ONTARIO – Corporations – Right of first refusal in an asset sale and the duty of good faith and honest performance. Allocating price in a manner to discourage the exercise of a right of first refusal in an asset sale is not a breach of the duty of good faith and honest performance. The relationship between the holder of the right of first refusal and a third party is competitive, and parties are entitled to act in their self-interest.
Continue readingCase #081D – Husky Food Importers & Distributors v. JH Whittaker & Sons Limited
ONTARIO – Arbitration – Application for Stay – The analytical framework and standard of proof for a stay application has changed. Once the party seeking the stay has shown that the technical requirements establish that there is an arguable case that an arbitration agreement exists, the party seeking to avoid the stay must establish on a balance of probabilities that one of the statutory exceptions to a mandatory stay of proceedings exists.
Continue readingCase #080E – Bad Gremlin LLC v. Grusd
ONTARIO – Mareva Injunction–Anton Piller Order – Sealing Order – An ex parte order for an interlocutory injunction to restrain the disposition of Canadian assets and the destruction of documents was granted in aid of a pending New York action, claiming damages for fraudulent inducement where the defendant had moved to Canada, had assets in Canada, had admitted to fraud and there was evidence of fabrication and destruction of documents. There was a genuine risk that the assets would be moved out of the reach of the Court and that documents would be destroyed if the orders were not made.
Continue readingCase #079E – Aquanta Group Inc. v. Lightbox Enterprises Ltd.
ONTARIO – Arbitration – Arbitration Act, 1991, s. 46 – Arbitrator’s refusal to allow amendment of pleadings to permit a claim for negligent misrepresentation just days before the pre-emptory hearing of the arbitration was not unfair or unequal treatment and was not a basis to set aside the arbitrator’s award.
Continue readingCase #078D – Costco Wholesale Corporation v. TicketOps Corporation
ONTARIO – Arbitration – Superior Court of Justice (“SCJ”) recognizes and enforces international arbitral awards. The grounds to oppose recognition and enforcement of arbitral awards are set out in the New York Convention and Model Law which have been adopted by the International Commercial Arbitration Act (ICAA). A summary procedure does not deny a party natural justice or the ability to present its case.
Continue readingCase #077D – FNF Enterprises Inc. v. Wag and Train Inc., et al.
ONTARIO – Corporation – Piercing the corporate veil. There must be a clear link between the liability the plaintiff seeks to recover by piercing the corporate veil and the wrongful conduct of the individual in control of the corporation. Even where the test to pierce the corporate veil is not met, the oppression remedy can be asserted against a director of the company if the director made unlawful and internal corporate manoeuvres against which a creditor could not protect itself that constitute oppression.
Continue readingCase #076M – 3-Sigma Consulting Inc. v. Ostara Nutrient Recovery Technologies Inc., 2023 BCSC 100
BRITISH COLUMBIA – Arbitration – Application for Stay of Court Proceedings – Whether the claims of non-signatories to shareholder agreements were subject to the arbitration clause in those agreements is a question of mixed fact and law that cannot be answered based on a superficial review of the record. It is a question to be determined by the arbitrator in the first instance.
Continue readingCase #075M – Ontario Securities Commission v. Camerlengo Holdings Inc. 2023 ONCA 93
ONTARIO – Fraudulent Conveyances – A creditor need not have been the debtor’s creditor at the time of the conveyance to bring a claim under the Fraudulent Conveyances Act, RSO 1990, c F.29. If the debtor perceived a risk of claims from future creditors when it conveyed a property with the intention to evade those creditors, future creditors can bring claims under the Act.
Continue readingCase #044E Update – Ernst & Young Inc. v. Aquino
CANADA – Leave to Appeal to Supreme Court of Canada
Continue readingCase #074D – Will v. Geo. A. Kelson Company Limited
ONTARIO – Breach of Contract – Breach of the duty of good faith is a separate and distinct contractual breach giving rise to a claim for damages and must be pleaded. Repudiation of a contract will only be ordered in exceptional circumstances and where there has been a substantial breach of contract.
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