Service Abroad in Civil and Commercial Litigation

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorBusiness Litigation, Casino Debt Recovery, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Corporate Litigation, Cross-Border Litigation, Hague Conventions, International Commercial Arbitrator, International Distribution, International Litigation, International Reinsurance Dispute, International Sale of Goods, Internet Defamation, Online Defamation, Passing Off, Request for International Judicial Assistance, Trademark Infringement0 Comments

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

Tyler O’HenlyAlternative Dispute Resolution (ADR), Arbitration, Arbitrators, Business Dispute Arbitrator, Business Disputes, Business Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Arbitrator, Commercial Contracts, Commercial Law, Commercial Litigation, Contract Disputes, Corporate Litigation, Injunction & Specific Performance, Internet | Technology, Moving Litigation to Arbitration, Technology Arbitrator0 Comments

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

Internal Business Disputes in Trades, Subtrades, Contractors and Subcontractors

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAppointing Auditor, Appointing Inspector, Business Disputes, Business Torts | Economic Torts, Closely-Held Business Disputes, Commercial, Corporate Disputes, Corporate Litigation, Derivative Actions, Directors' and Officers' Liability, Oppression Remedies, Partnership Dispute, Partnerships and Shareholder Disputes0 Comments

Internal Business Disputes in Trades, Subtrades, Contractors and Subcontractors Our Business Dispute Practice Group can represent shareholders in dispute with other shareholders and/or directors in Closely Held Businesses, Family Businesses, and Startup Businesses. Often a dispute arises because a shareholder cannot obtain access to financial information, financial statements, financial documents and records of the corporation, voting rights, rights with respect to meetings or fraud. In some circumstances, an application can be made by a shareholder for access to financial information, financial statements and records of the corporation.  Shareholders remedies include oppression remedy actions and derivative actions, and the appointment of an auditor or an an inspector.  One of our senior business litigation lawyers was a faculty member of the Osgoode PD professional development program concerning Shareholder Litigation and the Closely-Held Company.  Oppression Remedy The oppression remedy is a mechanism in the Ontario Business Corporations Act and the Canada Business Corporations Act to protect the interests … Read More

Launching New Claim in Face of Limitation Deadline, Where Prior Claim Commenced, Not an Abuse of Process

Sabrina Saltmarsh, B.A. (Hons), J.D.Civil Litigation, Commercial, Commercial Litigation0 Comments

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

Impact of Divorce or Separation on a Family Business

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorBusiness Disputes, Closely-Held Business Disputes, Commercial, Division of Property, Family Business Disputes, Family Law, Injunction & Specific Performance, Oppression Remedies, Partnership Dispute, Partnerships and Shareholder Disputes, Sale of Business Disputes0 Comments

Family Business Challenges from Divorce or Separation Many businesses in Canada are family businesses or have evolved from family businesses. Family businesses present many unique challenges as they grow should the personal relationships of the key members of the family business change or deteriorate. Divorce and separation can have serious impact upon family-owned and family-run businesses, whether incorporated companies or partnerships. Changes in a family business and the challenges presented by change can often result in legal disputes between interested parties. Family business disputes are often be protracted, expensive, and disruptive, and may even result in the sale, division or winding up of the family business. Impact of Separation and Divorce on Family Businesses Complex questions arise in the division of property and assets when dealing with a family business during a separation or divorce. The value of the family business is included in the equalization of net family property … Read More

Court of Appeal Affirms Limitation Period for Recognition and Enforcement of Foreign Judgments

Sabrina Saltmarsh, B.A. (Hons), J.D.Commercial, Cross-Border Litigation, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments0 Comments

In the recent Court of Appeal decision of Sunlight General Capital LLC v. Effisolar Energy Corporation, 2023 ONCA 133, the Court of Appeal reaffirmed the principles established in  Independence Plaza 1 Associates L.L.C. v. Figliolini, 2017 ONCA 44, 136 O.R. (3d) 202, (“Independent Plaza 1”) at para. 3, that the limitation period for the recognition and enforcement of a foreign judgment begins to run from the date on which the right of appeal in respect of that judgment expires, and not from the date of issuance of the judgment. Facts: The Respondent, Sunlight General Capital LLC (the “Respondent”), had obtained a judgment against the Appellant, Effisolar Energy Corporation (the “Appellant”), in the Supreme Court of New York for approximately 1.6 million U.S. The judgment was issued on October 18, 2018, and on May 19, 2019, an appeal with the Supreme Court of New York was administratively dismissed. The Respondent moved … Read More

Nick Poon Comments on Tim Hortons’ Roll Up to Win Contest for CTV News

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes, Gilbertson Davis LLP News, Misrepresentation0 Comments

