SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

COURT FILE NO: CV-13-10273-00CL

RE: Ciano Trading & Services C.T. &. S.R.L., Applicant

AND:

Skylink Aviation Inc., Respondents

COURT FILE NO: CV-13-484963

RE: Ciano Trading & Services C.T. &. S.R.L., Plaintiff

AND:

Skylink Aviation Inc., David Miller, Dewy (a.k.a. Kris) Bebbington, Eitan Dehtiar, Robert Waring, Dayle Waring, Tracy Munday, Harry Green, Andrew Hamlin, Philip Hamson, Rael Nurick and Jan Ottens, Defendants

BEFORE: D. M. Brown J.

COUNSEL: M. Solmon and R. Sparano, for Ciano Trading & Services C.T. &. S.R.L.

F. Myers and B. Halfin, for Skylink Aviation Inc.

HEARD: January 7, 2014

REASONS FOR DECISION

I. Conflicting proceedings to determine whether an international commercial dispute should be adjudicated in court or by an arbitral tribunal

[1] Ciano Trading & Services C.T. & S.R.L., an Italian corporation, provided commissary, or meal delivery, services for Skylink Aviation, Inc., an Ontario corporation, in Afghanistan pursuant to a March, 2013 services agreement. Skylink terminated the Services Agreement on June 7, 2013.

[2] On July 17, 2013, Ciano commenced an action in this Court against Skylink and certain of its directors, officers and employees (CV-13-484963) seeking damages for the termination of the Services Agreement and other relief. Ciano then commenced an application against Skylink (CV-13-488069) for an order that the arbitration clause contained in the Services Agreement did not survive the termination of the Services Agreement. Skylink moved in the Action for an order staying the Action pending an arbitration of the dispute between Ciano and Skylink.

[3] For the reasons set out below, I dismiss Ciano’s application and grant Skylink’s motion.

II. Factual background

[4] Little evidence was filed before the Court on the application and motion. Neither side filed an affidavit. Both relied on brief Requests to Admit and Responses to Request to Admit. Strictly speaking, the evidence established that:

(i) The parties entered into a March 5, 2013, Services Agreement under which Ciano, as contractor, agreed to provide services to Skylink, the client, consisting of the delivery of daily meal services in Afghanistan;

(ii) The Services Agreement was terminated by Skylink on or about June 7, 2013; and,

(iii) The Statement of Claim in the Action was served on SkyLink on July 19, 2013.

[5] From the allegations contained in the Amended Statement of Claim, it appears that Ciano provided those meal services at the Kandahar Airfield in Afghanistan.[^1]

[6] The Services Agreement contained an arbitration clause. Article 23 of the Services Agreement provided as follows:

Any dispute or controversy between the parties hereto arising under, out of, in connection with or relation to this Agreement shall be submitted to binding arbitration before one arbitrator and settled in accordance with the rules of the American Arbitration Association. The arbitration shall take place in front of one (or more) arbitrator/s which shall mutually appointed by the Parties, within and not later than one week from the purpose of one Party to settle any dispute and/or controversy. The language of such arbitration shall be English. The decision of the arbitrator shall be final and binding on all parties and shall be enforceable in any court of competent jurisdiction at the option of the party in whose favor the award was rendered.

III. Positions of the parties

[7] Ciano argued that since the Arbitration Clause was not identified by Article 24.A of the Services Agreement as one of the clause which survived the termination of the Agreement, SkyLink’s termination of the agreement rendered the Arbitration Clause inoperative. SkyLink submitted that each of the causes of action pleaded by Ciano in its Statement of Claim arose under, out of, in connection with or in relation to the Services Agreement, and therefore section 8 of the International Commercial Arbitration Act, R.S.O. 1990, c. I.9, required the Action be stayed.

IV. Analysis

A. The general principles governing the stays of court proceedings in favour of international commercial arbitration

[8] Under the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 (the "ICAA"), the UNCITRAL Model Law on International Commercial Arbitration applies to international commercial arbitration agreements. Section 8 of the ICAA states:

8. Where, pursuant to article 8 of the Model Law, a court refers the parties to arbitration, the proceedings of the court are stayed with respect to the matters to which the arbitration relates.

Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration provides:

8(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

[9] Section 16(1) of the Model Law authorizes an arbitral tribunal to rule on its own jurisdiction:

16. (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

[10] Although courts possess the jurisdiction to determine whether a dispute is subject to arbitration, the approach based on the competence-competence principle now applies to international commercial disputes. That approach was described by the Court of Appeal in Dalimpex Ltd. v. Janicki where Charron J.A. stated:

It is my view that the proper approach to be taken by the court on a motion pursuant to article 8 is that set out by Hinkson J.A. of the British Columbia Court of Appeal in Gulf Canada Resources v. Arochem International (1992), 1992 CanLII 4033 (BC CA), 43 C.P.R. (3d) 390. That case was decided under the British Columbia International Commercial Arbitration Act, S.B.C. 1986, c. 14 of which ss. 8 and 16 are substantially identical to articles 8 and 16 of the Schedule to the Ontario statute. Hinkson J.A. wrote at p. 397:

Considering s. 8(1) in relation to the provisions of s. 16 and the jurisdiction conferred on the arbitral tribunal, in my opinion, it is not for the court on an application for a stay of proceedings to reach any final determination as to the scope of the arbitration agreement or whether a particular party to the legal proceedings is a party to the arbitration agreement, because those are matters within the jurisdiction of the arbitral tribunal. Only where it is clear that the dispute is outside the terms of the arbitration agreement, or that a party is not a party to the arbitration agreement, or that the application is out of time should the court reach any final determination in respect of such matters on an application for a stay of proceedings.

Where it is arguable that the dispute falls within the terms of the arbitration agreement or where it is arguable that a party to the legal proceedings is a party to the arbitration agreement then, in my view, the stay should be granted and those matters left to be determined by the arbitral tribunal.

An issue may also arise on an article 8 motion as to whether the agreement is (a) null and void; (b) inoperative; or (c) incapable of being performed. In the same way, where it is clear that one of these situations exist, the court will make a determinative finding to that effect and dismiss the motion for referral. However, in cases where it is not clear, it may be preferable to leave any issue related to the "existence or validity of the arbitration agreement" for the arbitral tribunal to determine in the first instance under article 16. In my view, this deferential approach is consistent with both the wording of the legislation and the intention of the parties to refer their disputes to arbitration.[^2]

[11] Two subsequent decisions of the Court of Appeal confirmed that approach. In Patel v. Kanbay International Inc. (2008), the Court of Appeal stated:

While the case law suggests that any final determination as to the scope of the arbitration agreement is better left to the arbitration tribunal (since the question of jurisdiction is itself within the jurisdiction of that tribunal), where it is clear that the matter does not fall within the arbitration agreement, the court should make that finding and decline to make the referral to arbitration…[^3]

Then in Dancap Productions Inc. v. Key Brand Entertainment Inc.[^4] (2009) the Court of Appeal confirmed that it was “well-established in Ontario that the court should grant a stay under art. 8(1) of the Model Law where it is “arguable” that the dispute falls within the terms of an arbitration agreement.[^5]

[12] The approach based on the competence-competence principle received strong endorsement by the Supreme Court of Canada in Dell Computer Corp. v. Union des consommateurs[^6] and more recently in Seidel v. TELUS Communications Inc., so that absent legislated exception, any challenge to an arbitrator’s jurisdiction over a dispute should first be determined by the arbitrator, unless the challenge involves a pure question of law or one of mixed fact and law that requires for its disposition only superficial consideration of the documentary evidence in the record.[^7]

B. Is it arguable that the dispute falls within the terms of the arbitration clause?

[13] Parties to an arbitration agreement may draft an arbitration clause as broadly or as narrowly as they see fit. The starting point for interpreting an arbitration clause must be the precise terms of the language in which the arbitration clause is framed. Ordinary principles of contractual interpretation apply, including reading the clause in the context of the entire agreement between the parties, the commercial legal relationship which the contract creates, and in light of the factual matrix which gave rise to the contract.

