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

China Signs Hague Convention on Choice of Court Agreements

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial and Contract Litigation, Commercial Law, Commercial Litigation, Cross-Border Litigation, Debt and Enforcing Judgments, Forum Challenges, Jurisdictional Challenges0 Comments

We previously wrote that Ontario had enacted the International Choice of Court Agreements Convention Act, 2017, which will give effect to the Hague Convention on Choice of Court Agreements (the “Hague Convention”) in Ontario once Canada ratifies the Hague Convention.  (Canada has not yet signed or ratified the Hague Convention.) Since our previous blog post, the People’s Republic of China signed the Hague Convention. China has not yet ratified the Hague Convention, which requires approval by the National People’s Congress. China’s signing of the Hague Convention represents an important step towards more widespread adoption of the convention. The lawyers are Gilbertson Davis have experience in international litigation and arbitration, and in interpreting international conventions.   Please contact us for an initial consultation.

Is a Burrito a Wrap? Ontario Court Decides Injunction Involving Exclusivity Clause in Commercial Lease

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Contract Disputes, Injunction & Specific Performance0 Comments

In 2432714 Ontario Inc. v. Heffner Development Group Limited, 2018 ONSC 1034, the Ontario Superior Court of Justice was recently asked to decide the age old question of whether a burrito was a wrap in the context of an exclusivity clause in a commercial lease agreement. In this case, the tenant operated a Pita Pit franchise in a 13 unit plaza owned by the landlord.  The tenant had negotiated an exclusivity clause in the lease agreement that gave it the exclusive right to sell “pitas and wraps” in the plaza.  When the tenant discovered that a Mexican fast food chain, Holy Guacamole, was renovating one of the units, it brought a motion for an interlocutory injunction prohibiting the landlord from leasing a unit in the plaza to Holy Guacamole. The tenant argued that Holy Guacamole sold “wraps” because its menu of tacos, burritos and quesadillas were all prepared by wrapping up food items in a tortilla.  … 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 Confirms Importance of Requisitions in Real Estate Transactions

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Real Estate Litigation, Summary Judgment0 Comments

The Court of Appeal of Ontario decision in 1418885 Ontario Ltd. v. 2193139 Ontario Limited, 2018 ONCA 54, recently overturned a summary judgment motion decision which confirmed the importance of requisition letters in real estate transactions. In this case, the parties had entered into an Agreement of Purchase and Sale for a property with a restaurant, golf course, 12 residential apartments, a two-storey home and a banquet hall.  The Agreement of Purchase and Sale included the following requisition clause:    8.  TITLE SEARCH:  Buyer shall be allowed until 6:00 p.m. on the 30th day of May, 2016 (Requisition Date) to examine the title to the property at his own expense and until the earlier of: (i) thirty days from the later of the Requisition Date or the date on which the conditions in this Agreement are fulfilled or otherwise waived or, (ii) five days prior to completion, to satisfy himself that there are … 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

Court of Appeal Considers Scope of Errors of Jurisdiction under Model Law on International Commercial Arbitration

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Arbitration, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Contract Disputes, Jurisdictional Challenges0 Comments

In Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939, the respondent was constructing a mine.  The appellant was contracted by the respondent to build a pipeline.  The construction contract contained a three stage dispute resolution process, being: 1) disputes were to be determined by the respondent’s supervising engineer; 2)  if the dispute was not resolved, it would be referred to adjudication by a sole adjudicator; and 3) if a party did not accept the adjudication, it could refer the dispute to arbitration pursuant to the International Commercial Arbitration Act, R.S.O. 1990, c. I.9, which incorporates the Model Law. Problems arose in the project.  The appellant alleged that the respondent had breached the contract.   The appellant sought an extension of the time for performance, compensation for its costs arising from delay, and compensation for additional work.   The appellant submitted its claims to the respondent’s engineer for … Read More

Court of Appeal States that Security for Costs Should Not be Treated Differently for Recognition and Enforcement Actions

