Adjournment Request Denied! Ontario Court Recognizes Arbitral Award from China

Gilbertson Davis LLPAlternative Dispute Resolution (ADR), Arbitration, Arbitrators, Business Litigation, Civil Liability, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Arbitrator, Debt and Enforcing Judgments, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments0 Comments

In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Xiamen International Trade Group Co., Ltd. v. LinkGlobal Food Inc., 2023 ONSC 6491, the applicant sought the recognition and enforcement of an arbitration judgment of the Xiamen Arbitration Commission (the “Award”). The underlying arbitration dispute related to a contract entered into by the parties wherein the applicant was to purchase protective masks from the respondent for the purchase price of US $532,224.00. The contract between the parties contained an arbitration clause and a choice of law clause providing that the law of the People’s Republic of China governed any dispute over the contract between the parties. In the arbitral proceeding in China, the applicant sought a refund of the purchase price of the masks and compensation for other costs incurred. A panel of three arbitrators unanimously ruled in favour of the applicant and granted the Award. As the … Read More

Family Business Litigation | Start Up Company Litigation

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAppointing Auditor, Appointing Inspector, Business Arbitrator, Business Defamation, Business Dispute Arbitrator, Business Disputes, Business Law, Business Litigation, Commercial, Commercial Arbitration, Commercial List Matters, Directors' and Officers' Liability, Family Business Disputes, Shareholder Disputes, Start-Up Disputes0 Comments

We have experience acting for, advising and representing those in closely-held company litigation, both arising from family business disputes and start-up company disputes. Family Business Disputes Many businesses in Canada are family businesses or have evolved from family businesses. Family businesses present many unique challenges as they grow, as key members of the company or partnership leave the family business, or when personal relationships of the key members of the family business thereby change or deteriorate. One of the most common differences between a family business and other established businesses, whether or not a shareholders’ agreement, partnership agreement and other legal documentation was used in the formation of the family business, is the informality in operation of the family business, including the often ignored distinction in fact between employees, shareholders, or partners – since family members often take on multiple roles. Please see our webpage on Family and Closely Held … Read More

Divorce and the Family Business

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorBusiness Dispute Arbitrator, Business Litigation, Business Mediation, Business Mediator, Closely-Held Business Disputes, Commercial, Divorce & Family Business, Family Business Disputes, Oppression Remedies, Partnership Arbitrator, Partnership Dispute, Partnership Dispute Arbitrator, Partnerships and Shareholder Disputes, Shareholder Arbitrator, Shareholder Dispute Arbitrator0 Comments

Family Business Challenges from Divorce or Separation Many businesses in Canada are family businesses or have evolved from family businesses. Family businesses present unique challenges as they grow should the personal relationships of the key members of the family business change or deteriorate. Divorce and separation can have serious impact upon family-owned and family-run businesses, whether incorporated companies or partnerships. Changes in a family business and the challenges presented by change can often result in legal disputes between interested parties. Family business disputes are often be protracted, expensive, and disruptive, and may even result in the sale, division or winding up of the family business. Impact of Separation and Divorce on Family Businesses Complex questions arise in the division of property and assets when dealing with a family business during a separation or divorce. The value of the family business may be included in the equalization of net family property … Read More

Service Abroad in Civil and Commercial Litigation

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorBusiness Litigation, Casino Debt Recovery, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Corporate Litigation, Cross-Border Litigation, Hague Conventions, International Commercial Arbitrator, International Distribution, International Litigation, International Reinsurance Dispute, International Sale of Goods, Internet Defamation, Online Defamation, Passing Off, Request for International Judicial Assistance, Trademark Infringement0 Comments

The Hague Service Convention  Since 1989 Canada has been a member of Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, (the Hague Service Convention). Incoming Service of Foreign Process We have blogged before about the requirement of the Hague Service Convention that its member States designate a “Central Authority” to accept incoming requests for service. There are alternatives to the Hague Service Convention service of foreign process in Ontario. Service of Ontario Process Abroad  As other jurisdictions become, or will become, members of the Hague Service Convention, the Status Table is updated. For instance, see the status of Azerbaijan (November 1, 2023), Singapore (December 1, 2023) and Paraguay (January 1, 2024) on the Status Table. Why Chose Gilbertson Davis LLP? One of  the senior commercial litigation lawyers at Gilbertson Davis LLP, though now only practicing in Ontario, has also practiced … Read More

