Ontario Court Decides on Appropriate Use of Mini-Trial in Summary Judgment Motions

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial, Contract Disputes, Misrepresentation, Negligence, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation, Summary Judgment0 Comments

In Crisafi v. Urban Landmark Realty Inc., 2018 ONSC 191, the Ontario Superior Court of Justice addressed a summary judgment motion brought in a real estate litigation matter and provided guidance on when the Court will use its enhanced fact-finding powers set out in the 2010 amendments. Background This case involved a claim by a real estate agent against his former real estate brokerage for unpaid real estate commissions in the amount of $60,000.  The brokerage took the position that the agent breached his contractual, statutory and fiduciary duties to its clients and was negligent in handling four transactions which caused it to suffer damages. The brokerage argued that the agent failed to properly advise one of its clients while in a multiple representation situation including the anticipated sale price of the house and an estimate of whether the client could afford to purchase a subsequent property.  The house ended up sitting on the market even after several reductions in the listing price.  As is commonplace in the industry, this resulted in … Read More

Ontario Court Decides Motion in Loblaws Bread Price Fixing Class Action

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Class Action Defence, Commercial, Commercial Litigation, Contract Disputes0 Comments

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

Gilbertson Davis LLP Welcomes Litigation Counsel Matthew Stroh

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

It is with great pleasure that Gilbertson Davis LLP announces that commercial and insurance litigator Matthew Stroh has joined the Firm as Counsel. Matt has represented both defendants and plaintiffs in class proceedings, and also engineers, developers and public authorities in real estate and construction disputes, investment advisors and brokerages in lawsuits involving negligent advice and fraud, insurance brokers and disability insurers in cases concerning a wide range of insurance products, and manufacturers in product liability cases. This experience has resulted in numerous reported decisions in complex and novel areas of law, including several in the Ontario Reports and in Watson & McGowan’s Ontario Civil Practice. A significant portion of Matt’s practice in recent years has involved cross-border claims for securities misrepresentation in the primary and secondary markets involving publicly traded companies operating in a diverse range of industries and geographical locations, including mining and offshore oil and gas exploration. … Read More

Court of Appeal Allows Negligence Claim Against Individual Starbucks Employees to Proceed

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Civil Litigation, Commercial Litigation, Directors' and Officers' Liability, Insurance, Negligence0 Comments

In Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017, the plaintiff alleged that a Starbucks barista poured scalding water on the plaintiff’s hands.  The plaintiff sued Starbucks, and also brought  claims against the barista and the Starbucks store manager personally.  The plaintiff alleged that the barista and the store manager owed the plaintiff a duty of care and that each was personally liable to the plaintiff for breaching those duties. Starbucks brought a motion to strike the plaintiff’s  claims against the barista and store manager on the basis that, among others, the plaintiff could not claim against them personally.  The motion judge agreed, stating that employees are not liable for acts within the scope of their authority and done on behalf of their corporation.  The motion judge struck the plaintiff’s  claims against the barista and store manager. The plaintiff appealed.  The Court of Appeal, citing the Supreme Court of Canada’s … Read More

Worldwide Asset Freezing Orders Can Be Obtained In Ontario Against Defendants With No Assets In The Province.

Matthew Stroh, H.B.A. (Distinction), J.D.Civil Litigation, Commercial Litigation, Cross-Border Litigation, Debt and Enforcing Judgments, Injunction & Specific Performance0 Comments

In SFC Litigation Trust v. Chan, 2017 ONSC 1815, the Divisional Court recently confirmed that worldwide Mareva injunctions may be used to freeze the assets of defendants present in Ontario even when they otherwise have no assets in the province. This is a notable development that further extends the reach of these powerful remedies. Background This case arose out of the collapse of Sino-Forest Corporation (“Sino-Forest”), one of the largest forestry companies listed on the Toronto Stock Exchange. Following the release of a short-seller report by Muddy Waters Research, and an internal investigation, Sino-Forest sought creditor protection under the Companies’ Creditors Arrangement Act, R.S.C., 1985 c. C-36 (the “CCAA”). In December of 2012, the Superior Court of Justice sanctioned a plan of compromise under the CCAA, and the plaintiff, SFC Litigation Trust, was assigned all of the litigation rights of Sino-Forest. SFC Litigation Trust then sued Sino-Forest’s former CEO, Mr. … Read More

Court of Appeal Considers Scope of Errors of Jurisdiction under Model Law on International Commercial Arbitration

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Arbitration, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Contract Disputes, Jurisdictional Challenges0 Comments

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

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial, Contract Disputes, Injunction & Specific Performance, Specific Performance0 Comments

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 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