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

Yaiguaje v. Chevron Corporation, 2017 ONCA 741 arose from an action by the Plaintiffs to enforce an Ecuadorean judgment in Ontario against the Defendant.   The Defendants obtained summary judgment dismissing the Plaintiffs’ claim.  After the Plaintiffs appealed, the Defendant sought a security for costs against the Plaintiffs, who were non-Ontario residents from Ecuador.   The Plaintiffs argued that security for costs should not be ordered because of, among other reasons, the unique nature of a recognition and enforcement action.  The Plaintiffs relied on the Supreme Court of Canada decision on jurisdiction in the same action: Chevron Corp v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69.  The Plaintiffs argued that the Supreme Court’s decision required courts to treat recognition and enforcement cases in a different manner than first instance actions. The Court of Appeal confirmed that courts should take a “generous” approach in finding jurisdiction in recognition and enforcement actions. … Read More

New Measures of Ontario’s Fair Housing Plan Take Effect Today

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial and Contract Litigation, Real Estate Agent and Broker, Real Estate Litigation0 Comments

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

Toronto Lawyers for Breach of Non-Compete or Non-Solicit Clauses

Bianca Thomas, B.Sc.(Hons.), J.D.Breach of Confidentiality Agreement, Breach of Confidentiality Clause, Breach of Non-Competition Agreement, Breach of Non-Competition Clause, Breach of Non-Solicitation Agreement, Breach of Non-Solicitation Clause, Commercial, Commercial and Contract Litigation, Confidentiality Agreement, Confidentiality Clause, Contract Disputes, Employment, Employment & Wrongful Dismissal, Injunction & Specific Performance, Non-Compete, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause0 Comments

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

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Contract Disputes0 Comments

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

Toronto Litigation Lawyers for Manufacturers and Distributors

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorBrand Protection, Business Litigation, Commercial, Commercial and Contract Litigation, Distributors | Dealers, Manufacturers | Re-Sellers0 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, Glass, Bottling, Packaging and Containers, … Read More

Supreme Court of Canada Narrowly Rules Facebook’s Jurisdiction Clause Unenforceable

Robert Kalanda, B.A. (Hons.), J.D.Commercial and Contract Litigation, Commercial Law, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Cyber Risks, eCommerce | Online Retail, Information Technology, Internet | Technology, Jurisdictional Challenges, Technology and Internet0 Comments

Facebook, and most other large social media and internet companies, set out in their terms of use that users of their services must bring any litigation disputes in the jurisdiction of their choice. However, in Douez v. Facebook, the Supreme Court of Canada has recently held, in a 4-3 decision, that Facebook could not enforce that clause against the plaintiff, a British Columbia woman complaining that their use of her photo and name in advertising breached her rights under British Columbia’s Privacy Act. Notably, the Privacy Act specifically requires that any action under that statute “must be heard” by the British Columbia Supreme Court. The majority held that while a jurisdiction clause is ordinarily enforceable, it could not be enforced in this instance as doing so would violate public policy, since the quasi-constitutional rights the statute provides and the exclusive jurisdiction to BC courts it requires means that the statute ought to be interpreted … Read More

Ontario Court Identifies New Presumptive Connecting Factor in Establishing Jurisdiction

Andrew Ottaway, B.A. (Hons.), LL.B.Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Litigation, Of Interest to US Counsel0 Comments

In Arend v Boehm, 2017 ONSC 3424, the three Applicants in a corporate dispute applied for orders pursuant to the oppression remedy (section 248) of the Ontario Business Corporations Act in respect of BitRush, an Ontario company. The Judge noted that BitRush’s business was “reflective of the worldwide impact of business connected with the internet.”  The international character of BitRush’s business was reflected in the identity of the Respondents, who were: 1) BitRush’s CEO, an Austrian resident; 2) a former BitRush board member, also an Austrian resident; 3) BitRush’s majority shareholder, a UK company; and 4) another Austrian resident. The Applicants sought: 1) a declaration that the Respondent CEO has acted oppressively, in breach of his fiduciary duty to BitRush; 2) an order transferring shares of BitRush from the Respondent UK company to certain other stakeholders; and 3) an order that the Respondent UK company’s remaining shares in BitRush be … Read More