Keep Them Calm and Arbitrate On!

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Arbitrators, Commercial, Commercial Arbitration, Gilbertson Davis LLP News0 Comments

Keep Them Calm and Arbitrate On!  David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and Arbitrator, will present a talk and workshop at the ADR Institute of Ontario 2020, 35th Annual General Meeting and Professional Development Conference, on June 4, 2020, entitled “Keep Them Calm and Arbitrate On: Sources of Commercial Arbitration Conflict & Tools / Techniques for Conflict Minimization“. Workshop Description Conflict in arbitration arises when the process is conducted as a fight, a battle, or a struggle.  This can defeat the process and frustrate realization of the parties’ objectives. This talk will focus on four sources of conflict: the party who 1) does not want to be in arbitration,  but who has no choice because of a contractual or statutory arbitration requirement; 2) refuses  to participate in the process (and/or to pay the tribunal’s fees); 3) fights everything: the rules, the laws, jurisdiction and procedural orders; and 4) participates over-zealously, whether personally or through counsel. Strategies to minimize such conflicts are suggested. Background  David Alderson has accredited … Read More

Partnership Disputes – Dentists, Doctors, Accountants, Lawyers, Architects and Engineers

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorAppeals, Appellate Advocacy, Arbitration, Arbitrators, Breach of Non-Solicitation Agreement, Business Litigation, Closely-Held Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial List Matters, Confidentiality Agreement, Corporate Disputes, Joint Venture Disputes, Non-Compete, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause, Partnership Dispute, Partnerships and Shareholder Disputes, Professions0 Comments

Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact on … Read More

Prompt Payment Regime Takes Effect For Construction Projects

Sabrina Saltmarsh, B.A. (Hons), J.D.Arbitration, Condo Construction, Construction Equipment & Machinery, Construction Litigation, Cottage Litigation, Heavy Machinery Disputes, Mining, Infrastructure and Projects, Real Estate | Developers, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

A major shift has been underway in Ontario since the legislature ushered in reforms under Bill 142, the Construction Lien Amendment Act, 2017, S.O. 2017, c. 24., perhaps none of which is more significant than the prompt payment regime which took effect on October 1, 2019. Changes To Lien Period: Effective July 1, 2018 Changes to the previous legislation (The Construction Lien Act) have come into effect in phases, with the first set of changes having taken effect in July of last year. We are now in the midst of transition rules which apply depending on the commencement date of a construction project to determine the applicable lien period which changed from 45 days to 60 days for prime construction contracts entered into after July 1, 2018. There were several additional notable changes which took effect as of July 1, 2018, including the extension of the period to perfect a … Read More

Manufacturers and Distributors – Toronto Litigation Lawyers

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorBrand Protection, Business Litigation, Business Torts | Economic Torts, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Contract Termination, Counterfeit Goods, Cross-Border Litigation, Dealership Agreements, Distribution Agreements, Distributors | Dealers, Domain Name Disputes, eCommerce | Online Retail, Passing Off, Retail Disputes, Retail Litigation, Technology and Internet, Textiles and Apparel, Trademark Infringement0 Comments

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, , Bottling, Packaging and Containers, Heating, Ventilation and Air Conditioning – HVAC, Insulation and Environmental Solutions, … Read More

Shareholder Disputes, Oppression Remedy, and Liability of Directors and Officers

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Business Law, Business Litigation, Commercial, Commercial Arbitration, Commercial List Matters, Commercial Litigation, Corporate Litigation, Directors' and Officers' Liability, Family Business Disputes, Partnership Dispute, Partnerships and Shareholder Disputes, Professions, Shareholder Disputes0 Comments

Our lawyers have acted in Ontario and other jurisdictions for small, mid-sized and large Ontario and Canadian corporations, shareholders, directors, officers, executives and creditors in corporate disputes and shareholder disputes. We have acted in both oppression remedy action and derivative actions. Oppression Remedy The oppression remedy is a mechanism in the Ontario Business Corporations Act and the Canada Business Corporations Act to protect the interests of shareholders and stakeholders in a corporation against wrongful conduct.  Whether the Ontario or Canada Act will apply depends on the jurisdiction in which the corporation was incorporated. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the acts of other shareholders, the board of directors or other affiliates of the corporation. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the acts of other shareholders, the board of directors or other affiliates … Read More

