In the arbitration preceding the Ontario Superior Court of Justice (“OSCJ”) decision, Optiva Inc. v, Tbaytel, 2021 ONSC 2929 (CanLII), the respondent successfully brought a motion for summary judgment before a sole arbitrator. The applicant then appealed the arbitrator’s award to the OSCJ, arguing, among other things, that the arbitrator could not, absent consent of the applicant, proceed by way of summary judgment. The OSCJ disagreed with the respondent’s position, instead affirming that the “arbitrator could elect to proceed by summary judgment absent the consent of [the applicant]”. The court cited, as authority for its conclusion, section 20(1) of the Arbitration Act, which states: 20 (1) The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act. The OSCJ opined that “summary judgment should be available to the parties in an arbitration subject to the requirement” that the process: Allows the arbitrator to … Read More
Motion by Arbitrator | Application by Arbitrator | Procedure Arbitration
TorontoArbitrator.com Sole Arbitrator – from $450.00 per hour, plus HST Access to Justice Parties Agree That Motions & Applications be Heard and Determined by an Arbitrator Lawyers are already doing this to address the needs of their clients in existing civil and commercial litigation in the courts. The courts in Ontario continue to address access to justice in the time of the coronavirus, providing a triage process to determine which matters are considered urgent and should be heard. Video conference arrangements in the courts have evolved. We are mindful that both criminal and family law matters are likely to take priority both now and when traditional hearings become available post-coronavirus. Due to the current difficulty in obtaining an early date for the hearing of a motion or of an application, commercial and civil litigation lawyers are proactively addressing their client’s needs by arbitrating motions and application. They agree to do … Read More
Recognition of Foreign Judgments – Supreme Court Leaves Determination of Enforceability of “Ricochet Judgments” for another day – Update on Previous Blog
This is an update on our blog, Recognition of Foreign Judgments – The Ontario Courts will not Recognize Enforcement Orders (a.k.a. “Ricochet Judgments”), regarding the Superior Court decision in H.M.B. Holdings Ltd. v. Attorney General of Antigua and Barbuda, 2021 ONSC 2307 (CanLII). That decision has been appealed up to the Supreme Court of Canada (“SCC”), which has now also rendered its decision. In dismissing the appeal, the SCC agreed with the application judge, and with the Court of Appeal, that Ontario’s Reciprocal Enforcement of Judgments Act (the “Act”) bars the plaintiff (appellant) from registering a default judgment that it obtained in British Columbia to enforce a judgment granted by the Judicial Committee of the Privy Council. The SCC advised that the Act only applies to (1) reciprocating jurisdictions, such as British Columbia, and (2) judgments or orders of a court in a civil proceeding where a sum of money … Read More
Purchaser Breached Agreement of Purchase and Sale? Damages Awards and Importance of Mitigation
In the Court of Appeal’s (“ONCA”) recent decision Tribute (Springwater) Limited v. Atif, 2021 ONCA 463 (CanLII) the ONCA clarifies the law regarding damages and mitigation in cases involving aborted real estate transactions. This decision involves an appeal from a summary judgment granting the plaintiff seller damages for the defendant purchaser’s failure to close a residential real estate transaction. Damages The ONCA advises that damages in a failed real estate transaction are generally determined “based on the difference between the agreed sale price under the parties’ agreement of purchase and sale and the market value of the property at the date set for closing”. Depending on context, a court may choose a different date, other than the date for closing. There may also be other damages, such as carrying costs and other expenses incurred by the plaintiff while holding the property for a subsequent sale. Mitigation The ONCA states that … Read More
Aborting A Real Estate Deal Can Have Major Consequences
A recent Court of Appeal ruling illustrates the severe consequences that can flow from aborting a real estate transaction. In the decision of Joo v. Tran, 2021 ONCA 107, the Court of Appeal declined to give effect to a term that was included in an agreement of purchase and sale (APS), on the basis that such an interpretation of the clause would have resulted in an absurdity. The clause indicated that the vendors would discharge any encumbrances on or before closing, either through sale proceeds or by way of a solicitor’s undertaking, which term was included in Schedule A of the APS. The decision arose from the appeal of a ruling on a summary judgment motion brought by the seller, who sued the purchaser in a real estate transaction for breach of contract, after the purchaser expressing concerns regarding utility easements on the property, aborted the real estate transaction. The … Read More
Defamation Lawyers and the Inference of Publication
