The Ontario Business Corporations Act (OBCA) provides broad remedial options for directors, officers, shareholders, and other “complainants” to correct oppressive or prejudicial actions by or against a corporation. Most commonly, these take the form of either an oppression action or a derivative action. Oppression actions are where a complainant commences an action where that individuals interests have been oppressed or unfairly prejudiced. Derivative actions, on the other hand, are where a complainant starts litigation in the name of the corporation where the corporation has been wronged and the corporation (by its board of directors) chooses not to commence litigation itself. Because derivative actions bring the corporation into litigation without its consent, and often require the corporation to pay the legal costs of that action, leave of the court is required to commence a derivative action. Tersigni v. Georgevitch OBCA actions, and in particular oppression actions, can sometimes blur the legal distinction between … Read More
Court Declines Jurisdiction over New York MVA Despite Passed Limitation Period
In Mannarino v The Estate of Jane Brown, the Superior Court declined to take jurisdiction over a claim involving a motor vehicle accident that took place in New York, even though the limitation period for bringing a claim in New York had since passed. The plaintiff was a passenger in a vehicle in the state of New York, and was involved in a car accident with another New York driver. The plaintiff sued in Ontario, claiming in part that the injuries suffered exacerbated an earlier motor vehicle injury which was already properly before the courts in Ontario. The plaintiff argued that the nature of the injuries would require the two actions to be consolidated. The court noted that no consolidation motion had yet been brought. Justice Skarica considered the factors outlined in Club Resorts Ltd. v. Van Breda for the court to take jurisdiction over a claim. The court found that none of … Read More
‘Innocence of Muslims’ Copyright Decision Highlights Scope of Moral Rights: Canadian vs. US Protections
A recent high-profile United States copyright decision has highlighted the limited scope of protection granted to an artist’s “moral rights” in their creations in the United States, rights which are given broader protections in other countries, including Canada. Court Rejects Actor’s Copyright Claim This week, the 9th Circuit Court of Appeals in the United States issued an en banc decision reversing an earlier decision restraining YouTube from displaying the controversial film Innocence of Muslims. The injunction was based on the copyright claim of actress Cindy Lee Garcia, whose five-second appearance in the film was based on misrepresentations to her that an entirely different film was being produced. Her controversial lines were dubbed over her appearance in post-production without her permission. The Court initially held that Garcia did not sign away her copyright to her performance, and therefore could make a valid copyright infringement claim regarding her performance in the film, and … Read More
Ontario Court of Appeal summarily dismisses appeal under new rule 2.1
In Brown v. Lloyd’s of London Insurance Market, 2015 ONCA 235, the Court of Appeal for Ontario summarily dismissed an appeal on its own motion, pursuant to rule 2.1. Rule 2.1 has been in force since July 1, 2014, and is intended to put an end to civil actions that are, on the face of the statement of claim, so obviously without merit that no argument apart from counsel’s letter of request is required. Gilbertson Davis’ Lee Akazaki was counsel for one of the successful defendants / respondents. This appears to be the first time the rule has been invoked to dismiss a civil appeal. The practice has proven very economical, as the necessity for expensive, labour-intensive motions to strike statements of claim, has been eliminated in instances where actions are clearly without merit.
Court of Appeal Rejects Apotex’s Claim for Unjust Enrichment
In the recent decision of Apotex Inc. v. Eli Lily and Company, the Ontario Court of Appeal has dismissed a claim by Apotex, a pharmaceutical company that produces generic pharmaceuticals. In the case, the defendant Eli Lilly relied upon the PM(NOC) patent regulations to restrict Apotex from entering the market and selling a generic version of a pharmaceutical which was subject to a patent. That patent was ultimately invalidated. Apotex claimed that claimed that Eli Lilly had been unjustly enriched by making revenues of some $70 million as it was wrongfully delayed from entering the market and making revenues itself. It argued that allowing Eli Lilly to retain its monopolistic profits and only pay Apotex its lower lost revenues would result in a windfall to Lilly that encourages patent holders to improperly delay others from entering the market. Ultimately, the Court’s objection to Apotex’s position was that Apotex could not … Read More
Andrew Ottaway Speaks on CityTV News About Defamation and Social Media
On March 5, 2015, Gillbertson Davis lawyer Andrew Ottaway appeared on CityTV News. Andrew was asked to speak about legal issues arising from defamatory statements on social media. The lawyers at Gilbertson Davis frequently comment on defamation issues, and can represent individuals or businesses in relation to online defamation issues.
