Gilbertson Davis LLP News – OsgoodePD Program on Shareholder Litigation and the Closely-Held Company

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorBusiness Litigation, Business Torts | Economic Torts, Closely-Held Business Disputes, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Directors' and Officers' Liability, Family Business Disputes, Gilbertson Davis LLP News, Injunction & Specific Performance, International Joint Venture, Oppression Remedies, Partnerships and Shareholder Disputes, Shareholder Disputes0 Comments

David Alderson, of Gilbertson Davis LLP attended as a faculty member of the OsgoodePD professional development program on April 7, 2015 concerning Shareholder Litigation and the Closely-Held Company. He was on the panel addressing Ethical and Professional Issues in Shareholder Disputes and Litigation. Osgoode Hall Law School said of this professional development program, “This OsgoodePD program brings together some of the country’s top commercial litigators and other experts to provide insight into key aspects of litigating these cases.”  Shareholders disputes are one of the most common and most complex disputes handled by commercial litigators and in-house counsel. The panel on Ethical and Professional Issues in Shareholder Disputes and Litigation included Paul N. Feldman of Feldman Lawyers, Tom Curry of Lenczner Slaght Royce Smith Griffin LLP and David Alderson of Gilbertson Davis LLP, with Lisa C. Munro of Lerners LLP moderating. The program is being re-broadcast on May 22, 2015 as described here. David Alderson has experience in shareholder and partnership disputes, both in arbitration … Read More

Does adverse possession apply to exclusive-use condominium common elements in Ontario?

Gilbertson Davis LLPCivil Litigation, Commercial, Commercial Litigation0 Comments

The marketing message behind the Condominium boom in Canada’s urban jungles is all about newness.  The smell of new carpets and freshly cut flowers in the lobby appeals to the allure of modernity.  The reality of the condominium as a form of residential property has been with us for decades, and condominium law has been overlaid on top of conventional property law. Buried within the registered title documents are discrepancies waiting for parties to turn them into legal disputes. With so many deals taking place, and lawyers not being trained in ‘parochial’ property law, condominium title disputes will only increase with time and the volume of transactions. One problem area, hitherto unknown in the legal community, is the effect of adverse possession on exclusive use common elements.  The physical integration of a common element into a unit owner’s unit is not uncommon.  For example, balconies, parking spaces, and storage areas … Read More

Court Finds US Company Did Not Consent/Attorn to Ontario’s Jurisdiction By Bringing Recognition Action

Andrew Ottaway, B.A. (Hons.), LL.B.Cross-Border Litigation0 Comments

In Carolina Foods, Inc. v. 838116 Ontario Inc., the Plaintiff, a North Carolina company, had obtained a judgment in North Carolina against purchasers of goods for failure to pay for goods delivered.   The Plaintiff brought the subject action in Ontario for recognition of the North Carolina judgment.  The Defendants counterclaimed for $500,000. The Plaintiff brought a motion to dismiss the counterclaim on the basis that the Ontario did not have jurisdiction over the counterclaim and that North Carolina was a more appropriate forum to determine the counterclaim.  Our Firm acted for the Plaintiff on the motion. The Defendants argued that the Plaintiff had attorned to the Ontario court’s jurisdiction over the counterclaim by commencing the recognition action. The Judge rejected that argument, and found that that Plaintiff had not attorned to the jurisdiction of the Ontario court.  Then, applying the factors set out by the Supreme Court of Canada in Club Resorts … Read More

GD Blog analysis vindicated: Court finds s. 258.3(8.1) of Insurance Act retroactively scales back PJI rates

Gilbertson Davis LLPCivil Litigation, Insurance, Negligence0 Comments

In a post on this site last November, “Why the new s. 258.3(8.1) of the Insurance Act will retroactively scale back prejudgment interest rates in MVA actions,” I stated that the statutory amendment reducing the rate of prejudgment interest for non-pecuniary damage awards (damages for pain and suffering and the non-pecuniary portion of dependent family claims) in automobile tort cases must be applied retroactively.  In large or catastrophic claims involving years of pre-trial procedures, the difference can be quite substantial. These past four months, I am told the blog post has been printed off and by defence lawyers across Ontario, and that the reasoning has been debated at mediations and pretrials.  Lawyers have been waiting for the court to opine on the subject.  In a decision released today but not yet available on the court’s website, Cirillo v. Rizzo 2015 ONSC 2440, the Ontario Superior Court followed the reasoning I stated in the … Read More

Data Breach Claims in U.S. and Canadian Courts

Gilbertson Davis LLPInformation 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

Gilbertson Davis LLPCivil 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

A Proven Hypothesis: How Deguise v. Montminy helps us better understand Alie v. Bertrand

