Susan Friedman Davis LLP

Transcription

1 The 12th Annual Franchise Law Conference For Better or For Worse: Franchise Relationships Over the Long Term HOT TOPICS IN RESCISSION: FRANCHISOR S ASSOCIATE, THE STATEMENT OF CLAIM AND COUNTRY STYLE FOOD SERVICES AND OTHER RECENT DECISIONS Susan Friedman Davis LLP November 6, 2012 Ontario Bar Association Continuing Professional Development

2 THE 12 TH ANNUAL ONTARIO BAR ASSOCIATION FRANCHISING LAW CONFERENCE HOT TOPICS IN RESCISSION: FRANCHISOR S ASSOCIATE, THE STATEMENT OF CLAIM AND COUNTRY STYLE FOOD SERVICES AND OTHER RECENT DECISIONS SUSAN FRIEDMAN DAVIS LLP FRANCHISOR S ASSOCIATE Subsection 6(6) of the Arthur Wishart Act (Franchise Disclosure), SO 2000, c.3 (the AWA ) imposes the same obligations and liabilities on a franchisor s associate as it does on the franchisor in the event of rescission by the franchisee on the grounds of deficient or non-disclosure. The implications of a finding that someone is a franchisor s associate, however, go beyond what is obvious from a plain reading of subsection 6(6) of the AWA. What is a franchisor s associate? Subsection 1(1) of the AWA contains the following definition: franchisor s associate means a person, (a) who, directly or indirectly, (i) controls or is controlled by the franchisor, or (ii) is controlled by another person who also controls, directly or indirectly, the franchisor, and (b) who, (i) is directly involved in the grant of the franchise, (A) by being involved in reviewing or approving the grant of the franchise, or (B) by making representations to the prospective franchisee on behalf of the franchisor for the purpose of granting the franchise, marketing the franchise or otherwise offering to grant the franchise, or (ii) exercises significant operational control over the franchisee and to whom the franchisee has a continuing financial obligation in respect of the franchise; There are therefore two limbs to the definition, both of which must be established for a finding that a person is a franchisor s associate. A Paragraph (a): Control and relationship to franchisor Where the entity at issue is a corporation, control of the franchisor and of the putative franchisor s associate may be established by evidence that a person owns more than fifty percent of the issued and outstanding shares of the subject entity. In practice, however, it may be sufficient to prove control where a person holds only fifty percent of the shares and possibly less.

3 - 2 - In Ontario Ltd. v. Dig This Garden Retailers Ltd., 2005 CarswellOnt 3097 (O.C.A.) 1, the Court of Appeal found that two shareholders, each of whom owned 50 percent of the shares of the franchisor corporation, were both franchisor s associates, holding that Section 1(3) of the AWA makes it clear that control may rest in the hands of more than one person. Similarly, in MBCO Summerhill Inc. v. MBCO Associates Ontario Inc. 2, the court found that an individual named Elian was a franchisor s associate despite the facts that (i) he held only fifty percent of the shares of the franchisor, (ii) he was neither an officer nor a director of that corporation, and (iii) all of his decisions required approval of the other fifty percent shareholder. The court held that control reposing in the hands of only two people satisfied the first limb of the test and that indirect control, by which the court presumably meant control through coupling the other shareholder s degree of control with the defendant s, could be taken into account in coming to that decision. The AWA also recognizes the concept of deemed control. Subsection 1(3) of the AWA provides as follows: Deemed control 1(3) A franchisee, franchisor or franchisor s associate which is a corporation shall be deemed to be controlled by another person or persons if, (a) voting securities of the franchisee or franchisor or franchisor s associate carrying more than 50 per cent of the votes for the election of directors are held, otherwise than by way of security only, by or for the benefit of the other person or persons; and (b) the votes carried by such securities are entitled, if exercised, to elect a majority of the board of directors of the franchisee or franchisor or franchisor s associate. (emphasis added). It follows from this that any one of a group of shareholders who together hold more than 50 per cent of the shares and who together are in a position to elect the majority of the board of directors, may be a franchisor s associate. What about de facto control? In Ontario Ltd. v. Grill It Up Holdings Inc. 3, the prospective franchisees dealt solely with one person, Paul Fredericks, as a representative of the franchisor and understood that Mr. Fredericks owned and operated the company. While no evidence was presented to the court as to the specific degree of Mr. Fredericks interest in the franchisor corporation, neither was any evidence presented by him that this was a joint-venture or that anyone else had an interest in the franchisor. Mr. Fredericks had been the person who gave the prospective franchisee a list of potential locations, designed and supervised the construction of the premises, was the only one with whom the franchisee dealt and received the cheques tendered by the franchisee. The court held that he was a franchisor s associate within the meaning of the AWA and held him jointly and severally liable with the franchisor corporation for the franchisee s damages. B Paragraph (b): Relationship to franchisee The second limb of the definition of franchisor s associate focuses on the dealings between the purported associate and the prospective franchisee.

