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.
Continue readingCase #092M – Goberdhan v. Knights of Columbus, 2023 ONCA 327 (CanLII)
ONTARIO – Arbitration – Jurisdiction. The Arbitration Act, 1991 (“Act”) has no application where the court finds that, due to a failure of consideration, there is no contract and thus, no arbitration clause. In those circumstances, s. 7(6) does not apply and does not prohibit an appeal.
Continue readingCase #091E – All Communications Network of Canada v. Planet Energy Corp.
ONTARIO – Arbitration – On an application to set aside an arbitral award pursuant to Art. 34(2)(a)(iii) of the UNCITRAL Model Law of the International Commercial Arbitration Act, 2017 on the ground that a party was denied the right to present its case, the test is whether the arbitrator’s decision offends our most basic notions of morality and justice. ONCA dismissed an appeal from the application judge’s decision upholding the arbitral award despite the Respondent’s late delivery of a few highly relevant documents. The Appellant failed to adduce evidence that the Respondent’s late delivery of documents prevented cross-examinations or responding evidence, or affected its closing argument.
Continue readingCase #090M – Russian Federation v. Luxtona Limited, 2023 ONCA 393 (CanLII)
ONTARIO – Arbitration – Jurisdiction – An application to set aside an arbitral award for lack of jurisdiction is a hearing de novo, not a review or appeal from the decision of the tribunal. However, where a party has participated fully in the arbitration, its failure to raise a piece of evidence before the tribunal may be relevant to the weight the court should assign to that evidence.
Continue readingCase #089E – Grant et al v Seaway Auto Group Inc. et al.
ONTARIO – Arbitration – Application to set aside arbitral award under Arbitration Act, 1991, s. 46(1)6. –Where an arbitration agreement provides that the arbitral award is final without right of appeal even as to questions of law, the ambit of the Court’s right to set aside the award is limited to ensuring that both parties were treated equally and were given a right to present their case and respond. The Court will not review the correctness or reasonableness of the arbitral award.
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