In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Roger Vanden Berghe NV v. Merinos Carpet Inc., 2023 ONSC 6728, the ONSC provided a helpful guide on some of the key principles applicable to cases involving the recognition and enforcement in Ontario of judgments from other countries. In this case the ONSC granted an application for the recognition and enforcement of a judgment from a court in Belgium; the Ghent Business Court, Kortrijk Division, First Chamber (the “Judgment”). The underlying dispute that was adjudicated in Belgium was with respect to unpaid invoices for textile orders. The respondent did not respond to the proceeding in Belgium, although summoned by a Writ of Summons. The respondent claimed that it was not properly served with the Writ of Summons, and even if it was, one of its representatives would not have been able to attend given the Covid-19 travel restrictions … Read More
Ontario Superior Court of Justice Finds Expired Arbitration Award Relevant in Motion for Injunctive Relief
In Rogers v. TELUS Communications Inc., 2023 ONSC 5398, the Ontario Superior Court of Justice held that the terms of an expired arbitration decision are relevant when a party seeks injunctive relief that contradicts its terms. The moving and responding parties are both prominent competitors in the Canadian telecommunications market. Under a requirement imposed by the Government of Canada, their customers have the reciprocal ability to “roam” on the other carrier’s network in areas where their own carrier does not provide coverage. This obligation allows Canadian customers to access wireless services across the country. For a time, the parties did not agree on what was displayed to customers when they were roaming on a competitor’s network. The primary dispute was whether the network identifier (“NID”) displayed in the top-left corner of most mobile devices would connote an extension of their own carrier’s network (i.e. “[Carrier]-EXT”), or if it would notify customers … Read More
Stay of Court Proceedings in Favour of Arbitration – Standard of Proof
In the recent decision Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, the Ontario Court of Appeal (“ONCA”) reviewed the law of international commercial arbitration, and in particular opined on the issue of the standard of proof that a party needs to meet in order for the court to grant a stay of a court proceeding pursuant to section 9 of the International Commercial Arbitration Act, 2017 (the “Act”), in favour or arbitration. Section 9 of the Act states as follows: Where, pursuant to article II (3) of the Convention or article 8 of the Model Law, a court refers the parties to arbitration, the proceedings of the court are stayed with respect to the matters to which the arbitration relates. The appellant submitted that the proper analytical framework for assessing a request to stay an action under the Act was set out in the … Read More
Do it, Don’t Just Say it! Court of Appeal refuses to Rule on Arbitration Clause
On a recent motion before the Court of Appeal in Paulpillai Estate v. Yusuf, 2020 ONCA 655 (CanLII), Jamal J.A. clarifies that a party needs to bring a motion if it wants the proceeding to be referred to arbitration. In the underlying decision, Paulpillai v. Yusuf, 2020 ONSC 851 (CanLII), the motion judge noted that the responding parties “have maintained in their affidavit evidence that the matter should have proceeded by way of arbitration, but at no time did they bring a motion seeking to stay these proceedings or to compel the Applicants to proceed by way of arbitration”. Accordingly, the motion judge found that the responding parties have waived their right to seek to have the issues in the action determined by way of arbitration. In agreement with the motion judge, Jamal J.A., writing for the Court of Appeal, clarifies that, even though (a) there was an arbitration clause … Read More
Corporate Governance Considerations During the Covid-19 Pandemic
Corporate governance issues are top of mind for directors and businesses who are attempting to navigate through the Covid-19 Pandemic related closures and emergency measures. Boards of Directors still need to operate and make decisions in the best interests of the corporation, and this can involve tough decisions, particularly where there is little guidance as to how measures to lift Covid-19 related restrictions will play out. By example, while it may be in the best interest of investors and shareholders that the Board act to lay off employees in the short term, the impact of staff shortages when Covid-19 restrictions are lifted may pose it’s own challenges. Many businesses must consider how to hold governance meetings during Covid-19 times. On March 30, 2020, Ontario passed an Order under the Emergency Management and Civil Protection Act (EMCPA), (Ontario Regulation 107/20) entitled “Meetings for Corporations” making temporary changes to the Business Corporations … Read More
COVID-19 / Coronavirus: Rent Relief for Small Businesses Is Coming
On April 16, 2020, the Federal government announced the Canada Emergency Commercial Rent Assistance (CECRA) program to assist small businesses with their rent payments during the COVID-19 crisis. The CECRA program will provide loans and/or forgiveable loans to commercial property owners who will be expected to pass on the benefit to small businesses by lowering or forgoing rent for April (retroactively), May and June 2020. Further details of the program are expected to be released soon and the program will be administered by the provincial and territorial governments. Although the Ontario Superior Court of Justice had issued an Order on March 19, 2020 suspending the eviction of residents from their homes (unless ordered otherwise under an urgent motion), there was no similar protection against evictions for commercial tenants which included many small business owners. Commercial rent payments are typically the second largest operating expense for most small businesses after payroll … Read More
COVID-19 / Coronavirus: How to Schedule an Urgent Civil or Commercial List Hearing
On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled civil hearings were adjourned until further notice. The Notice to the Profession provides a procedure to schedule urgent and time-sensitive motions and applications where immediate and significant financial repercussions may result without a hearing. When motion or application materials are filed, by email to the appropriate courthouse, seeking an urgent hearing, the triage judge will determine whether or not the matter is urgent and should be scheduled for a hearing. There have been a few recent endorsements reported in respect to the scheduling of urgent commercial lease matters. Urgent Motion – Relief From Forfeiture In Oppong v. Desoro Holdings Inc., 2020 ONSC 1697, the applicant sought relief from forfeiture to set aside the landlord’s termination of the lease. Although the application was brought promptly and scheduled to be … Read More
Andrew Ottaway Writes Article on CISG for Law Times
The Law Times recently published an article by Andrew Ottaway on the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”). The article includes: a discussion of the recent case of Solea International BVBA v. Bassett & Walker International Inc., 2018 ONSC 4261 (CanLII), in which the Ontario Court applied the CISG; a discussion of the near total obscurity of the CISG in Ontario; examples of the notable differences between the CISG and the Ontario common law / Sale of Goods Act. The article can be read in its entirety here. The lawyers at Gilbertson Davis LLP have experience in commercial litigation, including cross-border litigation involving the CISG. Contact us for an initial consultation.
