The Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71, recognized the duty of good faith in contract and the obligations of the parties to act honestly in the performance of their contractual obligations. The duty of good faith applies to any contract, including real estate contracts such as Buyer Representation Agreements, Listing Agreements and Agreements of Purchase and Sale. As discussed in a previous blog post, Agreements of Purchase and Sale generally include a “time is of the essence” clause which means that time limits will be strictly enforced by the courts. Problems often arise when vendors refuse to agree to seemingly minor indulgences requested by purchasers such as an extension of the closing date or an extension of the deadline to provide the deposit. Two recent decisions in the Ontario Superior Court of Justice have addressed the duty of good faith, as expressed in Bhasin v. Hrynew, in the performance of Agreements of Purchase and Sale. Unfortunately for purchasers, it appears that … Read More
Gilbertson Davis LLP Welcomes Business Lawyer David Street
It is with great pleasure that Gilbertson Davis LLP announces that senior lawyer David Street has joined the Firm as Business Counsel. David has extensive experience in a wide variety of corporate transactional work, emphasizing the establishment and expansion of entrepreneurial businesses, purchase and sale of businesses, commercial lending, corporate finance and reorganization transactions involving private companies. David’s corporate finance and commercial lending practice includes bank financings, venture capital and private offerings of debt and equity securities. David has a special interest in the drafting of complex commercial agreements for use in a broad range of commercial activities. He also does estate planning, including wills and trusts, and estate administration as part of overall business and personal planning. David has an LL.B. from the University of Toronto, and an LL.M. in Business Law from York University. He is a frequent speaker/panelist/author at LSUC Business Law CPD programs and at CPD … Read More
Court of Appeal Confirms Retrospective Application of Amendments to Prejudgment Interest, Statutory Deductible and Costs Considerations
The Ontario Court of Appeal recently released the much anticipated decision in Cobb v. Long Estate, 2017 ONCA 717, which addressed the issue of whether legislative amendments in 2015 to prejudgment interest on non-pecuniary damages, statutory deductible and costs considerations apply retrospectively in motor vehicle accident litigation. Ever since Gilbertson Davis LLP’s blog post in November 2014, judges in the Superior Court of Justice and Divisional Court have made divergent rulings on this issue including retrospective application, prospective application and relying on their discretion for something in between. This appellate decision provides much needed guidance and clarity to the claimants, counsel and insurance companies in tort actions involving motor vehicle accidents. Although it is unknown at this time whether the Plaintiff intends to apply for leave to appeal to the Supreme Court of Canada, it is safe to assume that will be the case given the significance of this decision. Prejudgment Interest for Non-Pecuniary Damages On January 1, 2015, the Insurance Act was amended to change the prejudgment interest for non-pecuniary damages from 5% … Read More
Andrew Ottaway provides commentary to Global News about online defamation
Andrew Ottaway was asked to comment about online defamation and the potential risks of posting material online. See the video here. The lawyers at Gilbertson Davis have experience with libel and slander claims, including online defamation. Please contact us for an initial consultation.
New Measures of Ontario’s Fair Housing Plan Take Effect Today
On April 20, 2017, Ontario’s Fair Housing Plan was announced by the current Ontario government in an attempt to cool the housing market and make housing more affordable, particularly in the Greater Toronto Area (GTA). It has been widely reported that the average purchase price for all types of homes in the GTA has dropped significantly since the announcement. Most of the attention on the housing affordability plan has been focused on the 15 percent Non-Resident Speculation Tax (NRST) imposed on the purchase or acquisition of an interest in residential real estate by a foreign individual, foreign corporation or a taxable trustee. The NRST only applies to residential real estate, containing one to six single family residences, located in the region around Toronto known as the Greater Golden Horseshoe which includes Barrie, Brant, Dufferin, Durham, Guelph, Haldimand, Halton, Hamilton, Kawartha Lakes, Niagara, Northumberland, Peel, Peterborough, Simcoe, Toronto, Waterloo, Wellington and York. There are certain exemptions and rebates to the NRST available including circumstances where: (a) the foreign individual jointly purchases the property with a … Read More
Court of Appeal Majority Rejects Oppression Claim Against Condominium Corporation’s Leasing of Parking Spaces
In Cheung v. York Region Condominium, the appellant owned several units which were leased to tenants who operated a 230-seat restaurant out of those units. After complaints by other unit owners that restaurant customers were taking up most or all of the 162 shared common element parking spaces, the condominium corporation enacted a by-law to allow the corporation to lease four parking spots per unit owner “from time to time”, reducing the potential number of spaces available to restaurant guests by 80%. The applicant sought a declaration that the by-law was invalid since the leases could be perpetual and thereby essentially create exclusive use common elements, which can only be created by specific declaration, not through by-law. The applicant further argued that the by-law was oppressive and unfairly prejudicial to the applicant’s interests. The majority held that, since the by-law only approved the ability to enter into leases, which could be on whatever … Read More
Andrew Ottaway Writes Article for JUST Magazine on Online Dispute Resolution
Andrew Ottaway published an article in JUST Magazine on the recent phenomenon of Online Dispute Resolution (ODR), and its likely effects on the Ontario justice system: “ODR matters because it is just one part of a greater trend towards taking litigation online.” The full article is available here.
