The Ontario Court of Appeal recently released its decision in Goldhar v. Haaretz.com on the issue of whether Ontario was the appropriate jurisdiction to litigate a defamation claim relating to an online publication by an Israeli newspaper that purported to defame Mr. Goldhar, who lives in Toronto but has business connections in Israel. The majority held that the litigation could proceed in Ontario, as the court had jurisdiction and also that Israel was not a clearly more convenient forum. The majority concluded that, even though Mr. Goldhar was likely more well-known in Israel, and the fact that the facts asserted in the article related to his ownership of a prominent Israeli soccer team, the article had the potential to damage his reputation in Ontario, and the article was read by a number of Ontarians (though only a fraction of the number who read the article in Israel), and therefore, the court had jurisdiction … Read More
Toronto Lawyers for Victims of Investment Fraud: When Investing in a Toronto Business Goes Bad
A bad investment may not be the result of market fluctuations. A false representation inducing and leading to an investment loss may be actionable at law. Often there is a promised high-yield on an investment in a company, project or property. Sometimes a loss occurs from a scheme where there is no intention by those entrusted with an investment to make the promised purchase or transfer. In Ontario, civil lawsuits for the victims of investment fraud have often been framed as claims for deceit, fraudulent misrepresentation, civil conspiracy, breach of contract, unjust enrichment and restitution. Increasingly though, plaintiffs in lawsuits simply claim damages for losses arising directly from the tort of civil fraud. The leading case on civil fraud in Canada is the Supreme Court of Canada decision in 2014 in Hryniak v. Mauldin, 2014 SCC 7, and in that case civil fraud is defined this way “… the tort of … Read More
Toronto Attorneys for Enforcement of U.S. Judgments in Ontario, Canada
American judgments, from either State or U.S. Federal Courts may be recognised and enforced in Ontario, Canada. The test for whether the Court of Ontario will recognize and enforce a U.S. judgment is as follows: did the U.S. Court have jurisdiction, in accordance with the principles of private international law as applied by Canadian courts? is the judgment final and conclusive? is the judgment for a definite and ascertainable sum of money or, if not a money judgment (e.g. an injunction), are its terms sufficiently clear, limited in scope and do the principles of comity require the domestic court to enforce it? The Ontario Court will also consider the following, limited defences of: fraud (i.e. whether the U.S. judgment was obtained by fraud); natural justice (i.e. whether the U.S. proceedings were contrary to Canadian notions of fundamental justice); and public policy (i.e. whether the U.S. judgment was contrary to our view … Read More
Business Dirty Tricks: Unfair Competition: Intentional Interference, Inducing Breach of Contract, Conspiracy and Defamation
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
The Importance of Urgent Injunctive Relief | Referrals for Injunctions
Litigation is sometimes a slow and costly process, designed to ensure all parties are provided with sufficient opportunity to present their best case in a dispute. Unfortunately, personal and business realities often move much faster than ordinary litigation can accommodate, meaning that the time it takes to succeed in litigation can – in itself – be detrimental to your interests or your client’s interests. Interim and Interlocutory Injunctions Fortunately, the courts have a robust system in place to give parties immediate, if temporary, relief in the form of an injunction to ensure their rights are not compromised by the slow grind of the litigation process, giving all parties the time and opportunity to flesh out their positions once the immediate risk of harm has been dealt with. This kind of relief is limited only to situations where one can establish that such urgent remedies are truly necessary – that is, … Read More
US Court of Appeals Reverses Lower Court Decision; Re-Opens US Trademark Infringement Claims Against Canadian Operation
In Trader Joe’s Company v. Hallatt, the United States Court of Appeals for the Ninth Circuit recently overturned a lower court decision which had originally dismissed claims that Mr. Hallatt, a Canadian citizen but permanent resident of the United States, was violating the trademark rights of Trader Joe’s, a popular US grocery store chain, by reselling their products in Canada under the name “Pirate Joe’s” and by using an allegedly confusingly similar store design and motif. Mr. Hallatt’s business involved purchasing Trader Joe’s products in Washington state, transporting them across the border to British Columbia, and re-selling the product to Canadians at a mark-up. Trader Joe’s, which does not carry on business in Canada, sued in Washington state, claiming Mr. Hallatt was infringing on their US trademark rights. They asserted that Hallatt’s actions were damaging their trademark rights under US law. At the lower level, Trader Joe’s claims were dismissed, as … Read More
Court Confirms Inference of Dissipation in Mareva Motions Based on Fraud