Entire Agreement Clause Upheld in Manorgate Estates Inc. v. Kirkor Architects and Planners
Entire Agreement Clauses are meant to prevent negotiations that occurred prior to the contract being formed from influencing the Court’s interpretation of the terms set out in the final contract. In other words, past discussions are to have no bearing on the understanding of the contractual terms. In theory, a fully integrated agreement of this kind supplants any earlier oral or written agreements. There is competing jurisprudence in which Entire Agreement Clauses have been both effective and ineffective. However, Manograte Estates Inc. v. Kirkor Architects and Planners is a recent Ontario Court of Appeal decision where an Entire Agreement Clause was effective. In Manograte Estates Inc. v. Kirkor Architects and Planners, the Ontario Court of Appeal upheld the Motion Judge’s decision that the Entire Agreement Clause in the relevant agreement, regarding architectural consulting for a construction project, operated as a complete defence to the appellants’ claim of alleged negligent misrepresentation. The Entire Agreement Clause … Read More
Shareholders’ Remedies under the OBCA: An Overview (Part 2/2)
When a shareholder’s rights are breached, there are a variety of legal remedies available under the Ontario Business Corporations Act (“OBCA”). For more information on shareholders’ rights, please click here to see part 1 of this post. Oppression Remedy It is first important to note that as per the Ontario Court of Appeal decision Maurice v. Alles, the standard two-year limitation period set out in the Limitations Act applies to oppression remedy claims. The “clock starts to run” when the oppressive conduct first began, meaning that individuals must not delay if they wish to pursue an oppression remedy. The oppression remedy under s. 248 of the OBCA is broad in nature, and there is a large amount of judicial discretion afforded in its application. The oppression remedy can be an especially strong tool in protecting minority shareholders. When the Court determines that there has been oppressive conduct, unfairly prejudicial conduct, or conduct that disregards the interests of any shareholder it may make an order to resolve the matter in a variety of ways. … Read More
Shareholders’ Rights under the OBCA: An Overview (Part 1/2)
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. Please click here to see part 2 of this post on shareholders’ remedies. 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 … Read More
The Supreme Court of Canada On Defence Against the Tort of Conversion (Teva Canada Ltd. v. TD Canada Trust)
In Teva Canada Ltd. v. TD Canada Trust, Teva Canada Ltd. (“Teva”), a pharmaceutical company, “was the victim of a fraudulent cheque scheme implemented by one of its employees”, (para 1). Teva claimed the collecting banks were liable for the tort of conversion. Teva Canada Ltd. v. TD Canada Trust provides insight into the Bills of Exchange Act‘s (“BEA”) section 20(5) defence to the tort of conversion, by clarifying the approach used to determining whether a payee is “fictitious or non-existing”. In the event that a payee is deemed fictitious or non-existing within the meaning of section 20(5) of the BEA, the bill may be treated as payable to the bearer, and thus can be negotiated by simple “delivery” to the bank meaning endorsement is not required, and the defence will succeed (para 5). Justice Abella, writing for the majority, outlined the two-step framework a bank must satisfy to demonstrate that a payee is fictitious or … Read More
China Signs Hague Convention on Choice of Court Agreements
We previously wrote that Ontario had 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.) Since our previous blog post, the People’s Republic of China signed the Hague Convention. China has not yet ratified the Hague Convention, which requires approval by the National People’s Congress. China’s signing of the Hague Convention represents an important step towards more widespread adoption of the convention. The lawyers are Gilbertson Davis have experience in international litigation and arbitration, and in interpreting international conventions. Please contact us for an initial consultation.
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
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
Blockchain Technologies Create Novel Legal Issues
Blockchain technology is increasingly gaining traction in a variety of different markets and industries, including insurance, securities, and enforcing contracts, and with these new uses come new legal considerations. Blockchain is essentially a ledger, decentralized with copies maintained across numerous computers, which maintains records of transactions which can be added to in an automated and secure manner. Because the entire history of the validated blockchain ledger is incorporated into all subsequent versions of the ledger, it allows for easy verification of the completion and authenticity of a transaction, since the history of the fund or asset can be traced back to the beginning of the entire blockchain. It is also very resistant to fraud and hacking, since any attempt to create a fraudulent transaction the blockchain must simultaneously modify all previous versions of the blockchain on the majority of the computers running the ledger in order for the transaction to be validated. One of the … Read More
- Page 1 of 2
- 1
- 2