The recent Ontario Superior Court of Justice decision in 2337310 Ontario Inc. v. 2264145 Ontario Inc., 2014 ONSC 4370, addressed a partial summary judgment motion brought by the franchisee of a cafe seeking a declaration that it was entitled to exercise its right of rescission under the Arthur Wishart Act (Franchise Disclosure), 2000 (“the Act”). The franchisee sought to rescind the franchise agreement approximately six months after entering into the agreement by arguing that the disclosure document provided by the franchisor was so deficient that it amounted to receving no disclosure at all. In contrast, the franchisor argued that the franchisee was provided with disclosure as required under the Act, and the franchisee was simply attempting to resile from a bona fide transaction due to its own incompetence and inability to operate the business successfully. The Court found a number of deficiencies in the disclosure provided by the franchisor, including failure to provide: (1) … Read More
Arbitration and Enigma: Why it’s better when made up
Getting beyond First Principles Apart from taking part in arbitrations, attending seminars presented by arbitrators and arbitration practitioners, and reading articles, opportunities to learn about arbitration are few and far between. Expose yourself to enough of these sources, and you will find the topics recurring with greater frequency than in other areas of legal practice. Much of it hovers over first principles, although I do not mean to belittle the subject. The basic structure and formulation of arbitrations can involve thinking at a high level. Subjects such as conflicts of interest and bias, avoidance of advocate-arbitrators on panels, and other process topics are tough to grasp because there is no fixed body of practice. Thus, any dialogue about teaching arbitration must acknowledge the following truths: Unlike public court or arbitration decisions, private arbitral awards are not usually published unless there is an appeal or judicial review application to a public … Read More
Partial Summary Judgment Granted for Rescission of Franchise Agreement
In the recent Ontario Superior Court of Justice decision in 2147191 Ontario Inc. v. Springdale Pizza Depot Ltd., the plaintiffs brought a partial summary judgment motion seeking to rescind a franchise agreement under the Arthur Wishart Act (Franchise Disclosure), 2000 (the “Act”). After purchasing the business from an existing franchisee, the plaintiffs alleged that they were entitled to receive disclosure from the franchisor but the disclosure received was so materially deficient that it amounted to no disclosure at all. As a result, the plaintiffs claimed that they were entitled to rescind the franchise agreement within two years of entering into the franchise agreement. The defendant franchisor argued that it was not required to provide disclosure to the plaintiffs due to its minimal involvement in the sale transaction, or in the alternative, it provided satisfactory if imperfect disclosure which would only entitle the plaintiffs to rescind the franchise agreement within sixty days of receiving the disclosure documents (which had elapsed). Under subsections 5(7) and 5(8) … Read More
Gilbertson Davis lawyer represents defence bar in OTLA Standard of Excellence for Conduct Project
During the month of April, 2014, Canadian Defence Lawyers (CDL, Canada’s voice of civil litigation defence lawyers) surveyed its Ontario membership in order to identify areas of unnecessary conflict between plaintiff and defence lawyers in personal injury litigation. CDL will be participating as a stakeholder in a consultation by the Ontario Trial Lawyers Association (OTLA, Ontario’s leading association of plaintiff-side personal injury lawyers) in its campaign to improve standards and civility in personal injury litigation. CDL Board member and Gilbertson Davis LLP lawyer Lee Akazaki has been asked to represent the defence bar in this worthwhile project. OTLA has embarked on this project after recognizing that professional lapses are an impediment to client service. Because of the pool of lawyers surveyed, respondents were more likely to complain about plaintiffs lawyers than fellow defence lawyers. Nevertheless, we intentionally inserted a third question in order to elicit constructive self-criticism. That OTLA has … Read More
Judge scolds feuding neighbours, refuses to grant legal remedies
Nasty and obnoxious rich people are “also” entitled to their day in court. If they cannot resolve their differences, the court is there to resolve it if the law provides a civil remedy, so that it does not escalate into criminal harassment or violence. It is not the duty of the judge to make fun of the litigants, and the cause of the rule of law is not advanced by doing so. In Morland-Jones v. Taerk, the Superior Court judge was not right to turn the litigants away in a derisive manner. From the perspective of the exercise of the public role of the court in explaining the law and diffusing conflict among citizens, the ruling can be criticized in three significant ways: The public was left guessing the precise relief the plaintiffs were seeking and the applicable procedural law, so as to leave the legal analysis a mystery. The court’s message … Read More
German Arbitral Award Recognized and Enforced by Ontario Court
The Ontario Court of Appeal recently released its endorsement in Alfred Wegener Institute v. ALCI Aviation Ltd., 2014 ONCA 398, upholding an order from the application judge that a German arbitral award be recognized and enforced in Ontario as if it were a judgment or order of the Ontario Superior Court of Justice. After the appellants failed to appear at the German arbitration and the Ontario application to enforce the German arbitral award, the appellants finally responded by bringing this appeal based on a technical argument under Article 35(2) of the International Commercial Arbitration Act, R.S.O. 1990, c. I.9, which required the party relying on the foreign arbitral award to supply a certified copy of the original award to the application judge. The appellants argued that the translation of the arbitral award before the application judge was not a duly certified copy. The Court of Appeal rejected the appellant’s argument and held that the application judge could properly find that the arbitral award met … Read More