[14] A review of the Amended Statement of Claim discloses that it most certainly is arguable that the claims asserted by Ciano against Skylink in the Action fall with the terms of the very broad Arbitration Clause covering, as it does, “any dispute or controversy between the parties hereto arising under, out of, in connection with or relation to this Agreement”, and I so find. This is so because in the Action Ciano make the following claims:

(i) Skylink had no basis to terminate the Services Agreement for cause (Claim, para. 41);

(ii) Skylink’s “for cause” termination of the Services Agreement harmed Ciano’s reputational and commercial position in the market (Claim, para. 45);

(iii) Skylink breached Article 6.C of the Services Agreement – a non-solicitation of employees provision – by offering Ciano personnel employment and ultimately employing them (Claim, paras. 46 to 50). Ciano also surrounded this part of its claim with a plea of intentional interference with economic relations and contracts (Claim, paras. 76, 77, 83, 84 and 85), although it is far from clear whether the claim as pleaded would meet the requirements for that tort set out in the recent decision of the Supreme Court of Canada in A. I. Enterprises Ltd. v. Bram Enterprises Ltd.;[^8]

(iv) Skylink breached Article 21.A of the Services Agreement – return of property on termination – by refusing to return to Ciano its property, books and records (Claim, paras. 51 to 55, and 65 to 75);

(v) Skylink breached Articles 15.B, C and F of the Services Agreement – proper treatment of Confidential Information – by using Ciano confidential information to compete improperly with Ciano (Claim, paras. 56 to 60). Ciano also surrounded this part of its claim with a plea of intentional interference with economic relations and contracts (Claim, paras. 78, 79, 80, 81 and 82) although, once more, it is far from clear whether the claim as pleaded would meet the requirements for that tort set out in the recent decision of the Supreme Court of Canada in A. I. Enterprises Ltd. v. Bram Enterprises Ltd.;

(vi) Skylink breached Article 10 of the Services Agreement – payment – by failing to pay outstanding invoices (Claim, paras. 61 to 64);

(vii) The breaches of the Services Agreement identified in paragraphs (i), (ii), (iii) and (v) also formed part of a plea of conspiracy to injure (Claim, paras. 86 to 92); and,

(viii) The plaintiff also relied on all of the pleaded breaches of the Services Agreement to found an oppression claim against Skylink under section 248 of the Ontario Business Corporations Act (Claim, para. 1(b)), although the pleaded particulars of the oppression claim only mentioned the officers and directors of Skylink (Claim paras. 98 to 104).

C. Is the Arbitration Clause inoperative?

[15] Ciano’s main argument was that the Arbitration Clause was inoperative under section 8(1) of the Model Law because it did not survive the termination of the Services Agreement in June, 2013.

C.1 The law

[16] Several cases were placed before me on the issue of whether an arbitration agreement is “inoperative” by reason of the termination of the contract in which it is found. None dealt with facts identical to those in the present case, but those cases laid down the applicable general principles of law.

[17] First, in MDG Kingston Inc. v. MDG Computers Canada Inc.,[^9] the Court of Appeal granted an appeal from the decision of the motions judge refusing to grant a stay of a proceeding under section 7 of the Arbitration Act, 1991. A franchisee had purported to rescind a franchise agreement relying on a statutory right to do so. It then claimed that because it had exercised its statutory right to rescind, the arbitration agreement was “invalid” within the meaning of section 7(2)2 of the Arbitration Act, 1991 and therefore no stay should issue in respect of the civil proceeding. In rejecting that argument the Court of Appeal commented:

The issue in this case raises the classic question whether an arbitration clause remains effective when the agreement that contains the clause is terminated or rescinded, or whether that clause terminates or becomes inoperative with the rest of the agreement...