Timing is Everything in Real Estate Agreements of Purchase and Sale
The recent Court of Appeal decision in Preiano v. Cirillo, 2017 ONCA 615, involved a residential real estate Agreement of Purchase and Sale which required the purchasers to deliver a deposit of $25,000 in the form of a negotiable cheque to the vendors’ brokerage within 24 hours of acceptance of the agreement. The closing date was scheduled to take place about three months later. The agreement included a “time shall be of the essence” clause. The purchasers had initially submitted a personal cheque in the amount of $25,000 with the offer but the vendors’ brokerage requested the deposit be paid in certified funds. The purchasers subsequently delivered the deposit in the form of a bank draft to the vendors’ brokerage but it was about one day late. The vendors’ brokerage did not take issue with the late delivery and provided a receipt for the deposit. Six days before the scheduled closing date, the vendors took the position that they would not be closing … Read More
Toronto Lawyers for Breach of Non-Compete or Non-Solicit Clauses
Our lawyers can advise and represent employers or purchasers of a business regarding the enforcement of non-compete, non-solicit clauses or confidentiality agreements. An employer or purchaser of a business who wishes to enforce a restrictive covenant can pursue an interim injunction from the Court, which prohibits the employee from breaching the covenant. Various types of injunctions may be sought, including: Injunctions enforcing post-termination restrictive covenants; Injunctions preventing the use of the employer’s confidential information. An employer or purchaser of a business can also seek damages following an employee’s breach of a covenant if there is particular loss tied to the breach. An employer or purchaser of a business can also seek damages following an employee’s breach of a covenant if there is particular loss tied to the breach. Why Gilbertson Davis LLP? Our team of lawyers are leading practitioners and provide sound advice and effective representation in time sensitive matters. When … Read More
Court of Appeal Provides Guidance on Interpretation of Success Fee Contract
In RBC Dominion Securities Inc. v. Crew Gold Corporation, 2017 ONCA 648, the Plaintiffs (“RBC”) sued the Defendant (“Crew”) for a success fee (the “Success Fee,”) that RBC alleged it was owed under an agreement for the provision of investment banking services (the “Agreement”). The Agreement provided, among other things, that RBC was entitled to the Success Fee “if a Transaction [was] completed involving any party, whether or not solicited by RBC, pursuant to an agreement to effect or otherwise complete a Transaction entered into during the term of its engagement […]”. RBC provided certain services under the Agreement. During the course of the Agreement, Crew was subject to a takeover. The takeover was not anticipated by either party. RBC was not involved in the takeover transaction. The issue at trial was whether RBC was entitled to the Success Fee for its services. The trial judge found that the … Read More
Summary Judgment Granted in Multiple Proceedings Surrounding Enforcement of Italian Judgment
The case of King v Lang Michener, 2017 ONSC 1917 (one of three related actions), began with a transaction that went awry. The Plaintiff, Gregory King, a lawyer at Aylesworth and later Gowling Lafleur Henderson LLP, acted in a transaction relating to a new hotel in China with an Italian company, Sincies Chiementin SpA (“Sincies”), and various other foreign individuals and businesses. Mr. King received a 5% interest in the hotel, and Aylesworth was to receive payment for legal fees. Sincies went bankrupt, and one of its assets, a $600,000.00 USD deposit, vanished. Sincies’ trustee in bankruptcy eventually sued Mr. King, among others, in Italy, to try to recover the money. Mr. King did not defend the Italian proceedings. The Italian court ruled against him, and ordered him to pay the deposit. Mr. King did not pay the judgment on the grounds that the Italian court lacked jurisdiction. Sincies’ trustee then … Read More
Insurance Coverage For Cyber Crime: The Brick v. Chubb
In the recent case of The Brick v. Chubb Insurance, the Alberta Court of Queens Bench held that the plaintiff’s commercial crime policy did not cover the money lost by the plaintiff as a result of a social engineering fraud. The plaintiff had been contacted by unknown persons pretending to be one of the plaintiff’s service providers, and requested banking information from their accounts payable department, which ultimately led to the plaintiff changing their internal records and sending of payments to the fraudsters’ own account instead of their service provider. The plaintiff sought coverage for the losses, and the insurer denied coverage. The court noted that the policy only applied to fund transfers made “without the insured’s knowledge or consent”. The plaintiff argued that they did not consent, since their actions were induced by the fraudulent correspondence. The insurer argued that the policy did not require consent to be “informed” or otherwise … Read More