Gilbertson Davis LLP News – OsgoodePD Program on Shareholder Litigation and the Closely-Held Company
David Alderson, of Gilbertson Davis LLP attended as a faculty member of the OsgoodePD professional development program on April 7, 2015 concerning Shareholder Litigation and the Closely-Held Company. He was on the panel addressing Ethical and Professional Issues in Shareholder Disputes and Litigation. Osgoode Hall Law School said of this professional development program, “This OsgoodePD program brings together some of the country’s top commercial litigators and other experts to provide insight into key aspects of litigating these cases.” Shareholders disputes are one of the most common and most complex disputes handled by commercial litigators and in-house counsel. The panel on Ethical and Professional Issues in Shareholder Disputes and Litigation included Paul N. Feldman of Feldman Lawyers, Tom Curry of Lenczner Slaght Royce Smith Griffin LLP and David Alderson of Gilbertson Davis LLP, with Lisa C. Munro of Lerners LLP moderating. The program is being re-broadcast on May 22, 2015 as described here. David Alderson has experience in shareholder and partnership disputes, both in arbitration … Read More
Does adverse possession apply to exclusive-use condominium common elements in Ontario?
The marketing message behind the Condominium boom in Canada’s urban jungles is all about newness. The smell of new carpets and freshly cut flowers in the lobby appeals to the allure of modernity. The reality of the condominium as a form of residential property has been with us for decades, and condominium law has been overlaid on top of conventional property law. Buried within the registered title documents are discrepancies waiting for parties to turn them into legal disputes. With so many deals taking place, and lawyers not being trained in ‘parochial’ property law, condominium title disputes will only increase with time and the volume of transactions. One problem area, hitherto unknown in the legal community, is the effect of adverse possession on exclusive use common elements. The physical integration of a common element into a unit owner’s unit is not uncommon. For example, balconies, parking spaces, and storage areas … Read More
Court Finds US Company Did Not Consent/Attorn to Ontario’s Jurisdiction By Bringing Recognition Action
In Carolina Foods, Inc. v. 838116 Ontario Inc., the Plaintiff, a North Carolina company, had obtained a judgment in North Carolina against purchasers of goods for failure to pay for goods delivered. The Plaintiff brought the subject action in Ontario for recognition of the North Carolina judgment. The Defendants counterclaimed for $500,000. The Plaintiff brought a motion to dismiss the counterclaim on the basis that the Ontario did not have jurisdiction over the counterclaim and that North Carolina was a more appropriate forum to determine the counterclaim. Our Firm acted for the Plaintiff on the motion. The Defendants argued that the Plaintiff had attorned to the Ontario court’s jurisdiction over the counterclaim by commencing the recognition action. The Judge rejected that argument, and found that that Plaintiff had not attorned to the jurisdiction of the Ontario court. Then, applying the factors set out by the Supreme Court of Canada in Club Resorts … Read More
GD Blog analysis vindicated: Court finds s. 258.3(8.1) of Insurance Act retroactively scales back PJI rates
In a post on this site last November, “Why the new s. 258.3(8.1) of the Insurance Act will retroactively scale back prejudgment interest rates in MVA actions,” I stated that the statutory amendment reducing the rate of prejudgment interest for non-pecuniary damage awards (damages for pain and suffering and the non-pecuniary portion of dependent family claims) in automobile tort cases must be applied retroactively. In large or catastrophic claims involving years of pre-trial procedures, the difference can be quite substantial. These past four months, I am told the blog post has been printed off and by defence lawyers across Ontario, and that the reasoning has been debated at mediations and pretrials. Lawyers have been waiting for the court to opine on the subject. In a decision released today but not yet available on the court’s website, Cirillo v. Rizzo 2015 ONSC 2440, the Ontario Superior Court followed the reasoning I stated in the … Read More
Data Breach Claims in U.S. and Canadian Courts
As data breaches become more and more prevalent, customers are finding themselves at greater and greater risk of having their personal information improperly disclosed or stolen. When it does happen, thousands or millions of users may be exposed to identity theft. A recurring question for the courts is, in the absence of actual identity theft, how does one quantify the damages of this “increased risk” when the risk has not actually materialized? This question has been looked at by both Canadian and American courts, and they have arrived at similar but distinct positions. United States In the United States, standing to commence a lawsuit is governed by Article III of the Constitution, and requires the plaintiff to have suffered an “injury in fact”. Equally importantly, where there is no such standing, class proceedings where no actual damages have been sustained are not normally certified. The application of this to data … Read More
Bad Faith Claims against Canadian Liability Insurers: Sober Second Thought