In cases where the dispute is about whether the agreement was breached by one party and consequently terminated by the other, and whether that termination has the effect of terminating the arbitration clause as well, the case law makes it clear that the court is not to determine the merits of that issue on a stay motion. Instead, the issue of whether the entire contract was properly terminated and the effect of any such termination is for the arbitrator. Otherwise, arbitration clauses would be rendered ineffective in many disputes, even when, in the end, they should have applied. However, in cases where the agreement was void ab initio because it was illegal, or where no agreement was ever reached, the arbitration clause will not apply because it was never validly agreed to…[^10]

[18] Next, in Ottawa Rough Riders Inc. v. Ottawa (City),[^11] the parties had entered into a lease agreement which contained a broad arbitration clause. About 18 months later the parties executed an agreement terminating the lease. The termination agreement included the following “survival” clause:

... Upon the approval of City Council of the termination of the existing Agreement [the lease agreement], the parties acknowledge that the obligations with respect to the payments for the 1992 and 1993 surcharge Amounts and any other financial obligations that are contained in the existing Agreement shall survive any such termination and remain in full force and effect.

[19] The plaintiff leasee started a lawsuit seeking damages in respect of breaches of the lease. The defendant landlord moved to stay the action in favour of arbitration. The plaintiff contended that since the survival clause in the termination agreement did not mention the arbitration clause contained in the original lease, the court should infer that the parties did not intend the arbitration clause to survive termination. This Court rejected that argument:

There is no evidence before me as to the subjective intention of the parties when they signed the termination agreement, as to the survival of the arbitration provision or otherwise. However, it seems reasonable to me that, having decided that their respective financial obligations under the lease agreement would survive its termination, they would also have intended (had anyone raised the point with them) that their mutually chosen procedure of arbitration to determine disputes relating to their respective financial obligations under the lease agreement would also survive its termination.

For that reason, I do not agree with the plaintiff. In my view, the arbitration provision of the lease agreement was intended by the parties to survive its termination in order to determine disputes as to the financial obligations of the parties under the lease agreement. It is often upon termination of an agreement that disputes between the parties require determination.[^12]

[20] The decisions in the MDS Kingston and Ottawa Rough Riders cases referred to the oft-cited 1941 decision of the House of Lords in Heyman v. Darwins[^13] where Viscount Simon stated:

If the dispute is whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of such a contract is illegal), the arbitration clause cannot operate, for on this view the clause itself also is void. But, in a situation where the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen "in respect of ", or "with regard to," or "under" the contract, and an arbitration clause which uses these, or similar, expression should be construed accordingly.[^14]

[21] Geoff Hall, in the second edition of his text, Canadian Contractual Interpretation Law, described the policy reasons underlying the principles expressed by those cases:

As its core, the rule that an arbitration clause survives termination of a contract is a practical necessity. Without it, it would be very easy to evade arbitration clauses and their effectiveness could be readily eviscerated.[^15]

That point was echoed in the minority decision of the Supreme Court of Canada in Seidel:

This requirement of deference to the arbitrator's jurisdiction is related directly to the role of the court that must, in considering an application for a stay of proceedings, determine whether the agreement is "void, inoperative or incapable of being performed". Given that the general rule is that arbitrators should be the first to consider challenges to their jurisdiction, the expressions "void", "inoperative" and "incapable of being performed" should be interpreted narrowly. There appears in fact to be a consensus to this effect in the authorities on all three of these criteria…

Courts should therefore be mindful to avoid an interpretation that makes it possible to sidestep the competence-competence principle and turns the Convention's "inoperative" exception into a back door for a party wanting to "escape" the agreement.[^16]

The majority in Seidel did not address the point.

C.2 Analysis

[22] Ciano advanced two arguments about why the Arbitration Clause did not apply to disputes advanced after the June, 2013 termination of the Services Agreement. First, Ciano submitted that the parties made their intention clear as to which provisions of the Services Agreement survived termination through Article 24.A of the Services Agreement which provided as follows:

24. A. Survival. The following clauses shall survive the termination of this Agreement: Article 5 – Relationship of the Parties, Article 8 – Indemnification, Article 13 – Required Records, Article 14 – Liens, Article 15 – Confidential Information, Article 16 – Publicity, Article 19 – Compliance with Laws.

Ciano submitted that since the Arbitration Clause – Article 23 – was not mentioned in the survival clause - Article 24.A - it was clear that the parties did not intend it to survive the termination of the Services Agreement.