Ontario Superior Court of Justice Finds Expired Arbitration Award Relevant in Motion for Injunctive Relief

Tyler O’HenlyAlternative Dispute Resolution (ADR), Arbitration, Arbitrators, Business Dispute Arbitrator, Business Disputes, Business Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Arbitrator, Commercial Contracts, Commercial Law, Commercial Litigation, Contract Disputes, Corporate Litigation, Injunction & Specific Performance, Internet | Technology, Moving Litigation to Arbitration, Technology Arbitrator0 Comments

In Rogers v. TELUS Communications Inc., 2023 ONSC 5398, the Ontario Superior Court of Justice held that the terms of an expired arbitration decision are relevant when a party seeks injunctive relief that contradicts its terms. The moving and responding parties are both prominent competitors in the Canadian telecommunications market. Under a requirement imposed by the Government of Canada, their customers have the reciprocal ability to “roam” on the other carrier’s network in areas where their own carrier does not provide coverage. This obligation allows Canadian customers to access wireless services across the country. For a time, the parties did not agree on what was displayed to customers when they were roaming on a competitor’s network. The primary dispute was whether the network identifier (“NID”) displayed in the top-left corner of most mobile devices would connote an extension of their own carrier’s network (i.e. “[Carrier]-EXT”), or if it would notify customers … Read More

Ontario Court of Appeal Comments on the Oppression Remedy – Oppression is Focused on Fairness and Equity, not on Legal Rights

Gilbertson Davis LLPAppeals, Business Law, Business Litigation, Business Torts | Economic Torts, Civil Liability, Civil Litigation, Commercial and Contract Litigation, Corporate Litigation, Directors' and Officers' Liability, Oppression Remedies, Partnerships and Shareholder Disputes, Shareholder Dispute Arbitrator0 Comments

In the recent decision of the Ontario Court of Appeal (“ONCA”), Pereira v. TYLT Technologies Inc. (TYLTGO), 2023 ONCA 682, the appellant successfully appealed a judgment dismissing his application for an oppression remedy under the Canada Business Corporations Act, RSC 1985, c C-44 (the “CBCA”). The appellant argued that the application judge erred in only considering the appellant’s expectations as an employee and failing to consider his expectations as a shareholder. The ONCA opined that the application judge took an “overly narrow” approach by placing focus mostly on the documents signed by the parties and not considering all of the circumstances. The ONCA considered some of the major principles related to the oppression remedy, including the following: Oppression is an equitable remedy which seeks to ensure fairness. Thus, conduct found to be oppressive does not need to be “unlawful” per se, because oppression is focused on “fairness and equity”, rather … Read More

Stay of Court Proceedings in Favour of Arbitration – Standard of Proof

Gilbertson Davis LLPAlternative Dispute Resolution (ADR), Appeals, Arbitration, Business Disputes, Business Law, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Commercial Mediators0 Comments

In the recent decision Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, the Ontario Court of Appeal (“ONCA”) reviewed the law of international commercial arbitration, and in particular opined on the issue of the standard of proof that a party needs to meet in order for the court to grant a stay of a court proceeding pursuant to section 9 of the International Commercial Arbitration Act, 2017 (the “Act”), in favour or arbitration. Section 9 of the Act states as follows: Where, pursuant to article II (3) of the Convention or article 8 of the Model Law, a court refers the parties to arbitration, the proceedings of the court are stayed with respect to the matters to which the arbitration relates. The appellant submitted that the proper analytical framework for assessing a request to stay an action under the Act was set out in the … Read More

Directors Can Be Liable To Corporations Creditors For Stripping Assets

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes0 Comments

In the recent Court of Appeal decision of FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92 the Court of Appeal considered whether a landlord in a commercial lease arrangement could pursue a claim against the sole director and officer of the tenant corporation, for stripping the assets of the corporation to evade their debt obligations under the lease. The Facts The Appellants, FNF Enterprises Inc., and 2378007 Ontario Inc. (the “Landlord”) owned a commercial premises in Kitchener, Ontario which they leased to one of the Respondents on the appeal, a corporate entity named Wag and Tag Inc., (the “Tenant”). Wag and Tag Inc. was in the business of providing dog grooming, training and daycare services. The lease ran from 2015 to March 31, 2021. The premises was abandoned by the Tenant prior to the end of the lease term. The Claim In September 2020, the Landlord commenced … Read More

