Domain Name Disputes, Counterfeit Websites, Fake Bad Reviews and Remedies

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer, Arbitrator and MediatorBreach of Non-Competition Agreement, Breach of Non-Competition Clause, Breach of Non-Solicitation Agreement, Breach of Non-Solicitation Clause, Business Defamation, Business Disputes, Business Fraud, Business Torts | Economic Torts, Civil Conspiracy to Harm, Commercial, Copyright Infringement, Cyber Fraud, Cyber Libel, Domain Name Disputes, False Light, Information Technology, Injunction & Specific Performance, Intellectual Property, Internet Defamation, Internet Fraud, Online Defamation, Passing Off, Trademark Infringement, Website Copying0 Comments

I discuss here a number of internet-based “dirty tricks” that competitors or others may deploy and which may have serious adverse consequences for you or your business. I also briefly mention the types of remedies which may be available to those victimized in this way. Confusingly Similar Domain Names  In today’s modern web-based commercial world, it is more important than ever to ensure that potential customers  and returning customers are properly connected with your website domain name, and to use domain names that are well-branded and associated with your business. It is not uncommon for competitors, cyber-squatters, or other persons to obtain control of domain names that are confusingly similar to your trademarks, business names, or your domain name. Then there is a real risk that users seeking your website are instead directed elsewhere by that confusingly similar domain name. Recovering a Domain Name In order to recover (transfer to … Read More

Shareholder’s Remedies

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer, Arbitrator and MediatorAppointing Auditor, Appointing Inspector, Business Disputes, Business Litigation, Commercial, Corporate Disputes, Corporate Litigation, Derivative Actions, Directors' and Officers' Liability, Oppression Remedies0 Comments

Shareholder Remedies Under the Ontario Business Corporations Act (“OBCA”), shareholders of a corporation have a variety of rights. Outlined below are a few rights that all shareholders should be aware they possess. Voting Rights The board of directors, under s. 115 are ultimately responsible for managing or supervising the management of the business and affairs of a corporation. Major business decisions also involve the participation of the board of directors, though sales, leases, or exchanges of all or substantially all the property of the corporation that is not in the ordinary course of business requires the approval of shareholders (s. 184(3)). Shareholders also have voting rights that allow them to control the makeup of the board of directors (s. 119(4)), and also the ability to remove directors under s. 122(1) (though this is subject to exceptions under s. 120(f)). Shareholders have additional voting rights under s. 100(2). Access to Information Rights Under s. 140(1) corporations … Read More

China International Arbitration Award Enforced by Ontario Court

Josef FinkelArbitration, Business Litigation, Civil Litigation, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Arbitral Awards0 Comments

Tianjin v. Xu, 2019 ONSC 628 (CanLII) involved an application under the International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (the “Act”) for an order recognizing and making enforceable in Ontario an arbitral award of the Chinese International Economic and Trade Arbitration Commission (“CIETAC”). Respondent’s Defences The respondent argued that the arbitration award should not be enforced in Ontario because: Service: The respondent did not receive notice of the arbitral proceeding or the appointment of arbitrators; and Jurisdiction: The Ontario Superior Court of Justice did not have jurisdiction to enforce the arbitral award because the arbitration was not an “international commercial arbitration”. Service The court found that there is no requirement that service of notice of the arbitral proceedings or of appointment of arbitrators be effected in accordance with the CIETAC Rules. Rather, the court opined that the respondent was given “proper notice” of the proceedings and … Read More

Internet Harassment: New Tort Recognized in Ontario

Josef FinkelBusiness Litigation, Business Torts | Economic Torts, Civil Litigation, Harassment0 Comments

Following up on our previous blog in which we advise that the Ontario Court of Appeal decided that there is no common law tort of harassment, the Ontario Superior Court of Justice has now recognized the new tort of online harassment. In the recent decision, Caplan v. Atas, 2021 ONSC 670 (CanLII), the court recognized the inadequacies in the current legal system’s responses to internet defamation and harassment matters. The court opines that while defamation law and freedom of speech have created a balance in society which promotes both free democratic debate and protection of one’s reputation simultaneously, the internet has “cast that balance into disarray”. Recognition of the New Tort of Harassment The difficulty in the cases before the court was that the defendant was not deterred from further egregious conduct even in the face of multiple severe consequences. The defendant was also impecunious, so compensation was not a … Read More

