The Supreme Court’s recent decision in Google Inc. v. Equustek Solutions Inc. has approved the use of a worldwide injunction directing Google to de-index the defendant’s website used to facilitate the sale of goods in violation of the Equustek’s intellectual property rights. Equustek obtained an interlocutory injunction against the website owner directly, however the defendant left Canada, refused to comply with the order, and continued to sell products on their website from an unknown location. To help prevent or reduce further ongoing harm, Equustek sought for Google to de-index the site, making it less likely that a potential purchaser will discover the infringing website. Google initially agreed to de-index the result from Canadian search results on google.ca, but refused to enforce this order worldwide. It was concerned that the Canadian courts were using Google to usurp the laws of other nations, particularly on free speech issues, and potentially would force Google … Read More
Restriction on Use of Summary Judgment Where Key Issues Turn on Credibility
Since the Supreme Court of Canada’s landmark decision in Hryniak v Mauldin, 2014 SCC 7, summary judgment has been lauded as an effective tool to enhance access to justice and achieve cost-effective results for litigants. Indeed, in recent years, summary judgment motions have become more common, making trials in civil litigation a rare occurrence. But has the pendulum begun to swing now in the opposite direction? The Court of Appeal’s recent decision in Lesenko v Guerette, 2017 ONCA 522, challenges the limits of summary judgment, and outlines that it may not be appropriate in cases where key issues turn on the credibility of the parties. In Lesenko, a husband, his wife, and his sister decided to sell their respective homes and buy a house together. The sister sold her home, and some of those sale proceeds went to pay for the entire purchase price of the subject property. The sister … Read More
Under Construction: Major Reforms Coming To Construction Lien Act
The Ontario government has tabled Bill 142, which if passed will result in fundamental changes to the Construction Lien Act (the Act) and will have a significant impact on payment and dispute resolution practices within the construction industry. The most significant of the proposed amendments to the Act is the introduction of a mandatory prompt payment regime. Prompt payment regimes have been in place for decades in some other jurisdictions including the U.K., and there have long since been calls for Canada and Ontario to adopt a similar model. The impetus in adopting a prompt payment regime within this unique sector is to curb the systemic plague of gridlock on construction projects which arise due to payment disputes and lack of payment which lead to project disruptions – a chronic industry phenomenon. The regime will also serve to protect the most vulnerable segments of the sector such as subcontractors, who can … Read More
Supreme Court of Canada Narrowly Rules Facebook’s Jurisdiction Clause Unenforceable
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
CASL Private Right of Action Suspended Indefinitely
In a recent press release, the Canadian government stated that they will be suspending the introduction of the private right of action set out in Canada’s anti-spam legislation (frequently referred to as CASL). The private right of action was meant to come into effect on July 1, 2017, but the government has suspended the implementation of this section to give a parliamentary committee more time to review the legislation and determine the best course of action to balance the protection of Canadian consumers against minimizing extra costs and unintended breaches by business owners. The legislation has received mixed reviews thus far. While undoubtedly a step forward in minimizing unwanted spam, many business owners have expressed concern that the definition of commercial activity are vague, the requirements for consent are onerous, and the penalties for even unintentional non-compliance are harsh. The private right of action (most likely to be done as class … Read More
Ontario Court Identifies New Presumptive Connecting Factor in Establishing Jurisdiction
In Arend v Boehm, 2017 ONSC 3424, the three Applicants in a corporate dispute applied for orders pursuant to the oppression remedy (section 248) of the Ontario Business Corporations Act in respect of BitRush, an Ontario company. The Judge noted that BitRush’s business was “reflective of the worldwide impact of business connected with the internet.” The international character of BitRush’s business was reflected in the identity of the Respondents, who were: 1) BitRush’s CEO, an Austrian resident; 2) a former BitRush board member, also an Austrian resident; 3) BitRush’s majority shareholder, a UK company; and 4) another Austrian resident. The Applicants sought: 1) a declaration that the Respondent CEO has acted oppressively, in breach of his fiduciary duty to BitRush; 2) an order transferring shares of BitRush from the Respondent UK company to certain other stakeholders; and 3) an order that the Respondent UK company’s remaining shares in BitRush be … Read More
