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
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
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
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
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!
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
International Sales Conventions Act, R.S.O. 1990, cI.10 | United Nations Convention on Contracts for the International Sale of Goods
Many international traders are not aware that the United Nations Convention On Contracts for the International Sale of Goods and the Convention On The Limitation Period In the International Sale of Goods are the law of Ontario, Canada, by virtue of the Ontario International Sales Conventions Act, RSO 1990, c I.10, that applies to contracts for the international sale of goods. While there are 92 parties, recent and pending entry of the United Nations Convention On Contracts for the International Sale of Goods into force in these jurisdictions should be noted*: Viet Nam on 01/01/2017; Azerbaijan on 01/06/2017; Fiji on 01/07/2018; Costa Rica on 01/08/2018; Cameroon on 01/11/2018; State of Palestine on 01/01/2019; Democratic People’s Republic of Korea on 01/04/2020; Liechtenstein on 01/05/2020; and Lao People’s Democratic Republic on 01/10/2020. *Authoritative information on the status of the treaties deposited with the Secretary-General of the United Nations, including historical status information, may be obtained by … Read More
International Commercial Arbitration Laws – Greater Harmonization
Legislation based on the UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 (the “Model Law”) has been adopted in 80 States in a total of 111 jurisdictions, including Canada, Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Quebec, Saskatchewan and Yukon. The legislation in Ontario, Canada, amends previous legislation based on the Model Law and is based on the text, with amendments as adopted in 2006, of the UNCITRAL Model Law on International Commercial Arbitration. Recent jurisdictions to enact Model Law legislation include: In 2018: British Columbia (the legislation amends previous legislation based on the Model Law). In 2017: Australian Capital Territory, Fiji, Jamaica, Mongolia, Qatar, and South Africa. In 2016: Myanmar, Republic of Korea, and Uganda. The continued expansion of an already substantial number of jurisdictions enacting Model Law legislation means even greater harmonization of national laws through all stages … Read More
Service of Foreign Process (including U.S. Proceedings) in Ontario, Canada
Since 1989 Canada has been a member of Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, (the Hague Service Convention). The Hague Service Convention requires its member States to designate a “Central Authority” to accept incoming requests for service. The Central Authority in Canada, on the federal level, is the Attorney General for Canada, and the Central Authority on the provincial level, in Ontario is the Attorney General, the Ministry of the Attorney General or the Minister of Justice. In Ontario, service of foreign proceeding under the Hague Service Convention requires that a completed Request for Service Abroad of Judicial or Extrajudicial Documents Form together with the prescribed number of originating process documents and prescribed fee to the Ministry of the Attorney General for Ontario. There are alternatives to the Hague Service Convention service of foreign process in Ontario. If you are seeking advice or … Read More
Cart Before the Horse – Requesting Accommodations to Condominium Common Elements Before Commencing Litigation
In Charlie Andrews v. Great Gulf, 2019 HRTO 370, the applicant, a condominium owner, alleges that the respondent, builder of the condominium complex, failed to provide gender-inclusive washrooms in the pool and stream areas of the condominium building. The builder of the condominium complex did not file a response, but rather, asked that the matter be dismissed as it had no prospect of success, as the builder could not be held liable for the alleged discrimination, since: It no longer had an ongoing service relationship with the condominium; The applicant, as a condominium board member could not point to any requests by any individual, including themselves, that the builder or condominium provide gender-inclusive change rooms; The subject areas that were allegedly discriminatory were located in the common elements of the condominium and related to accessibility, rendering it the responsibility of the condominium, of which the applicant was a member; and At the time the … Read More
Maryland judgment domesticated in Ontario
In Kaveh v Kaveh Semnani 2019 ONSC 996, the Ontario Superior Court of Justice was asked to determine whether the Maryland Court had jurisdiction and if the judgment could be recognized and enforced in Ontario. The Plaintiff alleged that the Defendant owed him money and the Defendant argued that the Maryland Court did not have proper jurisdiction to hear the case. The Defendants did not defend the case before the Maryland Court and a default judgment was granted in their absence. Subsequently, the Plaintiff sought to have the Maryland judgment recognized in Ontario. Real and substantial connection test The Court applied the ‘real and substantial connection test’ which functions only to test whether the Maryland Court correctly assumed jurisdiction over the matter. The Ontario Court did not consider the facts of the original matter before the Maryland Court, except to consider if the facts would relate to any potential defence … Read More