Gilbertson Davis LLPWrongful Dismissal0 Comments

Last July, in Deguise v. Montminy, 2014 QCCS 2672 the Québec Superior Court had occasion to revisit these issues from in Alie v. Bertrand & Frere Construction Co. Ltd., 2002 CanLII 31835, applying the Ontario Court of Appeal decision in that 2002 case to civil law concepts relating to allocation of responsibility among insurers.  Many of the rulings in the decision were specific to Québec civil law.  In one aspect, however, the case provided an opportunity to test the writer’s hypothesis that the Alie court called on parties and counsel to present expert evidence to show when damage actually started to occur, for the purpose of allocating insurer responsibility.*  In other words, Deguise offered an opportunity to apply the ‘injury in fact theory’ of liability insurance coverage to facts proven by evidence, instead of legal conjecture.  The decision, penned in French and applying civil law, has so far escaped the notice of the Bar in the rest of Canada. The Deguise court … 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

Ontario Court Given Jurisdiction over Internet Defamation Claim

Gilbertson Davis LLPCivil Litigation, Cross-Border Litigation, Information Technology, Injunction & Specific Performance0 Comments

A recurring issue in online defamation cases is the proper jurisdiction where a claim should be commenced. In many cases, the people who read the allegedly defamatory statements will be located across the planet, meaning that a publisher of such materials may find themselves having to defend claims brought far away from their actual home jurisdiction. In Goldhar v. Haaretz.com et al., Justice Faieta allowed an Ontario claim to continue for allegedly defamatory statements posted online by an Israeli-based newspaper organization. The defendants brought a motion to have the plaintiff’s claim stayed, arguing that the action should be heard in Israel, as the majority of the publication of the article was in Israel, and only 200-300 persons in Canada read the English online article. The court ultimately concluded that it did have jurisdiction over the defendants, and the plaintiff’s claim could continue in Ontario. By finding that at least some … Read More

Vicarious Liability for Vehicle Owners under HTA Based on Possession, not Operation

Gilbertson Davis LLPCivil Litigation, Insurance, Summary Judgment0 Comments

The Superior Court has confirmed that a vehicle owner is vicariously liable for the negligence of another driver under the Highway Traffic Act, even if the owner consents only to the possession of the vehicle, and not its operation on the highway. In Fernandes v. Araujo et al., the owner’s insurer brought a motion for summary judgment stating that the owner was not vicariously liable for the driver’s negligence as the owner had not given permission to the driver to operate the vehicle, an ATV located on the owner’s farm, on the highway, as the driver only had a G1 license and was not licensed to use the ATV on a highway. The insurer attempted to rely on the similar decision of Newman v. Terdik, where the owner was not found to have given consent as he had expressly forbidden the driver from taking the vehicle off his farm and … Read More

Divisional Court Addresses “Best Foot Forward” Requirement on Summary Judgment

Gilbertson Davis LLPAppeals, Civil Litigation, Summary Judgment0 Comments

The recent decision of the Ontario Divisional Court of Pereira et al. v. Contardo found in favour of the plaintiff on a summary judgment motion to dismiss the plaintiff’s personal injury claim as statute-barred. At issue was whether the plaintiff complied with his obligation to put his best foot forward in opposing the motion, as the plaintiff did not file any responding material, and simply relied on the evidence put forward by the defendant to defend the motion. The Rules of Civil Procedure require that a responding party on a motion for summary judgment “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. Rather than file responding material, the plaintiff simply relied on the affidavit evidence put forward by the defendant and argued that the limitation period for his claim started when he received an expert medical report, … Read More

Court of Appeal Dismisses Appeal Pursuant to “Competence-Competence” Principle

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Arbitration, Civil Litigation, Contract Disputes0 Comments

In Ciano Trading & Services C.T. v. Skylink Aviation Inc. the Ontario Court of Appeal considered the appeal of an order staying court proceedings pending the arbitration of the dispute. The arbitration clause at issue was part of a Services Agreement that was terminated prior to commencement of the court proceedings.  The Services Agreement listed the provisions that would survive termination, but did not specifically address whether the arbitration clause survived termination.   The appellant argued that the motion judge should have found that the arbitration clause did not survive termination of the Services Agreement, and therefore should not have stayed the court proceedings. The Court of Appeal disagreed stating that, because it was arguable whether the arbitration clause survived termination of the Services Agreement, it was preferable to leave the issue of jurisdiction to the arbitrator pursuant to the “competence-competence” principle.  The Court of Appeal dismissed the appeal. If you require advice … Read More