4 - 3 - In Dig This Garden, supra, the fact that both shareholders of the franchisor, each of whom held fifty per cent of the shares, were involved in the grant of the franchise by making representations directly to the prospective franchisee, justified a finding that they were each a franchisor s associate. As discussed above, in Grill It Up, the fact that the prospective franchisees dealt solely with Mr. Fredericks in respect of the particular agreements (a licence agreement, a sub-lease and an asset purchase agreement) that the court found to be franchise agreements, established the second limb of the franchisor s associate test. Similarly, in MBCO Summerhill, supra, the second limb of the franchisor s associate test was satisfied by the fact that Elain had been directly involved in the grant of the franchise, in that he was the only person who dealt with or spoke to the franchisee s principal about the opportunity to become a franchisee Canada Inc. v. Dollar It Ltd. 4 and Canada Ltd. v. Dollar It Ltd. 5 are two rescission decisions involving the dollar store franchisor Canada Ltd came before the lower court before the other case did. Justice Linhares de Sousa found that the sublessor, a corporation called Shikar Properties Inc. ( Shikar ) was controlled by the same individual, Shiene Merali ( Merali ), as was the franchisor thereby satisfying that first limb of the definition of franchisor s associate. The court further found that Shikar exercised significant operational control over the franchisee and was the recipient of a continuing financial obligation on the part of the franchisee through the sublease, thereby satisfying the second limb of the definition. Moreover, the sublease was found to be a franchise agreement and was subject to the same rescission provisions as was the franchise agreement itself. The absence of the head lease (or offer to lease, as it was at the time) from the disclosure document was a material defect, one of several that entitled the franchisee to rely on the 2 year limitation period of s.6(2) of the AWA. On appeal, the Court of Appeal upheld the lower court s decision except in one respect. It found that Merali personally was also a franchisor s associate and jointly and severally liable with the franchisor and Shikar for the franchisee s damages. In Canada Inc. the Court of Appeal made a similar finding with respect to Shikar and Merali being franchisor s associates, but also dealt with the issue of disclosure in those circumstances. Of particular note was the finding that not only did the disclosure document have to contain the particular statements respecting franchisor s associates as mandated by section 2 of O.Reg. 581/00, it must also make broader disclosure of material facts about the franchisor s associates and should also contain a copy of the head lease. In making this finding, the Court of Appeal was influenced by the fact that in the sub-lease Shikar was not only referred to as the sub-landlord, but also from time to time as the franchisor. C Common Enterprise In Burnett v. Cuts 6, the court had granted rescission against the Canadian franchisor on the basis of noncompliance with the disclosure requirements and was asked to find several other parties jointly and severally liable on the basis that they were franchisor s associates. The parties at issue were the U.S. parent company of the Canadian franchisor, a U.S. corporation that acted as franchisor in the Unites States and Mr. Gennaro, the sole office, director and shareholder of both the Canadian franchisor and its parent corporation and the majority shareholder of the U.S franchisor. There was a licence agreement between the U.S. franchisor and the Canadian

