Family Business Dispute, Start Up Company Dispute, and Closely-Held Company Litigation

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorBusiness Litigation, Civil Litigation, Closely-Held Business Disputes, Commercial Arbitration, Commercial Litigation, Contract Disputes, Directors' and Officers' Liability, Family Business Disputes, Injunction & Specific Performance, Oppression Remedies, Partnerships and Shareholder Disputes, Shareholder Disputes, Start-Up Disputes0 Comments

We have experience acting for, advising and representing those in closely-held company litigation, both arising from family business disputes and from start-up company disputes. Family Business Disputes Many businesses in Canada are family businesses or have evolved from family businesses. Family businesses present many unique challenges as they grow, as key members of the company or partnership leave the family business, or when personal relationships of the key members of the family business change or deteriorate. One of the most common differences between a family business and other established businesses, whether or not a shareholders’ agreement, partnership agreement and other legal documentation was used in the formation of the family business, is the informality in operation of the family business, including the often ignored distinction in fact between employees, shareholders, or partners – since family members take on multiple roles. Please see our webpage on Family and Closely Held Business Disputes. Start Up Company … Read More

Former Employee Ordered to Transfer Social Media Accounts in Trade-Mark and Copyright Infringement Case

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial, Commercial Litigation, Injunction & Specific Performance, Intellectual Property0 Comments

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

Supreme Court of Canada To Rule on Scope of Injunction Against Innocent Search Engine

Robert Kalanda, B.A. (Hons.), J.D.Cross-Border Litigation, Enforcement of Foreign Judgments, Injunction & Specific Performance, Intellectual Property0 Comments

On December 6, 2016, the Supreme Court of Canada heard arguments on the appeal of an order of the British Columbia Court of Appeal which ordered Google to de-list certain websites from being accessible from any of its country-specific search engine domains. The defendants were alleged to have engaged in selling online counterfeit products of the plaintiff, contrary to the plaintiff’s intellectual property rights. The British Columbia Supreme Court originally ordered the defendants to cease all sales of counterfeit product on the internet. The defendants did not comply, and have hidden themselves somewhere unknown, such that the plaintiff could not practically use the courts to compel the individuals responsible from ceasing this activity. As an alternative, the plaintiff looked to Google to make the defendant’s websites not appear in search result listings, which would largely effect the same result in that customers searching for the plaintiff’s products will not discover … Read More

Toronto Lawyers for Victims of Investment Fraud: When Investing in a Toronto Business Goes Bad

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorAppeals, Appellate Advocacy, Broker and Agent Claims, Business Litigation, Civil Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Fraud, Fraud Recovery, Injunction & Specific Performance, Investment Fraud, Summary Judgment0 Comments

A bad investment may not be the result of market fluctuations. A false representation inducing and leading to an investment loss may be actionable at law. Often there is a promised  high-yield on an investment in a company, project or property.  Sometimes a loss occurs from a scheme where there is no intention by those entrusted with an investment to make the promised purchase or transfer. In Ontario, civil lawsuits for the victims of investment fraud have often been framed as claims for deceit, fraudulent misrepresentation, civil conspiracy,  breach of contract, unjust enrichment and restitution. Increasingly though, plaintiffs in lawsuits simply claim damages for losses arising directly from the tort of civil fraud. The leading case on civil fraud in Canada is the Supreme Court of Canada decision in 2014 in Hryniak v. Mauldin, 2014 SCC 7, and in that case civil fraud is defined this way “… the tort of … Read More

Business Dirty Tricks: Unfair Competition: Intentional Interference, Inducing Breach of Contract, Conspiracy and Defamation

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorAppropriation of Personality, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Law, Commercial Litigation, Contract Disputes, Contract Termination, Cross-Border Litigation, Cyber Risks, Fraud, Injunction & Specific Performance, Intellectual Property, Of Interest to US Counsel, Partnerships and Shareholder Disputes, Passing Off, Trademark Infringement0 Comments