Partnership Disputes Between Professionals – Dentists, Doctors, Accountants, Lawyers, Architects and Engineers

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Breach of Non-Competition Clause, Breach of Non-Solicitation Agreement, Business Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Joint Venture Disputes, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause, Partnership Dispute, Partnerships and Shareholder Disputes, Professional Services0 Comments

Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Lastly, some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact … Read More

International Commercial Arbitration Laws – Greater Harmonization

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Arbitrators, Casino Debt Recovery, Commercial, Commercial Arbitration, Enforcement of Foreign Arbitral Awards, New York Convention, UNCITRAL0 Comments

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 80 States in a total of 111 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 2018: British Columbia (the legislation amends previous legislation based on the Model Law). 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 … Read More

Toronto Condo Arbitrator – Independent, Reasonable Fees and Available

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Arbitrators, Commercial, Commercial Arbitration, Condo Litigation0 Comments

David Alderson, LL.B., LL.M, Q.Arb –  Condo Dispute Arbitrator David has been accredited by the ADR Institute as Canada as a Qualified Arbitrator (Q.Arb). He accepts appointments as a commercial arbitrator, including as condominium dispute arbitrator, at reasonable hourly rates (from $350.00 per hour, plus facilities and applicable taxes) and with good availability. The Ontario Superior Court of Justice has appointed David in commercial (including condominium) arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. He has legal experience in arbitration in under different institutional and ad hoc rules, in a wide variety of matters.  David accepts appointment as sole arbitrator and party-appointed arbitrator in a wide variety of condominium disputes. David has appeared as a barrister in the … Read More

Condominium Limitation Periods and Timelines – Mark Your Calendar!

Fatima VieiraCivil Litigation, Commercial, Commercial Arbitration, Commercial Litigation, Condo Construction, Condo Litigation, Construction | Builders, Construction Litigation, Contract Disputes0 Comments

There is continuing intense activity in condominium development in Toronto, the Greater Toronto Area, Hamilton and the Niagara region. Once a condominium corporation is formed by registration of a declaration, it has a lot to do and review, within specific time lines. Getting the essential work done within those specific time lines is crucial to the protection of the rights and remedies of developers, condominium corporations and unit owners. Warranty review time lines occur at one-year, two-year and seven-year marks. If a one-year warranty claim is made, a 120-day period follows for repair or resolution by the builder. If there is no resolution and repairs are incomplete, the condominium corporation has 30 days to request conciliation or assistance with resolution of outstanding issues from the warranty provider.   The conciliation process typically involves inspection by a warranty services representative who then renders a decision as to whether the claims are … Read More

Arbitration Clauses Enforced as Non-Consumers Ejected from Telus Class Action by Supreme Court of Canada

Yona Gal, J.D., LL.MAppeals, Arbitration, Commercial and Contract Litigation0 Comments

In Telus Communications Inc. v Wellman, 2019 SCC 19, the Supreme Court of Canada has favoured arbitration clauses in staying the claims of non-consumers in a class action against TELUS. The Court’s decision reflects a continued commitment of courts to taking a hands-off approach in upholding valid arbitration agreements, while its citation of the Ontario Court of Appeal’s Uber decision indicates that other routes – such as unconscionability – may be pursued to challenge specific arbitration clauses. Facts A proposed class action was filed in Ontario alleging that TELUS had for a number of years rounded up calls to the next minute without telling customers. The class included both consumers and non-consumers (business customers).  Each individually agreed to the same non-negotiable standard form contract.  The contract included an arbitration clause requiring all disputes (other than collection of accounts by TELUS) to be mediated, and failing that, arbitrated. Ontario’s Consumer Protection … Read More

