International Sales Conventions Act, R.S.O. 1990, cI.10 | United Nations Convention on Contracts for the International Sale of Goods

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorCommercial, Conventions & Treaties, Cross-Border Litigation, Dealership Agreements, Distribution Agreements, Distributors | Dealers, International Distribution, International Sale of Goods, International Traders, Jurisdictional Challenges, Manufacturers | Re-Sellers, Of Interest to US Counsel, Sale of Goods, UNCITRAL0 Comments

Many international traders are not aware that the United Nations Convention On Contracts for the International Sale of Goods and the Convention On The Limitation Period In the International Sale of Goods are the law of Ontario, Canada, by virtue of the Ontario International Sales Conventions Act, RSO 1990, c I.10, that applies to contracts for the international sale of goods. While there are 92 parties, recent and pending entry of the United Nations Convention On Contracts for the International Sale of Goods into force in these jurisdictions should be noted*: Viet Nam on 01/01/2017; Azerbaijan on 01/06/2017; Fiji on 01/07/2018; Costa Rica on 01/08/2018; Cameroon on 01/11/2018; State of Palestine on 01/01/2019; Democratic People’s Republic of Korea on 01/04/2020; Liechtenstein on 01/05/2020; and Lao People’s Democratic Republic on 01/10/2020. *Authoritative information on the status of the treaties deposited with the Secretary-General of the United Nations, including historical status information, may be obtained by … Read More

When May an Academic Complaint be Brought to Court? Clarification from the Ontario Court of Appeal

Yona Gal, J.D., LL.MAdministrative Law, Contract Disputes, Jurisdictional Challenges0 Comments

In Lam v University of Western Ontario, 2019 ONCA 82, the Ontario Court of Appeal reiterated that courts have jurisdiction over claims for damages for breach of contract and tort even when the claims arose out of an academic dispute. Judicial History After commencement of the action by the student, the university brought a motion for summary judgment.  The principal basis for the motion was that the student’s claim related to the university’s decisions about teaching, mentoring, supervising and administering its Ph.D. program and therefore to matters that are “purely academic in nature” [para 22].  The motion judge granted summary judgment dismissing the action.  The motion judge held that academic issues must be distinguished from legal issues when reviewing a university’s conduct, and that academic issues are to be resolved by the university’s internal process, subject to judicial review [para 23]. In reversing the motion judge’s decision, the Court of … Read More

Dominican Republic Vacation Claim Examined in Di Gregorio v. Sunwing Vacations Inc.

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Commercial Contracts, Contract Disputes, Cross-Border Litigation, Jurisdictional Challenges, Negligence, Summary Judgment, Travel & Tour Operators, Travel & Tourism0 Comments

In Di Gregorio v. Sunwing Vacations Inc., the appellants purchased a vacation package to attend the Dreams Punta Cana Resort and Spa through their travel agent, Sunwing Vacations Inc. (“Sunwing”). While on vacation, the balcony railing gave way resulting in the appellants sustaining injuries. The motion judge was found to have erred in not conducting a jurisdictional analysis pursuant to Club Resorts Ltd. v. Van Breda. The Court of Appeal stated that the relevant connecting factor is that the claim pleaded was based on an Ontario contract. The alleged tortfeasors do not need to be party to the contract, as all that is required is that a “defendant’s conduct brings it within the scope of the contractual relationship and that the events that give rise to the claim flow from the contractual relationship” as stated in Lapointe Rosenstein Marchand Melancon LLP v. Cassels Brock & Blackwell LLP. The Court of … Read More

Court of Appeal Considers Ontario Labour Relations Board’s Jurisdiction, Limitation Periods in Class Actions

Peter Neufeld, B. Soc. Sc., J.D.Administrative Law, Appeals, Civil Litigation, Class Action Defence, Commercial, Employment, Employment & Wrongful Dismissal, Jurisdictional Challenges, Tribunals, Wrongful Dismissal0 Comments

In United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671 (“Quality Meat Packers”), the Ontario Court of Appeal considered (1) the Ontario Labour Relations Board’s (“OLRB”) jurisdiction to decide claims related to the wrongful dismissal of unionized employees; and (2) whether, in proposed representative proceedings under Rules 12.08 and 10.01, representation orders must be obtained during the limitation periods for the individuals’ claims.