B.C. Court Claims Jurisdiction over International Online Defamation Case

Josef FinkelArbitration, Business Litigation, Civil Liability, Civil Litigation, Commercial Litigation, Defamation, Forum Challenges, Online Defamation0 Comments

This blog post is further to our blog on the Supreme Court of Canada (“SCC”) decision in Haaretz.com v. Goldhar, 2018 SCC 28 (CanLII) (“Haaretz”) wherein the SCC opined that Israel was a more convenient forum for an online defamation claim brought by the plaintiff in Ontario (even though the SCC recognized that Ontario had jurisdiction over the matter). The SCC considered a number of factors in its decision (all outlined in our blog). In the recent Supreme Court of British Columbia (“BCSC”) decision, Giustra v Twitter, Inc., 2021 BCSC 54 (CanLII) (“Giustra”), the BCSC confirmed that even where jurisdiction is found, a court can decline to exercise its jurisdiction under the principle that its court is not the most convenient forum for the hearing of the dispute (largely following the tenets laid out in Haaretz). The court in Giustra cited Haaretz in pointing out that the applicable law in … Read More

The Ontario Commercial Mediation Act, 2010 (Blog Part I)

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer, Arbitrator and MediatorBusiness Litigation, Business Mediation, Business Mediator, Commercial Litigation, Commercial Mediation, Commercial Mediation Act, Commercial Mediator, Commercial Mediators, Contract Dispute Mediation, Contract Dispute Mediator, Cross-Border Mediation, Cross-Border Mediation, Cross-Border Mediator, Distribution Mediation, Distribution Mediator, Employment Mediation, Employment Mediator, Mediation, Mediators, National Mediation Rules, Technology Mediation, Technology Mediator0 Comments

David Alderson is a Commercial Mediator: Hourly Rates: $375.00 to $475.00 per hour (depending on amount of the claims), plus facilities and applicable taxes. Daily Rates and Half-day Rates available. The Ontario Commercial Mediation Act, 2010 (Blog Part I) This blog post (Part I) considers the provisions of the Ontario Commercial Mediation Act 2010, S.O. 2010, c.16, Sch. 3, concerning the application of that legislation, definitions contained in the Act, its interpretation, commencement and termination of the mediation, and the appointment of the mediator, duty of disclosure, and conduct of the mediation. Further blog posts on the Act: (Part II) – will consider other provisions of the Act, including the mediator’s authority, disclosure between parties, confidentiality, admissibility, and the relationship to arbitration and judicial proceedings. (Part III) – will consider other provisions of the Act concerning settlement agreements, enforcement of settlement, application of the Ontario Rules of Civil Procedure, judgments, orders, … Read More

It’s not all about Intent! – Court of Appeal Confirms Test for Civil Conspiracy

Josef FinkelAppeals, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Litigation, Contract Disputes0 Comments

In the recent decision Mughal v. Bama Inc., 2020 ONCA 704 (CanLII), the Court of Appeal upheld a lower court decision in an action alleging civil conspiracy, among other things. The underlying action involved a plaintiff seeking the return of his investment in a corporation. On appeal, it was alleged that the trial judge applied the wrong legal test for and misapprehended the evidence to find commission of the tort of conspiracy to injure. The appellate court concluded that the trial judge applied the correct test for establishing civil conspiracy to injure as follows: Whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or, Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury … Read More

Nick Poon Comments on Anti-Black Racism in Commercial Lease Dispute for The Lawyer’s Daily

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Commercial Litigation, Contract Disputes, Contract Termination, Injunction & Specific Performance, Real Estate Litigation0 Comments

Nick Poon was recently asked by The Lawyer’s Daily to comment on the Ontario Superior Court of Justice decision in Elias Restaurant v. Keele Sheppard Plaza Inc., 2020 ONSC 5457. The Lawyer’s Daily article is found here: Court cites ‘prejudices’ to Black tenants in overturning landlord’s eviction bid. In this case, the tenant was a husband and wife team that operated a successful restaurant/bar offering African and Caribbean cultural foods primarily to the black community.  The tenant had spent $150,000 in leasehold improvements when it took over the lease in 2013.  The lease included two further 5-year renewal options, upon delivery of written notice at least six months before the lease expired. Although the tenant attempted to contact the landlord, both before and after the deadline, to start the renewal process, the landlord appeared to have avoided its telephone calls.  The tenant brought an application for relief from forfeiture after … Read More

