The National Automobile Dealer Arbitration Program, or NADAP, was instituted in late 2006 providing a process for dispute resolution as between manufacturers and dealers.  It specifically does not apply to disputes between one dealer and another or between one manufacturer and another.  As between a manufacturer and a dealer, however, it is mandatory that any disagreement arising out of a dealer agreement or its interpretation or application, including the question as to whether or not the dispute itself does arise under the terms of the dealer agreement, must be mediated and then arbitrated under the NADAP rules.

For the most part, dealers are fortunate to have the NADAP process available to them.

If a manufacturer or a dealer initiates a lawsuit in connection with such a disagreement, the party being sued can bring a motion to the court to have the lawsuit stopped so that the initiating party is forced to proceed under the NADAP rules.

While it is impossible to articulate every single type of dispute that might arise under the dealer agreement and thereby be subject to the NADAP rules of mediation and arbitration, the rules do list a number of examples of such disputes.  The examples suggest that to a significant extent, the rules exist to protect dealers by permitted dealers to challenge what may be arbitrary or unreasonable decisions on the part of manufacturers.  Some of these would include: Continue reading →

The Ontairo Court of Appeal recently released its decision in Combined Air Mechanical Services Inc. v. Flesch, in which it clarified the current law on summary judgments.  Its implications are significant and, no doubt, will impact on a number of smaller and simpler cases but will it have any effect on complex litigation?

The motion court judge has to fully appreciate the evidence and issues in a way that permits a fair adjudication of the dispute.

In a decision released on January 19, 2012 called Honest Art Inc. v. Decode Entertainment Inc., Mr. Justice Belobaba heard a motion for summary judgment in which the parties filed 16 volumes of material.  The material was filled with conflicting evidence across a range of interconnected and complex issues.  The key issue in the case related to discoverability.  The Plaintiff commenced its action soon after receiving an auditor’s report detailing the nonpayment of monies allegedly owned by the Defendant.  The Defendant argued that the cause of action had materialized many years before, when the Plaintiff had received one of the Defendant’s accounting reports in which it should have noticed allegedly improper deductions which would have been “obvious” to any reader.  As the Plaintiff waited for a number of years before suing, the Defendant argued that the claim was now statute barred.  Continue reading →

The Superior Court of Ontario recently dealt with a case in which a former mayoralty candidate brought a motion to force the operators of a web blog to identify people who had made anonymous postings, in order to sue them for defamation.

It might be assumed at first blush that anyone authoring a post on an anonymous basis can consider himself or herself to be free of any possible liability of defamation. That assumption would be incorrect.

The Plaintiff, Phylis Morris, had been the mayor of the Town of Aurora until 2010.  She ran for re-election at the end of that year and lost. 

The dispute revolved around a website called auroracitizen.ca which the Court described as a forum for political speech by way of web postings.  People choosing to post on that site were free to determine their level of privacy by identifying themselves, signing under a pseudonym, or remaining anonymous. 

Ms. Morris evidently felt that certain posts, placed on the website anonymously during the campaign, were defamatory.  Since she had no way of identifying the authors of those posts, she brought a motion against several individuals said to be in control of the website for an Order that they identify those authors.  Continue reading →