5 - 4 - franchisor, a copy of which the U.S. franchisor had provided as part of a draft disclosure document. Justice Whitaker found that the franchisor s U.S. parent, the U.S. franchisor and Mr. Gennaro were all franchisor s associates, stating that, The defendants carried on the business of a franchisor as a common enterprise. They did not distinguish between the US Franchisor and the Canadian Franchisor when it came to the payment and collection of fees. Additionally, Mr. Gennaro had been directly involved in the grant of the franchise, although another U.S. employee had carried on most of the discussions with the principal of the Canadian franchisee. This case reminds us of the necessity of keeping clear lines of demarcation between the activities of various corporate entities within an entire franchise system. THE STATEMENT OF CLAIM RESPECTING A RESCISSION CLAIM We start with the basic premise that the statement of claim should contain each constituent element of the cause of action at issue and should not contain anything that is extraneous. It may be the case that the last part of the basic premise is more often ignored than followed, usually on the grounds that the extraneous allegations are provided for colour or for context. Sometimes these reasons are valid. Nonetheless we must remember that before Picasso broke every rule of drawing in the book, he did learn how to sketch very well indeed. The statement of claim is the armature from which the action hangs. The answers to the questions of which documents have to be produced, what are relevant lines of inquiry for the purposes of examination for discovery and which issues the judge has to resolve at trial all have their source in the statement of claim. Extraneous allegations in the statement of claim will result in additional documents that have to be produced, additional questions that have to be answered and a broadening of the avenues of inquiry that might lead to unexpected and not necessarily happy places. The statement of claim is also the first document that the judge will read in the context of the trial. An over-reaching statement of claim will not give the judge an impression of a careful, measured plaintiff, who is merely seeking what he is due. What are the necessary elements of a rescission claim? A statutory rescission claim pursuant to section 6 of the AWA involves pleading the following elements: 1. the capacities (franchisor or franchisor s associate) of each of the persons or entities against whom the claim is being asserted and, if a franchisor s associate, the main facts on which the plaintiff relies to establish that capacity; 2. the execution of a franchise agreement by a franchisee on a particular date, or the payment of a fee by the franchisee to the franchisor or the franchisor s associate on a particular date, or most likely both; 3. the failure of the franchisor to have provided the requisite disclosure document or written statement of material change as required by section 5 of the AWA, including possibly:

6 - 5 - i. the failure of the franchisor to deliver the disclosure document or statement of material change within the time period set out in section 5(1) or 5(5), as applicable; ii. iii. iv. the failure of the franchisor to follow the prescribed method of delivery of the document; 7 the failure of the franchisor to include in one disclosure document, delivered at one time, all of the statements and contents required by the AWA or its regulations; and the failure of the information in the disclosure document or statement of material change to be accurate, clear and concise; 4. whether rescission is being claimed pursuant to section 6(1) or 6(2) of the AWA; 5. the date and manner of delivery of the written notice of rescission (but see below re the Statement of Claim as constituting written notice of rescission); 6. the failure of the franchisor or franchisor s associate to honour its obligations pursuant to section6(6) of the AWA; and 7. the heads of damages suffered by the franchisee and the approximate amount of each. In approximating each head, you may want to leave some room for damages that are still being accrued but in general it is a bad idea to claim millions when the likelihood is that the damages are in the thousands. Additionally, you may want to use the word including before setting out the heads of damages or have a basket clause at the end of the paragraph, in case not all of the types of damages are known yet. In this writer s view, however, it is not a good idea to claim $20 million for damages and state that a breakdown will be provided prior to trial. To do so is to invite a demand for particulars, possibly a motion and in any case further delay and chances are that the franchisee client is anxious to move the matter forward as quickly as possible. The heads of damages that might be claimed include: i. the deposits paid to the franchisor; ii. iii. iv. the royalty fees paid to the franchisor; equipment purchases; cost of unsold inventory and supplies; v. expenditures on rent and utilities; vi. the cost of advertising,

7 - 6 - vii. viii. ix. insurance premiums; legal and accounting fees related to the acquisition and operation of the franchise; working capital loans and interest paid thereon; x. staff salaries; xi. xii. xiii. foregone income of the owner-operator; any other operating expenses; and damages for breach of the duty of good faith. Can the Statement of Claim serve as a notice of rescission? In Ontario Ltd. V. Grill It Up Holdings Inc., supra, Justice D.L. Corbett considered the question of whether or not written notice of rescission was provided from the franchisee to the franchisor as required by s. 6(3) of the AWA. At paragraph 38 he stated: In the alternative, notice of rescission was provided in the statement of claim which was issued December Service of the claim was acknowledged when the defendants pleaded over to it in February In the result it would appear that the Statement of Claim itself could constitute the Notice of Rescission, provided that it is delivered in the manner stipulated by section 6(3) of the AWA. Further support for this contention can be found in Justice Strathy s decision in Ontario Ltd. v. Mmmuffins Canada Corp. 8 In this case, a franchisee commenced an action for rescission of a franchise agreement on grounds of breach of disclosure obligations, but sought rescission pursuant to common law rather than the AWA. Several years later (after the two year limitation period had expired), having realized the mistake, the franchisee commenced a new action under the AWA, alleging that service of the statement of claim in the first action constituted written notice of rescission under the AWA for the purposes of the second action. The initial statement of claim however made no mention of AWA, or indeed to any statutory rescission remedy at all. As a result the court ruled that the statement of claim could not be treated as notice or rescission. The judgment however made it clear that the reason the statement of claim could not constitute notice was that it made no mention of AWA and failed to indicate the plaintiffs intention to exercise their rights pursuant to it. At no time is it suggested that a statement of claim could never be considered notice for the purposes of section 6(3). Indeed Justice Strathy said just the opposite, finding support for this contention in Ahmed v. Ontario 9, a case in which it was held that a statement of claim could constitute notice under the Proceedings Against the Crown Act. In paragraphs 45 and 46 Justice Strathy elaborated on the content requirements of a written notice of rescission delivered with respect to s. 6(3). He wrote: it seems to me that the notice must at least be sufficient to bring home to the franchisor that the franchisee is exercising its statutory right of rescission under the AWA