Divisional Court dismisses Groia v. LSUC appeal, reveals flawed strategy

Gilbertson Davis LLPAppeals, Appellate Advocacy0 Comments

Today, the Divisional Court of the Ontario Superior Court of Justice dismissed Joseph Groia’s appeal from the Law Society of Upper Canada’s discipline conviction for uncivil conduct during a criminal trial (Groia v. LSUC).  One of the recurrent aspects of Groia’s position, both during tribunal and judicial proceedings, was that the Law Society ought not to have prosecuted the lawyer when the trial judge from the criminal trial against Groia’s client, John Felderhof, meted out no disciplinary measure against Groia.  Belief in this theory of defence appears to have guided the much of the strategy of the defence. At paragraphs 26-45 of the Divisional Court’s decision, Justice Nordheimer explained that the Law Society, as the statutory regulator of all lawyer conduct, has both the authority and expertise to consider allegations of lawyer misconduct.  In contrast, the supervisory role exercised by judges and courts can be tempered by exigencies of the … Read More

Court Considers Effect of Non-Exclusive Jurisdiction Clause

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Contract Disputes, Cross-Border Litigation0 Comments

In Silveira v. FY International Auditing & Consulting Corp., the Plaintiff commenced an action in Ontario alleging breach of an agreement and misrepresentation.  Less than a month later, one of the Defendants commenced an action in British Columbia against the Plaintiff based on the same agreement.   The Defendants acknowledged that the Ontario had jurisdiction simpliciter, but brought a motion to stay the Plaintiff’s action on the grounds that Ontario was forum non conveniens and that the action should proceed in British Columbia. The Court found that there were not sufficient evidence to conclude, as the Plaintiff argued, that B.C. action was “tactical”.  Further, the Court stated that the fact that the Plaintiff started her action in Ontario first was not a basis to determine which forum was more appropriate for litigation of the dispute. The Court found that both the Plaintiff and the Defendants, and their evidence, had equally strong connections to Ontario and … Read More

Court Finds No Real And Substantial Connection Despite Ontario Contract

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Contract Disputes, Cross-Border Litigation0 Comments

CIBC FirstCaribbean v. Glasford involved an equitable mortgage held by a Barbados bank, FirstCaribbean, over a St. Kitts property owned by one of the Plaintiffs, Glasford, a Barbados resident.   The second Plaintiff, Vinton, was Glasford’s son, who lived in Toronto.  Vinton was the second mortgagor on the property.  The Plaintiffs claimed that they were induced into the mortgage by the Defendant’s alleged misrepresentations.  The Plaintiffs had already commenced an action in St. Kitts regarding the mortgage, as had FirstCaribbean in St. Kitts to enforce the mortgage. FirstCaribbean brought a motion to dismiss or permanently stay the Ontario action.  The Judge considered whether Ontario had jurisdiction by “a real and substantial connection between Ontario, the subject matter of the litigation and the defendant”.  The Judge found that the mortgage was presumptively connected to Ontario because the mortgage agreement was made in Ontario.  Specifically, Vinton signed and returned the mortgage agreement by mail … Read More

Court Allows Equitable Rectification to Undo Transaction Which Had Caused Adverse Tax Consequences

Andrew Ottaway, B.A. (Hons.), LL.B.Wrongful Dismissal0 Comments

In Fairmont Hotels Inc. et al v. A.G. Canada, the Applicants, Fairmont and affiliated companies (“Fairmont”), redeemed shares which Fairmont said mistakenly triggered a foreign exchange gain and tax assessment.   Fairmont applied for rectification of the share redemption.   The respondent, the Attorney General of Canada, opposed Fairmont’s application, which it characterized as retroactive tax planning. In brief, Fairmont had financed the purchase of two US hotels by Legacy, an investment trust, through reciprocal loans.  Legacy routed the financing through Fairmont and a US Fairmont affiliate, which received preferred shares in a US affiliate.  The financing was in US dollars, representing a potential foreign exchange tax exposure. Fairmont stated that it had structured the loan transaction to be accounting neutral to fully hedge its foreign exchange exposure.  However, that intention was frustrated a some years later when another company purchased Fairmont, triggering deemed foreign exchange losses which could not be carried forward … Read More

Court Declines Plaintiff’s Request to Stay Its Own Action in Favour of Arbitration

Andrew Ottaway, B.A. (Hons.), LL.B.Arbitration, Civil Litigation, Contract Disputes0 Comments

In Paul Wurth Inc. v. Anmar Mechanical and MAG Engineering, the Plaintiff entered into a contract with MAG Engineering.  The contract contained an arbitration clause.  Nevertheless, the Plaintiff brought a court action against MAG Engineering for breach of contract.  The Plaintiff also claimed against Anmar Mechanical.  Anmar Mechanical was not a party to the contract.  But the Plaintiff alleged that the services under the contract were to be provided by both MAG Engineering and Anmar Mechanical, and that MAG Engineering was an agent, partner, or joint venturer of Anmar Mechanical. After starting its court action, the Plaintiff brought a motion to stay its action and to require MAG Engineering and Anmar Mechanical participate in binding arbitration.  In the alternative, the Plaintiff sought to force only MAG Engineering to participate in arbitration, and to stay its action against against Anmar Mechical pending the outcome of that arbitration. The Judge dismissed the Plaintiff’s motion … Read More