In Forbes Energy Group Inc. v. Parsian Energy Rad Gas, 2019 ONCA 372 (CanLII), the plaintiff commenced an action seeking a declaration that it was not obligated to make payments to the defendants under a contract. The contract contained a clause stating that it was “governed by and construed in accordance with the laws of England and the Parties agree to attorn to the courts of England”. The defendants sought to stay the action on the basis of that clause in favour of the courts of England. The motion judge granted a stay, finding that the plaintiff had failed to meet the test to displace a forum selection clause: to demonstrate “strong cause” that the clause should not be enforced. On appeal, the Court of Appeal stated the “strong cause” test only applies to forum selection clauses that grant exclusive jurisdiction to a foreign jurisdiction. The motion judge did not … Read More
Determining a “Series of Incidents” under Ontario’s Human Rights Code
The recent decision in Martin v Trinity United Church, 2019 HRTO 726 highlights limitation periods and the applicable factors to determine what constitutes a “series of incidents” under Ontario’s Human Rights Code (“Code”). Limitation Period under Ontario’s Code Section 34 of the Code provides that a person who believes that his or her rights under Part I of the Code have been infringed must apply to the Tribunal: (a) Within one year after the incident to which the application relates; or (b) If there was a series of incidents, within one year after the last incident in the series. Late applications are allowed if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. Determining a “Series of Incidents” In order to establish that discrimination constituted a “series of incidents,” there must be a connection … Read More
Obiter or Not? A Refresher from the Ontario Court of Appeal
The recent case of The Catalyst Capital Group Inc. v VimpelCom Ltd., 2019 ONCA 354 [Catalyst], serves as a reminder that a court’s finding will not be considered obiter simply because there was another sufficient basis for the court’s decision. The Rule of Precedent The rule of precedent requires that courts render decisions that are consistent with the previous decisions of higher courts [Canada (AG) v Bedford, 2012 ONCA 186]. There are several well-known rationales for the rule: it promotes consistency, certainty and practicability in the law, sound judicial administration, and it enhances the legitimacy and acceptability of the common law [David Polowin Real Estate Ltd. v Dominion of Canada General Insurance Co., 2005 ONCA 21093]. Ratio vs Obiter The traditional dichotomy of ratio decidendi (“ratio”) and obiter dicta (“obiter”) is important for the scope of the rule. Only the ratio is binding on a subsequent court. Ratio refers to … Read More
Ontario Cottage Litigation Lawyers: Able to Assist in Disputes Involving Cottage Owners, Purchasers, or Sellers
From our office in Toronto, Ontario, we are able to provide efficient and result-oriented solutions with respect to the unique issues arising from cottage and recreational property disputes. Failures to Close Failures to complete an agreement of purchase and sale may be due to the Vendor or the Purchaser. Failures of the Purchaser are often attributable to the Purchaser’s inability to obtain financing that was anticipated from a mortgage or another property sale. In some instances, the Vendor may retain the deposit and claim damages for losses sustained from the failure to close. Failures to close may also be due to the Vendor. Frequently, the Vendor’s failure to close is due to the Vendor’s inability to provide clean title to the property or to perform the necessary repairs prior to closing. In some instances, a Purchaser will seek to recover damages for any resultant loss, while in other cases the … Read More
Can a Pre-Incorporation Contract Prevent the Forfeiture of a Deposit on the Failed Closing of a Property?
In Benedetto v. 2453912 Ontario Inc., the Ontario Court of Appeal considered whether a pre-incorporation contract could prevent the forfeiture of a deposit provided pursuant to an agreement of purchase of sale of real property. In this case, the purchaser signed an agreement for purchase and sale of real property, indicating that he was signing as a buyer “in trust for a company to be incorporated without any personal liabilities”. The purchaser then provided $100,000.00 as the deposit to secure the purchase of the property. The purchaser subsequently advised that he would not be closing on the transaction and sought the return of the deposit. The vendor refused and commenced civil proceedings resulting in a summary judgment motion, which was held in favour of the vendor. The Ontario Court of Appeal upheld the findings of the lower court and indicated that: A forfeited deposit does not constitute damages for breach … Read More
Court Considers Nuisance Test for Neighbours’ Tree in Allen v MacDougall
