Joint Venture Disputes and International Joint Venture Arbitration

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Commercial Arbitration, Contract Disputes, Cross-Border Litigation, Enforcement of Foreign Arbitral Awards, International Distribution, International Joint Venture, International Sale of Goods, International Traders, Joint Venture Disputes, Jurisdictional Challenges, Of Interest to US Counsel, Partnership Dispute, Partnerships and Shareholder Disputes0 Comments

Joint ventures are often established to synergize what each member of the joint venture can add to the consortium. Sometimes a joint venture is the structure chosen because those members engaged in the joint venture are located in different jurisdictions, a consideration which may be pivotal for its success. While invariably created by contractual agreement, some joint ventures have been held by the courts to be a partnership, while others have been determined to be merely contractual, without comprising a partnership. A myriad of considerations have been used by the courts in determining whether a joint venture is a partnership. Issues have also arisen concerning the management and operational structure of a joint venture and whether such structure necessarily results in the joint venture being found to comprise a partnership. Historically the distinction between partner and contractor has been important, since the law only imposed a fiduciary duty upon partners, and not … Read More

Court of Appeal Provides Guidance on “Forum of Necessity” Doctrine

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

In Arsenault v. Nunavut, 2016 ONCA 207, the Plaintiff commenced a lawsuit in Ontario regarding an employment dispute with the defendant, the government of the Canadian territory of Nunavut.  The motion judge concluded that Ontario did not have jurisdiction over the dispute because the dispute did not have a “real and substantial connection” with the province of Ontario, and that Nunavut was clearly the more appropriate forum to hear the dispute.  The Plaintiff appealed, arguing that the motion judge had not properly considered whether Ontario was the “forum of necessity” – i.e. the doctrine allowing the Court to assume jurisdiction over a dispute, even though there is no “real and substantial connection” with Ontario, because there is no other forum in which the plaintiff can reasonably seek relief (see our previous posts regarding the doctrine of “forum of necessity” here and here). The Court of Appeal dismissed the Appeal.  The Court of Appeal noted … Read More

Gilbertson Davis LLP Panelists at 2016 Cyber Insurance Webinar

Robert Kalanda, B.A. (Hons.), J.D.Cyber Risks, Insurance, Of Interest to US Counsel0 Comments

John Davis and Robert Kalanda, of Gilbertson Davis LLP, were co-presenters at The Knowledge Group’s recent Webcast ‘Cyber Insurance: Latest Developments in 2016‘, on March 21, 2016. The panel also included Barry Fleishman of Kilpatrick Townsend & Stockton LLP and Jamie Hull of Cassiday Schade LLP. The webinar focused on issues and developments of interest to both Canadian and United States businesses,  insurers, organizations,  claims professionals, adjusters, and risk managers who are involved with Cyber Insurance Coverages under Standalone Cyber and more traditional insurance policies, and  Cyber Risks, Data Breach, Information Security, Cybersecurity and Privacy issues. The panel discussed the judicial, legislative and regulatory developments as well as important considerations  bearing on Applications for Cyber policies, including identification and prioritization of risks and exposures, the impact of  conditions and exclusions, and the role of counsel as part of the data breach and Cybersecurity response team. John L. Davis is the Managing Partner of … Read More

Ontario Court Provides Jurisdiction Analysis of Place of Contract and Carrying on Business in Ontario

Andrew Ottaway, B.A. (Hons.), LL.B.Commercial, Contract Disputes, Cross-Border Litigation, Of Interest to US Counsel0 Comments

In Re: Essar Steel Algoma Inc. et al, 2016 ONSC 595, an Ontario steel company, Essar, entered into a plan under Canada’s Companies’ Creditors Arrangement Act (“CCAA”, a Canadian corporate bankruptcy proceeding). As part of its restructuring, Essar entered into a contract with a U.S. supplier, Cliffs.  A dispute arose between Essar and Cliffs regarding the contact.  Essar brought a motion in the CCAA proceedings seeking, among other things, a declaration that Cliffs had to continue supplying under the contract.  In response, Cliffs brought a motion seeking to dismiss Essar’s motion on the basis that the Ontario did not have jurisdiction or that Ontario was not a convenient forum. The Ontario Court applied “real and substantial connection” test set out by the Supreme Court of Canada in Van Breda, and considered i) whether the contract was made in Ontario and ii) whether Cliffs carried on business on Ontario.  With respect to i), the Court … Read More

Enforcement of Ontario Judgment in US (U.S.A and American States)

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Casino Debt Recovery, Civil Litigation, Commercial Arbitration, Commercial Litigation, Creditors Rights, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Forum Challenges, Jurisdictional Challenges, Loan and Guarantee, Of Interest to US Counsel0 Comments