Employee or Not? An Uber Problem to be Decided by Ontario Courts: Arbitration Not the Route

Yona Gal, J.D., LL.MAppeals, Arbitration, Arbitrators, Civil Litigation, Commercial, Contract Disputes, Employment0 Comments

In its first reported decision of the year, the Ontario Court of Appeal has allowed a proposed class action against Uber to proceed in Ontario court. Facts The Appellant commenced a proposed class action in January 2017. They sought, among other things, a declaration that Uber drivers are employees of Uber and governed by Ontario’s Employment Standards Act [“ESA”], as well as $400 million in damages payable to the class for alleged Uber violations of ESA provisions.  Prior to certification, Uber brought a motion to stay the proceeding, requesting the court to enforce a clause in the agreement that requires all disputes to be arbitrated in Amsterdam according to the law of the Netherlands. Ontario Superior Court of Justice The motion judge held that the arbitration clause was enforceable and stayed the action.  Applying the Supreme Court of Canada’s Seidel decision and the Ontario Court of Appeal’s TELUS ruling, the motion … Read More

Court Stays Injunction Claim in Favour of Arbitration / Refuses to Consolidate Arbitration Proceedings Without Consent of All Parties

Andrew Ottaway, B.A. (Hons.), LL.B.Arbitration, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Contract Termination, Injunction & Specific Performance, Insurance0 Comments

In Loan Away Inc. v. Western Life Assurance Company, 2018 ONSC 7229, the plaintiff had an agreement with the defendant by which the plaintiff sold the defendant’s insurance policies in return for payments by the defendant.  The defendant ceased making payments and the plaintiff commenced an action against the defendant for an injunction to require the defendant to make the payments to the plaintiff and to prevent the defendant from terminating the insurance policies that the plaintiff had sold on the defendant’s behalf. The defendant relied upon an arbitration clause in its agreement with the plaintiff to stay the action.  The plaintiff argued, among other things, that the claim should not be stayed because the arbitration clause contained arbitration clause contained an exception for requests for a temporary restraining order or other forms of injunctive relief. The plaintiff argued that its request for a permanent injunction fell under the category … Read More

Toronto Commercial Arbitrator – Featuring David Alderson, LL.B, LL.M, Q.Arb ~ from $350 per hour*

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Arbitrators, Commercial Arbitration, Enforcement of Foreign Arbitral Awards, Gilbertson Davis LLP News, UNCITRAL0 Comments

Background David has been accredited by the ADR Institute as Canada as a Qualified Arbitrator (Q.Arb). He accepts appointments as a commercial arbitrator, international commercial arbitrator and as a business dispute arbitrator, at reasonable hourly rates and with good availability. The Ontario Superior Court of Justice has appointed David in arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed their Gold Standard Course in Commercial Arbitration.  He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. David has lived and practiced commercial litigation and arbitration in Ontario, England, Bermuda and Dubai, in a wide variety of disputes in a diverse range of businesses and industries.  He is also admitted in New York State. His LL.B (Osgoode) and LL.M (Lond.) – Commercial and Corporate, were granted in 1980 and 1988, respectively.  David has acted as counsel in both domestic and international … 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

Grounds for Judicial Intervention on International Arbitral Awards – Key Takeaways

Janice Perri, B.A. (Summa Cum Laude)Appeals, Arbitration, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Leasing, Commercial Litigation, Construction | Builders, Construction Litigation, Enforcement of Foreign Arbitral Awards, UNCITRAL0 Comments

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

McDonald’s Not Served Valid Revocation of Waiver – Commercial Leasing in the Court of Appeal

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorAppeals, Arbitration, Business Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Leasing, Injunction & Specific Performance, Real Estate Litigation, Retail Litigation, Shopping Mall Lease Disputes0 Comments

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

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorCommercial and Contract Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Conventions & Treaties, Counterfeit Goods, Distribution Agreements, Distributors | Dealers, International Sale of Goods, International Traders, Jurisdictional Challenges, Manufacturers | Re-Sellers, Sale of Goods, UNCITRAL0 Comments

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