ONTARIO – Jurisdiction of Superior Court of Justice over oppression cases – The Court does not have continuing jurisdiction to set aside a final order or replace it with an order for a new valuation date. Where the Court has determined an oppression application, including the valuation date and the share value, the order is final before that Court, subject to only a very limited jurisdiction under Rule 59.06. The consequences of allowing a party to reargue a case to obtain a more favourable valuation date under Rule 59.06 would be that orders are not final.
Continue readingCase #072D – Tar Heel Investments Inc. v. H.L. Staebler Company Limited, Lisa Arseneau et al
ONTARIO – Appeal – To prove the tort of conversion in respect of a book of business, which is an intangible asset, written agreements about ownership and the nature of the relationship between the parties are necessary.
Continue readingCase #071M – Lagana v. 2324965 Ontario Inc. et al. 2022 ONSC 7286
ONTARIO – Shareholder’s Right to Audited Financial Statements – The court does not have discretion to refuse a shareholder’s request for the corporation to produce audited financial statements. A shareholder’s right to information or material, including audited financial statements, under the OBCA is clear and mandatory.
Continue readingCase #070E – Tall Ships Development Inc. v. Brockville (City)
ONTARIO – Arbitration – Limited scope of judicial review under s. 45(2) and 46 of the Arbitration Act, 1991, S.O. 1991, c. 17 (“AA”) – Where an Arbitrator made extensive factual findings in a complicated contract dispute arising from a construction project and made no errors on extricable questions of law, the Arbitrator’s Awards were immune from appeal. Judicial review of arbitral awards under s. 45(2) is limited to questions of law. The application judge erred by deciding that the Arbitrator made extricable errors of law in the arbitral awards.
Continue readingCase #069E – Fakih v. AHM Investments Corporation
ONTARIO – Oppression Remedy – Interim injunctive Relief – Where there were serious issues to be tried as to self-dealing and financial irregularities by the CEO, director and 25% shareholder of a restaurant franchise business and where the business was at risk of insolvency, the Court held that the test for injunctive relief was met and the risk of financial collapse and potential insolvency constituted irreparable harm.
Continue readingCase #068E – Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137
ONTARIO – Arbitration – Court’s right to interfere with an arbitrator’s award under s. 46(1)3 of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”) is limited to whether the arbitrator had jurisdiction to decide the matter. Where the application judge finds that an arbitrator had jurisdiction to interpret an agreement, and did so, the role of the court under s. 46(1)3 of the Act is at an end, and it is irrelevant whether the interpretation was correct or reasonable.
Continue readingCase #067E – Justmark Industries Inc. v. Infinitus (China) Ltd.
ONTARIO – Referral to arbitration and stay of action – UNCITRAL Model Law Art. 8(1) and ICAA, 2017 s.9 – Waiver of a party’s right to arbitrate requires full knowledge of rights and an unequivocal, conscious intention to abandon them. A party to an arbitration agreement does not waive its right to arbitration or render the arbitration agreement inoperative by failing to respond to emails proposing arbitration.
Continue readingCase #066D – Aroma Franchise Company Inc. v Aroma Espresso Bar Canada Inc.
ONTARIO – Arbitration – Where the Arbitrator was “functus officio” with respect to the Final Award, the court refused a motion to dismiss an application to set aside an arbitrator’s final award that alleged bias. Allegations of arbitrator bias can be raised as a ground to set aside an award pursuant to Article 34 of the Model Law, if the bias amounts to the parties not being treated equally.
Continue readingCase #065M – 10443204 Canada Inc. v. 2701835 Ontario Inc. 2022 ONCA 745
ONTARIO – Business Law – Entire agreement clause cannot preclude a defence of fraudulent misrepresentation. The existence of opportunities to discover the truth does not deprive the victim of its right to avoid a contract based on a fraudulent misrepresentation. Even if a party was afforded an opportunity to investigate a misrepresentation, that does not deprive the party of the right to avoid a contract obtained by misrepresentation.
Continue readingCase #064M – Peace River Hydro Partners v. Petrowest Corp. 2022 SCC 41
CANADA – Enforceability of arbitration agreement – Section 15 of the BC Arbitration Act does not require a court to stay a civil claim brought by a court-appointed receiver in every case where the claim is subject to a valid arbitration agreement. Where arbitration would compromise the orderly and efficient conduct of a court-ordered receivership, an otherwise valid arbitration agreement may be inoperative and unenforceable. The Court’s analysis as to whether to stay an action in favour of arbitration is fact-specific.
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