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
International Sale of Goods – the Law Applicable in Ontario
Many Ontario businesses buy and sell goods from foreign companies. However, few Ontario businesses are aware that different laws apply to international purchases and sales of goods. For purchases and sales of goods between Ontario companies, the Ontario Sale of Goods Act will typically apply. However, for purchases and sales of goods between Ontario and foreign companies, the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”) will typically apply. The CISG is “Ontario law”. It is enacted in Ontario by the International Sales Conventions Act. There are a number of key differences between the Ontario Sale of Goods Act and the CISG. One of the most notable is the obligation on the buyer to inspect goods (article 38) and give notice of any non-conformity (article 39). The inspection obligation imposed by article 38 can have significant consequences: if the buyer fails to detect a lack of conformity … Read More
Andrew Ottaway comments on International Commercial Arbitration for the Law Times
Andrew Ottaway was asked to comment on international commercial arbitration in Ontario, including the new International Commercial Arbitration Act, 2017. Read the Law Times article here: “New laws may spur more arbitration in Ontario“. The lawyers at Gilbertson Davis have experience with domestic and international commercial arbitration. Please contact us to arrange an initial consultation.
Ontario’s New International Commercial Arbitration Act Now In Force
Ontario’s new International Commercial Arbitration Act, 2017 (the “ICAA”) came into force on March 22, 2017. The new ICAA contains a number of changes from its predecessor, including: Adoption of the the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the “New York Arbitration Convention”). Essentially, Ontario has confirmed that it will recognize and enforce an arbitral award made in a state which is party to the Convention. Changes to the limitation period in which a proceeding must be commenced to enforce an arbitral award. Both the ICAA and the Ontario domestic Arbitration Act, 1991 now provide for a 10 year limitation period to commence a proceeding to enforce an arbitration award. (The ICAA previously provided for a two year limitation period.) Adoption of the 2006 amendments to the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law … Read More
Federal Court Restricts Republication of Canadian Legal Decisions Under PIPEDA
In the recent decision of A.T. v. Globe24h.com, the Federal Court held that the respondent’s re-hosting of publically available Canadian legal decisions ran afoul of the Personal Information Protection and Electronic Documents Act‘s (PIPEDA’s) restriction on the collection, use, and disclosure of personal information without consent, prioritizing the personal information of individuals against the broad open court principle that would otherwise warrant the unrestricted publication of judicial decisions. The respondent operated a website out of Romania which focused on re-publishing judicial decisions which are already publically available through online services such as CanLII. The primary difference between the respondent and services like CanLII was that the respondent’s website was indexed such that its content would appear in search results on Google or other search engines, whereas decisions on CanLII are not indexed and would not appear on any search engine. Any person who collects, uses, or discloses personal information in respect of a … Read More
Court of Appeal Upholds Finding Of Jurisdiction Based on Business Activities in Ontario
In Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 977, the plaintiff/respondents were eight car dealerships. Four of the eight were located outside of Ontario. The defendant/appellants were: IFS Vehicle Distributors ULC (“IFS”), a British Columbia corporation; International Fleet Sales Inc. (“International”), a California corporation, an affiliate of IFS which supplied parts and accessories to IFS; and two individuals who were officers of both IFS and International, and who resided outside of Ontario. The defendants brought a motion to stay the action, arguing that the out-of-province plaintiffs could not be part of the action, and could not sue the defendants in Ontario. However, the motion judge found that the claim was presumptively connected to Ontario based on one of the factors set out by the Supreme Court in Club Resorts Ltd. v. Van Breda: that the defendant carried on business within the jurisdiction. The motion judge found that … Read More
Supreme Court of Canada To Rule on Scope of Injunction Against Innocent Search Engine
On December 6, 2016, the Supreme Court of Canada heard arguments on the appeal of an order of the British Columbia Court of Appeal which ordered Google to de-list certain websites from being accessible from any of its country-specific search engine domains. The defendants were alleged to have engaged in selling online counterfeit products of the plaintiff, contrary to the plaintiff’s intellectual property rights. The British Columbia Supreme Court originally ordered the defendants to cease all sales of counterfeit product on the internet. The defendants did not comply, and have hidden themselves somewhere unknown, such that the plaintiff could not practically use the courts to compel the individuals responsible from ceasing this activity. As an alternative, the plaintiff looked to Google to make the defendant’s websites not appear in search result listings, which would largely effect the same result in that customers searching for the plaintiff’s products will not discover … Read More
Court Refuses to Enforce Forum Selection Clause
In McMillan McGee Corp. v Northrop Grumman Canada, 2016 ONSC 6334, the Plaintiff sued the Defendants (“Northrop”) for damages arising from work done by the Plaintiff for the Northrop in Ontario. Northrop’s Request for Proposals included “Purchase Order Terms and Conditions” (the “RFP Terms and Conditions”). The RFP Terms and Conditions contained: a forum selection clause, stating that “either Party may only bring suit in federal or state court in the state from which this Order is issued”; and a choice of law clause, stating that “his Order will be construed and interpreted according to the law of the state from which this Order is issued, as identified in the Order”. “Order” was defined as “The instrument of contracting including this Purchase Order and all referenced documents”. The parties’ relationship involved three Purchase Orders, and many change orders. The lawsuit involved invoices delivered after the Second Purchase Order. The First Purchase Order … Read More