Toronto Litigation Lawyers for Manufacturers and Distributors
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, Glass, Bottling, Packaging and Containers, … Read More
Court Awards Damages to Defendant in Defamation Case
In United Soils Management Inc. v. Mohammed, 2017 ONSC 4450, the Plaintiff operated a gravel pit in the municipality of Whitchurch-Stouffville. The municipal council voted to allow the Plaintiff to deposit fill onto certain sites. The Defendant was a member of the community, who was concerned about contamination from the deposits. The Defendant posted on the internet regarding her concerns. The Plaintiff demanded that the Defendant cease posting and apologize. In response, the Defendant posted a retraction and apology. Nevertheless, the Plaintiff commenced a claim against the Defendant claiming damages for defamation. The Defendant brought a motion to dismiss the action under section 137.1(3) of the Courts of Justice Act, a provision resulting from the Anti-SLAPP (Strategic lawsuit against public participation) legislation. Section 137.1(3) requires the Court to dismiss claims where the Defendant proves that the proceeding arises from “expression” related to “a matter of public interest”, subject … Read More
Court of Appeal Confirms Defamation Notice Periods Apply to Online Newspapers
The Ontario Court of Appeal recently released its decision in John v. Ballingall, et al, 2017 ONCA 579, which confirmed that online versions of newspapers are subject to the protections found in Ontario’s Libel and Slander Act, R.S.O. 1990, c. L.12 (the “Act”). The Act provides for certain notice and limitation periods, which if not met, may act as a bar for any future defamation actions. Specifically, Section 5(1) of the Act provides that no action for libel in a “newspaper” or “broadcast” lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given the defendant notice in writing of the specific matter complained of. Section 6 of the Act provides that an action for libel in a “newspaper” or “broadcast” shall be commenced within three months after the libel has come to the knowledge of the plaintiff. In this decision, the plaintiff (a rapper known as Avalanche the Architect) commenced an action for libel against the Toronto Star because … Read More
Supreme Court Provides Guidance on Oppression Remedy
In Wilson v. Alharayeri, 2017 SCC 39, The Plaintiff, Alharayeri, was the president, CEO and a shareholder and a director of the subject Corporation. The subject corporation was incorporated under the Canada Business Corporations Act (“CBCA”). In addition to common shares, the Defendant held convertible A and B preferred shares issued only to him as performance-based incentives. The A and B shares were convertible upon the corporation meeting certain performance targets in 2007. The Plaintiff held convertible C preferred shares, issued to him as an incentive for finding financing. The C shares were convertible into common shares upon the Corporation meeting a specific financial target. In early 2007, the Defendant, Wilson, began negotiating a merger with Company M to address the Corporation’s cash flow issues. At the same time, the Defendant arranged to sell some of his common shares to Company M as a result of personal financial difficulties. The Corporation’s Board … Read More
Supreme Court of Canada Upholds Worldwide De-Indexing Order Against Google
The Supreme Court’s recent decision in Google Inc. v. Equustek Solutions Inc. has approved the use of a worldwide injunction directing Google to de-index the defendant’s website used to facilitate the sale of goods in violation of the Equustek’s intellectual property rights. Equustek obtained an interlocutory injunction against the website owner directly, however the defendant left Canada, refused to comply with the order, and continued to sell products on their website from an unknown location. To help prevent or reduce further ongoing harm, Equustek sought for Google to de-index the site, making it less likely that a potential purchaser will discover the infringing website. Google initially agreed to de-index the result from Canadian search results on google.ca, but refused to enforce this order worldwide. It was concerned that the Canadian courts were using Google to usurp the laws of other nations, particularly on free speech issues, and potentially would force Google … Read More