Court Clarifies “Clean Hands” Doctrine Applies to Post-Breach Conduct

Yona Gal, J.D., Articling StudentCommercial, Commercial Leasing0 Comments

In 232702 Ontario v 1305 Dundas, 2019 ONSC 1885, the Ontario Superior Court of Justice recently considered the “clean hands” doctrine in the context of a terminated commercial lease for non-payment of rent. Importantly, the Court clarified that the doctrine of “clean hands” is not restricted to conduct occurring prior to the breach, but encompasses subsequent conduct as well. The Test for Relief from Forfeiture Under s. 98 of the Courts of Justice Act and s. 20 of the Commercial Tenancies Act, a court may grant relief from forfeiture, including forfeiture of a lease for non-payment of rent. The court’s power to relieve from forfeiture is an equitable remedy.  It is discretionary, fact-specific and granted sparingly.  The party seeking relief must prove that enforcing the contractual right would lead to inequitable consequences. In Saskatchewan River Bungalows Ltd. v Maritime Life Assurance Co., the Supreme Court of Canada held that a … Read More

Discrimination under Ontario’s Human Rights Code is Restricted to Enumerated Grounds: A Reminder in Stukanov v Paypal Canada Inc.

Yona Gal, J.D., Articling StudentAdministrative Law, Tribunals0 Comments

A recent decision of the Human Rights Tribunal of Ontario (“HRTO”) serves as a reminder that grounds for discrimination under Ontario’s Human Rights Code (“Code”) are restricted to those enumerated in the Code.  Analogous grounds are not prohibited. In Stukanov v Paypal Canada Inc., 2019 HRTO 386, the HRTO dismissed an application alleging that Paypal discriminated against Canadian residents. Facts The applicant wanted to close his U.S. dollar account with Paypal and have the account money sent to him in U.S. dollars, either by cheque or by direct deposit into his U.S. dollar account at his Toronto bank. Paypal, apparently, would not send a cheque to Canada, and would only deposit money into a Canadian dollar account when sending money to a bank located in Canada. The applicant’s primary allegation was that he cannot receive his Paypal funds in U.S. dollars because he is a Canadian resident.  He claimed that … Read More

Arbitration Clauses Enforced as Non-Consumers Ejected from Telus Class Action by Supreme Court of Canada

Yona Gal, J.D., Articling StudentAppeals, Arbitration, Commercial and Contract Litigation0 Comments

In Telus Communications Inc. v Wellman, 2019 SCC 19, the Supreme Court of Canada has favoured arbitration clauses in staying the claims of non-consumers in a class action against TELUS. The Court’s decision reflects a continued commitment of courts to taking a hands-off approach in upholding valid arbitration agreements, while its citation of the Ontario Court of Appeal’s Uber decision indicates that other routes – such as unconscionability – may be pursued to challenge specific arbitration clauses. Facts A proposed class action was filed in Ontario alleging that TELUS had for a number of years rounded up calls to the next minute without telling customers. The class included both consumers and non-consumers (business customers).  Each individually agreed to the same non-negotiable standard form contract.  The contract included an arbitration clause requiring all disputes (other than collection of accounts by TELUS) to be mediated, and failing that, arbitrated. Ontario’s Consumer Protection … Read More

Ontario Court of Appeal: There is No Common Law Tort of Harassment

Yona Gal, J.D., Articling StudentAppeals, Appellate Advocacy, Civil Liability, Civil Litigation0 Comments

Merrifield v Canada (Attorney General), 2019 ONCA 205 is the first case in which a Canadian appellate court has been required to determine whether a common law tort of harassment exists. The Ontario Court of Appeal has decided that it does not. Ontario Superior Court of Justice Relying on four trial-level decisions, the trial judge held that the tort of harassment exists as a cause-of-action in Ontario and that the elements of the tort are: Outrageous conduct; Intention to cause, or reckless disregard for causing, emotional distress; Suffering of severe or extreme emotional distress; and The outrageous conduct is the actual and proximate cause of the emotional distress. Ontario Court of Appeal The Ontario Court of Appeal held that, in sum, the four trial-level decisions assume rather than establish the existence of the tort or its elements. Contrasting the case at bar with Jones v Tsige, which recognized a new … Read More

