Ontario Court Affirms “Generous and Liberal Approach” to the Recognition/Enforcement of Foreign Judgments

Josef FinkelCross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Judgments0 Comments

In the recent decision, M1 Florida Developments Inc. v. Ameristar Development Corporation, 2021 ONSC 6883 (CanLII), the Ontario Superior Court of Justice (“OSCJ”) granted the plaintiffs default judgment in Ontario for the registration and enforcement of a judgment that the plaintiffs obtained in the United States of America (the “Foreign Judgment”). The OSCJ advised that Canadian courts “have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments”. Further, the OSCJ opined that the purpose of an action for the recognition of a foreign judgment “is to assist in enforcing an already-adjudicated dispute” and is not “to evaluate or re-litigate the underlying claim”. The OSCJ was satisfied that the foreign court “properly assumed jurisdiction over the dispute” and noted that a Canadian court “will generally recognize and enforce a foreign judgment where the foreign court assumed jurisdiction on the same basis as the domestic court would”. … Read More

Recognition of Foreign Judgments – Supreme Court Leaves Determination of Enforceability of “Ricochet Judgments” for another day – Update on Previous Blog

Josef FinkelAppeals, Business Litigation, Civil Litigation, Commercial Litigation, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Judgments0 Comments

This is an update on our blog, Recognition of Foreign Judgments – The Ontario Courts will not Recognize Enforcement Orders (a.k.a. “Ricochet Judgments”), regarding the Superior Court decision in H.M.B. Holdings Ltd. v. Attorney General of Antigua and Barbuda, 2021 ONSC 2307 (CanLII). That decision has been appealed up to the Supreme Court of Canada (“SCC”), which has now also rendered its decision. In dismissing the appeal, the SCC agreed with the application judge, and with the Court of Appeal, that Ontario’s Reciprocal Enforcement of Judgments Act (the “Act”) bars the plaintiff (appellant) from registering a default judgment that it obtained in British Columbia to enforce a judgment granted by the Judicial Committee of the Privy Council. The SCC advised that the Act only applies to (1) reciprocating jurisdictions, such as British Columbia, and (2) judgments or orders of a court in a civil proceeding where a sum of money … Read More

Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCivil Litigation, Commercial, Commercial Litigation, Summary Judgment0 Comments

Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge[i] David Alderson[ii], Senior Counsel – Commercial Litigation, at Gilbertson Davis LLP, co-counsel for the 13 plaintiffs (one of which was Mauldin), that responded to the appeal to the Supreme Court of Canada in Hryniak v. Mauldin[iii], that responded below to the appeal in the Ontario Court of Appeal, and that obtained summary judgment in the Ontario Superior Court of Justice, being the judgment which was appealed, has written two chapters of the Annual Review of Civil Litigation[iv], which if read together comprise a seven year survey of the appellate cases across Canada considering Hryniak and summary judgment. The chapter entitled Sentinels of the Hryniak Culture Shift: Four Years On[v], included in the Annual Review of Civil Litigation 2018[vi] covers appellate cases for the first four years following the Supreme Court of Canada decision. The second chapter Emerging Burdens of the Summary Judgment Motion … Read More

Breach of Agreement of Purchase and Sale – What are Your Options?

Josef FinkelCivil Litigation, Commercial and Contract Litigation, Contract Disputes, Contract Termination, Real Estate Litigation0 Comments

The Ontario Court of Appeal (ONCA) in Ching v. Pier 27 Toronto Inc., 2021 ONCA 551 (CanLII), recently outlined the options an innocent party to an agreement of purchase and sale (APS) has upon the other party breaching (i.e. repudiating) the APS. General Principles Repudiation is the refusal of one party to an APS to abide by the terms of the APS. Repudiation by one party does not in itself result in the termination of the APS. Rather, repudiation provides the innocent party (i.e. the non-repudiating party) to the APS with the following choices: Accept the repudiation (i.e. disaffirm the APS); or Treat the APS as subsisting (i.e. affirm the APS). The innocent party generally has a reasonable period of time to choose whether to disaffirm or affirm the APS. However, waiting too long may result in a court determining that the APS has been affirmed. During this reasonable waiting … Read More

Supreme Court of Canada Clarifies Duty Of Honest Performance In Contractual Relationships

Sabrina Saltmarsh, B.A. (Hons), J.D.Business Disputes, Commercial, Commercial Condos, Commercial Contracts, Commercial Litigation, Condo Litigation, Construction Liens, Contract Disputes0 Comments

