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

Impact of Divorce or Separation on a Family Business

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorBusiness Disputes, Closely-Held Business Disputes, Commercial, Division of Property, Family Business Disputes, Family Law, Injunction & Specific Performance, Oppression Remedies, Partnership Dispute, Partnerships and Shareholder Disputes, Sale of Business Disputes0 Comments

Family Business Challenges from Divorce or Separation Many businesses in Canada are family businesses or have evolved from family businesses. Family businesses present many unique challenges as they grow should the personal relationships of the key members of the family business change or deteriorate. Divorce and separation can have serious impact upon family-owned and family-run businesses, whether incorporated companies or partnerships. Changes in a family business and the challenges presented by change can often result in legal disputes between interested parties. Family business disputes are often be protracted, expensive, and disruptive, and may even result in the sale, division or winding up of the family business. Impact of Separation and Divorce on Family Businesses Complex questions arise in the division of property and assets when dealing with a family business during a separation or divorce. The value of the family business is included in the equalization of net family property … 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

Domain Name Disputes, Counterfeit Websites, Fake Bad Reviews and Remedies

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorBreach of Non-Competition Agreement, Breach of Non-Competition Clause, Breach of Non-Solicitation Agreement, Breach of Non-Solicitation Clause, Business Defamation, Business Disputes, Business Fraud, Business Torts | Economic Torts, Civil Conspiracy to Harm, Commercial, Copyright Infringement, Cyber Fraud, Cyber Libel, Domain Name Disputes, False Light, Information Technology, Injunction & Specific Performance, Intellectual Property, Internet Defamation, Internet Fraud, Online Defamation, Passing Off, Trademark Infringement, Website Copying0 Comments

I discuss here a number of internet-based “dirty tricks” that competitors or others may deploy and which may have serious adverse consequences for you or your business. I also briefly mention the types of remedies which may be available to those victimized in this way. Confusingly Similar Domain Names  In today’s modern web-based commercial world, it is more important than ever to ensure that potential customers  and returning customers are properly connected with your website domain name, and to use domain names that are well-branded and associated with your business. It is not uncommon for competitors, cyber-squatters, or other persons to obtain control of domain names that are confusingly similar to your trademarks, business names, or your domain name. Then there is a real risk that users seeking your website are instead directed elsewhere by that confusingly similar domain name. Recovering a Domain Name In order to recover (transfer to … Read More

Move Summary Judgment Motion to Arbitration – Early Dates Available

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAlternative Dispute Resolution (ADR), Arbitration, Injunction & Specific Performance, Summary Judgment0 Comments

Move Summary Judgment Motion to Arbitrator With the current curtailment of complete and timely operation of the court, the alternative option of consensually moving summary judgment or other important motions to arbitration provides a timely and cost efficient alternative to court proceedings.  Parties before the courts may wish to turn to arbitration, which for at least a year in this jurisdiction, has regularly been conducted virtually, and at the pace the parties require. Parties are free to enter into an arbitration agreement specifically addressing all or part of a dispute, or only a stage of the proceedings, or a separate or discrete issue to be resolved. Arbitration is particularly well-suited for the final determination of important motions and threshold questions. The parties to a court proceeding can agree that the court proceeding be moved to arbitration for final resolution, or that only a specific stage of the proceedings or a … 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

Online Defamation and Use of Pseudonyms

Gilbertson Davis LLPArbitration, Business Torts | Economic Torts, Civil Litigation, Commercial, Defamation, Injunction & Specific Performance, Norwich Order, Online Defamation0 Comments

Online Defamation (“Cyber Libel”) Many of our defamation matters come from the internet. These cases take many forms, from defamatory articles, to social media posts, to negative reviews of a business or person. Courts have recognized that online defamation or “cyber libel” is far more perverse than other forms of defamation. This is because internet users can reach the global population within seconds by publishing defamatory remarks about an individual or a business. As such, cyber libel can be significantly more damaging to a person’s business and/or reputation than other forms of defamation. Posting via Online Pseudonyms Some individuals go so far as to create aliases to post malicious and defamatory comments about others on the internet. In Ontario, you can sue an anonymous defamer by naming them as “John Doe” and/or “Jane Doe” in your claim against them. There are methods to determine the identity of these anonymous defamers, … Read More

