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
Nick Poon Featured on CTV News – Tim Hortons Roll Up the Rim to Win Contest
Nick Poon was recently interviewed by CTV News for commentary on a recent email mistakenly sent by Tim Hortons notifying customers that they had won a boat and trailer. Click here to watch the interview: CTV National News: Tim Hortons’ $60k glitch 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.
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
Service Abroad in Civil and Commercial Litigation
The Hague Service Convention Since 1989 Canada has been a member of Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, (the Hague Service Convention). Incoming Service of Foreign Process We have blogged before about the requirement of the Hague Service Convention that its member States designate a “Central Authority” to accept incoming requests for service. There are alternatives to the Hague Service Convention service of foreign process in Ontario. Service of Ontario Process Abroad As other jurisdictions become, or will become, members of the Hague Service Convention, the Status Table is updated. For instance, see the status of Azerbaijan (November 1, 2023), Singapore (December 1, 2023) and Paraguay (January 1, 2024) on the Status Table. Why Chose Gilbertson Davis LLP? One of the senior commercial litigation lawyers at Gilbertson Davis LLP, though now only practicing in Ontario, has also practiced … Read More
Ontario Superior Court of Justice Finds Expired Arbitration Award Relevant in Motion for Injunctive Relief
In Rogers v. TELUS Communications Inc., 2023 ONSC 5398, the Ontario Superior Court of Justice held that the terms of an expired arbitration decision are relevant when a party seeks injunctive relief that contradicts its terms. The moving and responding parties are both prominent competitors in the Canadian telecommunications market. Under a requirement imposed by the Government of Canada, their customers have the reciprocal ability to “roam” on the other carrier’s network in areas where their own carrier does not provide coverage. This obligation allows Canadian customers to access wireless services across the country. For a time, the parties did not agree on what was displayed to customers when they were roaming on a competitor’s network. The primary dispute was whether the network identifier (“NID”) displayed in the top-left corner of most mobile devices would connote an extension of their own carrier’s network (i.e. “[Carrier]-EXT”), or if it would notify customers … 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
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
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.
Directors Can Be Liable To Corporations Creditors For Stripping Assets
In the recent Court of Appeal decision of FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92 the Court of Appeal considered whether a landlord in a commercial lease arrangement could pursue a claim against the sole director and officer of the tenant corporation, for stripping the assets of the corporation to evade their debt obligations under the lease. The Facts The Appellants, FNF Enterprises Inc., and 2378007 Ontario Inc. (the “Landlord”) owned a commercial premises in Kitchener, Ontario which they leased to one of the Respondents on the appeal, a corporate entity named Wag and Tag Inc., (the “Tenant”). Wag and Tag Inc. was in the business of providing dog grooming, training and daycare services. The lease ran from 2015 to March 31, 2021. The premises was abandoned by the Tenant prior to the end of the lease term. The Claim In September 2020, the Landlord commenced … Read More
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
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
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