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
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
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
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
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
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
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
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
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
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
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) a copy of which can be accessed here, and 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 … Read More
Toronto Commercial Arbitrator – David Alderson, LL.B, LL.M, Qualified Arbitrator
Toronto Commercial Arbitrator – David Alderson, LL.B, LL.M, Qualified Arbitrator at Reasonable Hourly Rates Sole Arbitrator – $450/hr, plus HST Background David has been accredited by the ADR Institute as Canada as a Qualified Arbitrator (Q.Arb). He accepts appointments as a commercial arbitrator, international commercial arbitrator and as a business dispute arbitrator, at reasonable hourly rates and with good availability. The Ontario Superior Court of Justice has appointed David in commercial arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed their Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. David has lived and practiced commercial litigation and commercial arbitration in Ontario, England, Bermuda and Dubai, in a wide variety of disputes in a diverse range of businesses and industries. He is also admitted in New York State. His LL.B (Osgoode) … Read More
Gilbertson Davis LLP profiled in Best’s Recommended Insurance Attorneys
Gilbertson Davis LLP profiled in Best’s Recommended Insurance Attorneys Gilbertson Davis LLP is pleased to announce that as a result of Client Endorsement, the Firm is now profiled in Best’s Recommended Insurance Attorneys. For further details, visit here.
Ontario Court of Appeal Considers Contractual Duty of Good Faith
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
Renewal time for professional liability insurance? Mind the gap!
How can a policyholder who purchased consecutive policies of professional liability insurance lose the benefit of insurance? On October 29, 2018, the Ontario Superior Court released its judgment in Cronnox Inc. v. Lloyd’s Underwriters, 2018 ONSC 6437 (CanLII), holding that the professional liability insurer did not owe the policyholder a duty to defend or to indemnify it in respect of a subrogated law suit. It was the second part of an insurance coverage dispute among an engineering company, two insurers and a law firm. In the first instalment, the same court also held earlier this year that the second insurer in the sequence was also not liable: Liberty Mutual Insurance Company v. Cronnox Inc., 2018 ONSC 1578 (CanLII). In September, 2013, the policyholder chose not to act on letters and emails from counsel for subrogating insurers who had paid to repair damage to a Toronto-area hotel, allegedly in the millions … Read More
Supreme Court Considers an ISP’s Right to Costs in Norwich Orders for Copyright Infringement
Norwich Orders have become a common tool to detect wrongdoers hiding behind the elusive veil of the internet. Whether the matter is with respect to defamation, intellectual property infringement, or fraud, the equitable remedy of pre-action discovery to compel Internet Service Providers (“ISPs”) to disclose a wrongdoer’s identity can help claimants determine their causes of action before they commence litigation. A question that has been raised, however, is who bears the costs of the Norwich Order? Is it the claimant seeking the Norwich Order or the ISP subject to the equitable remedy? To complicate the matter further, how does this interact with an ISP’s obligations under the “notice and notice” regime pursuant to Canada’s Copyright Act? By way of background, ss. 41.25 and 41.26 of the Copyright Act govern the statutory “notice and notice” regime for alerting alleged copyright infringers in Canada. These sections under the Copyright Act state that … Read More
Andrew Ottaway Co-Chairs Continuing Legal Education Program for Ontario Bar Association
Andrew Ottaway was the co-chair of a legal education program on pleadings for the Ontario Bar Association. The topics covered included: Pleadings basics; Pleading complex causes of action, including fraud, misrepresentation, breach of trust, malice, conspiracy, oppression and defamation; Pleading Foreign Law; Pleading Motions, including striking the opposing party’s pleadings; and Amending Pleadings. See the complete agenda and the panel of speakers here. The lawyers at Gilbertson Davis are regularly asked to contribute to professional development programs, as chairs and speakers.