As condominiums proliferate as the home of choice for many, it is important to realize it is a different kind of ownership than a house or freehold townhome. To make sure you’ve made the right decision here’s 7 things you should know before purchasing a condo: 1) Read the declaration, by-laws and rules Every condo community is unique. The declaration, by-laws and rules provide critical information about the restrictions and allowances within the community. Some condo’s may have strict rules regarding pet ownership, other’s may entirely prohibit short term rentals, while some may specifically protect such use of the unit within the declaration. There will likely be rules about smoking whether it be cigarettes or cannabis. Most condominiums also have rules about visitors, whether they can use amenities independently or can only do so with a resident. These are just some examples of rules that can have a major impact … Read More
The Ontario Securities Commission and the “Active Market”
Determining what constitutes an “active market” for securities can have significant implications for Investment Dealers, Approved Persons, and other market participants facing civil lawsuits and regulatory scrutiny. Such a determination provides ample assistance to investors seeking to quantify damages allegedly sustained through (1) misrepresentations in a company’s financial documents or (2) the negligence of their financial advisors. In Sutton (re), 2018 ONSEC 42, however, the failure to show an active market for securities proved devastating to the defence of a Chief Financial Officer (“CFO”) in charge of pricing those securities. Background As CFO of First Leaside Securities Inc. (“FLSI”), Brian Sutton’s (“Mr. Sutton”) position required him to assess the price of certain unlisted securities (“Fund Units”) issued by three limited partnerships (“Funds”). In pursuit of meeting these obligations, Mr. Sutton relied on the Fund Units’ allegedly active market to ascribe an appropriate price. The Industry Investment Regulatory Organization of Canada (“IIROC”) … Read More
Waivers of Liability Enforced in Schnarr v Blue Mountain Resorts Ltd.
What happens when statutes collide? In Schnarr v Blue Mountain Resorts Limited, the Ontario Court of Appeal was recently asked to bar a negligence suit by enforcing waivers of liability signed by skiers visiting a ski resort. The issues in the case clustered around the dual application of both the Occupiers’ Liability Act (“OLA“) and the Consumer Protection Act (“CPA“) to agreements between skiers and ski resorts. As an occupier of premises, ski resorts are subject to the OLA. To encourage landowners to make their property available for recreational activities, the OLA allows for landowners to limit their liability through waivers of liability. However, as a consumer agreement, these ski resort contracts are also governed by the CPA. The CPA requires services supplied under a consumer agreement to be of a reasonably acceptable quality and deems waivers purporting to limit resultant liability to be void. The concurrent governance of the OLA and … Read More
Ontario Court Finds No Jurisdiction in Multinational Class-Action against Volkswagen
In Leon v. Volkswagen AG, 2018 ONSC 4265 (CanLII), the plaintiff, who resides in Ontario, purchased American Deposit Receipts (ADRs) in respect of Volkswagen shares. The Volkswagen shares plummeted when Volkswagen disclosed that it had perpetrated fraud. Owners of the common shares commenced proceedings in Germany. The plaintiff initially commenced a class action in respect of his ADRs in New Jersey. The plaintiff conceded in the New Jersey action that the US Federal Court had jurisdiction over the subject matter of the claim and that the venue was proper. However, the plaintiff later withdrew from the US proceedings and commenced the subject class action in Ontario. The Ontario class action included Ontario purchasers of the ADRs and of common shares (unlike the US proceedings, which were in respect of ADR purchasers only). Volkswagen brought a motion to dismiss the action on the basis that Ontario did not have jurisdiction … Read More
Liability Possibilities for Third-Party Privacy Invasions in Agnew-Americano v Equifax Canada
A company learns its cybersecurity is vulnerable to hacking but fails to implement preventative measures. Hackers attack and access the private data of clients. Can these clients sue the company for the tort of privacy invasion (“intrusion upon seclusion”) or can the company escape liability because it has only allowed a third-party invasion? The question turns on the definition of invasion. As held in the leading case of Jones v Tsige, the tort of intrusion upon seclusion consists of three elements: Intentional or reckless conduct; That invades the defendant’s privacy; and The invasion must reasonably be regarded as highly offensive causing distress, humiliation or anguish. Does allowance of a third-party invasion meet the second requirement? In deciding which of two actions should proceed as a class action in Ontario, the Court in Agnew-Americano v Equifax Canada expressed preliminary support favouring the possibility of liability for third-party invasions. The Court held claims that … Read More