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

Supreme Court Considers Jurisdiction and the Appropriate Forum in International Internet Defamation Claim (Haaretz.com v. Goldhar)

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Civil Litigation, Cross-Border Litigation, Defamation, Forum Challenges, Internet | Technology, Jurisdictional Challenges, Online Defamation0 Comments

In Haaretz.com v. Goldhar, 2018 SCC 28 (CanLII), the Supreme Court considered whether a defamation claim brought by the plaintiff in Ontario should be dismissed for lack of jurisdiction or, alternatively, for a more convenient forum.   The the plaintiff is a prominent Canadian businessman who owns a large real-estate investment company in Ontario. He also owns a popular professional soccer teams in Israel.  He is well known in Israel, maintains a residence there, and travels there every few months.  The corporate defendants publish a daily newspaper in Israel in both English and Hebrew, which is distributed in print and online.  The newspaper has a distribution of about 70,000 print copies in Israel. The individual defendants are the newspaper’s former sports editor and the author of the allegedly libellous article. The defendants published an article about the plaintiff’s ownership and management of the soccer teams in Israel.  The article also referenced … 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

UNCITRAL International Sale of Goods Convention – New Members in 2016 and 2017

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorCommercial and Contract Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Conventions & Treaties, Counterfeit Goods, Distribution Agreements, Distributors | Dealers, International Sale of Goods, International Traders, Jurisdictional Challenges, Manufacturers | Re-Sellers, Sale of Goods, UNCITRAL0 Comments

The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller in contracts for the international sale of goods, and the remedies for breach of contracts for the international sale of goods. Canada on accession to the CISG declared that, in accordance with article 93 of the Convention, the Convention would extend to Ontario (and other provinces named in the declaration). The Canadian International Sale of Goods Contracts Convention Act, S.C. 1991, c. 13, has been in effect in Ontario since 1992 because of the International Sale of Goods Act, R.S.O. 1990, c. I.10.  These two acts brought into effect in Canada the United Nations Convention on Contracts for the International Sale of Goods. The Ontario International Sale of Goods Act provides that the contracting parties “may … Read More

Court Considers Deemed Place of Contracting in Jurisdiction Analysis

Andrew Ottaway, B.A. (Hons.), LL.B.Business Law, Business Litigation, Civil Litigation, Contract Disputes, Contract Termination, Cross-Border Litigation, Forum Challenges, Franchise | Licensing, Franchise Law, Injunction & Specific Performance, Jurisdictional Challenges0 Comments

In We Serve Health Care LP v. Onasanya, 2018 ONSC 1758, the Applicant was a franchisor of home health care service providers.. The Applicant had its head office in Ontario and regional offices in various jurisdictions, including one in Saskatchewan.  The individual Respondent entered into a Franchise Agreement with the Applicant’s predecessor company granting her a license to operate a franchise in Saskatchewan.. She later assigned her rights under the Franchise Agreement to the corporation Respondent. The Applicant refused to renew the Franchise Agreement, resulting in a dispute.  The Applicant commenced an Application in Ontario for a declaration that the Franchise Agreement had expired and for a mandatory order that the Respondents comply with their post-expiry obligations under the Franchise Agreement. The Respondents brought a motion to stay the Application on the basis that the Ontario Court did not have jurisdiction.   The Applicant argued that the dispute was presumptively … Read More

China Signs Hague Convention on Choice of Court Agreements

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial and Contract Litigation, Commercial Law, Commercial Litigation, Cross-Border Litigation, Debt and Enforcing Judgments, Forum Challenges, Jurisdictional Challenges0 Comments

We previously wrote that Ontario had enacted the International Choice of Court Agreements Convention Act, 2017, which will give effect to the Hague Convention on Choice of Court Agreements (the “Hague Convention”) in Ontario once Canada ratifies the Hague Convention.  (Canada has not yet signed or ratified the Hague Convention.) Since our previous blog post, the People’s Republic of China signed the Hague Convention. China has not yet ratified the Hague Convention, which requires approval by the National People’s Congress. China’s signing of the Hague Convention represents an important step towards more widespread adoption of the convention. The lawyers are Gilbertson Davis have experience in international litigation and arbitration, and in interpreting international conventions.   Please contact us for an initial consultation.

