Nick Poon Comments on Privacy Issues for the Toronto Star

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Contract Disputes, Entertainment and Media, Gilbertson Davis LLP News, Privacy0 Comments

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

Andrew Ottaway, B.A. (Hons.), LL.B.Business Litigation, Civil Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Cross-Border Litigation, Forum Challenges, International Sale of Goods, Jurisdictional Challenges0 Comments

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

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Commercial, Commercial Leasing, Contract Disputes, Summary Judgment0 Comments

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

Nick Poon Comments on Condominium Liability Issues for the Toronto Sun

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Condo Litigation, Directors' and Officers' Liability, Gilbertson Davis LLP News, Negligence, Property Management0 Comments

Nick Poon was recently asked to comment on the duty and standard of care of condominium corporations, boards of directors and property managers in respect to security and safety in condominiums. Read the Toronto Sun article here: “Creepy Yorkville condo stalker terrifies women“. If you require legal advice and representation in respect to condominium disputes, please contact us for an initial consultation.

Use At Your Own Risk: Partial Summary Judgment Motions

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Business Litigation, Civil Litigation, Commercial, Franchise Law, Misrepresentation, Negligence, Summary Judgment0 Comments

The Ontario Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783, recently overturned an award of partial summary judgment in a professional negligence action and provided guidance on the appropriate circumstances in which partial summary judgment motions should be brought. In the original action, the plaintiffs brought an action against various Mitsubishi companies after their Mitsubishi dealership franchise failed, claiming damages for breach of contract, misrepresentation, negligence and breaches of the Arthur Wishart Act.  The original action was dismissed on summary judgment because the applicable two-year limitation period had passed.  The plaintiffs were also ordered to pay $150,000 in costs for both the action and the summary judgment motion. The plaintiffs appealed the summary judgment motion decision and argued that a six-year limitation period was applicable notwithstanding that they had conceded at the motion that the applicable limitation period was two years.  The appeal was dismissed. The plaintiffs then brought the subject action against their former lawyers for negligence.  The plaintiffs claimed damages for … Read More

Ontario Court Declines To Find that Twitter Posts Require Libel Notice

Andrew Ottaway, B.A. (Hons.), LL.B.Commercial Litigation, Cyber Risks, Defamation, Internet | Technology0 Comments

In Levant v. Day, 2017 ONSC 5956, the defendant was regular participant on social media.  The defendant posted numerous times on Twitter criticising a fundraising campaign by Rebel News.  The plaintiff is the principal of Rebel News.  The plaintiff brought an action seeking damages for defamation. The defendant brought a motion to dismiss the action under the section 137.1(3) of the Courts of Justice Act, which was implemented to prevent strategic lawsuits against public participation (the “anti-SLAPP” provisions).  As part of an anti-SLAPP motion, the Court considered whether there were grounds to believe the defendant had a valid defence.   The defendant argued, among other things, that the plaintiff had failed to deliver a libel notice. Section 5(1) of the Libel and Slander Act requires that a plaintiff has give notice to the defendant in writing within six weeks after the alleged libel comes to the plaintiff’s knowledge, specifying the … Read More

Court of Appeal States that Security for Costs Should Not be Treated Differently for Recognition and Enforcement Actions

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Litigation, Corporate Litigation, Cross-Border Litigation, Enforcement of Foreign Judgments, Of Interest to US Counsel0 Comments

Yaiguaje v. Chevron Corporation, 2017 ONCA 741 arose from an action by the Plaintiffs to enforce an Ecuadorean judgment in Ontario against the Defendant.   The Defendants obtained summary judgment dismissing the Plaintiffs’ claim.  After the Plaintiffs appealed, the Defendant sought a security for costs against the Plaintiffs, who were non-Ontario residents from Ecuador.   The Plaintiffs argued that security for costs should not be ordered because of, among other reasons, the unique nature of a recognition and enforcement action.  The Plaintiffs relied on the Supreme Court of Canada decision on jurisdiction in the same action: Chevron Corp v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69.  The Plaintiffs argued that the Supreme Court’s decision required courts to treat recognition and enforcement cases in a different manner than first instance actions. The Court of Appeal confirmed that courts should take a “generous” approach in finding jurisdiction in recognition and enforcement actions. … Read More

