Gilbertson Davis LLP Welcomes Family Law Lawyer Kimberley Wilton!

John L. Davis, B.A. (Hons.), J.D.Adoption, Child Support, Collaborative Family Law, Custody and Access, Division of Property, Divorce, Family Law, Gilbertson Davis LLP News, Interjurisdictional Disputes, Marriage Contracts, Mobility Issues, Spousal Support0 Comments

Gilbertson Davis LLP extends a Warm Welcome to Family Law Lawyer Kimberley Wilton.  Kim was called to the Bars of Ontario, Newfoundland and Labrador in 2013, after obtaining her Doctor of Jurisprudence degree from Dalhousie University (2012; Schulich School of Law), a B.Sc. (Hons.) degree from the University of Toronto (Psychology and Middle Eastern Studies; 2006) and a B.A. degree from Memorial University (English Language and Literature; 2009).  Kim is also certified as a Collaborative Family Law Lawyer.   Kim is passionate about the provision of client service to a standard of excellence.  She has experience in a broad range of Family Law matters, including contentious custody and access disputes, child and spousal support claims, complex property disputes including the division of assets, adoption applications and mobility issues. She is also experienced in drafting parenting plans, separation plans and domestic contracts.  Kim is sensitive to the specific needs of each client, … Read More

Ontario Introduces Bill to Update Rules for Realtors

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

Last week, the Ontario government introduced the Trust in Real Estate Services Act, 2019 to update the current legislation that governs Ontario’s more than 86,000 real estate professionals.  Yesterday, the bill passed second reading and was referred to the Standing Committee for witness testimony and further amendments. The stated goals of the proposed legislation include improving consumer protection and choice in the market and improving professionalism among real estate professionals and brokerages through enhanced ethical requirements. Some of the more significant proposed changes include: Disclosing Details of Competing Bids – At the seller’s option, the seller’s real estate agent may disclose the details of competing offers to other bidders.  Currently, the seller’s agent is required to disclose the number of competing offers to all buyers who have submitted a written offer but the purchase price and conditions remain confidential. Clients vs. Customers – There will no longer be “clients” and … Read More

Nick Poon Comments on Real Estate Wire Fraud for Yahoo!

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Broker and Agent Claims, Civil Litigation, Cyber Fraud, Fraud, Fraud Recovery, Fraudulent Schemes, Injunction & Specific Performance, Real Estate | Developers, Real Estate Agent and Broker, Real Estate Litigation0 Comments

Nick Poon was recently asked to comment on real estate wire fraud for Yahoo News Canada. Read the Yahoo News Canada article here: ‘The prospects of recovering the money are near zero’: The scam homebuyers need to be aware of. If you have a fraud claim or a real estate dispute, please contact us for an initial consultation.

Keep Them Calm and Arbitrate On!

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Arbitrators, Commercial, Commercial Arbitration, Gilbertson Davis LLP News0 Comments

Keep Them Calm and Arbitrate On!  David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and Arbitrator, will present a talk and workshop at the ADR Institute of Ontario 2020, 35th Annual General Meeting and Professional Development Conference, on June 4, 2020, entitled “Keep Them Calm and Arbitrate On: Sources of Commercial Arbitration Conflict & Tools / Techniques for Conflict Minimization“. Workshop Description Conflict in arbitration arises when the process is conducted as a fight, a battle, or a struggle.  This can defeat the process and frustrate realization of the parties’ objectives. This talk will focus on four sources of conflict: the party who 1) does not want to be in arbitration,  but who has no choice because of a contractual or statutory arbitration requirement; 2) refuses  to participate in the process (and/or to pay the tribunal’s fees); 3) fights everything: the rules, the laws, jurisdiction and procedural orders; and 4) participates over-zealously, whether personally or through counsel. Strategies to minimize such conflicts are suggested. Background  David Alderson has accredited … Read More

Limitations in real estate agent’s opportunity is repudiation of contract

Fatima VieiraCommercial Contracts, Contract Disputes, Contract Termination0 Comments

