In Shirodkar v Coinbase Global Inc. et al, 2024 ONSC 1399, the Ontario Superior Court of Justice provides a review of jurisdictional challenges and the issue of forum non conveniens involving a cryptocurrency class action. The defendants, Coinbase Global, Inc., along with its affiliated entities (“Coinbase”), faced a class action lawsuit brought by a user of its online trading platform, Mr. Shirodkar, which Coinbase sought to dismiss due to a lack of jurisdiction. Coinbase operates a platform for buying and selling digital assets, including cryptocurrency. Between October 2017 and January 2021, Mr. Shirodkar conducted transactions on the Coinbase platform while residing in France and later in Ontario. His complaint, in the form of a class proceeding, alleged that the crypto assets traded on the Coinbase platform should be classified as “securities” under the Securities Act, R.S.O. 1990, c. S. 5 and that Coinbase failed to abide by the disclosure requirements … Read More
Enforceability of Non-Compete Clauses in a Business Sale Upheld by Ontario Court of Appeal
In Dr. C. Sims Dentistry Professional Corporation v. Cooke, 2024 ONCA 388, the Ontario Court of Appeal confirmed that restrictive covenants negotiated as part of the sale of a business must be treated differently by courts than those contained in employment contracts. The dispute arose from an agreement of purchase and sale between two dentists for a dentistry practice in Hamilton, Ontario (the “APS”). The APS contained a non-solicitation/non-competition provision, which prohibited the vendor from practicing dentistry within 15 km of the practice for a period of five years post-closing (the “Noncompete Provision”). About three years after the purchase and sale, the vendor began working at a separate practice in a location that violated the Noncompete Provision, and the purchaser commenced an action to enforce it. The purchaser was successful at trial, and the vendor made this appeal. In his appeal, the vendor submitted that the trial judge incorrectly placed … Read More
Licensing Breaches and Lingering Fiduciary Obligations – Ontario Court of Appeal Rules License Agreement Breach Constitutes Fiduciary Duty Violation
In 7868073 Canada Ltd v 1841978 Ontario Inc, 2024 ONCA 371, the Ontario Court of Appeal recently assessed the legal effects of engaging in competing business ventures and the importance of honoring fiduciary duties stemming from license agreements following a parties departure from a former corporation. Robert Langlois (“Langlois”), alongside two partners, launched a powder-coating business, whereby Langlois granted a perpetual license (the “License”) for his industry “knowledge” to 7868073 Ontario Inc. (“786”), a company which the three parties formed and held equal shares in. In turn, 786 owned shares in two other companies (collectively referred to as “ACS”), which Langlois worked with. When Langlois left ACS to start another business without informing his former partners, ACS alleged that Langlois breached the License. The Court of Appeal affirmed the trial judge’s findings, rejecting the argument that the License was void ab initio due to its unreasonable worldwide scope and restrictions … Read More
Ontario Court Favours Place of Arbitration over Forum Selection Clause in Asset Purchase Agreement
In Tehama Group Inc v. Pythian Services Inc., 2024 ONSC 1819, the Ontario Superior Court of Justice held that the place of an arbitration, not a forum selection clause in a contract, determines the jurisdiction that recourse against an arbitral award must be taken in. The litigants were parties to a cross-border asset purchase agreement (the “APA”). The APA included an arbitration clause for disputes regarding the calculation of the purchase price, and the parties appointed “the Toronto office” of an accounting firm as arbitrator for these disputes. The APA also included broad forum selection and governing law clauses, which required “any suit, action or other proceeding arising out of this Agreement” to be brought exclusively in the courts of New York and in accordance with its laws. A dispute arose regarding an earnout clause in the APA, and the parties proceeded to arbitration. When the Toronto-based arbitrator rendered an … Read More
Letters of credit and the fraud exception: Supreme Court examines applicability to fraud by a third party
A letter of credit or a bank guarantee is an autonomous instrument that is issued by a financial institution on the directions of a customer. The letter of credit seeks to underwrite the customer’s obligations to the beneficiary under the distinct underlying contract. It entitles the beneficiary to payment on demand from the issuing bank, so long as that demand strictly complies with the requirements set out in the letter of credit. The obligation of the financial institution to pay when presented with a valid demand is near absolute. The only recognized exception in Canadian law is when there is fraud by the beneficiary that is brought to the financial institution’s attention prior to payment. In Eurobank Ergasias S.A. v. Bombardier Inc. 2024 SCC 11 (CanLII), the Supreme Court of Canada examined a critical issue of when an issuing bank is required to refuse to honour a demand for payment … Read More
A Promise Made is a Promise Kept: Ontario Superior Court Grants Permanent Injunction to Enforce Provisions of Long-term Supply and Lease Agreement