In our blog Toronto Defamation Lawyers – Libel and Slander Law in Ontario, we suggest that in order to be successful on a defamation claim, one would have to prove that the allegedly defamatory publication was “published”, among other things. The court of appeal has provided some clarity on what it means to “publish” defamatory content. In Zoutman v. Graham, 2020 ONCA 767 (CanLII), the court contends on an appeal from a summary judgment motion, that a defamation claim requires proof that the “words were communicated to at least one person other than the plaintiff”. On the original summary judgment motion, the motions judge acknowledged that there was no evidence that the allegedly defamatory postings were viewed by anyone other than the parties and their lawyers. However, the motions judge drew an “inference of publication” from the totality of the circumstances. In drawing the inference of publication, the motions judge … 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
Toronto Lawyers for Large Debt Collection and Enforcement of Foreign and Local Judgments and Awards
Domestic and, US and Other Foreign Debt, Judgments and Awards We are often consulted or retained in connection with recovery of large local debt or foreign debt, including casino debt, or to seek recognition and enforcement in Ontario, Canada, of judgments, orders, or arbitration awards obtained in Ontario, other provinces of Canada, US and other foreign jurisdictions. We are sometimes retained to work with the assistance of lawyers practicing debt recovery in other jurisdictions, including, those located offshore. Claims on Loan Guarantee We can advise and represent those claiming payment on a guarantee, and those named as guarantor of a loan. Loan or Gift? | Loan or Investment? Disputes sometimes arise when either a payment advanced or transfer is alleged to be a loan rather than a gift, or alleged to a loan rather than an investment, or vice-versa. We have relevant experience in both domestic and cross-border litigation. Injunctions and Other … Read More
Recognition of Foreign Divorces in Ontario
In Novikova v Lyzo, 2019 ONCA 821, the Ontario Court of Appeal considered the grounds in which foreign divorces are recognized in Canada. The parties in this matter are Russian citizens but after moving to Canada in 2013, became permanent residents of Canada. The Appellant, Mr. Lyzo, returned to Russian and started divorce proceedings in February 2016, while Ms. Novikova stayed in Canada. In October 2016, Ms. Novikova commenced family law proceedings in the Ontario Superior Court of Justice. Mr. Lyzo obtained a divorce from Ms. Novikova on June 8, 2016 in Russia. Ms. Novikova did not receive the notice of the divorce application as these letters were sent to her parent’s address in Russia. Ms. Novikova also did not receive a copy of the divorce order within the appeal period. Mr. Lyzo brought a motion for summary judgement to have the Russian divorce recognized and to dismiss Ms. Novikova’s … Read More
Part Two – Timing is Everything in Real Estate Agreements of Purchase and Sale
I had written a previous blog on the “time is of the essence” clause in real estate agreements where it was discussed that the strict adherence to any agreed upon time limits was generally the case. A recent Ontario Court of Appeal case, Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc., serves as a reminder that the “time is of the essence” clause is not absolute and unfettered, and there are preconditions that must be satisfied for a party to rely upon and insist on time being of the essence. The facts are not overly complicated in this case. The respondent was a condominium developer in the process of acquiring properties for a proposed project in downtown Toronto. The developer entered into an Agreement of Purchase and Sale (“APS”) with the vendor to acquire the subject property. Although the APS required the vendor to provide estoppel certificates five days prior … Read More
Partnership Disputes – Dentists, Doctors, Accountants, Lawyers, Architects and 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 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 on … Read More
Fork In the Road: Critical Considerations by Condominium Corporations in Anticipatory Failed Closings
In 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, the purchasers, Ottawa Medical Square Group, entered into an Agreement for Purchase and Sale to purchase condominium units owned by the vendor, 1179 Hunt Club Inc. The value of the commercial condominium units in the Hunt Club Project was $5.6 million dollars. Five days before closing, the purchasers, sent a request to the vendor, requesting an extension of time as the purchasers had not yet finalized their arrangements for financing. Three days before closing, the vendor advised that it would insist on closing, and if the purchaser could not close, it would exercise its rights and remedies under the Agreement for Purchase and Sale. On the date of closing, the vendor learned that the Land Registry Office had made an error in assigning parcel identification numbers. Although this error was ameliorated later that day, this mishap, prevented … Read More