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

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes0 Comments

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

Entire Agreement Clause Not A Shield To Fraudulent Misrepresentation

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Construction Litigation, Contract Disputes, Real Estate Litigation0 Comments

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

Sabrina Saltmarsh, B.A. (Hons), J.D.Alternative Dispute Resolution (ADR), Appeals, Appellate Advocacy, Arbitration, By-laws, Civil Litigation, Commercial, Commercial Condos, Commercial Contracts, Commercial Litigation, Condo Arbitrator, Condo Litigation, Industrial Condos, Residential Condos0 Comments

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

Ontario Court of Appeal Rejects Recognition of Ricochet Judgment at Common Law

Sabrina Saltmarsh, B.A. (Hons), J.D.Commercial, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments0 Comments

In the recent Court of Appeal ruling of H.M.B. Holdings Limited v. Antigua and Barbuda, the Court of Appeal for Ontario considered whether an Ontario court should recognize and enforce a recognition and enforcement judgment (Ricochet Judgment) from another province pursuant to the common law. Background: The dispute between these parties has had a long history in the Ontario Courts and the Supreme Court of Canada. The Applicant H.M.B. brought an application to have an enforcement judgment of the province of British Columbia (B.C.) recognized in Ontario. Pursuant to default proceedings, the Supreme Court of B.C. recognized and enforced a foreign judgment issued by the Judicial Committee of the Privy Council (the Privy Council). The Respondent, the Attorney General of Antigua and Barbuda (Antigua) expropriated property owned by the appellant, located in Antigua and Barbuda. The Privy Council awarded compensation to H.M.B. for the expropriation. Antigua did not defend or … Read More

Broker and Agent Liability Claims Arbitrator – Reasonable Fees – Good Availability

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAgency Arbitrator, Arbitration, Broker and Agent Claims, Brokerage Arbitrator, Commercial, Commercial Arbitrator, Real Estate Arbitrator, Sale of Business Arbitrator0 Comments

David Alderson, LL.B, LL.M, Qualified Arbitrator Broker Dispute Arbitrator | Agent Dispute Arbitrator  David Alderson is an independent, experienced and qualified Arbitrator. His practice in broker and agent claims in real estate, mortgage, business, securities and investment, insurance and  reinsurance, distribution, marine and transportation cases make him an ideal choice as sole or panel arbitrator in broker and agent claims arbitrations. He has been appointed by the courts in commercial arbitration disputes. Broker and Agent Claims Arbitration  David can be appointed in arbitrations concerning these professionals: Business (Sale of) Brokers Real Estate Brokers and Agents Realtors Mortgage Brokers Stockbrokers Securities Brokers Commodities Brokers Insurance  Brokers and Agents Life Insurance Agents Commercial Brokers Merchandise Broker Shipbrokers Yacht Brokers Freight Brokers Arbitration Expertise   David has arbitrated disputes on a wide variety of matters, and has been appointed by the Ontario Superior Court of Justice as sole arbitrator in commercial arbitration matters. He is an arbitrating … Read More

Procurement Dispute Arbitrator – Independent, Qualified, Reasonable Hourly Fees, and Good Availability

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Arbitrators, Commercial, Energy Arbitrator, Infrastructure Arbitrator, International Commercial Arbitrator, International Joint Venture Arbitrator, IT Arbitrator, Joint Venture Arbitrator, Marine Arbitrator, Procurement Arbitrator, Procurement Dispute Arbitrator, Sale of Goods Arbitrator, Technology Arbitrator, Transportation Arbitrator0 Comments

Procurement Arbitrator, Procurement Dispute Arbitration, Government Procurement ADR, Public Procurement Arbitrator, Goods and Services Dispute Arbitrator, Public Contract Arbitrator and P3 Contract Dispute Arbitrator Sole Arbitrator – $450.00 per hour, plus HST David Alderson is an independent, experienced and Qualified Arbitrator whose domestic and international practice in sale of goods and services, infrastructure, construction, projects, project finance and joint ventures make him an ideal choice as sole or panel arbitrator for procurement disputes involving any level of Government. The administration of arbitral services is provided by Gilbertson Davis LLP Arbitration Chambers, an established arbitration chambers serving Ontario and elsewhere, from its office in the Toronto Financial District.  David Alderson has been appointed by the Ontario Superior Court of Justice in commercial arbitration disputes. Procurement Disputes David can arbitrate disputes arising from contracts for goods or services involving any level of government in Canada, provinces or municipalities, multi-level joint venture, involving … Read More

