The Ontario Superior Court of Justice (“OSCJ”) recently released its decision in Costco Wholesale Corporation v. TicketOps Corporation, 2023 ONSC 573, granting an application to enforce judgments received by the applicant from the United States District Court (Western District of Washington at Seattle) and/or the underlying arbitral awards. At the same time, the OSCJ also rejected the Respondents’ motion to convert the application into an action. Recognition of Awards With regard to the Awards, the OSCJ advises as follows: “In Ontario, foreign arbitral awards are enforceable through the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (“ICAA”). The ICAA provides that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“Convention”) has force of law in Ontario. The Convention is set out in Schedule 1 to the ICAA. The ICAA also provides that the Model Law on International Commercial Arbitration (“Model Law”) has force of law in Ontario. The Model Law is set out in Schedule 2 to the ICAA.” The OSCJ notes that the Convention and … Read More
Recognition of United States and Other Foreign Default Judgments – The Ontario Court Does Not Consider Underlying Merits!
Just over a month ago, the Ontario Superior Court of Justice (“ONSC”) in North Field Technology Ltd. v. Project Investors, Inc., 2022 ONSC 5731, recognized as orders of Ontario a default judgment and various ancillary orders that the Applicant obtained in the United States District Court, Southern District of Florida (“Florida Court”), against the Respondents. The Florida Court found that the Respondents were evading service of the legal proceedings in Florida and issued a series of judgments against the Respondents such as an asset freeze injunction and permanent injunction restraining the Respondents from transferring their assets, as well as orders for certain monetary and declaratory relief, among other orders. The ONSC validated service of the Ontario application, recognizing that the Florida Court “has already found that the respondents were avoiding service”. The ONSC also found that the Applicant has met the test for recognition and enforcement of the Florida Judgments … Read More
Entire Agreement Clause Not A Shield To Fraudulent Misrepresentation
In the recent Court of Appeal ruling of 10443204 Canada Inc. v. 2701835 Ontario Inc., 2022 ONCA 745, the Court of Appeal clarified that entire agreement clauses in contracts do not shield any representor or deprive any party to a contract from remedies available for a fraudulent misrepresentation. Background In May of 2019 the appellant Chirag Patel and his corporation 2701835 Ontario Inc. (the appellants) entered into a purchase agreement (the “APS”) with the respondent 10443204 Canada Inc. (the respondent), related to the purchase of a coin laundry business located in Brampton. The APS contained an entire agreement clause of which the relevant part indicated: “There is no representation, warranty, collateral agreement or condition, affecting this Agreement other than as expressed herein.” In accordance with amended terms to the APS concerning the purchase price the appellants made a partial payment of $100,000 on closing and the balance of the purchase … Read More
Rescission May Be Available Even If Innocent Third Parties Adversely Affected
In the recent Court of Appeal decision of Urban Mechanical Contracting Ltd. v. Zurich Insurance Company Ltd., 2022 ONCA 589, the Court of Appeal considered whether rescission is ever available as a matter of law when the rights of innocent third parties intervene and restitutio in integrum (putting the parties back to their original position) is impossible. The court answered in the affirmative. In the case the appellants brought two applications seeking a determination of whether, as a matter of law, a bond issuer can rescind a bond agreement on the basis of fraudulent misrepresentations and collusion when doing so would affect the rights of innocent parties. Background The case dealt with a public-private redevelopment project with infrastructure Ontario to build a new 17-storey patient care tower (the Project). The construction was to be financed and carried out by the private sector. The Project was subject to Ontario’s procurement process … Read More
Court Orders Removal of Fake Reviews Posted by Anonymous Reviewer
In Obsidian Group Inc. v. Google LLC, 2022 ONSC 848, the moving party brought a motion, prior to commencing its civil proceeding, for an interim injunction requiring the removal of certain messages about it posted on its Google review page by a pseudonymous reviewer. It also sought a Norwich Order (an order requiring an innocent third party to provide certain information) directing the respondent to divulge identifying information regarding the unknown reviewer. The court found that there were “strong grounds for suspecting that” the reviews are fake. The court also found that it “would not surprise anyone” given the content of the reviews that they are “causing continuous damage” to the business of the applicant. The reviews seem “designed to discourage people from ever booking a room at the hotel” of the applicant. Further, according to statistics provided by the applicant, the reviews were “accessed several thousand times since they … 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
Recognition of Foreign Judgments – The Ontario Courts will not Recognize Enforcement Orders (a.k.a. “Ricochet Judgments”)
In H.M.B. Holdings Ltd. v. Attorney General of Antigua and Barbuda, 2021 ONSC 2307, on a summary judgment motion, the Ontario Superior Court of Justice (“OSCJ”) found that there was no genuine issue requiring a trial and subsequently dismissed the plaintiff’s action (commenced on May 6, 2019) for the recognition of a money judgment that it obtained against the defendant in British Columbia in 2017 (“BC Judgment”). The BC Judgment was a default judgment recognizing and enforcing a judgment of the Privy Council of the United Kingdom which the plaintiff obtained in 2014 (“Privy Council Judgment”). The defendant argued that: The plaintiff was attempting to avoid seeking recognition and enforcement of the original Privy Council Judgment in Ontario by seeking to recognize and enforce the derivative BC Judgment instead; The plaintiff would be out of time to seek recognition of the Privy Council Judgment in Ontario (because of the expiry … Read More
Breach of Contract Lawyers – Can Contracts that do not Specify Duration or that Lack a Termination Clause be Terminated Unilaterally?
