In Haas v. Viscardi, 2018 ONSC 2883 (CanLII) the plaintiff settled a claim of $200,000 based on fraudulent misrepresentation with three defendants. The settlement agreement provided for various payments by the defendants on specified dates. The settlement agreement required Viscardi to make payments of $30,000 in three installments. If Viscardi failed to make the payments on the dates provided, the settlement agreement provided that Viscardi would consent to judgment for $60,000 (the “Consent Judgment Clause”). Viscardi made one payment of $10,000, but failed to make the remaining two payments, in breach of the settlement agreement. He then refused to consent to judgment. The plaintiff commenced a claim to enforce the settlement agreement, and brought a motion for summary judgment. The motion judge rejected Viscardi’s argument that the Consent Judgment Clause was an unenforceable penalty clause. The judge considered the test for whether a liquidated damages clause is an unenforceable penalty: … Read More
Lowering the Threshold of Trademark Infringement? (United Airlines, Inc. v. Cooperstock)
Since December 17, 1998, United Airlines has been using the website www.united.com, it’s brand name and logo has been used since August 2010, and the design and artwork of the website has stayed relatively the same since 2006 (para 4). United Airlines has a variety of trademarks associated with these services. Cooperstock operated www.untied.com and in 2011 he redesigned the graphics, in a manner similar to the design of the United Website, which was adjusted in 2012 to match changes made by United on their website in 2012 (though with a sad-face added on the United logo for example) (para 10). In United Airlines, Inc. v. Cooperstock, the Court found that Cooperstock infringed United’s trademarks. Trademark infringement occurs when “a trademark or a confusingly similar mark [is used], without the consent of the trademark rights holder, in association with wares or services” (para 29). This case provides an interesting decision regarding the specific element of infringement under … Read More
Shifting The Status of Interlocutory Injunctions: Google v. Equustek Solutions
The very interconnectedness of the Internet that drives business forward through marketing and access to broader consumer bases may result in loses that currently are not easily remedied. However, jurisprudential shifts are occurring to bridge gaps in the common law that are prevalent in the new age of technology. Google v. Equustek Solutions is a recent decision that potentially expands the scope of interlocutory injunctions in order to ensure that trademark passing-off does not continue to be facilitated, even if unintentionally, by a non-party. Equustek was entitled to an interlocutory injunction to enjoin Google from displaying Datalink’s websites on any of its search results worldwide, and despite Google’s appeal, the decision was upheld by the Supreme Court of Canada in a 7-2 decision. Justice Abella, writing for the majority, emphasized the importance of deference and discretion with regards to interlocutory injunctions, which is highly context-driven to ensure just and equitable outcomes (para 22). The Court found the three-part test in RJR – MacDonald … Read More
Grounds for Judicial Intervention on International Arbitral Awards – Key Takeaways
In Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., a decision of the Court of Appeal for Ontario, a USD$258 million project for the construction of a slurry pipeline from a nickel mine in the mountains of Madagascar to the coast lead to arbitration between the appellant (the contractor) and the respondent (tendered the project). After mutually agreeing to by-pass the adjudication stage of their three-stage dispute resolution process and go straight to a Tribunal, the appellant was only awarded $7M of its $91M claim and the respondent was awarded nearly $25M on its counterclaim. These awards were challenged on appeal as being made without jurisdiction, in breach of procedural fairness, and violating public policy. However, the appeal was dismissed. Judicial intervention in international arbitral awards under the United Nations Commission on International Trade Law (UNCITRAL) Model Law (the “Model Law”) – though given the force of law by the International Commercial Arbitration Act … Read More
Ontario Appellate Court Recognizes Adjusters’ Agency Immunity
Independent insurance adjusters face unprecedented professional pressures and competing demands from stakeholders. As the front-line representatives of insurance companies in the aftermath of an accident or loss, they deal directly with accident victims, property owners and insurance service providers. Many unnecessary disputes erupt over misunderstandings about the adjuster’s role as an intermediary. As I explained in a 2014 article in Claims Canada, “Addressing E&O Exposures: How adjusters can avoid the squeeze of professional liability claims,” there are useful litigation-prevention strategies for training adjusters to explain their role to stakeholders. Despite the practical and principled impediments to parties suing insurance adjusters, litigants and their lawyers in insurance cases often sue them, preferring to draw their weapons first and to ask the important questions later. What insurance adjusters have lacked in cases where parties have sued them in breach of contract cases together with insurers is a specific legal precedent barring many such actions … Read More