Bhasin v. Hrynew and the Duty of Good Faith in Real Estate Agreements of Purchase and Sale

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Certificate of Pending Litigation, Commercial, Real Estate | Developers, Real Estate Agent and Broker, Real Estate Litigation0 Comments

The Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71,  recognized the duty of good faith in contract and the obligations of the parties to act honestly in the performance of their contractual obligations.  The duty of good faith applies to any contract, including real estate contracts such as Buyer Representation Agreements, Listing Agreements and Agreements of Purchase and Sale. As discussed in a previous blog post, Agreements of Purchase and Sale generally include a “time is of the essence” clause which means that time limits will be strictly enforced by the courts.  Problems often arise when vendors refuse to agree to seemingly minor indulgences requested by purchasers such as an extension of the closing date or an extension of the deadline to provide the deposit. Two recent decisions in the Ontario Superior Court of Justice have addressed the duty of good faith, as expressed in Bhasin v. Hrynew, in the performance of Agreements of Purchase and Sale.  Unfortunately for purchasers, it appears that … Read More

Gilbertson Davis LLP Welcomes Business Lawyer David Street

John L. Davis, B.A. (Hons.), J.D.Gilbertson Davis LLP News0 Comments

It is with great pleasure that Gilbertson Davis LLP announces that senior lawyer David Street has joined the Firm as Business Counsel. David has extensive experience in a wide variety of corporate transactional work, emphasizing the establishment and expansion of entrepreneurial businesses, purchase and sale of businesses, commercial lending, corporate finance and reorganization transactions involving private companies. David’s corporate finance and commercial lending practice includes bank financings, venture capital and private offerings of debt and equity securities. David has a special interest in the drafting of complex commercial agreements for use in a broad range of commercial activities. He also does estate planning, including wills and trusts, and estate administration as part of overall business and personal planning. David has an LL.B. from the University of Toronto, and an LL.M. in Business Law from York University. He is a frequent speaker/panelist/author at LSUC Business Law CPD programs and at CPD … Read More

Court of Appeal Confirms Retrospective Application of Amendments to Prejudgment Interest, Statutory Deductible and Costs Considerations

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Civil Litigation, Insurance0 Comments

The Ontario Court of Appeal recently released the much anticipated decision in Cobb v. Long Estate, 2017 ONCA 717, which addressed the issue of whether legislative amendments in 2015 to prejudgment interest on non-pecuniary damages, statutory deductible and costs considerations apply retrospectively in motor vehicle accident litigation. Ever since Gilbertson Davis LLP’s blog post in November 2014, judges in the Superior Court of Justice and Divisional Court have made divergent rulings on this issue including retrospective application, prospective application and relying on their discretion for something in between.  This appellate decision provides much needed guidance and clarity to the claimants, counsel and insurance companies in tort actions involving motor vehicle accidents.  Although it is unknown at this time whether the Plaintiff intends to apply for leave to appeal to the Supreme Court of Canada, it is safe to assume that will be the case given the significance of this decision. Prejudgment Interest for Non-Pecuniary Damages On January 1, 2015, the Insurance Act was amended to change the prejudgment interest for non-pecuniary damages from 5% … Read More

Andrew Ottaway provides commentary to Global News about online defamation

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Defamation, Gilbertson Davis LLP News, Internet | Technology, Online Defamation, Technology and Internet0 Comments

Andrew Ottaway was asked to comment about online defamation and the potential risks of posting material online. See the video here. The lawyers at Gilbertson Davis have experience with libel and slander claims, including online defamation.  Please contact us for an initial consultation.

