Allan D. J. Dick

The moving parties sought to set aside two international arbitral awards under Article 34 of the UNCITRAL Model Law, alleging inability to present their case, excess of jurisdiction, and inadequate reasons.

The court found a procedural fairness breach where the arbitrator made a proper-party finding without submissions, but held the issue was not material in context because separate findings eliminated personal liability on other grounds.

The court rejected the jurisdiction and insufficiency-of-reasons challenges, emphasizing the narrow scope of intervention and deference to international arbitral awards.

Exercising discretion under Article 34, the court declined to order a new arbitration.

The application was dismissed.

The moving parties brought motions for leave to appeal a decision of the lower court dated January 20, 2025.

The Divisional Court dismissed the motions for leave to appeal and awarded costs to the responding party fixed at $2,500 for each motion.

The moving parties brought a motion for leave to appeal the decision of Justice Chalmers dated November 5, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered costs payable to the responding party in the amount of $5,593.50.

The court dismissed motions by the defendants to strike out the plaintiff’s statement of claim on the basis of absolute privilege.

The case concerns whether statements made in an affidavit in another proceeding, about a non-party, are protected by absolute privilege.

The court held that absolute privilege is subject to exceptions and applies only to statements made “with reference to the inquiry.” Without the full context of the affidavit and related documents, the court could not determine that the claim was bound to fail.

The court also addressed the application of absolute privilege to counsel and found no basis to treat counsel differently in this context.

Costs were awarded to the plaintiff.

The Court of Appeal for Ontario allowed an appeal concerning an international commercial arbitration award.

The application judge had set aside the award due to a reasonable apprehension of bias by the arbitrator, who had accepted a second, unrelated arbitration engagement from the appellants' counsel without disclosure to the respondents.

The Court of Appeal held that the application judge erred by applying a subjective test for disclosure and bias, rather than the objective test mandated by the UNCITRAL Model Law.

The Court found no breach of the arbitrator's legal duty to disclose and no reasonable apprehension of bias, as the second arbitration involved no common parties or overlapping issues, and the arbitrator was not aware of the parties' subjective disclosure expectations.

The matter was remitted to the Superior Court to address other grounds for attacking the award.

The applicant commenced an application challenging her late father's will and seeking dependent support.

On the eve of trial, the applicant reached a settlement with the estate trustee and brought a motion to discontinue the proceeding.

The non-settling respondent opposed the discontinuance and sought to be substituted as the plaintiff.

The court granted the motion to discontinue, finding the applicant would be prejudiced if forced to proceed to trial, while the non-settling respondent could still commence his own proceeding.

The motion for substitution was dismissed due to the respondent's unexplained delay in advancing his own claim.

The Applicants sought to set aside an arbitrator's decision denying their challenge for bias and to remove the arbitrator, alleging reasonable apprehension of bias due to the arbitrator's undisclosed involvement in another arbitration with the Respondents' counsel, and actual bias from a costs decision.

The court dismissed the application, finding the bias challenge was not brought in a timely manner and that neither reasonable apprehension of bias nor actual bias was established.

The court found no meaningful overlap between the arbitrations and that the arbitrator's finding of 'false statements' did not indicate actual bias.

The plaintiffs brought a motion seeking the appointment of an interim receiver over the shares of one of the defendants in several companies involved in land development projects.

The parties, who are shareholders in these companies, had a significant falling out, leading to defaults on secured loans.

The plaintiffs argued that a receiver was necessary to refinance debt and maximize value.

The court determined that the appropriate test for the interlocutory receiver appointment was the RJR MacDonald test, with an elevated 'strong prima facie case' standard due to the Mareva-like nature of the relief.

The court found that the plaintiffs failed to meet the merits requirement, as they asserted no legal or beneficial interest in the defendant's shares and the memorandum of understanding did not obligate the defendant to contribute further funds.

Furthermore, the court found no irreparable harm and that the balance of convenience did not favor the appointment, concluding that a receivership was not an appropriate remedy for a shareholder dispute where the moving party sought to eliminate the other party's control over their own shares.

The applicants sought to set aside two international arbitral awards, alleging reasonable apprehension of bias, exceeding jurisdiction, and inadequate reasons by the arbitrator.

The core issue was the arbitrator's failure to disclose a concurrent retainer from the respondents' counsel while the arbitration was ongoing.

The court found a reasonable apprehension of bias, emphasizing the importance of arbitrator impartiality and the specific context of the parties' pre-appointment concerns regarding relationships with counsel.

The awards were set aside, and a new arbitration was ordered.

The appellants appealed an interlocutory injunction restraining them from using the name 'Bombay Frankie' for their restaurant business.

