In the recent Court of Appeal ruling of H.M.B. Holdings Limited v. Antigua and Barbuda, the Court of Appeal for Ontario considered whether an Ontario court should recognize and enforce a recognition and enforcement judgment (Ricochet Judgment) from another province pursuant to the common law. Background: The dispute between these parties has had a long history in the Ontario Courts and the Supreme Court of Canada. The Applicant H.M.B. brought an application to have an enforcement judgment of the province of British Columbia (B.C.) recognized in Ontario. Pursuant to default proceedings, the Supreme Court of B.C. recognized and enforced a foreign judgment issued by the Judicial Committee of the Privy Council (the Privy Council). The Respondent, the Attorney General of Antigua and Barbuda (Antigua) expropriated property owned by the appellant, located in Antigua and Barbuda. The Privy Council awarded compensation to H.M.B. for the expropriation. Antigua did not defend or … Read More
Rescission May Be Available Even If Innocent Third Parties Adversely Affected
In the recent Court of Appeal decision of Urban Mechanical Contracting Ltd. v. Zurich Insurance Company Ltd., 2022 ONCA 589, the Court of Appeal considered whether rescission is ever available as a matter of law when the rights of innocent third parties intervene and restitutio in integrum (putting the parties back to their original position) is impossible. The court answered in the affirmative. In the case the appellants brought two applications seeking a determination of whether, as a matter of law, a bond issuer can rescind a bond agreement on the basis of fraudulent misrepresentations and collusion when doing so would affect the rights of innocent parties. Background The case dealt with a public-private redevelopment project with infrastructure Ontario to build a new 17-storey patient care tower (the Project). The construction was to be financed and carried out by the private sector. The Project was subject to Ontario’s procurement process … Read More
How to Set Aside (Cancel) a Separation Agreement: Part 1
Courts generally respect the arrangements negotiated by parties in separation agreements. However, under the Family Law Act, there are several grounds on which a court can “set aside” (cancel) a separation agreement. A party seeking to set aside a separation agreement must show the court their matter falls within one of these grounds and then convince the court to exercise its discretion in their favor and set aside the agreement. A recent case illustrates two of the most common grounds to set aside a separation agreement: (i) if a party did not understand the nature or consequences of the domestic contract; and (ii) where there is duress, undue influence, fraud, misrepresentation, or for public policy reasons. Radosevich v Harvey involved an appeal of a lower court decision. The appellant, Ms. Radosevich, had sued her former family law lawyer, Ms. Harvey, for being negligent in the negotiation of her separation agreement. … Read More
The Top Four Family Dispute Resolution Options
Most separating spouses do not resolve their parenting, support, and property issues in court. In fact, Canada’s Divorce Act requires separating spouses and their lawyers to try to resolve these issues through an out-of-court process unless it is inappropriate to do so. This can be a cheaper, faster, and less acrimonious way to settle family law disputes than traditional court litigation. These out-of-court options are referred to by the general term ‘family dispute resolution process’ (FDR). The most common forms of (FDR) processes, are negotiation, collaborative family law, mediation, and arbitration. This can be formal negotiation between lawyers or more informal negotiation between the parties themselves, with or without lawyers. Negotiation can occur when only one party has a lawyer, and the other party does not. Most separating couples try negotiation first before proceeding to other forms of FDR. Collaborative family law is a form of negotiation, that attempts … Read More
Allegedly Defamatory Review Found not to Relate to a Matter of Public Interest
In Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, the Ontario Court of Appeal (“ONCA”) dismissed the appellant’s appeal from a decision of the motion judge of the Ontario Superior Court of Justice, in which the motion judge denied the appellant’s request to dismiss the respondent’s defamation action under s. 137.1 of the Courts of Justice Act (“Act”), known as the “anti-SLAPP” provision of the Act. The appeal mainly focused on whether an anonymous workplace review by an employee about his/her employer relates to a matter of public interest as required by s. 137.1(3) of the Act. The ONCA opined that on such motions, “expression is to be assessed as a whole”. As such, the question is whether: “some segment of the community would have a genuine interest in receiving information on the subject”. The court must ask: “Understood in its context, what is the impugned expression really about”? … Read More
Undocumented Trusts – No Requirement for Formal Trust Agreements
In the recent decision from the Ontario Court of Appeal (“ONCA”), Corvello v. Colucci, 2022 ONCA 159, the ONCA confirmed that a trust can exist even where there is no written trust agreement. At issue in the case was the ownership of a land use permit which allowed the holder(s) of the permit to build on and use the land for recreational purposes. In the court of first instance, the appellant took the position that the permit belonged to him alone. However, the trial judge determined that the appellant actually held the permit “in trust for himself and the respondents as beneficial owners”. On appeal, the appellant argued that the trial judge erred in law and in fact by determining that an undocumented trust agreement existed. The ONCA advised that it is trite law that a valid trust requires “three certainties: certainty of intention to create a trust, certainty of … Read More
