The recent Ontario Superior Court of Justice decision in David v. Loblaw, 2018 ONSC 198, involved a motion brought by the plaintiff to challenge the terms of a $25 consumer card program that the Loblaw defendants (“Loblaws”) had offered to consumers after various class actions were commenced in connection to a bread price fixing scheme that Loblaws participated in from 2002 to 2015. Customers may sign up for the consumer card, either online or by paper application, by declaring that he or she had purchased bread from Loblaws during the relevant time period. The application advised customers that sign up for the consumer card that they will still be eligible to receive “incremental compensation” and recommended they seek legal advice from plaintiff’s counsel or from independent counsel. The application also included a form of Release, which read in part as follows: In exchange for this twenty-five (25) Canadian Dollar Loblaw Card you hereby release and forever discharge Loblaw … Read More
Court of Appeal Considers Scope of Errors of Jurisdiction under Model Law on International Commercial Arbitration
In Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939, the respondent was constructing a mine. The appellant was contracted by the respondent to build a pipeline. The construction contract contained a three stage dispute resolution process, being: 1) disputes were to be determined by the respondent’s supervising engineer; 2) if the dispute was not resolved, it would be referred to adjudication by a sole adjudicator; and 3) if a party did not accept the adjudication, it could refer the dispute to arbitration pursuant to the International Commercial Arbitration Act, R.S.O. 1990, c. I.9, which incorporates the Model Law. Problems arose in the project. The appellant alleged that the respondent had breached the contract. The appellant sought an extension of the time for performance, compensation for its costs arising from delay, and compensation for additional work. The appellant submitted its claims to the respondent’s engineer for … Read More
Touchdown! University Football Team Scores Interim Interlocutory Injunction
In Saint Mary’s University v. U SPORTS, 2017 ONSC 6749, Justice Archibald of the Ontario Superior Court of Justice recently decided an urgent interim interlocutory injunction brought by Saint Mary’s University to enjoin U SPORTS from releasing its ruling on the eligibility of a Saint Mary’s football player. Background U SPORTS is the national sport governing body of university sports in Canada and has established by-laws and policies to regulate, amongst other issues, the eligibility of student-athletes to participate in university football competition. One of those policies states that “an athlete’s name [that] appears, with his acquiescence, on a [CFL] practice roster … or such other list that directly or indirectly confers a monetary benefit to the athlete” is prohibited from participating in university sports “within one year” of CFL participation. It was not disputed by the parties that the football player was on a CFL non-active practice roster from September 14, 2016 to October 11, … Read More
Nick Poon Comments on Privacy Issues for the Toronto Star
Nick Poon was recently asked to comment on privacy issues associated with filming in public places for the Toronto Star. Read the Toronto Star article here: Chinatown filming notice provokes heated debate on social media. If you have a privacy issue or contract dispute in the field of media and entertainment, please contact us for an initial consultation.
Ontario Court Finds Jurisdiction Resulting From Cumulative Effect of Individually Insufficient Connecting Factors
In Freshway Services Inc. v. CdEnviro Ltd., 2017 ONSC 6591, the plaintiff Ontario company contracted with the defendant Northern Irish company. The defendant was to build a waste recycling facility and install it at the plaintiff’s facility in Ontario. A third party to provide warranty coverage and servicing for components of the waste recycling plant, once it was built and delivered to Ontario. A dispute arose between the parties, and the plaintiff sued the defendant in Ontario. The defendant brought a motion to stay the Ontario action on the basis that Ontario lacked jurisdiction. The motion judge considered the the presumptive connecting factors for jurisdiction set out by the Supreme Court in Club Resorts Ltd. v Van Breda, 2012 SCC 17, being whether the contract was made in the Ontario: whether the defendant was carrying on actual business in Ontario; whether the defendant is resident in Ontario; or where the … Read More
Court of Appeal Confirms Strict Notice Requirements in the Termination of Commercial Leases
The Ontario Court of Appeal in Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc., 2017 ONCA 798, recently overturned a summary judgment motion decision involving the termination of a commercial lease agreement. In this case, the tenant had operated a dry cleaning business for 12 years before the lease was converted into a month-to-month tenancy. After the new landlord purchased the property and was assigned the lease, it demanded the tenant provide evidence that it had successfully completed a course related to the management of dry cleaning contaminants and waste. Even though the tenant advised that the Ministry of Environment had deemed the course to be unnecessary and the course was not available until the following year, the new landlord terminated the lease and retained a bailiff to re-enter and re-possess the premises. The tenant brought an action for damages arising from the unlawful termination of the lease. The new landlord responded with a counterclaim and brought a summary judgment motion. The … Read More
Toronto Lawyers for Breach of Non-Compete or Non-Solicit Clauses
