Capturing Online Sales in Shopping Mall Commercial Leases

Robert Kalanda, B.A. (Hons.), J.D.Commercial and Contract Litigation, Contract Disputes, Counterfeit Goods, eCommerce | Online Retail, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

As more business is done online, and as traditional brick-and-mortar retail stores decrease in popularity, shopping malls and retail shopping landlords are looking for more creative methods to maximize rental income. It is not uncommon for a shopping mall lease to require the tenant to pay a percentage of their sales as part of the additional rent. Many stores, however, also do a significant amount of business online. While tenants usually consider such sales to be separate from sales at their physical storefront, landlords may consider those sales as attributable to the storefront and subject to additional rent.  It is important for any commercial lease to be clear how additional rent is calculated, and if additional rent includes a percentage of revenues, it should be clear to all parties what revenue is included and what revenue is excluded. Where a lease is unclear, the court will often rely on the principle of contra proferentum and … Read More

Construction Heavy Machinery & Equipment Disputes

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorCommercial and Contract Litigation, Commercial Leasing, Construction | Builders, Construction Equipment & Machinery, Construction Litigation, Contract Disputes, Contract Termination, Debt and Enforcing Judgments, Distributors | Dealers, Heavy Industries, Heavy Machinery Disputes, Injunction & Specific Performance, Sale of Goods, Trucking and Transportation0 Comments

We have experience and can act in matters relating to construction heavy machinery and equipment. Disputes often arise in connection with the purchase and sale, leasing, financing, use or operation of construction heavy machinery.  Sometimes disputes arise in relation to ownership or possession of  construction heavy equipment. We set out below some of the common types of disputes arising in relation to construction heavy equipment. Types of Disputes Common disputes include those related to: purchase and sale, pre-sale representations, warranties, damaged equipment, sale by auction, shipping heavy machinery and equipment, damages, loss and collapse, hire-purchase disputes, ownership and possession, and repossession by court order. Types of Construction Equipment A vast array of construction equipment is deployed in modern construction projects.  Some construction companies lease and others purchase. Some have only occasional need for some construction heavy equipment. Typical construction heavy equipment and machinery includes: Backhoe loaders, breakers, bulldozers, chippers, compactors, concrete plants and pumps, conveyors, … Read More

Court of Appeal Considers Law Applicable to Bifurcation of Disputes between Court and Arbitration

Andrew Ottaway, B.A. (Hons.), LL.B.Arbitration, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes0 Comments

In Wellman v. TELUS Communications Company, 2017 ONCA 433, the Ontario Court of Appeal recently considered the law applicable to determining whether to bifurcate a dispute between court proceedings and arbitration.   In Wellman v. TELUS, the plaintiffs consisted of consumers and businesses.  The plaintiffs commenced a class action against the defendant, Telus, regarding alleged overbilling.  The Telus contact contained an arbitration clause.  Telus acknowledged that the arbitration clause was not binding on the consumer plaintiffs (due to the Consumer Protection Act, 2002).  But Telus’s position was the the business plaintiffs were bound by the arbitration clause. Telus brought a motion to stay the business plaintiffs’ class action in favour of arbitration.  Telus relied upon, among other things, section 7(5) of the Ontario Arbitration Act, which provides for a partial stay of court proceedings to be granted where an arbitration agreement deals with only some of the matters in respect … Read More

Possible Changes to Choice of Court Agreements and Recognition of Foreign Judgments

Andrew Ottaway, B.A. (Hons.), LL.B.Arbitration, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Corporate Litigation, Enforcement of Foreign Judgments, Forum Challenges, Of Interest to US Counsel, Offshore0 Comments

Ontario recently 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.  It is not yet known when Canada will ratify the Hague Convention. The Uniform Law Conference of Canada adopted a model implementation statute in 2010, suggesting that Canada may sign and ratify the Hague Convention.) In preparation for ratification, Ontario businesses should be aware of the Hague Convention’s key features, including: • where parties of member States have expressly agreed to a court in their contract, the court selected by parties must act in every case as long as the choice of court agreement is valid. The agreed Court does not have discretion (on forum non conveniens or other grounds) to decline jurisdiction in favour of courts of another State. • any court … Read More