Ontario’s Court of Appeal (“ONCA”) in Conseil Scolaire Catholique Franco-Nord v. Nipissing, 2021 ONCA 544 opined on how contracts that do not specify a termination date or a procedure for termination ought to be interpreted. The ONCA grappled with the question of whether to treat a contract that was silent on the issue of termination as either (1) a perpetual contract, that does not end, or (2) a contract of indefinite duration, into which the court can imply a provision allowing for unliteral termination upon reasonable notice. Historical Approach The ONCA advised that courts used to presume that contracts which were indefinite in time were perpetual in nature. However, this approach was subsequently disregarded, and courts began to presume a right to terminate an indefinite contract by the provision of reasonable notice. New Approach The ONCA advised that even more recently, however, a contextual, fact-specific, approach has been favoured by … Read More
Shareholder’s Remedies
Shareholder Remedies Under the Ontario Business Corporations Act (“OBCA”), shareholders of a corporation have a variety of rights. Outlined below are a few rights that all shareholders should be aware they possess. Voting Rights The board of directors, under s. 115 are ultimately responsible for managing or supervising the management of the business and affairs of a corporation. Major business decisions also involve the participation of the board of directors, though sales, leases, or exchanges of all or substantially all the property of the corporation that is not in the ordinary course of business requires the approval of shareholders (s. 184(3)). Shareholders also have voting rights that allow them to control the makeup of the board of directors (s. 119(4)), and also the ability to remove directors under s. 122(1) (though this is subject to exceptions under s. 120(f)). Shareholders have additional voting rights under s. 100(2). Access to Information Rights Under s. 140(1) corporations … Read More
China International Arbitration Award Enforced by Ontario Court
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
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
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
Confidentiality, Non-Competition and Non-Solicitation Clauses In Contracts
Confidentiality, non-competition, and non-solicitation clauses often show up in a variety of business contracts including employment and executive contracts, shareholder, and director agreements, as well as, independent contractor agreements, joint venture agreements and mergers, to name a few. A question that must be considered by contracting parties to such agreements is: What is the enforceability of these types of restrictive covenants? This question particularly becomes important when parties may part ways and a breach of the clauses is suspected or confirmed. These clauses are premised on the assumption that the relationship between the parties will result in the sharing of proprietary and sensitive business knowledge, contacts and relationships related to the operations of a business, which the company seeks to protect, particularly once the relationship between the parties ends. Non-competition clauses usually restrict one’s ability to engage in a competing business. Non-solicitation clauses prohibit one from soliciting stakeholders and contacts … Read More
COVID-19 | Ontario to Permit Some Businesses to Reopen on May 4
On May 1, 2020, the Ontario government announced that a select few businesses will be allowed to re-open on Monday, May 4, 2020 but with strict public health and safety measures in place. Most of these businesses are seasonal businesses and some essential construction projects. This announcement follows from the release earlier this week of the three-staged Framework for Reopening our Province which included stage 1 to reopen certain Ontario businesses gradually under strict guidelines in order to allow the economy to return to some sense of normalcy while continuing to safeguard the public and limit health risks. The following is the list of businesses that may be re-opened on May 4, 2020: Garden centres and nurseries – but they are restricted to alternative methods of sale such as curbside pickup and delivery; Lawn care services and landscaping services; Essential construction projects including shipping and logistics; broadband, telecommunications and digital … Read More