Tianjin v. Xu, 2019 ONSC 628 (CanLII) involved an application under the International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (the “Act”) for an order recognizing and making enforceable in Ontario an arbitral award of the Chinese International Economic and Trade Arbitration Commission (“CIETAC”). Respondent’s Defences The respondent argued that the arbitration award should not be enforced in Ontario because: Service: The respondent did not receive notice of the arbitral proceeding or the appointment of arbitrators; and Jurisdiction: The Ontario Superior Court of Justice did not have jurisdiction to enforce the arbitral award because the arbitration was not an “international commercial arbitration”. Service The court found that there is no requirement that service of notice of the arbitral proceedings or of appointment of arbitrators be effected in accordance with the CIETAC Rules. Rather, the court opined that the respondent was given “proper notice” of the proceedings and … Read More
Internet Harassment: New Tort Recognized in Ontario
Following up on our previous blog in which we advise that the Ontario Court of Appeal decided that there is no common law tort of harassment, the Ontario Superior Court of Justice has now recognized the new tort of online harassment. In the recent decision, Caplan v. Atas, 2021 ONSC 670 (CanLII), the court recognized the inadequacies in the current legal system’s responses to internet defamation and harassment matters. The court opines that while defamation law and freedom of speech have created a balance in society which promotes both free democratic debate and protection of one’s reputation simultaneously, the internet has “cast that balance into disarray”. Recognition of the New Tort of Harassment The difficulty in the cases before the court was that the defendant was not deterred from further egregious conduct even in the face of multiple severe consequences. The defendant was also impecunious, so compensation was not a … Read More
B.C. Court Claims Jurisdiction over International Online Defamation Case
This blog post is further to our blog on the Supreme Court of Canada (“SCC”) decision in Haaretz.com v. Goldhar, 2018 SCC 28 (CanLII) (“Haaretz”) wherein the SCC opined that Israel was a more convenient forum for an online defamation claim brought by the plaintiff in Ontario (even though the SCC recognized that Ontario had jurisdiction over the matter). The SCC considered a number of factors in its decision (all outlined in our blog). In the recent Supreme Court of British Columbia (“BCSC”) decision, Giustra v Twitter, Inc., 2021 BCSC 54 (CanLII) (“Giustra”), the BCSC confirmed that even where jurisdiction is found, a court can decline to exercise its jurisdiction under the principle that its court is not the most convenient forum for the hearing of the dispute (largely following the tenets laid out in Haaretz). The court in Giustra cited Haaretz in pointing out that the applicable law in … Read More
Commercial Mediator, David Alderson, LL.B, LL.M (Commercial and Corporate)
David Alderson is a Commercial Mediator: Hourly Rate: $550.00 per hour, plus facilities and applicable taxes. Daily Rates and Half-day Rates available. Language: English Commercial Mediator – Approach to Resolving Disputes David Alderson seeks to be a resolver, an effective mediator, by being an interactive listener, a facilitator of communications and negotiation, and when the parties to a dispute require it, a neutral evaluator. With over 40 years of practice as a lawyer in a very wide variety of business, commercial, trade, property, distribution and franchise, technology, employment, reinsurance and marine disputes, both in local and international practices, David brings to the mediation a broad competence in facilitating the process, assisting parties to articulate their interests and to define the issues, and in subject matter neutral evaluation. He is equally at home in the context of complex, multi-party, and two-party single-issue disputes. He is confident about the mediation process and considers that … Read More
The Ontario Commercial Mediation Act, 2010 (Blog Part III)
David Alderson is a Commercial Mediator: Hourly Rates: $550.00 to $475.00 per hour (depending on amount of the claims), plus facilities and applicable taxes. Daily Rates and Half-day Rates available. Language: English The Ontario Commercial Mediation Act, 2010 (Blog Part III) This blog post (Part III) consider the provisions of the Ontario Commercial Mediation Act 2010, S.O. 2010, c.16, Sch. 3 (the “Act”) concerning settlement agreements, enforcement of settlement, application of the Ontario Rules of Civil Procedure, judgments, orders, the effect of filing the agreement, and enforcement of mediator’s fee. Earlier blog posts: (Part II) considers the provisions of the Act not included in an earlier blog post (Part I) or the subsequent blog post (Part III), including the mediator’s authority, prohibition of disclosure between parties, confidentiality, admissibility, and the relationship to arbitration and judicial proceedings. (Part I) considers the provisions of the Act concerning the application of that legislation, definitions contained … Read More
The Ontario Commercial Mediation Act, 2010 (Blog Part II)
