Articles 2021

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Missing Notes to Financial Statements and Other Disclosure Deficiencies

  • May 05, 2021
  • George A. Wowk, Cassels Brock & Blackwell LLP

A recent Ontario case considered the test for determining whether deficiencies in a disclosure document are so material so as to amount to no disclosure at all, thereby permitting rescission within two years under section 6(2) of Ontario's Arthur Wishart Act. The decision notes that the test, which considers whether the deficiencies impair the ability of a franchisee to make an informed decision, is an objective one, but which must account for the particular facts of each case.

Franchise Law, Student Forum

Good Faith in Contractual Performance - The Implications of Recent SCC Decisions for the Franchise Relationship

  • March 23, 2021
  • Andrew MacIver, Siskinds

The Supreme Court of Canada's two recent decisions in C.M. Callow Inc. and Wastech Services Ltd. revisited and clarified the principles of good faith contractual performance formulated in Bhasin. While it remains to be determined whether the common law duty of good faith is different from the franchise-specific duty of good faith and fair dealing, these general principles of contract law have important implications for parties to the franchise relationship.

Franchise Law, Student Forum

Got Damages? A Review of the Alberta Court of Appeal’s Clarification on Net Loss Damages Related to the Termination of a Franchise Agreement

  • March 23, 2021
  • Peter Snell, Gowling WLG, and Pam Vermeersch, Gowling WLG

The recent decision of the Alberta Court of Appeal in 1777453 Alberta Ltd. v. Got Mold Disaster Recovery Services Inc. provides important insight into the calculation of net loss damages upon the termination of the Franchisee-Franchisor relationship. This article provides a brief of the case and analysis of how the Court clarified damages from a net loss perspective, along with other issues.

Franchise Law, Student Forum

Court Finds that Franchisee Took Commercially Reasonable Steps to Dissociate from Franchisor

  • February 20, 2021
  • Steven Goldman and Alana Spira

When the franchise relationship comes to an end, ensuring dissociation from the franchisor while continuing on with business can present challenges. In this case the Court dealt with a dispute as to whether there had been dissociation per the parties' agreement, and provides guidance on what constitutes commercially reasonable efforts.

Franchise Law, Student Forum

Penalty Clauses and Liquidated Damages Provisions in Franchise Agreements

  • January 26, 2021
  • Adrienne Boudreau and Jason Brisebois, Sotos LLP

Penalty and liquidated damages clauses may seem like an attractive option in the contractual legal toolkit for franchise agreements. However, there are potential drawbacks and drafting considerations to keep in mind. This article provides an overview of these clauses, their benefits, and thoughts on their utility in the franchise context.

Franchise Law, Student Forum

Welcome from the Chair

  • November 16, 2020
  • David Shaw, Chair OBA Franchise Section

A note of welcome from our Section Chair, David Shaw, highlighting the group's activities and upcoming programs for this year.

Franchise Law, Student Forum

A Deeper Dive on the New Wishart Act Amendments

  • October 19, 2020
  • Dominic Mochrie, partner, Osler, Hoskin & Harcourt LLP, and Christine Jackson, associate, Osler, Hoskin & Harcourt LLP

Long-awaited amendments to Ontario's Arthur Wishart Act have now come into force. This article highlights the new amendments and provides insight into their interpretation and potential impact.

Franchise Law, Student Forum

When is a Notice of Rescission a Notice of Rescission?

  • July 30, 2020
  • Rory McGovern and Daniel Freiheit

In 2352392 Ontario Inc. v. Msi, the Ontario Court of Appeal delivered a significant decision that will impact the application of Section 6(3) of the Arthur Wishart Act. The decision, technically read, allows court pleadings to constitute a valid notice of rescission under the Act.  However, the principles applied by the Court of Appeal shed light, more broadly, on a new level for how the Act will be interpreted in favor of franchisees.

Franchise Law, Student Forum

Fit for Rescission?

  • May 13, 2020
  • Jennifer Pocock, Sakshi Pachisia, and David Kornhauser

In Raibex the Ontario Court of Appeal narrowed the availability of rescission for franchisees, stating that the availability of rescission under s. 6(2) of the Arthur Wishart Act was dependent on whether the franchisee was effectively deprived of the opportunity to make an “informed investment decision”. The recent decision of 2483038 Ontario Inc. v. 2082100 Ontario Inc. provided clarification on this issue and on who might constitute a franchisor’s associate pursuant to the Act.   

Franchise Law, Student Forum