Court of Appeal Considers Defamation Claim against Better Business Bureau
In Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383, the Court of Appeal considered a defamation claim against the Better Business Bureau (“BBB”). The plaintiff company had failed to respond to a customer complaint using the BBB protocol, and did not resolve the complaint independently. The BBB changed changed the plaintiff’s rating on its website from “satisfactory” to “unsatisfactory”. About a year later, the BBB adopted a new ratings system, and assigned the plaintiff a “grade” of D-. The plaintiff brought a claim against the BBB in defamation, alleging that the D- grade caused it substantial damages. On appeal, the Court of Appeal considered (1) whether the D- grade was defamatory, and (2) whether the publication was protected by the defence of fair comment. In respect of (1), the Court stated that the trial judge was wrong to only consider whether the D- grade was … Read More
McDonald’s Not Served Valid Revocation of Waiver – Commercial Leasing in the Court of Appeal
The Court of Appeal for Ontario in North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited, 2018 ONCA 71 allowed an appeal by McDonald’s from a decision on applications by both parties to determine whether the subject lease came to an end on a described date because McDonald’s had not complied with the renewal provision in the lease. The Court of Appeal allowed the appeal of the decision of the application judge, that despite that the parties were in negotiations, and that the respondent had waived its right to insist on strict compliance with the terms of the renewal provision (to refer the determination of the renewal rental rate to arbitration), that the respondent had effectively revoked its waiver and reverted to its strict legal rights, namely to terminate the lease in the absence of the referral of the dispute on renewal rental rate to arbitration within the permitted time. On the … Read More
UNCITRAL International Sale of Goods Convention – New Members in 2016 and 2017
The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller in contracts for the international sale of goods, and the remedies for breach of contracts for the international sale of goods. Canada on accession to the CISG declared that, in accordance with article 93 of the Convention, the Convention would extend to Ontario (and other provinces named in the declaration). The Canadian International Sale of Goods Contracts Convention Act, S.C. 1991, c. 13, has been in effect in Ontario since 1992 because of the International Sale of Goods Act, R.S.O. 1990, c. I.10. These two acts brought into effect in Canada the United Nations Convention on Contracts for the International Sale of Goods. The Ontario International Sale of Goods Act provides that the contracting parties “may … Read More
Lost in Cyberspace : Legal causation in the age of AI and driverless cars
One day, in the immediate future, you might very well witness this scene from your office window. A lawyer jaywalks across a Toronto street to avoid being late for a firm risk management committee meeting. While she does so, she texts her colleague in Calgary with instructions on containing the legal liabilities arising from a northern Alberta oil plant shut-down that has already occurred in the future (a reality of simultaneity across locally-logged events across a multi-timezone world) after an eco-terrorist hacked into the plant heating system. It is at this moment that she is struck by an autonomous delivery van. The van was travelling the wrong way down a one-way street because the city transportation department had not uploaded a temporary change to traffic direction to accommodate a condo developer. An algorithm built into the telephone service to warn the lawyer of oncoming traffic fails to alert her because the … Read More
Court Considers Deemed Place of Contracting in Jurisdiction Analysis
In We Serve Health Care LP v. Onasanya, 2018 ONSC 1758, the Applicant was a franchisor of home health care service providers.. The Applicant had its head office in Ontario and regional offices in various jurisdictions, including one in Saskatchewan. The individual Respondent entered into a Franchise Agreement with the Applicant’s predecessor company granting her a license to operate a franchise in Saskatchewan.. She later assigned her rights under the Franchise Agreement to the corporation Respondent. The Applicant refused to renew the Franchise Agreement, resulting in a dispute. The Applicant commenced an Application in Ontario for a declaration that the Franchise Agreement had expired and for a mandatory order that the Respondents comply with their post-expiry obligations under the Franchise Agreement. The Respondents brought a motion to stay the Application on the basis that the Ontario Court did not have jurisdiction. The Applicant argued that the dispute was presumptively … Read More
Five Things To Know Before Renting Your Condo Out As A Short-Term Rental
