In the recent Ontario Superior Court of Justice decision in 2147191 Ontario Inc. v. Springdale Pizza Depot Ltd., the plaintiffs brought a partial summary judgment motion seeking to rescind a franchise agreement under the Arthur Wishart Act (Franchise Disclosure), 2000 (the “Act”). After purchasing the business from an existing franchisee, the plaintiffs alleged that they were entitled to receive disclosure from the franchisor but the disclosure received was so materially deficient that it amounted to no disclosure at all. As a result, the plaintiffs claimed that they were entitled to rescind the franchise agreement within two years of entering into the franchise agreement. The defendant franchisor argued that it was not required to provide disclosure to the plaintiffs due to its minimal involvement in the sale transaction, or in the alternative, it provided satisfactory if imperfect disclosure which would only entitle the plaintiffs to rescind the franchise agreement within sixty days of receiving the disclosure documents (which had elapsed). Under subsections 5(7) and 5(8) … Read More
Civil Fraud Lawsuit Dismissed on Summary Judgment Motion
In Danos v. BMW Group Financial Services Canada, 2014 ONSC 2060, the Ontario Superior Court of Justice dealt with a summary judgment motion brought by the defendants to dismiss the plaintiffs’ claims that it forged their signatures on car leasing documents. The plaintiffs had leased a luxury car from the defendants but failed to keep up with the lease payments. The defendants took steps to repossess the car and commenced an action to recover its losses. After receiving the defendants’ productions, the plaintiffs’ allegedly discovered that their signatures were forged on a number of leasing documents, and commenced a fresh action claiming damages arising from the alleged fraud. The defendants brought a summary judgment motion to dismiss the action. The Supreme Court of Canada in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, recently summarized the elements of the tort of civil fraud as follows: (1) a false representation made by the defendants; (2) some level of knowledge of the falsehood of the … Read More
Court Grants Summary Judgment in Employment Dispute
In Gregory Smith v. Diversity Technologies Corporation, the Plaintiff employee was terminated by the Defendant company for cause. The Defendant stated that the Plaintiff had made a sale to a customer despite being specifically instructed not to do so, and that the order disrupted the Defendant’s production process. The Plaintiff denied that he had been instructed not to sell to the customer. The Defendant argued that a Trial was necessary to resolve the credibility issues. The Judge disagreed, and, following the Supreme Court’s recent decision in Hyrniak v. Mauldin, stated that there was sufficient documentary evidence to allow the court to carry out a fair and just adjudication of the dispute. The Judge stated that she would consider the Defendant’s case “at its highest and best”, and set aside the credibility issues. She stated that even if the Plaintiff had disregarded the Defendant’s instructions not to sell to the customer, it was … Read More
Leave to Bring Summary Judgment Motion Denied in Dog Bite Lawsuit
In Dickson v. Di Michele, 2014 ONSC 2513, the plaintiff claimed the defendants’ dog attacked her while she was delivering a pizza and sued the defendants for damages under the Dog Owners’ Liability Act. After the plaintiff set the action down for trial, the plaintiff brought a motion requesting leave of the court to bring a summary judgment motion with respect to liability and contributory negligence, while leaving the issue of damages for trial. The defendants argued that leave should be denied since the well-established test required the plaintiff to prove a substantial or unexpected change in circumstances since the action was set down for trial. Justice Bale found that the issue was whether the proposed summary judgment motion was likely to provide a “proportionate, more expeditious and less expensive means to achieve a just result than going to trial”, citing the Supreme Court of Canada decision in Hyrniak v. Mauldin, 2014 SCC 7. After considering the evidence, Justice Bale held … Read More
Summary Judgment Granted in Condominium Maintenance and Repair Case
In Patriarcki v. Carleton Condominium Corporation No. 621, 2014 ONSC 1507, the self-represented plaintiff sued her condominium corporation and the condominium corporation’s contractor alleging that they negligently repaired and replaced a boiler in her condominium unit which exposed her to toxic fumes that made her very sick. The defendants brought a summary judgment motion seeking to dismiss the claims against them. The Court considered the guidance recently provided in the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, with respect to summary judgment motion principles before providing its analysis of the case. The issue was whether there was a genuine issue for trial in light of the plaintiff’s alleged failure to present any evidence of liability on the part of the defendants. Although the plaintiff relied on a number of medical reports which opined that her health problems were caused by gas leaks from the boiler, the Court found that the … Read More
Mixed Results in Summary Judgment Motion in Parking Lot Slip and Fall Case
In Wiseman v. Carleton Place Oil Inc., 2014 ONSC 1987, the Ontario Superior Court of Justice addressed the summary judgment motion brought by the two remaining Defendants in a case involving a slip and fall in a Tim Hortons parking lot. The Plaintiff alleged that she broke her wrist when she slipped and fell on accumulated snow along the curb of the drive-through lane. The owner of the parking lot took the position that they had satisfied their duty of care by contracting out for snow removal on the premises. The snow removal contractor argued that they had performed all their contractual obligations on the day of the incident. After summarizing the law on summary judgment as set out by Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, Justice Pedlar held that there were genuine issues requiring a trial in respect to whether the owner was negligent in designing a parking lot that required customers to step over the drive-through curbing to … Read More
Partial Summary Judgment in Franchise Disclosure Case
The Ontario Superior Court of Justice decision in Caffe Demetre v. 2249027 Ontario Inc., 2014 ONSC 2133, involved a partial summary judgment motion to dismiss the franchisee’s rescission claims (in its counterclaim) under the franchise disclosure legislation in Ontario, the Arthur Wishart Act (Franchise Disclosure), 2000 (the “Act”). The Act provides the franchisee with the extraordinary right to rescind the franchise agreement: (i) within 60 days after receiving the disclosure documents; or (ii) within 2 years after entering in to the franchise agreement if the franchisor never provided the disclosure documents. The issue arose when the franchisee received the disclosure documents but attempted to rely on the 2 year rescission period, arguing that the disclosure documents contained “stark and material deficiencies” so as to be amount to no disclosure at all. The franchisee alleged that the franchisor failed to disclose material facts including ongoing litigation against the previous franchisee, implementation and amendment of operational policies, and the cost of remodelling and renovations. Following on the guidance provided by the Supreme Court … 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
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.