Construction Arbitrator | Reasonable Hourly Rate | Good Availability

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitrators, Commercial, Condo Arbitrator, Condo Construction, Construction | Builders, Construction Arbitrator, Construction Litigation, Contract Disputes, Contract Termination, Cottage Litigation, Employment, Employment & Wrongful Dismissal, Expedited Arbitration, Force Majeure, Force Majeure Clauses, Fraudulent Schemes, Heavy Industries, Heavy Machinery Disputes, Infrastructure Arbitrator, Injunction & Specific Performance, International Joint Venture Arbitrator, Joint Venture Disputes, Labour Arbitrator, Mining, Infrastructure and Projects, Moving Litigation to Arbitration, Roster Arbitrator1 Comment

Construction arbitrators must be able to arbitrate efficiently and at the pace required by the parties, disputes ranging from simple renovations and repair, to complex multi-party multi-staged projects. The ability to understand construction stages and complexities of design, architecture, engineering and project management, and technical dimensions of a construction dispute are the hallmarks of an effective construction arbitrator. Sole Arbitrator – $450.00 per hour, plus HST Experience In his practice here in Ontario, and when practicing in Dubai and Bermuda, David has been involved in a wide array of construction disputes, including, but not limited to project development, project finance, infrastructure and construction disputes, including matters involving parking garages, road building, residential house construction and renovation, condo development and financing disputes, numerous joint venture disputes, matters involving demolition, collapse, fire and flood, as well as contract disputes concerning construction quality and warranties; and labour disputes in the construction industry. Arbitrator … 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

Toronto Lawyers for Large Debt Collection and Enforcement of Foreign and Local Judgments and Awards

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAppeals, Casino Debt Recovery, Commercial Lending, Commercial List Matters, Creditors Rights, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Forum Challenges, Heavy Industries, Injunction & Specific Performance, International Litigation, International Trade Fraud, Jurisdictional Challenges, Letters of Request, Letters Rogatory, Loan and Guarantee, Mareva Injunction, Mortgage Enforcement, Norwich Order, Of Interest to US Counsel, Offshore, Promissory Note Claims, Request for International Judicial Assistance0 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

Covid-19 Pandemic Closures: Considerations For Commercial Tenants And Landlords

Sabrina Saltmarsh, B.A. (Hons), J.D.Building | Property Management, Business Disputes, Business Interruption, Commercial and Contract Litigation, Commercial Contracts, Commercial Lease Arbitrator, Commercial Leasing, Commercial Litigation, Contract Termination, Coronavirus, COVID-19, Force Majeure, Franchise | Licensing, Government Action, Injunction & Specific Performance, Insurance, Property Management, Real Estate Litigation, REIT Disputes, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

What can commercial tenants and landlords do to protect themselves from the impact of Covid-19 related closures on commercial lease obligations? Here are some tips for businesses who are in the difficult situation of having to deal with potential defaults on commercial rent obligations related to closures or reductions due to the Covid-19 situation. 1. Review The Lease Agreement Carefully For Potentially Relevant Clauses In Ontario, the commercial landlord-tenant relationship is governed by the Commercial Tenancies Act, R.S.O. 1990, c. L.7., (the “Act”) which outlines the relationship, rights and obligations between commercial landlords and tenants. However these relationships are heavily governed by the commercial lease agreement in place between the landlord and the tenant, which can take precedence over the Act based on the agreement of the parties. Review the Act and more importantly, review your commercial lease agreement carefully to appreciate whether the agreement contemplates the type of situation … Read More

COVID-19 / Coronavirus: How to Schedule an Urgent Civil or Commercial List Hearing

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Leasing, Commercial List Matters, Commercial Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Injunction & Specific Performance, Real Estate Litigation0 Comments

On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled civil hearings were adjourned until further notice.  The Notice to the Profession provides a procedure to schedule urgent and time-sensitive motions and applications where immediate and significant financial repercussions may result without a hearing.  When motion or application materials are filed, by email to the appropriate courthouse, seeking an urgent hearing, the triage judge will determine whether or not the matter is urgent and should be scheduled for a hearing. There have been a few recent endorsements reported in respect to the scheduling of urgent commercial lease matters. Urgent Motion – Relief From Forfeiture In Oppong v. Desoro Holdings Inc., 2020 ONSC 1697, the applicant sought relief from forfeiture to set aside the landlord’s termination of the lease.  Although the application was brought promptly and scheduled to be … Read More

When Shareholders Need an Auditor or Inspector

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorBusiness Dispute Arbitrator, Business Disputes, Commercial, Commercial List Matters, Commercial Litigation, Corporate Litigation, Directors' and Officers' Liability, Financial Services | Investment, Fraud Recovery, Injunction & Specific Performance, Mareva Injunction, Norwich Order, Oppression Remedies, Preservation Orders0 Comments

