Call us: (905) 366 9700     Email us: info@ontlaw.com

Legal Blog: Commercial Matters

Dec
02
2022

Mareva Injunction

Sapex Canada Inc. v. 2264233 Ontario Inc. 2022 Ont SCJ

Landlord was suing tenant and indemnifier for damages for breach of a lease. The indemnifier bought a house and was selling her old house in the ordinary course. It was expected she would net about $20,000 from the sale. Landlord moved for a Mareva injunction. The judge agreed that he had jurisdiction to issue an injunction under the Simplified Rues, but held that the balance of convenience favoured the indemnifier. There was no genuine risk of the indemnifier putting her assets beyond the reach of the landlord. She had equity in the new house and the corporate tenant was still a going concern.

Continue Reading >
Oct
19
2022

Oppression

Wisser v. CEM International Management Consultants Ltd. 2022 Alta QB

Employee was dismissed without proper notice. He brought an action against his old employer and its principals and a new corporation that the principals had incorporated to carry on the old employer’s business. He brought his action against the principals and the new corporation under the oppression section of the Alberta Business Corporations Act. The court held all defendants liable, holding in particular that the transfer of all assets for minimal consideration to the new corporation was oppressive conduct.

Continue Reading >
Sep
19
2022

Mitigation

Humphrey v. Mene Inc. 2022 Ont CA

Wrongful dismissal action. Employee had been offered and refused a job at a comparable salary and, though not the same management position, a good one. The trial judge refused to deduct for lack of mitigation, saying that the employer had not provided the judge with persuasive evidence as to whether the two roles were comparable. The Court of Appeal held that comparable did not mean identical. It was sufficient that the employee had been offered a senior management position with a salary as good as or more than her previous salary and it was sufficient for the employer to show that the employee had been offered and rejected the job. Any further evidence had to come from the employee. The court reduced the award by 6 months for failure to mitigate.

Continue Reading >
Sep
19
2022

Costs & Conduct

Gracias v. Dr. David Walt Dentistry 2022 Ont SCJ

Costs – the employee sued for wrongful dismissal and was mostly unsuccessful. Both the employer and employee asked for costs. The judge did not like the attitudes and actions of either of them. The employee could have been in Small Claims Court, made unsubstantiated claims of human rights violations, and was dilatory in production of documents. The employer had claimed it terminated for cause and alleged that the employee had fabricated evidence. Neither was proved. The judge refused to order costs to either of them.

Continue Reading >
Jul
21
2022

Promissory Estoppel

2059008 Ontario Ltd. V. CM Weicker 2022 Ont SCJ

Lease referred to premises being 1,689 sq ft. Tenant paid rent on this basis for over 9 years. In the 10th year of a 10-year lease, landlord appointed a new property manager, who measured the premises at 1,953 sq ft, and landlord demanded an additional $152,000 in rent – although it was willing to forego those arrears if tenant renewed the term of the lease on very different terms from the original. Although the lease gave authority for a re-measurement, the judge held that landlord, on the facts of this case (which we will not list), was estopped (prevented) from demanding the arrears.

Continue Reading >
Jul
18
2022

Arbitration Agreement

2832402 Ontario Inc. v. 2853463 Ontario Ltd. 2022 Ont SCJ

Parties stipulated that if they could not agree on price adjustments in a final closing statement, the dispute would be referred to a specified accountant for a decision. The vendor commenced a court application to force the purchaser to provide better backup documents for its calculations. The purchaser moved to stay the application on grounds that the dispute resolution was an arbitration and only the arbitrator could decide on documents to be produced. The court agreed that the parties’ agreement was an arbitration agreement, regardless that the word arbitration was never found in it. It was not merely a request for the accountant’s expert opinion. The judge stayed the application.

Continue Reading >
Jul
14
2022

Consent to Assignment

Tabriz Persian Cuisine Inc. v. Highrise Property Group Inc. 2022 Ont CA

Parties had ongoing litigation as to whether landlord had authorised tenant to install a patio – contrary to the lease. Tenant on three occasions had identified a purchaser for its business and requested landlord’s consent to an assignment of the lease. On the first two occasions, landlord refused consent because tenant had failed to remove the patio. On the third occasion, landlord refused to consider the assignment until the patio was removed and tenant discontinued its litigation. The court agreed that tenant had not demonstrated that landlord’s refusal – to consider the assignment until the patio was removed – was unreasonable. It further held that, even though the 2nd condition was improper, it was not relevant; the true origin for the refusal was the valid requirement to remove the patio.

Continue Reading >
May
26
2022

Limitations – Claim Appropriate

Georgian Properties Corporation v. Robins Appleby LLP 2022 Ont CA

A condo had executed debt instruments in favour of the developer. When the debts were due, the condo failed to pay, ultimately attacking the debt instruments as unenforceable. The condo ultimately was successful in its attack. After the decision, the developer commenced an action against its lawyers who drafted the debt instruments. The court held that the condo suffered damages as set out in s.5(1)(a)(i) of the Limitations Act, not when the condo failed to pay the developer according to the debt instruments, but when the judge decided that the debt instruments were invalid. Similarly, commencement of an action was “appropriate” (ss. a(iv)) after the decision was rendered, not when the allegations of invalidity were made.

Continue Reading >
Mar
25
2022

Misrepresent by Silence

Subway Franchise Restaurants of Canada Ltd. v. BMO Life Assurance Company 2021 Ont CA

The lease had a specific time period, calculated from the lease commencement, for the tenant to renew the term. The tenant was confused as to the start of the lease and notified the landlord that it chose to renew, but asked, if its assumed time period was wrong, the landlord should inform it and it would give a notice in accordance with the lease. The landlord did not reply. The tenant had the date wrong and claimed the landlord should have informed it. The court held that, unless the landlord lied or knowingly misrepresented or contributed to the tenant’ misapprehension, the tenant was out of luck.

Continue Reading >
Mar
25
2022

Misrepresentation

Guaranteed Funeral Deposits of Canada (Fraternal) v. Assurant Life of Canada 2022 Ont SCJ

One party obtained a second amendment to an agreement by assuring the other that the first amendment had incorrectly deleted a section. The other party, whose representative was not knowledgeable about the first amendment, relied on that representation and agreed to the second amendment. The other party then realised that the section had been deleted for a reason and that the second amendment ought not to have been granted. The motion judge held that the first party misrepresented and granted rescission.

Continue Reading >
Download our free checklist:

“10 Questions to ask before hiring a law firm”

DOWNLOAD

Speigel Nichols Fox LLP