I had written a previous blog on the “time is of the essence” clause in real estate agreements where it was discussed that the strict adherence to any agreed upon time limits was generally the case. A recent Ontario Court of Appeal case, Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc., serves as a reminder that the “time is of the essence” clause is not absolute and unfettered, and there are preconditions that must be satisfied for a party to rely upon and insist on time being of the essence. The facts are not overly complicated in this case. The respondent was a condominium developer in the process of acquiring properties for a proposed project in downtown Toronto. The developer entered into an Agreement of Purchase and Sale (“APS”) with the vendor to acquire the subject property. Although the APS required the vendor to provide estoppel certificates five days prior … Read More
Manufacturers and Distributors – Toronto Litigation Lawyers
Our lawyers can provide sound advice and effective representation to manufacturers and distributors involved in actual or potential disputes or litigation. We focus on a wide variety of manufacturing industries in a broad array of legal disputes, including sale of goods, branding and brand protection, transportation and logistics, supply and outsourcing contracts, unpaid accounts, internal business disputes, construction and urgent remedies. The automotive industry, the food and beverage industry and technology industries in the Toronto – Waterloo Innovation Corridor comprise the most substantial sectors of the Ontario manufacturing landscape. We also can provide advice and representation to the many other manufacturing industries in Toronto and elsewhere in Ontario, including these: Automated Machinery and Robotics, Automotive Industry, Auto Parts Manufacturing, Building Materials, Canning and Bottling, Chemical Manufacturing and Supply, Clean Tech, Computer Equipment and Electronic Equipment, Concrete, Brick, Glass, Drywall, Lumber and Stone, Confectionery, Food and Beverage, Financial Technology, Furniture Manufactures and Importers, , Bottling, Packaging and Containers, Heating, Ventilation and Air Conditioning – HVAC, Insulation and Environmental Solutions, … Read More
Shareholder Disputes, Oppression Remedy, and Liability of Directors and Officers
Our lawyers have acted in Ontario and other jurisdictions for small, mid-sized and large Ontario and Canadian corporations, shareholders, directors, officers, executives and creditors in corporate disputes and shareholder disputes. We have acted in both oppression remedy action and derivative actions. Oppression Remedy The oppression remedy is a mechanism in the Ontario Business Corporations Act and the Canada Business Corporations Act to protect the interests of shareholders and stakeholders in a corporation against wrongful conduct. Whether the Ontario or Canada Act will apply depends on the jurisdiction in which the corporation was incorporated. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the acts of other shareholders, the board of directors or other affiliates of the corporation. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the acts of other shareholders, the board of directors or other affiliates … Read More
Partnership Disputes Between Professionals – Dentists, Doctors, Accountants, Lawyers, Architects and Engineers
Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Lastly, some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact … Read More
Service of Foreign Process (including U.S. Proceedings) in Ontario, Canada
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). The Hague Service Convention requires its member States to designate a “Central Authority” to accept incoming requests for service. The Central Authority in Canada, on the federal level, is the Attorney General for Canada, and the Central Authority on the provincial level, in Ontario is the Attorney General, the Ministry of the Attorney General or the Minister of Justice. In Ontario, service of foreign proceeding under the Hague Service Convention requires that a completed Request for Service Abroad of Judicial or Extrajudicial Documents Form together with the prescribed number of originating process documents and prescribed fee to the Ministry of the Attorney General for Ontario. There are alternatives to the Hague Service Convention service of foreign process in Ontario. If you are seeking advice or … Read More
Cart Before the Horse – Requesting Accommodations to Condominium Common Elements Before Commencing Litigation
In Charlie Andrews v. Great Gulf, 2019 HRTO 370, the applicant, a condominium owner, alleges that the respondent, builder of the condominium complex, failed to provide gender-inclusive washrooms in the pool and stream areas of the condominium building. The builder of the condominium complex did not file a response, but rather, asked that the matter be dismissed as it had no prospect of success, as the builder could not be held liable for the alleged discrimination, since: It no longer had an ongoing service relationship with the condominium; The applicant, as a condominium board member could not point to any requests by any individual, including themselves, that the builder or condominium provide gender-inclusive change rooms; The subject areas that were allegedly discriminatory were located in the common elements of the condominium and related to accessibility, rendering it the responsibility of the condominium, of which the applicant was a member; and At the time the … Read More
Andrew Ottaway Writes Article on CISG for Law Times
The Law Times recently published an article by Andrew Ottaway on the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”). The article includes: a discussion of the recent case of Solea International BVBA v. Bassett & Walker International Inc., 2018 ONSC 4261 (CanLII), in which the Ontario Court applied the CISG; a discussion of the near total obscurity of the CISG in Ontario; examples of the notable differences between the CISG and the Ontario common law / Sale of Goods Act. The article can be read in its entirety here. The lawyers at Gilbertson Davis LLP have experience in commercial litigation, including cross-border litigation involving the CISG. Contact us for an initial consultation.