If you are looking for Enforcement of US Judgment in Ontario, Canada, then click here. ____ Enforcement of Ontario Judgment in US (U.S.A and American States)  We sometimes act for clients in litigation against defendants located in an American state, or having assets located in one or more U.S. states. Other times we are retained simply to assess and / or seek enforcement of an Ontario or other Canadian judgment in an U.S. state. Accordingly, the consideration sometimes arises whether a money judgment obtained in a court of Ontario or Canada is readily enforceable in a particular US state. Neither Ontario nor Canada is a party to any bilateral enforcement of money judgement treaty or convention with the U.S. or any particular state in the U.S..  However many U.S. states have enacted statutes concerning the enforcement of foreign (including Ontario and Canada) money-judgments in that state. Since this is largely … Read More

In Jurisdiction Dispute, Court of Appeal Confirms Contract Made Where Acceptance Received

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

In Eco-Tec Inc. v. Lu, the Plaintiff Ontario company researched, developed and manufactured proprietary technology and products.  The Defendants were Lu, a Canadian citizen, his BVI company and three Chinese companies owned by him or his parents.  The Defendant companies were the Plaintiff’s consultant, agent or distributor in China.  In the course of their relationship, the Plaintiffs and Defendants signed a number of agreements. The Plaintiff ended its relationship with the Defendants in 2012, alleging that the Defendant’s Chinese companies were selling clones of the Plaintiff’s product in China.  The Plaintiff brought a claim for breach of confidence, breach of contract, breach of fiduciary duty, conspiracy, unjust enrichment and/or unlawful interference with its economic interests.  The Defendants brought a motion to dismiss the Ontario action on the basis that the Ontario Court did not have jurisdiction.  The motion judge dismissed the motion, finding, among other reasons, that the dispute was connected … Read More

Ontario Court Rejects Forum of Necessity Argument

Andrew Ottaway, B.A. (Hons.), LL.B.Cross-Border Litigation, Negligence, Of Interest to US Counsel, Slip & Fall, Travel & Tour Operators0 Comments

In Cook v 1293037 Alberta Ltd., the Ontario Plaintiff was allegedly injured in an incident at the Defendant’s Alberta hotel.  The Plaintiff commenced an action in Ontario respecting the incident nearly two years after the incident occurred.  The Defendant brought a motion to dismiss the Ontario action on the grounds that Ontario did not have jurisdiction over the claim.  By the time the Defendant brought the motion, more than two years had passed since the incident. The Ontario Court applied the test for jurisdiction simpliciter set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda – i.e. whether the claim had a “real and substantial connection” to Ontario.  The Plaintiff argued that the Defendant corporation was “domiciled or resident in Ontario” because one of the corporation’s directors had moved to Toronto, Ontario following the incident.  The Court rejected this argument, stating that there was no evidence that the … 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

Supreme Court Clarifies Jurisdiction Requirements for Enforcement of Foreign Judgments

Robert Kalanda, B.A. (Hons.), J.D.Appeals, Commercial Law, Cross-Border Litigation, Enforcement of Foreign Judgments, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Chevron Corp. v. Yaiguaje, the Supreme Court of Canada clarified the jurisdictional requirements for an Ontario court to consider a proceeding to enforce a foreign judgment. In this case, the plaintiffs obtained judgment against Chevron Corp. in Ecuador for some $9.5 billion USD, and they sought to enforce that judgment in Canada, against both Chevron Corp. and the Canadian subsidiary, Chevron Canada. In a unanimous decision, the Supreme Court confirmed that the plaintiff does not have to show a real and substantial connection between Ontario and the foreign judgment debtor. The court need only be satisfied that there is a real and substantial connection between the foreign court and the defendant when the foreign court issued its judgment. Ontario courts will have jurisdiction over a foreign defendant in an enforcement proceeding as long as the defendant was properly served. It is not even a requirement that the defendant have assets in Ontario prior … Read More

Court Declines Jurisdiction over New York MVA Despite Passed Limitation Period

Robert Kalanda, B.A. (Hons.), J.D.Civil Litigation, Cross-Border Litigation, Insurance, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Mannarino v The Estate of Jane Brown, the Superior Court declined to take jurisdiction over a claim involving a motor vehicle accident that took place in New York, even though the limitation period for bringing a claim in New York had since passed. The plaintiff was a passenger in a vehicle in the state of New York, and was involved in a car accident with another New York driver. The plaintiff sued in Ontario, claiming in part that the injuries suffered exacerbated an earlier motor vehicle injury which was already properly before the courts in Ontario. The plaintiff argued that the nature of the injuries would require the two actions to be consolidated. The court noted that no consolidation motion had yet been brought. Justice Skarica considered the factors outlined in Club Resorts Ltd. v. Van Breda for the court to take jurisdiction over a claim. The court found that none of … Read More

