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
Nick Poon Comments on Real Estate Wire Fraud for Yahoo!
Nick Poon was recently asked to comment on real estate wire fraud for Yahoo News Canada. Read the Yahoo News Canada article here: ‘The prospects of recovering the money are near zero’: The scam homebuyers need to be aware of. If you have a fraud claim or a real estate dispute, please contact us for an initial consultation.
Keep Them Calm and Arbitrate On!
Keep Them Calm and Arbitrate On! David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and Arbitrator, will present a talk and workshop at the ADR Institute of Ontario 2020, 35th Annual General Meeting and Professional Development Conference, on June 4, 2020, entitled “Keep Them Calm and Arbitrate On: Sources of Commercial Arbitration Conflict & Tools / Techniques for Conflict Minimization“. Workshop Description Conflict in arbitration arises when the process is conducted as a fight, a battle, or a struggle. This can defeat the process and frustrate realization of the parties’ objectives. This talk will focus on four sources of conflict: the party who 1) does not want to be in arbitration, but who has no choice because of a contractual or statutory arbitration requirement; 2) refuses to participate in the process (and/or to pay the tribunal’s fees); 3) fights everything: the rules, the laws, jurisdiction and procedural orders; and 4) participates over-zealously, whether personally or through counsel. Strategies to minimize such conflicts are suggested. Background David Alderson has accredited … Read More
Part Two – Timing is Everything in Real Estate Agreements of Purchase and Sale
I had written a previous blog on the “time is of the essence” clause in real estate agreements where it was discussed that the strict adherence to any agreed upon time limits was generally the case. A recent Ontario Court of Appeal case, Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc., serves as a reminder that the “time is of the essence” clause is not absolute and unfettered, and there are preconditions that must be satisfied for a party to rely upon and insist on time being of the essence. The facts are not overly complicated in this case. The respondent was a condominium developer in the process of acquiring properties for a proposed project in downtown Toronto. The developer entered into an Agreement of Purchase and Sale (“APS”) with the vendor to acquire the subject property. Although the APS required the vendor to provide estoppel certificates five days prior … Read More
Partnership Disputes – Dentists, Doctors, Accountants, Lawyers, Architects and Engineers
Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact on … Read More
Protecting Your Internet Domain Name
In the age of the internet and e-commerce, the domain name of a business holds tremendous value and is often an integral part of the identity of a business. Since a website can only have one domain name on the internet, there is no shortage of disputes which arise over ownership rights of domain names, particularly those closely affiliated with a registered or unregistered trademark. What is Cyber-Squatting? Cyber-Squatting occurs when someone has registered a domain name in which they have no legitimate business interest, and can sometimes involve setting up a fake website for a business. The reason could be that the registrant will then seek to sell the domain name to the legitimate owner of the business or trademark, or their competitor for a profit. Alternatively, it may be to syphon away business leads online to competitors for a fee, or for advertising revenues. Typo-Squatting is similar to … Read More
Gaming licensing in Ontario – skill or chance?
Ontario’s Court of Appeal ruled in Play for Fun Studios Inc. v. Ontario (Alcohol and Gaming Commission of Ontario), 2019 ONCA 648 that ‘GotSkill’ is illegal under Ontario’s gaming, alcohol and racing legislation. The Alcohol and Gaming Commission of Ontario operates under provincial law controlling the grant of both liquor and gaming licences. The Commission submitted an application on appeal, arguing ‘GotSkill’ was a game of chance or mixed chance and skill, not simply skill. As a game of chance or mixed skill and chance, the regulation of ‘GotSkill’ would fall under the jurisdiction of the Commission. The Appeal Court overturned the lower court’s decision and ruled ‘GotSkill’ was a game of ‘mixed chance and skill’ and was therefore prohibited in unlicensed premises; forcing over 200 licensees to remove ‘GotSkill’ from their premises. The Court heard submissions on whether ‘GotSkill’ was a ‘game of chance’ or a ‘game of skill’ … Read More
Deposits In Failed Real Property Transactions
The recent Ontario Court of Appeal decision in Azzarello v. Shawqi, 2019 ONCA 820, illustrates the purpose of providing a deposit when purchasing real property and under what circumstances a purchaser will lose their deposit or be refunded the deposit if the sale does not go through. There are some important general principles that purchasers and sellers should be aware of regarding deposits in a real estate transaction: 1) Contemplation Regarding The Deposit In the Contract Is Important Purchasers and sellers should carefully consider the terms to be included in the purchase and sale agreement regarding the deposit. The contract should be clear about what happens to the deposit in all possible scenarios. In cases where it is not, the courts will look to implied terms in the contract and existing case law which governs how deposits are dealt with. 2) The Reason The Sale Fell Apart Is Important The … Read More
