Ontario Court of Appeal: There is No Common Law Tort of Harassment

Yona Gal, J.D., LL.MAppeals, Appellate Advocacy, Civil Liability, Civil Litigation0 Comments

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

Gilbertson Davis LLP Successfully Defends Against Appeal of Decision Enforcing Liquidated Damages in Settlement Contract

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Fraud, Fraudulent Schemes, Gilbertson Davis LLP News, Investment Fraud, Summary Judgment0 Comments

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

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Cross-Border Litigation, Enforcement of Foreign Judgments, Injunction & Specific Performance, Mareva Injunction, Of Interest to US Counsel0 Comments

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

Summary Judgment Motion Publication: Sentinels of the Hryniak Culture Shift: Four Years On

John L. Davis, B.A. (Hons.), J.D.Appeals, Appellate Advocacy, Civil Liability, Commercial Litigation, Fraud Recovery, Gilbertson Davis LLP News, Summary Judgment0 Comments

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

Supreme Court Considers an ISP’s Right to Costs in Norwich Orders for Copyright Infringement

Peter Neufeld, B. Soc. Sc., J.D.Appeals, Appellate Advocacy, Civil Litigation, Commercial, Copyright Infringement, Intellectual Property, Norwich Order0 Comments

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

#MeToo – The Assessment of Damages in Sexual Assault Cases

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Appellate Advocacy, Negligence, Sexual Assault, Sexual Harassment0 Comments

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

Dominican Republic Vacation Claim Examined in Di Gregorio v. Sunwing Vacations Inc.

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Commercial Contracts, Contract Disputes, Cross-Border Litigation, Jurisdictional Challenges, Negligence, Summary Judgment, Travel & Tour Operators, Travel & Tourism0 Comments

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.

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Contract Disputes, Contract Termination, Employment, Employment & Wrongful Dismissal, Summary Judgment, Wrongful Dismissal0 Comments

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

Popack v. Lipszyc: Recognition and Enforcement of Arbitration Awards – Clarifying the term “binding”

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Enforcement of Foreign Arbitral Awards, Real Estate Litigation, UNCITRAL0 Comments

Popack v. Lipszyc appears to be the first Ontario Court of Appeal case on the recognition and enforcement of arbitration awards under the 2017 International Commercial Arbitration Act (“ICAA”). The ICCA includes the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and the 2006 amended version of UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). The appellants used articles 35 and 36 of Model Law to apply for the recognition and enforcement of the international commercial arbitration award they received in August 2013 against the respondents. While the application judge dismissed the application, the Court of Appeal allowed the appeal. The Court of Appeal stated that “in Ontario, a strong “pro-enforcement” legal regime” exists for the recognition and enforcement of international commercial arbitration awards, as grounds for refusal are “to be construed narrowly”. Importantly, the Court, and not the tribunal, is the proper avenue to … Read More

Entire Agreement Clause Upheld in Manorgate Estates Inc. v. Kirkor Architects and Planners

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Construction | Builders, Construction Litigation, Contract Disputes, Misrepresentation, Negligence, Real Estate | Developers, Real Estate Litigation0 Comments

Entire Agreement Clauses are meant to prevent negotiations that occurred prior to the contract being formed from influencing the Court’s interpretation of the terms set out in the final contract. In other words, past discussions are to have no bearing on the understanding of the contractual terms. In theory, a fully integrated agreement of this kind supplants any earlier oral or written agreements. There is competing jurisprudence in which Entire Agreement Clauses have been both effective and ineffective. However, Manograte Estates Inc. v. Kirkor Architects and Planners is a recent Ontario Court of Appeal decision where an Entire Agreement Clause was effective. In Manograte Estates Inc. v. Kirkor Architects and Planners, the Ontario Court of Appeal upheld the Motion Judge’s decision that the Entire Agreement Clause in the relevant agreement, regarding architectural consulting for a construction project, operated as a complete defence to the appellants’ claim of alleged negligent misrepresentation. The Entire Agreement Clause … Read More

The Supreme Court of Canada On Defence Against the Tort of Conversion (Teva Canada Ltd. v. TD Canada Trust)

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Business Law, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial Law, Commercial Litigation, Employee Fraud, Finance Litigation, Financial Services | Investment, Fraud, Fraud Recovery, Fraudulent Schemes, Investment | Financial Services0 Comments

In Teva Canada Ltd. v. TD Canada Trust, Teva Canada Ltd. (“Teva”), a pharmaceutical company, “was the victim of a fraudulent cheque scheme implemented by one of its employees”, (para 1). Teva claimed the collecting banks were liable for the tort of conversion. Teva Canada Ltd. v. TD Canada Trust provides insight into the Bills of Exchange Act‘s (“BEA”) section 20(5) defence to the tort of conversion, by clarifying the approach used to determining whether a payee is “fictitious or non-existing”. In the event that a payee is deemed fictitious or non-existing within the meaning of section 20(5) of the BEA, the bill may be treated as payable to the bearer, and thus can be negotiated by simple “delivery” to the bank meaning endorsement is not required, and the defence will succeed (para 5). Justice Abella, writing for the majority, outlined the two-step framework a bank must satisfy to demonstrate that a payee is fictitious or … Read More

Business “One Step Removed” From Tort Liability: Rankin (Rankin’s Garage & Sales) v. J.J.