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
Recognition of Foreign Judgments – Judgment is Enforceable Regardless of Pending Appeal
In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Acteon v. Verona Medical Group, 2023 ONSC 5140, the plaintiff was successful in obtaining the recognition of a judgment issued by a court in France, the Commercial Court of Bordeaux (the “Summary Proceeding Judgment”), albeit the ONSC stayed the plaintiff’s ability to enforce the Summary Proceeding Judgment in Ontario pending the defendants’ appeal of a related judgment (the “Merits Proceeding Judgment”) in France. The main contentious issue in this recognition proceeding was the defendants’ position that the plaintiff’s Summary Proceeding Judgment was not “final” because of the defendants’ appeal of the Merits Proceeding Judgment in France. The plaintiff’s legal expert advised the ONSC that though the Summary Proceeding Judgment was a “provisional award”, it was still “final, valid, binding and fully enforceable”. The defendants’ legal expert disagreed, positing that the Summary Proceeding Judgment was only an interim decision … Read More
Court of Appeal Affirms Limitation Period for Recognition and Enforcement of Foreign Judgments
In the recent Court of Appeal decision of Sunlight General Capital LLC v. Effisolar Energy Corporation, 2023 ONCA 133, the Court of Appeal reaffirmed the principles established in Independence Plaza 1 Associates L.L.C. v. Figliolini, 2017 ONCA 44, 136 O.R. (3d) 202, (“Independent Plaza 1”) at para. 3, that the limitation period for the recognition and enforcement of a foreign judgment begins to run from the date on which the right of appeal in respect of that judgment expires, and not from the date of issuance of the judgment. Facts: The Respondent, Sunlight General Capital LLC (the “Respondent”), had obtained a judgment against the Appellant, Effisolar Energy Corporation (the “Appellant”), in the Supreme Court of New York for approximately 1.6 million U.S. The judgment was issued on October 18, 2018, and on May 19, 2019, an appeal with the Supreme Court of New York was administratively dismissed. The Respondent moved … Read More
Recognition of Foreign Judgments – The Ontario Courts will not Recognize Enforcement Orders (a.k.a. “Ricochet Judgments”)
In H.M.B. Holdings Ltd. v. Attorney General of Antigua and Barbuda, 2021 ONSC 2307, on a summary judgment motion, the Ontario Superior Court of Justice (“OSCJ”) found that there was no genuine issue requiring a trial and subsequently dismissed the plaintiff’s action (commenced on May 6, 2019) for the recognition of a money judgment that it obtained against the defendant in British Columbia in 2017 (“BC Judgment”). The BC Judgment was a default judgment recognizing and enforcing a judgment of the Privy Council of the United Kingdom which the plaintiff obtained in 2014 (“Privy Council Judgment”). The defendant argued that: The plaintiff was attempting to avoid seeking recognition and enforcement of the original Privy Council Judgment in Ontario by seeking to recognize and enforce the derivative BC Judgment instead; The plaintiff would be out of time to seek recognition of the Privy Council Judgment in Ontario (because of the expiry … Read More
Can’t Get Financing On Time? You May Lose Your Deposit – Toronto Real Estate Lawyers
In the recent decision of the Ontario Court of Appeal (“ONCA”), Nguyen v. Zaza, 2023 ONCA 34, the ONCA dismissed the appellant’s appeal from a decision of a judge of the Ontario Superior Court of Justice to grant the respondent’s summary judgment motion and order forfeiture of the appellant’s deposit of $50,000 to the respondent (among other relief). The appellant was the purchaser and the respondent was the seller of the subject property. The agreement of purchase and sale at the center of the dispute between the parties specifically indicated that time was of the essence. Originally, the agreement was conditional on the appellant arranging financing and a satisfactory home inspection, but the appellant waived those conditions prior to closing. The motion judge found that on the closing date the respondent was ready, willing, and able, to close whereas the appellant did not tender the purchase price required from her … Read More
Failure To Close A Real Estate Transaction Can Be Very Costly
For many reasons, an agreement of purchase and sale to buy real estate may be breached by either the seller or the purchaser. The innocent party may be entitled to significant compensation. For instance, in the recent Ontario Court of Appeal (ONCA) decision, Rosehaven Homes Limited v. Aluko, 2022 ONCA 817, the ONCA upheld a lower court decision granting summary judgment requiring the appellants to pay damages to the respondent arising from the appellants’ failure to complete an agreement of purchase and sale for the purchase of a home. In that case, the appellants were unable to complete the transaction because they could not obtain sufficient financing. However, the agreement was not conditional on them obtaining financing. The respondent ultimately sold the property at a loss (compared to the sale price agreed to between the parties). The lower court awarded $331,922.27 to the respondent (being the difference between the original … Read More