Andrew Ottaway Writes Article on CISG for Law Times

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial and Contract Litigation, Commercial Law, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Gilbertson Davis LLP News, International Litigation, International Sale of Goods, UNCITRAL0 Comments

The Law Times recently published an article by Andrew Ottaway on the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”). The article includes: a discussion of the recent case of Solea International BVBA v. Bassett & Walker International Inc., 2018 ONSC 4261 (CanLII), in which the Ontario Court applied the CISG; a discussion of the near total obscurity of the CISG in Ontario; examples of the notable differences between the CISG and the Ontario common law / Sale of Goods Act. The article can be read in its entirety here. The lawyers at Gilbertson Davis LLP have experience in commercial litigation, including cross-border litigation involving the CISG.  Contact us for an initial consultation.

Tests for Intentional Infliction of Mental Suffering and Constructive Dismissal clarified by the Ontario Court of Appeal in Colistro v Tbaytel

Yona Gal, J.D., Articling StudentAppeals, Civil Litigation, Employment & Wrongful Dismissal0 Comments

In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal recently dismissed an appeal and cross-appeal in an employment dispute. Appeal: Intentional Infliction of Emotional Suffering In the appeal, the Ontario Court of Appeal confirmed that three elements comprise the tort of intentional infliction of mental suffering: Flagrant or outrageous conduct; Calculated to produce harm; and Resulting in a visible and provable illness. Objective vs Subjective Following its earlier decisions in Prinzo v Baycrest Centre for Geriatric Care and Piresferreira v Ayotte, the Ontario Court of Appeal held that the first and third element are objective, while the second is subjective. The Court held that the second element requires the plaintiff to prove that “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher v Wal-Mart Canada Corp.].  It is insufficient to show only … Read More

Letters Rogatory | Letters of Request | Request for International Judicial Assistance | Commission Evidence 

David Alderson, LL.B , LL.MCross-Border Litigation, Letters Rogatory0 Comments

Free Initial Consultation for US Attorneys  Canada is not a party to the Inter-American Convention on Letters Rogatory. Accordingly, we are frequently consulted by US attorneys on behalf of parties to US litigation, and retained to advise upon and obtain enforcement in the courts in Ontario Canada of US court issued Letters Rogatory,  Letters of Request or Request for International Judicial Assistance. These sometimes pertain only to the production of documents and other times require the examination in Ontario, Canada of a non-party to the US litigation, or both. We advise on the likely range of costs involved in intended enforcement proceedings. Early retention allows us to advise whether the intended Letters Rogatory,  Letters of Request or Request for International Judicial Assistance would likely be enforced by the court in Ontario, Canada. Discovery Deadlines in US Proceedings  We are mindful that US attorneys are often working with discovery deadlines within which to complete all examination (deposition) and document production. Once retained, we can proceed efficiently to … Read More

Employee or Not? An Uber Problem to be Decided by Ontario Courts: Arbitration Not the Route

Yona Gal, J.D., Articling StudentAppeals, Arbitration, Arbitrators, Civil Litigation, Commercial, Contract Disputes, Employment0 Comments

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

Gilbertson Davis LLP Welcomes Commercial & Insurance Litigation Lawyer Mahdi Hussein

