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

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

Failure To Close A Real Estate Transaction Can Be Very Costly

Gilbertson Davis LLPCivil Liability, Civil Litigation, Contract Disputes, Real Estate Arbitrator, Real Estate Litigation, Recreational Property Litigation0 Comments

For many reasons, an agreement of purchase and sale to buy real estate may be breached by either the seller or the purchaser. The innocent party may be entitled to significant compensation. For instance, in the recent Ontario Court of Appeal (ONCA) decision, Rosehaven Homes Limited v. Aluko, 2022 ONCA 817, the ONCA upheld a lower court decision granting summary judgment requiring the appellants to pay damages to the respondent arising from the appellants’ failure to complete an agreement of purchase and sale for the purchase of a home. In that case, the appellants were unable to complete the transaction because they could not obtain sufficient financing. However, the agreement was not conditional on them obtaining financing. The respondent ultimately sold the property at a loss (compared to the sale price agreed to between the parties). The lower court awarded $331,922.27 to the respondent (being the difference between the original … Read More

Recognition of United States and Other Foreign Default Judgments – The Ontario Court Does Not Consider Underlying Merits!

Gilbertson Davis LLPBusiness Litigation, Civil Liability, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Judgments0 Comments

Just over a month ago, the Ontario Superior Court of Justice (“ONSC”) in North Field Technology Ltd. v. Project Investors, Inc., 2022 ONSC 5731, recognized as orders of Ontario a default judgment and various ancillary orders that the Applicant obtained in the United States District Court, Southern District of Florida (“Florida Court”), against the Respondents. The Florida Court found that the Respondents were evading service of the legal proceedings in Florida and issued a series of judgments against the Respondents such as an asset freeze injunction and permanent injunction restraining the Respondents from transferring their assets, as well as orders for certain monetary and declaratory relief, among other orders. The ONSC validated service of the Ontario application, recognizing that the Florida Court “has already found that the respondents were avoiding service”. The ONSC also found that the Applicant has met the test for recognition and enforcement of the Florida Judgments … Read More

To Sue or Not to Sue? Failure to Sue = No Compensation

Gilbertson Davis LLPAppeals, Civil Liability, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Real Estate Litigation0 Comments

In Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), the Ontario Court of Appeal (“ONCA”) concluded that failure to sue is a bar to recovery of any compensation, even if the party to a lawsuit may otherwise have been entitled to compensation had she sued. In this case the Plaintiff sued the Appellant for negligence in respect of a vendor take back mortgage to the Plaintiff and his then-wife. The Plaintiff’s ex-wife refused to join the proceeding as a plaintiff and so the Plaintiff added her as a defendant. The trial judge found that the Appellant was negligent and awarded damages of close to $300,000 to both the Plaintiff and his ex-wife (almost $150,000 each). On appeal, the ONCA agreed with the trial judge that the Appellant owed a duty of care to both the Plaintiff and to the Plaintiff’s ex-wife. However, the ONCA did not agree with the trial … 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

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

Undocumented Trusts – No Requirement for Formal Trust Agreements

Gilbertson Davis LLPAppeals, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Recreational Property Litigation, Trust Litigation0 Comments

In the recent decision from the Ontario Court of Appeal (“ONCA”), Corvello v. Colucci, 2022 ONCA 159, the ONCA confirmed that a trust can exist even where there is no written trust agreement. At issue in the case was the ownership of a land use permit which allowed the holder(s) of the permit to build on and use the land for recreational purposes. In the court of first instance, the appellant took the position that the permit belonged to him alone. However, the trial judge determined that the appellant actually held the permit “in trust for himself and the respondents as beneficial owners”. On appeal, the appellant argued that the trial judge erred in law and in fact by determining that an undocumented trust agreement existed. The ONCA advised that it is trite law that a valid trust requires “three certainties: certainty of intention to create a trust, certainty of … Read More

Breach of Agreement of Purchase and Sale – What are Your Options?

Gilbertson Davis LLPCivil Litigation, Commercial and Contract Litigation, Contract Disputes, Contract Termination, Real Estate Litigation0 Comments

The Ontario Court of Appeal (ONCA) in Ching v. Pier 27 Toronto Inc., 2021 ONCA 551 (CanLII), recently outlined the options an innocent party to an agreement of purchase and sale (APS) has upon the other party breaching (i.e. repudiating) the APS. General Principles Repudiation is the refusal of one party to an APS to abide by the terms of the APS. Repudiation by one party does not in itself result in the termination of the APS. Rather, repudiation provides the innocent party (i.e. the non-repudiating party) to the APS with the following choices: Accept the repudiation (i.e. disaffirm the APS); or Treat the APS as subsisting (i.e. affirm the APS). The innocent party generally has a reasonable period of time to choose whether to disaffirm or affirm the APS. However, waiting too long may result in a court determining that the APS has been affirmed. During this reasonable waiting … 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

