Legislation based on the UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 (the “Model Law”) has been adopted in 80 States in a total of 111 jurisdictions, including Canada, Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Quebec, Saskatchewan and Yukon. The legislation in Ontario, Canada, amends previous legislation based on the Model Law and is based on the text, with amendments as adopted in 2006, of the UNCITRAL Model Law on International Commercial Arbitration. Recent jurisdictions to enact Model Law legislation include: In 2018: British Columbia (the legislation amends previous legislation based on the Model Law). In 2017: Australian Capital Territory, Fiji, Jamaica, Mongolia, Qatar, and South Africa. In 2016: Myanmar, Republic of Korea, and Uganda. The continued expansion of an already substantial number of jurisdictions enacting Model Law legislation means even greater harmonization of national laws through all stages … 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
Fork In the Road: Critical Considerations by Condominium Corporations in Anticipatory Failed Closings
In 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, the purchasers, Ottawa Medical Square Group, entered into an Agreement for Purchase and Sale to purchase condominium units owned by the vendor, 1179 Hunt Club Inc. The value of the commercial condominium units in the Hunt Club Project was $5.6 million dollars. Five days before closing, the purchasers, sent a request to the vendor, requesting an extension of time as the purchasers had not yet finalized their arrangements for financing. Three days before closing, the vendor advised that it would insist on closing, and if the purchaser could not close, it would exercise its rights and remedies under the Agreement for Purchase and Sale. On the date of closing, the vendor learned that the Land Registry Office had made an error in assigning parcel identification numbers. Although this error was ameliorated later that day, this mishap, prevented … Read More
David Street to facilitate at the Law Society of Ontario’s Advanced Roundtable on Shareholder Disputes.
On October 2, 2019 David Street will be one of four corporate lawyer facilitators at the Law Society of Ontario’s Advanced Roundtable on Shareholder Disputes. This continuing professional development program is intended to assist corporate lawyers and litigators to work together to manage and assess shareholder disputes and better resolve such disputes when they do arise.
Toronto Condo Arbitrator – Independent, Reasonable Fees and Available
David Alderson, LL.B., LL.M, Q.Arb – Condo Dispute Arbitrator Sole Arbitrator – $495.00 per hour, plus HST David has been accredited by the ADR Institute as Canada as a Qualified Arbitrator (Q.Arb). He accepts appointments as a commercial arbitrator, including as condominium dispute arbitrator, at a reasonable hourly fee rate, plus facilities and applicable taxes) and with good availability. The Ontario Superior Court of Justice has appointed David in commercial (including condominium) arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. He has legal experience in arbitration in under different institutional and ad hoc rules, in a wide variety of matters. David accepts appointment as sole arbitrator and party-appointed arbitrator in a wide variety of condominium disputes. David has … Read More
Commercial Lease Dispute Arbitrator – Leasing Disputes and Rent Arbitration
David Alderson, LL.B., LL.M, Qualified Arbitrator – Arbitrator for Commercial Lease Disputes Sole Arbitrator – $495.00 per hour, plus HST David has been accredited by the ADR Institute as Canada as a Qualified Arbitrator (Q.Arb). He accepts appointments as a commercial arbitrator, including as commercial lease dispute arbitrator, at reasonable hourly rates and with good availability. The Ontario Superior Court of Justice has appointed David in commercial arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. David is Member Roster Arbitrator on the Ontario Bar Association Remote Arbitration and Mediation List. Local Experience David has appeared as a barrister in the Ontario Superior Court of Justice (including the Commercial List), the Divisional Court, the Ontario Court of Appeal, the … Read More
Toronto Arbitrator for Shareholder Disputes, Partnership Disputes and Property Disputes
David Alderson, LL.B, LL.M, Q.Arb: Commercial Arbitrator for Shareholder Disputes, Partnership Disputes and Joint Venture Disputes Competitive Hourly Fee Rates Offered. Sole Arbitrator – $495.00 per hour, plus HST David has been accredited by the ADR Institute as Canada as a Qualified Arbitrator (Q.Arb). He accepts appointments as a commercial arbitrator (sole arbitrator and party appointee) at reasonable hourly rates and with good availability. He accepts appointment as arbitrator in shareholder disputes, partnership disputes and joint venture disputes. The Ontario Superior Court of Justice has appointed David as arbitrator in commercial arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. David is on the Member Arbitrator on the Ontario Bar Association Remote Arbitration and Mediation Member Roster. David has … Read More
Court of Appeal Analyzes Exclusive Jurisdiction Clause
In Forbes Energy Group Inc. v. Parsian Energy Rad Gas, 2019 ONCA 372 (CanLII), the plaintiff commenced an action seeking a declaration that it was not obligated to make payments to the defendants under a contract. The contract contained a clause stating that it was “governed by and construed in accordance with the laws of England and the Parties agree to attorn to the courts of England”. The defendants sought to stay the action on the basis of that clause in favour of the courts of England. The motion judge granted a stay, finding that the plaintiff had failed to meet the test to displace a forum selection clause: to demonstrate “strong cause” that the clause should not be enforced. On appeal, the Court of Appeal stated the “strong cause” test only applies to forum selection clauses that grant exclusive jurisdiction to a foreign jurisdiction. The motion judge did not … Read More
Are Section 44 Exam Reports under SABS Subject to PIPEDA Disclosure?
