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

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

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

Court of Appeal Reiterates Limited Scope of Judicial Intervention to Set Aside Arbitral Awards

Sabrina Saltmarsh, B.A. (Hons), J.D.Alternative Dispute Resolution (ADR), Appeals, Appellate Advocacy, Arbitration, By-laws, Civil Litigation, Commercial, Commercial Condos, Commercial Contracts, Commercial Litigation, Condo Arbitrator, Condo Litigation, Industrial Condos, Residential Condos0 Comments

In the recent Court of Appeal decision of Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, the Court of Appeal overturned a lower court decision setting aside an arbitrator’s award, on the basis that the approach taken by the learned application judge was contrary to that mandated by Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, leave to appeal refused, [2019] S.C.C.A. No. 202 (Alectra). Background The Halton Condominium Corporation 137 (HCC 137) located in Oakville has 82 residential units and 166 parking units located within it’s parking garage, along with common elements such as a lobby and elevators. The parking units comprise of parking for the residential unit owners (the Residential Parking) along with 43 commercial parking units (the Commercial Parking) owned by the defendant Mensula Bancorp Inc. (Mensula), Mensula does not own any residential units and its business is located … Read More

Supreme Court of Canada Clarifies Duty Of Honest Performance In Contractual Relationships

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Disputes, Commercial, Commercial Condos, Commercial Contracts, Commercial Litigation, Condo Litigation, Construction Liens, Contract Disputes0 Comments

In the decision of C.M. Callow Inc. v. Zollinger, 2020 SCC 45, the Supreme Court of Canada (SCC) expands on the scope of the duty of honest performance in contractual relationships, previously established by the SCC ruling in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494. Our firm previously blogged about the Court of Appeal Ruling in this case. See the previous blog here. The case concerns a breach of contract claim made by the Plaintiff. The Plaintiff is a company that provides maintenance services to condominium communities. The Defendants, a group of condominium corporations, had winter and summer maintenance contracts with the Plaintiff that renewed every two years. The contracts originated in 2012 and ran to 2014. In March or April of 2013, the Defendants decided to terminate the winter contract but they did not provide notice of their intention to terminate until September of 2013. The Defendants delayed … 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

Court of Appeal Upholds Judicial Ruling Recognizing Anti-Black Racism in Commercial Lease Dispute

Sabrina Saltmarsh, B.A. (Hons), J.D.Commercial, Commercial Contracts, Commercial Leasing, Commercial Litigation, Contract Disputes, Injunction & Specific Performance0 Comments

In the recent Court of Appeal decision of 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021 ONCA 371, the Court of Appeal upheld a Superior Court ruling made against a commercial landlord which made note of anti-black racism against the tenant and granted relief from forfeiture based on principles rooted in equity, sparing the tenant from eviction. See our blog regarding the original ruling. In this case the landlord of a commercial plaza unit, sought to evict a husband-and-wife team of restauranteur tenants who ran an African/Black/Caribbean restaurant, catering service and bar. The Landlord’s position was that the tenant had failed to give proper notice with respect to their option to renew and was subsisting in the unit as an overholding tenant. The tenant brought an application before the court for relief from forfeiture and sought the courts assistance in exercising it’s right to continue occupying the … Read More

Contract Lawyers – The Duty of Good Faith – Update on Bhasin v Hrynew

Gilbertson Davis LLPBusiness Law, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Corporate Litigation0 Comments

The Supreme Court of Canada (SCC) recently released its decision in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 (CanLII) which clarifies the operation of the duty to exercise contractual discretion in good faith described in the seminal case, Bhasin v. Hrynew, 2014 SCC 71 (CanLII), [2014] 3 SCR 494. The SCC confirms that where a party exercises a discretionary power under a contract, it must do so in good faith (meaning that parties must exercise their contractual duties honestly, reasonably, and not capriciously or arbitrarily). If a party violates the duty of good faith, the contract is breached. The SCC opined that the following question must be asked when deciding if a party breached the duty of good faith: Was the exercise of contractual discretion unconnected to the purpose for which the contract granted discretion? If the answer is yes, then the party has … Read More

Nick Poon Comments on Anti-Black Racism in Commercial Lease Dispute for The Lawyer’s Daily

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Commercial Litigation, Contract Disputes, Contract Termination, Injunction & Specific Performance, Real Estate Litigation0 Comments