Online Defamation and Use of Pseudonyms

Josef FinkelArbitration, Business Torts | Economic Torts, Civil Litigation, Commercial, Defamation, Injunction & Specific Performance, Norwich Order, Online Defamation0 Comments

Online Defamation (“Cyber Libel”) Many of our defamation matters come from the internet. These cases take many forms, from defamatory articles, to social media posts, to negative reviews of a business or person. Courts have recognized that online defamation or “cyber libel” is far more perverse than other forms of defamation. This is because internet users can reach the global population within seconds by publishing defamatory remarks about an individual or a business. As such, cyber libel can be significantly more damaging to a person’s business and/or reputation than other forms of defamation. Posting via Online Pseudonyms Some individuals go so far as to create aliases to post malicious and defamatory comments about others on the internet. In Ontario, you can sue an anonymous defamer by naming them as “John Doe” and/or “Jane Doe” in your claim against them. There are methods to determine the identity of these anonymous defamers, … Read More

Toronto Defamation Lawyers – Libel and Slander Law in Ontario

Josef FinkelArbitration, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial Litigation, Online Defamation0 Comments

Defamation is the tort of false publication (whether written or oral). Typically, a publication which tends to lower a person’s reputation in the opinion of reasonable members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. The major piece of legislation governing the law of defamation in Ontario is the Libel and Slander Act. According to the Act, you can be defamed in two ways: via either (1) Libel and/or (2) Slander. What is Libel? Defamatory communications may be by words, pictures, sounds, or other forms of communication.  They may be published on the internet, in social media postings, on websites, online reviews, chat rooms, or in other forms of broadcast. The dissemination of such defamatory comments or communications to the public is libelous. What is Slander? Slander is the public utterance of words that are meant to disparage a person … Read More

Construction Arbitrator | Reasonable Hourly Rate | Good Availability

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer, Arbitrator and MediatorArbitrators, Commercial, Condo Arbitrator, Condo Construction, Construction | Builders, Construction Arbitrator, Construction Litigation, Contract Disputes, Contract Termination, Cottage Litigation, Employment, Employment & Wrongful Dismissal, Expedited Arbitration, Force Majeure, Force Majeure Clauses, Fraudulent Schemes, Heavy Industries, Heavy Machinery Disputes, Infrastructure Arbitrator, Injunction & Specific Performance, International Joint Venture Arbitrator, Joint Venture Disputes, Labour Arbitrator, Mining, Infrastructure and Projects, Moving Litigation to Arbitration, Roster Arbitrator1 Comment

Construction arbitrators must be able to arbitrate efficiently and at the pace required by the parties, disputes ranging from simple renovations and repair, to complex multi-party multi-staged projects. The ability to understand construction stages and complexities of design, architecture, engineering and project management, and technical dimensions of a construction dispute are the hallmarks of an effective construction arbitrator. Experience In his practice here in Ontario, and when practicing in Dubai and Bermuda, David has been involved in a wide array of construction disputes, including, but not limited to project development, project finance, infrastructure and construction disputes, including matters involving parking garages, road building, residential house construction and renovation, condo development and financing disputes, numerous joint venture disputes, matters involving demolition, collapse, fire and flood, as well as contract disputes concerning construction quality and warranties; and labour disputes in the construction industry. Arbitrator for Construction Disputes David offers appointment as sole … Read More

Ontario Bans Commercial Evictions During COVID-19: Seven Things You Need to Know

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Commercial List Matters, Commercial Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

As predicted in our previous blog, B.C. Bans Evictions if Commercial Landlords Fail to Apply to CECRA: A Similar Ban Coming to Ontario?, the Ontario Government announced yesterday that it had passed legislation to protect commercial tenants from evictions and having their assets seized by their landlord during COVID-19. After British Columbia, Alberta and Saskatchewan took steps in the last two weeks to protect small business tenants from landlords that choose not to apply for the Canada Emergency Commercial Rent Assistance (CECRA) program, Ontario Premier Doug Ford finally followed through on his promise to protect small business tenants during COVID-19. On June 18, 2020, Bill 192,  Protecting Small Business Act, 2020 (the “Act”) received Royal Assent, and officially amended the Commercial Tenancies Act to prohibit landlords, that are or would be eligible to receive assistance under the CECRA program, from evicting tenants or exercising distress remedies in the period from … Read More

B.C. Bans Evictions if Commercial Landlords Fail to Apply to CECRA: A Similar Ban Coming to Ontario?