Sometimes businesses and their stakeholders act wrongfully in seeking to advance their interests and / or harm competitors. There are often reports of the “dirty tricks” used by those in business to seek to destroy, defeat or diminish the effectiveness of a competitor. These are often unethical tactics, but sometimes such conduct is also wrongful and has been recognized by the common law as actionable in the courts for damages or injunctive or other urgent equitable relief, or prohibited by a statute which provides for a civil monetary remedy or grounds for an injunction. These causes of action have been recognized and provide the basis of lawsuits for harm, loss and damage, and in suitable circumstances, grounds for an immediate injunction or mandatory order prohibiting the further commission of the wrongful acts. In short, wrongful intentional acts causing harm, loss or damage to businesses or their stakeholders may give rise to a cause of action in common law business torts (the so-called … Read More

The Importance of Urgent Injunctive Relief | Referrals for Injunctions

Robert Kalanda, B.A. (Hons.), J.D.Commercial Litigation, Injunction & Specific Performance0 Comments

Litigation is sometimes a slow and costly process, designed to ensure all parties are provided with sufficient opportunity to present their best case in a dispute. Unfortunately, personal and business realities often move much faster than ordinary litigation can accommodate, meaning that the time it takes to succeed in litigation can – in itself – be detrimental to your interests or your client’s interests. Interim and Interlocutory Injunctions Fortunately, the courts have a robust system in place to give parties immediate, if temporary, relief in the form of an injunction to ensure their rights are not compromised by the slow grind of the litigation process, giving all parties the time and opportunity to flesh out their positions once the immediate risk of harm has been dealt with. This kind of relief is limited only to situations where one can establish that such urgent remedies are truly necessary – that is, … Read More

Court Confirms Inference of Dissipation in Mareva Motions Based on Fraud

Robert Kalanda, B.A. (Hons.), J.D.Commercial Litigation, Fraud, Injunction & Specific Performance0 Comments

In the recent case of Electromart (Ontario) Inc. v Fabianiak et al., the Ontario Superior Court considered the level of evidence required to prove that there is a real risk of the dissipation of assets, one of the elements necessary to obtain a Mareva injunction freezing a defendant’s assets. Normally, a court will not freeze a defendant’s assets just because the plaintiff is concerned that they will not be able to recover any money on their judgment at the end of litigation. However, where the court is convinced that the defendant is improperly dissipating his or her assets to make recovery more difficult or impossible, the court will freeze a defendant’s assets to prevent that from happening. In addition to proving a strong prima facie case, a moving plaintiff must also show why the freeze is necessary – that is, some reason to believe that assets will be dissipated if the order is not granted. The … Read More

Partnership and Contractual Disputes between Professionals (Dentists, Doctors, Accountants, Lawyers, Architects, Engineers)

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Contract Termination, Debt and Enforcing Judgments, Injunction & Specific Performance, Joint Venture Disputes, Partnership Dispute, Partnerships and Shareholder Disputes, Professions0 Comments

Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Lastly, some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact … Read More

UberHop Launches in Toronto

Andrew Ottaway, B.A. (Hons.), LL.B.Commercial Law, Gilbertson Davis LLP News, Injunction & Specific Performance, Of Interest to US Counsel0 Comments

Uber is in the news again this week after it announced that, starting December 15, 2015, a new service called “uberHOP” will be available “along Toronto’s most popular routes during peak hours.”  Using uberHOP a user can request to be picked up along one of the four designated, downtown Toronto routes from one of the predetermined “pickup spots”.  The service is to be provided for a flat “fare” of $5.00. The Toronto Transit Commission (the “TTC”) has reportedly asked its lawyers to consider uberHOP in the context of the TTC’s right to operate, maintain and control local passenger transportation services in Toronto.  Specifically, the City of Toronto Act, 2006 provides: Exclusive authority of TTC 395. (1) No person other than the TTC shall establish, operate or maintain a local passenger transportation system within the City until the TTC is dissolved or the control and management over the local passenger transportation system is removed from … Read More

BC Court Upholds Worldwide Injunction Against Google – Precedence for Online Piracy

Robert Kalanda, B.A. (Hons.), J.D.Injunction & Specific Performance, Intellectual Property0 Comments