[23] Second, Ciano argued that because the Arbitration Clause required the parties to appoint arbitrators within a very short period of time – “within and not later than one week from the purpose of one Party to settle any dispute and/or controversy” –the clause was intended to apply only to disputes which arose during the currency of the Services Agreement and not following its termination.

[24] In response Skylink contended that the termination of the Services Agreement simply meant that neither party was required to continue fulfilling their obligations pursuant to the agreement, but that any claims in respect of the agreement had to be asserted through the arbitration dispute mechanism chosen by the parties even though the Arbitration Clause was not specifically referenced in the Agreement’s survival clause.

[25] The question then becomes: is it is arguable that the Arbitration Clause was “inoperative” within the meaning of Article 8(1) of the Model Law? The positions advanced by both parties are arguable on the language of the Services Agreement. For example, I would note that the Agreement’s survival clause found in Article 24.A is linked, in the Agreement’s termination clause in Article 21, with the ability of a party to enforce certain rights following termination of the Services Agreement. Article 21(A) provides, in part, as follows:

Termination of this Agreement will not affect or impair either Party’s right to enforce the rights and remedies contained in the provisions that survive this Agreement as set forth in Section 24.A below.

Was it the parties’ intention that the survival clause only identified the substantive rights and remedies which a party could seek to enforce following termination, or did the survival clause also limit the procedural means by which such rights and remedies could be enforced? I cannot find that it is “clear” that one interpretation or the other prevails. The case law therefore drives me to conclude that that task initially should be performed by an arbitrator.[^17]

D. Can the Claim proceed because the parties agreed that both the courts and arbitral tribunals would have concurrent jurisdiction over any disputes?

[26] The plaintiff also submitted that a stay should not be granted because the causes of action set out in its Action can proceed before the court by virtue of the concurrent jurisdiction clause found in Article 24(I) of the Services Agreement which states:

24. I. Governing Law. This Agreement and any dispute arising under or in connection with this Agreement, including any action in tort, shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, U.S.A., without regard to any conflicts of laws principles which may direct the application of the laws of any other jurisdiction. Subject to Article 24, the courts of the Commonwealth of Virginia, U.S.A., shall have non-exclusive jurisdiction to enforce any award and grant an injunction or injunctions to prevent breaches or threatened breaches of the provisions of this Agreement and to enforce specifically this Agreement and its provisions, and the parties thereby consent to such jurisdiction.

[27] I do not accept Ciano’s argument on this point. First, the Action does not involve a claim for the enforcement of an award or the specific performance of the Services Agreement. Second, while it does assert a claim for an injunction in respect of soliciting Ciano employees and using confidential information (Claim, para. 1(k)), at most the courts would have concurrent jurisdiction over such a claim, while the rest of the claim – a large damages claim - most arguably falls within the scope of the Arbitration Clause.

E. Summary in respect of the claims asserted against Skylink

[28] For these reasons, I conclude that it is arguable whether the claims asserted by Ciano against Skylink in the Action are subject to arbitration under the Arbitration Clause and the issue of whether those claims are subject to the Arbitration Clause should be left to an initial decision by an arbitrator. Consequently, I stay the Action against Skylink pursuant to section 8(1) of the Model Law and ICAA s. 8.

F. Is a stay available in respect of the claims asserted against the defendants other than Skylink?

[29] As to the claims asserted in the Action against the Individual Defendants, in its factum Ciano observed that the Individual Defendants were not parties to the Services Agreement and its Arbitration Clause, but Ciano did not proceed later in its factum to make any further argument on the point. Skylink relied on section 106 of the Courts of Justice Act to seek a stay of the claims against the Individual Defendants.