Since the rise in popularity and use of Airbnb and other similar sites, the opportunity to make some extra cash by listing property on these websites seems to be gaining appeal. In urban centres short-term rentals have become a sizeable industry. This has meant that municipalities, and condominium communities alike have all had to grapple with how to respond to this growing sector of the new home-sharing platform. In this blog we address some important things you should take into account as you consider listing your home for short-term rental. 1) Are There Any Municipal Rules Restricting Short Term Rentals In Your Area? On December 7, 2017 Toronto’s City Council approved the regulation of short-term rentals in the City. Other jurisdictions might take a different approach, including prohibiting or zoning short-term rentals, or excluding certain types of properties from eligibility. In Toronto short-term rentals are permitted in all housing types … Read More
Greater Harmonization of International Commercial Arbitration Laws
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 78 States of a total of 109 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 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 of the commercial arbitration process, from the arbitration agreement itself, to the recognition and … Read More
China Signs Hague Convention on Choice of Court Agreements
We previously wrote that Ontario had enacted the International Choice of Court Agreements Convention Act, 2017, which will give effect to the Hague Convention on Choice of Court Agreements (the “Hague Convention”) in Ontario once Canada ratifies the Hague Convention. (Canada has not yet signed or ratified the Hague Convention.) Since our previous blog post, the People’s Republic of China signed the Hague Convention. China has not yet ratified the Hague Convention, which requires approval by the National People’s Congress. China’s signing of the Hague Convention represents an important step towards more widespread adoption of the convention. The lawyers are Gilbertson Davis have experience in international litigation and arbitration, and in interpreting international conventions. Please contact us for an initial consultation.
Court Considers Oppression Claim by Creditors against Directors
In The Investment Administration Solutions Inc. v. Pro-Financial Asset Management Inc., 2018 ONSC 1220 (CanLII), the Ontario Superior Court considered an oppression claim under section 248 of the Ontario Business Corporations Act by a creditor against the directors of a debtor company. The Plaintiff company provided back office services to the Defendant Pro-Financial. Pro-Financial was an Ontario Corporation which carried on business as an investment dealer. Pro-Financial was poorly managed and did not comply with the applicable regulatory requirements. Pro-Financial’s assets were eventually sold to another dealer at the insistence of the Ontario Securities Commission (“OSC”). As a result of the sale, there was no money left to pay the Plaintiff’s significant outstanding accounts. The Plaintiff brought an action against, among others, directors of Pro-Financial. The Plaintiff’s claim included a claim for an oppression remedy. The Plaintiff argued that the directors of Pro-Financial had violated Pro-Financial’s reasonable expectation that the … Read More
Andrew Ottaway appears on CTV Your Morning to discuss Online Defamation
Andrew Ottaway was asked to comment on current issues in online defamation for CTV’s “Your Morning”. See the video here.
Condo Dwellers Get A Lift From New Elevator Regulations
With more Ontario residents making the move to vertical condominium communities the Ontario government has turned their attention to that pesky problem of elevators down for service. There are approximately 20,000 elevators already operational in buildings throughout the province, and about 1550 of them are more than 50 years old with another 10,000 over 25 years old. The legislation is not only a positive step towards recognizing the essential service that elevators provide to condominium residents and particularly, elderly residents, those with disabilities and those living on the highest floors of increasingly taller condominium buildings, but the first jurisdiction to pass such regulation in the world. So what is this new legislation going to mean? Enhanced enforcement of maintenance requirements including , preventative maintenance requirements and a maximum time allotment for elevator service outages. With enforcement through fines levied against elevator maintenance companies, and owners. Improved information sharing with Fire and … Read More
Is a Burrito a Wrap? Ontario Court Decides Injunction Involving Exclusivity Clause in Commercial Lease
In 2432714 Ontario Inc. v. Heffner Development Group Limited, 2018 ONSC 1034, the Ontario Superior Court of Justice was recently asked to decide the age old question of whether a burrito was a wrap in the context of an exclusivity clause in a commercial lease agreement. In this case, the tenant operated a Pita Pit franchise in a 13 unit plaza owned by the landlord. The tenant had negotiated an exclusivity clause in the lease agreement that gave it the exclusive right to sell “pitas and wraps” in the plaza. When the tenant discovered that a Mexican fast food chain, Holy Guacamole, was renovating one of the units, it brought a motion for an interlocutory injunction prohibiting the landlord from leasing a unit in the plaza to Holy Guacamole. The tenant argued that Holy Guacamole sold “wraps” because its menu of tacos, burritos and quesadillas were all prepared by wrapping up food items in a tortilla. … Read More