8 - 7 - and to inform the franchisor that the clock has begun to run on the 60-day period in s.6(6). the franchisor is entitled to know whether a violation of the AWA is being alleged and whether the franchisee is claiming remedies under that statute. The franchisor is not able to fulfill its statutory obligations unless the notice is at least adequate to inform it that the franchisee has rescinded the agreement. The notice does not have to be in specific language, but it must make it at least clear that the franchisee is exercising its statutory right to rescind the franchise agreement and demanding the compensation to which it is entitled. Mmmuffins Canada therefore suggests that a statement of claim could be treated as written notice, as long as it included clear language to that effect. Beyond the Arthur Wishart Act, there have been other situations in which courts have considered whether or not a statement of claim can constitute written notice pursuant to legislation or private contracts. As mentioned above, in Ahmed v. Ontario, Justice Low found that a statement of claim could constitute written notice under s. 7(1) of the Proceedings Against the Crown Act. In Dunn v. Condominium Plan No. 89PA14638 (Owners) 10, Justice Rothery ruled that a statement of claim could be treated as written notice of penalty for the purposes of s. 99(1) of the Condominium Property Act (and the relevant Condominium By-Law 42(e). Finally in Callaghan v. Westfair Foods Ltd. 11, the Alberta Court of Appeal accepted the trial judge s finding of fact that a statement of claim could be considered notice required under an employer s long-term disability plan. COUNTRY STYLE FOOD SERVICES AND OTHER RECENT RESCISSION DECISIONS A. Sirianni v. Country Style Food Services Inc. 12 The events that gave rise to this action took place after the expiry of the original term of the franchise agreement, while the parties were discussing its renewal pursuant to an option to renew. At the same time, the term of the head lease and of the sublease had also expired and the franchisor had given notice to the head landlord of its exercise of the option to renew the head lease. Negotiations between the franchisor and the head landlord went on for a considerable while, but they were unable to reach agreement with respect to the increase in rent and so they planned to go to arbitration, which was scheduled to begin about a year after the term of the head lease, sub-lease and franchise agreement had all expired. During this year, the franchisee continued to operate the franchised unit. While waiting for the arbitration, the franchisor sent the franchisee a disclosure document. Not surprisingly, it did not contain either the new lease or sublease, since the financial terms of these had not yet been settled or determined by the arbitrator. Some months later, the franchisor sent the franchisee a package of agreements to sign, which still did not contain the sublease or head lease. The franchisee refused to sign. The scheduled date of the arbitration came and went without the arbitration taking place. The negotiations between franchisor and head landlord continued. Finally they reached accord as to the rental rate and further agreed to a shorter renewal term than the five years contemplated by the renewal option. In May 2007 the franchisor sent a letter to the franchisee advising that agreement had been reached with the head landlord and outlining the terms for renewal of the sublease, which included renovation of the franchised unit to meet the franchisor s new standards.