Guidance from the Court – Procedure to Resolve Mortgage Discharge Issues under the Mortgages Act and the Rules of Civil Procedure
In Sub-Prime Mortgage Corporation v. 1219076 Ontario Limited, 2019 ONCA 581, the Ontario Court of Appeal was asked to determine, the proper procedure to discharge a mortgage or contest the discharge of a mortgage, under the Mortgages Act, and the Rules of Civil Procedure. In the lower court decision, Sub-Prime Mortgage Corporation (“Sub Prime”), the second mortgagee, issued two urgent applications against 1219076 Ontario Limited (“121”), the first mortgagee, to obtain an immediate discharge of two mortgages on two properties placed by 121, by paying money into court, pending further court orders, or a resolution between the parties, at para 1. In its application, Sub-Prime did not specifically seek an order determining the balance owing for each mortgage. To support its application, Sub-Prime cited and relied on section 12(3), 12(9) and 22 of the Mortgages Act, R.S.O. and Rule 14.05(a), (d), and (e) of the Rules of Civil Procedure, at para … Read More
24 the New 36? Court of Appeal Reaffirms Presumptive Ceiling in Reasonable Notice Case
In Dawe v. The Equitable Life Insurance Company of Canada, the Ontario Court of Appeal held that, absent exceptional circumstances, the presumptive ceiling for reasonable notice is 24 months. In Dawe, the plaintiff was a Senior Vice President of an insurance company and was terminated after 37 years of employment without cause, following a minor dispute relating to the purchase and use of promotional sporting event tickets. As a result, the plaintiff sued his employer for wrongful dismissal. Both the plaintiff and his employer moved for partial summary judgment on two issues: (1) the calculation of the proper notice period, and (2) the plaintiff’s entitlement to his employer’s bonus plan, at para 4. The plaintiff was successful on the motion for partial summary judgment and the motion judge determined that 30 months was the appropriate notice period and that the plaintiff was entitled to his bonus during this period. In … Read More
Obiter or Not? A Refresher from the Ontario Court of Appeal
The recent case of The Catalyst Capital Group Inc. v VimpelCom Ltd., 2019 ONCA 354 [Catalyst], serves as a reminder that a court’s finding will not be considered obiter simply because there was another sufficient basis for the court’s decision. The Rule of Precedent The rule of precedent requires that courts render decisions that are consistent with the previous decisions of higher courts [Canada (AG) v Bedford, 2012 ONCA 186]. There are several well-known rationales for the rule: it promotes consistency, certainty and practicability in the law, sound judicial administration, and it enhances the legitimacy and acceptability of the common law [David Polowin Real Estate Ltd. v Dominion of Canada General Insurance Co., 2005 ONCA 21093]. Ratio vs Obiter The traditional dichotomy of ratio decidendi (“ratio”) and obiter dicta (“obiter”) is important for the scope of the rule. Only the ratio is binding on a subsequent court. Ratio refers to … Read More
Arbitration Clauses Enforced as Non-Consumers Ejected from Telus Class Action by Supreme Court of Canada
In Telus Communications Inc. v Wellman, 2019 SCC 19, the Supreme Court of Canada has favoured arbitration clauses in staying the claims of non-consumers in a class action against TELUS. The Court’s decision reflects a continued commitment of courts to taking a hands-off approach in upholding valid arbitration agreements, while its citation of the Ontario Court of Appeal’s Uber decision indicates that other routes – such as unconscionability – may be pursued to challenge specific arbitration clauses. Facts A proposed class action was filed in Ontario alleging that TELUS had for a number of years rounded up calls to the next minute without telling customers. The class included both consumers and non-consumers (business customers). Each individually agreed to the same non-negotiable standard form contract. The contract included an arbitration clause requiring all disputes (other than collection of accounts by TELUS) to be mediated, and failing that, arbitrated. Ontario’s Consumer Protection … Read More
Ontario Court of Appeal: There is No Common Law Tort of Harassment
Merrifield v Canada (Attorney General), 2019 ONCA 205 is the first case in which a Canadian appellate court has been required to determine whether a common law tort of harassment exists. The Ontario Court of Appeal has decided that it does not. Ontario Superior Court of Justice Relying on four trial-level decisions, the trial judge held that the tort of harassment exists as a cause-of-action in Ontario and that the elements of the tort are: Outrageous conduct; Intention to cause, or reckless disregard for causing, emotional distress; Suffering of severe or extreme emotional distress; and The outrageous conduct is the actual and proximate cause of the emotional distress. Ontario Court of Appeal The Ontario Court of Appeal held that, in sum, the four trial-level decisions assume rather than establish the existence of the tort or its elements. Contrasting the case at bar with Jones v Tsige, which recognized a new … Read More