Andrew Ottaway Writes Article on CISG for Law Times

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial and Contract Litigation, Commercial Law, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Gilbertson Davis LLP News, International Litigation, International Sale of Goods, UNCITRAL0 Comments

The Law Times recently published an article by Andrew Ottaway on the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”). The article includes: a discussion of the recent case of Solea International BVBA v. Bassett & Walker International Inc., 2018 ONSC 4261 (CanLII), in which the Ontario Court applied the CISG; a discussion of the near total obscurity of the CISG in Ontario; examples of the notable differences between the CISG and the Ontario common law / Sale of Goods Act. The article can be read in its entirety here. The lawyers at Gilbertson Davis LLP have experience in commercial litigation, including cross-border litigation involving the CISG.  Contact us for an initial consultation.

Entire Agreement Clause Upheld in Manorgate Estates Inc. v. Kirkor Architects and Planners

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Construction | Builders, Construction Litigation, Contract Disputes, Misrepresentation, Negligence, Real Estate | Developers, Real Estate Litigation0 Comments

Entire Agreement Clauses are meant to prevent negotiations that occurred prior to the contract being formed from influencing the Court’s interpretation of the terms set out in the final contract. In other words, past discussions are to have no bearing on the understanding of the contractual terms. In theory, a fully integrated agreement of this kind supplants any earlier oral or written agreements. There is competing jurisprudence in which Entire Agreement Clauses have been both effective and ineffective. However, Manograte Estates Inc. v. Kirkor Architects and Planners is a recent Ontario Court of Appeal decision where an Entire Agreement Clause was effective. In Manograte Estates Inc. v. Kirkor Architects and Planners, the Ontario Court of Appeal upheld the Motion Judge’s decision that the Entire Agreement Clause in the relevant agreement, regarding architectural consulting for a construction project, operated as a complete defence to the appellants’ claim of alleged negligent misrepresentation. The Entire Agreement Clause … Read More

Shareholders’ Remedies under the OBCA: An Overview (Part 2/2) 

Janice Perri, B.A. (Summa Cum Laude)Business Law, Business Litigation, Civil Litigation, Closely-Held Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Corporate Disputes, Corporate Litigation, Directors' and Officers' Liability, Oppression Remedies, Partnership Dispute, Partnerships and Shareholder Disputes, Shareholder Disputes0 Comments

When a shareholder’s rights are breached, there are a variety of legal remedies available under the Ontario Business Corporations Act (“OBCA”). For more information on shareholders’ rights, please click here to see part 1 of this post. Oppression Remedy It is first important to note that as per the Ontario Court of Appeal decision Maurice v. Alles, the standard two-year limitation period set out in the Limitations Act applies to oppression remedy claims. The “clock starts to run” when the oppressive conduct first began, meaning that individuals must not delay if they wish to pursue an oppression remedy. The oppression remedy under s. 248 of the OBCA is broad in nature, and there is a large amount of judicial discretion afforded in its application. The oppression remedy can be an especially strong tool in protecting minority shareholders. When the Court determines that there has been oppressive conduct, unfairly prejudicial conduct, or conduct that disregards the interests of any shareholder it may make an order to resolve the matter in a variety of ways. … Read More

Shareholders’ Rights under the OBCA: An Overview (Part 1/2) 

Janice Perri, B.A. (Summa Cum Laude)Business Law, Business Litigation, Civil Litigation, Closely-Held Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Corporate Disputes, Corporate Litigation, Directors' and Officers' Liability, Oppression Remedies, Partnerships and Shareholder Disputes, Shareholder Disputes0 Comments

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. Please click here to see part 2 of this post on shareholders’ remedies. 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 … Read More

The Supreme Court of Canada On Defence Against the Tort of Conversion (Teva Canada Ltd. v. TD Canada Trust)

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Business Law, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial Law, Commercial Litigation, Employee Fraud, Finance Litigation, Financial Services | Investment, Fraud, Fraud Recovery, Fraudulent Schemes, Investment | Financial Services0 Comments

In Teva Canada Ltd. v. TD Canada Trust, Teva Canada Ltd. (“Teva”), a pharmaceutical company, “was the victim of a fraudulent cheque scheme implemented by one of its employees”, (para 1). Teva claimed the collecting banks were liable for the tort of conversion. Teva Canada Ltd. v. TD Canada Trust provides insight into the Bills of Exchange Act‘s (“BEA”) section 20(5) defence to the tort of conversion, by clarifying the approach used to determining whether a payee is “fictitious or non-existing”. In the event that a payee is deemed fictitious or non-existing within the meaning of section 20(5) of the BEA, the bill may be treated as payable to the bearer, and thus can be negotiated by simple “delivery” to the bank meaning endorsement is not required, and the defence will succeed (para 5). Justice Abella, writing for the majority, outlined the two-step framework a bank must satisfy to demonstrate that a payee is fictitious or … 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.

