In Motoretta v. Twist & Go Power Sports, the Plaintiff and Defendant are two rival GTA scooter stores, engaged in what the Judge called the “Toronto Scooter Wars”. The Defendant’s Vespa dealership was terminated by the Canadian Vespa distributor. The Plaintiff remained an authorized Vespa dealer. The Plaintiff was suspicious that the Defendant had “bad-mouthed” it to customers on an ongoing basis. In response, the Plaintiff hired private investigators to pose as customers at the Defendant’s store. The private investigators recorded their conversations with the Defendant, which the Plaintiff alleged were defamatory. The Plaintiff scooter store brought an action for damages for defamation, and for a permanent injunction prohibiting the Defendant from further defaming the Plaintiff. The action was determined by summary judgment. The Judge found that the Defendant’s statements to the private investigators had defamed the Plaintiff. The Defendant argued that the statements did not meet the legal test of defamation because … Read More
Leave to Bring Summary Judgment Motion Denied in Dog Bite Lawsuit
In Dickson v. Di Michele, 2014 ONSC 2513, the plaintiff claimed the defendants’ dog attacked her while she was delivering a pizza and sued the defendants for damages under the Dog Owners’ Liability Act. After the plaintiff set the action down for trial, the plaintiff brought a motion requesting leave of the court to bring a summary judgment motion with respect to liability and contributory negligence, while leaving the issue of damages for trial. The defendants argued that leave should be denied since the well-established test required the plaintiff to prove a substantial or unexpected change in circumstances since the action was set down for trial. Justice Bale found that the issue was whether the proposed summary judgment motion was likely to provide a “proportionate, more expeditious and less expensive means to achieve a just result than going to trial”, citing the Supreme Court of Canada decision in Hyrniak v. Mauldin, 2014 SCC 7. After considering the evidence, Justice Bale held … Read More
Summary Judgment Granted in Condominium Maintenance and Repair Case
In Patriarcki v. Carleton Condominium Corporation No. 621, 2014 ONSC 1507, the self-represented plaintiff sued her condominium corporation and the condominium corporation’s contractor alleging that they negligently repaired and replaced a boiler in her condominium unit which exposed her to toxic fumes that made her very sick. The defendants brought a summary judgment motion seeking to dismiss the claims against them. The Court considered the guidance recently provided in the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, with respect to summary judgment motion principles before providing its analysis of the case. The issue was whether there was a genuine issue for trial in light of the plaintiff’s alleged failure to present any evidence of liability on the part of the defendants. Although the plaintiff relied on a number of medical reports which opined that her health problems were caused by gas leaks from the boiler, the Court found that the … Read More
Advocacy Lessons from the Law Society of Upper Canada in re Trinity Western University
In the aftermath of yesterday’s historic debate before the Law Society of Upper Canada, in which the application of Trinity Western University for accreditation of a law degree was rejected 28-21, with one abstention, a number of colleagues asked me about the tactical considerations involved in this two-day process. TWU entered the second day of the Ontario debate buoyed by a 20-6 decision by the Law Society of British Columbia to grant accreditation. Those who followed the Ontario debate saw that TWU President Kuhn took the podium, instead of his appointed counsel. He led with various hurtful statements made about his University and about Christians, and suggested that to deny accreditation would be to validate such statements. He then asserted the right of the University to operate a law school. A Teaching Moment This event will, one day, appear in advocacy textbooks in chapters about cases about squandered opportunities. What made it a … Read More
Court Finds Foreign Hotel Operator Properly Served in Ontario
In Klein v. Occidental Hotels & Resorts, 2014 ONSC 2221, the Ontario Superior Court of Justice addressed the issue of whether a foreign hotel operator was properly served with a claim made in Ontario with respect to an accident that occurred at its hotel in the Dominican Republic. In this case, the Plaintiff purportedly served the claim on the receptionist at the address of the hotel operator’s office in Toronto. The hotel operator argued that it does not have any offices in Ontario nor does it carry on business in Ontario, and the location where the claim was purportedly served was the address of the marketing company it uses in Ontario. The hotel operator maintained that the marketing company was not its agent. In considering whether the hotel operator was properly served, Justice Healey considered the three-part test to determine whether a corporation is carrying on business in Ontario: (i) has the corporation carried on business in the jurisdiction for a sufficiently substantial period of time; (ii) … Read More
Court of Appeal Confirms Haunted House is not a Latent Defect in Real Estate Purchase and Sale
The Ontario Court of Appeal recently released its endorsement in 1784773 Ontario Inc. v. K-W Labour Association Inc., 2014 ONCA 288, a case which involved the purchase and sale of a “haunted” commercial property. In this case, the purchaser sued the vendor after hearing rumours that the property was haunted by ghosts of people who were murdered or had died on the property. The purchaser alleged that the vendor failed to disclose these latent defects in the property. The vendor brought a summary judgment motion to dismiss the claims against it. The judge hearing the summary judgment motion held that there was no genuine issue requiring a trial for the following reasons: (i) there was no evidence that anyone died on the property, either by natural causes or some criminal act; (ii) the vendor was not required to disclose that someone had died on the property or that the property may be haunted; (iii) there was no evidence as to how the purchaser could prove … Read More
