ONTARIO – An application to set aside an arbitrator’s decision as to jurisdiction on the basis that there was no arbitration agreement is a hearing de novo not an appeal.—There is no binding arbitration agreement where there was no meeting of the minds of the parties to arbitrate.— Where a Court sets aside an arbitral award on the basis that there was no arbitration agreement, section 17(9) of the Arbitration Act, 1991 is inapplicable and there is a right of appeal.
Continue readingCase #037E – Dealer’s Choice Preferred Collision Centre Inc. v. Kircher et. al.
ONTARIO – Where a plaintiff seeks to amend or substitute another entity for itself, the Court should not make the order unless the “new” plaintiff was an intended plaintiff when the action was commenced, and the defendant reasonably ought to have been aware of which entity was “pointing its litigating finger” in its direction.
Continue readingCase #036E – Guaranteed Funeral Deposits of Canada (Fraternal) v. Assurant Life of Canada
ONTARIO – Interpretation of Contracts — Rescission — Where a party misrepresented the nature and purpose of an amendment to an agreement, the other party was entitled to rescission, even if the misrepresentation was innocent. Where an important amendment to an agreement is being made, the party proposing it must ensure that knowledge of the amendment comes to the other side.
Continue readingCase #035D – Maisonneuve v. Clark
ONTARIO – An arbitration clause did not require specific steps before arbitration could be commenced. Therefore, the limitation period began to run when one side informed the other that they would not enter into further negotiations.
Continue readingCase #034D – Parekh et al v. Schecter et al
ONTARIO – Court grants interlocutory injunction enforcing non-competition and non-solicitation covenants contained in a Dentist Associate Agreement related to the sale of a business, preventing the associate of dental practice from i) practicing within a 5 km radius ii) from soliciting clients and iii) from using confidential patient information from the purchased business.
Continue readingCase #033D – MacBryce Holdings Inc. et al. v Magnes Partnership et al.
ONTARIO – An “Estimate of Fair Market Value” clause of a Shareholders Agreement was held to provide for an arbitration, not a valuation, even though the nominee had to be a chartered accountant. The arbitrator, not the Court, should determine the valuation date. If the parties could not agree on the selection of the arbitrator, the Court will do so.
Continue readingCase #032E – Cineplex v. Cineworld, 2021 ONSC 8016
ONTARIO – A contract for the purchase of Cineplex was enforceable despite the COVID pandemic due to the exclusion of “outbreak of illness” in the material adverse effect clause. Cineplex did not breach its covenant to conduct business in the ordinary course. Expectation damages of more than $1.2366 billion were awarded to Cineplex for Cineworld’s refusal to complete the transaction.
Continue readingCASE #031E – Berthault v. Green Urban
ONTARIO – Arbitration and Certificates of Pending Litigation(“CPL”) – The Court has jurisdiction to authorize the issuance and registration of a CPL even if the underlying dispute must be resolved through arbitration pursuant to agreement between the parties.
Continue readingCase #030E – Sicotte v. 2399153 Ontario Ltd. et al.
ONTARIO – A lender’s right to enforce a mortgage debt owing is not hampered by the lender’s postponement agreement with another lender that would have delayed enforcement for over 20 years. The motions judge erred by failing to distinguish between “owing” and “enforceable”. The more unreasonable the result of a case the more unlikely it is that the parties can have intended it.
Continue readingCASE #029D – Alberta Cricket Association (“Association”) v. Alberta Cricket Council et.al. (“Council”)
ONTARIO – Where an Arbitrator failed to provide adequate reasons for the award, the Superior Court set aside the Award pursuant to s. 38(1) of the Arbitration Act, 1991 and directed that a new arbitration proceed before another arbitrator.
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