ONTARIO – Limitation Periods – Real Estate – The 10-year limitation period in s. 4 of the Real Property Limitations Act, (“RPLA”) does not apply to an action to declare a fraudulent conveyance of real property void as against creditors under s.2 of the Fraudulent Conveyances Act (“FCA”).The two-year limitation period from the date the claim was discovered under s. 4 of the Limitations Act, 2002 applies. ONCA’s decision in Anisman v. Drabinsky, 2021 ONCA 120 was wrongly decided.
ONTARIO – Duty of Good Faith and Honest Performance of Contract – Even where a Court finds a breach of the duty of good faith and honest performance of a contract, the claimant must prove that it suffered damages. There is no presumption of damages upon a finding of a breach of duty of honest performance. The ONCA distinguished between evidentiary issues in proving damages, which may allow the Court to draw inferences as to quantum, and a failure to tender any evidence as to damages.
BRITISH COLUMBIA – Arbitration – Application to Stay Proceedings – Under s. 8(1) of the International Commercial Arbitration Act, the party applying for a stay has the onus of establishing an arguable case that the prerequisites for a stay have been met. Where those prerequisites are met, under s. 8(2) of the ICAA, the party opposing the stay has the onus of showing that the arbitration agreement was void, inoperative or incapable of being performed.
ONTARIO – Share Division – Where there is evidence supporting a division of shares that is different from the original division found in the corporate records, including an agreement between the shareholders, the corporate records alone are not dispositive of the issue of share division.
ONTARIO – Arbitration – Arbitration Agreement for online purchasing is binding in consumer claims of a commercial nature. In the absence of any indication of Parliamentary intent to do so, mandatory arbitration clauses in consumer adhesion contracts will be enforced.
ONTARIO – Mareva/Norwich Orders. In cases where there is a strong prima facie case of fraud, breach of trust or breach of fiduciary duty, non-disclosure on the investment details, and evidence of dissipation of assets, the court will issue an interlocutory Mareva injunction and an interim Norwich order requiring production of documentation from third party financial institutions.