I address here in a general way the procedures available for a shareholder or group of shareholders seeking the assistance of the court to have an auditor or inspector appointed. Financial Statements  – None or Inaccurate  Shareholders in closely-held Ontario corporations sometimes have concerns about the accuracy of the financial statements when the company does not have an auditor. Oppressive or Unfairly Prejudicial Conduct In other cases, a shareholder in an Ontario corporation may consider that the corporation has been carried on, or the powers of the directors are, or have been, exercised, in a manner that is oppressive or unfairly prejudicial to, or that unfairly disregards, the interests of the shareholder. Corporation and Fraud One or more shareholders may have concerns that the corporation’s business is, or has been, carried on with the intent to defraud,  that the corporation was formed or dissolved for a fraudulent or unlawful purpose, … Read More

Nick Poon Comments on Real Estate Wire Fraud for Yahoo!

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Broker and Agent Claims, Civil Litigation, Cyber Fraud, Fraud, Fraud Recovery, Fraudulent Schemes, Gilbertson Davis LLP News, Injunction & Specific Performance, Real Estate | Developers, Real Estate Agent and Broker, Real Estate Litigation0 Comments

Nick Poon was recently asked to comment on real estate wire fraud for Yahoo News Canada. Read the Yahoo News Canada article here: ‘The prospects of recovering the money are near zero’: The scam homebuyers need to be aware of. If you have a fraud claim or a real estate dispute, please contact us for an initial consultation.

Part Two – Timing is Everything in Real Estate Agreements of Purchase and Sale

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Injunction & Specific Performance, Real Estate | Developers, Real Estate Litigation, Specific Performance, Summary Judgment0 Comments

I had written a previous blog on the “time is of the essence” clause in real estate agreements where it was discussed that the strict adherence to any agreed upon time limits was generally the case. A recent Ontario Court of Appeal case, Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc., serves as a reminder that the “time is of the essence” clause is not absolute and unfettered, and there are preconditions that must be satisfied for a party to rely upon and insist on time being of the essence. The facts are not overly complicated in this case.  The respondent was a condominium developer in the process of acquiring properties for a proposed project in downtown Toronto.  The developer entered into an Agreement of Purchase and Sale (“APS”) with the vendor to acquire the subject property.  Although the APS required the vendor to provide estoppel certificates five days prior … Read More

Protecting Your Internet Domain Name

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Fraud, Business Litigation, Business Torts | Economic Torts, Copyright Infringement, Cyber Fraud, Cyber Risks, Domain Name Disputes, eCommerce | Online Retail, Identity Fraud, Injunction & Specific Performance, Intellectual Property, Internet | Technology, Internet Fraud, Passing Off, Specific Performance, Start-Up Disputes, Technology and Internet, Trademark Infringement, Website Copying0 Comments

In the age of the internet and e-commerce, the domain name of a business holds tremendous value and is often an integral part of the identity of a business. Since a website can only have one domain name on the internet, there is no shortage of disputes which arise over ownership rights of domain names, particularly those closely affiliated with a registered or unregistered trademark. What is Cyber-Squatting? Cyber-Squatting occurs when someone has registered a domain name in which they have no legitimate business interest, and can sometimes involve setting up a fake website for a business. The reason could be that the registrant will then seek to sell the domain name to the legitimate owner of the business or trademark, or their competitor for a profit. Alternatively, it may be to syphon away business leads online to competitors for a fee, or for advertising revenues. Typo-Squatting is similar to … Read More

Irreparable Harm for Injunctive Relief Determined by Court, Not Agreement

Yona Gal, J.D., LL.MContract Disputes, Injunction & Specific Performance0 Comments

In dismissing a motion for an interlocutory injunction, the Ontario Superior Court in Homestead House Paint Co. Inc. v Jamieson, 2019 ONSC 2660 (“Homestead”), recently reiterated that a clause deeming a breach to cause irreparable harm does not displace the courts’ exclusive role to determine whether injunctive relief is appropriate and whether or not irreparable harm has been established. The RJR MacDonald Test In RJR-MacDonald v Canada (AG), 1994 SCC 117, the Supreme Court of Canada established the well-known test for an interlocutory injunction.  The moving party is required to prove that: There is a serious issue to be tried; That the moving party will suffer irreparable harm if the relief is not granted; and The balance of convenience favours granting the injunction. Irreparable Harm Irreparable harm is defined as harm that “cannot be quantified in monetary terms or which cannot be cured” [RJR-Macdonald]. In Homestead, the moving party argued … Read More