No aspect of insurance defence counsel’s tripartite retainer with an insured and a liability carrier more frequently strains the divided loyalty more than the over-limits exposure. Whether it is an automobile policy responding to a catastrophic bodily injury claim, or a general liability policy building collapse or fire attributed to the carelessness of a tradesperson, the cost of indemnity has increased dramatically in relation to standard million-dollar policy limits. Those limits have not changed in Canada for over a decade. It is a matter of economic conflict between two independent markets. In a competition for premiums, underwriters have failed to market increases in policy limits, while medical and rebuilding costs for commercial buildings have soared. This simple divergence of demand-and-supply curves has many ramifications for tort law in Canada. Here, I discuss one issue, the rise and apparent panic in the insurance industry over the importation of an American doctrine … Read More
A Proven Hypothesis: How Deguise v. Montminy helps us better understand Alie v. Bertrand
Last July, in Deguise v. Montminy, 2014 QCCS 2672 the Québec Superior Court had occasion to revisit these issues from in Alie v. Bertrand & Frere Construction Co. Ltd., 2002 CanLII 31835, applying the Ontario Court of Appeal decision in that 2002 case to civil law concepts relating to allocation of responsibility among insurers. Many of the rulings in the decision were specific to Québec civil law. In one aspect, however, the case provided an opportunity to test the writer’s hypothesis that the Alie court called on parties and counsel to present expert evidence to show when damage actually started to occur, for the purpose of allocating insurer responsibility.* In other words, Deguise offered an opportunity to apply the ‘injury in fact theory’ of liability insurance coverage to facts proven by evidence, instead of legal conjecture. The decision, penned in French and applying civil law, has so far escaped the notice of the Bar in the rest of Canada. The Deguise court … Read More
Court of Appeal Overturns Motion Decision on Forum Non Conveniens
In Bouzari v. Bahremani the Defendant Bahremani (the “Defendant”) had brought a motion to stay the Ontario action on the basis that Ontario was forum non conveniens. The motion judge dismissed the motion, and the Defendant appealed to the Ontario Court of Appeal. The Plaintiff had sued the Defendant for alleged events claimed were alleged to have taken place in Rome, Italy and Tehran, Iran. The Plaintiff lived in Vienna, Italy and England, before moving to Canada. The Defendant was a citizen of Iran, with no connection to Canada. When the action was commenced, the Defendant was living in England. By the time the Defendant commenced the forum non conveniens motion, the Defendant had returned to Iran and could not travel to Canada. Also, the Defendant had previously attempted to obtain a visa to enter Canada unsuccessfully on two occasions. The parties agreed that the action could not proceed in Iran. The Defendant argued that England was … Read More
Ontario Court Given Jurisdiction over Internet Defamation Claim
A recurring issue in online defamation cases is the proper jurisdiction where a claim should be commenced. In many cases, the people who read the allegedly defamatory statements will be located across the planet, meaning that a publisher of such materials may find themselves having to defend claims brought far away from their actual home jurisdiction. In Goldhar v. Haaretz.com et al., Justice Faieta allowed an Ontario claim to continue for allegedly defamatory statements posted online by an Israeli-based newspaper organization. The defendants brought a motion to have the plaintiff’s claim stayed, arguing that the action should be heard in Israel, as the majority of the publication of the article was in Israel, and only 200-300 persons in Canada read the English online article. The court ultimately concluded that it did have jurisdiction over the defendants, and the plaintiff’s claim could continue in Ontario. By finding that at least some … Read More
Vicarious Liability for Vehicle Owners under HTA Based on Possession, not Operation
The Superior Court has confirmed that a vehicle owner is vicariously liable for the negligence of another driver under the Highway Traffic Act, even if the owner consents only to the possession of the vehicle, and not its operation on the highway. In Fernandes v. Araujo et al., the owner’s insurer brought a motion for summary judgment stating that the owner was not vicariously liable for the driver’s negligence as the owner had not given permission to the driver to operate the vehicle, an ATV located on the owner’s farm, on the highway, as the driver only had a G1 license and was not licensed to use the ATV on a highway. The insurer attempted to rely on the similar decision of Newman v. Terdik, where the owner was not found to have given consent as he had expressly forbidden the driver from taking the vehicle off his farm and … Read More
Divisional Court Addresses “Best Foot Forward” Requirement on Summary Judgment
The recent decision of the Ontario Divisional Court of Pereira et al. v. Contardo found in favour of the plaintiff on a summary judgment motion to dismiss the plaintiff’s personal injury claim as statute-barred. At issue was whether the plaintiff complied with his obligation to put his best foot forward in opposing the motion, as the plaintiff did not file any responding material, and simply relied on the evidence put forward by the defendant to defend the motion. The Rules of Civil Procedure require that a responding party on a motion for summary judgment “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. Rather than file responding material, the plaintiff simply relied on the affidavit evidence put forward by the defendant and argued that the limitation period for his claim started when he received an expert medical report, … Read More