Articles - Focus on Franchising

About ArticlesLes articles ci-dessous sont publiés par la Section du droit des franchises de l'Association du Barreau de l'Ontario. Les membres sont invités à soumettre des articles.  A propos des articles.

Rédacteurs : Melissa Won


Franchise Injunctions Revisited: Two Recent Decisions Demonstrate that Garcha Bros. is Not the End of the Story

  • 15 juillet 2022
  • Derek Ronde and Danielle DiPardo, Cassels Brock & Blackwell LLP

Restrictive covenants can be an essential feature of a franchise agreement, but how will they be enforced? Recent developments in the law have cast some confusion and inconsistency on the interpretation, scope, and enforceability of these clauses, including the test for obtaining injunctions. In this article the authors review recent decisions, and weigh in on the debate.

Droit des franchises, Student Forum

Franchise Releases

  • 15 juillet 2022
  • Jonathan Mesiano-Crookston, Goldman Hine LLP

Section 11 of the Wishart Act is a protective provision preventing any waiver or release of rights. The Courts have interpreted the section strictly, presenting challenges in practice around ensuring enforceability of contractual releases. This article discusses the legal developments interpreting s. 11 and recent decisions clarifying its scope.

Droit des franchises, Student Forum

The Enforcement of Restrictive Covenants Against Non-Contracting Parties

  • 05 avril 2022
  • Idan Erez, Hoffer Adler LLP

Restrictive covenants, such as non-compete and non-solicitation clauses, are a common feature of franchise agreements - but how far does the scope of enforcement extend? Despite tenets of privity, Courts have demonstrated a willingness to bind non-contracting third parties in certain franchising contexts. This article discusses the evolution of judicial consideration, and examines a recent B.C. Court of Appeal decision providing welcomed guidance on these issues.

Droit des franchises, Student Forum

Accelerating Growth Through Managed Cloud Kitchens and Ghost Kitchens

  • 04 décembre 2021
  • Clark Harrop and David Shaw, Dale & Lessmann LLP

The phenomenon of ghost kitchens has increasingly sparked the interest of many in the restaurant industry. With Covid-19 especially, delivery represents a large and growing proportion of the foodservice industry. This article explores the issues, opportunities, and challenges of ghost kitchens for franchisors amidst a rapidly changing environment.

Droit des franchises, Student Forum

Now and Then: An Overview of the Development of Location-Specific Disclosure Requirements, Where We Are and Where We Are Going Following Freshly Squeezed and Yogurtworld

  • 19 août 2021
  • Christine Jackson, partner, Osler, Hoskin & Harcourt LLP, and Dominic Mochrie, partner, Osler, Hoskin & Harcourt LLP,

Determining the scope of "all material facts" that must be disclosed to franchisees is a key part of the continuing evolution of franchise law in Canada. This article provides important insights on two recent cases dealing with location-specific disclosure requirements, and sets out a helpful overview of how the law has developed in this area.

Droit des franchises, Student Forum

Forum Selection Clauses and Jurisdictional Challenges in British Columbia: The Case of Canstar

  • 28 juin 2021
  • Rory McGovern

A recent British Columbia Supreme Court decision provided the Court the first opportunity to interpret and apply certain sections of the relatively recently enacted BC Franchises Act. This article details the analysis and precedential value of the decision for the scope and application of s. 12 of the BC Act, as well as outlining the Court's in depth consideration of defining the franchise relationship.

Droit des franchises, Student Forum

British Columbia Court of Appeal Class Action Decision Provides Important Insight into Potential Franchise System Consumer Liability Issues

  • 21 juin 2021
  • Derek Ronde, Cassels Brock & Blackwell LLP

Can the franchisor-franchisee relationship create a conspiracy? In its decision Pearce v. 4 Pillars Consulting Group Inc., the B.C. Court of Appeal upheld the lower court's decision to certify a number of claims, including civil conspiracy, in a class proceeding against both franchisee and franchisor defendants. This article highlights the outcome of the decision and considers potential consequences and considerations for franchise systems.

Droit des franchises, Student Forum

Missing Notes to Financial Statements and Other Disclosure Deficiencies

  • 05 mai 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.

Droit des franchises, Student Forum

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

  • 23 mars 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.

Droit des franchises, 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

  • 23 mars 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.

Droit des franchises, Student Forum