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
Summary Judgment Granted in Multiple Proceedings Surrounding Enforcement of Italian Judgment
The case of King v Lang Michener, 2017 ONSC 1917 (one of three related actions), began with a transaction that went awry. The Plaintiff, Gregory King, a lawyer at Aylesworth and later Gowling Lafleur Henderson LLP, acted in a transaction relating to a new hotel in China with an Italian company, Sincies Chiementin SpA (“Sincies”), and various other foreign individuals and businesses. Mr. King received a 5% interest in the hotel, and Aylesworth was to receive payment for legal fees. Sincies went bankrupt, and one of its assets, a $600,000.00 USD deposit, vanished. Sincies’ trustee in bankruptcy eventually sued Mr. King, among others, in Italy, to try to recover the money. Mr. King did not defend the Italian proceedings. The Italian court ruled against him, and ordered him to pay the deposit. Mr. King did not pay the judgment on the grounds that the Italian court lacked jurisdiction. Sincies’ trustee then … Read More
Toronto Litigation Lawyers for Manufacturers and Distributors
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
Court of Appeal Confirms Defamation Notice Periods Apply to Online Newspapers
The Ontario Court of Appeal recently released its decision in John v. Ballingall, et al, 2017 ONCA 579, which confirmed that online versions of newspapers are subject to the protections found in Ontario’s Libel and Slander Act, R.S.O. 1990, c. L.12 (the “Act”). The Act provides for certain notice and limitation periods, which if not met, may act as a bar for any future defamation actions. Specifically, Section 5(1) of the Act provides that no action for libel in a “newspaper” or “broadcast” lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given the defendant notice in writing of the specific matter complained of. Section 6 of the Act provides that an action for libel in a “newspaper” or “broadcast” shall be commenced within three months after the libel has come to the knowledge of the plaintiff. In this decision, the plaintiff (a rapper known as Avalanche the Architect) commenced an action for libel against the Toronto Star because … Read More
Supreme Court of Canada Upholds Worldwide De-Indexing Order Against Google
The Supreme Court’s recent decision in Google Inc. v. Equustek Solutions Inc. has approved the use of a worldwide injunction directing Google to de-index the defendant’s website used to facilitate the sale of goods in violation of the Equustek’s intellectual property rights. Equustek obtained an interlocutory injunction against the website owner directly, however the defendant left Canada, refused to comply with the order, and continued to sell products on their website from an unknown location. To help prevent or reduce further ongoing harm, Equustek sought for Google to de-index the site, making it less likely that a potential purchaser will discover the infringing website. Google initially agreed to de-index the result from Canadian search results on google.ca, but refused to enforce this order worldwide. It was concerned that the Canadian courts were using Google to usurp the laws of other nations, particularly on free speech issues, and potentially would force Google … Read More
CASL Private Right of Action Suspended Indefinitely
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 of Appeal Considers Law Applicable to Bifurcation of Disputes between Court and Arbitration
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
Rogers Denied Costs of Complying with Copyright Infringement Norwich Order
In the recent decision of Voltage Pictures, LLC v. John Doe, 2017 FCA 97, the Federal Court of Appeal reversed the lower court and denied Rogers its costs of complying with a disclosure order (commonly called a Norwich Order) requiring them to disclose the names and details associated with IP addresses which the plaintiff alleges have infringed its copyrights. At the Federal Court, Rogers was prepared to provide the information, provided they were paid their costs of doing, as is customary for Norwich Orders from non-parties. While on an individual basis the costs may not have been unreasonable, the plaintiff’s concern was that they were pursuing thousands of individual infringers, which would make the cumulative costs of seeking these productions prohibitively expensive. The Federal Court held that the plaintiff did have to provide the amount demanded by Rogers. On appeal, the Federal Court reviewed the relatively new provisions under the Copyright Act which the plaintiff relied on to … Read More
The Importance of Brand Protection
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
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
Supreme Court Considers Oppression Remedy
In Mennillo v. Intramodal inc., 2016 SCC 51, the Supreme Court of Canada addressed the application of the oppression remedy under the Canada Business Corporations Act (“CBCA”), which applies to federally incorporated companies. (The Ontario Business Corporations Act, which applies to Ontario incorporated companies, also contains an oppression remedy). The case involved a private corporation with originally two shareholders. There was no shareholders’ agreement. The Court described the parties’ dealings as being “marked by extreme informality”. One of the two shareholders, Mennillo, eventually resigned as officer and director of the company by providing a notice of resignation. The notice did not address his status as a shareholder. There was conflicting evidence from the parties about whether Mennillo intended to cease being a shareholder. Ultimately, the trial judge accepted that Mennillo’s withdrawal from the company included his intention to no longer guarantee the company’s debts. The trial judge found that Mennillo agreed … Read More
Blockchain Technologies Create Novel Legal Issues
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
Shareholder Disputes, Oppression Remedy, and Directors and Officers Liability
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
Partnership Disputes & Joint Venture Litigation
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
Former Employee Ordered to Transfer Social Media Accounts in Trade-Mark and Copyright Infringement Case
The Federal Court decision in Thoi Bao Inc. v. 1913075 Ontario Limited involved a former employee of the plaintiff developing and operating a competing online news website that infringed on the plaintiff’s trade-marks and copyrighted content. The plaintiff, Thoi Bao, is a well-known Vietnamese language news company that provides news services throughout Canada in a variety of formats including newspapers, radio, television and online. The company’s website, www.thoibao.com, provides online content such as news, editorials, opinions, links to other news agency services, self-produced television shows and newscasts. The former employee registered the domain name, www. thoibaotv.com, without the knowledge or consent of the plaintiff and began offering online news services in Canada in the Vietnamese language. The former employee did not appear to make any effort to conceal his activities because the infringing website prominently used TBTV Online as the website title, streamed webcasts that were produced by the plaintiff, and incorporated … Read More
Court of Appeal Emphasizes Confidence in Fact Finding on the Record for Summary Judgment
In Meehan v Good, 2017 ONCA 103, the Court of Appeal allowed the appeal of the plaintiffs of the dismissal of their claims by summary judgment against their former lawyer, Mr. Cardill. The motion judge had determined that the subject retainer was only with respect to assessment of the accounts of their earlier former lawyer, Mr. Good, and not any possible negligence action against Mr. Good, and thus there was no genuine issue whether Mr. Cardill owed the plaintiffs a duty of care to advise them about the limitation period in relation to a possible negligence action against Mr. Good. The Court of Appeal held that the motion judge’s analysis focused narrowly on the written retainer agreement, and not, as is required when determining if a lawyer owes a duty of care to a client, examining all the surrounding circumstances that define the lawyer and client relationship, when, as was pleaded here that … Read More
Superior Court Refuses to Strike Adware Breach of Privacy Claims
In Bennett v Lenovo, the plaintiff alleged breach of contract, breach of the implied condition of merchantability, the tort of intrusion upon seclusion, and breach of provincial privacy laws as a result of the factory installation of an alleged adware program “Virtual Discovery” on certain Lenovo laptops. The Court allowed the claim to proceed on three of the causes of action, dismissing only the breach of contract claim. The plaintiff asserted that the Virtual Discovery program intercepted a user’s internet traffic to analyze it and display targeted advertising to the user based on that analysis. The plaintiff claimed that these actions were a breach of his privacy, was a vulnerability that exposed his information to third party hackers, and caused the laptop to be unfit for any online use, as well as negatively impacting performance and battery life. The defendant asserted that the claims had no chance of success and should be … Read More