Business Dirty Tricks: Unfair Competition: Intentional Interference, Inducing Breach of Contract, Conspiracy and Defamation

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAppropriation of Personality, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Law, Commercial Litigation, Contract Disputes, Contract Termination, Cross-Border Litigation, Cyber Risks, Fraud, Injunction & Specific Performance, Intellectual Property, Of Interest to US Counsel, Partnerships and Shareholder Disputes, Passing Off, Trademark Infringement0 Comments

Sometimes businesses and their stakeholders act wrongfully in seeking to advance their interests and / or harm competitors. There are often reports of the “dirty tricks” used by those in business to seek to destroy, defeat or diminish the effectiveness of a competitor. These are often unethical tactics, but sometimes such conduct is also wrongful and has been recognized by the common law as actionable in the courts for damages or injunctive or other urgent equitable relief, or prohibited by a statute which provides for a civil monetary remedy or grounds for an injunction. These causes of action have been recognized and provide the basis of lawsuits for harm, loss and damage, and in suitable circumstances, grounds for an immediate injunction or mandatory order prohibiting the further commission of the wrongful acts. In short, wrongful intentional acts causing harm, loss or damage to businesses or their stakeholders may give rise to a cause of action in common law business torts (the so-called … Read More

US Court of Appeals Reverses Lower Court Decision; Re-Opens US Trademark Infringement Claims Against Canadian Operation

Gilbertson Davis LLPCivil Litigation, Cross-Border Litigation, Intellectual Property, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Trader Joe’s Company v. Hallatt, the United States Court of Appeals for the Ninth Circuit recently overturned a lower court decision which had originally dismissed claims that Mr. Hallatt, a Canadian citizen but permanent resident of the United States, was violating the trademark rights of Trader Joe’s, a popular US grocery store chain, by reselling their products in Canada under the name “Pirate Joe’s” and by using an allegedly confusingly similar store design and motif. Mr. Hallatt’s business involved purchasing Trader Joe’s products in Washington state, transporting them across the border to British Columbia, and re-selling the product to Canadians at a mark-up. Trader Joe’s, which does not carry on business in Canada, sued in Washington state, claiming Mr. Hallatt was infringing on their US trademark rights. They asserted that Hallatt’s actions were damaging their trademark rights under US law. At the lower level, Trader Joe’s claims were dismissed, as … Read More

Court Stays Arbitration but Denies Costs to Successful Party for “Blameworthy Conduct”

Andrew Ottaway, B.A. (Hons.), LL.B.Arbitration, Civil Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Contract Termination, Partnerships and Shareholder Disputes0 Comments

In Gorman v Kosowan, 2016 ONSC 5085, the applicant commenced a proceeding regarding a business dispute. The applicant and individual respondent were joint owners of a transportation and warehouse business.  A dispute arose between them.   The respondents subsequently terminated the applicant’s employment and excluded him from the business.  The applicant sought relief from the allegedly oppressive conduct under the Canada Business Corporations Act and the Ontario Business Corporations Act.  The respondents brought a motion to stay the oppression application based on an arbitration clause in the parties’ Unanimous Shareholders’ Agreement (“USA”). The USA arbitration clause required arbitration for “disputes under” the USA. The Judge found that the applicant’s claims were covered by the arbitration clause and granted the respondents’ motion to stay the application. In the Judge’s subsequent costs decision, here, the Judge denied the respondents’ request for costs of the motion.  While a winning party is typically entitled to its costs … Read More

Court of Appeal Provides Guidance on “Forum of Necessity” Doctrine

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Civil Litigation, Contract Disputes, Contract Termination, Cross-Border Litigation, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Arsenault v. Nunavut, 2016 ONCA 207, the Plaintiff commenced a lawsuit in Ontario regarding an employment dispute with the defendant, the government of the Canadian territory of Nunavut.  The motion judge concluded that Ontario did not have jurisdiction over the dispute because the dispute did not have a “real and substantial connection” with the province of Ontario, and that Nunavut was clearly the more appropriate forum to hear the dispute.  The Plaintiff appealed, arguing that the motion judge had not properly considered whether Ontario was the “forum of necessity” – i.e. the doctrine allowing the Court to assume jurisdiction over a dispute, even though there is no “real and substantial connection” with Ontario, because there is no other forum in which the plaintiff can reasonably seek relief (see our previous posts regarding the doctrine of “forum of necessity” here and here). The Court of Appeal dismissed the Appeal.  The Court of Appeal noted … Read More

Enforcement of Ontario Judgment in US (U.S.A and American States)

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Casino Debt Recovery, Civil Litigation, Commercial Arbitration, Commercial Litigation, Creditors Rights, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Forum Challenges, Jurisdictional Challenges, Loan and Guarantee, Of Interest to US Counsel0 Comments