Mixed Results in Summary Judgment Motion in Parking Lot Slip and Fall Case
In Wiseman v. Carleton Place Oil Inc., 2014 ONSC 1987, the Ontario Superior Court of Justice addressed the summary judgment motion brought by the two remaining Defendants in a case involving a slip and fall in a Tim Hortons parking lot. The Plaintiff alleged that she broke her wrist when she slipped and fell on accumulated snow along the curb of the drive-through lane. The owner of the parking lot took the position that they had satisfied their duty of care by contracting out for snow removal on the premises. The snow removal contractor argued that they had performed all their contractual obligations on the day of the incident. After summarizing the law on summary judgment as set out by Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, Justice Pedlar held that there were genuine issues requiring a trial in respect to whether the owner was negligent in designing a parking lot that required customers to step over the drive-through curbing to … Read More
Court of Appeal Rules Insurance Not Voided by Expired License
In Kozel v. The Personal Insurance Company, an Ontario driver had an automobile insurance policy with the appellant insurance company. The driver severely injured a motorcyclist in an automobile accident in Florida. The injured motorcyclist sued the Ontario driver. At the time of the accident, the driver was driving with an expired license, in breach of a statutory condition of her insurance policy. The driver asked the Court to order the insurance company to defend her against the motorcyclist’s lawsuit under the liability coverage of her automobile insurance policy. The insurance company refused to defend the driver because she was in breach of the policy. The Court of Appeal considered whether the driver should be excused from her breach of the policy. The Court considered whether to grant “relief from forfeiture” under section 98 of the Courts of Justice Act (which states that “A court may grant relief against penalties and forfeitures, on such terms … Read More
Partial Summary Judgment in Franchise Disclosure Case
The Ontario Superior Court of Justice decision in Caffe Demetre v. 2249027 Ontario Inc., 2014 ONSC 2133, involved a partial summary judgment motion to dismiss the franchisee’s rescission claims (in its counterclaim) under the franchise disclosure legislation in Ontario, the Arthur Wishart Act (Franchise Disclosure), 2000 (the “Act”). The Act provides the franchisee with the extraordinary right to rescind the franchise agreement: (i) within 60 days after receiving the disclosure documents; or (ii) within 2 years after entering in to the franchise agreement if the franchisor never provided the disclosure documents. The issue arose when the franchisee received the disclosure documents but attempted to rely on the 2 year rescission period, arguing that the disclosure documents contained “stark and material deficiencies” so as to be amount to no disclosure at all. The franchisee alleged that the franchisor failed to disclose material facts including ongoing litigation against the previous franchisee, implementation and amendment of operational policies, and the cost of remodelling and renovations. Following on the guidance provided by the Supreme Court … Read More
Court of Appeal Defines Key Terms Relating to Injunctions
In 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd. a dispute arose between the parties regarding access to a laneway, resulting in three Court endorsements referring to “interim”, “interlocutory”, “permanent”, and “mandatory” injunctive relief. The Court of Appeal took the opportunity to clarify these key terms relating to injunctions: Interim injunction: Pre-trial relief, which may be sought with or without notice to the other party. Argument in an interim injunction proceeding is usually brief. The injunction is typically for a short, defined period of time. Interlocutory injunction: Pre-trial relief, again restraining a party for a limited period of time, but often for longer than an interim injunction (such as until trial or other disposition of the action). Argument in an interlocutory injunction proceeding is typically lengthier than in an interim injunction proceeding, and involves both parties. The test for an interlocutory injunction is set out in in RJR-MacDonald, and recognizes that the Court does not have the ability … Read More
Court of Appeal on Restrictive Covenant on Dissolution of Partnership
The Court of Appeal for Ontario released its decision on February 11, 2014, in Greenaway v Sovran 2014 ONCA 110 on the appeal by a “withdrawing” partner of a two-member firm from the decision of the Superior Court of Justice on an application to determine the enforceability of a “restrictive covenant” in their partnership agreement. The application judge found that the two-member firm partnership had been dissolved and declared the restrictive covenant unenforceable as a penalty, but directed a trial of an issue to determine the damages payable by the appellant as a result of a breach of the portion of the portion of the covenant he found valid and severable – the withdrawal having triggered a clause in the agreement which called for the reduction of the withdrawing partner’s capital account “by 500% of the average fees billed by the firm to clients who transfer to the withdrawing partner within 24 … Read More
