In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Xiamen International Trade Group Co., Ltd. v. LinkGlobal Food Inc., 2023 ONSC 6491, the applicant sought the recognition and enforcement of an arbitration judgment of the Xiamen Arbitration Commission (the “Award”). The underlying arbitration dispute related to a contract entered into by the parties wherein the applicant was to purchase protective masks from the respondent for the purchase price of US $532,224.00. The contract between the parties contained an arbitration clause and a choice of law clause providing that the law of the People’s Republic of China governed any dispute over the contract between the parties. In the arbitral proceeding in China, the applicant sought a refund of the purchase price of the masks and compensation for other costs incurred. A panel of three arbitrators unanimously ruled in favour of the applicant and granted the Award. As the … 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
Court of Appeal Reiterates Limited Scope of Judicial Intervention to Set Aside Arbitral Awards
In the recent Court of Appeal decision of Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, the Court of Appeal overturned a lower court decision setting aside an arbitrator’s award, on the basis that the approach taken by the learned application judge was contrary to that mandated by Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, leave to appeal refused, [2019] S.C.C.A. No. 202 (Alectra). Background The Halton Condominium Corporation 137 (HCC 137) located in Oakville has 82 residential units and 166 parking units located within it’s parking garage, along with common elements such as a lobby and elevators. The parking units comprise of parking for the residential unit owners (the Residential Parking) along with 43 commercial parking units (the Commercial Parking) owned by the defendant Mensula Bancorp Inc. (Mensula), Mensula does not own any residential units and its business is located … Read More
Arbitration and Summary Judgment – Is Summary Judgment Available in Arbitration Matters?
In the arbitration preceding the Ontario Superior Court of Justice (“OSCJ”) decision, Optiva Inc. v, Tbaytel, 2021 ONSC 2929 (CanLII), the respondent successfully brought a motion for summary judgment before a sole arbitrator. The applicant then appealed the arbitrator’s award to the OSCJ, arguing, among other things, that the arbitrator could not, absent consent of the applicant, proceed by way of summary judgment. The OSCJ disagreed with the respondent’s position, instead affirming that the “arbitrator could elect to proceed by summary judgment absent the consent of [the applicant]”. The court cited, as authority for its conclusion, section 20(1) of the Arbitration Act, which states: 20 (1) The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act. The OSCJ opined that “summary judgment should be available to the parties in an arbitration subject to the requirement” that the process: Allows the arbitrator to … Read More
China International Arbitration Award Enforced by Ontario Court
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
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
Online Defamation and Use of Pseudonyms
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
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
Is it a Gift or a Loan?
Have you loaned money to a friend or relative who now refuses to repay you and alleges that the loan was actually a gift? Or are you on the other side of this problem wherein your friend or relative gifted you a sum of money a while ago but is now demanding repayment? These issues come up most often in the private sphere where parties to a transaction do not habitually document all of their ventures. Nevertheless, verbal loan or gift agreements of this sort are still enforceable. Litigation involving a disagreement about whether a transaction was a loan or a gift is typically commenced by the transferor (i.e. the person who has transferred the funds) who claims that the transfer was a loan and not a gift. If you require assistance in either commencing such a claim in the Superior Court of Justice or defending against same, we have … Read More
Five Common Myths about Divorce
Both Spouses Need to Consent to Divorce In Canada, if one spouse wants to divorce, they do not need to seek their spouse’s consent to divorce. Canadian courts will grant a divorce under three grounds: if spouses have been separated from each other for a year without reconciling; if a spouse has proven adultery occurred during the marriage and they have not absolved their spouse; and if one spouse proved they received mentally or physically cruel treatment from their spouse. The Spouse Who Earns Less Income Always Receives Spousal Support Unlike child support, separated and divorced spouses do not have an automatic right to receive spousal support when their marriage ends. Separated spouses may be entitled to receive spousal support. There are several factors which give rise to an entitlement to spousal support. These factors include the length of the marriage or relationship, the roles each spouse played in the … Read More
Toronto Lawyers for Mortgage Defaults – Assessing your Bank’s Bill
Once a mortgage has been defaulted on, banks and other mortgage lenders will often charge mortgagors (you-the borrower and their customer) exorbitant and excessive fees, whether it be intentional or not. Time and again, we have seen these fees levied at exponentially greater amounts than lenders are reasonably entitled to charge under the circumstances. The charging of such unreasonably high fees has not been viewed favourably by the courts. In the midst of Covid-19 related complications and with other financial difficulties remaining on the horizon, many property owners have been unable to continue to pay their mortgages on a consistent basis. One difficulty that presents itself for home owners in this type of situation is the ability of their mortgage lenders to sell their properties via “power of sale” proceedings. A power of sale is meant to pay off secured mortgage lenders for the amount that they are owed under … Read More
Arbitration Clauses Enforced as Non-Consumers Ejected from Telus Class Action by Supreme Court of Canada
In Telus Communications Inc. v Wellman, 2019 SCC 19, the Supreme Court of Canada has favoured arbitration clauses in staying the claims of non-consumers in a class action against TELUS. The Court’s decision reflects a continued commitment of courts to taking a hands-off approach in upholding valid arbitration agreements, while its citation of the Ontario Court of Appeal’s Uber decision indicates that other routes – such as unconscionability – may be pursued to challenge specific arbitration clauses. Facts A proposed class action was filed in Ontario alleging that TELUS had for a number of years rounded up calls to the next minute without telling customers. The class included both consumers and non-consumers (business customers). Each individually agreed to the same non-negotiable standard form contract. The contract included an arbitration clause requiring all disputes (other than collection of accounts by TELUS) to be mediated, and failing that, arbitrated. Ontario’s Consumer Protection … Read More
Employee or Not? An Uber Problem to be Decided by Ontario Courts: Arbitration Not the Route
In its first reported decision of the year, the Ontario Court of Appeal has allowed a proposed class action against Uber to proceed in Ontario court. Facts The Appellant commenced a proposed class action in January 2017. They sought, among other things, a declaration that Uber drivers are employees of Uber and governed by Ontario’s Employment Standards Act [“ESA”], as well as $400 million in damages payable to the class for alleged Uber violations of ESA provisions. Prior to certification, Uber brought a motion to stay the proceeding, requesting the court to enforce a clause in the agreement that requires all disputes to be arbitrated in Amsterdam according to the law of the Netherlands. Ontario Superior Court of Justice The motion judge held that the arbitration clause was enforceable and stayed the action. Applying the Supreme Court of Canada’s Seidel decision and the Ontario Court of Appeal’s TELUS ruling, the motion … Read More
Popack v. Lipszyc: Recognition and Enforcement of Arbitration Awards – Clarifying the term “binding”
Popack v. Lipszyc appears to be the first Ontario Court of Appeal case on the recognition and enforcement of arbitration awards under the 2017 International Commercial Arbitration Act (“ICAA”). The ICCA includes the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and the 2006 amended version of UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). The appellants used articles 35 and 36 of Model Law to apply for the recognition and enforcement of the international commercial arbitration award they received in August 2013 against the respondents. While the application judge dismissed the application, the Court of Appeal allowed the appeal. The Court of Appeal stated that “in Ontario, a strong “pro-enforcement” legal regime” exists for the recognition and enforcement of international commercial arbitration awards, as grounds for refusal are “to be construed narrowly”. Importantly, the Court, and not the tribunal, is the proper avenue to … Read More