To date, the Ontario personal injury bar has assumed that assessors and “IME” companies performing examinations under s. 44 of the Statutory Accident Benefits Schedule (SABS) are subject to access requirements under the Personal Information Protection and Electronic Documents Act (PIPEDA). The “leading case” on IME’s and PIPEDA, Wyndowe v. Rousseau, a decision of the Federal Court of Appeal, held that a doctor appointed to perform an independent medical examination under a disability insurance policy had to provide access to a final report and notes. The disability insurer’s internal process under the private insurance policy would not have been a formal dispute resolution process and therefore not exempt from PIPEDA. Under clause 9(3)(d) of PIPEDA, an organization is not required to give access to personal information if it was “generated in the course of a formal dispute resolution process.” Is a s. 44 examination subject to that exemption? The federal Office of the Privacy … Read More
Court Clarifies “Clean Hands” Doctrine Applies to Post-Breach Conduct
In 232702 Ontario v 1305 Dundas, 2019 ONSC 1885, the Ontario Superior Court of Justice recently considered the “clean hands” doctrine in the context of a terminated commercial lease for non-payment of rent. Importantly, the Court clarified that the doctrine of “clean hands” is not restricted to conduct occurring prior to the breach, but encompasses subsequent conduct as well. The Test for Relief from Forfeiture Under s. 98 of the Courts of Justice Act and s. 20 of the Commercial Tenancies Act, a court may grant relief from forfeiture, including forfeiture of a lease for non-payment of rent. The court’s power to relieve from forfeiture is an equitable remedy. It is discretionary, fact-specific and granted sparingly. The party seeking relief must prove that enforcing the contractual right would lead to inequitable consequences. In Saskatchewan River Bungalows Ltd. v Maritime Life Assurance Co., the Supreme Court of Canada held that a … Read More
Employee or Not? An Uber Problem to be Decided by Ontario Courts: Arbitration Not the Route
In its first reported decision of the year, the Ontario Court of Appeal has allowed a proposed class action against Uber to proceed in Ontario court. Facts The Appellant commenced a proposed class action in January 2017. They sought, among other things, a declaration that Uber drivers are employees of Uber and governed by Ontario’s Employment Standards Act [“ESA”], as well as $400 million in damages payable to the class for alleged Uber violations of ESA provisions. Prior to certification, Uber brought a motion to stay the proceeding, requesting the court to enforce a clause in the agreement that requires all disputes to be arbitrated in Amsterdam according to the law of the Netherlands. Ontario Superior Court of Justice The motion judge held that the arbitration clause was enforceable and stayed the action. Applying the Supreme Court of Canada’s Seidel decision and the Ontario Court of Appeal’s TELUS ruling, the motion … Read More
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
Ontario Court of Appeal Considers Contractual Duty of Good Faith
In CM Callow Inc. v. Zollinger, 2018 ONCA 896 (CanLII) the plaintiff company provided maintenance services to condos managed by the defendant condo corporations. The defendants entered in two two-year maintenance contracts with the plaintiff: one for summer maintenance and one for winter maintenance. The winter contract (which ran from November 2012 to April 2014) allowed for early termination by the defendants on 10 days’ notice. In March or April of 2013, the defendants decided to terminate the winter contract, but did not provide notice of termination of the agreement until September 12, 2013. The defendants delayed informing the plaintiff that they were terminating the contract in order to avoid interfering with the defendant’s work under the summer contract (which ran from May 2012 to October 2013). The plaintiff provided free work in the summer of 2013 as an incentive for the defendants to renew the contracts. The defendants knew … Read More
Supreme Court Considers an ISP’s Right to Costs in Norwich Orders for Copyright Infringement
Norwich Orders have become a common tool to detect wrongdoers hiding behind the elusive veil of the internet. Whether the matter is with respect to defamation, intellectual property infringement, or fraud, the equitable remedy of pre-action discovery to compel Internet Service Providers (“ISPs”) to disclose a wrongdoer’s identity can help claimants determine their causes of action before they commence litigation. A question that has been raised, however, is who bears the costs of the Norwich Order? Is it the claimant seeking the Norwich Order or the ISP subject to the equitable remedy? To complicate the matter further, how does this interact with an ISP’s obligations under the “notice and notice” regime pursuant to Canada’s Copyright Act? By way of background, ss. 41.25 and 41.26 of the Copyright Act govern the statutory “notice and notice” regime for alerting alleged copyright infringers in Canada. These sections under the Copyright Act state that … Read More
Ontario Court Finds No Jurisdiction in Multinational Class-Action against Volkswagen
In Leon v. Volkswagen AG, 2018 ONSC 4265 (CanLII), the plaintiff, who resides in Ontario, purchased American Deposit Receipts (ADRs) in respect of Volkswagen shares. The Volkswagen shares plummeted when Volkswagen disclosed that it had perpetrated fraud. Owners of the common shares commenced proceedings in Germany. The plaintiff initially commenced a class action in respect of his ADRs in New Jersey. The plaintiff conceded in the New Jersey action that the US Federal Court had jurisdiction over the subject matter of the claim and that the venue was proper. However, the plaintiff later withdrew from the US proceedings and commenced the subject class action in Ontario. The Ontario class action included Ontario purchasers of the ADRs and of common shares (unlike the US proceedings, which were in respect of ADR purchasers only). Volkswagen brought a motion to dismiss the action on the basis that Ontario did not have jurisdiction … 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.
Court of Appeal Considers Ontario Labour Relations Board’s Jurisdiction, Limitation Periods in Class Actions
In United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671 (“Quality Meat Packers”), the Ontario Court of Appeal considered (1) the Ontario Labour Relations Board’s (“OLRB”) jurisdiction to decide claims related to the wrongful dismissal of unionized employees; and (2) whether, in proposed representative proceedings under Rules 12.08 and 10.01, representation orders must be obtained during the limitation periods for the individuals’ claims.