Data Breach Claims in U.S. and Canadian Courts

Robert Kalanda, B.A. (Hons.), J.D.Information Technology, Of Interest to US Counsel0 Comments

As data breaches become more and more prevalent, customers are finding themselves at greater and greater risk of having their personal information improperly disclosed or stolen. When it does happen, thousands or millions of users may be exposed to identity theft. A recurring question for the courts is, in the absence of actual identity theft, how does one quantify the damages of this “increased risk” when the risk has not actually materialized? This question has been looked at by both Canadian and American courts, and they have arrived at similar but distinct positions. United States In the United States, standing to commence a lawsuit is governed by Article III of the Constitution, and requires the plaintiff to have suffered an “injury in fact”. Equally importantly, where there is no such standing, class proceedings where no actual damages have been sustained are not normally certified. The application of this to data … Read More

Bad Faith Claims against Canadian Liability Insurers: Sober Second Thought

R. Lee Akazaki, C.S., B.A. (Hons.), J.D.Civil Litigation, Commercial Law, Contract Disputes, Cross-Border Litigation, Insurance, Of Interest to US Counsel0 Comments

No aspect of insurance defence counsel’s tripartite retainer with an insured and a liability carrier more frequently strains the divided loyalty more than the over-limits exposure.  Whether it is an automobile policy responding to a catastrophic bodily injury claim, or a general liability policy building collapse or fire attributed to the carelessness of a tradesperson, the cost of indemnity has increased dramatically in relation to standard million-dollar policy limits.  Those limits have not changed in Canada for over a decade. It is a matter of economic conflict between two independent markets.  In a competition for premiums, underwriters have failed to market increases in policy limits, while medical and rebuilding costs for commercial buildings have soared.  This simple divergence of demand-and-supply curves has many ramifications for tort law in Canada.  Here, I discuss one issue, the rise and apparent panic in the insurance industry over the importation of an American doctrine … Read More

Court of Appeal Overturns Motion Decision on Forum Non Conveniens

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Bouzari v. Bahremani the Defendant Bahremani (the “Defendant”) had brought a motion to stay the Ontario action on the basis that Ontario was forum non conveniens.  The motion judge dismissed the motion, and the Defendant appealed to the Ontario Court of Appeal. The Plaintiff had sued the Defendant for alleged events claimed were alleged to have taken place in Rome, Italy and Tehran, Iran.  The Plaintiff lived in Vienna, Italy and England, before moving to Canada.  The Defendant was a citizen of Iran, with no connection to Canada.  When the action was commenced, the Defendant was living in England.  By the time the Defendant commenced the forum non conveniens motion, the Defendant had returned to Iran and could not travel to Canada.  Also, the Defendant had previously attempted to obtain a visa to enter Canada unsuccessfully on two occasions. The parties agreed that the action could not proceed in Iran.  The Defendant argued that England was … 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

Service of Foreign Process (including U.S. Proceedings) in Ontario, Canada

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorCasino Debt Recovery, Cross-Border Litigation, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Forum Challenges, International Distribution, International Joint Venture, International Sale of Goods, Jurisdictional Challenges, Of Interest to US Counsel, Travel & Tour Operators, Travel & Tourism0 Comments

Since 1989 Canada has been a member of Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, (the Hague Service Convention). The Hague Service Convention requires its member States to designate a “Central Authority” to accept incoming requests for service. The Central Authority in Canada, on the federal level, is the Attorney General for Canada, and the Central Authority on the provincial level, in Ontario is the Attorney General, the Ministry of the Attorney General or the Minister of Justice. In Ontario, service of foreign proceeding under the Hague Service Convention requires that a completed Request for Service Abroad of Judicial or Extrajudicial Documents Form together with the prescribed number of originating process documents and prescribed fee to the Ministry of the Attorney General for Ontario. There are alternatives to the Hague Service Convention service of foreign process in Ontario. If you are seeking advice or … Read More

Court of Appeal Refuses to Exercise Long-Arm Jurisdiction

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Cross-Border Litigation, Of Interest to US Counsel0 Comments

In West Van Inc. v. Daisley,  the Motion Judge found that the claim did not have a “real and substantial connection” to Ontario to give the Ontario Courts jurisdiction.  The Plaintiff, a Canadian company, was suing an American lawyer for work he had done for the Plaintiff company in the U.S. The Court of Appeal considered whether the Court should exercise jurisdiction under the “forum of necessity” exception; the Ontario Courts may assume jurisdiction over a case which it otherwise would not if there is no other forum where the Plaintiff can “reasonably” sue. The Plaintiff argued that it could not reasonably sue the American lawyer in North Carolina because it could not find a lawyer to represent it there.  The Plaintiff had called lawyers in two of North Carolina’s largest cities, but none would agree to take the case.  The Court of Appeal was not satisfied that the difficulty in … Read More