In Parkland Corporation v. Caledon Fuels Inc., 2024 ONSC 2361, the Ontario Superior Court of Justice granted an injunction which prevented a party to a long-term lease and supply agreement from breaching certain negative covenants contained in that contract. The Applicant and Respondent were both parties to an agreement under which the Applicant was made the exclusive supplier of petroleum products to a gas station which it subleased to the Respondent. In January of 2024, the Respondent notified the Applicant that it intended to enter into arrangements with another supplier, in contravention of the agreement. The Applicant brought an urgent application seeking a permanent injunction, to prevent the Respondent from doing so. In its decision, the Court’s analysis on the injunctive relief sought by the Applicant followed the Ontario Court of Appeal’s decision in 711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, where that Court cited … Read More
7 Things to Know About Recognition and Enforcement of Foreign Judgments in Ontario
In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Roger Vanden Berghe NV v. Merinos Carpet Inc., 2023 ONSC 6728, the ONSC provided a helpful guide on some of the key principles applicable to cases involving the recognition and enforcement in Ontario of judgments from other countries. In this case the ONSC granted an application for the recognition and enforcement of a judgment from a court in Belgium; the Ghent Business Court, Kortrijk Division, First Chamber (the “Judgment”). The underlying dispute that was adjudicated in Belgium was with respect to unpaid invoices for textile orders. The respondent did not respond to the proceeding in Belgium, although summoned by a Writ of Summons. The respondent claimed that it was not properly served with the Writ of Summons, and even if it was, one of its representatives would not have been able to attend given the Covid-19 travel restrictions … Read More
Adjournment Request Denied! Ontario Court Recognizes Arbitral Award from China
In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Xiamen International Trade Group Co., Ltd. v. LinkGlobal Food Inc., 2023 ONSC 6491, the applicant sought the recognition and enforcement of an arbitration judgment of the Xiamen Arbitration Commission (the “Award”). The underlying arbitration dispute related to a contract entered into by the parties wherein the applicant was to purchase protective masks from the respondent for the purchase price of US $532,224.00. The contract between the parties contained an arbitration clause and a choice of law clause providing that the law of the People’s Republic of China governed any dispute over the contract between the parties. In the arbitral proceeding in China, the applicant sought a refund of the purchase price of the masks and compensation for other costs incurred. A panel of three arbitrators unanimously ruled in favour of the applicant and granted the Award. As the … Read More
Failure to Comply with Court Order can Result in Dismissal of Case
In the recent decision of the Ontario Court of Appeal (“ONCA”), Steinberg v. Adderley, 2023 ONCA 725, the ONCA dismissed the appellant’s appeal of an order finding him in contempt of a court order and dismissing his action. In this case, the appellant was ordered by two different judges to attend at a medical examination, but failed to do so. As a result, the respondent brought a motion to find the appellant in contempt of the orders, which motion was granted. At the hearing of the appeal of the motion judge’s decision, the appellant argued that the motion judge erred by not treating contempt as an order of last resort and by not accepting the appellant’s excuse for failing to comply with previous court orders, being that he was allegedly unable to travel in order to attend the medical examination. The ONCA rejected the appellant’s grounds for appeal, stating that … Read More
Ontario Court Recognizes US Judgment, stating “there are no reasons not to enforce” the US Judgment
In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Runco v. Engenheiro, 2023 ONSC 4767, the applicant sought recognition and enforcement of an order of the Supreme Court of the State of New York, County of Westchester (the “Foreign Judgment”), among other relief, including the appointment of a receiver to sell her apartment building that she jointly owned with the respondent. The Foreign Judgment incorporated the Parties’ divorce agreement and required that the applicant receive US$500,000 in exchange for her interest in the apartment building. The respondent defended the application, citing to multiple reasons why the application should not be granted, including that the Foreign Judgment was not final. The ONSC disagreed, opining that the Foreign Judgment was final because the time to appeal or bring a motion to renew is “well out of time”. The ONSC based its decision on the opinion of an expert witness (an … Read More
Ontario Court of Appeal Comments on the Oppression Remedy – Oppression is Focused on Fairness and Equity, not on Legal Rights
In the recent decision of the Ontario Court of Appeal (“ONCA”), Pereira v. TYLT Technologies Inc. (TYLTGO), 2023 ONCA 682, the appellant successfully appealed a judgment dismissing his application for an oppression remedy under the Canada Business Corporations Act, RSC 1985, c C-44 (the “CBCA”). The appellant argued that the application judge erred in only considering the appellant’s expectations as an employee and failing to consider his expectations as a shareholder. The ONCA opined that the application judge took an “overly narrow” approach by placing focus mostly on the documents signed by the parties and not considering all of the circumstances. The ONCA considered some of the major principles related to the oppression remedy, including the following: Oppression is an equitable remedy which seeks to ensure fairness. Thus, conduct found to be oppressive does not need to be “unlawful” per se, because oppression is focused on “fairness and equity”, rather … Read More
Recognition of Foreign Judgments – Judgment is Enforceable Regardless of Pending Appeal