Cross-Border Ship Mortgage Enforcement
In an admiralty action in rem and in personam, Lakeland Bank v. Never E Nuff (Ship), 2016 FC 1096, the Federal Court dismissed the action in personam on a US mortgage, registered in New York State, against the mortgagor, a U.S.based former owner of a 38-foot pleasure craft and against its innocent purchaser for value without notice in Canada and dismissed the purchaser’s counterclaim for abuse of process, but ordered the return of a trailer and other personal items, which had been arrested in Canada with the pleasure craft, but were not covered by the mortgage. The Federal Court did however order that the action in rem be maintained and provided that the plaintiff shall promptly move for sale of the pleasure craft. The plaintiff, an American bank, held a first preferred mortgage registered at the National Vessel Documentation Center, United States Coast Guard. The bank had instituted proceedings in personam and in rem in the United States District Court, Northern District of New York, but it could … Read More
Court of Appeal Upholds Stay Based on Contractual Choice of Forum/Arbitration Clause Against Non-Contracting Parties
In Novatrax International Inc. v. Hägele Landtechnik GmbH, 2016 ONCA 771, the plaintiff and the defendant Hägele were parties to an Exclusive Sales Agreement (“ESA”). Hägele terminated the ESA. The plaintiff sued Hägele, its individual principals and Cleanfix, a North American company related to Hägele. The defendants collectively moved to stay the Plaintiff’s claim, relying on a forum selection clause in the ESA which stated: “The contractual parties agree that German law is binding and to settle any disputes by a binding arbitration through the “Industrie und Handelskammer” (Chamber of Commerce) in Frankfurt.” The motion judge granted the stay, despite the fact that only Hägele, and not the other defendants, was a party to the ESA. The plaintiff appealed on two grounds: that the motion judge erred in i) interpreting the scope of the forum selection clause and ii) staying the action against the defendants who were not party to the … Read More
Ontario Court of Appeal Split Decision on Appropriate Jurisdiction in Online Defamation Case
The Ontario Court of Appeal recently released its decision in Goldhar v. Haaretz.com on the issue of whether Ontario was the appropriate jurisdiction to litigate a defamation claim relating to an online publication by an Israeli newspaper that purported to defame Mr. Goldhar, who lives in Toronto but has business connections in Israel. The majority held that the litigation could proceed in Ontario, as the court had jurisdiction and also that Israel was not a clearly more convenient forum. The majority concluded that, even though Mr. Goldhar was likely more well-known in Israel, and the fact that the facts asserted in the article related to his ownership of a prominent Israeli soccer team, the article had the potential to damage his reputation in Ontario, and the article was read by a number of Ontarians (though only a fraction of the number who read the article in Israel), and therefore, the court had jurisdiction … Read More
Toronto Attorneys for Enforcement of U.S. Judgments in Ontario, Canada
American judgments, from either State or U.S. Federal Courts may be recognised and enforced in Ontario, Canada. The test for whether the Court of Ontario will recognize and enforce a U.S. judgment is as follows: did the U.S. Court have jurisdiction, in accordance with the principles of private international law as applied by Canadian courts? is the judgment final and conclusive? is the judgment for a definite and ascertainable sum of money or, if not a money judgment (e.g. an injunction), are its terms sufficiently clear, limited in scope and do the principles of comity require the domestic court to enforce it? The Ontario Court will also consider the following, limited defences of: fraud (i.e. whether the U.S. judgment was obtained by fraud); natural justice (i.e. whether the U.S. proceedings were contrary to Canadian notions of fundamental justice); and public policy (i.e. whether the U.S. judgment was contrary to our view … Read More
Business Dirty Tricks: Unfair Competition: Intentional Interference, Inducing Breach of Contract, Conspiracy and Defamation
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
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
Joint Venture Disputes and International Joint Venture Arbitration
Joint ventures are often established to synergize what each member of the joint venture can add to the consortium. Sometimes a joint venture is the structure chosen because those members engaged in the joint venture are located in different jurisdictions, a consideration which may be pivotal for its success. While invariably created by contractual agreement, some joint ventures have been held by the courts to be a partnership, while others have been determined to be merely contractual, without comprising a partnership. A myriad of considerations have been used by the courts in determining whether a joint venture is a partnership. Issues have also arisen concerning the management and operational structure of a joint venture and whether such structure necessarily results in the joint venture being found to comprise a partnership. Historically the distinction between partner and contractor has been important, since the law only imposed a fiduciary duty upon partners, and not … Read More
Court of Appeal Provides Guidance on “Forum of Necessity” Doctrine
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
Ontario Court Provides Jurisdiction Analysis of Place of Contract and Carrying on Business in Ontario
In Re: Essar Steel Algoma Inc. et al, 2016 ONSC 595, an Ontario steel company, Essar, entered into a plan under Canada’s Companies’ Creditors Arrangement Act (“CCAA”, a Canadian corporate bankruptcy proceeding). As part of its restructuring, Essar entered into a contract with a U.S. supplier, Cliffs. A dispute arose between Essar and Cliffs regarding the contact. Essar brought a motion in the CCAA proceedings seeking, among other things, a declaration that Cliffs had to continue supplying under the contract. In response, Cliffs brought a motion seeking to dismiss Essar’s motion on the basis that the Ontario did not have jurisdiction or that Ontario was not a convenient forum. The Ontario Court applied “real and substantial connection” test set out by the Supreme Court of Canada in Van Breda, and considered i) whether the contract was made in Ontario and ii) whether Cliffs carried on business on Ontario. With respect to i), the Court … Read More