Court of Appeal Provides Guidance on Whether Party Carrying on Business in Ontario as Basis for Jurisdiction

Andrew Ottaway, B.A. (Hons.), LL.B.Appellate Advocacy, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Sgromo v. Scott, 2018 ONCA 5, the Court of Appeal considered the scope of one of the presumptive grounds for jurisdiction of the Ontario Court: whether a party carried on business in Ontario.  The Defendants were incorporated in jurisdictions outside of Ontario.   The Defendants brought motions to stay or dismiss the subject actions. On the motion, the Plaintiff alleged that because the products of some of the Defendants were advertised, marketed, and distributed by third party retailers in Ontario, the Defendants were carrying on business in Ontario, such that Ontario had presumptive jurisdiction.  The motion judge rejected that argument. On appeal, the Court of Appeal agreed with the motion judge’s reasons, stating that: as set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), the Courts must be cautious when considering whether an entity is carrying on business in the jurisdiction, … Read More

Court of Appeal Considers Scope of Errors of Jurisdiction under Model Law on International Commercial Arbitration

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Arbitration, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Contract Disputes, Jurisdictional Challenges0 Comments

In Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939, the respondent was constructing a mine.  The appellant was contracted by the respondent to build a pipeline.  The construction contract contained a three stage dispute resolution process, being: 1) disputes were to be determined by the respondent’s supervising engineer; 2)  if the dispute was not resolved, it would be referred to adjudication by a sole adjudicator; and 3) if a party did not accept the adjudication, it could refer the dispute to arbitration pursuant to the International Commercial Arbitration Act, R.S.O. 1990, c. I.9, which incorporates the Model Law. Problems arose in the project.  The appellant alleged that the respondent had breached the contract.   The appellant sought an extension of the time for performance, compensation for its costs arising from delay, and compensation for additional work.   The appellant submitted its claims to the respondent’s engineer for … Read More

Ontario Court Finds Jurisdiction Resulting From Cumulative Effect of Individually Insufficient Connecting Factors

Andrew Ottaway, B.A. (Hons.), LL.B.Business Litigation, Civil Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Cross-Border Litigation, Forum Challenges, International Sale of Goods, Jurisdictional Challenges0 Comments

In Freshway Services Inc. v. CdEnviro Ltd., 2017 ONSC 6591, the plaintiff Ontario company contracted with the defendant Northern Irish company.  The defendant was to build a waste recycling facility and install it at the plaintiff’s facility in Ontario.  A third party to provide warranty coverage and servicing for components of the waste recycling plant, once it was built and delivered to Ontario.  A dispute arose between the parties, and the plaintiff sued the defendant in Ontario.  The defendant brought a motion to stay the Ontario action on the basis that Ontario lacked jurisdiction. The motion judge considered the the presumptive connecting factors for jurisdiction set out by the Supreme Court in Club Resorts Ltd. v Van Breda, 2012 SCC 17, being whether the contract was made in the Ontario: whether the defendant was carrying on actual business in Ontario; whether the defendant is resident in Ontario; or where the … Read More

Summary Judgment Granted in Multiple Proceedings Surrounding Enforcement of Italian Judgment

Bianca Thomas, B.Sc.(Hons.), J.D.Business Litigation, Commercial, Commercial Litigation, Cross-Border Litigation, Enforcement of Foreign Judgments, Jurisdictional Challenges, Summary Judgment0 Comments