In the recent case of Allen v MacDougall, 2019 ONSC 1939, a neighbour applied for a court order authorizing the destruction of a maple tree growing amid two Toronto properties. The Ontario Superior Court refused. In its decision, the Court clarified the applicable test for nuisance and confirmed that “the tendency of courts today is that trees are not lightly ordered removed on the basis of being a nuisance.” Facts The large maple tree sat jointly on the land of two neighbours. According to s. 10(2) of The Forestry Act (“Act”), the maple is therefore owned by both neighbours: “Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.” The Applicants, as part of their home renovations and extensions, wanted the tree chopped down. The Applicants claimed that their intended home addition on the north side of … Read More
Prescriptive Easements in Ontario Cottage Country
The Ontario Superior Court of Justice decision in Arcon Property Holdings Ltd. v. Nelson, 2019 ONSC 2267, involved a dispute between cottage owners over easement rights related to a 15 foot wide strip of land near Grand Bend. The right-of-way was mainly a paved road used by the cottage owners to access their properties from the road but it also extended past the pavement to the waterfront. The applicant complained that the respondents parked their vehicles on the right-of-way which prevented them from accessing the beach, launching their boat, building ramps and structures to facilitate launching their boat and parking a trailer in their driveway. The applicant sought an order prohibiting the respondents from parking on the right-of-way and interfering with their easement rights. The Court found that the applicant’s easement was merely for “ingress and egress, in, over and upon” the property and did not provide the applicant with the right to access … Read More
Court Finds Waterfront Cottage Sufficiently Unique for Specific Performance
In Carr v Rivet, 2019 ONSC 1546, the Ontario Superior Court recently dismissed a motion to discharge a certificate of pending litigation (“CPL”). In doing so, the Court held that a waterfront cottage on Talon Lake was sufficiently unique to form the basis of a claim for specific performance. Importantly, in addition to finding that the particular cottage was specifically unique to the plaintiffs, the Court noted that most waterfront properties are, by their nature, unique. Unlike mass-produced properties, each waterfront property possesses different exposure and other water-related features that make it unique. Facts The day after their real estate transaction was supposed to close, the Plaintiffs commenced an action seeking specific performance. Subsequently, the Plaintiffs successfully brought an ex parte motion to register a CPL against the property. The Defendant then moved to discharge the CPL arguing, among other things, that the property was not sufficiently unique to support … Read More
Are Section 44 Exam Reports under SABS Subject to PIPEDA Disclosure?
To date, the Ontario personal injury bar has assumed that assessors and “IME” companies performing examinations under s. 44 of the Statutory Accident Benefits Schedule (SABS) are subject to access requirements under the Personal Information Protection and Electronic Documents Act (PIPEDA). The “leading case” on IME’s and PIPEDA, Wyndowe v. Rousseau, a decision of the Federal Court of Appeal, held that a doctor appointed to perform an independent medical examination under a disability insurance policy had to provide access to a final report and notes. The disability insurer’s internal process under the private insurance policy would not have been a formal dispute resolution process and therefore not exempt from PIPEDA. Under clause 9(3)(d) of PIPEDA, an organization is not required to give access to personal information if it was “generated in the course of a formal dispute resolution process.” Is a s. 44 examination subject to that exemption? The federal Office of the Privacy … Read More
Court Clarifies “Clean Hands” Doctrine Applies to Post-Breach Conduct
In 232702 Ontario v 1305 Dundas, 2019 ONSC 1885, the Ontario Superior Court of Justice recently considered the “clean hands” doctrine in the context of a terminated commercial lease for non-payment of rent. Importantly, the Court clarified that the doctrine of “clean hands” is not restricted to conduct occurring prior to the breach, but encompasses subsequent conduct as well. The Test for Relief from Forfeiture Under s. 98 of the Courts of Justice Act and s. 20 of the Commercial Tenancies Act, a court may grant relief from forfeiture, including forfeiture of a lease for non-payment of rent. The court’s power to relieve from forfeiture is an equitable remedy. It is discretionary, fact-specific and granted sparingly. The party seeking relief must prove that enforcing the contractual right would lead to inequitable consequences. In Saskatchewan River Bungalows Ltd. v Maritime Life Assurance Co., the Supreme Court of Canada held that a … Read More
Discrimination under Ontario’s Human Rights Code is Restricted to Enumerated Grounds: A Reminder in Stukanov v Paypal Canada Inc.