David Alderson is a Commercial Mediator: Hourly Rates: $550.00 to $475.00 per hour (depending on amount of the claims), plus facilities and applicable taxes. Daily Rates and Half-day Rates available. The Ontario Commercial Mediation Act, 2010 (Blog Part II) This blog post (Part II) considers provisions of the Ontario Commercial Mediation Act 2010, S.O. 2010, c.16, Sch. 3 (the “Act”) not included in an earlier blog post (Part I) or the subsequent blog post (Part III), including the mediator’s authority, prohibition of disclosure between parties, confidentiality, admissibility, and the relationship to arbitration and judicial proceedings. An earlier blog post (Part I) considers the provisions of the Act concerning the application of the legislation, definitions contained in the Act, its interpretation, commencement and termination of the mediation, and the appointment of the mediator, duty of disclosure, and conduct of the mediation. A subsequent blog post (Part III) will consider the provisions of … Read More
The Ontario Commercial Mediation Act, 2010 (Blog Part I)
David Alderson is a Commercial Mediator: Hourly Rates: $550.00 to $475.00 per hour (depending on amount of the claims), plus facilities and applicable taxes. Daily Rates and Half-day Rates available. The Ontario Commercial Mediation Act, 2010 (Blog Part I) This blog post (Part I) considers the provisions of the Ontario Commercial Mediation Act 2010, S.O. 2010, c.16, Sch. 3, concerning the application of that legislation, definitions contained in the Act, its interpretation, commencement and termination of the mediation, and the appointment of the mediator, duty of disclosure, and conduct of the mediation. Further blog posts on the Act: (Part II) – will consider other provisions of the Act, including the mediator’s authority, disclosure between parties, confidentiality, admissibility, and the relationship to arbitration and judicial proceedings. (Part III) – will consider other provisions of the Act concerning settlement agreements, enforcement of settlement, application of the Ontario Rules of Civil Procedure, judgments, orders, … Read More
It’s not all about Intent! – Court of Appeal Confirms Test for Civil Conspiracy
In the recent decision Mughal v. Bama Inc., 2020 ONCA 704 (CanLII), the Court of Appeal upheld a lower court decision in an action alleging civil conspiracy, among other things. The underlying action involved a plaintiff seeking the return of his investment in a corporation. On appeal, it was alleged that the trial judge applied the wrong legal test for and misapprehended the evidence to find commission of the tort of conspiracy to injure. The appellate court concluded that the trial judge applied the correct test for establishing civil conspiracy to injure as follows: Whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or, Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury … Read More
Limitation Periods in Family Law
A limitation period is the amount of time within which the law permits one to bring a legal claim or action. Claims started after a limitation period has ended can be barred. Under the Limitations Act, there is a general two-year limitation period. In family law there are several different limitation periods that prospective and current family law clients should be aware of. Under the Family Law Act, married spouses may make a claim for equalization of net family property within the earliest of (a) two years after the marriage is terminated by divorce or judgement of nullity; (b) six years after the spouses separate and there is no reasonable prospect that they resume cohabitation; or (c) six months after the first spouse’s death. The court may extend the limitation period for bringing an equalization claim, if it is satisfied that (a) there are apparent grounds of relief; (b) relief … Read More
Do it, Don’t Just Say it! Court of Appeal refuses to Rule on Arbitration Clause
On a recent motion before the Court of Appeal in Paulpillai Estate v. Yusuf, 2020 ONCA 655 (CanLII), Jamal J.A. clarifies that a party needs to bring a motion if it wants the proceeding to be referred to arbitration. In the underlying decision, Paulpillai v. Yusuf, 2020 ONSC 851 (CanLII), the motion judge noted that the responding parties “have maintained in their affidavit evidence that the matter should have proceeded by way of arbitration, but at no time did they bring a motion seeking to stay these proceedings or to compel the Applicants to proceed by way of arbitration”. Accordingly, the motion judge found that the responding parties have waived their right to seek to have the issues in the action determined by way of arbitration. In agreement with the motion judge, Jamal J.A., writing for the Court of Appeal, clarifies that, even though (a) there was an arbitration clause … Read More
Expedited Arbitration by Toronto Arbitrators | Fast Track Arbitration | Simplified Arbitration
This post may be of interest to those looking for a quick, efficient, time-sensitive and less expensive way to arbitrate a dispute. On July 24, 2020, the 77th Session of the United Nations Commission on International Trade Law, (UNCITRAL) Working Group II (Dispute Settlement) published its draft Expedited Arbitration Provisions. Before that, the Secretariat was requested to collect information on the different roles undertaken by arbitral institutions in administering expedited arbitration. Accordingly, the Secretariat circulated a questionnaire to arbitration institutions and related organizations on 26 April 2019 and received responses from 18 institutions as of 29 July 2019. The arbitral institutions administering expedited arbitration that responded were these: Vienna International Arbitral Centre, Construction Industry Arbitration Council, Russian Arbitration Center, Milan Chamber of Arbitration, London Court of International Arbitration, Georgian International Arbitration Centre, Arbitration Institute of the Stockholm Chamber of Commerce, International Centre for Alternative Dispute Resolution, China International Economic and Trade Arbitration Commission, … Read More
Can The Condo Corporation Register A Lien On My Condo Unit?