9 - 8 - While the letter set out the new rental rate, it failed to mention that the agreement with the landlord included a shorter renewal term than was called for by the option to renew provision of the original lease. The franchisee signed back the May 2007 letter, accepting its terms. It continued to refuse to sign the franchise agreement, however, till it received a copy of the new sub-lease. The franchisor then advised the franchisee that the latter was operating on a month-tomonth basis and that neither the franchise agreement nor the sub-lease had been renewed. Approximately twenty-five months after the term of the original franchise agreement expired, the franchisee gave notice of rescission and, vacating the premises, also claimed rescissionary damages. Justice Mesbur held that the franchisee had been occupying the leased premises as a tenant from month-to-month and operating the franchise on a monthly basis pursuant to the terms of the original franchise agreement from the date of expiry of the original franchise agreement and sublease, to the date on which the franchisee received the May 2007 letter from the franchisor. In her view that letter, once countersigned by the franchisee, amounted to a new franchise agreement on the same terms as the old one. Any confusing provision in the May 2007 letter was to be construed contra proferentum against the franchisor, who drafted it. Since the disclosure document given to the franchisee prior to its counter-signing the May 2007 letter did not include the new termination date of the sublease or a copy of that document, the disclosure was materially defective, amounting to no disclosure at all. The franchisee therefore had two years from the date of the May 2007 letter within which to deliver its notice of rescission, in accordance with section 6(2) of the AWA. Since the notice of rescission was delivered in March 2009, it was effective to rescind the franchise agreement. The franchisee was entitled to recover all money that it paid to the franchisor and to the franchisor s associate, including rent and common area and maintenance costs. The franchisee was also awarded $25,000 for breach of the franchisor s good faith obligations in deliberately withholding information about the new, shorter lease term from the franchisee. In short, this pro-franchisee decision underscores yet again the critical importance of promptly and effectively disclosing information to a franchisee that is material to the decision making process with respect to renewal of a franchise. It also serves as a reminder that many a document signed by both franchisor and franchisee might be found to be a franchise agreement, even though that was not what was contemplated at the time. B. JM Food Services Ltd. v Canada Businet Co. Ltd. 13 This decision of Master MacNaughton of the Supreme Court of British Columbia deals with the issue of jurisdiction in cases involving rescissionary claims. The principals of the franchisee and of the franchisor were all residents of British Columbia. The franchisee entered into two franchise agreements: one to operate a franchise in Ontario and one to operate a franchise in British Columbia. Both agreements were signed in British Columbia. Neither contained a choice of law provision. The Ontario franchise was the first to commence operations. The franchisee served a notice of rescission pursuant to the provisions of the AWA in respect of the franchise agreement for the Ontario unit approximately 15 months after signing it. Shortly thereafter the franchisor served a notice of termination in respect of the franchise agreement for the British Columbia unit. The franchisee commenced an action in Ontario against the franchisor

10 - 9 - and several franchisor s associates and a few days later the franchisor, not knowing of the Ontario action, commenced an action in British Columbia against the franchisees. The franchisee then brought an application to stay the B.C. action, asking the court to decline to exercise jurisdiction on the basis of forum non conveniens. Master MacNaughton noted that the parties agreed that pursuant to the Supreme Court of Canada s decision in Club Resorts Ltd. Van Breda 14, the burden was on the moving party to convince the court that Ontario was clearly the more appropriate forum. He found that on the facts before him, the following factors were neutral ones: the plaintiffs competing choices of forum; the fact that the two competing jurisdictions were both within Canada; where counsel resided; the availability of trial time; and the place of enforcement of a judgment. The following factors were irrelevant: which proceeding was commenced first; and the fact that the franchisee voluntarily ceased its Ontario operation, while its British Columbia business was terminated. The fact that the primary witnesses were all located in British Columbia favoured allowing that action to proceed. However far more significant was the fact that in Ontario the franchisee had, in addition to its common law claims, the benefit of the provisions of the AWA, which gave them a juridical advantage. While the AWA could be proved in an action in British Columbia, it was more appropriate to permit the Ontario court to apply Ontario law. In the result, the British Columbia action was stayed. C. Dodd v. Prime Restaurants of Canada Inc. 15 This decision arose in the context of a motion for summary judgment brought by the franchisor to dismiss the franchisees action for rescission pursuant to the provisions of the AWA, as well as for damages for misrepresentation, negligence and breach of contract pursuant to the common law. The franchisees had received a disclosure document and approximately three months later entered into a franchise agreement to operate an East Side Mario s restaurant in Toronto. The restaurant opened eight months after the franchise agreement had been signed and was not successful. The corporation through which the franchisees operated the restaurant made an assignment in bankruptcy and mutual releases were signed by the franchisees and the franchisor. A few weeks after signing the release, the franchisees served a notice of rescission in respect of the franchise agreement and then commenced an action when the franchisor did not pay the damages sought. They also served a jury notice, despite the fact that the franchise agreement contained a provision waiving the right to trial by jury. The position of the franchisees was that the release was unconscionable or was void pursuant to section11 of the AWA. Relying on the Court of Appeal s decision in Combined Air Mechanical Services Inc. v. Flesch 16, Justice Lococo held that the franchisor had failed to discharge the onus of satisfying the court that there was no genuine issue requiring a trial in respect of either the validity of the release of the franchisees entitlement to rescind the franchise agreement. He noted that the onus on the franchisees as responding parties was an evidentiary one only; requiring them only to lead evidence of specific facts that show there is a genuine issue requiring a trial. The ultimate onus is on the moving party. The court was influenced by the franchisees evidence that they lost a substantial investment in a short period of time and considered that a trial was necessary to determine if it was grossly unfair and improvident for them to have signed the mutual release, if they had independent legal advice before signing the release and if there had been an imbalance