Motion by Arbitrator | Application by Arbitrator | Procedure Arbitration

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAppeals, Application by Arbitrator, Arbitration, Arbitrators, Business Dispute Arbitrator, Case Management Arbitrator, Commercial, Commercial Arbitration, Commercial Arbitrator, Motion by Arbitrator, Moving Litigation to Arbitration0 Comments

TorontoArbitrator.com  Sole Arbitrator – from $450.00 per hour, plus HST Access to Justice  Parties Agree That Motions & Applications be Heard and Determined by an Arbitrator  Lawyers are already doing this to address the needs of their clients in existing civil and commercial litigation in the courts. The courts in Ontario continue to address access to justice in the time of the coronavirus, providing a triage process to determine which matters are considered urgent and should be heard. Video conference arrangements in the courts have evolved.  We are mindful that both criminal and family law matters are likely to take priority both now and when traditional hearings become available post-coronavirus. Due to the current difficulty in obtaining an early date for the hearing of a motion or of an application, commercial and civil litigation lawyers are proactively addressing their client’s needs by arbitrating motions and application.  They agree to do … Read More

Business Dispute Arbitrator – Qualified Arbitrator with Reasonable Fees

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAgency Arbitrator, Arbitration, Arbitrators, Brokerage Arbitrator, Business Arbitrator, Business Dispute Arbitrator, Commercial, Commercial Arbitration, Commercial Arbitrator, Commercial Lease Arbitrator, Distribution Arbitrator, Employment Dispute Arbitrator, Energy Arbitrator, Franchise Arbitrator, Infrastructure Arbitrator, International Commercial Arbitrator, Internet Arbitrator, Investment Arbitrator, IT Arbitrator, Joint Venture Arbitrator, Licensing Arbitrator, Partnership Arbitrator, Partnership Dispute Arbitrator, Real Estate Arbitrator, Reinsurance Arbitrator, Sale of Business Arbitrator, Sale of Goods Arbitrator, Shareholder Arbitrator, Shareholder Dispute Arbitrator, Technology Arbitrator0 Comments

Business Disputes Arbitrator | Business Claims Arbitrator | Experienced Business Dispute and Business Claim Arbitrator | Independent and Qualified Arbitrator with Reasonable Fees and Good Availability  Sole Arbitrator – $450.00 per hour, plus HST Experience  David Alderson, LL.B, LL.M (Commercial and Corporate), Qualified Arbitrator accepts arbitrator appointments, both as sole arbitrator and as panel arbitrator, for business disputes and business claims, including corporate disputes, shareholder disputes, joint venture disputes, family business disputes, closely held business disputes and start-up business disputes, as well as sale of business disputes. He is qualified, independent, and offers appointment on reasonable fees and with good availability. The Ontario Superior Court of Justice has appointed David as arbitrator in commercial arbitration matters and he regularly sits as an arbitrator in business and commercial disputes. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in … Read More

Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCivil Litigation, Commercial, Commercial Litigation, Summary Judgment0 Comments

Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge[i] David Alderson[ii], Senior Counsel – Commercial Litigation, at Gilbertson Davis LLP, co-counsel for the 13 plaintiffs (one of which was Mauldin), that responded to the appeal to the Supreme Court of Canada in Hryniak v. Mauldin[iii], that responded below to the appeal in the Ontario Court of Appeal, and that obtained summary judgment in the Ontario Superior Court of Justice, being the judgment which was appealed, has written two chapters of the Annual Review of Civil Litigation[iv], which if read together comprise a seven year survey of the appellate cases across Canada considering Hryniak and summary judgment. The chapter entitled Sentinels of the Hryniak Culture Shift: Four Years On[v], included in the Annual Review of Civil Litigation 2018[vi] covers appellate cases for the first four years following the Supreme Court of Canada decision. The second chapter Emerging Burdens of the Summary Judgment Motion … Read More

Supreme Court of Canada Clarifies Duty Of Honest Performance In Contractual Relationships

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Disputes, Commercial, Commercial Condos, Commercial Contracts, Commercial Litigation, Condo Litigation, Construction Liens, Contract Disputes0 Comments

In the decision of C.M. Callow Inc. v. Zollinger, 2020 SCC 45, the Supreme Court of Canada (SCC) expands on the scope of the duty of honest performance in contractual relationships, previously established by the SCC ruling in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494. Our firm previously blogged about the Court of Appeal Ruling in this case. See the previous blog here. The case concerns a breach of contract claim made by the Plaintiff. The Plaintiff is a company that provides maintenance services to condominium communities. The Defendants, a group of condominium corporations, had winter and summer maintenance contracts with the Plaintiff that renewed every two years. The contracts originated in 2012 and ran to 2014. In March or April of 2013, the Defendants decided to terminate the winter contract but they did not provide notice of their intention to terminate until September of 2013. The Defendants delayed … Read More