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), Q.Arb, Lawyer and ArbitratorAppeals, 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), Q.Arb, Lawyer and ArbitratorBusiness 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

Court of Appeal Upholds Dismissal of Recognition Action Based on Limitation Period

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Cross-Border Litigation, Enforcement of Foreign Judgments, Injunction & Specific Performance, Mareva Injunction, Of Interest to US Counsel0 Comments

In Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79, the plaintiff obtained default judgment in South Carolina dated August 20, 2014 default judgment in the amount of US $451,435,577.37 against the defendant.   The plaintiff sought a Mareva injunction (i.e. a freezing order). Although the Court initially granted the injunction, the Court later set aside the injunction in response to the defendant’s motion arguing that the Ontario proceedings were commenced outside the limitation period.  See our blog on the motion decision here. On appeal, the Court of Appeal reiterated the applicable test from Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, being: (i) the basic two-year limitation period applies to a proceeding on a foreign judgment; and (ii) the limitation period begins to run when the time to appeal the foreign judgment has expired or, if an appeal is taken, the date of the appeal decision, unless the claim … Read More

Court Stays Injunction Claim in Favour of Arbitration / Refuses to Consolidate Arbitration Proceedings Without Consent of All Parties

Andrew Ottaway, B.A. (Hons.), LL.B.Arbitration, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Contract Termination, Injunction & Specific Performance, Insurance0 Comments

In Loan Away Inc. v. Western Life Assurance Company, 2018 ONSC 7229, the plaintiff had an agreement with the defendant by which the plaintiff sold the defendant’s insurance policies in return for payments by the defendant.  The defendant ceased making payments and the plaintiff commenced an action against the defendant for an injunction to require the defendant to make the payments to the plaintiff and to prevent the defendant from terminating the insurance policies that the plaintiff had sold on the defendant’s behalf. The defendant relied upon an arbitration clause in its agreement with the plaintiff to stay the action.  The plaintiff argued, among other things, that the claim should not be stayed because the arbitration clause contained arbitration clause contained an exception for requests for a temporary restraining order or other forms of injunctive relief. The plaintiff argued that its request for a permanent injunction fell under the category … Read More

Court Considers Jurisdiction in Context of Online Sales

Andrew Ottaway, B.A. (Hons.), LL.B.Business Litigation, Civil Litigation, Cross-Border Litigation, Enforcement of Foreign Judgments, Information Technology, Injunction & Specific Performance, Intellectual Property, Internet | Technology, Jurisdictional Challenges, Of Interest to US Counsel, Summary Judgment0 Comments

In Dish v. Shava, 2018 ONSC 2867 (CanLII), plaintiffs obtained judgment in Virginia, including an injunction, against the defendants, who were located in Ontario.  The plaintiffs then brought an action in Ontario seeking recognition and enforcement of the Virginia judgment and injunction in Ontario. On the motion for summary judgment, the Ontario Court considered whether the Virginia Court had exercised jurisdiction based on the Ontario test for jurisdiction: i.e. whether the defendants had a real and substantial connection with Virginia. The defendants owned and operated an interactive, commercial website through which users purchased TV set-top boxes.  The Ontario Court found that the defendants had a real substantial connection to Virginia based on the nature of the business they were operating, specifically: users in Virginia purchased the TV set-top boxes from the defendants’ website.  At least 193 customers with a Virginia shipping address purchased Shava TV product from the Defendants’ distributor … Read More

Court Grants Interim, Interim Injunction Without Specific Evidence of Harm

Andrew Ottaway, B.A. (Hons.), LL.B.Brand Protection, Breach of Confidentiality Agreement, 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 Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Litigation, Confidentiality Agreement, Confidentiality Clause, Contract Disputes, Employment, Injunction & Specific Performance, Non-Compete, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause0 Comments

In Knowmadics v. Cinnamon, 2018 ONSC 4451 (CanLII) the plaintiff company sought an urgent interim, interim injunction regarding an app sold by the defendants pending the hearing of a motion for an interlocutory injunction. The plaintiff sold specialized computer software.  The individual defendant was employed by the plaintiff and signed an employment agreement, including a confidentiality and non-competition clause.  The defendant also had a business, the corporate co-defendant, which did subcontracting work for the plaintiff after the defendant resigned from employment with the plaintiff.  The corporate defendant signed a non-disclosure agreement with the plaintiff. The plaintiff alleged that the defendants were selling certain software that directly competed with the plaintiff’s software and infringed the plaintiff’s copyrights.  The plaintiffs commenced an action against the defendants. After commencing the action, the plaintiff alleged that they learned that the defendants were also selling a certain app over which the plaintiffs asserted ownership.  The … Read More