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

CASL Private Right of Action Suspended Indefinitely

Robert Kalanda, B.A. (Hons.), J.D.Commercial, Commercial Law, Commercial Litigation, Cyber Risks, Insurance, Internet | Technology0 Comments

In a recent press release, the Canadian government stated that they will be suspending the introduction of the private right of action set out in Canada’s anti-spam legislation (frequently referred to as CASL). The private right of action was meant to come into effect on July 1, 2017, but the government has suspended the implementation of this section to give a parliamentary committee more time to review the legislation and determine the best course of action to balance the protection of Canadian consumers against minimizing extra costs and unintended breaches by business owners. The legislation has received mixed reviews thus far. While undoubtedly a step forward in minimizing unwanted spam, many business owners have expressed concern that the definition of commercial activity are vague, the requirements for consent are onerous, and the penalties for even unintentional non-compliance are harsh. The private right of action (most likely to be done as class … 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

Blockchain Technologies Create Novel Legal Issues

Robert Kalanda, B.A. (Hons.), J.D.Commercial, Commercial Law, Contract Disputes, Cyber Risks0 Comments

Blockchain technology is increasingly gaining traction in a variety of different markets and industries, including insurance, securities, and enforcing contracts, and with these new uses come new legal considerations. Blockchain is essentially a ledger, decentralized with copies maintained across numerous computers, which maintains records of transactions which can be added to in an automated and secure manner. Because the entire history of the validated blockchain ledger is incorporated into all subsequent versions of the ledger, it allows for easy verification of the completion and authenticity of a transaction, since the history of the fund or asset can be traced back to the beginning of the entire blockchain. It is also very resistant to fraud and hacking, since any attempt to create a fraudulent transaction the blockchain must simultaneously modify all previous versions of the blockchain on the majority of the computers running the ledger in order for the transaction to be validated. One of the … Read More

Partnership Disputes & Joint Venture Litigation

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Civil Litigation, Closely-Held Business Disputes, Commercial, Commercial Arbitration, Commercial Law, Commercial List Matters, Commercial Litigation, Contract Disputes, Contract Termination, Directors' and Officers' Liability, Family Business Disputes, Joint Venture Disputes, Partnership Dispute, Partnerships and Shareholder Disputes, Shareholder Disputes, Start-Up Disputes0 Comments

Our lawyers have acted in Ontario and other jurisdictions for partners in small and mid-sized partnerships, and limited liability partnerships (LLPs) and contractual parties and partners in joint ventures. Partnership Disputes Partnership is a relationship between persons carrying on a business in common with a view to profit, which is not a corporation. It is one of the most commonly used business associations for small and medium-sized business. A partnership can be created at law and the Partnerships Act, R.S.O. 1990, c. P.5 sets out rules for determining existence of partnership, though commonly the parties enter into a partnership agreement. Joint Venture – Is it a Partnership? Joint ventures are often established to synergize what each member of the joint venture can add to the consortium. Sometimes a joint venture is the structure chosen because those members engaged in the joint venture are located in different jurisdictions. While invariably created by contractual agreement, some … 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

Court Upholds Prevailing Contract Clause

Robert Kalanda, B.A. (Hons.), J.D.Commercial, Commercial Law, Contract Disputes0 Comments

In the recent case of 1252662 Ontario Inc. v Swisslog, the Ontario Court of Superior Justice held that a contractual clause which provided that, in the event of a conflict with another agreement, that terms of the other agreement would prevail. In this case, the parties had entered into a multi-million dollar construction contract. One of the documents to the contract set out a number of terms which limited the liability of the defendant as against the plaintiff for a wide variety of issues, including delay in construction. However, that document also provided that the terms of a companion document would prevail in the event of any conflict between the two terms. That companion document provided a general statement that the plaintiff had “all rights and remedies provided by law and by this agreement”. The construction was ultimately delayed, and the plaintiff sued for its common law damages as incurred a … Read More