In the decision of C.M. Callow Inc. v. Zollinger, 2020 SCC 45, the Supreme Court of Canada (SCC) expands on the scope of the duty of honest performance in contractual relationships, previously established by the SCC ruling in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494. Our firm previously blogged about the Court of Appeal Ruling in this case. See the previous blog here. The case concerns a breach of contract claim made by the Plaintiff. The Plaintiff is a company that provides maintenance services to condominium communities. The Defendants, a group of condominium corporations, had winter and summer maintenance contracts with the Plaintiff that renewed every two years. The contracts originated in 2012 and ran to 2014. In March or April of 2013, the Defendants decided to terminate the winter contract but they did not provide notice of their intention to terminate until September of 2013. The Defendants delayed … Read More

Reinsurance Arbitrator and Mediator

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Arbitrators, Brokerage Arbitrator, Commercial, Commercial Arbitration, Commercial Arbitrator, International Commercial Arbitrator, Reinsurance Arbitrator0 Comments

David Alderson has reinsurance law practice experience in Canada, Bermuda and London, England, and offers appointment as a sole arbitrator and panel arbitrator in both domestic and international reinsurance arbitration. He is an experienced, independent and qualified arbitrator.  David has been appointed sole arbitrator by the Ontario Superior Court of Justice in commercial arbitration matters and regularly sits as an arbitrator in commercial arbitration. Click here for Reinsurance Arbitrator webpage. Background David Alderson has acted for and represented ceding insurers, reinsurers, retrocessionaires, brokers and other intermediaries and has provided coverage and claims advice and representation in relation to many types of reinsurance agreements and arrangements, including quota share, excess of loss, treaty and facultative agreements. He has advised and acted in a wide range of reinsurance matters. His preferred reinsurance arbitration appointments include, but are not limited to, aviation risks, broker’s liability, catastrophe, directors’ and officers’ liability, environmental coverage, marine … Read More

Recognition of Foreign Judgments – The Ontario Courts will not Recognize Enforcement Orders (a.k.a. “Ricochet Judgments”)

Josef FinkelBusiness Litigation, Civil Litigation, Commercial and Contract Litigation, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Judgments0 Comments

In H.M.B. Holdings Ltd. v. Attorney General of Antigua and Barbuda, 2021 ONSC 2307, on a summary judgment motion, the Ontario Superior Court of Justice (“OSCJ”) found that there was no genuine issue requiring a trial and subsequently dismissed the plaintiff’s action (commenced on May 6, 2019) for the recognition of a money judgment that it obtained against the defendant in British Columbia in 2017 (“BC Judgment”). The BC Judgment was a default judgment recognizing and enforcing a judgment of the Privy Council of the United Kingdom which the plaintiff obtained in 2014 (“Privy Council Judgment”). The defendant argued that: The plaintiff was attempting to avoid seeking recognition and enforcement of the original Privy Council Judgment in Ontario by seeking to recognize and enforce the derivative BC Judgment instead; The plaintiff would be out of time to seek recognition of the Privy Council Judgment in Ontario (because of the expiry … Read More

Case Management Arbitrator – Arbitration | Motion Arbitration and Discovery Dispute Arbitration

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Case Management Arbitrator, Commercial Arbitration, Commercial Arbitrator, Commercial Litigation0 Comments

Access to Justice  The courts in Ontario continue to address access to justice in the time of the coronavirus, providing a triage process to determine which matters are considered urgent and should be heard.  Video conference arrangements in the courts have evolved.  We are mindful that both criminal and family law matters are likely to take priority both now and when traditional hearings become available post-coronavirus. Case Management Arbitration | What Can be Agreed to be Referred to Arbitration? We have been offering “case management” arbitration and “case management” arbitrators throughout the pandemic. Moving court-based litigation to arbitration can include the entire contemplated proceedings;  the remaining proceeding if court-based litigation has been commenced; or only procedural parts / interlocutory steps of the proceedings, such as: pleadings motions; document production and discovery issues; undertakings and refusals motions; other procedural motions; and while at the same retaining the parallel court-based proceedings for … Read More

Experienced Commercial Arbitrator with Reasonable Hourly Fee Rate

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCommercial, Commercial Arbitration, Commercial Lease Arbitrator, Condo Arbitrator, Construction Arbitrator, Distribution Arbitrator, Employment Dispute Arbitrator, Energy Arbitrator, Franchise Arbitrator, Infrastructure Arbitrator, International Commercial Arbitrator, International Joint Venture Arbitrator, Internet Arbitrator, Investment Arbitrator, IT Arbitrator, Joint Venture Arbitrator, Licensing Arbitrator, Marine Arbitrator, Maritime Arbitrator, Partnership Arbitrator, Partnership Dispute Arbitrator, Real Estate Arbitrator, Reinsurance Arbitrator, Sale of Business Arbitrator, Sale of Goods Arbitrator, Shareholder Arbitrator, Shareholder Dispute Arbitrator, Technology Arbitrator, Transportation Arbitrator0 Comments