Recognition of Foreign Judgments and Arbitral Awards – Recent Decision of the Ontario Superior Court of Justice says Ontario Court is Not to Intervene Absent Exceptional Circumstances

Gilbertson Davis LLPArbitrators, Business Arbitrator, Business Litigation, Civil Liability, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Arbitrator, Commercial Litigation, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments0 Comments

The Ontario Superior Court of Justice (“OSCJ”) recently released its decision in Costco Wholesale Corporation v. TicketOps Corporation, 2023 ONSC 573, granting an application to enforce judgments received by the applicant from the United States District Court (Western District of Washington at Seattle) and/or the underlying arbitral awards. At the same time, the OSCJ also rejected the Respondents’ motion to convert the application into an action. Recognition of Awards With regard to the Awards, the OSCJ advises as follows: “In Ontario, foreign arbitral awards are enforceable through the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (“ICAA”).  The ICAA provides that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“Convention”) has force of law in Ontario.  The Convention is set out in Schedule 1 to the ICAA.  The ICAA also provides that the Model Law on International Commercial Arbitration (“Model Law”) has force of law in Ontario.  The Model Law is set out in Schedule 2 to the ICAA.” The OSCJ notes that the Convention and … Read More

Recognition of United States and Other Foreign Default Judgments – The Ontario Court Does Not Consider Underlying Merits!

Gilbertson Davis LLPBusiness Litigation, Civil Liability, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Judgments0 Comments

Just over a month ago, the Ontario Superior Court of Justice (“ONSC”) in North Field Technology Ltd. v. Project Investors, Inc., 2022 ONSC 5731, recognized as orders of Ontario a default judgment and various ancillary orders that the Applicant obtained in the United States District Court, Southern District of Florida (“Florida Court”), against the Respondents. The Florida Court found that the Respondents were evading service of the legal proceedings in Florida and issued a series of judgments against the Respondents such as an asset freeze injunction and permanent injunction restraining the Respondents from transferring their assets, as well as orders for certain monetary and declaratory relief, among other orders. The ONSC validated service of the Ontario application, recognizing that the Florida Court “has already found that the respondents were avoiding service”. The ONSC also found that the Applicant has met the test for recognition and enforcement of the Florida Judgments … Read More

Entire Agreement Clause Not A Shield To Fraudulent Misrepresentation

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Construction Litigation, Contract Disputes, Real Estate Litigation0 Comments

In the recent Court of Appeal ruling of 10443204 Canada Inc. v. 2701835 Ontario Inc., 2022 ONCA 745, the Court of Appeal clarified that entire agreement clauses in contracts do not shield any representor or deprive any party to a contract from remedies available for a fraudulent misrepresentation. Background In May of 2019 the appellant Chirag Patel and his corporation 2701835 Ontario Inc. (the appellants) entered into a purchase agreement (the “APS”) with the respondent 10443204 Canada Inc. (the respondent), related to the purchase of a coin laundry business located in Brampton. The APS contained an entire agreement clause of which the relevant part indicated: “There is no representation, warranty, collateral agreement or condition, affecting this Agreement other than as expressed herein.” In accordance with amended terms to the APS concerning the purchase price the appellants made a partial payment of $100,000 on closing and the balance of the purchase … Read More

Rescission May Be Available Even If Innocent Third Parties Adversely Affected

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Litigation, Commercial and Contract Litigation, Commercial Litigation, Construction Litigation, Contract Disputes, Real Estate Litigation0 Comments

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

Court Orders Removal of Fake Reviews Posted by Anonymous Reviewer

Gilbertson Davis LLPBusiness Defamation, Business Litigation, Civil Liability, Civil Litigation, Cyber Libel, Defamation, Harassment, Internet Defamation, Libel, Norwich Order, Online Defamation, Online Defamation, Online Harassment0 Comments

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

Recognition of Foreign Judgments – Supreme Court Leaves Determination of Enforceability of “Ricochet Judgments” for another day – Update on Previous Blog

