In Dr. C. Sims Dentistry Professional Corporation v. Cooke, 2024 ONCA 388, the Ontario Court of Appeal confirmed that restrictive covenants negotiated as part of the sale of a business must be treated differently by courts than those contained in employment contracts. The dispute arose from an agreement of purchase and sale between two dentists for a dentistry practice in Hamilton, Ontario (the “APS”). The APS contained a non-solicitation/non-competition provision, which prohibited the vendor from practicing dentistry within 15 km of the practice for a period of five years post-closing (the “Noncompete Provision”). About three years after the purchase and sale, the vendor began working at a separate practice in a location that violated the Noncompete Provision, and the purchaser commenced an action to enforce it. The purchaser was successful at trial, and the vendor made this appeal. In his appeal, the vendor submitted that the trial judge incorrectly placed … Read More
Employment Arbitrator | Reasonable Fees and Good Availability
David Alderson, LL.B, LL.M, Q.Arb – Employment Arbitrator Competitive Fee Rates Offered. Sole Arbitrator – $450.00 per hour, plus HST Arbitrator Experience David Alderson is an experienced, independent and qualified arbitrator. He has been appointed as arbitrator by the Ontario Superior Court of Justice to adjudicate disputes. David accepts appointment as an employment dispute arbitrator. David is a full member of the ADR Institute of Ontario and is in its arbitrating member’s Directory of Ontario Dispute Resolution Professionals, as well being a member of the Toronto Commercial Arbitration Society, where he appears on its Roster of Member Arbitrators. His roster membership can be viewed here. He hold an LL.B (Osgoode), LL.M (Lond.) and Q.Arb (ADR Institute of Canada). David is on the newly formed Member’s Roster for Remote Arbitration and Mediation Services, for the provision of remote Arbitration in a wide variety of disputes. David has completed the Foundations in Judicial Competencies Series, and has … Read More
Construction Arbitrator | Reasonable Hourly Rate | Good Availability
Construction arbitrators must be able to arbitrate efficiently and at the pace required by the parties, disputes ranging from simple renovations and repair, to complex multi-party multi-staged projects. The ability to understand construction stages and complexities of design, architecture, engineering and project management, and technical dimensions of a construction dispute are the hallmarks of an effective construction arbitrator. Sole Arbitrator – $450.00 per hour, plus HST Experience In his practice here in Ontario, and when practicing in Dubai and Bermuda, David has been involved in a wide array of construction disputes, including, but not limited to project development, project finance, infrastructure and construction disputes, including matters involving parking garages, road building, residential house construction and renovation, condo development and financing disputes, numerous joint venture disputes, matters involving demolition, collapse, fire and flood, as well as contract disputes concerning construction quality and warranties; and labour disputes in the construction industry. Arbitrator … 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
24 the New 36? Court of Appeal Reaffirms Presumptive Ceiling in Reasonable Notice Case
In Dawe v. The Equitable Life Insurance Company of Canada, the Ontario Court of Appeal held that, absent exceptional circumstances, the presumptive ceiling for reasonable notice is 24 months. In Dawe, the plaintiff was a Senior Vice President of an insurance company and was terminated after 37 years of employment without cause, following a minor dispute relating to the purchase and use of promotional sporting event tickets. As a result, the plaintiff sued his employer for wrongful dismissal. Both the plaintiff and his employer moved for partial summary judgment on two issues: (1) the calculation of the proper notice period, and (2) the plaintiff’s entitlement to his employer’s bonus plan, at para 4. The plaintiff was successful on the motion for partial summary judgment and the motion judge determined that 30 months was the appropriate notice period and that the plaintiff was entitled to his bonus during this period. In … 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
A Successful Constructive Dismissal Claim in Hagholm v. Coerio Inc.
