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
Nick Poon Comments on Anti-Black Racism in Commercial Lease Dispute for The Lawyer’s Daily
Nick Poon was recently asked by The Lawyer’s Daily to comment on the Ontario Superior Court of Justice decision in Elias Restaurant v. Keele Sheppard Plaza Inc., 2020 ONSC 5457. The Lawyer’s Daily article is found here: Court cites ‘prejudices’ to Black tenants in overturning landlord’s eviction bid. In this case, the tenant was a husband and wife team that operated a successful restaurant/bar offering African and Caribbean cultural foods primarily to the black community. The tenant had spent $150,000 in leasehold improvements when it took over the lease in 2013. The lease included two further five-year renewal options, upon delivery of written notice at least six months before the lease expired. Although the tenant attempted to contact the landlord, both before and after the notice deadline, to start the renewal process, the landlord appeared to have avoided its telephone calls. The tenant brought an application for relief from forfeiture … Read More
Construction Law Lawyers – An Overview of Construction Law
Construction law and practice, largely governed by the Construction Act, R.S.O. 1990, c. C.30 (the “Act”), is a specialized field of law which has unique attributes, processes and deadlines. One cannot contract out of the application of the Act and must abide by its provisions. Without going into the various intricacies, the following is a brief primer on some (not all) key parts of the Act for those that may need legal assistance with a construction related dispute. The Initial Contract A construction project will typically start with a contract between a property owner and a general contractor. For a fee, the contractor takes on the responsibility of overseeing the project and supplying services and/or materials to the construction project. The Subcontracts The contractor often needs help from tradespeople (“subcontractors” or “subtrades”) with various aspects of the project like plumbing, painting, etc. For such assistance, the contractor tends to enlist … Read More
Ontario Bans Commercial Evictions During COVID-19: Seven Things You Need to Know
As predicted in our previous blog, B.C. Bans Evictions if Commercial Landlords Fail to Apply to CECRA: A Similar Ban Coming to Ontario?, the Ontario Government announced yesterday that it had passed legislation to protect commercial tenants from evictions and having their assets seized by their landlord during COVID-19. After British Columbia, Alberta and Saskatchewan took steps in the last two weeks to protect small business tenants from landlords that choose not to apply for the Canada Emergency Commercial Rent Assistance (CECRA) program, Ontario Premier Doug Ford finally followed through on his promise to protect small business tenants during COVID-19. On June 18, 2020, Bill 192, Protecting Small Business Act, 2020 (the “Act”) received Royal Assent, and officially amended the Commercial Tenancies Act to prohibit landlords, that are or would be eligible to receive assistance under the CECRA program, from evicting tenants or exercising distress remedies in the period from … Read More
B.C. Bans Evictions if Commercial Landlords Fail to Apply to CECRA: A Similar Ban Coming to Ontario?
Although the Canada Emergency Commercial Rent Assistance Program (CECRA) opened for applications last week, complaints about the program have continued from both small business tenants and commercial landlords. Small business tenants have complained that landlords continue to refuse to apply to CECRA, the eligibility requirement for a revenue loss of at least 70 percent was too high and the number of months of relief should be expanded. Today, Ontario extended the state of emergency until June 30, 2020 although Premier Doug Ford stressed that the gradual and safe re-opening of the economy would continue. It is unlikely most eligible tenants will be able to make their full rent payment on July 1, 2020, even if they receive rent relief for the months of April, May and June, 2020 under CECRA. Landlords have complained that the application process is too confusing, costly, time-consuming and risky. Under CECRA, landlords are required complete … Read More
Commercial Leases and Relief From Forfeiture: A Second Chance For Tenants During COVID-19?
