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 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
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.
Court of Appeal Refuses to Exercise Long-Arm Jurisdiction
In West Van Inc. v. Daisley, the Motion Judge found that the claim did not have a “real and substantial connection” to Ontario to give the Ontario Courts jurisdiction. The Plaintiff, a Canadian company, was suing an American lawyer for work he had done for the Plaintiff company in the U.S. The Court of Appeal considered whether the Court should exercise jurisdiction under the “forum of necessity” exception; the Ontario Courts may assume jurisdiction over a case which it otherwise would not if there is no other forum where the Plaintiff can “reasonably” sue. The Plaintiff argued that it could not reasonably sue the American lawyer in North Carolina because it could not find a lawyer to represent it there. The Plaintiff had called lawyers in two of North Carolina’s largest cities, but none would agree to take the case. The Court of Appeal was not satisfied that the difficulty in … Read More
Summary Judgment in Wrongful Dismissal Action in IT Sector
The plaintiff in Wellman v. The Herjavec Group Inc., 2014 ONSC 2039, whose employment with the defendant was terminated without cause after one week short of a year, was granted summary judgment and found to be entitled to damages from the defendant for wrongful dismissal on the basis of a reasonable notice period of four months. The parties had agreed that the issue of a reasonable notice could be properly considered on a motion for summary judgment and the court agreed that such a motion is more proportionate, more expeditious less expensive means than a trial to achieve a just result (citing Hryniak v. Mauldin, 2014 SCC 7) In considering the issue the court considered the: Bardal factors; the age of the employee (including when considering mitigation it is reasonable to assume that at the plaintiff’s age there could have family responsibilities that might make him less mobile); length of service (just one factor to be taken … Read More