Nick Poon was recently asked by The Lawyer’s Daily to comment on the Ontario Superior Court of Justice decision in Elias Restaurant v. Keele Sheppard Plaza Inc., 2020 ONSC 5457. The Lawyer’s Daily article is found here: Court cites ‘prejudices’ to Black tenants in overturning landlord’s eviction bid. In this case, the tenant was a husband and wife team that operated a successful restaurant/bar offering African and Caribbean cultural foods primarily to the black community.  The tenant had spent $150,000 in leasehold improvements when it took over the lease in 2013.  The lease included two further five-year renewal options, upon delivery of written notice at least six months before the lease expired. Although the tenant attempted to contact the landlord, both before and after the notice deadline, to start the renewal process, the landlord appeared to have avoided its telephone calls.  The tenant brought an application for relief from forfeiture … Read More

Ontario Bans Commercial Evictions During COVID-19: Seven Things You Need to Know

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Commercial List Matters, Commercial Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

As predicted in our previous blog, B.C. Bans Evictions if Commercial Landlords Fail to Apply to CECRA: A Similar Ban Coming to Ontario?, the Ontario Government announced yesterday that it had passed legislation to protect commercial tenants from evictions and having their assets seized by their landlord during COVID-19. After British Columbia, Alberta and Saskatchewan took steps in the last two weeks to protect small business tenants from landlords that choose not to apply for the Canada Emergency Commercial Rent Assistance (CECRA) program, Ontario Premier Doug Ford finally followed through on his promise to protect small business tenants during COVID-19. On June 18, 2020, Bill 192,  Protecting Small Business Act, 2020 (the “Act”) received Royal Assent, and officially amended the Commercial Tenancies Act to prohibit landlords, that are or would be eligible to receive assistance under the CECRA program, from evicting tenants or exercising distress remedies in the period from … Read More

Toronto Debt Recovery Lawyers | Enforcement of Judgment Lawyers

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCivil Litigation, Commercial, Commercial Contracts, Contract Disputes, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Finance Litigation, Fraud Recovery, Gift Law, Lenders | Borrowers, Loan and Guarantee, Promissory Note Claims0 Comments

Domestic and, US and Other Foreign Debt, Judgments and Awards We are often consulted or retained in connection with recovery of large local debt or foreign debt, including casino debt, or to seek recognition  and enforcement in Ontario, Canada, of judgments, orders, or arbitration awards obtained in Ontario, other provinces of Canada, US and other foreign jurisdictions. We are sometimes retained to work with the assistance of lawyers practicing debt recovery in other jurisdictions, including, those located offshore. Claims on Loan Guarantee We can advise and represent those claiming payment on a guarantee, and those named as guarantor of a loan. Loan or Gift? | Loan or Investment? Disputes sometimes arise when either a payment advanced or transfer is alleged to be a loan rather than a gift, or alleged to a loan rather than an investment, or vice-versa. We have relevant experience in both domestic and cross-border litigation. Injunctions and Other … Read More

B.C. Bans Evictions if Commercial Landlords Fail to Apply to CECRA: A Similar Ban Coming to Ontario?

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Commercial Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Real Estate Litigation, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

Although the Canada Emergency Commercial Rent Assistance Program (CECRA) opened for applications last week, complaints about the program have continued from both small business tenants and commercial landlords. Small business tenants have complained that landlords continue to refuse to apply to CECRA, the eligibility requirement for a revenue loss of at least 70 percent was too high and the number of months of relief should be expanded.  Today, Ontario extended the state of emergency until June 30, 2020 although Premier Doug Ford stressed that the gradual and safe re-opening of the economy would continue.  It is unlikely most eligible tenants will be able to make their full rent payment on July 1, 2020, even if they receive rent relief for the months of April, May and June, 2020 under CECRA.  Landlords have complained that the application process is too confusing, costly, time-consuming and risky.  Under CECRA, landlords are required complete … Read More

Commercial Leases and Relief From Forfeiture: A Second Chance For Tenants During COVID-19?

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Commercial Litigation, Contract Disputes, Contract Termination, Real Estate Litigation, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

Today is the first day landlords can apply for the Canada Emergency Commercial Rent Assistance Program (CECRA) as reported in our blog last week entitled COVID-19 | Ontario-Canada Emergency Rent Assistance Program – Part 2. Although commercial rent relief is now finally available for the months of April, May and June 2020, it has been over two months since non-essential businesses in Ontario were required to close.  The gradual re-opening of some non-essential businesses, under strict guidelines, was only announced over the last few weeks.  According to a recent survey by CFIB, 48% of Ontario small businesses suffered a drop in revenue of 70% or more, and 77% of Ontario small businesses suffered a drop in revenue of 30% or more.  It is highly unlikely that these small businesses will survive the COVID-19 pandemic without further assistance. In addition, it has been widely reported that some commercial landlords will not … Read More

COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program – Part 2

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Lease Arbitrator, Commercial Leasing, Commercial Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

Further to our blog entitled COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program, CMHC has finally released further details about the OCECRA program including the opening date of the applications portal on May 25, 2020 at 8:00 a.m. EST. Amidst reports that many landlords were refusing to apply for the OCECRA program, Premier Doug Ford pleaded with landlords to participate in the OCECRA program, stating: “It is not going to be forever.  It is going to be for a few months.  Help people out.  You have an obligation to do that as a landlord”.  Prime Minister Justin Trudeau provided a more business-oriented argument for landlords to participate in the OCECRA program, stating: “With many people discovering that we can work from home … there may be a lot of vacancies in commercial buildings over the coming months and years.  Who knows exactly what the post-pandemic world will look like exactly?”. … Read More

A Primer on Using Electronic Signatures in the Age of COVID-19

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Commercial and Contract Litigation, Commercial Contracts, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Internet | Technology0 Comments

Although Ontario is currently taking steps to gradually re-open the economy, it is expected that physical and social distancing measures will remain in effect for the foreseeable future (or at least until a vaccine is developed). If legal professionals, companies and individuals were not already using electronic signatures to conduct business prior to COVID-19, this may be an opportune time to consider switching from in-person signing and delivery of paper documents to remote signing of electronic documents.  Electronic signatures are recognized as legally binding, provided certain requirements are met, and can be a more convenient and cost-efficient way to conduct business.  Electronic signature software such as DocuSign and Adobe Sign are popular. In Ontario, the Electronic Commerce Act, 2000, S.O. 2000, c. 17 (the “Act”) governs the use and legal validity of electronic signatures.  The Act expressly provides that a legal requirement that a document be signed or endorsed is … Read More

COVID-19 | Ontario Announces More Businesses to Reopen During First Stage

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Business Interruption, Civil Litigation, Commercial Contracts, Commercial Leasing, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Debt and Enforcing Judgments, Event Cancellation, Event Termination, Real Estate Litigation, Retail Litigation, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

Following on our previous blog last week entitled COVID-19 | Ontario Allows More Businesses To Reopen Soon, the Ontario government announced today plans for stage 1 to reopen the province, including allowing more businesses to reopen and/or relaxing restrictions on the delivery of goods and services. While the reopening of more businesses is welcome news after eight weeks in quarantine, Premier Doug Ford warned that individuals must still continue to practice social and physical distancing, and businesses should only reopen if they are ready to comply with the strict public health guidelines.  We cannot risk moving one step forward, but moving two steps back. The following is a list of some businesses that may reopen or expand their services on the following dates: May 16, 2020  Golf courses may open to the public but clubhouses only for washroom access and restaurants only for take-out (previously, golf courses could only prepare … Read More

Confidentiality, Non-Competition and Non-Solicitation Clauses In Contracts

Sabrina Saltmarsh, B.A. (Hons), J.D.Breach of Confidentiality Clause, Breach of Non-Competition Agreement, Breach of Non-Competition Clause, Breach of Non-Solicitation Agreement, Breach of Non-Solicitation Clause, Business Disputes, Business Law, Business Litigation, Business Torts | Economic Torts, Closely-Held Business Disputes, Commercial, Commercial Contracts, Commercial List Matters, Commercial Litigation, Confidentiality Agreement, Confidentiality Clause, Corporate Litigation, Directors' and Officers' Liability, Injunction & Specific Performance, Joint Venture Disputes, Management Contracts, Mareva Injunction, Non-Compete, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause, Norwich Order, Partnership Dispute, Partnerships and Shareholder Disputes, Sale of Business Disputes, Shareholder Disputes0 Comments

Confidentiality, non-competition, and non-solicitation clauses often show up in a variety of business contracts including employment and executive contracts, shareholder, and director agreements, as well as, independent contractor agreements, joint venture agreements and mergers, to name a few. A question that must be considered by contracting parties to such agreements is: What is the enforceability of these types of restrictive covenants? This question particularly becomes important when parties may part ways and a breach of the clauses is suspected or confirmed. These clauses are premised on the assumption that the relationship between the parties will result in the sharing of proprietary and sensitive business knowledge, contacts and relationships related to the operations of a business, which the company seeks to protect, particularly once the relationship between the parties ends. Non-competition clauses usually restrict one’s ability to engage in a competing business. Non-solicitation clauses prohibit one from soliciting stakeholders and contacts … Read More