Our lawyers can advise and represent employers or purchasers of a business regarding the enforcement of non-compete, non-solicit clauses or confidentiality agreements. An employer or purchaser of a business who wishes to enforce a restrictive covenant can pursue an interim injunction from the Court, which prohibits the employee from breaching the covenant. Various types of injunctions may be sought, including: Injunctions enforcing post-termination restrictive covenants; Injunctions preventing the use of the employer’s confidential information. An employer or purchaser of a business can also seek damages following an employee’s breach of a covenant if there is particular loss tied to the breach. An employer or purchaser of a business can also seek damages following an employee’s breach of a covenant if there is particular loss tied to the breach. Why Gilbertson Davis LLP? Our team of lawyers are leading practitioners and provide sound advice and effective representation in time sensitive matters. When … Read More
Court of Appeal Provides Guidance on Interpretation of Success Fee Contract
In RBC Dominion Securities Inc. v. Crew Gold Corporation, 2017 ONCA 648, the Plaintiffs (“RBC”) sued the Defendant (“Crew”) for a success fee (the “Success Fee,”) that RBC alleged it was owed under an agreement for the provision of investment banking services (the “Agreement”). The Agreement provided, among other things, that RBC was entitled to the Success Fee “if a Transaction [was] completed involving any party, whether or not solicited by RBC, pursuant to an agreement to effect or otherwise complete a Transaction entered into during the term of its engagement […]”. RBC provided certain services under the Agreement. During the course of the Agreement, Crew was subject to a takeover. The takeover was not anticipated by either party. RBC was not involved in the takeover transaction. The issue at trial was whether RBC was entitled to the Success Fee for its services. The trial judge found that the … Read More
Supreme Court of Canada Narrowly Rules Facebook’s Jurisdiction Clause Unenforceable
Facebook, and most other large social media and internet companies, set out in their terms of use that users of their services must bring any litigation disputes in the jurisdiction of their choice. However, in Douez v. Facebook, the Supreme Court of Canada has recently held, in a 4-3 decision, that Facebook could not enforce that clause against the plaintiff, a British Columbia woman complaining that their use of her photo and name in advertising breached her rights under British Columbia’s Privacy Act. Notably, the Privacy Act specifically requires that any action under that statute “must be heard” by the British Columbia Supreme Court. The majority held that while a jurisdiction clause is ordinarily enforceable, it could not be enforced in this instance as doing so would violate public policy, since the quasi-constitutional rights the statute provides and the exclusive jurisdiction to BC courts it requires means that the statute ought to be interpreted … Read More
Capturing Online Sales in Shopping Mall Commercial Leases
As more business is done online, and as traditional brick-and-mortar retail stores decrease in popularity, shopping malls and retail shopping landlords are looking for more creative methods to maximize rental income. It is not uncommon for a shopping mall lease to require the tenant to pay a percentage of their sales as part of the additional rent. Many stores, however, also do a significant amount of business online. While tenants usually consider such sales to be separate from sales at their physical storefront, landlords may consider those sales as attributable to the storefront and subject to additional rent. It is important for any commercial lease to be clear how additional rent is calculated, and if additional rent includes a percentage of revenues, it should be clear to all parties what revenue is included and what revenue is excluded. Where a lease is unclear, the court will often rely on the principle of contra proferentum and … Read More
Construction Heavy Machinery & Equipment Disputes
We have experience and can act in matters relating to construction heavy machinery and equipment. Disputes often arise in connection with the purchase and sale, leasing, financing, use or operation of construction heavy machinery. Sometimes disputes arise in relation to ownership or possession of construction heavy equipment. We set out below some of the common types of disputes arising in relation to construction heavy equipment. Types of Disputes Common disputes include those related to: purchase and sale, pre-sale representations, warranties, damaged equipment, sale by auction, shipping heavy machinery and equipment, damages, loss and collapse, hire-purchase disputes, ownership and possession, and repossession by court order. Types of Construction Equipment A vast array of construction equipment is deployed in modern construction projects. Some construction companies lease and others purchase. Some have only occasional need for some construction heavy equipment. Typical construction heavy equipment and machinery includes: Backhoe loaders, breakers, bulldozers, chippers, compactors, concrete plants and pumps, conveyors, … Read More
Court of Appeal Considers Law Applicable to Bifurcation of Disputes between Court and Arbitration