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 & Insurance Litigation Lawyer Mahdi Hussein has joined the Firm.  Mahdi obtained his Juris Doctor degree from Osgoode Hall Law School (2016) where he served as a Teaching Assistant, and holds an undergraduate Honours B.A.  degree from the University of Toronto, where his successes included placement on the Dean’s List (2009-2013); reserved for the top 10% of Arts & Sciences students), and receipt of the John R. Evans Scholarship (2010) award before graduating with High Distinction.  In the Fall of 2011, Mahdi secured the prestigious Killam Fellowship for studies in Washington, D.C., sponsored by Fulbright, the Canadian Department of Foreign Affairs and International Trade and the American Killam Trust.  While with Innovation, Science and Economic Development Canada, Intellectual Property Clinic Placement, as a Law Student in 2015, Mahdi was engaged in the preparation of reports, and undertook policy … Read More

Gilbertson Davis LLP Successfully Defends Against Appeal of Decision Enforcing Liquidated Damages in Settlement Contract

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Fraud, Fraudulent Schemes, Gilbertson Davis LLP News, Investment Fraud, Summary Judgment0 Comments

In Haas v. Viscardi, 2019 ONCA 133, Andrew Ottaway of Gilbertson Davis LLP assisted the plaintiff in securing his settlement agreement with a defendant (in an earlier investment fraud litigation) with a liquidated damages clause.  Specifically, the defendant was required to pay $60,000 if he failed to make prompt payments under the subject settlement agreement. The defendant, after defaulting, refused to honour the liquidated damages clause.  However, on the plaintiff’s motion for summary judgment, the motion judge upheld the liquidated damages clause and granted judgment.  Our blog post on the motion decision can be found here. On appeal, in Haas v. Viscardi, 2019 ONCA 133, the Court of Appeal rejected the defendant’s argument that the liquidated damages clause was an unenforceable penalty clause, and upheld the motion judge’s decision granting summary judgment.  The Court of Appeal also enforced the provision in the settlement agreement requiring that the defendant pay the plaintiff’s … Read More

Court of Appeal Upholds Dismissal of Recognition Action Based on Limitation Period

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

In Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79, the plaintiff obtained default judgment in South Carolina dated August 20, 2014 default judgment in the amount of US $451,435,577.37 against the defendant.   The plaintiff sought a Mareva injunction (i.e. a freezing order). Although the Court initially granted the injunction, the Court later set aside the injunction in response to the defendant’s motion arguing that the Ontario proceedings were commenced outside the limitation period.  See our blog on the motion decision here. On appeal, the Court of Appeal reiterated the applicable test from Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, being: (i) the basic two-year limitation period applies to a proceeding on a foreign judgment; and (ii) the limitation period begins to run when the time to appeal the foreign judgment has expired or, if an appeal is taken, the date of the appeal decision, unless the claim … Read More

Ontario Court Considers United Nations Convention on Contracts for the International Sale of Goods on Summary Judgment Motion

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes, Cross-Border Litigation, International Sale of Goods, Sale of Goods0 Comments

In Solea International BVBA v. Bassett & Walker International Inc., 2018 ONSC 4261, the Ontario Court of Appeal had directed the Superior Court to rehear a motion for summary judgment applying the provisions of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), representing a rare instance of the Ontario Court explicitly considering the CISG.   The case involved the sale of shrimp by the plaintiff to the defendant.  The defendant argued, among other things, that it was not required to pay for the shrimp because the plaintiff breached a fundamental term of the contract, being provision of  a Health Certificate with a statement guaranteeing that the shrimp was free of certain diseases. The defendant argued that as a result of breach of a fundamental term, it was entitled to declare the contract avoided (pursuant to Article 49 of the CISG). In rejecting that defence, the … Read More

Court Stays Injunction Claim in Favour of Arbitration / Refuses to Consolidate Arbitration Proceedings Without Consent of All Parties

Andrew Ottaway, B.A. (Hons.), LL.B.Arbitration, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Contract Termination, Injunction & Specific Performance, Insurance0 Comments

