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

Recognition of Foreign Judgments – Judgment is Enforceable Regardless of Pending Appeal

Gilbertson Davis LLPAppeals, Civil Liability, Civil Litigation, Commercial and Contract Litigation, Commercial Litigation, Enforcement of Foreign Judgments0 Comments

In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Acteon v. Verona Medical Group, 2023 ONSC 5140, the plaintiff was successful in obtaining the recognition of a judgment issued by a court in France, the Commercial Court of Bordeaux (the “Summary Proceeding Judgment”), albeit the ONSC stayed the plaintiff’s ability to enforce the Summary Proceeding Judgment in Ontario pending the defendants’ appeal of a related judgment (the “Merits Proceeding Judgment”) in France. The main contentious issue in this recognition proceeding was the defendants’ position that the plaintiff’s Summary Proceeding Judgment was not “final” because of the defendants’ appeal of the Merits Proceeding Judgment in France. The plaintiff’s legal expert advised the ONSC that though the Summary Proceeding Judgment was a “provisional award”, it was still “final, valid, binding and fully enforceable”. The defendants’ legal expert disagreed, positing that the Summary Proceeding Judgment was only an interim decision … 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

Launching New Claim in Face of Limitation Deadline, Where Prior Claim Commenced, Not an Abuse of Process

Sabrina Saltmarsh, B.A. (Hons), J.D.Civil Litigation, Commercial, Commercial Litigation0 Comments

In the recent Court of Appeal decision of Cipponeri Construction Services Inc. v. Orsi, 2023 ONCA 296, the Court of Appeal grappled with whether it was an abuse of process to commence a new action, in the face of a fast approaching limitation deadline, when there was an existing action already commenced, or whether the proper approach was to seek leave to amend the Statement of Claim in the existing action to add the new claim. The Facts and Background In 2018 an action was commenced by the Respondent on the appeal, Michael Orsi along with his corporation Bearus Holdings ULC against Vito Cipponeri, his corporation 2599109 Ontario Inc (259) and Westin Homes Ltd. (Westin). Mr. Cipponeri and 259 counterclaimed in the 2018 action against Mr. Orsi, Bearus and Westin for, amongst other claims, a payment of money allegedly owing by Westin to the appellant, Cipponeri Construction Services Inc. (CCSI) … Read More

Nick Poon Comments on Tim Hortons’ Roll Up to Win Contest for CTV News

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes, Gilbertson Davis LLP News, Misrepresentation0 Comments

Nick Poon was recently asked to comment on the legal rights of customers in Tim Hortons’ Roll Up to Win Contest for CTV News. Read the CTV News article here:  Tim Hortons mistakenly told an Ontario man he’d won $10K.  Now, he wants to sue. If you require legal advice or legal representation in respect to civil litigation and commercial litigation matters including contract disputes and misrepresentation claims, please contact us for an initial consultation.  Our lawyers have expertise and experience in such matters and can assist you in resolving your legal issues including finding practical and cost-effective solutions.  

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

Fraudulent Conveyance Act Protects Future Potential Creditors

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Fraud, Commercial Litigation, Creditors Rights, Embezzlement, Fraud, Fraud Recovery, Fraudulent Schemes, International Trade Fraud, Investment Fraud, Securities Fraud0 Comments

In the recent Court of Appeal decision of Ontario Securities Commission v. Camerlengo Holdings Inc., 2023 ONCA 93, the Court of Appeal overturned a motion judges decision to strike the Ontario Securities Commission’s (“OSC”) claim made pursuant to s.2 of the Fraudulent Conveyance Act, R.S.O. 1990, c. F. 19 (“FCA”) due to lack of particularity. The Court of Appeal held that it is not necessary for a creditor to be known to the debtor at the time of a potentially fraudulent conveyance, it is enough that the debtor perceived a risk of claims from a general class of future creditors and conveyed the property with the intention to evade such creditors if they arose. The Facts Fred Camerlengo a retired electrician and the sole director of the Defendant corporation, Camerlengo Holdings Inc. (Holdco), conveyed his interest in the family home to his wife Mirella Camerlengo, a retired teacher, which was … 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

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

Are my Trademark Rights being Breached? Trademark Infringement and Passing Off Lawyers

Gilbertson Davis LLPBrand Protection, Business Disputes, Civil Litigation, Commercial Litigation, Copyright Infringement, Intellectual Property, Passing Off, Trademark Infringement0 Comments

In Subway IP LLC v. Budway, Cannabis & Wellness Store, 2021 FC 583, the Federal Court of Canada (“FC”) found that the respondents infringed on the applicant’s registered trademark contrary to section 20 of the Trademarks Act. The FC found that the use of the “BUDWAY” trademark amounted to the tort of passing off and depreciation of goodwill in the appellant’s trademark. As a result, the court granted the applicant, Subway, damages in the amount of $15,000 and an injunction against the respondents prohibiting them, among other things, from dealing in goods or services in association with the trademark or trade name “BUDWAY”. What is Considered a Breach of Trademark Rights? In the FC’s reasons for its decision, it advised generally that: A trademark registration grants the owner the exclusive right to use the mark throughout Canada in respect of the goods and services in the registration; The right to … Read More

Waiving a Contractual Right May Not Be as Easy as You Might Think!

Gilbertson Davis LLPAppeals, Civil Litigation, Commercial and Contract Litigation, Commercial Litigation0 Comments

In the recent decision from the Ontario Court of Appeal (“ONCA”), Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907, the ONCA set aside the decision of the motion judge which dismissed the plaintiff’s claim on a motion for summary judgment brought by the respondent. The ONCA opined that the motion judge made an error in law by finding that the appellant had waived the auto renewal provision of the consulting agreement that forms the basis of the dispute. The motion judge’s decision stems largely from the appellant’s representative’s email in which he stated “Let this email serve to remove the auto renewal from the contract”. The motion judge found that this email resulted in a waiver of the auto renewal provision of the consulting agreement by the appellant, and that the waiver was accepted by the respondent in a subsequent email. Though the ONCA conceded that a … 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

Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCivil Litigation, Commercial, Commercial Litigation, Summary Judgment0 Comments

Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge[i] David Alderson[ii], Senior Counsel – Commercial Litigation, at Gilbertson Davis LLP, co-counsel for the 13 plaintiffs (one of which was Mauldin), that responded to the appeal to the Supreme Court of Canada in Hryniak v. Mauldin[iii], that responded below to the appeal in the Ontario Court of Appeal, and that obtained summary judgment in the Ontario Superior Court of Justice, being the judgment which was appealed, has written two chapters of the Annual Review of Civil Litigation[iv], which if read together comprise a seven year survey of the appellate cases across Canada considering Hryniak and summary judgment. The chapter entitled Sentinels of the Hryniak Culture Shift: Four Years On[v], included in the Annual Review of Civil Litigation 2018[vi] covers appellate cases for the first four years following the Supreme Court of Canada decision. The second chapter Emerging Burdens of the Summary Judgment Motion … 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