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.
Recognition of Foreign Judgments and Arbitral Awards – Recent Decision of the Ontario Superior Court of Justice says Ontario Court is Not to Intervene Absent Exceptional Circumstances
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
Can’t Get Financing On Time? You May Lose Your Deposit – Toronto Real Estate Lawyers
In the recent decision of the Ontario Court of Appeal (“ONCA”), Nguyen v. Zaza, 2023 ONCA 34, the ONCA dismissed the appellant’s appeal from a decision of a judge of the Ontario Superior Court of Justice to grant the respondent’s summary judgment motion and order forfeiture of the appellant’s deposit of $50,000 to the respondent (among other relief). The appellant was the purchaser and the respondent was the seller of the subject property. The agreement of purchase and sale at the center of the dispute between the parties specifically indicated that time was of the essence. Originally, the agreement was conditional on the appellant arranging financing and a satisfactory home inspection, but the appellant waived those conditions prior to closing. The motion judge found that on the closing date the respondent was ready, willing, and able, to close whereas the appellant did not tender the purchase price required from her … Read More
Failure To Close A Real Estate Transaction Can Be Very Costly
For many reasons, an agreement of purchase and sale to buy real estate may be breached by either the seller or the purchaser. The innocent party may be entitled to significant compensation. For instance, in the recent Ontario Court of Appeal (ONCA) decision, Rosehaven Homes Limited v. Aluko, 2022 ONCA 817, the ONCA upheld a lower court decision granting summary judgment requiring the appellants to pay damages to the respondent arising from the appellants’ failure to complete an agreement of purchase and sale for the purchase of a home. In that case, the appellants were unable to complete the transaction because they could not obtain sufficient financing. However, the agreement was not conditional on them obtaining financing. The respondent ultimately sold the property at a loss (compared to the sale price agreed to between the parties). The lower court awarded $331,922.27 to the respondent (being the difference between the original … 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
To Sue or Not to Sue? Failure to Sue = No Compensation
In Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), the Ontario Court of Appeal (“ONCA”) concluded that failure to sue is a bar to recovery of any compensation, even if the party to a lawsuit may otherwise have been entitled to compensation had she sued. In this case the Plaintiff sued the Appellant for negligence in respect of a vendor take back mortgage to the Plaintiff and his then-wife. The Plaintiff’s ex-wife refused to join the proceeding as a plaintiff and so the Plaintiff added her as a defendant. The trial judge found that the Appellant was negligent and awarded damages of close to $300,000 to both the Plaintiff and his ex-wife (almost $150,000 each). On appeal, the ONCA agreed with the trial judge that the Appellant owed a duty of care to both the Plaintiff and to the Plaintiff’s ex-wife. However, the ONCA did not agree with the trial … 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
Court of Appeal Reiterates Limited Scope of Judicial Intervention to Set Aside Arbitral Awards
In the recent Court of Appeal decision of Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, the Court of Appeal overturned a lower court decision setting aside an arbitrator’s award, on the basis that the approach taken by the learned application judge was contrary to that mandated by Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, leave to appeal refused, [2019] S.C.C.A. No. 202 (Alectra). Background The Halton Condominium Corporation 137 (HCC 137) located in Oakville has 82 residential units and 166 parking units located within it’s parking garage, along with common elements such as a lobby and elevators. The parking units comprise of parking for the residential unit owners (the Residential Parking) along with 43 commercial parking units (the Commercial Parking) owned by the defendant Mensula Bancorp Inc. (Mensula), Mensula does not own any residential units and its business is located … Read More
Undocumented Trusts – No Requirement for Formal Trust Agreements
In the recent decision from the Ontario Court of Appeal (“ONCA”), Corvello v. Colucci, 2022 ONCA 159, the ONCA confirmed that a trust can exist even where there is no written trust agreement. At issue in the case was the ownership of a land use permit which allowed the holder(s) of the permit to build on and use the land for recreational purposes. In the court of first instance, the appellant took the position that the permit belonged to him alone. However, the trial judge determined that the appellant actually held the permit “in trust for himself and the respondents as beneficial owners”. On appeal, the appellant argued that the trial judge erred in law and in fact by determining that an undocumented trust agreement existed. The ONCA advised that it is trite law that a valid trust requires “three certainties: certainty of intention to create a trust, certainty of … Read More
Family Violence: New Tort Recognized in Ontario
In the recent decision, Ahluwalia v. Ahluwalia, 2022 ONSC 1303, the court recognized the new tort of “family violence” as a civil remedy, outside of the scope of family/criminal liability. The court awarded $150,000 “in compensatory, aggravated, and punitive damages for the tort of family violence”, recognizing that such an award “is well-outside the normal boundaries of family law”. Recognition of the New Tort of Family Violence The court recognized that the Divorce Act “does not create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence” and does not provide the victim of family violence “with a direct avenue to obtain reparations for harms that flow directly from family violence and that go well-beyond the economic fallout of the marriage”. Further, the Divorce Act prohibits consideration of “misconduct” when making a spousal award. At “its heart, spousal support is compensatory … Read More
Are my Trademark Rights being Breached? Trademark Infringement and Passing Off Lawyers
In Subway IP LLC v. Budway, Cannabis & Wellness Store, 2021 FC 583, the Federal Court of Canada (“FC”) found that the respondents infringed on the applicant’s registered trademark contrary to section 20 of the Trademarks Act. The FC found that the use of the “BUDWAY” trademark amounted to the tort of passing off and depreciation of goodwill in the appellant’s trademark. As a result, the court granted the applicant, Subway, damages in the amount of $15,000 and an injunction against the respondents prohibiting them, among other things, from dealing in goods or services in association with the trademark or trade name “BUDWAY”. What is Considered a Breach of Trademark Rights? In the FC’s reasons for its decision, it advised generally that: A trademark registration grants the owner the exclusive right to use the mark throughout Canada in respect of the goods and services in the registration; The right to … 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
Waiving a Contractual Right May Not Be as Easy as You Might Think!
In the recent decision from the Ontario Court of Appeal (“ONCA”), Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907, the ONCA set aside the decision of the motion judge which dismissed the plaintiff’s claim on a motion for summary judgment brought by the respondent. The ONCA opined that the motion judge made an error in law by finding that the appellant had waived the auto renewal provision of the consulting agreement that forms the basis of the dispute. The motion judge’s decision stems largely from the appellant’s representative’s email in which he stated “Let this email serve to remove the auto renewal from the contract”. The motion judge found that this email resulted in a waiver of the auto renewal provision of the consulting agreement by the appellant, and that the waiver was accepted by the respondent in a subsequent email. Though the ONCA conceded that a … Read More
Arbitration and Summary Judgment – Is Summary Judgment Available in Arbitration Matters?
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
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