Ontario Court Considers United Nations Convention on Contracts for the International Sale of Goods on Summary Judgment Motion
In Solea International BVBA v. Bassett & Walker International Inc., 2018 ONSC 4261, the Ontario Court of Appeal had directed the Superior Court to rehear a motion for summary judgment applying the provisions of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), representing a rare instance of the Ontario Court explicitly considering the CISG. The case involved the sale of shrimp by the plaintiff to the defendant. The defendant argued, among other things, that it was not required to pay for the shrimp because the plaintiff breached a fundamental term of the contract, being provision of a Health Certificate with a statement guaranteeing that the shrimp was free of certain diseases. The defendant argued that as a result of breach of a fundamental term, it was entitled to declare the contract avoided (pursuant to Article 49 of the CISG). In rejecting that defence, the … Read More
Court Stays Injunction Claim in Favour of Arbitration / Refuses to Consolidate Arbitration Proceedings Without Consent of All Parties
In Loan Away Inc. v. Western Life Assurance Company, 2018 ONSC 7229, the plaintiff had an agreement with the defendant by which the plaintiff sold the defendant’s insurance policies in return for payments by the defendant. The defendant ceased making payments and the plaintiff commenced an action against the defendant for an injunction to require the defendant to make the payments to the plaintiff and to prevent the defendant from terminating the insurance policies that the plaintiff had sold on the defendant’s behalf. The defendant relied upon an arbitration clause in its agreement with the plaintiff to stay the action. The plaintiff argued, among other things, that the claim should not be stayed because the arbitration clause contained arbitration clause contained an exception for requests for a temporary restraining order or other forms of injunctive relief. The plaintiff argued that its request for a permanent injunction fell under the category … Read More
Summary Judgment Motion Publication: Sentinels of the Hryniak Culture Shift: Four Years On
David Alderson, Senior Counsel-Commercial Litigation at Gilbertson Davis LLP, is the author of the chapter entitled Sentinels of the Hryniak Culture Shift: Four Years On, included in the Annual Review of Civil Litigation 2018 , (Ed. by the Honourable Justice Todd L. Archibald, published by Thomson Reuters Canada Limited) a copy of which can be accessed here, and which contains the following in the Overview: “Mr. Alderson has done a masterful job in reviewing the post-Hryniak judgment landscape. He canvasses whether or not our courts have embraced the advocated Hryniak culture shift in civil litigation through the simplification of pre-trial procedures and the principle of proportionality. Before embarking upon a summary judgment motion, all counsel should carefully read Mr. Alderson’s paper because it provides superb guidance concerning the prospects of success not only before the motions judge but on appellate review. Mr. Alderson’s paper is a comprehensive tour de force for all advocates.” – The Hon. Justice Todd Archibald, Ontario Superior Court of … Read More
Canadian Court Shuts Down Loan Shark’s Law Suit
In Canada, it is not everyday one witnesses a loan shark resorting to judicial process to collect on outstanding obligations. In fact, outside cases involving payday loans and hidden credit card fees, where legitimate loans might inadvertently cross the 60% interest rate threshold under s. 347 of the Criminal Code, we have to date not seen any cases where the court has considered enforcement of blatantly usurious loans bearing interest of, say, 2,000% APR, as the Superior Court did in Ikpa v. Itamunoala, now available on line. Gilbertson Davis successfully obtained summary judgment rejecting the bid by the plaintiff, a resident of the United Kingdom (where laws banning usury no longer exist), to recover USD$500,000 on a USD$100,000 promissory note that had remained outstanding for four months before the start of litigation. The plaintiff sought to have an equitable mortgage securing the note paid out in priority to the defendants’ registered mortgage. … Read More
Federal Court of Appeal Considers Reviewing of Evidence in Judicial Review Applications
In judicial review applications, like most legal proceedings, evidence plays an essential role in securing a successful result. This includes not just the quality of the evidence, but the process through which the court considers that evidence. The Federal Court of Appeal’s recent decision in Apotex Inc. v. Canada (Health), 2018 FCA 147 (“Apotex”) affirms the control accorded to judges when reviewing evidence in judicial review applications.