David Alderson – Experienced Commercial Arbitrator with Reasonable Hourly Fee Rate of $375.00, plus Facilities and H.S.T. Experienced and Qualified Commercial Arbitrator David has been accredited by the ADR Institute as Canada as a Qualified Arbitrator (Q.Arb). He accepts appointments as a commercial, international commercial, business dispute, real estate, commercial leasing, construction, condo, technology, marine, reinsurance  and employment arbitrator, at reasonable hourly rates and with good availability. David has acted as counsel in both domestic and international arbitration, including institutional and ad hoc arbitration.  David has completed the Foundations in Judicial Competencies Series, and has been granted a Certificate of Completion by the Ontario Bar Association. Trusted Arbitrator Appointed by the Court and by Agreement of Parties The Ontario Superior Court of Justice has appointed David as sole arbitrator in commercial arbitration matters.  On other occasions his appointment has been mutually agreed by the parties and their respective legal counsel. Membership and Arbitrator … Read More

Commercial Mediator, David Alderson

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAlternative Dispute Resolution (ADR), Business Mediation, Business Mediator, Commercial, Commercial Mediation, Commercial Mediator, Commercial Mediators, Contract Dispute Mediation, Cross-Border Mediator, Distribution Mediator, Employment Mediator, Franchise Mediator, Mediation, Mediators, Technology Mediator0 Comments

Need a Commercial Mediator? Good Availability | Fair and Reasonable Fees David Alderson is a Commercial Mediator: Hourly Rate: $375.00 per hour, plus facilities and applicable taxes. Daily Rate: $3,500 for 6 hour day and 3 hour preparation, plus facilities and applicable taxes. Language: English Commercial Mediator – Approach to Resolving Disputes David Alderson seeks to be a resolver, an effective mediator, by being an interactive listener, a facilitator of communications and negotiation, and when the parties to a dispute require it, a neutral evaluator. With over 38 years of practice as a lawyer in a very wide variety of business, commercial, trade, property, distribution and franchise, technology, employment, reinsurance and marine disputes, both in local and international practices, David brings to the mediation a broad competence in facilitating the process, assisting parties to articulate their interests and to define the issues, and in subject matter neutral evaluation. He is equally at home in … Read More

Breach of Contract Lawyers – Can Contracts that do not Specify Duration or that Lack a Termination Clause be Terminated Unilaterally?

Josef FinkelBusiness Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Termination0 Comments

Ontario’s Court of Appeal (“ONCA”) in Conseil Scolaire Catholique Franco-Nord v. Nipissing, 2021 ONCA 544 opined on how contracts that do not specify a termination date or a procedure for termination ought to be interpreted. The ONCA grappled with the question of whether to treat a contract that was silent on the issue of termination as either (1) a perpetual contract, that does not end, or (2) a contract of indefinite duration, into which the court can imply a provision allowing for unliteral termination upon reasonable notice. Historical Approach The ONCA advised that courts used to presume that contracts which were indefinite in time were perpetual in nature. However, this approach was subsequently disregarded, and courts began to presume a right to terminate an indefinite contract by the provision of reasonable notice. New Approach The ONCA advised that even more recently, however, a contextual, fact-specific, approach has been favoured by … Read More

Court of Appeal Upholds Judicial Ruling Recognizing Anti-Black Racism in Commercial Lease Dispute

Sabrina Saltmarsh, B.A. (Hons), J.D.Commercial, Commercial Contracts, Commercial Leasing, Commercial Litigation, Contract Disputes, Injunction & Specific Performance0 Comments

In the recent Court of Appeal decision of 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021 ONCA 371, the Court of Appeal upheld a Superior Court ruling made against a commercial landlord which made note of anti-black racism against the tenant and granted relief from forfeiture based on principles rooted in equity, sparing the tenant from eviction. See our blog regarding the original ruling. In this case the landlord of a commercial plaza unit, sought to evict a husband-and-wife team of restauranteur tenants who ran an African/Black/Caribbean restaurant, catering service and bar. The Landlord’s position was that the tenant had failed to give proper notice with respect to their option to renew and was subsisting in the unit as an overholding tenant. The tenant brought an application before the court for relief from forfeiture and sought the courts assistance in exercising it’s right to continue occupying the … Read More

Ontario’s Commercial Mediation Act and Institutional Mediation Rules

Josef FinkelArbitration, Civil Litigation, Commercial and Contract Litigation, Mediation, Mediators0 Comments