Constructive dismissal occurs when an employee is indirectly and effectively dismissed from the position or terms he/she had previously agreed formed the employment. Without the consent of the employee, a substantial alteration is presented that fundamentally changes the terms of the agreed upon contract. Hagholm v. Coerio Inc. represents a successful claim for constructive dismissal. The respondent had entered into her employment on the understanding that she could work from home three days a week. When this condition was changed, the respondent claimed constructive dismissal and ceased coming to work. The Motion Judge, on a motion for summary judgment, found that there was constructive dismissal because this was an essential term and the appellant arbitrarily withheld a bonus from the respondent. The Court of Appeal also confirmed that the respondent was not required to mitigate her damages for the appellant’s breach of contract in these circumstances. Also in this case, the … Read More
An Illegal By-Law in Perelli v. The Town Corporation of Richmond Hill
Matthew Stroh represented the plaintiff in Perelli v. The Corporation of the Town of Richmond Hill, 2017 ONSC 6062, who was successful on a motion for summary judgment declaring that The Corporation of the Town of Richmond Hill (“the Town”) By-Law 135-14 is illegal. From December 1, 2010 to November 30, 2014, the plaintiff was employed as an elected municipal councillor for Ward 2 of the Town. Upon the completion of his term, the plaintiff was entitled to severance pay, but only received a deducted amount due to the Town By-Law 135-14 (“the By-Law”) that authorized said deduction. The deduction represents the amount charged in postage by the plaintiff to the Town’s corporate account in conducting a survey. Justice Sutherland of the Ontario Superior Court of Justice found the By-Law to be invalid due to lack of statutory authority and void for bad faith. The By-Law was enacted without the plaintiff … Read More
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.
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
Court of Appeal Upholds Non-Solicitation Agreement
In MD Physician Services Inc. v. Wisniewski, 2018 ONCA 440 (CanLII), the individual defendants signed a non-solicitation agreement with the plaintiff company. The agreement provided that the individual defendants “shall not solicit during the Employee’s employment with the Employer and for the period ending two (2) years after the termination of his/her employment, regardless of how that termination should occur, within the geographic area within which s/he provided services to the Employer.” “Solicit” was defined as: “to solicit, or attempt to solicit, the business of any client, or prospective client, of the Employer who was serviced or solicited by the Employee during his/her employment with the Employee.” The individual defendants left the plaintiff to work for a competitor, the defendant company. On their first day of work for the defendant company, the individual defendants began contacting the plaintiff’s clients. The trial judge found that the individual defendants had breached 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 Grants Summary Judgment in Employment Dispute
In Gregory Smith v. Diversity Technologies Corporation, the Plaintiff employee was terminated by the Defendant company for cause. The Defendant stated that the Plaintiff had made a sale to a customer despite being specifically instructed not to do so, and that the order disrupted the Defendant’s production process. The Plaintiff denied that he had been instructed not to sell to the customer. The Defendant argued that a Trial was necessary to resolve the credibility issues. The Judge disagreed, and, following the Supreme Court’s recent decision in Hyrniak v. Mauldin, stated that there was sufficient documentary evidence to allow the court to carry out a fair and just adjudication of the dispute. The Judge stated that she would consider the Defendant’s case “at its highest and best”, and set aside the credibility issues. She stated that even if the Plaintiff had disregarded the Defendant’s instructions not to sell to the customer, it was … Read More
Summary Judgment in Wrongful Dismissal Action in IT Sector
The plaintiff in Wellman v. The Herjavec Group Inc., 2014 ONSC 2039, whose employment with the defendant was terminated without cause after one week short of a year, was granted summary judgment and found to be entitled to damages from the defendant for wrongful dismissal on the basis of a reasonable notice period of four months. The parties had agreed that the issue of a reasonable notice could be properly considered on a motion for summary judgment and the court agreed that such a motion is more proportionate, more expeditious less expensive means than a trial to achieve a just result (citing Hryniak v. Mauldin, 2014 SCC 7) In considering the issue the court considered the: Bardal factors; the age of the employee (including when considering mitigation it is reasonable to assume that at the plaintiff’s age there could have family responsibilities that might make him less mobile); length of service (just one factor to be taken … Read More