A recent Divisional Court decision, Amlani v. YCC 473, 2020 ONSC 5090, confirmed that there are two separate ways to register a condo lien depending on whether the amount is related to common expenses (or “condo fees”), or related to compliance and enforcement expenses. A condo lien may be registered without a court order when the condo corporation seeks to recover unpaid condo fees. However, condo corporations are generally required to obtain a court order to register a lien when seeking to recover legal fees and expenses incurred for compliance and enforcement matters. Background The condo owner, a smoker for 56 years, purchased the unit after confirming that smoking was allowed in the building. A few years later, the neighbour complained about the smell of smoke but the issue was resolved after the condo corporation sealed certain openings at its own cost. When new complaints about the smell of smoke … Read More
Nick Poon Comments on Anti-Black Racism in Commercial Lease Dispute for The Lawyer’s Daily
Nick Poon was recently asked by The Lawyer’s Daily to comment on the Ontario Superior Court of Justice decision in Elias Restaurant v. Keele Sheppard Plaza Inc., 2020 ONSC 5457. The Lawyer’s Daily article is found here: Court cites ‘prejudices’ to Black tenants in overturning landlord’s eviction bid. In this case, the tenant was a husband and wife team that operated a successful restaurant/bar offering African and Caribbean cultural foods primarily to the black community. The tenant had spent $150,000 in leasehold improvements when it took over the lease in 2013. The lease included two further five-year renewal options, upon delivery of written notice at least six months before the lease expired. Although the tenant attempted to contact the landlord, both before and after the notice deadline, to start the renewal process, the landlord appeared to have avoided its telephone calls. The tenant brought an application for relief from forfeiture … Read More
Arbitration Without an Arbitration Clause | When Can I Arbitrate?
When Is Arbitration Available? An agreement to refer or submit disputes to arbitration may be made before a dispute arises or after a dispute has arisen. Arbitration Clause and Standalone Agreement to Submit Disputes to Arbitration An agreement to arbitrate typically appears as an arbitration clause in a contract in relation to which a dispute has arisen. However, resolving disputes by arbitration may be possible even if the parties have not included an arbitration clause in the contract – if they agree to submit disputes to arbitration by a standalone arbitration agreement. This way the parties to a dispute can agree to submit a dispute to arbitration even if they did not include an arbitration clause in the contract, if any, in dispute. This option provides the parties with the advantages of arbitration as a presumptively private and confidential, efficient, faster and therefore less expensive way to resolve disputes. Statutory … Read More
Employment Arbitrator | Reasonable Fees and Good Availability
David Alderson, LL.B, LL.M, Q.Arb – Employment Arbitrator Competitive Fee Rates Offered. Sole Arbitrator – $495.00 per hour, plus HST Arbitrator Experience David Alderson is an experienced, independent and qualified arbitrator. He has been appointed as arbitrator by the Ontario Superior Court of Justice to adjudicate disputes. David accepts appointment as an employment dispute arbitrator. David is a full member of the ADR Institute of Ontario and is in its arbitrating member’s Directory of Ontario Dispute Resolution Professionals, as well being a member of the Toronto Commercial Arbitration Society, where he appears on its Roster of Member Arbitrators. His roster membership can be viewed here. He hold an LL.B (Osgoode), LL.M (Lond.) and Q.Arb (ADR Institute of Canada). David is on the newly formed Member’s Roster for Remote Arbitration and Mediation Services, for the provision of remote Arbitration in a wide variety of disputes. David has completed the Foundations in Judicial Competencies Series, and has … Read More
Online Defamation and Use of Pseudonyms
Online Defamation (“Cyber Libel”) Many of our defamation matters come from the internet. These cases take many forms, from defamatory articles, to social media posts, to negative reviews of a business or person. Courts have recognized that online defamation or “cyber libel” is far more perverse than other forms of defamation. This is because internet users can reach the global population within seconds by publishing defamatory remarks about an individual or a business. As such, cyber libel can be significantly more damaging to a person’s business and/or reputation than other forms of defamation. Posting via Online Pseudonyms Some individuals go so far as to create aliases to post malicious and defamatory comments about others on the internet. In Ontario, you can sue an anonymous defamer by naming them as “John Doe” and/or “Jane Doe” in your claim against them. There are methods to determine the identity of these anonymous defamers, … Read More
Toronto Defamation Lawyers – Libel and Slander Law in Ontario
Defamation is the tort of false publication (whether written or oral). Typically, a publication which tends to lower a person’s reputation in the opinion of reasonable members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. The major piece of legislation governing the law of defamation in Ontario is the Libel and Slander Act. According to the Act, you can be defamed in two ways: via either (1) Libel and/or (2) Slander. What is Libel? Defamatory communications may be by words, pictures, sounds, or other forms of communication. They may be published on the internet, in social media postings, on websites, online reviews, chat rooms, or in other forms of broadcast. The dissemination of such defamatory comments or communications to the public is libelous. What is Slander? Slander is the public utterance of words that are meant to disparage a person … Read More