In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Acteon v. Verona Medical Group, 2023 ONSC 5140, the plaintiff was successful in obtaining the recognition of a judgment issued by a court in France, the Commercial Court of Bordeaux (the “Summary Proceeding Judgment”), albeit the ONSC stayed the plaintiff’s ability to enforce the Summary Proceeding Judgment in Ontario pending the defendants’ appeal of a related judgment (the “Merits Proceeding Judgment”) in France. The main contentious issue in this recognition proceeding was the defendants’ position that the plaintiff’s Summary Proceeding Judgment was not “final” because of the defendants’ appeal of the Merits Proceeding Judgment in France. The plaintiff’s legal expert advised the ONSC that though the Summary Proceeding Judgment was a “provisional award”, it was still “final, valid, binding and fully enforceable”. The defendants’ legal expert disagreed, positing that the Summary Proceeding Judgment was only an interim decision … Read More
Bald and Unsubstantiated Allegations May Lift the Presumptive Limit on Costs of $50,000 in anti-SLAPP Motions
We recently blogged on the Ontario Court of Appeal (“ONCA”) decision in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, where the ONCA advised that costs awards in motions brought under s. 137.1 of the Courts of Justice Act, a provision introduced in 2015 to prevent strategic lawsuits against public participation (“SLAPP”), should not generally exceed $50,000 on a full indemnity basis (as the procedure was meant to be “efficient and inexpensive”). In an even more recent decision of the ONCA, Boyer v. Callidus Capital Corporation, 2023 ONCA 311, the ONCA rejected the respondent’s submission that the successful appellant’s claim for costs of $273,111.22 on a full indemnity basis was excessive, citing to the Park Lawn decision referenced above. The ONCA opined that the statutory presumption under s. 137.1 of the Courts of Justice Act is that the successful moving party be awarded its full indemnity costs … Read More
Stay of Court Proceedings in Favour of Arbitration – Standard of Proof
In the recent decision Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, the Ontario Court of Appeal (“ONCA”) reviewed the law of international commercial arbitration, and in particular opined on the issue of the standard of proof that a party needs to meet in order for the court to grant a stay of a court proceeding pursuant to section 9 of the International Commercial Arbitration Act, 2017 (the “Act”), in favour or arbitration. Section 9 of the Act states as follows: Where, pursuant to article II (3) of the Convention or article 8 of the Model Law, a court refers the parties to arbitration, the proceedings of the court are stayed with respect to the matters to which the arbitration relates. The appellant submitted that the proper analytical framework for assessing a request to stay an action under the Act was set out in the … Read More
Launching New Claim in Face of Limitation Deadline, Where Prior Claim Commenced, Not an Abuse of Process
In the recent Court of Appeal decision of Cipponeri Construction Services Inc. v. Orsi, 2023 ONCA 296, the Court of Appeal grappled with whether it was an abuse of process to commence a new action, in the face of a fast approaching limitation deadline, when there was an existing action already commenced, or whether the proper approach was to seek leave to amend the Statement of Claim in the existing action to add the new claim. The Facts and Background In 2018 an action was commenced by the Respondent on the appeal, Michael Orsi along with his corporation Bearus Holdings ULC against Vito Cipponeri, his corporation 2599109 Ontario Inc (259) and Westin Homes Ltd. (Westin). Mr. Cipponeri and 259 counterclaimed in the 2018 action against Mr. Orsi, Bearus and Westin for, amongst other claims, a payment of money allegedly owing by Westin to the appellant, Cipponeri Construction Services Inc. (CCSI) … Read More
Ontario Court of Appeal Says Costs on anti-SLAPP Motions Should not Generally Exceed $50,000
In the recent decision, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, the Ontario Court of Appeal (“ONCA”) provides welcome guidance on s. 137.1 of the Courts of Justice Act, a provision introduced in 2015 to prevent strategic lawsuits against public participation (“SLAPP”). The decision under review by the ONCA is that of a judge’s dismissal of a motion brought by the appellants under s. 137.1 (“anti-SLAPP motion”). In particular, the appellants took issue with the motion judge’s conclusion that the plaintiff had proven sufficient harm caused by the defamatory statements. The appellants alleged that the motion judge failed to properly weigh the harm to the plaintiff against the public interest in protecting the appellants’ expression on matters of public interest. In dismissing the appeal, the ONCA found no reviewable error in the motion judge’s analysis, and advised that the motion judge “correctly described the legal principles … Read More
Nick Poon Comments on Tim Hortons’ Roll Up to Win Contest for CTV News
Nick Poon was recently asked to comment on the legal rights of customers in Tim Hortons’ Roll Up to Win Contest for CTV News. Read the CTV News article here: Tim Hortons mistakenly told an Ontario man he’d won $10K. Now, he wants to sue. If you require legal advice or legal representation in respect to civil litigation and commercial litigation matters including contract disputes and misrepresentation claims, please contact us for an initial consultation. Our lawyers have expertise and experience in such matters and can assist you in resolving your legal issues including finding practical and cost-effective solutions.