spousal support should not end at a specified point, in essence rendering the obligation to be indefinite. However, the Courts will look at the particular circumstances of the spouses including the requirement to become self-sufficient, the standard of living that the spouse grew accustomed to throughout the marriage and the age and employment potential of the spouse claiming spousal support. In the recent case of Cowan v Cowan (2019) , the parties were married for 21.5 years. The wife was an anaesthesiologist and associate professor earning over $300,000 annually, and her husband who claimed spousal support was a teacher earning $92,000 per … Read More
What is a legal separation?
In Ontario, there is no such thing as ‘legal separation’. Married couples need to get divorced to finalize their separation and common law couples are not required to complete any formal process to separate. Separated spouses may wish to enter into a separation agreement. A separation agreement is a domestic contract between both spouses who no longer wish to remain together. A separation agreement can detail rights and obligations relating to property, spousal support, obligations relating to children, and any other issues that spouses may wish to regulate. Once the agreement is signed by both parties and witnessed, it is a legally binding contract just like any other and you cannot change the terms without an amendment or court order. Both spouses should always take independent legal advice to help avoid any agreement being overturned. Separation agreements are not mandatory, but they can provide a reassuring avenue to avoid acrimonious … Read More
The Quickest Way To Get Divorced
With the first two weeks of January, following the Christmas and New Year holidays statistically the most common time for couples to file divorce proceedings, parties will inevitably want to know the quickest and most cost-effective route to obtaining a divorce. While there are routes which may aim speed up the process; unfortunately obtaining a divorce in Ontario tends not to be a speedy process. In order to obtain a divorce under the Divorce Act you must show that your marriage has broken down. You can obtain a fault or non-fault divorce. Non-Fault Divorce You and your partner have lived apart for one continuous year and consider your marriage to have ended. This still applies if you live in the same property, however you must be living separate lives i.e. not file taxes together, not sleep in the same bed, not attend social occasions together and not be supporting each … Read More
Broken Engagements- Who Keeps the Ring?
When an engagement ends, the question of who keeps the engagement ring is not as straight forward as one might assume. There is a long line of case law dating back centuries in which courts have struggled with this question. The traditional common law approach held that the party who ended the engagement loses claim to the ring. If the engagement ring is seen as conditional gift, the ring would go back to the donor. Section 33 of Ontario’s Marriage Act changed the common law approach slightly by stating the donee will keep the engagement ring if it’s an absolute gift, whereas the donor will get the ring back if it was a conditional gift. However, the Marriage Act also states a promise to marry cannot be enforced nor can a party bring a court action for a breach of a promise to marry. Removing the issue of fault in … Read More
Four Things to Know About Common Law Relationships
1. Definition of Common Law Relationships There is no universal definition of a common law relationship. Federal and provincial legislation use differing criteria to define common law relationships. For example, Ontario’s Family Law Act, defines common law relationships as one where parties reside together for at least three years or where parties are in a relationship of some permanence and have a child. Whereas, under the Income Tax Act, a common law relationship is defined as one where parties are in a conjugal relationship and living together for at least twelve continuous months. 2. Spousal Support Common law spouses, like married spouses may be entitled to receive spousal support upon separation under Ontario’s Family Law Act. Once an entitlement to spousal support is established, the quantum and duration of spousal support is calculated based on the Spousal Support Advisory Guidelines. These guidelines determine the quantum and duration of support based … Read More
Toronto Cannabis Retail Franchise Arbitrator with Reasonable Fee Rate