Ontario Securities Commission Clarifies Test for Severance Motions
In Hutchinson (Re), 2018 ONSEC 40 (“Hutchinson”), the Ontario Securities Commission (“OSC”) considered the proper framework to assess a motion for severance in the context of a regulatory proceeding before the OSC. OSC Staff alleged that the respondent, David Paul George Sidders (“Sidders”), engaged in insider trading with respect to three transactions. The OSC also alleged that three other individual respondents, one of which settled, engaged in insider trading and/or insider tipping. Respondent Sidders moved before an OSC Commissioner (“Commissioner”) to request that it sever his hearing from the hearings of the other remaining respondents. The question before the Commissioner was how to assess, in the context of an OSC proceeding, whether the interests of justice require severance. The Supreme Court of Canada in R v. Last, 2009 SCC 45 (“Last”) listed several factors to consider when balancing the risk of prejudice to the accused with the public interest in … Read More
When is Oral Evidence Required to Resolve Credibility Issues in Summary Judgment Motions?
The Ontario Court of Appeal decision in 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, involved the appeal of a partial summary judgment decision in a dispute between the franchisor and a franchisee of Crabby Joe’s Tap and Grill. In this case, the franchisee operated a Crabby Joe’s franchise for a year and a half prior to serving a notice of rescission of the franchise agreement on the franchisor. Claims The franchisee claimed that the disclosure document provided was materially deficient and it was entitled to rescind the franchise agreement within two years of execution of the franchise agreement under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000 (“the Act”). The franchisee claimed for rescission damages under section 6(6) of the Act and also damages for breach of contract and breach of the fair dealing obligations under the Act. In response, the franchisor brought a counterclaim for a declaration that the franchise agreement was validly terminated and a … Read More
Popack v. Lipszyc: Recognition and Enforcement of Arbitration Awards – Clarifying the term “binding”
Popack v. Lipszyc appears to be the first Ontario Court of Appeal case on the recognition and enforcement of arbitration awards under the 2017 International Commercial Arbitration Act (“ICAA”). The ICCA includes the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and the 2006 amended version of UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). The appellants used articles 35 and 36 of Model Law to apply for the recognition and enforcement of the international commercial arbitration award they received in August 2013 against the respondents. While the application judge dismissed the application, the Court of Appeal allowed the appeal. The Court of Appeal stated that “in Ontario, a strong “pro-enforcement” legal regime” exists for the recognition and enforcement of international commercial arbitration awards, as grounds for refusal are “to be construed narrowly”. Importantly, the Court, and not the tribunal, is the proper avenue to … Read More
Court Grants Interim, Interim Injunction Without Specific Evidence of Harm
In Knowmadics v. Cinnamon, 2018 ONSC 4451 (CanLII) the plaintiff company sought an urgent interim, interim injunction regarding an app sold by the defendants pending the hearing of a motion for an interlocutory injunction. The plaintiff sold specialized computer software. The individual defendant was employed by the plaintiff and signed an employment agreement, including a confidentiality and non-competition clause. The defendant also had a business, the corporate co-defendant, which did subcontracting work for the plaintiff after the defendant resigned from employment with the plaintiff. The corporate defendant signed a non-disclosure agreement with the plaintiff. The plaintiff alleged that the defendants were selling certain software that directly competed with the plaintiff’s software and infringed the plaintiff’s copyrights. The plaintiffs commenced an action against the defendants. After commencing the action, the plaintiff alleged that they learned that the defendants were also selling a certain app over which the plaintiffs asserted ownership. The … Read More
Entire Agreement Clause Upheld in Manorgate Estates Inc. v. Kirkor Architects and Planners
Entire Agreement Clauses are meant to prevent negotiations that occurred prior to the contract being formed from influencing the Court’s interpretation of the terms set out in the final contract. In other words, past discussions are to have no bearing on the understanding of the contractual terms. In theory, a fully integrated agreement of this kind supplants any earlier oral or written agreements. There is competing jurisprudence in which Entire Agreement Clauses have been both effective and ineffective. However, Manograte Estates Inc. v. Kirkor Architects and Planners is a recent Ontario Court of Appeal decision where an Entire Agreement Clause was effective. In Manograte Estates Inc. v. Kirkor Architects and Planners, the Ontario Court of Appeal upheld the Motion Judge’s decision that the Entire Agreement Clause in the relevant agreement, regarding architectural consulting for a construction project, operated as a complete defence to the appellants’ claim of alleged negligent misrepresentation. The Entire Agreement Clause … Read More