Court Considers When Limitation Period Commences to Enforce Foreign Judgment

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial Litigation, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Judgments, Injunction & Specific Performance, Of Interest to US Counsel0 Comments

In Grayson Consulting Inc. v. Lloyd, 2018 ONSC 2020 (CanLII), the plaintiff obtained a judgment in South Carolina in 2014.    The plaintiff commenced proceedings in Ontario in 2017 in respect of the South Carolina and obtained an ex parte Mareva injunction (freezing order) against the defendant.  The defendant challenged the Mareva injunction, arguing that the Ontario proceeding was commenced outside Ontario’s two-year limitation period.   The plaintiff argued, among other things, that the limitation period did not commence until the plaintiff received a report from investigators that the defendant had exigible assets in Ontario.   The plaintiff relied on the recent case of Independence Plaza 1 Associates L.L.C. v. Figliolini 2017 ONCA 44 (CanLII), in which the Court of Appeal stated that a claim based on a foreign judgment may not be “discovered” until a judgment creditor knew or ought to have known that the judgment debtor had exigible assets in … Read More

Mattresses and Slogans and Interlocutory Injunctions, Oh My! (Sleep Country Canada Inc. v. Sears Canada Inc.)

Janice Perri, B.A. (Summa Cum Laude)Brand Protection, Business Law, Business Litigation, Civil Litigation, Commercial, Injunction & Specific Performance, Intellectual Property, Passing Off, Trademark Infringement0 Comments

In Sleep Country Canada Inc. v. Sears Canada Inc., Sleep Country Canada Inc. (“Sleep Country”) was granted an interlocutory injunction against Sears Canada Inc. (“Sears”) to prevent Sears from using their slogan “THERE IS NO REASON TO BUY A MATTRESS ANYWHERE ELSE” while the trade-mark infringement litigation (in which Sleep Country claims Sears’ slogan infringes on Sleep Country’s trade-marked slogan of, “WHY BUY A MATTRESS ANYWHERE ELSE”) is ongoing.   The three-part test set out in RJR-MacDonald v. Canada (Attorney General) was ultimately satisfied. The heart of the case was not on whether this was a serious issue or on the balance of convenience, but rather, on whether irreparable harm was established.   The Court found in favour of Sleep Country’s arguments that confusion, depreciation of goodwill, and loss of distinctiveness would result, as well as, a loss of sales in the minimum 18-24-month period between the time of this hearing and the determination of the … Read More

Shifting The Status of Interlocutory Injunctions: Google v. Equustek Solutions

Janice Perri, B.A. (Summa Cum Laude)Business Litigation, Civil Litigation, Cross-Border Litigation, eCommerce | Online Retail, Injunction & Specific Performance, Internet | Technology, Jurisdictional Challenges, Mareva Injunction, Norwich Order, Passing Off, Technology and Internet, Trademark Infringement0 Comments

The very interconnectedness of the Internet that drives business forward through marketing and access to broader consumer bases may result in loses that currently are not easily remedied. However, jurisprudential shifts are occurring to bridge gaps in the common law that are prevalent in the new age of technology. Google v. Equustek Solutions is a recent decision that potentially expands the scope of interlocutory injunctions in order to ensure that trademark passing-off does not continue to be facilitated, even if unintentionally, by a non-party. Equustek was entitled to an interlocutory injunction to enjoin Google from displaying Datalink’s websites on any of its search results worldwide, and despite Google’s appeal, the decision was upheld by the Supreme Court of Canada in a 7-2 decision. Justice Abella, writing for the majority, emphasized the importance of deference and discretion with regards to interlocutory injunctions, which is highly context-driven to ensure just and equitable outcomes (para 22). The Court found the three-part test in RJR – MacDonald … Read More

McDonald’s Not Served Valid Revocation of Waiver – Commercial Leasing in the Court of Appeal

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorAppeals, Arbitration, Business Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Leasing, Injunction & Specific Performance, Real Estate Litigation, Retail Litigation, Shopping Mall Lease Disputes0 Comments

The Court of Appeal for Ontario in North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited, 2018 ONCA 71 allowed an appeal by McDonald’s from a decision on applications by both parties to determine whether  the subject lease came to an end on a described date because McDonald’s had not complied with the renewal provision in the lease. The Court of Appeal allowed the appeal of the decision of the application judge, that despite that the parties were in negotiations, and that the respondent had waived its right to insist on strict compliance with the  terms of the renewal provision (to refer the determination of the renewal rental rate to arbitration), that the respondent had effectively revoked its waiver and reverted to its strict legal rights, namely to terminate the lease in the absence of the referral of the dispute on renewal rental rate to arbitration within the permitted time. On the … Read More