Dubai’s DIFC Announces Amendment of Arbitration Law to Accord with New York Convention
Canada and UAE – New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards In 2006, United Arab Emirates joined 137 other nations in acceding to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the so-called 1958 New York Convention). Canada acceded to the New York Convention in 1986 declaring that it would apply the Convention only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in the case of the Province of Quebec where the law did not provide for such limitation. In Ontario, it found its way into the International Commercial Arbitration Act, RSO 1990, c I.9 to the extent it is contained in the UNCITRAL Model Law, a schedule thereto. Respect of Arbitration Agreements under the New York Convention By Article II (3) of the New York Convention “The court of a Contracting State, when seized of … Read More
Gilbertson Davis Lawyer Represents Defence Bar in Ontario Trial Lawyers’ Standards Consultation
The Ontario Trial Lawyers Association (OTLA), the voice of plaintiffs’ personal injury lawyers in Ontario, is undergoing a process to develop best practices within its membership. This bold and commendable initiative, tentatively titled “Standards of Excellence for Conduct,” is intended to advance the interests of accident victims, by promoting better service and access to justice. Once OTLA’s review has been completed, the defence bar should also examine ways in which its members can contribute to more collegial and efficient civil litigation. Gilbertson Davis LLP’s partner Lee Akazaki has been appointed by the Canadian Defence Lawyers (CDL) to represent the defence bar in OTLA’s consultations as it develops this model code. As such, Lee has surveyed the CDL membership in Ontario and has started reviewing responses. At this point, the following themes have appeared as areas where interaction between plaintiff and defence counsel can be improved, in the interests of their respective clients: timely responses … Read More
Court Declines to Grant Summary Judgment, But Orders “Summary Trial”
Kristensen v. Schisler is another decision on the heels of Hryniak v. Mauldin, the Supreme Court case promoting better access to justice through summary judgment. This case was for professional negligence and battery. The Plaintiff claimed against the Defendants, a dentist and an oral surgeon, for removing his tooth without consent. The Judge considered the new test set out by the Supreme Court in Hryniak v. Mauldin, stating that “The overarching question to be answered is ‘whether summary judgment will provide a fair and just adjudication’.” The Judge concluded that he could not grant summary judgment. He stated that more evidence was necessary to “do justice between the parties” because: 1) the case turned on credibility, the Plaintiff’s in particular; the Plaintiff denied consenting to the tooth removal, even though the Defendants’ records suggested otherwise. If the Plaintiff were to be found highly credible (presumably after in-court cross-examination), his evidence might “trump” … Read More
30 Day Time Limit to Appeal Arbitration Award
The Ontario Court of Appeal decision in R & G Draper Farms (Keswick) Ltd. v. 1758691 Ontario Inc., 2014 ONCA 278, involved a dispute between two Ontario-based farming businesses over the purchase and sale of carrots and carrot chunks. The parties agreed to resolve the dispute through arbitration in accordance with The Fruit and Vegetable Dispute Resolution Corporation (“DRC”) arbitration rules. The arbitrator awarded damages to the respondent. The issue arose when the appellant applied to the Superior Court of Justice to set aside the arbitration award approximately two and a half months later. The Arbitration Act, 1991 (the “Act”) provides for a thirty day time period to appeal the arbitration award while the International Commercial Arbitration Act (the “ICAA”) provides for a longer three month time period. Unfortunately, the DRC rules are silent in respect to which arbitration act may apply. Under s. 2(1) of the Act, the Act applied unless the application of the Act was excluded by law, or the arbitration was … Read More
Welcome to the Gilbertson Davis LLP Blog!
The expansion of our commercial litigation practice and the broadening of our traditional insurance defense and insurance litigation practice, together with the further development of our website, make it a perfect time for us to launch this blog. Many of our lawyers are seasoned legal bloggers and some have their own legal blogs, but we present here at the Gilbertson Davis LLP blog a place where the diverse interests of our lawyers in the development of the laws of Ontario and Canada can be expressed. We invite you to visit the News and Events page of our website – which describes some of the longer articles and publications our lawyers have authored. The posts on this this are intended to be brief informational articles on recent developments in the law of Ontario and Canada. They are short summaries of recent cases and legislation which are of interest to our lawyers and we … Read More
Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications
On March 26, 2014, David Alderson, lawyer with Gilbertson Davis LLP was the Chair / Moderator of Osgoode Hall Law School’s webinar entitled Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications. The panelists were the Honourable Justice David M. Brown, Superior Court of Justice (Ontario), Professor Janet Walker, Osgoode Hall Law School and Cynthia B. Kuehl, Lerners LLP. A link to the agenda of the Osgoode PD Webinar Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications is here. David Alderson was one of the counsel for the successful respondents in the Supreme Court of Canada. The related Gilbertson Davis LLP Practice Area is described here.