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
Dubai’s DIFC Announces Amendment of Arbitration Law to Accord with New York Convention
Canada and UAE – New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards In 2006, United Arab Emirates joined 137 other nations in acceding to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the so-called 1958 New York Convention). Canada acceded to the New York Convention in 1986 declaring that it would apply the Convention only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in the case of the Province of Quebec where the law did not provide for such limitation. In Ontario, it found its way into the International Commercial Arbitration Act, RSO 1990, c I.9 to the extent it is contained in the UNCITRAL Model Law, a schedule thereto. Respect of Arbitration Agreements under the New York Convention By Article II (3) of the New York Convention “The court of a Contracting State, when seized of … Read More
Gilbertson Davis Lawyer Represents Defence Bar in Ontario Trial Lawyers’ Standards Consultation
The Ontario Trial Lawyers Association (OTLA), the voice of plaintiffs’ personal injury lawyers in Ontario, is undergoing a process to develop best practices within its membership. This bold and commendable initiative, tentatively titled “Standards of Excellence for Conduct,” is intended to advance the interests of accident victims, by promoting better service and access to justice. Once OTLA’s review has been completed, the defence bar should also examine ways in which its members can contribute to more collegial and efficient civil litigation. Gilbertson Davis LLP’s partner Lee Akazaki has been appointed by the Canadian Defence Lawyers (CDL) to represent the defence bar in OTLA’s consultations as it develops this model code. As such, Lee has surveyed the CDL membership in Ontario and has started reviewing responses. At this point, the following themes have appeared as areas where interaction between plaintiff and defence counsel can be improved, in the interests of their respective clients: timely responses … Read More
Court Declines to Grant Summary Judgment, But Orders “Summary Trial”
Kristensen v. Schisler is another decision on the heels of Hryniak v. Mauldin, the Supreme Court case promoting better access to justice through summary judgment. This case was for professional negligence and battery. The Plaintiff claimed against the Defendants, a dentist and an oral surgeon, for removing his tooth without consent. The Judge considered the new test set out by the Supreme Court in Hryniak v. Mauldin, stating that “The overarching question to be answered is ‘whether summary judgment will provide a fair and just adjudication’.” The Judge concluded that he could not grant summary judgment. He stated that more evidence was necessary to “do justice between the parties” because: 1) the case turned on credibility, the Plaintiff’s in particular; the Plaintiff denied consenting to the tooth removal, even though the Defendants’ records suggested otherwise. If the Plaintiff were to be found highly credible (presumably after in-court cross-examination), his evidence might “trump” … Read More
30 Day Time Limit to Appeal Arbitration Award
The Ontario Court of Appeal decision in R & G Draper Farms (Keswick) Ltd. v. 1758691 Ontario Inc., 2014 ONCA 278, involved a dispute between two Ontario-based farming businesses over the purchase and sale of carrots and carrot chunks. The parties agreed to resolve the dispute through arbitration in accordance with The Fruit and Vegetable Dispute Resolution Corporation (“DRC”) arbitration rules. The arbitrator awarded damages to the respondent. The issue arose when the appellant applied to the Superior Court of Justice to set aside the arbitration award approximately two and a half months later. The Arbitration Act, 1991 (the “Act”) provides for a thirty day time period to appeal the arbitration award while the International Commercial Arbitration Act (the “ICAA”) provides for a longer three month time period. Unfortunately, the DRC rules are silent in respect to which arbitration act may apply. Under s. 2(1) of the Act, the Act applied unless the application of the Act was excluded by law, or the arbitration was … Read More
Welcome to the Gilbertson Davis LLP Blog!
The expansion of our commercial litigation practice and the broadening of our traditional insurance defense and insurance litigation practice, together with the further development of our website, make it a perfect time for us to launch this blog. Many of our lawyers are seasoned legal bloggers and some have their own legal blogs, but we present here at the Gilbertson Davis LLP blog a place where the diverse interests of our lawyers in the development of the laws of Ontario and Canada can be expressed. We invite you to visit the News and Events page of our website – which describes some of the longer articles and publications our lawyers have authored. The posts on this this are intended to be brief informational articles on recent developments in the law of Ontario and Canada. They are short summaries of recent cases and legislation which are of interest to our lawyers and we … Read More
Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications
On March 26, 2014, David Alderson, lawyer with Gilbertson Davis LLP was the Chair / Moderator of Osgoode Hall Law School’s webinar entitled Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications. The panelists were the Honourable Justice David M. Brown, Superior Court of Justice (Ontario), Professor Janet Walker, Osgoode Hall Law School and Cynthia B. Kuehl, Lerners LLP. A link to the agenda of the Osgoode PD Webinar Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications is here. David Alderson was one of the counsel for the successful respondents in the Supreme Court of Canada. The related Gilbertson Davis LLP Practice Area is described here.
Court Grants Interim Injunction Against Neighbour
The recent Ontario Superior Court of Justice decision in Sciara v. Szpakowski, 2014 ONSC 2157, involved a dispute between neighbours over the right to use a lane between the two houses. The lane was owned by the Respondent but the Applicants allege that they were allowed continuous use of the lane to access their backyard for many years. When the neighbours had an argument over another matter, the Respondent threatened to construct a fence to restrict the Applicants’ access to the lane. The Applicants sought an interim injunction restricting the Respondent from constructing a fence until their application for prescriptive easement over the lane was heard. In determining whether an interim injunction should be granted, the Court applied the test outlined by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, which was as follows: (i) is there a serious question to be determined, (ii) … Read More
Court of Appeal Refuses to Exercise Long-Arm Jurisdiction
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
Summary Judgment in Wrongful Dismissal Action in IT Sector
The plaintiff in Wellman v. The Herjavec Group Inc., 2014 ONSC 2039, whose employment with the defendant was terminated without cause after one week short of a year, was granted summary judgment and found to be entitled to damages from the defendant for wrongful dismissal on the basis of a reasonable notice period of four months. The parties had agreed that the issue of a reasonable notice could be properly considered on a motion for summary judgment and the court agreed that such a motion is more proportionate, more expeditious less expensive means than a trial to achieve a just result (citing Hryniak v. Mauldin, 2014 SCC 7) In considering the issue the court considered the: Bardal factors; the age of the employee (including when considering mitigation it is reasonable to assume that at the plaintiff’s age there could have family responsibilities that might make him less mobile); length of service (just one factor to be taken … Read More