The Importance of Brand Protection

Robert Kalanda, B.A. (Hons.), J.D.Brand Protection, Business Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Copyright Infringement, Counterfeit Goods, Domain Name Disputes, Entertainment and Media, Information Technology, Injunction & Specific Performance, Internet | Technology, Media Litigation, Trademark Infringement0 Comments

In many cases, a business’s brand, reputation, and goodwill, can be its most important assets. Customers will visit, re-visit, and refer others to a business because of the reputation created through its successful branding initiatives and quality products and services.  Therefore, it is important for any business to be aware of the tools available to protect their brand from being devalued or misused by others. Some of these tools are preventative, such as by registering a trademark with CIPO. the USPTO, or other national trademark offices, and by ensuring the proper assignments or licences are set out in any contracts with any designers or users of your trademarks. The copyrights for creative works can be registered, while fashion designers can seek protection of their creations as an industrial design. Unfortunately, the more successful a trademark or brand, the more likely it is to be used by copycats, counterfeiters, and competitors to drive business … Read More

International Sale of Goods – the Law Applicable in Ontario

Andrew Ottaway, B.A. (Hons.), LL.B.Arbitration, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Corporate Litigation, Cross-Border Litigation, Offshore, Sale of Goods0 Comments

Many Ontario businesses buy and sell goods from foreign companies.  However, few Ontario businesses are aware that different laws apply to international purchases and sales of goods. For purchases and sales of goods between Ontario companies, the Ontario Sale of Goods Act will typically apply.  However, for purchases and sales of goods between Ontario and foreign companies, the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”) will typically apply. The CISG is “Ontario law”.  It is enacted in Ontario by the International Sales Conventions Act. There are a number of key differences between the Ontario Sale of Goods Act and the CISG.  One of the most notable is the obligation on the buyer to inspect goods (article 38) and give notice of any non-conformity (article 39).  The inspection obligation imposed by article 38 can have significant consequences: if the buyer fails to detect a lack of conformity … Read More

Court Considers When Jurisdiction May be Found Against Sole Officer And Director of Foreign Corporation

Andrew Ottaway, B.A. (Hons.), LL.B.Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Law, Commercial Litigation, Corporate Litigation, Directors' and Officers' Liability, Jurisdictional Challenges0 Comments

In Olympique CMCT Inc. v Les Industries Pancor Limitée, 2017 ONSC 1929, the Plaintiff, Olympique, was a Quebec company. Olympique obtained default judgment in a Quebec action against the Defendants Pancor, an insolvent Ontario company, and Panarese, Pancor’s sole officer and director.    Olympique brought an action in Ontario seeking recognition and enforcement of the Quebec judgment against Panarese in Ontario.  Panarese argued that Ontario should not enforce the Quebec judgment because, among other reasons, the Quebec Court did not have jurisdiction to grant the Quebec judgment against him. Panarese lived in Ontario.  Pancor was primarily located in Ontario.  However, the Court stated that it was sufficient that Quebec had a real and substantial connection with the subject matter of the action, even if it had no connection with Panarese.  The Court found that Panarese signed purchase orders which were transmitted to Olympique in Quebec, meaning that the contracts between Pancor and … Read More

Shareholder Disputes, Oppression Remedy, and Directors and Officers Liability

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorBusiness Litigation, Business Torts | Economic Torts, Closely-Held Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial List Matters, Commercial Litigation, Directors' and Officers' Liability, Family Business Disputes, Oppression Remedies, Shareholder Disputes0 Comments

Our lawyers have acted in Ontario and other jurisdictions for small and mid-sized Ontario 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. When any act or omission of the corporation or any of its affiliates effects or threatens to effect a result; the business or affairs of the corporation or any of its affiliates are, … Read More

Business Dirty Tricks: Unfair Competition: Intentional Interference, Inducing Breach of Contract, Conspiracy and Defamation