Fatima Vieira B.A., M.A., LL.B. In Barresi and 6491243 Canada Inc. v. Jones Lang Lasalle Real Estate Services, 2019 ONCA 884  the Ontario Court of Appeal considered the test for repudiating a contract. Jones Lang Lasalle (“Lasalle”) was a real estate investment management company. Ryan Barresi (“Barresi”) was a real estate broker. Barresi and Lasalle entered into an agreement whereby Barresi was to be the Ottawa Practice Lead for investment property transactions. One year after entering into the contract, Lasalle advised Barresi that he could only pursue transactions in Ottawa up to a $10 million ceiling, even though the agreement imposed no such ceiling and transactions over $10 million would be exclusively available to another party, National Retail Investment Group (“NRIG”), which would involve Barresi only as Lasalle saw fit. The trial judge found that these two limitations undermined Barresi’s reason for entering into the contract with Lasalle, which was … Read More

Part Two – Timing is Everything in Real Estate Agreements of Purchase and Sale

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Injunction & Specific Performance, Real Estate | Developers, Real Estate Litigation, Specific Performance, Summary Judgment0 Comments

I had written a previous blog on the “time is of the essence” clause in real estate agreements where it was discussed that the strict adherence to any agreed upon time limits was generally the case. A recent Ontario Court of Appeal case, Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc., serves as a reminder that the “time is of the essence” clause is not absolute and unfettered, and there are preconditions that must be satisfied for a party to rely upon and insist on time being of the essence. The facts are not overly complicated in this case.  The respondent was a condominium developer in the process of acquiring properties for a proposed project in downtown Toronto.  The developer entered into an Agreement of Purchase and Sale (“APS”) with the vendor to acquire the subject property.  Although the APS required the vendor to provide estoppel certificates five days prior … Read More

Partnership Disputes – Dentists, Doctors, Accountants, Lawyers, Architects and Engineers

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorAppeals, Appellate Advocacy, Arbitration, Arbitrators, Breach of Non-Solicitation Agreement, Business Litigation, Closely-Held Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial List Matters, Confidentiality Agreement, Corporate Disputes, Joint Venture Disputes, Non-Compete, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause, Partnership Dispute, Partnerships and Shareholder Disputes, Professions0 Comments

Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact on … Read More

Protecting Your Internet Domain Name

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Fraud, Business Litigation, Business Torts | Economic Torts, Copyright Infringement, Cyber Fraud, Cyber Risks, Domain Name Disputes, eCommerce | Online Retail, Identity Fraud, Injunction & Specific Performance, Intellectual Property, Internet | Technology, Internet Fraud, Passing Off, Specific Performance, Start-Up Disputes, Technology and Internet, Trademark Infringement, Website Copying0 Comments

In the age of the internet and e-commerce, the domain name of a business holds tremendous value and is often an integral part of the identity of a business. Since a website can only have one domain name on the internet, there is no shortage of disputes which arise over ownership rights of domain names, particularly those closely affiliated with a registered or unregistered trademark. What is Cyber-Squatting? Cyber-Squatting occurs when someone has registered a domain name in which they have no legitimate business interest, and can sometimes involve setting up a fake website for a business. The reason could be that the registrant will then seek to sell the domain name to the legitimate owner of the business or trademark, or their competitor for a profit. Alternatively, it may be to syphon away business leads online to competitors for a fee, or for advertising revenues. Typo-Squatting is similar to … Read More

Gaming licensing in Ontario – skill or chance?

Elisha Hale, LL.B (Hons) Dip.Administrative Law0 Comments

Ontario’s Court of Appeal ruled in Play for Fun Studios Inc. v. Ontario (Alcohol and Gaming Commission of Ontario), 2019 ONCA 648 that ‘GotSkill’ is illegal under Ontario’s gaming, alcohol and racing legislation. The Alcohol and Gaming Commission of Ontario operates under provincial law controlling the grant of both liquor and gaming licences. The Commission submitted an application on appeal, arguing ‘GotSkill’ was a game of chance or mixed chance and skill, not simply skill. As a game of chance or mixed skill and chance, the regulation of ‘GotSkill’ would fall under the jurisdiction of the Commission. The Appeal Court overturned the lower court’s decision and ruled ‘GotSkill’ was a game of ‘mixed chance and skill’ and was therefore prohibited in unlicensed premises; forcing over 200 licensees to remove ‘GotSkill’ from their premises. The Court heard submissions on whether ‘GotSkill’ was a ‘game of chance’ or a ‘game of skill’ … Read More