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Commercial Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Real Estate Litigation, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

Although the Canada Emergency Commercial Rent Assistance Program (CECRA) opened for applications last week, complaints about the program have continued from both small business tenants and commercial landlords. Small business tenants have complained that landlords continue to refuse to apply to CECRA, the eligibility requirement for a revenue loss of at least 70 percent was too high and the number of months of relief should be expanded.  Today, Ontario extended the state of emergency until June 30, 2020 although Premier Doug Ford stressed that the gradual and safe re-opening of the economy would continue.  It is unlikely most eligible tenants will be able to make their full rent payment on July 1, 2020, even if they receive rent relief for the months of April, May and June, 2020 under CECRA.  Landlords have complained that the application process is too confusing, costly, time-consuming and risky.  Under CECRA, landlords are required complete … Read More

Commercial Leases and Relief From Forfeiture: A Second Chance For Tenants During COVID-19?

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Commercial Litigation, Contract Disputes, Contract Termination, Real Estate Litigation, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

Today is the first day landlords can apply for the Canada Emergency Commercial Rent Assistance Program (CECRA) as reported in our blog last week entitled COVID-19 | Ontario-Canada Emergency Rent Assistance Program – Part 2. Although commercial rent relief is now finally available for the months of April, May and June 2020, it has been over two months since non-essential businesses in Ontario were required to close.  The gradual re-opening of some non-essential businesses, under strict guidelines, was only announced over the last few weeks.  According to a recent survey by CFIB, 48% of Ontario small businesses suffered a drop in revenue of 70% or more, and 77% of Ontario small businesses suffered a drop in revenue of 30% or more.  It is highly unlikely that these small businesses will survive the COVID-19 pandemic without further assistance. In addition, it has been widely reported that some commercial landlords will not … Read More

COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program – Part 2

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Lease Arbitrator, Commercial Leasing, Commercial Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

Further to our blog entitled COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program, CMHC has finally released further details about the OCECRA program including the opening date of the applications portal on May 25, 2020 at 8:00 a.m. EST. Amidst reports that many landlords were refusing to apply for the OCECRA program, Premier Doug Ford pleaded with landlords to participate in the OCECRA program, stating: “It is not going to be forever.  It is going to be for a few months.  Help people out.  You have an obligation to do that as a landlord”.  Prime Minister Justin Trudeau provided a more business-oriented argument for landlords to participate in the OCECRA program, stating: “With many people discovering that we can work from home … there may be a lot of vacancies in commercial buildings over the coming months and years.  Who knows exactly what the post-pandemic world will look like exactly?”. … Read More

A Primer on Using Electronic Signatures in the Age of COVID-19

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Commercial and Contract Litigation, Commercial Contracts, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Internet | Technology0 Comments

Although Ontario is currently taking steps to gradually re-open the economy, it is expected that physical and social distancing measures will remain in effect for the foreseeable future (or at least until a vaccine is developed). If legal professionals, companies and individuals were not already using electronic signatures to conduct business prior to COVID-19, this may be an opportune time to consider switching from in-person signing and delivery of paper documents to remote signing of electronic documents.  Electronic signatures are recognized as legally binding, provided certain requirements are met, and can be a more convenient and cost-efficient way to conduct business.  Electronic signature software such as DocuSign and Adobe Sign are popular. In Ontario, the Electronic Commerce Act, 2000, S.O. 2000, c. 17 (the “Act”) governs the use and legal validity of electronic signatures.  The Act expressly provides that a legal requirement that a document be signed or endorsed is … Read More

COVID-19 | Ontario Announces More Businesses to Reopen During First Stage

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Business Interruption, Civil Litigation, Commercial Contracts, Commercial Leasing, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Debt and Enforcing Judgments, Event Cancellation, Event Termination, Real Estate Litigation, Retail Litigation, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

Following on our previous blog last week entitled COVID-19 | Ontario Allows More Businesses To Reopen Soon, the Ontario government announced today plans for stage 1 to reopen the province, including allowing more businesses to reopen and/or relaxing restrictions on the delivery of goods and services. While the reopening of more businesses is welcome news after eight weeks in quarantine, Premier Doug Ford warned that individuals must still continue to practice social and physical distancing, and businesses should only reopen if they are ready to comply with the strict public health guidelines.  We cannot risk moving one step forward, but moving two steps back. The following is a list of some businesses that may reopen or expand their services on the following dates: May 16, 2020  Golf courses may open to the public but clubhouses only for washroom access and restaurants only for take-out (previously, golf courses could only prepare … Read More