In Loan Away Inc. v. Western Life Assurance Company, 2018 ONSC 7229, the plaintiff had an agreement with the defendant by which the plaintiff sold the defendant’s insurance policies in return for payments by the defendant.  The defendant ceased making payments and the plaintiff commenced an action against the defendant for an injunction to require the defendant to make the payments to the plaintiff and to prevent the defendant from terminating the insurance policies that the plaintiff had sold on the defendant’s behalf. The defendant relied upon an arbitration clause in its agreement with the plaintiff to stay the action.  The plaintiff argued, among other things, that the claim should not be stayed because the arbitration clause contained arbitration clause contained an exception for requests for a temporary restraining order or other forms of injunctive relief. The plaintiff argued that its request for a permanent injunction fell under the category … Read More

Summary Judgment Motion Publication: Sentinels of the Hryniak Culture Shift: Four Years On

John L. Davis, B.A. (Hons.), J.D.Appeals, Appellate Advocacy, Civil Liability, Commercial Litigation, Fraud Recovery, Gilbertson Davis LLP News, Summary Judgment0 Comments

David Alderson, Senior Counsel-Commercial Litigation at Gilbertson Davis LLP, is the author of the chapter entitled Sentinels of the Hryniak Culture Shift: Four Years On, included in the Annual Review of Civil Litigation 2018 , (Ed. by the Honourable Justice Todd L. Archibald, published by Thomson Reuters Canada Limited) which contains the following in the Overview: “Mr. Alderson has done a masterful job in reviewing the post-Hryniak judgment landscape. He canvasses whether or not our courts have embraced the advocated Hryniak culture shift in civil litigation through the simplification of pre-trial procedures and the principle of proportionality. Before embarking upon a summary judgment motion, all counsel should carefully read Mr. Alderson’s paper because it provides superb guidance concerning the prospects of success not only before the motions judge but on appellate review. Mr. Alderson’s paper is a comprehensive tour de force for all advocates.” –  The Hon. Justice Todd Archibald, Ontario Superior Court of Justice Author: David Alderson

Toronto Commercial Arbitrator – Featuring David Alderson ~ from $350 per hour*

David Alderson, LL.B , LL.MArbitration, Arbitrators, Commercial Arbitration, Enforcement of Foreign Arbitral Awards, Gilbertson Davis LLP News, UNCITRAL0 Comments

Background David accepts appointments as a commercial arbitrator and as a marine arbitrator, at reasonable hourly rates and with good availability. David has acted as counsel in both domestic and international arbitration, including AAA arbitration, ICDR International Rules, ICC arbitration, LMAA arbitration, GAFTA arbitration, and various other ad hoc and non-institutional arbitration David Alderson has been appointed as a commercial arbitrator by order of the Ontario Superior Court of Justice. David is a member of the Toronto Commercial Arbitration Society. He has lived and practised law in Ontario, England, Bermuda and Dubai. He is also admitted in New York State. His LL.B (Osgoode) and LL.M (Lond.) were granted in 1980 and 1988, respectively. David’s post-graduate legal studies, designated as Commercial and Corporate, were comprised of the study of marine insurance, insurance, carriage of goods by sea and maritime law. Bio | Contact dalderson@gilbertsondavis.com Phone: (416) 979 2020 ext 230 Local … Read More

Ontario Court of Appeal Considers Contractual Duty of Good Faith

Andrew Ottaway, B.A. (Hons.), LL.B.Commercial0 Comments

In CM Callow Inc. v. Zollinger, 2018 ONCA 896 (CanLII) the plaintiff company provided maintenance services to condos managed by the defendant condo corporations. The defendants entered in two two-year maintenance contracts with the plaintiff: one for summer maintenance and one for winter maintenance.  The winter contract (which ran from November 2012 to April 2014) allowed for early termination by the defendants on 10 days’ notice. In March or April of 2013, the defendants decided to terminate the winter contract, but did not provide notice of termination of the agreement until September 12, 2013.  The defendants delayed informing the plaintiff that they were terminating the contract in order to avoid interfering with the defendant’s work under the summer contract (which ran from May 2012 to October 2013).  The plaintiff provided free work in the summer of 2013 as an incentive for the defendants to renew the contracts. The defendants knew … Read More