Deposits In Failed Real Property Transactions

Sabrina Saltmarsh, B.A. (Hons), J.D.Broker and Agent Claims, Commercial, Contract Disputes, Contract Termination, Cottage Purchase and Sale, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation, Recreational Property Litigation0 Comments

The recent Ontario Court of Appeal decision in Azzarello v. Shawqi, 2019 ONCA 820, illustrates the purpose of providing a deposit when purchasing real property and under what circumstances a purchaser will lose their deposit or be refunded the deposit if the sale does not go through. There are some important general principles that purchasers and sellers should be aware of regarding deposits in a real estate transaction: 1) Contemplation Regarding The Deposit In the Contract Is Important Purchasers and sellers should carefully consider the terms to be included in the purchase and sale agreement regarding the deposit. The contract should be clear about what happens to the deposit in all possible scenarios. In cases where it is not, the courts will look to implied terms in the contract and existing case law which governs how deposits are dealt with. 2) The Reason The Sale Fell Apart Is Important The … Read More

Business Dirty Tricks

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorCommercial0 Comments

Sometimes businesses and their stakeholders act wrongfully in seeking to advance their interests and / or harm competitors. There are often reports of the “dirty tricks” used by those in business to seek to destroy, defeat or diminish the effectiveness of a competitor. These are often unethical tactics, but sometimes such conduct is also wrongful and has been recognized by the common law as actionable in the courts for damages or injunctive or other urgent equitable relief, or prohibited by a statute which provides for a civil monetary remedy or grounds for an injunction. These causes of action have been recognized and provide the basis of lawsuits for harm, loss and damage, and in suitable circumstances, grounds for an immediate injunction or mandatory order prohibiting the further commission of the wrongful acts. In short, wrongful intentional acts causing harm, loss or damage to businesses or their stakeholders may give rise to a cause of action in common law business torts (the so-called … Read More

Prompt Payment Regime Takes Effect For Construction Projects

Sabrina Saltmarsh, B.A. (Hons), J.D.Arbitration, Condo Construction, Construction Equipment & Machinery, Construction Litigation, Cottage Litigation, Heavy Machinery Disputes, Mining, Infrastructure and Projects, Real Estate | Developers, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

A major shift has been underway in Ontario since the legislature ushered in reforms under Bill 142, the Construction Lien Amendment Act, 2017, S.O. 2017, c. 24., perhaps none of which is more significant than the prompt payment regime which took effect on October 1, 2019. Changes To Lien Period: Effective July 1, 2018 Changes to the previous legislation (The Construction Lien Act) have come into effect in phases, with the first set of changes having taken effect in July of last year. We are now in the midst of transition rules which apply depending on the commencement date of a construction project to determine the applicable lien period which changed from 45 days to 60 days for prime construction contracts entered into after July 1, 2018. There were several additional notable changes which took effect as of July 1, 2018, including the extension of the period to perfect a … Read More

Latent Defects or Hidden Damage in Real Property Transactions

Sabrina Saltmarsh, B.A. (Hons), J.D.Agents and Brokers, Broker and Agent Claims, Civil Litigation, Commercial, Condo Litigation, Contract Disputes, Cottage Litigation, Cottage Purchase and Sale, Misrepresentation, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

What Are Latent Defects Or Hidden Damages? Latent defects or Hidden Damage are defects to a property that are not generally discoverable by a prospective purchaser on a reasonable inspection and ordinary vigilance. This can include issues such as, faulty electrical wiring hiding behind the walls or a well-hidden termite or mold problem. Many real estate purchases include a buyer’s right to inspect the property to be purchased. However, these inspections are not exhaustive, and may not reveal latent defects or hidden problems with the property that are not readily visible. Why Do Participants In A Real Estate Transaction Need To Be Concerned About Latent Defects Or Hidden Damage? The problem latent defects or hidden damage can pose for a prospective real estate purchaser is that no amount of vigilance on a visual inspection can uncover such a defect, even one conducted with a home inspector (who’s inspections are typically … Read More