#MeToo – The Assessment of Damages in Sexual Assault Cases
The Ontario Court of Appeal recently released the decision in Zando v. Ali, 2018 ONCA 680, which involved an appeal of an assessment of damages in a sexual assault case. This case confirms the principles to be used in determining damages in civil sexual assault cases and is particularly relevant in the current climate of the #MeToo movement. In this case, the parties were physicians and colleagues at the Sarnia General Hospital. They had initially met after their residency examination in Toronto and became friends. They were both married and had immigrated from Pakistan. After completing their respective training elsewhere, they both ended up practicing medicine at the Sarnia General Hospital. The respondent alleged that the appellant sexually assaulted her on June 22, 1999 at her house. The appellant had attended her house to complete an insurance medical form. After completing the insurance form, the respondent alleged that the appellant took his clothes off, tripped her to the floor and sexually assaulted her. The trial … Read More
An Uber Quick Ride in Oshawa (City) v Greaves
What is the definition of a taxi ride? A version of this question recently arrived at the Ontario Court of Justice in Oshawa (City) v Greaves. An Oshawa by-law makes it illegal to operate a taxicab without a valid license. Last year, as part of a project concerning unlicensed taxicabs, a municipal by-law officer ordered an Uber in Oshawa. When the Uber arrived at the requested location, the driver found himself collecting a by-law infraction charge instead of a waiting passenger. On appeal before the Ontario Court of Justice, counsel for the driver argued that the driver did not illegally operate a taxicab because no taxi ride occurred. Nonetheless, the Court upheld the by-law charge. The Court relied on the standard approach to statutory interpretation, which reads a statute by its “grammatical and ordinary sense” in light of the broader objectives and intentions of the legislation. Central to the Court’s … Read More
Real Estate Litigation: Failure to Give Extension of Closing Date is not Bad Faith
The recent summary judgment motion decision in Time Development Group Inc. v. Bitton, 2018 ONSC 4384, involves a situation that arises quite often in failed closings of real estate transactions. One of the main causes for an aborted real estate transaction is the failure of the purchaser to obtain the required financing to close on the transaction, possibly influenced by the Ontario Fair Housing Plan and the new mortgage lending rules. In this case, the plaintiff entered into an agreement to purchase three adjoining properties for a residential home redevelopment project. There were a series of amendments to the agreement with the terms as follows: (a) purchase price of $10.55 million; (b) deposit of $500,000; (c) two vendor take back mortgages; and (d) closing date of July 31, 2017. The plaintiff had secured a commitment letter to finance the transaction, however, six days before the closing date, the plaintiff was dismayed to find out that their financing had been withdrawn because the market conditions had changed. … Read More
Canadian Court Shuts Down Loan Shark’s Law Suit
In Canada, it is not everyday one witnesses a loan shark resorting to judicial process to collect on outstanding obligations. In fact, outside cases involving payday loans and hidden credit card fees, where legitimate loans might inadvertently cross the 60% interest rate threshold under s. 347 of the Criminal Code, we have to date not seen any cases where the court has considered enforcement of blatantly usurious loans bearing interest of, say, 2,000% APR, as the Superior Court did in Ikpa v. Itamunoala, now available on line. Gilbertson Davis successfully obtained summary judgment rejecting the bid by the plaintiff, a resident of the United Kingdom (where laws banning usury no longer exist), to recover USD$500,000 on a USD$100,000 promissory note that had remained outstanding for four months before the start of litigation. The plaintiff sought to have an equitable mortgage securing the note paid out in priority to the defendants’ registered mortgage. … Read More
Dominican Republic Vacation Claim Examined in Di Gregorio v. Sunwing Vacations Inc.
In Di Gregorio v. Sunwing Vacations Inc., the appellants purchased a vacation package to attend the Dreams Punta Cana Resort and Spa through their travel agent, Sunwing Vacations Inc. (“Sunwing”). While on vacation, the balcony railing gave way resulting in the appellants sustaining injuries. The motion judge was found to have erred in not conducting a jurisdictional analysis pursuant to Club Resorts Ltd. v. Van Breda. The Court of Appeal stated that the relevant connecting factor is that the claim pleaded was based on an Ontario contract. The alleged tortfeasors do not need to be party to the contract, as all that is required is that a “defendant’s conduct brings it within the scope of the contractual relationship and that the events that give rise to the claim flow from the contractual relationship” as stated in Lapointe Rosenstein Marchand Melancon LLP v. Cassels Brock & Blackwell LLP. The Court of … Read More
A Successful Constructive Dismissal Claim in Hagholm v. Coerio Inc.