Capturing Online Sales in Shopping Mall Commercial Leases
As more business is done online, and as traditional brick-and-mortar retail stores decrease in popularity, shopping malls and retail shopping landlords are looking for more creative methods to maximize rental income. It is not uncommon for a shopping mall lease to require the tenant to pay a percentage of their sales as part of the additional rent. Many stores, however, also do a significant amount of business online. While tenants usually consider such sales to be separate from sales at their physical storefront, landlords may consider those sales as attributable to the storefront and subject to additional rent. It is important for any commercial lease to be clear how additional rent is calculated, and if additional rent includes a percentage of revenues, it should be clear to all parties what revenue is included and what revenue is excluded. Where a lease is unclear, the court will often rely on the principle of contra proferentum and … Read More
Construction Heavy Machinery & Equipment Disputes
We have experience and can act in matters relating to construction heavy machinery and equipment. Disputes often arise in connection with the purchase and sale, leasing, financing, use or operation of construction heavy machinery. Sometimes disputes arise in relation to ownership or possession of construction heavy equipment. We set out below some of the common types of disputes arising in relation to construction heavy equipment. Types of Disputes Common disputes include those related to: purchase and sale, pre-sale representations, warranties, damaged equipment, sale by auction, shipping heavy machinery and equipment, damages, loss and collapse, hire-purchase disputes, ownership and possession, and repossession by court order. Types of Construction Equipment A vast array of construction equipment is deployed in modern construction projects. Some construction companies lease and others purchase. Some have only occasional need for some construction heavy equipment. Typical construction heavy equipment and machinery includes: Backhoe loaders, breakers, bulldozers, chippers, compactors, concrete plants and pumps, conveyors, … Read More
Court of Appeal Considers Law Applicable to Bifurcation of Disputes between Court and Arbitration
In Wellman v. TELUS Communications Company, 2017 ONCA 433, the Ontario Court of Appeal recently considered the law applicable to determining whether to bifurcate a dispute between court proceedings and arbitration. In Wellman v. TELUS, the plaintiffs consisted of consumers and businesses. The plaintiffs commenced a class action against the defendant, Telus, regarding alleged overbilling. The Telus contact contained an arbitration clause. Telus acknowledged that the arbitration clause was not binding on the consumer plaintiffs (due to the Consumer Protection Act, 2002). But Telus’s position was the the business plaintiffs were bound by the arbitration clause. Telus brought a motion to stay the business plaintiffs’ class action in favour of arbitration. Telus relied upon, among other things, section 7(5) of the Ontario Arbitration Act, which provides for a partial stay of court proceedings to be granted where an arbitration agreement deals with only some of the matters in respect … Read More
Possible Changes to Choice of Court Agreements and Recognition of Foreign Judgments
Ontario recently 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. It is not yet known when Canada will ratify the Hague Convention. The Uniform Law Conference of Canada adopted a model implementation statute in 2010, suggesting that Canada may sign and ratify the Hague Convention.) In preparation for ratification, Ontario businesses should be aware of the Hague Convention’s key features, including: • where parties of member States have expressly agreed to a court in their contract, the court selected by parties must act in every case as long as the choice of court agreement is valid. The agreed Court does not have discretion (on forum non conveniens or other grounds) to decline jurisdiction in favour of courts of another State. • any court … Read More
Rogers Denied Costs of Complying with Copyright Infringement Norwich Order
In the recent decision of Voltage Pictures, LLC v. John Doe, 2017 FCA 97, the Federal Court of Appeal reversed the lower court and denied Rogers its costs of complying with a disclosure order (commonly called a Norwich Order) requiring them to disclose the names and details associated with IP addresses which the plaintiff alleges have infringed its copyrights. At the Federal Court, Rogers was prepared to provide the information, provided they were paid their costs of doing, as is customary for Norwich Orders from non-parties. While on an individual basis the costs may not have been unreasonable, the plaintiff’s concern was that they were pursuing thousands of individual infringers, which would make the cumulative costs of seeking these productions prohibitively expensive. The Federal Court held that the plaintiff did have to provide the amount demanded by Rogers. On appeal, the Federal Court reviewed the relatively new provisions under the Copyright Act which the plaintiff relied on to … Read More