Further to our blogs (Part I, Part II, and Part III) on Ontario’s Commercial Mediation Act, 2010, S.O. 2010, c. 16, Sched. 3 (the “Act”), where we provided an outline of the various sections of the Act, this blog endeavours to neutrally highlight some, but not all, of the major differences between the Act and some of the popular institutional mediation rules. In particular, we contrast the Act with the following institutional mediation rules: ADRIC National Mediation Rules, ICC Mediation Rules, WIPO Mediation Rules, and LCIA Mediation Rules (collectively the “Rules”). This blog does not attempt to outline any of the similarities between the Act and the Rules, though some similarities may surface within the blog nonetheless. Rather, this blog serves only to impartially outline differences between the Act and the Rules. Application The Act applies automatically to any mediation of a commercial dispute, subject to a number of exceptions … Read More

Purchaser Breached Agreement of Purchase and Sale? Damages Awards and Importance of Mitigation

Josef FinkelAppeals, Civil Liability, Civil Litigation, Commercial and Contract Litigation, Real Estate Litigation, Summary Judgment0 Comments

In the Court of Appeal’s (“ONCA”) recent decision Tribute (Springwater) Limited v. Atif, 2021 ONCA 463 (CanLII) the ONCA clarifies the law regarding damages and mitigation in cases involving aborted real estate transactions. This decision involves an appeal from a summary judgment granting the plaintiff seller damages for the defendant purchaser’s failure to close a residential real estate transaction. Damages The ONCA advises that damages in a failed real estate transaction are generally determined “based on the difference between the agreed sale price under the parties’ agreement of purchase and sale and the market value of the property at the date set for closing”. Depending on context, a court may choose a different date, other than the date for closing. There may also be other damages, such as carrying costs and other expenses incurred by the plaintiff while holding the property for a subsequent sale. Mitigation The ONCA states that … Read More

When Construction Contracts Go Awry: Ontario’s New Construction Contract Adjudication Regime

Sabrina Saltmarsh, B.A. (Hons), J.D.Commercial Litigation, Construction | Builders, Construction Equipment & Machinery, Construction Liens, Construction Litigation, Contract Disputes, Cottage Litigation, Professional Liability, Recreational Property Litigation0 Comments

Construction contracts come with expectations and potential risks to property owners and contractors. Property owners can face issues related to quality of workmanship, delays, and incomplete or abandoned work. Contractors (including sub-contractors) can deal with a myriad of problems which delay or hinder payment, including issues with other sub-trades, the general contractor, or the owner. Whether you are a property owner undertaking construction or renovations, or a contractor (or sub contract) who has been engaged on a project, if things don’t go as planned it’s important to know what your options for recourse may be. A newly established cost-effective adjudication regime has become an important option to consider. Want to learn more about how to protect yourself from a home renovation disaster? Check out our blog. With the Ontario Legislature’s ratification of the new Construction Act, prompt payment and adjudication came into effect on October 1, 2019. The new legislation … Read More

Contract Lawyers – The Duty of Good Faith – Update on Bhasin v Hrynew

Josef FinkelBusiness Law, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Corporate Litigation0 Comments

The Supreme Court of Canada (SCC) recently released its decision in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 (CanLII) which clarifies the operation of the duty to exercise contractual discretion in good faith described in the seminal case, Bhasin v. Hrynew, 2014 SCC 71 (CanLII), [2014] 3 SCR 494. The SCC confirms that where a party exercises a discretionary power under a contract, it must do so in good faith (meaning that parties must exercise their contractual duties honestly, reasonably, and not capriciously or arbitrarily). If a party violates the duty of good faith, the contract is breached. The SCC opined that the following question must be asked when deciding if a party breached the duty of good faith: Was the exercise of contractual discretion unconnected to the purpose for which the contract granted discretion? If the answer is yes, then the party has … Read More

Condo Arbitration, Condo Litigation, Condo Oppression Claims, and Piggybacking

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Arbitrators, Commercial, Condo Arbitrator, Condo Litigation, Moving Litigation to Arbitration, Oppression Remedies, Real Estate Arbitrator0 Comments

As a Condo Dispute Arbitrator, I am very interested when the Court of Appeal for Ontario addresses an appeal concerning an arbitration clause in a condominium document and a motion to stay Superior Court proceedings in favour of arbitration. The Case In the very recent decision Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360, the Court of Appeal for Ontario, allowed an appeal from the order of the motion judge dismissing the appellants’ motion to stay an application in favour of arbitration. The dispute concerned a cost-sharing agreement (“Reciprocal Agreement”), wherein the parties agreed to contribute to the costs of the operation and maintenance of defined Common Facilities.  A dispute arose as to the amounts due under the Reciprocal Agreement, which contained this arbitration clause: “The validity, construction and performance of this Agreement shall be governed by the laws of the Province … Read More