In the recent case of Electromart (Ontario) Inc. v Fabianiak et al., the Ontario Superior Court considered the level of evidence required to prove that there is a real risk of the dissipation of assets, one of the elements necessary to obtain a Mareva injunction freezing a defendant’s assets. Normally, a court will not freeze a defendant’s assets just because the plaintiff is concerned that they will not be able to recover any money on their judgment at the end of litigation. However, where the court is convinced that the defendant is improperly dissipating his or her assets to make recovery more difficult or impossible, the court will freeze a defendant’s assets to prevent that from happening. In addition to proving a strong prima facie case, a moving plaintiff must also show why the freeze is necessary – that is, some reason to believe that assets will be dissipated if the order is not granted. The … Read More
Court Stays Arbitration but Denies Costs to Successful Party for “Blameworthy Conduct”
In Gorman v Kosowan, 2016 ONSC 5085, the applicant commenced a proceeding regarding a business dispute. The applicant and individual respondent were joint owners of a transportation and warehouse business. A dispute arose between them. The respondents subsequently terminated the applicant’s employment and excluded him from the business. The applicant sought relief from the allegedly oppressive conduct under the Canada Business Corporations Act and the Ontario Business Corporations Act. The respondents brought a motion to stay the oppression application based on an arbitration clause in the parties’ Unanimous Shareholders’ Agreement (“USA”). The USA arbitration clause required arbitration for “disputes under” the USA. The Judge found that the applicant’s claims were covered by the arbitration clause and granted the respondents’ motion to stay the application. In the Judge’s subsequent costs decision, here, the Judge denied the respondents’ request for costs of the motion. While a winning party is typically entitled to its costs … Read More
New Study Reveals Trends in Canadian Defamation Cases
A new study by a Canadian law professor analysed reported Canadian defamation lawsuit decisions between 1973-1983 and between 2003-2013. The results of the study revealed some interesting trends, including: in cases between 1973 and 1983, 53% of claims were successful. However, in cases between 2003-13, only 28% claims were successful. The study’s author suggests various theories for the decline in the success rate, including that courts are seeking to give greater protection to freedom of expression; during the 2003-13 period, plaintiffs were far more successful in cases involving “new media” (email or internet), with a 62% success rate (more than double the success rate for cases between 2003-13 considered as a whole). The study’s author suggests that the difference may be explained by the fact “new media” communications are less likely to be vetted and edited than publications in “old” media, and there may be better evidence of “new media” … Read More
Joint Venture Disputes and International Joint Venture Arbitration
Joint ventures are often established to synergize what each member of the joint venture can add to the consortium. Sometimes a joint venture is the structure chosen because those members engaged in the joint venture are located in different jurisdictions, a consideration which may be pivotal for its success. While invariably created by contractual agreement, some joint ventures have been held by the courts to be a partnership, while others have been determined to be merely contractual, without comprising a partnership. A myriad of considerations have been used by the courts in determining whether a joint venture is a partnership. Issues have also arisen concerning the management and operational structure of a joint venture and whether such structure necessarily results in the joint venture being found to comprise a partnership. Historically the distinction between partner and contractor has been important, since the law only imposed a fiduciary duty upon partners, and not … Read More
Court of Appeal Provides Guidance on “Forum of Necessity” Doctrine
In Arsenault v. Nunavut, 2016 ONCA 207, the Plaintiff commenced a lawsuit in Ontario regarding an employment dispute with the defendant, the government of the Canadian territory of Nunavut. The motion judge concluded that Ontario did not have jurisdiction over the dispute because the dispute did not have a “real and substantial connection” with the province of Ontario, and that Nunavut was clearly the more appropriate forum to hear the dispute. The Plaintiff appealed, arguing that the motion judge had not properly considered whether Ontario was the “forum of necessity” – i.e. the doctrine allowing the Court to assume jurisdiction over a dispute, even though there is no “real and substantial connection” with Ontario, because there is no other forum in which the plaintiff can reasonably seek relief (see our previous posts regarding the doctrine of “forum of necessity” here and here). The Court of Appeal dismissed the Appeal. The Court of Appeal noted … Read More
Gilbertson Davis LLP Panelists at 2016 Cyber Insurance Webinar