The Importance of Brand Protection
In many cases, a business’s brand, reputation, and goodwill, can be its most important assets. Customers will visit, re-visit, and refer others to a business because of the reputation created through its successful branding initiatives and quality products and services. Therefore, it is important for any business to be aware of the tools available to protect their brand from being devalued or misused by others. Some of these tools are preventative, such as by registering a trademark with CIPO. the USPTO, or other national trademark offices, and by ensuring the proper assignments or licences are set out in any contracts with any designers or users of your trademarks. The copyrights for creative works can be registered, while fashion designers can seek protection of their creations as an industrial design. Unfortunately, the more successful a trademark or brand, the more likely it is to be used by copycats, counterfeiters, and competitors to drive business … Read More
International Sale of Goods – the Law Applicable in Ontario
Many Ontario businesses buy and sell goods from foreign companies. However, few Ontario businesses are aware that different laws apply to international purchases and sales of goods. For purchases and sales of goods between Ontario companies, the Ontario Sale of Goods Act will typically apply. However, for purchases and sales of goods between Ontario and foreign companies, the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”) will typically apply. The CISG is “Ontario law”. It is enacted in Ontario by the International Sales Conventions Act. There are a number of key differences between the Ontario Sale of Goods Act and the CISG. One of the most notable is the obligation on the buyer to inspect goods (article 38) and give notice of any non-conformity (article 39). The inspection obligation imposed by article 38 can have significant consequences: if the buyer fails to detect a lack of conformity … Read More
Andrew Ottaway comments on International Commercial Arbitration for the Law Times
Andrew Ottaway was asked to comment on international commercial arbitration in Ontario, including the new International Commercial Arbitration Act, 2017. Read the Law Times article here: “New laws may spur more arbitration in Ontario“. The lawyers at Gilbertson Davis have experience with domestic and international commercial arbitration. Please contact us to arrange an initial consultation.
Court of Appeal Reiterates Importance of Pleading Particulars of Fraud
In Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, the trial judge found the appellants liable to a company’s shareholders for fraudulent misrepresentations before and after an initial public offering (IPO). On appeal, the appellants argued that the trial judge erred in finding liability based on the IPO-related statements because the respondents did not plead or argue at trial that such statements amounted to fraudulent misrepresentations. The Court of Appeal stated that a pleading of fraud or misrepresentation must set out with careful particularity the elements of the misrepresentation relied upon, including: the alleged misrepresentation itself; when, where, how, by whom and to whom it was made; its falsity; the inducement; the intention that the plaintiff should rely upon it; the alteration by the plaintiff of his or her position relying on the misrepresentation; the resulting loss or damage to the plaintiff; and if deceit is alleged, an allegation … Read More
The Low-Down on PIPEDA Requests in Personal Injury Cases
Seemingly out of nowhere, institutional litigants, insurers and the third-party vendors they retain to support their obligations in responding to claims have been inundated with requests for disclosure on pain of complaints or actions to collect damages under the Canadian federal Personal Information Protection and Electronic Documents Act (PIPEDA). In some instances, parties or their lawyers directly approach non-parties such as medical experts and private investigation companies and demand production of documents separately from any disclosure procedures in the claims or law suits. It is hard to point to any single rationale for employing the resort to the federal privacy legislation, except that obtaining access to personal information is probably not one of them. Traditionally, a party to a personal injury law suit would, through his or her lawyer, be the conduit for information in health records, employment files and other personal data. The defendant or respondent would be the … Read More
Court Considers When Jurisdiction May be Found Against Sole Officer And Director of Foreign Corporation
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