In Wellman v. TELUS Communications Company, 2017 ONCA 433, the Ontario Court of Appeal recently considered the law applicable to determining whether to bifurcate a dispute between court proceedings and arbitration. In Wellman v. TELUS, the plaintiffs consisted of consumers and businesses. The plaintiffs commenced a class action against the defendant, Telus, regarding alleged overbilling. The Telus contact contained an arbitration clause. Telus acknowledged that the arbitration clause was not binding on the consumer plaintiffs (due to the Consumer Protection Act, 2002). But Telus’s position was the the business plaintiffs were bound by the arbitration clause. Telus brought a motion to stay the business plaintiffs’ class action in favour of arbitration. Telus relied upon, among other things, section 7(5) of the Ontario Arbitration Act, which provides for a partial stay of court proceedings to be granted where an arbitration agreement deals with only some of the matters in respect … Read More
Possible Changes to Choice of Court Agreements and Recognition of Foreign Judgments
Ontario recently enacted the International Choice of Court Agreements Convention Act, 2017, which will give effect to the Hague Convention on Choice of Court Agreements (the “Hague Convention”) in Ontario once Canada ratifies the Hague Convention. (Canada has not yet signed or ratified the Hague Convention. It is not yet known when Canada will ratify the Hague Convention. The Uniform Law Conference of Canada adopted a model implementation statute in 2010, suggesting that Canada may sign and ratify the Hague Convention.) In preparation for ratification, Ontario businesses should be aware of the Hague Convention’s key features, including: • where parties of member States have expressly agreed to a court in their contract, the court selected by parties must act in every case as long as the choice of court agreement is valid. The agreed Court does not have discretion (on forum non conveniens or other grounds) to decline jurisdiction in favour of courts of another State. • any court … Read More
International Sale of Goods – the Law Applicable in Ontario
Many Ontario businesses buy and sell goods from foreign companies. However, few Ontario businesses are aware that different laws apply to international purchases and sales of goods. For purchases and sales of goods between Ontario companies, the Ontario Sale of Goods Act will typically apply. However, for purchases and sales of goods between Ontario and foreign companies, the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”) will typically apply. The CISG is “Ontario law”. It is enacted in Ontario by the International Sales Conventions Act. There are a number of key differences between the Ontario Sale of Goods Act and the CISG. One of the most notable is the obligation on the buyer to inspect goods (article 38) and give notice of any non-conformity (article 39). The inspection obligation imposed by article 38 can have significant consequences: if the buyer fails to detect a lack of conformity … Read More
Court of Appeal Reiterates Importance of Pleading Particulars of Fraud
In Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, the trial judge found the appellants liable to a company’s shareholders for fraudulent misrepresentations before and after an initial public offering (IPO). On appeal, the appellants argued that the trial judge erred in finding liability based on the IPO-related statements because the respondents did not plead or argue at trial that such statements amounted to fraudulent misrepresentations. The Court of Appeal stated that a pleading of fraud or misrepresentation must set out with careful particularity the elements of the misrepresentation relied upon, including: the alleged misrepresentation itself; when, where, how, by whom and to whom it was made; its falsity; the inducement; the intention that the plaintiff should rely upon it; the alteration by the plaintiff of his or her position relying on the misrepresentation; the resulting loss or damage to the plaintiff; and if deceit is alleged, an allegation … Read More
What You Need To Know About the New Duty of Good Faith In Contracts
Contractual relationships often lead to lawsuits when parties to the contract disagree over their contractual obligations and rights. Traditionally, courts have held parties to the strict written terms of their contract, even in cases where the terms seemed unfair. In 2014, the Supreme Court of Canada released a ground-breaking decision that imposed a mutual obligation of good faith and honest performance on the parties to a contract. This case has broad implications for businesses as they negotiate contracts with consumers, suppliers, and vendors, as lawsuits involving contract disputes will now be viewed by the courts in this context. Here’s what you need to know. 1) Courts Recognize That Parties To A Contract Will Be Self-Interested Commercial certainty has always been a fundamental tenet of the law of contracts. Traditionally the common law has recognized that contracts usually involve a commercial transaction between two entities that are fundamentally self-interested. With this … Read More
Supreme Court Considers Oppression Remedy
In Mennillo v. Intramodal inc., 2016 SCC 51, the Supreme Court of Canada addressed the application of the oppression remedy under the Canada Business Corporations Act (“CBCA”), which applies to federally incorporated companies. (The Ontario Business Corporations Act, which applies to Ontario incorporated companies, also contains an oppression remedy). The case involved a private corporation with originally two shareholders. There was no shareholders’ agreement. The Court described the parties’ dealings as being “marked by extreme informality”. One of the two shareholders, Mennillo, eventually resigned as officer and director of the company by providing a notice of resignation. The notice did not address his status as a shareholder. There was conflicting evidence from the parties about whether Mennillo intended to cease being a shareholder. Ultimately, the trial judge accepted that Mennillo’s withdrawal from the company included his intention to no longer guarantee the company’s debts. The trial judge found that Mennillo agreed … Read More