Broker and Agent Liability Claims Arbitrator – Reasonable Fees – Good Availability
David Alderson, LL.B, LL.M, Qualified Arbitrator Broker Dispute Arbitrator | Agent Dispute Arbitrator David Alderson is an independent, experienced and qualified Arbitrator. His practice in broker and agent claims in real estate, mortgage, business, securities and investment, insurance and reinsurance, distribution, marine and transportation cases make him an ideal choice as sole or panel arbitrator in broker and agent claims arbitrations. He has been appointed by the courts in commercial arbitration disputes. Broker and Agent Claims Arbitration David can be appointed in arbitrations concerning these professionals: Business (Sale of) Brokers Real Estate Brokers and Agents Realtors Mortgage Brokers Stockbrokers Securities Brokers Commodities Brokers Insurance Brokers and Agents Life Insurance Agents Commercial Brokers Merchandise Broker Shipbrokers Yacht Brokers Freight Brokers Arbitration Expertise David has arbitrated disputes on a wide variety of matters, and has been appointed by the Ontario Superior Court of Justice as sole arbitrator in commercial arbitration matters. He is an arbitrating … Read More
Family Violence: New Tort Recognized in Ontario
In the recent decision, Ahluwalia v. Ahluwalia, 2022 ONSC 1303, the court recognized the new tort of “family violence” as a civil remedy, outside of the scope of family/criminal liability. The court awarded $150,000 “in compensatory, aggravated, and punitive damages for the tort of family violence”, recognizing that such an award “is well-outside the normal boundaries of family law”. Recognition of the New Tort of Family Violence The court recognized that the Divorce Act “does not create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence” and does not provide the victim of family violence “with a direct avenue to obtain reparations for harms that flow directly from family violence and that go well-beyond the economic fallout of the marriage”. Further, the Divorce Act prohibits consideration of “misconduct” when making a spousal award. At “its heart, spousal support is compensatory … Read More
Professional Liability Claims Arbitrator – Experienced and Qualified Arbitrator with Reasonable Fee Rates
Professional Liability Claims Arbitrator David Alderson is an independent, experienced and qualified Arbitrator. Practice in professional liability, professional indemnity and professional negligence cases make him a good choice as sole or panel arbitrator in professional liability claims arbitrations. He has been appointed by the courts in commercial arbitration disputes. Business & Financial Professionals Property and Real Estate Professionals David can be appointed as sole arbitrator concerning claims and disputes involving these professionals: Business & Financial Professionals Directors Officers Accountants Actuaries Auditors Investment Advisors Financial Advisors Financial Planners Financial Analyst Investigators Consultants Trustees Securities Brokers Valuators Lawyers Partners Joint Venture Parties Retirement Plan Administrators Property and Real Estate Real Estate Brokers Real Estate Agents Stakeholders Fiduciaries Architects Engineers Auctioneers Lawyers Fiduciaries Trustees Estate Trustees Administrators Executors Receivers Trustees in Bankruptcy Lawyers Arbitration Expertise David has arbitrated disputes on a wide variety of matters, and has been appointed by the Ontario Superior … Read More
Are my Trademark Rights being Breached? Trademark Infringement and Passing Off Lawyers
In Subway IP LLC v. Budway, Cannabis & Wellness Store, 2021 FC 583, the Federal Court of Canada (“FC”) found that the respondents infringed on the applicant’s registered trademark contrary to section 20 of the Trademarks Act. The FC found that the use of the “BUDWAY” trademark amounted to the tort of passing off and depreciation of goodwill in the appellant’s trademark. As a result, the court granted the applicant, Subway, damages in the amount of $15,000 and an injunction against the respondents prohibiting them, among other things, from dealing in goods or services in association with the trademark or trade name “BUDWAY”. What is Considered a Breach of Trademark Rights? In the FC’s reasons for its decision, it advised generally that: A trademark registration grants the owner the exclusive right to use the mark throughout Canada in respect of the goods and services in the registration; The right to … Read More
Court Orders Removal of Fake Reviews Posted by Anonymous Reviewer
In Obsidian Group Inc. v. Google LLC, 2022 ONSC 848, the moving party brought a motion, prior to commencing its civil proceeding, for an interim injunction requiring the removal of certain messages about it posted on its Google review page by a pseudonymous reviewer. It also sought a Norwich Order (an order requiring an innocent third party to provide certain information) directing the respondent to divulge identifying information regarding the unknown reviewer. The court found that there were “strong grounds for suspecting that” the reviews are fake. The court also found that it “would not surprise anyone” given the content of the reviews that they are “causing continuous damage” to the business of the applicant. The reviews seem “designed to discourage people from ever booking a room at the hotel” of the applicant. Further, according to statistics provided by the applicant, the reviews were “accessed several thousand times since they … Read More
Waiving a Contractual Right May Not Be as Easy as You Might Think!
