Daniel Gregg Hamson

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.

This commercial lease appeal addressed validity of default and termination notices, the resulting lease termination findings, and related costs rulings.

The court upheld the application judge’s determinations and dismissed both the main appeal and the costs appeal after granting leave on costs.

The Court of Appeal for Ontario dismissed the appeal by Jagtar Dhaliwal and Voxx Sports Inc. from a Superior Court decision upholding an arbitrator’s refusal to recuse himself for bias.

The appellants alleged both a reasonable apprehension of bias and actual bias, based on the arbitrator’s prior involvement with respondents’ counsel and comments about the veracity of Mr. Dhaliwal’s affidavit.

The Court found no merit in either claim, holding that the arbitrator’s conduct did not give rise to a reasonable apprehension of bias and that adverse credibility findings do not, on their own, establish actual bias.

The appeal was dismissed with costs to the respondents.

The plaintiff, Kalbow Restorations Inc., sought an urgent interlocutory injunction against its franchisor, Goodbye Graffiti Inc., and related parties, alleging improper termination of their franchise agreement.

The court dismissed the motion, finding that Kalbow had committed incurable material defaults under the agreement by using unauthorized chemicals and suppliers, and had not demonstrated a strong prima facie case or a serious issue to be tried.

The court also found no irreparable harm and that the balance of convenience favoured the defendants.

Costs were awarded to the defendants on a partial indemnity basis.

The court determined that the applicants were not entitled to extend their subleasehold interest in commercial premises for a further five years because they had committed at least three defaults, constituting "habitual default" under the sublease.

The court found that the applicants failed to meet the conditions for extension, including defaults related to unauthorized physiotherapy services, late rent payments, fire code deficiencies, and nonpayment of rent during COVID-19 closures.

The court also held that the equitable remedy of relief from forfeiture did not apply, as the applicants' defaults were not due to circumstances beyond their control.

The application was dismissed, and costs were awarded to the respondents.

The defendant, Hariri Pontarini Architects, brought a motion seeking leave to amend its statement of defence and counterclaim to add a paragraph concerning the plaintiff's prior architects and for an order compelling the plaintiff, Corey Libfeld, to produce a further and better affidavit of documents related to those prior retainers.

The plaintiff opposed the contested amendment and the document production request.

The court dismissed the defendant's motion to add the specific paragraph (8A) to its pleading, finding it irrelevant and scandalous, and also dismissed the request for a further and better affidavit of documents, as the requested documents were not relevant to the issues in the litigation.

Uncontested amendments were granted.

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 franchisors sought leave to appeal two arbitral awards: one finding Marcel Hachem and Eastern Canadian Coffee Company Ltd. to be "franchisor's associates" liable for rescission costs, and another regarding costs.

The franchisees sought court enforcement of these awards.

The court dismissed the franchisors' application for leave to appeal the "franchisor's associate" finding, determining it was a question of fact, not law.

The court also dismissed leave to appeal the costs award, finding that while it raised a question of law, it lacked sufficient importance to the parties.

Consequently, the franchisees' application to enforce the arbitral awards was granted.

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.

This is a costs endorsement following a grouped set of appeals and cross-appeals where all parties were entirely unsuccessful.

The court declined to award costs, rejecting the franchisor parties' argument to parse success across various elements of the appeals and cross-appeals.

The court found it inappropriate to do so, concluding that since no party achieved any degree of success, no costs should be awarded.

The Court of Appeal for Ontario heard appeals and a cross-appeal concerning a franchise dispute under the Arthur Wishart Act.

Franchisees Versatile Holdings Inc. and Everest Group Inc. appealed the dismissal of their rescission actions, arguing errors in the burden of proof for disclosure deficiencies and the determination of franchisor's associates.

The franchisor, Paramount Franchise Group Inc., cross-appealed the trial judge's finding that Premium Host Inc. was entitled to statutory compensation, challenging disclosure exemptions, the effect of contract termination on rescission rights, material omission of financial statements, and the finding that Holly Graham and Paramount Leasing were franchisor's associates.

The Court dismissed all appeals and the cross-appeal, affirming the trial judge's findings on the burden of proof for rescission, the non-applicability of disclosure exemptions, the right to rescind despite prior termination for breach, the materiality of the financial omission, and the determination of franchisor's associates.

The Bank of Montreal (BMO) sought leave for an extension of time to issue a writ of seizure and sale against the defendant, Adams, more than six years after obtaining default judgment.

The court applied a two-part test: whether the plaintiff waived its rights or acquiesced in non-payment, and whether the debtor relied to his detriment.

The court found BMO met the low bar for the first part, but also found it unjust to penalize the debtor with interest accrued due to BMO's slow action.

Leave was granted, but the writ amount was limited to the judgment, interest, and costs up to December 31, 2019.

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.

This is a costs decision following a judgment in a complex multi-party litigation involving franchise disputes.

The court determined the quantum and scale of costs for various successful and unsuccessful claims and counterclaims.

Premium Host Inc. was awarded partial indemnity costs against Paramount Franchise Group Inc. and related entities.

Versatile Holdings Inc. and Everest Group Inc., whose claims were dismissed, were ordered to pay partial indemnity costs to the Paramount group.

The court declined to award elevated costs, reduced the defendants' claimed costs due to duplication and litigation conduct, and clarified the liability of individual guarantors for corporate litigation costs, holding them jointly and severally liable only for costs related to counterclaims where they were proper parties.

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.

Three franchisees (Versatile, Everest, and Premium Host) sought to rescind their franchise agreements with Paramount Fine Foods under the Arthur Wishart Act, alleging the franchisor failed to provide compliant disclosure documents.

The court found that Paramount was not exempt from its disclosure obligations.

However, Versatile and Everest failed to prove on a balance of probabilities that the disclosure documents they received were fatally flawed, so their rescission claims were dismissed.

Premium Host successfully established that Paramount failed to disclose material financial information in a single document, rendering its disclosure fatally flawed.

Premium Host's rescission was deemed valid, and it was awarded statutory compensation against the franchisor and its associates, including Paramount Leasing and the Manager of Franchising.

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 applicants were successful in an application to disqualify an arbitrator and sought partial indemnity costs of $21,411.22.

The respondents argued the amount was too high and proposed $8,761.96, noting the brief hearing.

The court found the applicants' proposed amount was within the norm for a short but legally significant application.

The court exercised its discretion to award the applicants costs in the rounded amount of $21,400, inclusive of fees, disbursements, and HST.

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.