Business Dirty Tricks
Sometimes businesses and their stakeholders act wrongfully in seeking to advance their interests and / or harm competitors. There are often reports of the “dirty tricks” used by those in business to seek to destroy, defeat or diminish the effectiveness of a competitor. These are often unethical tactics, but sometimes such conduct is also wrongful and has been recognized by the common law as actionable in the courts for damages or injunctive or other urgent equitable relief, or prohibited by a statute which provides for a civil monetary remedy or grounds for an injunction. These causes of action have been recognized and provide the basis of lawsuits for harm, loss and damage, and in suitable circumstances, grounds for an immediate injunction or mandatory order prohibiting the further commission of the wrongful acts. In short, wrongful intentional acts causing harm, loss or damage to businesses or their stakeholders may give rise to a cause of action in common law business torts (the so-called … Read More
Prompt Payment Regime Takes Effect For Construction Projects
A major shift has been underway in Ontario since the legislature ushered in reforms under Bill 142, the Construction Lien Amendment Act, 2017, S.O. 2017, c. 24., perhaps none of which is more significant than the prompt payment regime which took effect on October 1, 2019. Changes To Lien Period: Effective July 1, 2018 Changes to the previous legislation (The Construction Lien Act) have come into effect in phases, with the first set of changes having taken effect in July of last year. We are now in the midst of transition rules which apply depending on the commencement date of a construction project to determine the applicable lien period which changed from 45 days to 60 days for prime construction contracts entered into after July 1, 2018. There were several additional notable changes which took effect as of July 1, 2018, including the extension of the period to perfect a … Read More
Latent Defects or Hidden Damage in Real Property Transactions
What Are Latent Defects Or Hidden Damages? Latent defects or Hidden Damage are defects to a property that are not generally discoverable by a prospective purchaser on a reasonable inspection and ordinary vigilance. This can include issues such as, faulty electrical wiring hiding behind the walls or a well-hidden termite or mold problem. Many real estate purchases include a buyer’s right to inspect the property to be purchased. However, these inspections are not exhaustive, and may not reveal latent defects or hidden problems with the property that are not readily visible. Why Do Participants In A Real Estate Transaction Need To Be Concerned About Latent Defects Or Hidden Damage? The problem latent defects or hidden damage can pose for a prospective real estate purchaser is that no amount of vigilance on a visual inspection can uncover such a defect, even one conducted with a home inspector (who’s inspections are typically … Read More
Manufacturers and Distributors – Toronto Litigation Lawyers
Our lawyers can provide sound advice and effective representation to manufacturers and distributors involved in actual or potential disputes or litigation. We focus on a wide variety of manufacturing industries in a broad array of legal disputes, including sale of goods, branding and brand protection, transportation and logistics, supply and outsourcing contracts, unpaid accounts, internal business disputes, construction and urgent remedies. The automotive industry, the food and beverage industry and technology industries in the Toronto – Waterloo Innovation Corridor comprise the most substantial sectors of the Ontario manufacturing landscape. We also can provide advice and representation to the many other manufacturing industries in Toronto and elsewhere in Ontario, including these: Automated Machinery and Robotics, Automotive Industry, Auto Parts Manufacturing, Building Materials, Canning and Bottling, Chemical Manufacturing and Supply, Clean Tech, Computer Equipment and Electronic Equipment, Concrete, Brick, Glass, Drywall, Lumber and Stone, Confectionery, Food and Beverage, Financial Technology, Furniture Manufactures and Importers, , Bottling, Packaging and Containers, Heating, Ventilation and Air Conditioning – HVAC, Insulation and Environmental Solutions, … Read More
Shareholder Disputes, Oppression Remedy, and Liability of Directors and Officers
Our lawyers have acted in Ontario and other jurisdictions for small, mid-sized and large Ontario and Canadian corporations, shareholders, directors, officers, executives and creditors in corporate disputes and shareholder disputes. We have acted 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 acts of other shareholders, the board of directors or other affiliates … Read More
Partnership Disputes Between Professionals – Dentists, Doctors, Accountants, Lawyers, Architects and Engineers
Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Lastly, some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact … Read More