In the recent decision from the Ontario Court of Appeal (“ONCA”), Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907, the ONCA set aside the decision of the motion judge which dismissed the plaintiff’s claim on a motion for summary judgment brought by the respondent. The ONCA opined that the motion judge made an error in law by finding that the appellant had waived the auto renewal provision of the consulting agreement that forms the basis of the dispute. The motion judge’s decision stems largely from the appellant’s representative’s email in which he stated “Let this email serve to remove the auto renewal from the contract”. The motion judge found that this email resulted in a waiver of the auto renewal provision of the consulting agreement by the appellant, and that the waiver was accepted by the respondent in a subsequent email. Though the ONCA conceded that a … Read More
Arbitration and Summary Judgment – Is Summary Judgment Available in Arbitration Matters?
In the arbitration preceding the Ontario Superior Court of Justice (“OSCJ”) decision, Optiva Inc. v, Tbaytel, 2021 ONSC 2929 (CanLII), the respondent successfully brought a motion for summary judgment before a sole arbitrator. The applicant then appealed the arbitrator’s award to the OSCJ, arguing, among other things, that the arbitrator could not, absent consent of the applicant, proceed by way of summary judgment. The OSCJ disagreed with the respondent’s position, instead affirming that the “arbitrator could elect to proceed by summary judgment absent the consent of [the applicant]”. The court cited, as authority for its conclusion, section 20(1) of the Arbitration Act, which states: 20 (1) The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act. The OSCJ opined that “summary judgment should be available to the parties in an arbitration subject to the requirement” that the process: Allows the arbitrator to … Read More
Procurement Dispute Arbitrator – Independent, Qualified, Reasonable Hourly Fees, and Good Availability
Procurement Arbitrator, Procurement Dispute Arbitration, Government Procurement ADR, Public Procurement Arbitrator, Goods and Services Dispute Arbitrator, Public Contract Arbitrator and P3 Contract Dispute Arbitrator Sole Arbitrator – $450.00 per hour, plus HST David Alderson is an independent, experienced and Qualified Arbitrator whose domestic and international practice in sale of goods and services, infrastructure, construction, projects, project finance and joint ventures make him an ideal choice as sole or panel arbitrator for procurement disputes involving any level of Government. The administration of arbitral services is provided by Gilbertson Davis LLP Arbitration Chambers, an established arbitration chambers serving Ontario and elsewhere, from its office in the Toronto Financial District. David Alderson has been appointed by the Ontario Superior Court of Justice in commercial arbitration disputes. Procurement Disputes David can arbitrate disputes arising from contracts for goods or services involving any level of government in Canada, provinces or municipalities, multi-level joint venture, involving … Read More
Arbitration Chambers – in the Adelaide St. “Arbitration Alley”
TorontoArbitrator.com Gilbertson Davis LLP Arbitration Chambers is established among the numerous arbitration chambers situated along or nearby the the short span of Adelaide Street between Bay and Yonge Street in the Toronto Financial District. Sole Arbitrator – from $450.00 per hour, plus HST Reasonable Fees and Good Availability It offers experienced, independent and qualified commercial arbitrators and commercial mediators at very competitive and reasonable hourly fee rates and good availability for hearings for both substantive dispute arbitration and procedural arbitration. Commercial Arbitrators All our arbitrators are senior legal practitioners who also accept appointments as independent arbitrators. They are distinguished in their respective areas of practice and have differing legal practice backgrounds, through diversity of their legal experience in the world of reinsurance, insurance, business disputes, shareholder and partnership disputes, international trade & distribution, sale of goods, share of businesses, procurement, commercial leasing, employment, technology and marine matters, and from foreign legal … Read More
Motion by Arbitrator | Application by Arbitrator | Procedure Arbitration
TorontoArbitrator.com Sole Arbitrator – from $450.00 per hour, plus HST Access to Justice Parties Agree That Motions & Applications be Heard and Determined by an Arbitrator Lawyers are already doing this to address the needs of their clients in existing civil and commercial litigation in the courts. The courts in Ontario continue to address access to justice in the time of the coronavirus, providing a triage process to determine which matters are considered urgent and should be heard. Video conference arrangements in the courts have evolved. We are mindful that both criminal and family law matters are likely to take priority both now and when traditional hearings become available post-coronavirus. Due to the current difficulty in obtaining an early date for the hearing of a motion or of an application, commercial and civil litigation lawyers are proactively addressing their client’s needs by arbitrating motions and application. They agree to do … Read More
Business Dispute Arbitrator – Qualified Arbitrator with Reasonable Fees
Business Disputes Arbitrator | Business Claims Arbitrator | Experienced Business Dispute and Business Claim Arbitrator | Independent and Qualified Arbitrator with Reasonable Fees and Good Availability Sole Arbitrator – $450.00 per hour, plus HST Experience David Alderson, LL.B, LL.M (Commercial and Corporate), Qualified Arbitrator accepts arbitrator appointments, both as sole arbitrator and as panel arbitrator, for business disputes and business claims, including corporate disputes, shareholder disputes, joint venture disputes, family business disputes, closely held business disputes and start-up business disputes, as well as sale of business disputes. He is qualified, independent, and offers appointment on reasonable fees and with good availability. The Ontario Superior Court of Justice has appointed David as arbitrator in commercial arbitration matters and he regularly sits as an arbitrator in business and commercial disputes. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in … Read More