[30] According to the Amended Statement of Claim, all of the Individual Defendants either were officers or directors of Skylink or acted or carried on functions as officers of Skylink (Claim, paras. 4 through to 14). A reading of the Amended Statement of Claim as a whole leaves one with the impression that Ciano alleges that the Individual Defendants were acting in the course of their duties with Skylink when they performed the acts about which Ciano complains. It is far from clear upon a reading of the Amended Statement of Claim that Ciano has pleaded claims against the Individual Defendants which would meet the requirements for asserting independent claims against officers and directors of a corporation as set out by the Court of Appeal in Adga Systems International Ltd. v. Valcom Ltd.[^18] and ScotiaMcLeod Inc. v. Peoples Jewellers Limited.[^19]

[31] In any event, since the Individual Defendants are all pleaded to be officers and directors of Skylink and since the allegations made against them, on their face, concern disputes regarding the performance and termination of the Services Agreement, in my view the reasoning of the Court of Appeal in Dalimpex on this issue applies equally to the present case:

On this point, the Divisional Court simply concluded as follows at para. 33:

Since the main protagonists in this dispute are Dalimpex and Agros, the claims against other parties in this action should also be stayed pending the determination of the Court of Arbitration: Boart Sweden AB v. NYA Stromnes AB (1988), 41 B.L.R. 295 at 304 (Ont. H.C.).

Dalimpex did not advance any credible argument to dispute the correctness of this conclusion. In my view, it is obvious from the pleadings that its action against the other two respondents will stand or fall on the merits of the action against Agros. I see no basis to interfere with the order of the Divisional Court extending the stay of the action to Janicki and Agropol.[^20]

[32] Accordingly, I stay the Action against the Individual Defendants pursuant to section 106 of the Courts of Justice Act.

V. Summary and costs

[33] For the reasons set out above, I grant Skylink’s motion, stay the Action pending arbitration between Ciano and Skylink, and dismiss Ciano’s application.

[34] I would encourage the parties to try to settle the costs of this motion. If they cannot, Skylink may serve and file with my office written cost submissions, together with a Bill of Costs, by March 28, 2014. Ciano may serve and file with my office responding written cost submissions by April 9, 2014. The costs submissions shall not exceed three pages in length, excluding the Bills of Costs.

D. M. Brown J.

Date: March 17, 2014

[^1]: In its factum Skylink did accept the truth of the facts pleaded in the Amended Statement of Claim for the limited purpose of the application and motion.

[^2]: (2003), 2003 CanLII 34234 (ON CA), 64 O.R. (3d) 737 (C.A.), paras. 21 and 22.

[^3]: 2008 ONCA 867, para. 18.

[^4]: 2009 ONCA 135

[^5]: Recently the Court of Appeal re-affirmed that the competence-competence principle applies to matters governed by the Arbitration Act, 1991: Ontario Medical Association v. Willis Canada Inc., 2013 ONCA 745, para. 25 et seq.

[^6]: 2007 SCC 34

[^7]: Seidel v. TELUS Communications Inc., 2011 SCC 15, paras. 29 and 114; see also Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, paras. 84-85..

[^8]: 2014 SCC 12.

[^9]: (2008), 2008 ONCA 656, 92 O.R. (3d) 4 (C.A.)

[^10]: Ibid., paras. 10 and 24 (emphasis added). It should be noted that the arbitration clause in the MDG Kingston case did refer to any dispute arising “at any time during the continuance of this agreement or after the termination thereof…”

[^11]: [1995] O.J. No. 3797 (Gen. Div.)

[^12]: Ibid., paras. 27 and 28.

[^13]: [1942] A.C. 356.

[^14]: Ibid., p. 366

[^15]: LexisNexis: Toronto, 2012, §8.1.6. See also, Automatic Systems Inc. v. E.S. Fox Ltd., [1995] O.J. No. 461 (Gen. Div.), para. 30.

[^16]: Seidel, supra., para. 117.

[^17]: Although the decision of the British Columbia Supreme Court in Cecrop Co. v. Kinetic Sciences Inc., 2001 BCSC 532, appeared to involve the issue of whether the absence of a reference to an arbitration clause in the contract’s survival clause meant that the arbitration clause did not survive the termination of the agreement, the discussion of the issue in that case was so cryptic that it was not possible to secure any practical guidance from the decision.

[^18]: 1999 CanLII 1527 (ON C.A.)

[^19]: 1995 CanLII 1301 (ON C.A.)

[^20]: Dalimpex, supra., paras. 44 and 45.