Ontario Health Professions College Complaints: Some Do’s and Don’ts
The dreaded day has suddenly come, and your professional college informs you that a patient or someone you assessed months ago for an auto insurance claim has lodged a frivolous complaint under the Regulated Health Professions Act. (“Act”) (The college won’t use the word “frivolous,” of course.) Draw a deep breath and banish any thoughts of making an angry response. Instead, consider the Japanese martial art of Jujitsu , where one’s strongest weapon is the ability channel the force of one’s opponent against him. Under schedule 2 of the Act, named the Health Professions Procedural Code (“Code”), every health profession college in Ontario maintains an Inquiries, Complaints and Reports Committee (ICRC) to investigate and vet complaints against members. It does not matter whether you are a doctor, a psychologist or an occupational therapist. The Code requires each college to follow the same general procedure. While it may seem that this … Read More
Fork In the Road: Critical Considerations by Condominium Corporations in Anticipatory Failed Closings
In 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, the purchasers, Ottawa Medical Square Group, entered into an Agreement for Purchase and Sale to purchase condominium units owned by the vendor, 1179 Hunt Club Inc. The value of the commercial condominium units in the Hunt Club Project was $5.6 million dollars. Five days before closing, the purchasers, sent a request to the vendor, requesting an extension of time as the purchasers had not yet finalized their arrangements for financing. Three days before closing, the vendor advised that it would insist on closing, and if the purchaser could not close, it would exercise its rights and remedies under the Agreement for Purchase and Sale. On the date of closing, the vendor learned that the Land Registry Office had made an error in assigning parcel identification numbers. Although this error was ameliorated later that day, this mishap, prevented … Read More
David Street to facilitate at the Law Society of Ontario’s Advanced Roundtable on Shareholder Disputes.
On October 2, 2019 David Street will be one of four corporate lawyer facilitators at the Law Society of Ontario’s Advanced Roundtable on Shareholder Disputes. This continuing professional development program is intended to assist corporate lawyers and litigators to work together to manage and assess shareholder disputes and better resolve such disputes when they do arise.
Toronto Condo Arbitrator – Independent, Reasonable Fees and Available
David Alderson, LL.B., LL.M, Q.Arb – Condo Dispute Arbitrator Sole Arbitrator – $450.00 per hour, plus HST David has been accredited by the ADR Institute as Canada as a Qualified Arbitrator (Q.Arb). He accepts appointments as a commercial arbitrator, including as condominium dispute arbitrator, at a reasonable hourly fee rate, plus facilities and applicable taxes) and with good availability. The Ontario Superior Court of Justice has appointed David in commercial (including condominium) arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. He has legal experience in arbitration in under different institutional and ad hoc rules, in a wide variety of matters. David accepts appointment as sole arbitrator and party-appointed arbitrator in a wide variety of condominium disputes. David has … Read More
Guidance from the Court – Procedure to Resolve Mortgage Discharge Issues under the Mortgages Act and the Rules of Civil Procedure
In Sub-Prime Mortgage Corporation v. 1219076 Ontario Limited, 2019 ONCA 581, the Ontario Court of Appeal was asked to determine, the proper procedure to discharge a mortgage or contest the discharge of a mortgage, under the Mortgages Act, and the Rules of Civil Procedure. In the lower court decision, Sub-Prime Mortgage Corporation (“Sub Prime”), the second mortgagee, issued two urgent applications against 1219076 Ontario Limited (“121”), the first mortgagee, to obtain an immediate discharge of two mortgages on two properties placed by 121, by paying money into court, pending further court orders, or a resolution between the parties, at para 1. In its application, Sub-Prime did not specifically seek an order determining the balance owing for each mortgage. To support its application, Sub-Prime cited and relied on section 12(3), 12(9) and 22 of the Mortgages Act, R.S.O. and Rule 14.05(a), (d), and (e) of the Rules of Civil Procedure, at para … Read More
Removing Deadwood from the Register – Challenging Registration for Non-Use of a Trade-Mark In Canada
In Barrette Legal Inc. v. Lawee Enterprises, L.L.C., the requesting party, (“Barette”), sought to remove the owner’s (“Lawee”) Mark, from the trade-mark register for non-use, pursuant to section 45 of the Trade-marks Act (“Act”). Lawee was the registered owner of the trade-mark “Smart For Life Cookie Thin”, which it used to describe and advertise cookies it sold (“goods”). Barrette challenged this registration for alleged non-use in Canada in between May 18, 2013 – May 18, 2016, at para 3. What Constitute “Use” of a Trade-Mark Section 4(1) of the Act states that a trade-mark is deemed to be used in association with goods, if at the time of the transfer of the property in, or possession of the goods, in the normal course of trade, it is marked on the goods or its packaging, or in any manner in which notice of the association is provided to the person whom … Read More