The case of King v Lang Michener, 2017 ONSC 1917 (one of three related actions), began with a transaction that went awry. The Plaintiff, Gregory King, a lawyer at Aylesworth and later Gowling Lafleur Henderson LLP, acted in a transaction relating to a new hotel in China with an Italian company, Sincies Chiementin SpA (“Sincies”), and various other foreign individuals and businesses. Mr. King received a 5% interest in the hotel, and Aylesworth was to receive payment for legal fees. Sincies went bankrupt, and one of its assets, a $600,000.00 USD deposit, vanished. Sincies’ trustee in bankruptcy eventually sued Mr. King, among others, in Italy, to try to recover the money. Mr. King did not defend the Italian proceedings. The Italian court ruled against him, and ordered him to pay the deposit. Mr. King did not pay the judgment on the grounds that the Italian court lacked jurisdiction. Sincies’ trustee then … Read More

Supreme Court of Canada Narrowly Rules Facebook’s Jurisdiction Clause Unenforceable

Robert Kalanda, B.A. (Hons.), J.D.Commercial and Contract Litigation, Commercial Law, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Cyber Risks, eCommerce | Online Retail, Information Technology, Internet | Technology, Jurisdictional Challenges, Technology and Internet0 Comments

Facebook, and most other large social media and internet companies, set out in their terms of use that users of their services must bring any litigation disputes in the jurisdiction of their choice. However, in Douez v. Facebook, the Supreme Court of Canada has recently held, in a 4-3 decision, that Facebook could not enforce that clause against the plaintiff, a British Columbia woman complaining that their use of her photo and name in advertising breached her rights under British Columbia’s Privacy Act. Notably, the Privacy Act specifically requires that any action under that statute “must be heard” by the British Columbia Supreme Court. The majority held that while a jurisdiction clause is ordinarily enforceable, it could not be enforced in this instance as doing so would violate public policy, since the quasi-constitutional rights the statute provides and the exclusive jurisdiction to BC courts it requires means that the statute ought to be interpreted … Read More

Court Considers When Jurisdiction May be Found Against Sole Officer And Director of Foreign Corporation

Andrew Ottaway, B.A. (Hons.), LL.B.Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Law, Commercial Litigation, Corporate Litigation, Directors' and Officers' Liability, Jurisdictional Challenges0 Comments

In Olympique CMCT Inc. v Les Industries Pancor Limitée, 2017 ONSC 1929, the Plaintiff, Olympique, was a Quebec company. Olympique obtained default judgment in a Quebec action against the Defendants Pancor, an insolvent Ontario company, and Panarese, Pancor’s sole officer and director.    Olympique brought an action in Ontario seeking recognition and enforcement of the Quebec judgment against Panarese in Ontario.  Panarese argued that Ontario should not enforce the Quebec judgment because, among other reasons, the Quebec Court did not have jurisdiction to grant the Quebec judgment against him. Panarese lived in Ontario.  Pancor was primarily located in Ontario.  However, the Court stated that it was sufficient that Quebec had a real and substantial connection with the subject matter of the action, even if it had no connection with Panarese.  The Court found that Panarese signed purchase orders which were transmitted to Olympique in Quebec, meaning that the contracts between Pancor and … Read More

Federal Court Restricts Republication of Canadian Legal Decisions Under PIPEDA

Robert Kalanda, B.A. (Hons.), J.D.Civil Litigation, Commercial, Cross-Border Litigation, Cyber Risks, Jurisdictional Challenges0 Comments

In the recent decision of A.T. v. Globe24h.com, the Federal Court held that the respondent’s re-hosting of publically available Canadian legal decisions ran afoul of the Personal Information Protection and Electronic Documents Act‘s (PIPEDA’s) restriction on the collection, use, and disclosure of personal information without consent, prioritizing the personal information of individuals against the broad open court principle that would otherwise warrant the unrestricted publication of judicial decisions. The respondent operated a website out of Romania which focused on re-publishing judicial decisions which are already publically available through online services such as CanLII. The primary difference between the respondent and services like CanLII was that the respondent’s website was indexed such that its content would appear in search results on Google or other search engines, whereas decisions on CanLII are not indexed and would not appear on any search engine. Any person who collects, uses, or discloses personal information in respect of a … Read More