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorAppropriation of Personality, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Law, Commercial Litigation, Contract Disputes, Contract Termination, Cross-Border Litigation, Cyber Risks, Fraud, Injunction & Specific Performance, Intellectual Property, Of Interest to US Counsel, Partnerships and Shareholder Disputes, Passing Off, Trademark Infringement0 Comments

Sometimes businesses and their stakeholders act wrongfully in seeking to advance their interests and / or harm competitors. There are often reports of the “dirty tricks” used by those in business to seek to destroy, defeat or diminish the effectiveness of a competitor. These are often unethical tactics, but sometimes such conduct is also wrongful and has been recognized by the common law as actionable in the courts for damages or injunctive or other urgent equitable relief, or prohibited by a statute which provides for a civil monetary remedy or grounds for an injunction. These causes of action have been recognized and provide the basis of lawsuits for harm, loss and damage, and in suitable circumstances, grounds for an immediate injunction or mandatory order prohibiting the further commission of the wrongful acts. In short, wrongful intentional acts causing harm, loss or damage to businesses or their stakeholders may give rise to a cause of action in common law business torts (the so-called … Read More

Partnership and Contractual Disputes between Professionals (Dentists, Doctors, Accountants, Lawyers, Architects, Engineers)

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Contract Termination, Debt and Enforcing Judgments, Injunction & Specific Performance, Joint Venture Disputes, 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 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

Gilbertson Davis LLP News – OsgoodePD Program on Shareholder Litigation and the Closely-Held Company

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorBusiness Litigation, Business Torts | Economic Torts, Closely-Held Business Disputes, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Directors' and Officers' Liability, Family Business Disputes, Gilbertson Davis LLP News, Injunction & Specific Performance, International Joint Venture, Oppression Remedies, Partnerships and Shareholder Disputes, Shareholder Disputes0 Comments

David Alderson, of Gilbertson Davis LLP attended as a faculty member of the OsgoodePD professional development program on April 7, 2015 concerning Shareholder Litigation and the Closely-Held Company. He was on the panel addressing Ethical and Professional Issues in Shareholder Disputes and Litigation. Osgoode Hall Law School said of this professional development program, “This OsgoodePD program brings together some of the country’s top commercial litigators and other experts to provide insight into key aspects of litigating these cases.”  Shareholders disputes are one of the most common and most complex disputes handled by commercial litigators and in-house counsel. The panel on Ethical and Professional Issues in Shareholder Disputes and Litigation included Paul N. Feldman of Feldman Lawyers, Tom Curry of Lenczner Slaght Royce Smith Griffin LLP and David Alderson of Gilbertson Davis LLP, with Lisa C. Munro of Lerners LLP moderating. The program is being re-broadcast on May 22, 2015 as described here. David Alderson has experience in shareholder and partnership disputes, both in arbitration … Read More

International Sale of Goods Convention – New Members in 2014 and 2015

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorCivil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Creditors Rights, Cross-Border Litigation, Distributors | Dealers, Forum Challenges, International Distribution, International Sale of Goods, Jurisdictional Challenges, Sale of Goods0 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

Court of Appeal on Restrictive Covenant on Dissolution of Partnership

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorBusiness Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes, Contract Termination, Joint Venture Disputes, Partnership Dispute, Partnerships and Shareholder Disputes0 Comments

The Court of Appeal for Ontario released its decision on February 11, 2014, in  Greenaway v Sovran 2014 ONCA 110 on the appeal by a “withdrawing” partner  of a two-member firm from the decision of the Superior Court of Justice on an application to determine the enforceability of a “restrictive covenant” in their partnership agreement. The application judge found that the two-member firm partnership had been dissolved and declared the restrictive covenant unenforceable as a penalty, but directed a trial of an issue to determine the damages payable by the appellant as a result of a breach of the portion of the portion of the covenant he found valid and severable – the withdrawal having triggered a clause in the agreement which called for the reduction of the withdrawing partner’s capital account “by 500% of the average fees billed by the firm to clients who transfer to the withdrawing partner within 24 … Read More