Manufacturers and Distributors – Toronto Litigation Lawyers

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorBrand Protection, Business Litigation, Business Torts | Economic Torts, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Contract Termination, Counterfeit Goods, Cross-Border Litigation, Dealership Agreements, Distribution Agreements, Distributors | Dealers, Domain Name Disputes, eCommerce | Online Retail, Passing Off, Retail Disputes, Retail Litigation, Technology and Internet, Textiles and Apparel, Trademark Infringement0 Comments

Our lawyers can provide sound advice and effective representation to manufacturers and distributors involved in actual or potential disputes or litigation.  We focus on a wide variety of manufacturing industries in a broad array of legal disputes, including sale of goods, branding and brand protection, transportation and logistics, supply and outsourcing contracts, unpaid accounts, internal business disputes, construction and urgent remedies. The automotive industry, the food and beverage industry and technology industries in the Toronto – Waterloo Innovation Corridor comprise the most substantial sectors of the Ontario manufacturing landscape. We also can provide advice and representation to the many other manufacturing industries in Toronto and elsewhere in Ontario, including these: Automated Machinery and Robotics, Automotive Industry, Auto Parts Manufacturing, Building Materials, Canning and Bottling, Chemical Manufacturing and Supply, Clean Tech, Computer Equipment and Electronic Equipment, Concrete, Brick, Glass, Drywall, Lumber and Stone, Confectionery, Food and Beverage, Financial Technology, Furniture Manufactures and Importers, , Bottling, Packaging and Containers, Heating, Ventilation and Air Conditioning – HVAC, Insulation and Environmental Solutions, … Read More

Shareholder Disputes, Oppression Remedy, and Liability of Directors and Officers

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Business Law, Business Litigation, Commercial, Commercial Arbitration, Commercial List Matters, Commercial Litigation, Corporate Litigation, Directors' and Officers' Liability, Family Business Disputes, Partnership Dispute, Partnerships and Shareholder Disputes, Professions, Shareholder Disputes0 Comments

Our lawyers have acted in Ontario and other jurisdictions for small, mid-sized and large Ontario and Canadian corporations, shareholders, directors, officers, executives and creditors in corporate disputes and shareholder disputes. We have acted in both oppression remedy action and derivative actions. Oppression Remedy The oppression remedy is a mechanism in the Ontario Business Corporations Act and the Canada Business Corporations Act to protect the interests of shareholders and stakeholders in a corporation against wrongful conduct.  Whether the Ontario or Canada Act will apply depends on the jurisdiction in which the corporation was incorporated. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the acts of other shareholders, the board of directors or other affiliates of the corporation. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the acts of other shareholders, the board of directors or other affiliates … Read More

Partnership Disputes Between Professionals – Dentists, Doctors, Accountants, Lawyers, Architects and Engineers

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Breach of Non-Competition Clause, Breach of Non-Solicitation Agreement, Business Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Joint Venture Disputes, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause, Partnership Dispute, Partnerships and Shareholder Disputes, Professional Services0 Comments

Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Lastly, some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact … Read More

Gilbertson Davis LLP Welcomes Lawyer Sabrina Saltmarsh!

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

Gilbertson Davis LLP extends a Warm Welcome to lawyer Sabrina Saltmarsh.  Sabrina obtained her Doctor of Jurisprudence degree from the University of Western Ontario in 2009, after acquiring an Honours Bachelor of Arts degree from the University of Toronto.  In 2008 she attended on an Exchange Program in law at the University of Hong Kong. Sabrina comes to us from a boutique litigation firm where she was a partner practising in commercial and general corporate litigation, real estate and construction lien and condominium litigation, professional liability and personal injury litigation,  acquiring courtroom experience in the Ontario Superior Court, the Divisional Court and in the Ontario Court of Appeal.  Among her notable reported cases are: D’Onofrio v. Advantage Car and Truck Rentals Ltd.(Ontario Court of Appeal); Dervisholli v. Cervenak (Divisional Court); and Pal v. Intact Insurance Company (FSCO).  Sabrina is known as a talented litigator, with exemplary skills in legal risk … Read More