Constructive dismissal occurs when an employee is indirectly and effectively dismissed from the position or terms he/she had previously agreed formed the employment. Without the consent of the employee, a substantial alteration is presented that fundamentally changes the terms of the agreed upon contract. Hagholm v. Coerio Inc. represents a successful claim for constructive dismissal. The respondent had entered into her employment on the understanding that she could work from home three days a week. When this condition was changed, the respondent claimed constructive dismissal and ceased coming to work. The Motion Judge, on a motion for summary judgment, found that there was constructive dismissal because this was an essential term and the appellant arbitrarily withheld a bonus from the respondent. The Court of Appeal also confirmed that the respondent was not required to mitigate her damages for the appellant’s breach of contract in these circumstances. Also in this case, the … Read More
An Illegal By-Law in Perelli v. The Town Corporation of Richmond Hill
Matthew Stroh represented the plaintiff in Perelli v. The Corporation of the Town of Richmond Hill, 2017 ONSC 6062, who was successful on a motion for summary judgment declaring that The Corporation of the Town of Richmond Hill (“the Town”) By-Law 135-14 is illegal. From December 1, 2010 to November 30, 2014, the plaintiff was employed as an elected municipal councillor for Ward 2 of the Town. Upon the completion of his term, the plaintiff was entitled to severance pay, but only received a deducted amount due to the Town By-Law 135-14 (“the By-Law”) that authorized said deduction. The deduction represents the amount charged in postage by the plaintiff to the Town’s corporate account in conducting a survey. Justice Sutherland of the Ontario Superior Court of Justice found the By-Law to be invalid due to lack of statutory authority and void for bad faith. The By-Law was enacted without the plaintiff … Read More
Federal Court of Appeal Considers Reviewing of Evidence in Judicial Review Applications
In judicial review applications, like most legal proceedings, evidence plays an essential role in securing a successful result. This includes not just the quality of the evidence, but the process through which the court considers that evidence. The Federal Court of Appeal’s recent decision in Apotex Inc. v. Canada (Health), 2018 FCA 147 (“Apotex”) affirms the control accorded to judges when reviewing evidence in judicial review applications.
Court of Appeal Considers Ontario Labour Relations Board’s Jurisdiction, Limitation Periods in Class Actions
In United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671 (“Quality Meat Packers”), the Ontario Court of Appeal considered (1) the Ontario Labour Relations Board’s (“OLRB”) jurisdiction to decide claims related to the wrongful dismissal of unionized employees; and (2) whether, in proposed representative proceedings under Rules 12.08 and 10.01, representation orders must be obtained during the limitation periods for the individuals’ claims.
Court Considers Jurisdiction in Context of Online Sales
In Dish v. Shava, 2018 ONSC 2867 (CanLII), plaintiffs obtained judgment in Virginia, including an injunction, against the defendants, who were located in Ontario. The plaintiffs then brought an action in Ontario seeking recognition and enforcement of the Virginia judgment and injunction in Ontario. On the motion for summary judgment, the Ontario Court considered whether the Virginia Court had exercised jurisdiction based on the Ontario test for jurisdiction: i.e. whether the defendants had a real and substantial connection with Virginia. The defendants owned and operated an interactive, commercial website through which users purchased TV set-top boxes. The Ontario Court found that the defendants had a real substantial connection to Virginia based on the nature of the business they were operating, specifically: users in Virginia purchased the TV set-top boxes from the defendants’ website. At least 193 customers with a Virginia shipping address purchased Shava TV product from the Defendants’ distributor … Read More
Gilbertson Davis LLP Welcomes Litigation Associate Peter Neufeld
Gilbertson Davis LLP is pleased to announce that Associate Lawyer Peter Neufeld has joined its commercial litigation team. Peter adds strength to the Firm’s many practice areas, including investor loss and securities litigation and regulation, intellectual property & technology industry litigation, and class action claims and defence. Previously acting as counsel to the Investor Protection Clinic at Osgoode Hall Law School, and as a litigation associate at a boutique class action law firm, Peter will build on this experience while integrating with and growing the Firm’s commercial and insurance litigation practices. Peter graduated Magna Cum Laude with a B. Soc. Sc. from the University of Ottawa (2012) and later completed the Canadian Securities Course (2012). During law school, Peter was a Fellow at Stanford Law School’s CodeX: The Stanford Center for Legal Informatics (2014). Peter obtained his J.D. degree from Osgoode Hall Law School (2015) and was called to the Bar in Ontario … Read More
Ontario Securities Commission Clarifies Test for Severance Motions
In Hutchinson (Re), 2018 ONSEC 40 (“Hutchinson”), the Ontario Securities Commission (“OSC”) considered the proper framework to assess a motion for severance in the context of a regulatory proceeding before the OSC. OSC Staff alleged that the respondent, David Paul George Sidders (“Sidders”), engaged in insider trading with respect to three transactions. The OSC also alleged that three other individual respondents, one of which settled, engaged in insider trading and/or insider tipping. Respondent Sidders moved before an OSC Commissioner (“Commissioner”) to request that it sever his hearing from the hearings of the other remaining respondents. The question before the Commissioner was how to assess, in the context of an OSC proceeding, whether the interests of justice require severance. The Supreme Court of Canada in R v. Last, 2009 SCC 45 (“Last”) listed several factors to consider when balancing the risk of prejudice to the accused with the public interest in … Read More