ONTARIO – Arbitration – Leave to Appeal – There are limited avenues of appeal from an arbitral award under section 45(1) of the Arbitrations Act, 1991. That section only applies where the arbitration agreement does not deal with appeals on questions of law. Leave shall only be granted if the court is satisfied that the matters at stake are of such importance to the parties to justify an appeal, and that the determination of the question of law will significantly affect the rights of the parties.
Continue readingCase #101M – Toronto Standard v. Distillery SE, 2023 ONSC 5340 (CanLII)
ONTARIO – Arbitration – Appointment of Arbitrator – Where there is an agreement on the essential terms of an arbitrator’s appointment, it need not be incorporated into a formal executed document to be binding. Repudiation of an agreement to appoint an arbitrator is not established unless a reasonable person would conclude that a party no longer intended to be bound by that agreement.
Continue readingCase #100D – Lozon v Lozon, 2023 ONCA 645 (CanLii)
ONTARIO – Contract Interpretation – It is an error of law to decide that an agreement was reached based on the subjective intention of one side of the bargain. Interpretation of contract requires the court to read the contract as a whole, giving the words their ordinary and grammatical meaning consistent with the surrounding circumstances at the time the contract was formed. The court is not to consider the subjective intentions of the parties. The interpretive process should consist only of objective evidence of the background facts at the time of the execution of the contract.
Continue readingCase #099D – Sase Aggregate Ltd. v Langdon
ONTARIO – Corporations – Unjust enrichment – Without a benefit that enriched the defendant, and which can be restored to the plaintiff in specie or in money, no recovery lies for unjust enrichment.
Continue readingCase #098E – Bank of Montreal v. Iskenderov
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.
Continue readingCase #097E – Bhatnagar v. Cresco Labs Inc.
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.
Continue readingCase #096M – Petty v. Niantic Inc., 2023 BCCA 315 (CanLII)
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.
Continue readingCase #095M – Hrvoic v. Hrvoic, 2023 ONCA 508 (CanLII)
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.
Continue readingCase #094D – Difederico v Amazon.com Inc. et al, 2023 FCA 165 (CanLII)
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.
Continue readingCase #093D – Bradley J. Grant Investments Inc. v. Nestig Inc. et al
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.
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