A recent decision of the Human Rights Tribunal of Ontario (“HRTO”) serves as a reminder that grounds for discrimination under Ontario’s Human Rights Code (“Code”) are restricted to those enumerated in the Code. Analogous grounds are not prohibited. In Stukanov v Paypal Canada Inc., 2019 HRTO 386, the HRTO dismissed an application alleging that Paypal discriminated against Canadian residents. Facts The applicant wanted to close his U.S. dollar account with Paypal and have the account money sent to him in U.S. dollars, either by cheque or by direct deposit into his U.S. dollar account at his Toronto bank. Paypal, apparently, would not send a cheque to Canada, and would only deposit money into a Canadian dollar account when sending money to a bank located in Canada. The applicant’s primary allegation was that he cannot receive his Paypal funds in U.S. dollars because he is a Canadian resident. He claimed that … Read More
Arbitration Clauses Enforced as Non-Consumers Ejected from Telus Class Action by Supreme Court of Canada
In Telus Communications Inc. v Wellman, 2019 SCC 19, the Supreme Court of Canada has favoured arbitration clauses in staying the claims of non-consumers in a class action against TELUS. The Court’s decision reflects a continued commitment of courts to taking a hands-off approach in upholding valid arbitration agreements, while its citation of the Ontario Court of Appeal’s Uber decision indicates that other routes – such as unconscionability – may be pursued to challenge specific arbitration clauses. Facts A proposed class action was filed in Ontario alleging that TELUS had for a number of years rounded up calls to the next minute without telling customers. The class included both consumers and non-consumers (business customers). Each individually agreed to the same non-negotiable standard form contract. The contract included an arbitration clause requiring all disputes (other than collection of accounts by TELUS) to be mediated, and failing that, arbitrated. Ontario’s Consumer Protection … Read More
Ontario Court of Appeal: There is No Common Law Tort of Harassment
Merrifield v Canada (Attorney General), 2019 ONCA 205 is the first case in which a Canadian appellate court has been required to determine whether a common law tort of harassment exists. The Ontario Court of Appeal has decided that it does not. Ontario Superior Court of Justice Relying on four trial-level decisions, the trial judge held that the tort of harassment exists as a cause-of-action in Ontario and that the elements of the tort are: Outrageous conduct; Intention to cause, or reckless disregard for causing, emotional distress; Suffering of severe or extreme emotional distress; and The outrageous conduct is the actual and proximate cause of the emotional distress. Ontario Court of Appeal The Ontario Court of Appeal held that, in sum, the four trial-level decisions assume rather than establish the existence of the tort or its elements. Contrasting the case at bar with Jones v Tsige, which recognized a new … Read More
Andrew Ottaway Writes Article on CISG for Law Times
The Law Times recently published an article by Andrew Ottaway on the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”). The article includes: a discussion of the recent case of Solea International BVBA v. Bassett & Walker International Inc., 2018 ONSC 4261 (CanLII), in which the Ontario Court applied the CISG; a discussion of the near total obscurity of the CISG in Ontario; examples of the notable differences between the CISG and the Ontario common law / Sale of Goods Act. The article can be read in its entirety here. The lawyers at Gilbertson Davis LLP have experience in commercial litigation, including cross-border litigation involving the CISG. Contact us for an initial consultation.
Tests for Intentional Infliction of Mental Suffering and Constructive Dismissal clarified by the Ontario Court of Appeal in Colistro v Tbaytel
In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal recently dismissed an appeal and cross-appeal in an employment dispute. Appeal: Intentional Infliction of Emotional Suffering In the appeal, the Ontario Court of Appeal confirmed that three elements comprise the tort of intentional infliction of mental suffering: Flagrant or outrageous conduct; Calculated to produce harm; and Resulting in a visible and provable illness. Objective vs Subjective Following its earlier decisions in Prinzo v Baycrest Centre for Geriatric Care and Piresferreira v Ayotte, the Ontario Court of Appeal held that the first and third element are objective, while the second is subjective. The Court held that the second element requires the plaintiff to prove that “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher v Wal-Mart Canada Corp.]. It is insufficient to show only … Read More
Letters Rogatory | Letters of Request | Request for International Judicial Assistance | Commission Evidence
Free Initial Consultation for US Attorneys Canada is not a party to the Inter-American Convention on Letters Rogatory. Accordingly, we are frequently consulted by US attorneys on behalf of parties to US litigation, and retained to advise upon and obtain enforcement in the courts in Ontario Canada of US court issued Letters Rogatory, Letters of Request or Request for International Judicial Assistance. These sometimes pertain only to the production of documents and other times require the examination in Ontario, Canada of a non-party to the US litigation, or both. We advise on the likely range of costs involved in intended enforcement proceedings. Early retention allows us to advise whether the intended Letters Rogatory, Letters of Request or Request for International Judicial Assistance would likely be enforced by the court in Ontario, Canada. Discovery Deadlines in US Proceedings We are mindful that US attorneys are often working with discovery deadlines within which to complete all examination (deposition) and document production. Once retained, we can proceed efficiently to … Read More
Employee or Not? An Uber Problem to be Decided by Ontario Courts: Arbitration Not the Route
In its first reported decision of the year, the Ontario Court of Appeal has allowed a proposed class action against Uber to proceed in Ontario court. Facts The Appellant commenced a proposed class action in January 2017. They sought, among other things, a declaration that Uber drivers are employees of Uber and governed by Ontario’s Employment Standards Act [“ESA”], as well as $400 million in damages payable to the class for alleged Uber violations of ESA provisions. Prior to certification, Uber brought a motion to stay the proceeding, requesting the court to enforce a clause in the agreement that requires all disputes to be arbitrated in Amsterdam according to the law of the Netherlands. Ontario Superior Court of Justice The motion judge held that the arbitration clause was enforceable and stayed the action. Applying the Supreme Court of Canada’s Seidel decision and the Ontario Court of Appeal’s TELUS ruling, the motion … Read More