Today is the first day landlords can apply for the Canada Emergency Commercial Rent Assistance Program (CECRA) as reported in our blog last week entitled COVID-19 | Ontario-Canada Emergency Rent Assistance Program – Part 2. Although commercial rent relief is now finally available for the months of April, May and June 2020, it has been over two months since non-essential businesses in Ontario were required to close. The gradual re-opening of some non-essential businesses, under strict guidelines, was only announced over the last few weeks. According to a recent survey by CFIB, 48% of Ontario small businesses suffered a drop in revenue of 70% or more, and 77% of Ontario small businesses suffered a drop in revenue of 30% or more. It is highly unlikely that these small businesses will survive the COVID-19 pandemic without further assistance. In addition, it has been widely reported that some commercial landlords will not … Read More
COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program – Part 2
Further to our blog entitled COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program, CMHC has finally released further details about the OCECRA program including the opening date of the applications portal on May 25, 2020 at 8:00 a.m. EST. Amidst reports that many landlords were refusing to apply for the OCECRA program, Premier Doug Ford pleaded with landlords to participate in the OCECRA program, stating: “It is not going to be forever. It is going to be for a few months. Help people out. You have an obligation to do that as a landlord”. Prime Minister Justin Trudeau provided a more business-oriented argument for landlords to participate in the OCECRA program, stating: “With many people discovering that we can work from home … there may be a lot of vacancies in commercial buildings over the coming months and years. Who knows exactly what the post-pandemic world will look like exactly?”. … Read More
A Primer on Using Electronic Signatures in the Age of COVID-19
Although Ontario is currently taking steps to gradually re-open the economy, it is expected that physical and social distancing measures will remain in effect for the foreseeable future (or at least until a vaccine is developed). If legal professionals, companies and individuals were not already using electronic signatures to conduct business prior to COVID-19, this may be an opportune time to consider switching from in-person signing and delivery of paper documents to remote signing of electronic documents. Electronic signatures are recognized as legally binding, provided certain requirements are met, and can be a more convenient and cost-efficient way to conduct business. Electronic signature software such as DocuSign and Adobe Sign are popular. In Ontario, the Electronic Commerce Act, 2000, S.O. 2000, c. 17 (the “Act”) governs the use and legal validity of electronic signatures. The Act expressly provides that a legal requirement that a document be signed or endorsed is … Read More
COVID-19 | Ontario Allows More Businesses To Reopen Soon
Following on the Ontario government’s announcement last week allowing a select few businesses to re-open earlier this week, there was another announcement yesterday allowing more businesses to re-open under the same strict public and health safety guidelines. The following is a list of businesses that may re-open, and their scheduled re-opening dates over the next week: May 8, 2020: Garden centres and nurseries can re-open for in-store payment and purchases (previously, these businesses could only offer curbside pick-up and delivery); May 9, 2020: Hardware stores and safety supply stores can re-open for in-store payment and purchases (previously, these businesses could only offer curbside pick-up and delivery); May 11, 2020: Retail stores with street entrances can re-open but they can only offer curbside pick-up and delivery (previously, non-essential businesses were required to be closed). Small businesses that are planning to re-open are reminded to follow public and health safety guidelines including The … Read More
COVID-19 / Coronavirus: Urgent Hearings in Small Claims Court
Since March 16, 2020, all hearings in the Ontario Small Claims Court have been suspended due to the COVID-19 pandemic. Although the Superior Court of Justice has had procedures in place to bring an urgent civil or commercial list hearing since March 15, 2020, the Small Claims Court was left without the ability to hear urgent motions and garnishment hearings until today. Today, the Chief Justice of the Superior Court of Justice released the updated Notice Regarding the Suspension of Small Claims Court Operations to outline the procedure to request an urgent hearing in Small Claims Court and to provide guidance on the type of matters a judge may find to be urgent. Urgent hearings may include: Cases in which a judgment debtor has an outstanding warrant for arrest issued in relation to a Small Claims Court proceeding; or Time-sensitive cases that would result in immediate and serious financial hardship … 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
Toronto Lawyers for COVID-19 / Coronavirus Urgent Legal Services
See our information and resources regarding legal services during COVID-19 through these links to the Gilbertson Davis LLP website: Arbitration During the Pandemic Remote Arbitration Hearings – Emerging Protocols Arbitration & Court Closure Contract Arbitrator Event Cancellation Arbitrator Contract Termination Arbitrator Moving Litigation to Arbitration | Arbitration Options Business and COVID-19 Ontario Allows More Businesses To Reopen Soon Ontario to Permit Some Businesses to Reopen on May 4 Small Business Relief Resources Ontario Extends Mandatory Closure of Non-Essential Businesses Ontario-Canada Emergency Commercial Rent Assistance Program Construction and COVID-19 Are Closing Dates Extended Due to Construction Sites Closing? Urgent Hearings for Real Estate Closings Contracts and COVID-19 Pandemic Closures: Considerations For Commercial Tenants And Landlords How to Schedule an Urgent Civil or Commercial List Hearing Comments on Frustration and Force Majeure Clauses in The Huffington Post Legal Consequences on Commercial Contracts Distribution Agreements Manufacturing Contracts Shopping Mall Lease Deferral Contract Disputes … Read More
COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program
On April 16, 2020, the Federal government announced the Canada Emergency Commercial Rent Assistance Program (CECRA) but could not provide further details because discussions with the provinces and territories were required for the administration and implementation of the program. Today, the Ontario government announced the Ontario-Canada Emergency Commercial Rent Assistance Program (OCECRA) and provided further details on the eligibility requirements and the terms of the forgiveable loan. The OCECRA is expected to be operational in mid-May 2020, and will provide commercial rent relief for the months of April and May (retroactively) and June 2020. We summarize the OCECRA as follows: Ontario-Canada Emergency Commercial Rent Assistance Program – Updated May 7, 2020 What is the purpose of OCECRA? To provide relief to landlords and small business tenants affected by COVID-19 by providing forgivable loans to landlords to cover 50% of the gross monthly rent for April, May and June 2020. Who … Read More
Ontario Extends Mandatory Closure of Non-Essential Businesses
On April 23, 2020, the Ontario government announced that all emergency orders under the Emergency Management and Civil Protection Act, including the mandatory closure of non-essential businesses, have been extended until May 19, 2020 (Updated: May 7, 2020). A list of the extended orders and the current revocation dates are found here. Although the closure of non-essential businesses is necessary to fight the COVID-19 pandemic, many small businesses have been closed for over a month and will be closed for at least another two week period with no or very minimal revenue coming in. A survey conducted by the Canadian Federation of Independent Business (CFIB) indicated that 40% of Canadian small businesses were worried the pandemic would force them to permanently close. These small businesses, which form the backbone of the economy, are unlikely to survive without further assistance from the federal, provincial and municipal governments and/or cooperation from landlords, … Read More
Ontario Courts Suspend Civil Jury Trials Due to COVID-19 / Coronavirus
On April 20, 2020, the Chief Justice of the Ontario Superior Court of Justice issued a Notice to the Profession, Public, Accused Persons and the Media Regarding the Suspension of Criminal and Civil Jury Trials to advise that criminal and civil jury trials will be suspended until September, 2020, at the earliest. Since March 17, 2020, the Ontario Superior Court of Justice has suspended all regular operations, including adjourning all civil matters except: (a) civil motions and applications deemed to be urgent and time-sensitive by the court; (b) outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding; and (c) the following expanded civil matters, subject to each region’s notice and effective April 6, 2020: (i) pre-trial conferences that were cancelled between March 16 and May 31, 2020, and to be held for the purpose of settlement; (ii) Rule 7 motions or applications for approval … Read More
Corporate Governance Considerations During the Covid-19 Pandemic
Corporate governance issues are top of mind for directors and businesses who are attempting to navigate through the Covid-19 Pandemic related closures and emergency measures. Boards of Directors still need to operate and make decisions in the best interests of the corporation, and this can involve tough decisions, particularly where there is little guidance as to how measures to lift Covid-19 related restrictions will play out. By example, while it may be in the best interest of investors and shareholders that the Board act to lay off employees in the short term, the impact of staff shortages when Covid-19 restrictions are lifted may pose it’s own challenges. Many businesses must consider how to hold governance meetings during Covid-19 times. On March 30, 2020, Ontario passed an Order under the Emergency Management and Civil Protection Act (EMCPA), (Ontario Regulation 107/20) entitled “Meetings for Corporations” making temporary changes to the Business Corporations … Read More
COVID-19 / Coronavirus: Rent Relief for Small Businesses Is Coming
On April 16, 2020, the Federal government announced the Canada Emergency Commercial Rent Assistance (CECRA) program to assist small businesses with their rent payments during the COVID-19 crisis. The CECRA program will provide loans and/or forgiveable loans to commercial property owners who will be expected to pass on the benefit to small businesses by lowering or forgoing rent for April (retroactively), May and June 2020. Further details of the program are expected to be released soon and the program will be administered by the provincial and territorial governments. Although the Ontario Superior Court of Justice had issued an Order on March 19, 2020 suspending the eviction of residents from their homes (unless ordered otherwise under an urgent motion), there was no similar protection against evictions for commercial tenants which included many small business owners. Commercial rent payments are typically the second largest operating expense for most small businesses after payroll … Read More