The respondent had applied to register the trademark but had not yet opened a restaurant or established goodwill when the action commenced.

The Divisional Court allowed the appeal and vacated the injunction, finding the motion judge erred in principle by concluding there was a serious issue to be tried.

The court held that a mere trademark application does not confer a right to sue for infringement, and start-up activities do not establish the goodwill necessary for a passing-off claim.

The moving parties (respondents in the main application) brought a motion to dismiss an application to set aside an arbitral award for lack of jurisdiction.

The responding parties (applicants in the main application) sought to set aside the award on the basis of a reasonable apprehension of bias, as the arbitrator had been retained by the moving parties' counsel in an unrelated matter.

The moving parties argued that under Articles 12 and 13 of the Model Law, the responding parties were required to submit their challenge to the arbitrator first, since the arbitration was still extant regarding costs and interest.

The court dismissed the motion, finding that the arbitrator was functus officio regarding the final award on the merits, and the responding parties were entitled to seek recourse under Article 34 of the Model Law.

The International Trademark Association (ITA) brought a motion to intervene in an appeal regarding an interlocutory injunction restraining the use of a disputed trademark.

The ITA sought to make submissions on the meaning and effect of recent amendments to Canada's trademark legislation.

The court dismissed the motion, finding that the ITA's proposed arguments focused on the final disposition of legal questions that would be decided at trial, rather than the test for an interlocutory injunction which was the subject of the appeal.

The court concluded the intervention would distract rather than assist the appeal court.

The Court of Appeal dismissed an appeal concerning the rescission of a franchise agreement.

The trial judge had found that the franchisees were entitled to rescind the agreement under the Arthur Wishart Act due to the franchisor's failure to provide a signed and dated disclosure certificate, and held the franchisor's sole director personally liable as a "franchisor’s associate." The appeal court affirmed that the absence of a proper certificate is a fatal flaw in disclosure, not requiring proof of an inability to make an informed investment, and upheld the finding of personal liability based on the director's representations.

The plaintiff was wholly successful on an interim injunction motion and sought partial indemnity costs of $79,836.56.

The plaintiff argued costs should be awarded immediately as there might not be a trial, while the defendants argued costs should be reserved to the trial judge.

The court exercised its discretion to order costs in the cause, noting it is the preferable course for interlocutory injunctions, but allowed the parties to return for a costs determination if no trial is held within 18 months.

The moving parties brought a motion for leave to appeal an order of the lower court.

The Divisional Court granted leave to appeal and fixed the costs of the motion at $5,000, with the determination of entitlement reserved to the panel hearing the appeal.

A law firm, Teplitsky Colson, and its lawyer, Stephen Brunswick, brought a motion to be removed as lawyers of record for the plaintiff, Corey Libfeld, citing an irreparable breakdown in the solicitor-client relationship.

The firm argued that the plaintiff failed to provide instructions, made accusations of scheming and fiduciary duty violations, and threatened legal action.

The plaintiff opposed the motion, asserting no irreparable breakdown existed and that the firm continued to act on other matters.

The court found that the firm had demonstrated good and justifiable cause for removal, noting the severe deterioration of trust and communication, and granted the motion, dismissing the plaintiff's opposition.

The moving party, who had applied to register the trademark 'Bombay Frankies' for a planned franchise of Indian restaurants, sought an interlocutory injunction to prevent the responding parties from using the name 'Bombay Frankie' for their recently opened restaurants.

The court applied the RJR MacDonald test and found a serious issue to be tried regarding trademark priority.

The court concluded the moving party would suffer irreparable harm through loss of first-mover advantage and goodwill, and that the balance of convenience favoured the moving party.

The interlocutory injunction was granted.

The plaintiffs requested an urgent case conference to schedule a mediation and fix a trial date before the action was administratively dismissed.

One of the plaintiffs objected, citing an upcoming motion regarding the removal of his counsel in a separate action.

The court found it unfair to delay the other plaintiffs and ordered that mediation be held by June 30, 2022, and that the action appear on the trial scheduling court list on April 11, 2022.

The moving parties brought a motion for leave to appeal a costs order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $4,500 to the responding party.

Following their successful motion for an interlocutory injunction restraining the defendant from terminating their franchise business, the plaintiffs sought partial indemnity costs of $115,500.

The defendant argued costs should be reserved to the trial judge or reduced by half.

The court rejected reserving costs, noting the action was at an early stage.

Noting the importance of the issues and the defendant's failure to provide its own costs outline for comparison, the court fixed costs payable to the plaintiffs at $95,000 inclusive of disbursements and HST.