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

When Construction Contracts Go Awry: Ontario’s New Construction Contract Adjudication Regime

Sabrina Saltmarsh, B.A. (Hons), J.D.Commercial Litigation, Construction | Builders, Construction Equipment & Machinery, Construction Liens, Construction Litigation, Contract Disputes, Cottage Litigation, Professional Liability, Recreational Property Litigation0 Comments

Construction contracts come with expectations and potential risks to property owners and contractors. Property owners can face issues related to quality of workmanship, delays, and incomplete or abandoned work. Contractors (including sub-contractors) can deal with a myriad of problems which delay or hinder payment, including issues with other sub-trades, the general contractor, or the owner. Whether you are a property owner undertaking construction or renovations, or a contractor (or sub contract) who has been engaged on a project, if things don’t go as planned it’s important to know what your options for recourse may be. A newly established cost-effective adjudication regime has become an important option to consider. Want to learn more about how to protect yourself from a home renovation disaster? Check out our blog. With the Ontario Legislature’s ratification of the new Construction Act, prompt payment and adjudication came into effect on October 1, 2019. The new legislation … Read More

Aborting A Real Estate Deal Can Have Major Consequences

Sabrina Saltmarsh, B.A. (Hons), J.D.Appeals, Condo Litigation, Contract Disputes, Cottage Litigation, Cottage Purchase and Sale, Real Estate Litigation, Recreational Property0 Comments

A recent Court of Appeal ruling illustrates the severe consequences that can flow from aborting a real estate transaction. In the decision of Joo v. Tran, 2021 ONCA 107, the Court of Appeal declined to give effect to a term that was included in an agreement of purchase and sale (APS), on the basis that such an interpretation of the clause would have resulted in an absurdity. The clause indicated that the vendors would discharge any encumbrances on or before closing, either through sale proceeds or by way of a solicitor’s undertaking, which term was included in Schedule A of the APS. The decision arose from the appeal of a ruling on a summary judgment motion brought by the seller, who sued the purchaser in a real estate transaction for breach of contract, after the purchaser expressing concerns regarding utility easements on the property, aborted the real estate transaction. The … Read More

Five Reasons People Sue After Buying or Selling Real Estate

Sabrina Saltmarsh, B.A. (Hons), J.D.Condo Litigation, Contract Disputes, Cottage Litigation, Misrepresentation, Mortgage Broker Litigation, Negligence, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation0 Comments

In a heated real estate market where blind bidding and unconditional offers are necessary to compete, often times purchasers are vulnerable to pulling the trigger and asking questions afterwards. Conversely sellers are looking to capitalize on market highs and looking to sell for top dollar which often comes down to timing. These competing interests can lead to litigation when a real estate transaction doesn’t go as planned. Here are five common reasons that litigation arises from real estate transactions: 1) Breach of Contract Litigation often arises because a seller or purchaser has breached the purchase and sale agreement. There are many contractual terms that set out the rights and obligations of the respective parties in a real estate transaction including the closing date, title clearance, deposit requirements, inclusions, exclusions, and conditions. A Plaintiff commencing suit over a breach of the contract must prove that they have complied with all of … Read More

China International Arbitration Award Enforced by Ontario Court

Gilbertson Davis LLPArbitration, Business Litigation, Civil Litigation, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Arbitral Awards0 Comments

Tianjin v. Xu, 2019 ONSC 628 (CanLII) involved an application under the International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (the “Act”) for an order recognizing and making enforceable in Ontario an arbitral award of the Chinese International Economic and Trade Arbitration Commission (“CIETAC”). Respondent’s Defences The respondent argued that the arbitration award should not be enforced in Ontario because: Service: The respondent did not receive notice of the arbitral proceeding or the appointment of arbitrators; and Jurisdiction: The Ontario Superior Court of Justice did not have jurisdiction to enforce the arbitral award because the arbitration was not an “international commercial arbitration”. Service The court found that there is no requirement that service of notice of the arbitral proceedings or of appointment of arbitrators be effected in accordance with the CIETAC Rules. Rather, the court opined that the respondent was given “proper notice” of the proceedings and … Read More

It’s not all about Intent! – Court of Appeal Confirms Test for Civil Conspiracy

Gilbertson Davis LLPAppeals, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes0 Comments

In the recent decision Mughal v. Bama Inc., 2020 ONCA 704 (CanLII), the Court of Appeal upheld a lower court decision in an action alleging civil conspiracy, among other things. The underlying action involved a plaintiff seeking the return of his investment in a corporation. On appeal, it was alleged that the trial judge applied the wrong legal test for and misapprehended the evidence to find commission of the tort of conspiracy to injure. The appellate court concluded that the trial judge applied the correct test for establishing civil conspiracy to injure as follows: Whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or, Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury … Read More