In a recent decision from the British Columbia Court of Appeal, the Court upheld an interlocutory injunction that forced Google to prohibit any websites of an alleged distributor of counterfeit goods to appear in Google search results. Google, who is not a party to the action against the defendant, argued that the Court could only prohibit Google from listing the defendant’s websites on “google.ca”, but not on any other international sites run by Google. Google submitted that the Court could not restrain Google in its actions outside of Canada, because (a) the BC Court did not have jurisdiction to make orders about activity in other jurisdictions, and (b) the BC Court did not have jurisdiction over Google. In dismissing the appeal, the Court of Appeal confirmed that as long as the court has jurisdiction over the underlying action (which was not disputed), it will have jurisdiction over any ancillary motions … Read More

‘Innocence of Muslims’ Copyright Decision Highlights Scope of Moral Rights: Canadian vs. US Protections

Robert Kalanda, B.A. (Hons.), J.D.Injunction & Specific Performance, Intellectual Property0 Comments

A recent high-profile United States copyright decision has highlighted the limited scope of protection granted to an artist’s “moral rights” in their creations in the United States, rights which are given broader protections in other countries, including Canada. Court Rejects Actor’s Copyright Claim This week, the 9th Circuit Court of Appeals in the United States issued an en banc decision reversing an earlier decision restraining YouTube from displaying the controversial film Innocence of Muslims. The injunction was based on the copyright claim of actress Cindy Lee Garcia, whose five-second appearance in the film was based on misrepresentations to her that an entirely different film was being produced. Her controversial lines were dubbed over her appearance in post-production without her permission. The Court initially held that Garcia did not sign away her copyright to her performance, and therefore could make a valid copyright infringement claim regarding her performance in the film, and … Read More

Gilbertson Davis LLP News – OsgoodePD Program on Shareholder Litigation and the Closely-Held Company

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorBusiness Litigation, Business Torts | Economic Torts, Closely-Held Business Disputes, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Directors' and Officers' Liability, Family Business Disputes, Gilbertson Davis LLP News, Injunction & Specific Performance, International Joint Venture, Oppression Remedies, Partnerships and Shareholder Disputes, Shareholder Disputes0 Comments

David Alderson, of Gilbertson Davis LLP attended as a faculty member of the OsgoodePD professional development program on April 7, 2015 concerning Shareholder Litigation and the Closely-Held Company. He was on the panel addressing Ethical and Professional Issues in Shareholder Disputes and Litigation. Osgoode Hall Law School said of this professional development program, “This OsgoodePD program brings together some of the country’s top commercial litigators and other experts to provide insight into key aspects of litigating these cases.”  Shareholders disputes are one of the most common and most complex disputes handled by commercial litigators and in-house counsel. The panel on Ethical and Professional Issues in Shareholder Disputes and Litigation included Paul N. Feldman of Feldman Lawyers, Tom Curry of Lenczner Slaght Royce Smith Griffin LLP and David Alderson of Gilbertson Davis LLP, with Lisa C. Munro of Lerners LLP moderating. The program is being re-broadcast on May 22, 2015 as described here. David Alderson has experience in shareholder and partnership disputes, both in arbitration … Read More

Ontario Court Given Jurisdiction over Internet Defamation Claim

Robert Kalanda, B.A. (Hons.), J.D.Civil Litigation, Cross-Border Litigation, Information Technology, Injunction & Specific Performance0 Comments

A recurring issue in online defamation cases is the proper jurisdiction where a claim should be commenced. In many cases, the people who read the allegedly defamatory statements will be located across the planet, meaning that a publisher of such materials may find themselves having to defend claims brought far away from their actual home jurisdiction. In Goldhar v. Haaretz.com et al., Justice Faieta allowed an Ontario claim to continue for allegedly defamatory statements posted online by an Israeli-based newspaper organization. The defendants brought a motion to have the plaintiff’s claim stayed, arguing that the action should be heard in Israel, as the majority of the publication of the article was in Israel, and only 200-300 persons in Canada read the English online article. The court ultimately concluded that it did have jurisdiction over the defendants, and the plaintiff’s claim could continue in Ontario. By finding that at least some … Read More

London Court of International Arbitration (LCIA) – New Rules Include Expanded Provisions on Emergency Relief