Gilbertson Davis LLPAppeals, Business Litigation, Civil Litigation, Commercial Litigation, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Judgments0 Comments

This is an update on our blog, Recognition of Foreign Judgments – The Ontario Courts will not Recognize Enforcement Orders (a.k.a. “Ricochet Judgments”), regarding the Superior Court decision in H.M.B. Holdings Ltd. v. Attorney General of Antigua and Barbuda, 2021 ONSC 2307 (CanLII). That decision has been appealed up to the Supreme Court of Canada (“SCC”), which has now also rendered its decision. In dismissing the appeal, the SCC agreed with the application judge, and with the Court of Appeal, that Ontario’s Reciprocal Enforcement of Judgments Act (the “Act”) bars the plaintiff (appellant) from registering a default judgment that it obtained in British Columbia to enforce a judgment granted by the Judicial Committee of the Privy Council. The SCC advised that the Act only applies to (1) reciprocating jurisdictions, such as British Columbia, and (2) judgments or orders of a court in a civil proceeding where a sum of money … Read More

Recognition of Foreign Judgments – The Ontario Courts will not Recognize Enforcement Orders (a.k.a. “Ricochet Judgments”)

Gilbertson Davis LLPBusiness Litigation, Civil Litigation, Commercial and Contract Litigation, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Judgments0 Comments

In H.M.B. Holdings Ltd. v. Attorney General of Antigua and Barbuda, 2021 ONSC 2307, on a summary judgment motion, the Ontario Superior Court of Justice (“OSCJ”) found that there was no genuine issue requiring a trial and subsequently dismissed the plaintiff’s action (commenced on May 6, 2019) for the recognition of a money judgment that it obtained against the defendant in British Columbia in 2017 (“BC Judgment”). The BC Judgment was a default judgment recognizing and enforcing a judgment of the Privy Council of the United Kingdom which the plaintiff obtained in 2014 (“Privy Council Judgment”). The defendant argued that: The plaintiff was attempting to avoid seeking recognition and enforcement of the original Privy Council Judgment in Ontario by seeking to recognize and enforce the derivative BC Judgment instead; The plaintiff would be out of time to seek recognition of the Privy Council Judgment in Ontario (because of the expiry … Read More

Breach of Contract Lawyers – Can Contracts that do not Specify Duration or that Lack a Termination Clause be Terminated Unilaterally?

Gilbertson Davis LLPBusiness Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Termination0 Comments

Ontario’s Court of Appeal (“ONCA”) in Conseil Scolaire Catholique Franco-Nord v. Nipissing, 2021 ONCA 544 opined on how contracts that do not specify a termination date or a procedure for termination ought to be interpreted. The ONCA grappled with the question of whether to treat a contract that was silent on the issue of termination as either (1) a perpetual contract, that does not end, or (2) a contract of indefinite duration, into which the court can imply a provision allowing for unliteral termination upon reasonable notice. Historical Approach The ONCA advised that courts used to presume that contracts which were indefinite in time were perpetual in nature. However, this approach was subsequently disregarded, and courts began to presume a right to terminate an indefinite contract by the provision of reasonable notice. New Approach The ONCA advised that even more recently, however, a contextual, fact-specific, approach has been favoured by … Read More

Shareholder’s Remedies

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAppointing Auditor, Appointing Inspector, Business Disputes, Business Litigation, Commercial, Corporate Disputes, Corporate Litigation, Derivative Actions, Directors' and Officers' Liability, Oppression Remedies0 Comments

Shareholder Remedies Under the Ontario Business Corporations Act (“OBCA”), shareholders of a corporation have a variety of rights. Outlined below are a few rights that all shareholders should be aware they possess. Voting Rights The board of directors, under s. 115 are ultimately responsible for managing or supervising the management of the business and affairs of a corporation. Major business decisions also involve the participation of the board of directors, though sales, leases, or exchanges of all or substantially all the property of the corporation that is not in the ordinary course of business requires the approval of shareholders (s. 184(3)). Shareholders also have voting rights that allow them to control the makeup of the board of directors (s. 119(4)), and also the ability to remove directors under s. 122(1) (though this is subject to exceptions under s. 120(f)). Shareholders have additional voting rights under s. 100(2). Access to Information Rights Under s. 140(1) corporations … Read More