UberHop Launches in Toronto

Andrew Ottaway, B.A. (Hons.), LL.B.Commercial Law, Gilbertson Davis LLP News, Injunction & Specific Performance, Of Interest to US Counsel0 Comments

Uber is in the news again this week after it announced that, starting December 15, 2015, a new service called “uberHOP” will be available “along Toronto’s most popular routes during peak hours.”  Using uberHOP a user can request to be picked up along one of the four designated, downtown Toronto routes from one of the predetermined “pickup spots”.  The service is to be provided for a flat “fare” of $5.00. The Toronto Transit Commission (the “TTC”) has reportedly asked its lawyers to consider uberHOP in the context of the TTC’s right to operate, maintain and control local passenger transportation services in Toronto.  Specifically, the City of Toronto Act, 2006 provides: Exclusive authority of TTC 395. (1) No person other than the TTC shall establish, operate or maintain a local passenger transportation system within the City until the TTC is dissolved or the control and management over the local passenger transportation system is removed from … Read More

Supreme Court Clarifies Jurisdiction Requirements for Enforcement of Foreign Judgments

Robert Kalanda, B.A. (Hons.), J.D.Appeals, Commercial Law, Cross-Border Litigation, Enforcement of Foreign Judgments, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Chevron Corp. v. Yaiguaje, the Supreme Court of Canada clarified the jurisdictional requirements for an Ontario court to consider a proceeding to enforce a foreign judgment. In this case, the plaintiffs obtained judgment against Chevron Corp. in Ecuador for some $9.5 billion USD, and they sought to enforce that judgment in Canada, against both Chevron Corp. and the Canadian subsidiary, Chevron Canada. In a unanimous decision, the Supreme Court confirmed that the plaintiff does not have to show a real and substantial connection between Ontario and the foreign judgment debtor. The court need only be satisfied that there is a real and substantial connection between the foreign court and the defendant when the foreign court issued its judgment. Ontario courts will have jurisdiction over a foreign defendant in an enforcement proceeding as long as the defendant was properly served. It is not even a requirement that the defendant have assets in Ontario prior … Read More

Oppression Actions vs. Derivative Actions under the OBCA

Robert Kalanda, B.A. (Hons.), J.D.Commercial Law, Commercial Litigation, Partnerships and Shareholder Disputes0 Comments

The Ontario Business Corporations Act (OBCA) provides broad remedial options for directors, officers, shareholders, and other “complainants” to correct oppressive or prejudicial actions by or against a corporation. Most commonly, these take the form of either an oppression action or a derivative action. Oppression actions are where a complainant commences an action where that individuals interests have been oppressed or unfairly prejudiced. Derivative actions, on the other hand, are where a complainant starts litigation in the name of the corporation where the corporation has been wronged and the corporation (by its board of directors) chooses not to commence litigation itself. Because derivative actions bring the corporation into litigation without its consent, and often require the corporation to pay the legal costs of that action, leave of the court is required to commence a derivative action. Tersigni v. Georgevitch OBCA actions, and in particular oppression actions, can sometimes blur the legal distinction between … Read More

Bad Faith Claims against Canadian Liability Insurers: Sober Second Thought

R. Lee Akazaki, C.S., B.A. (Hons.), J.D.Civil Litigation, Commercial Law, Contract Disputes, Cross-Border Litigation, Insurance, Of Interest to US Counsel0 Comments

No aspect of insurance defence counsel’s tripartite retainer with an insured and a liability carrier more frequently strains the divided loyalty more than the over-limits exposure.  Whether it is an automobile policy responding to a catastrophic bodily injury claim, or a general liability policy building collapse or fire attributed to the carelessness of a tradesperson, the cost of indemnity has increased dramatically in relation to standard million-dollar policy limits.  Those limits have not changed in Canada for over a decade. It is a matter of economic conflict between two independent markets.  In a competition for premiums, underwriters have failed to market increases in policy limits, while medical and rebuilding costs for commercial buildings have soared.  This simple divergence of demand-and-supply curves has many ramifications for tort law in Canada.  Here, I discuss one issue, the rise and apparent panic in the insurance industry over the importation of an American doctrine … Read More