John Davis and Robert Kalanda, of Gilbertson Davis LLP, were co-presenters at The Knowledge Group’s recent Webcast ‘Cyber Insurance: Latest Developments in 2016‘, on March 21, 2016. The panel also included Barry Fleishman of Kilpatrick Townsend & Stockton LLP and Jamie Hull of Cassiday Schade LLP. The webinar focused on issues and developments of interest to both Canadian and United States businesses, insurers, organizations, claims professionals, adjusters, and risk managers who are involved with Cyber Insurance Coverages under Standalone Cyber and more traditional insurance policies, and Cyber Risks, Data Breach, Information Security, Cybersecurity and Privacy issues. The panel discussed the judicial, legislative and regulatory developments as well as important considerations bearing on Applications for Cyber policies, including identification and prioritization of risks and exposures, the impact of conditions and exclusions, and the role of counsel as part of the data breach and Cybersecurity response team. John L. Davis is the Managing Partner of … Read More
Ontario Court Provides Jurisdiction Analysis of Place of Contract and Carrying on Business in Ontario
In Re: Essar Steel Algoma Inc. et al, 2016 ONSC 595, an Ontario steel company, Essar, entered into a plan under Canada’s Companies’ Creditors Arrangement Act (“CCAA”, a Canadian corporate bankruptcy proceeding). As part of its restructuring, Essar entered into a contract with a U.S. supplier, Cliffs. A dispute arose between Essar and Cliffs regarding the contact. Essar brought a motion in the CCAA proceedings seeking, among other things, a declaration that Cliffs had to continue supplying under the contract. In response, Cliffs brought a motion seeking to dismiss Essar’s motion on the basis that the Ontario did not have jurisdiction or that Ontario was not a convenient forum. The Ontario Court applied “real and substantial connection” test set out by the Supreme Court of Canada in Van Breda, and considered i) whether the contract was made in Ontario and ii) whether Cliffs carried on business on Ontario. With respect to i), the Court … Read More
Enforcement of Ontario Judgment in US (U.S.A and American States)
If you are looking for Enforcement of US Judgment in Ontario, Canada, then click here. ____ Enforcement of Ontario Judgment in US (U.S.A and American States) We sometimes act for clients in litigation against defendants located in an American state, or having assets located in one or more U.S. states. Other times we are retained simply to assess and / or seek enforcement of an Ontario or other Canadian judgment in an U.S. state. Accordingly, the consideration sometimes arises whether a money judgment obtained in a court of Ontario or Canada is readily enforceable in a particular US state. Neither Ontario nor Canada is a party to any bilateral enforcement of money judgement treaty or convention with the U.S. or any particular state in the U.S.. However many U.S. states have enacted statutes concerning the enforcement of foreign (including Ontario and Canada) money-judgments in that state. Since this is largely … Read More
In Jurisdiction Dispute, Court of Appeal Confirms Contract Made Where Acceptance Received
In Eco-Tec Inc. v. Lu, the Plaintiff Ontario company researched, developed and manufactured proprietary technology and products. The Defendants were Lu, a Canadian citizen, his BVI company and three Chinese companies owned by him or his parents. The Defendant companies were the Plaintiff’s consultant, agent or distributor in China. In the course of their relationship, the Plaintiffs and Defendants signed a number of agreements. The Plaintiff ended its relationship with the Defendants in 2012, alleging that the Defendant’s Chinese companies were selling clones of the Plaintiff’s product in China. The Plaintiff brought a claim for breach of confidence, breach of contract, breach of fiduciary duty, conspiracy, unjust enrichment and/or unlawful interference with its economic interests. The Defendants brought a motion to dismiss the Ontario action on the basis that the Ontario Court did not have jurisdiction. The motion judge dismissed the motion, finding, among other reasons, that the dispute was connected … Read More
Court Upholds Prevailing Contract Clause
In the recent case of 1252662 Ontario Inc. v Swisslog, the Ontario Court of Superior Justice held that a contractual clause which provided that, in the event of a conflict with another agreement, that terms of the other agreement would prevail. In this case, the parties had entered into a multi-million dollar construction contract. One of the documents to the contract set out a number of terms which limited the liability of the defendant as against the plaintiff for a wide variety of issues, including delay in construction. However, that document also provided that the terms of a companion document would prevail in the event of any conflict between the two terms. That companion document provided a general statement that the plaintiff had “all rights and remedies provided by law and by this agreement”. The construction was ultimately delayed, and the plaintiff sued for its common law damages as incurred a … Read More
Partnership and Contractual Disputes between Professionals (Dentists, Doctors, Accountants, Lawyers, Architects, 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