Motion to Set Aside Default Judgment Denied in Internet Defamation Case
The Ontario Superior Court of Justice in Busseri v. Doe, 2014 ONSC 819, dealt with the defendant’s motion to set aside default judgment against him in an internet defamation case. The plaintiff brought the underlying defamation action after discovering numerous posts by the defendant on a stock-related online public forum called stockhouse.com. Although the defendant was provided adequate notice of the lawsuit and the subsequent motion for an interim injunction against posting further defamatory statements, the defendant did not take any steps to defend in any way until it became clear that the default judgment ($200,000 + costs) would be enforced in the defendant’s jurisdiction. In considering a motion to set to aside default judgment, the Court must consider the following factors: (1) whether the motion to set aside the default judgment was brought without delay after the moving party learned of the default judgment; (2) whether the circumstances giving rise to the default judgment have been adequately explained; and (3) whether the moving party has an … Read More
Civil Fraud Lawsuit Dismissed on Summary Judgment Motion
In Danos v. BMW Group Financial Services Canada, 2014 ONSC 2060, the Ontario Superior Court of Justice dealt with a summary judgment motion brought by the defendants to dismiss the plaintiffs’ claims that it forged their signatures on car leasing documents. The plaintiffs had leased a luxury car from the defendants but failed to keep up with the lease payments. The defendants took steps to repossess the car and commenced an action to recover its losses. After receiving the defendants’ productions, the plaintiffs’ allegedly discovered that their signatures were forged on a number of leasing documents, and commenced a fresh action claiming damages arising from the alleged fraud. The defendants brought a summary judgment motion to dismiss the action. The Supreme Court of Canada in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, recently summarized the elements of the tort of civil fraud as follows: (1) a false representation made by the defendants; (2) some level of knowledge of the falsehood of the … Read More
Court Dismisses Motion For Forum Non Conveniens
In Central Sun Mining Inc. v. Vector Engineering Inc., 2014 ONSC 1849, the Ontario Superior Court of Justice addressed the moving defendants’ motion to dismiss or stay the action on the basis that Ontario was not the convenient forum to hear this action for damages arising from a landslide in Costa Rica. The moving defendants argued that the claims were based on acts or omissions that occurred in Costa Rica and in the United States, most of the parties and witnesses lived outside Ontario and the evidence was located outside Ontario. Following on the Supreme Court of Canada decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, the burden of proof is on the party raising the forum non conveniens issue to show that another forum is in a better position to dispose fairly and efficiently of the litigation, and that another forum is clearly more appropriate than Ontario. The following factors may be considered in … Read More
Evicted Tenant Granted Relief From Forfeiture in Commercial Lease Case
In Kristen Lee Nesbitt v. RJH Reinsurance Services Inc., 2014 ONSC 2643, the landlord evicted the tenant due to alleged unpaid rent, realty taxes, water bills and arrears on a demand loan for leasehold improvements. The tenant applied to the Court for relief from forfeiture (e.g. possession of the premises) under the Commercial Tenancies Act, R.S.O. 1990, c. L.7, in order to continue operating its restaurant business on the premises. Since relief from forfeiture is an equitable remedy, the Court must consider the proceedings and the conduct of the parties under the circumstances, and any such terms as to payment of rent, costs, expenses, damages, compensation, penalty or the granting of an injunction to restrain any similar breach in the future. Justice Morgan found that the tenant did not appear to come to the Court with “unclean hands” as the dispute was regarding an accounting issue and the terms of the lease agreement, and it was not equitable to put the tenant out of business … Read More
Insurance Fraud: See No Evil & Pay The Piper
With Thompson’s World Insurance News reporting (May 5, 2014) that Aviva detected over C$202.84m in insurance fraud in 2013–a 19% increase over 2012–over 45 claims a day (C$553,370) it is clear that one of the world’s oldest professions must be taken increasingly seriously by insurance claims executives. Fraudsters have historically viewed insurance fraud as a relatively low risk way of building a career in criminality. Fearful of investigation and defense costs, and of punitive damages verdicts where a defense does not succeed, many insurers have often paid claims they believe to be fraudulent. It is hard to scope out the true cost of fraud unless adequate resources are devoted to the task: you don’t find what you do not actively and aggressively pursue. With Insurance Bureau of Canada estimates of insurance fraud in Canada north of $500 million a year, the cost of inaction is clear. Cost/Benefit analyses solely focused on a case by … Read More
Court Grants Summary Judgment in Employment Dispute
In Gregory Smith v. Diversity Technologies Corporation, the Plaintiff employee was terminated by the Defendant company for cause. The Defendant stated that the Plaintiff had made a sale to a customer despite being specifically instructed not to do so, and that the order disrupted the Defendant’s production process. The Plaintiff denied that he had been instructed not to sell to the customer. The Defendant argued that a Trial was necessary to resolve the credibility issues. The Judge disagreed, and, following the Supreme Court’s recent decision in Hyrniak v. Mauldin, stated that there was sufficient documentary evidence to allow the court to carry out a fair and just adjudication of the dispute. The Judge stated that she would consider the Defendant’s case “at its highest and best”, and set aside the credibility issues. She stated that even if the Plaintiff had disregarded the Defendant’s instructions not to sell to the customer, it was … Read More
Scooter Wars – Defamation Strikes Back
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