New Measures of Ontario’s Fair Housing Plan Take Effect Today

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial and Contract Litigation, Real Estate Agent and Broker, Real Estate Litigation0 Comments

On April 20, 2017, Ontario’s Fair Housing Plan was announced by the current Ontario government in an attempt to cool the housing market and make housing more affordable, particularly in the Greater Toronto Area (GTA).  It has been widely reported that the average purchase price for all types of homes in the GTA has dropped significantly since the announcement. Most of the attention on the housing affordability plan has been focused on the 15 percent Non-Resident Speculation Tax (NRST) imposed on the purchase or acquisition of an interest in residential real estate by a foreign individual, foreign corporation or a taxable trustee.  The NRST only applies to residential real estate, containing one to six single family residences, located in the region around Toronto known as the Greater Golden Horseshoe which includes Barrie, Brant, Dufferin, Durham, Guelph, Haldimand, Halton, Hamilton, Kawartha Lakes, Niagara, Northumberland, Peel, Peterborough, Simcoe, Toronto, Waterloo, Wellington and York. There are certain exemptions and rebates to the NRST available including circumstances where: (a) the foreign individual jointly purchases the property with a … Read More

Court of Appeal Majority Rejects Oppression Claim Against Condominium Corporation’s Leasing of Parking Spaces

Robert Kalanda, B.A. (Hons.), J.D.Commercial, Commercial Leasing, Condo Litigation, Oppression Remedies, Real Estate Litigation, Retail Disputes, Retail Litigation0 Comments

In Cheung v. York Region Condominium, the appellant owned several units which were leased to tenants who operated a 230-seat restaurant out of those units. After complaints by other unit owners that restaurant customers were taking up most or all of the 162 shared common element parking spaces, the condominium corporation enacted a by-law to allow the corporation to lease four parking spots per unit owner “from time to time”, reducing the potential number of spaces available to restaurant guests by 80%. The applicant sought a declaration that the by-law was invalid since the leases could be perpetual and thereby essentially create exclusive use common elements, which can only be created by specific declaration, not through by-law. The applicant further argued that the by-law was oppressive and unfairly prejudicial to the applicant’s interests. The majority held that, since the by-law only approved the ability to enter into leases, which could be on whatever … Read More

Andrew Ottaway Writes Article for JUST Magazine on Online Dispute Resolution

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, eCommerce | Online Retail, Gilbertson Davis LLP News, Internet | Technology0 Comments

Andrew Ottaway published an article in JUST Magazine on the recent phenomenon of Online Dispute Resolution (ODR), and its likely effects on the Ontario justice system: “ODR matters because it is just one part of a greater trend towards taking litigation online.” The full article is available here.

Timing is Everything in Real Estate Agreements of Purchase and Sale

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Commercial, Real Estate Agent and Broker, Real Estate Litigation, Specific Performance0 Comments

The recent Court of Appeal decision in Preiano v. Cirillo, 2017 ONCA 615, involved a residential real estate Agreement of Purchase and Sale which required the purchasers to deliver a deposit of $25,000 in the form of a negotiable cheque to the vendors’ brokerage within 24 hours of acceptance of the agreement.  The closing date was scheduled to take place about three months later.  The agreement included a “time shall be of the essence” clause. The purchasers had initially submitted a personal cheque in the amount of $25,000 with the offer but the vendors’ brokerage requested the deposit be paid in certified funds.  The purchasers subsequently delivered the deposit in the form of a bank draft to the vendors’ brokerage but it was about one day late.  The vendors’ brokerage did not take issue with the late delivery and provided a receipt for the deposit. Six days before the scheduled closing date, the vendors took the position that they would not be closing … Read More

Toronto Lawyers for Breach of Non-Compete or Non-Solicit Clauses

Bianca Thomas, B.Sc.(Hons.), J.D.Breach of Confidentiality Agreement, Breach of Confidentiality Clause, Breach of Non-Competition Agreement, Breach of Non-Competition Clause, Breach of Non-Solicitation Agreement, Breach of Non-Solicitation Clause, Commercial, Commercial and Contract Litigation, Confidentiality Agreement, Confidentiality Clause, Contract Disputes, Employment, Employment & Wrongful Dismissal, Injunction & Specific Performance, Non-Compete, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause0 Comments

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

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Contract Disputes0 Comments

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