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Commercial, Negligence0 Comments

The neighbour principle derived from Donoghue v. Stevenson that underlies the Anns/Cooper test continues to animate all of tort law. The pendulum continues to swing regarding who we can properly call our “neighbours” for legal purposes. While limiting who qualifies as our neighbours is necessary to prevent indeterminate liability, a balance must be struck to ensure just and fair outcomes. Rankin (Rankin’s Garage & Sales) v. J.J., in a strong 7-2 decision, represents the Court attempting to strike such a balance. In Rankin (Rankin’s Garage & Sales) v. J.J. a 15-year-old Plaintiff, J., suffered a catastrophic brain injury as a result of being the passenger in a car accident that occurred after his 16-year-old friend, C., stole a car from Rankin’s Garage & Sales (paras 1-5). Justice Karakatsanis, writing for the majority of the Supreme Court of Canada, held that there was no duty of care owed in this case by a business that stores vehicles to someone who is injured following the theft of … Read More

Ontario Appellate Court Recognizes Adjusters’ Agency Immunity

R. Lee Akazaki, C.S., B.A. (Hons.), J.D.Agents and Brokers, Appeals, Appellate Advocacy, Insurance, Professional Indemnity, Professional Liability, Professions0 Comments

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

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Defamation, Internet | Technology, Online Defamation, Technology and Internet0 Comments

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

Court of Appeal Considers Effect of Nude Photos on Contractual “Morals Clause”

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Brand Protection, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Contract Termination, Entertainment and Media, Internet | Technology, Media Litigation0 Comments

In Zigomanis v. 2156775 Ontario Inc. (D’Angelo Brands), 2018 ONCA 116 (CanLII), the Defendant entered into a promotional contract with the Plaintiff, who was at the time a professional hockey player.  The contract contained a “morals clause”, stating that the Defendant could terminate the contract if the Plaintiff “commits any act which shocks, insults, or offends the community, or which has the effect of ridiculing public morals and decency.” The Defendant terminated the contract for an alleged breach of the morals clause: specifically, unknown persons published nude photographs of the Plaintiff on the internet.  The photos had originally been sent by the Plaintiff to his girlfriend, before he entered into the contract.  The Defendant argued that sending the nude photos violated the morals clause. The Plaintiff sued the Defendant for wrongful termination of the contract.  The trial judge found, among other things, that the private transmission of nude photographs within … Read More

Court of Appeal States that Placing Oneself in Position to Close Transaction not Waiver of Deficiency

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Law, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Real Estate Litigation, Sale of Business Disputes0 Comments

In 1418885 Ontario Ltd. v. 2193139 Ontario Limited, 2018 ONCA 54, the appellant entered into an agreement of purchase and sale to buy a property from the respondent.  The property included residential apartments.  The appellant sought confirmation from the respondent that the residential apartments were permitted use under the existing zoning by-law.  The respondent maintained that the residential apartments were “a legal non-conforming use”.  However, the planning authority indicated that there was a possible problem with the residential apartments.  The appellant’s lawyer advised the respondent’s lawyer that the purchase deposits had to be returned if the issue was not resolved. In spite of the residential apartments issue, the appellant and respondent moved towards the closing date by exchanging draft documentation and related material.  However, on closing date, the appellant’s lawyer advised the respondent’s lawyer that the appellant would not be closing because of the residential apartments issue.  The deal did … Read More

Court of Appeal Provides Guidance on Whether Party Carrying on Business in Ontario as Basis for Jurisdiction

Andrew Ottaway, B.A. (Hons.), LL.B.Appellate Advocacy, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Sgromo v. Scott, 2018 ONCA 5, the Court of Appeal considered the scope of one of the presumptive grounds for jurisdiction of the Ontario Court: whether a party carried on business in Ontario.  The Defendants were incorporated in jurisdictions outside of Ontario.   The Defendants brought motions to stay or dismiss the subject actions. On the motion, the Plaintiff alleged that because the products of some of the Defendants were advertised, marketed, and distributed by third party retailers in Ontario, the Defendants were carrying on business in Ontario, such that Ontario had presumptive jurisdiction.  The motion judge rejected that argument. On appeal, the Court of Appeal agreed with the motion judge’s reasons, stating that: as set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), the Courts must be cautious when considering whether an entity is carrying on business in the jurisdiction, … Read More