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Business Litigation, Commercial Arbitration, Commercial Litigation, Copyright Infringement, Cross-Border Litigation, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Fashion Industry, Industrial Design, Injunction & Specific Performance, Intellectual Property, International Sale of Goods, Mareva Injunction, Of Interest to US Counsel, Preservation Orders, Textiles and Apparel0 Comments

The London Court of International Arbitration has announced that its new LCIA Arbitration Rules have been formally adopted by the LCIA Court and the LCIA Board of Directors and will come into effect on 1 October 2014. Article 9B of the new LCIA Arbitration Rules – Emergency Arbitrator provides that in the case of emergency at any time prior to the formation or expedited formation of the Arbitral Tribunal , any party may apply to the LCIA Court for the immediate appointment of a temporary sole arbitrator to conduct emergency proceedings pending the formation or expedited formation of the Arbitral Tribunal. By Article 9.14 of the New Rules, Article 9B does not apply where the parties have concluded their arbitration agreement before 1 October 2014 have not agreed in writing to ‘opt in’ to Article 9B, or the parties have agreed in writing at any time to ‘opt out’ of Article 9B. Reference should be had in this regard to … Read More

Court Grants Ex Parte Injunction Against Pipeline Protesters

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial Law, Commercial Litigation, Injunction & Specific Performance0 Comments

In Enbridge Pipelines Inc. v. Jane Doe, the Applicant had an easement through a property for its gas pipeline.  The protesters (according to their social media postings) opposed further construction on the pipeline, and occupied and refused to leave the property.  The Applicant brought an ex parte (without notice) application for an interlocutory injunction prohibiting the protesters from occupying a work site on the property. The Applicant argued i) that the work on the pipeline was an immediate safety concern, ii) that any delay caused by the protesters would have serious impact on its economic concerns (the supply of oil to its customers), and iii) that the Applicant’s property rights  – the easement – were in a “privileged position”, and that a trespass to property rights is virtually always remedied by an injunction. The Judge found with respect to i) that there was not an immediate safety concern, but with respect to ii) … Read More

Motion to Set Aside Default Judgment Denied in Internet Defamation Case

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Injunction & Specific Performance0 Comments

The Ontario Superior Court of Justice in Busseri v. Doe, 2014 ONSC 819, dealt with the defendant’s motion to set aside default judgment against him in an internet defamation case.  The plaintiff brought the underlying defamation action after discovering numerous posts by the defendant on a stock-related online public forum called stockhouse.com.  Although the defendant was provided adequate notice of the lawsuit and the subsequent motion for an interim injunction against posting further defamatory statements, the defendant did not take any steps to defend in any way until it became clear that the default judgment ($200,000 + costs) would be enforced in the defendant’s jurisdiction. In considering a motion to set to aside default judgment, the Court must consider the following factors: (1) whether the motion to set aside the default judgment was brought without delay after the moving party learned of the default judgment; (2) whether the circumstances giving rise to the default judgment have been adequately explained; and (3) whether the moving party has an … Read More

Scooter Wars – Defamation Strikes Back

Andrew Ottaway, B.A. (Hons.), LL.B.Commercial Litigation, Injunction & Specific Performance, Summary Judgment0 Comments

In Motoretta v. Twist & Go Power Sports, the Plaintiff and Defendant are two rival GTA scooter stores, engaged in what the Judge called the “Toronto Scooter Wars”.  The Defendant’s Vespa dealership was terminated by the Canadian Vespa distributor.  The Plaintiff remained an authorized Vespa dealer.  The Plaintiff was suspicious that the Defendant had “bad-mouthed” it to customers on an ongoing basis.  In response, the Plaintiff hired private investigators to pose as customers at the Defendant’s store.  The private investigators recorded their conversations with the Defendant, which the Plaintiff alleged were defamatory. The Plaintiff scooter store brought an action for damages for defamation, and for a permanent injunction prohibiting the Defendant from further defaming the Plaintiff.  The action was determined by summary judgment. The Judge found that the Defendant’s statements to the private investigators had defamed the Plaintiff.  The Defendant argued that the statements did not meet the legal test of defamation because … Read More