David is a Qualified Arbitrator (Q.Arb) who has been appointed sole arbitrator in commercial disputes by the Ontario Superior Court of Justice. He is a full member of the ADR Institute of Ontario and the Toronto Commercial Arbitration Society and appears on each of their rosters of arbitrators. He accepts appointment as arbitrator in Cannabis Retail franchise, distribution and licensing disputes. (click here) Sole Arbitrator – $495.00 per hour, plus HST David accepts appointment as sole or panel arbitrator in cannabis retain franchise, distribution, and licencing disputes (click here), whether domestic or international international dimension. As legal counsel, David has extensive experience in distribution disputes. David has practiced franchise law in Ontario, in connection with franchisors located in Ontario and the U.S. His experience in franchise law includes representation in proceedings (and potential proceedings) concerning rescission and damages claims, counterclaims of franchisors, termination of franchise agreements, opinions on the application … Read More
Recognition of Foreign Divorces in Ontario
In Novikova v Lyzo, 2019 ONCA 821, the Ontario Court of Appeal considered the grounds in which foreign divorces are recognized in Canada. The parties in this matter are Russian citizens but after moving to Canada in 2013, became permanent residents of Canada. The Appellant, Mr. Lyzo, returned to Russian and started divorce proceedings in February 2016, while Ms. Novikova stayed in Canada. In October 2016, Ms. Novikova commenced family law proceedings in the Ontario Superior Court of Justice. Mr. Lyzo obtained a divorce from Ms. Novikova on June 8, 2016 in Russia. Ms. Novikova did not receive the notice of the divorce application as these letters were sent to her parent’s address in Russia. Ms. Novikova also did not receive a copy of the divorce order within the appeal period. Mr. Lyzo brought a motion for summary judgement to have the Russian divorce recognized and to dismiss Ms. Novikova’s … Read More
Child Custody and Access in Ontario
What is Custody? Custody refers to the ability of parents to make major decisions concerning health, education, and religion in their children’s lives. Types of Custody Arrangements in Ontario Sole custody means that one parent makes most of the major decisions in the children’s lives. However, the non-custodial parent usually has the right to be given information and make inquires about the welfare, health and education of the children. Joint custody means both parents share the ability to make major decisions in the children’s lives. For joint custody to be successful, parents need to be able to cooperate and communicate with each other. With joint custody, the children may primarily reside with one parent or the children may live equal amounts of time with both parents. Shared custody is a form of joint custody where the children spend at least 40% of their time with each parent. The children have … Read More
Gilbertson Davis LLP Welcomes Family Law Lawyer Kimberley Wilton!
Gilbertson Davis LLP extends a Warm Welcome to Family Law Lawyer Kimberley Wilton. Kim was called to the Bars of Ontario, Newfoundland and Labrador in 2013, after obtaining her Doctor of Jurisprudence degree from Dalhousie University (2012; Schulich School of Law), a B.Sc. (Hons.) degree from the University of Toronto (Psychology and Middle Eastern Studies; 2006) and a B.A. degree from Memorial University (English Language and Literature; 2009). Kim is also certified as a Collaborative Family Law Lawyer. Kim is passionate about the provision of client service to a standard of excellence. She has experience in a broad range of Family Law matters, including contentious custody and access disputes, child and spousal support claims, complex property disputes including the division of assets, adoption applications and mobility issues. She is also experienced in drafting parenting plans, separation plans and domestic contracts. Kim is sensitive to the specific needs of each client, … Read More
Ontario Introduces Bill to Update Rules for Realtors
Last week, the Ontario government introduced the Trust in Real Estate Services Act, 2019 to update the current legislation that governs Ontario’s more than 86,000 real estate professionals. Yesterday, the bill passed second reading and was referred to the Standing Committee for witness testimony and further amendments. The stated goals of the proposed legislation include improving consumer protection and choice in the market and improving professionalism among real estate professionals and brokerages through enhanced ethical requirements. Some of the more significant proposed changes include: Disclosing Details of Competing Bids – At the seller’s option, the seller’s real estate agent may disclose the details of competing offers to other bidders. Currently, the seller’s agent is required to disclose the number of competing offers to all buyers who have submitted a written offer but the purchase price and conditions remain confidential. Clients vs. Customers – There will no longer be “clients” and … Read More