Shareholders’ Remedies under the OBCA: An Overview (Part 2/2) 

Janice Perri, B.A. (Summa Cum Laude)Business Law, Business Litigation, Civil Litigation, Closely-Held Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Corporate Disputes, Corporate Litigation, Directors' and Officers' Liability, Oppression Remedies, Partnership Dispute, Partnerships and Shareholder Disputes, Shareholder Disputes0 Comments

When a shareholder’s rights are breached, there are a variety of legal remedies available under the Ontario Business Corporations Act (“OBCA”). For more information on shareholders’ rights, please click here to see part 1 of this post. Oppression Remedy It is first important to note that as per the Ontario Court of Appeal decision Maurice v. Alles, the standard two-year limitation period set out in the Limitations Act applies to oppression remedy claims. The “clock starts to run” when the oppressive conduct first began, meaning that individuals must not delay if they wish to pursue an oppression remedy. The oppression remedy under s. 248 of the OBCA is broad in nature, and there is a large amount of judicial discretion afforded in its application. The oppression remedy can be an especially strong tool in protecting minority shareholders. When the Court determines that there has been oppressive conduct, unfairly prejudicial conduct, or conduct that disregards the interests of any shareholder it may make an order to resolve the matter in a variety of ways. … Read More

Partnership Disputes & Joint Venture Litigation

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer and ArbitratorArbitration, Civil Litigation, Closely-Held Business Disputes, Commercial, Commercial Arbitration, Commercial Law, Commercial List Matters, Commercial Litigation, Contract Disputes, Contract Termination, Directors' and Officers' Liability, Family Business Disputes, Joint Venture Disputes, Partnership Dispute, Partnerships and Shareholder Disputes, Shareholder Disputes, Start-Up Disputes0 Comments

Our lawyers have acted in Ontario and other jurisdictions for partners in small and mid-sized partnerships, and limited liability partnerships (LLPs) and contractual parties and partners in joint ventures. Partnership Disputes Partnership is a relationship between persons carrying on a business in common with a view to profit, which is not a corporation. It is one of the most commonly used business associations for small and medium-sized business. A partnership can be created at law and the Partnerships Act, R.S.O. 1990, c. P.5 sets out rules for determining existence of partnership, though commonly the parties enter into a partnership agreement. Joint Venture – Is it a Partnership? 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. While invariably created by contractual agreement, some … Read More

Joint Venture Disputes and International Joint Venture Arbitration

David Alderson, LL.B, LL.M (Commercial and Corporate), 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

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

David Alderson, LL.B, LL.M (Commercial and Corporate), 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

David Alderson, Panelist on Law Society of Upper Canada Annotated Partnership Agreement 2015 CDP

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer and ArbitratorBusiness Litigation, Closely-Held Business Disputes, Contract Termination, Cross-Border Litigation, International Joint Venture, Joint Venture Disputes, Partnership Dispute, Partnerships and Shareholder Disputes, Wrongful Dismissal0 Comments

David Alderson, of Gilbertson Davis LLP, will be a panelist at the Law Society of Upper Canada Continuing Professional Development program, The Annotated Partnership Agreement 2015, on September 29, 2015 (alternate date, November 20, 2015) on the panel entitled “Review of the Differences (Legal and Drafting) Between a Partnership and a Joint Venture – Understanding the Significant Consequences”. Moderator of the panel (and Chair of the program) is Alison Manzer, Cassels Brock & Blackwell LLP and co-panelist is Sunita Doobay, TaxChambers LLP. David Alderson, LL.B (Osgoode), LL.M (Lond.) is a commercial litigator with Toronto insurance and commercial litigation firm Gilbertson Davis LLP. He holds a Master of Laws degree in commercial and corporate law and has been admitted to practice in England & Wales, Bermuda and New York State, as well as Ontario. David has practised local law in England, Bermuda, Dubai and Ontario, in diverse business and commercial litigation practice … Read More

Court of Appeal on Restrictive Covenant on Dissolution of Partnership

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer and ArbitratorBusiness Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes, Contract Termination, Joint Venture Disputes, Partnership Dispute, Partnerships and Shareholder Disputes0 Comments

The Court of Appeal for Ontario released its decision on February 11, 2014, in  Greenaway v Sovran 2014 ONCA 110 on the appeal by a “withdrawing” partner  of a two-member firm from the decision of the Superior Court of Justice on an application to determine the enforceability of a “restrictive covenant” in their partnership agreement. The application judge found that the two-member firm partnership had been dissolved and declared the restrictive covenant unenforceable as a penalty, but directed a trial of an issue to determine the damages payable by the appellant as a result of a breach of the portion of the portion of the covenant he found valid and severable – the withdrawal having triggered a clause in the agreement which called for the reduction of the withdrawing partner’s capital account “by 500% of the average fees billed by the firm to clients who transfer to the withdrawing partner within 24 … Read More