11 in bargaining power of which the franchisor had taken advantage. To be noted was Justice Lococo s statement that while the franchisees could not rely on section 11 of the AWA as invalidating the release of the common law or equitable claims, the extent to which that provision invalidated the release insofar as it impacted on the claims pursuant to the AWA was better left to trial, particularly where it was unclear if the franchisees had a full appreciation of the claims which the release purported to waive. Further, despite the fact that counsel for the moving party had created a chart comparing the disclosure requirements of the AWA with the actual disclosure made to the franchisees, it was Justice Lococo s view that a trial was required for the court to have a full appreciation of the evidence and the issues in this regard. The relief for partial summary judgment dismissing the rescission was claim alone was therefore also dismissed. Justice Lococo did strike out the jury notice. Relying on the decision of the Court of Appeal in MDG Kingston Inc. v. MDG Computers Canada Inc. 17, he held that waiver of trial by jury was not a penalty or obligation as contemplated by subsections 6(1) and 6(2) of the AWA; moreover it was a term that would survive the rescission of the balance of the franchise agreement, should that be the outcome at trial. The franchise agreement was signed with the benfit of counsel s advice and the waiver of the right to trial by jury was common in the context of commercial agreements, which deal with matters outside the experience of most prospective jury members. Moreover, subsection 108(2) of the Courts of Justice Act 18 mandates that claims for rectification, setting aside or cancellation of a deed or other written instrument or other equitable relief be tried without a jury.

12 Ontario Ltd. v. Dig This Garden Retailers Ltd., 2005 CarswellOnt 3097 (OCA) 2 MBCO Summerhill Inc. v. MBCO Associates Ontario Inc., 2010 Carswell 7476 (SCJ) Ontario Ltd. V. Grill It Up Holdings Inc., 2011 ONSC 2735; 2011 CarswellOnt Canada Inc. v. Dollar It Ltd., [2009] O.J. No (OCA), 2009 ONCA Canada Ltd. v. Dollar It Ltd., [2010] O.J. No. 214 (OCA), 2010 ONCA 34 6 Burnett v. Cuts, 2012 ONSC 3358 (CanLII) 7 But see Vijh v Mediterranean Franchise Inc., 2012 ONSC 3845, wherein Justice Belobaba held that delivery of an otherwise proper disclosure document by , with the franchisee s consent, did not constitute a significant deficiency Ontario Ltd. v. Mmmuffins Canada Corp., 62 BLR (4 th ) 137; 2009 CarswellOnt Ahmed v Ontario, [2004] O.J. No (SCJ) 10 Dunn v. Condominium Plan No. 89PA14638 (Owners), 2003 CarswellSask 81; 2003 SKQB 53; 229 Sask.R Callaghan v. Westfair Foods Ltd., 2001 CarswellAlta 787; 2001 ABCA 144; 253 WAC 104, at Sirianni v. Country Style Food Services Inc., 2012 ONSC 881 (CanLII) 13 JM Food Services Ltd. v Canada Businet Co. Ltd., 2012 BCSC 862 (CanLII) 14 Club Resorts Ltd. Van Breda, 2012 SCC Dodd v. Prime Restaurants of Canada Inc., 2012 ONSC 1578 (CanLII) 16 Combined Air Mechanical Services Inc. v. Flesch, [2011] O.J. No (CA) 17 MDG Kingston Inc. v. MDG Computers Canada Inc.,[2008] O.J. No (CA) 18 Courts of Justice Act, R.S.O. 1990, c.c.43