If you are looking for Enforcement of US Judgment in Ontario, Canada, then click here. ____ Enforcement of Ontario Judgment in US (U.S.A and American States)  We sometimes act for clients in litigation against defendants located in an American state, or having assets located in one or more U.S. states. Other times we are retained simply to assess and / or seek enforcement of an Ontario or other Canadian judgment in an U.S. state. Accordingly, the consideration sometimes arises whether a money judgment obtained in a court of Ontario or Canada is readily enforceable in a particular US state. Neither Ontario nor Canada is a party to any bilateral enforcement of money judgement treaty or convention with the U.S. or any particular state in the U.S..  However many U.S. states have enacted statutes concerning the enforcement of foreign (including Ontario and Canada) money-judgments in that state. Since this is largely … Read More

In Jurisdiction Dispute, Court of Appeal Confirms Contract Made Where Acceptance Received

Andrew Ottaway, B.A. (Hons.), LL.B.Appellate Advocacy, Civil Litigation, Commercial, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Eco-Tec Inc. v. Lu, the Plaintiff Ontario company researched, developed and manufactured proprietary technology and products.  The Defendants were Lu, a Canadian citizen, his BVI company and three Chinese companies owned by him or his parents.  The Defendant companies were the Plaintiff’s consultant, agent or distributor in China.  In the course of their relationship, the Plaintiffs and Defendants signed a number of agreements. The Plaintiff ended its relationship with the Defendants in 2012, alleging that the Defendant’s Chinese companies were selling clones of the Plaintiff’s product in China.  The Plaintiff brought a claim for breach of confidence, breach of contract, breach of fiduciary duty, conspiracy, unjust enrichment and/or unlawful interference with its economic interests.  The Defendants brought a motion to dismiss the Ontario action on the basis that the Ontario Court did not have jurisdiction.  The motion judge dismissed the motion, finding, among other reasons, that the dispute was connected … Read More

Partnership and Contractual Disputes between Professionals (Dentists, Doctors, Accountants, Lawyers, Architects, Engineers)

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Business Litigation, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Contract Termination, Debt and Enforcing Judgments, Injunction & Specific Performance, Joint Venture Disputes, Partnership Dispute, Partnerships and Shareholder Disputes, Professions0 Comments

Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Lastly, some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact … Read More

Court Declines Jurisdiction over New York MVA Despite Passed Limitation Period

Gilbertson Davis LLPCivil Litigation, Cross-Border Litigation, Insurance, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Mannarino v The Estate of Jane Brown, the Superior Court declined to take jurisdiction over a claim involving a motor vehicle accident that took place in New York, even though the limitation period for bringing a claim in New York had since passed. The plaintiff was a passenger in a vehicle in the state of New York, and was involved in a car accident with another New York driver. The plaintiff sued in Ontario, claiming in part that the injuries suffered exacerbated an earlier motor vehicle injury which was already properly before the courts in Ontario. The plaintiff argued that the nature of the injuries would require the two actions to be consolidated. The court noted that no consolidation motion had yet been brought. Justice Skarica considered the factors outlined in Club Resorts Ltd. v. Van Breda for the court to take jurisdiction over a claim. The court found that none of … Read More

Ontario Court of Appeal summarily dismisses appeal under new rule 2.1

Gilbertson Davis LLPAppellate Advocacy, Civil Litigation0 Comments

In Brown v. Lloyd’s of London Insurance Market, 2015 ONCA 235, the Court of Appeal for Ontario summarily dismissed an appeal on its own motion, pursuant to rule 2.1.  Rule 2.1 has been in force since July 1, 2014, and is intended to put an end to civil actions that are, on the face of the statement of claim, so obviously without merit that no argument apart from counsel’s letter of request is required.  Gilbertson Davis’ Lee Akazaki was counsel for one of the successful defendants / respondents. This appears to be the first time the rule has been invoked to dismiss a civil appeal.  The practice has proven very economical, as the necessity for expensive, labour-intensive motions to strike statements of claim, has been eliminated in instances where actions are clearly without merit.

Court of Appeal Rejects Apotex’s Claim for Unjust Enrichment

Gilbertson Davis LLPAppeals, Civil Litigation, Intellectual Property0 Comments

In the recent decision of Apotex Inc. v. Eli Lily and Company, the Ontario Court of Appeal has dismissed a claim by Apotex, a pharmaceutical company that  produces generic pharmaceuticals. In the case, the defendant Eli Lilly relied upon the PM(NOC) patent regulations to restrict Apotex from entering the market and selling a generic version of a pharmaceutical which was subject to a patent. That patent was ultimately invalidated. Apotex claimed that claimed that Eli Lilly had been unjustly enriched by making revenues of some $70 million as it was wrongfully delayed from entering the market and making revenues itself. It argued that allowing Eli Lilly to retain its monopolistic profits and only pay Apotex its lower lost revenues would result in a windfall to Lilly that encourages patent holders to improperly delay others from entering the market. Ultimately, the Court’s objection to Apotex’s position was that Apotex could not … 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

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

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

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