Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

A real estate agent may succeed in a claim for commission in the absence of a written agreement where a written offer to purchase the client's property is produced and executed in a direct series of events in which the agent is intimately involved. (J.J. Barnicke Ltd. v. 1471422 Ontario Ltd., COCO/2007-141, [2007] O.J. No. 3740, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Visit Quicklaw to access the full article

Although the Executive Director of the Alberta Real Estate Council has no statutory right to appeal from a decision of a hearing panel appointed under the Alberta Real Estate Act, the Director has standing to seek judicial review of the decision as such a review does not involve the Council impeaching its own decision. (Real Estate Council of Alberta v. Henderson, COCO/2007-135, [2007] A.J. No. 1068, Alberta Court of Appeal)

Visit Quicklaw to access the full article

An arbitration provision in an agreement with a company being wound up ceases to have effect and becomes inoperative as a result of the Winding-up and Restructuring Act and court orders prohibiting proceedings against the company and the court-appointed liquidator, and leave to commence arbitration proceedings may be refused to avoid a multiplicity of litigation that would add unnecessary costs and cause delay. (Canada (Attorney General) v. Reliance Insurance Co., COCO/ 2007-136, [2007] O.J. No. 3830, Ontario Superior Court of Justice (Commercial List))

Visit Quicklaw to access the full article

When a prospectus contains a misrepresentation on the date the document is filed, information that amounts to a material fact, but not a material change that arises subsequent to filing, cannot support an action under s. 130(1) of the Ontario Securities Act. (Kerr v. Danier Leather Inc., COCO/2007-137, [2007] S.C.J. No. 44, Supreme Court of Canada)

Visit Quicklaw to access the full article

A limitation of liability provision in a bill of lading that applies to multi-modal transportation from, to or within the United States does not apply to a shipment of goods from New York to Italy that was stolen while being driven from New York to Montreal in the face of another provision intended to limit the first provision that applies to the road and rail transport provision of multi-modal transport in Europe or within a state other than the U.S. (Alcoa Inc. v. CP Ships (UK) Ltd., COCO/ 2007-138, [2007] O.J. No. 3812, Ontario Court of Appeal)

Visit Quicklaw to access the full article

Although, by virtue of the parol evidence rule, evidence of an earlier shareholders' agreement may not be admitted to interpret later shareholders' agreement that is unambiguous, where an oppression remedy is sought, evidence of the earlier agreement may be admitted as relevant and probative of a shareholder's reasonable expectations. (Matthews Investments Ltd. v. Assiniboine Medical Holdings Ltd., COCO/2007-139, [2007] M.J. No. 353, Manitoba Court of Queen's Bench)

Visit Quicklaw to access the full article

A court may order the cancellation of shares to remedy oppressive conduct involving the release of the shares from the escrow basis of inaccurate information. (Hawley v. North Shore Mercantile Corp., COCO/2007-140, [2007] O.J. No. 3822, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

The witness immunity rule that precludes suits against a person in respect of testimony given at a judicial proceeding also applies to evidence given before a statutory tribunal with authority to make inquiries, conduct hearings and impose sanctions. (Bader v. Rennie, COCO/2007-129, [2007] O.J. No. 3441, Ontario Superior Court of Justice - Divisional Court)

Visit Quicklaw to access the full article

A clause in an agreement requiring arbitration in respect of the interpretation of the agreement or the performance of its provisions may be broad enough to cover a claim that the relationship established between the parties includesfiduciary duties. (Greenfield Ethanol Inc. v. Suncor Energy Products Inc., COCO/2007-130, [2007] O.J. No. 3104, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

When a party to an action is aware of outstanding legal fees owed by the opposing party to the law firm representing it and colludes with the opposing party in settling their dispute with the purpose of depriving the firm of its fees, the party may be liable to the firm for the fees. (Gardiner Miller Arnold LLP v. Kymbo International Inc., COCO/2007-131, [2007] O.J. No. 3571, Ontario Court of Appeal)

Visit Quicklaw to access the full article

A determination of whether a purchaser of assets from a party to a contract is a successor or assign of the party is a question of fact that should be determined on a full record at trial and not on a motion for summary judgment. (R. v. AXA Pacific Insurance Co., COCO/2007-132, [2007] O.J. No. 3151, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

Disputes arising under an addendum to an agreement that does not contain a forum selection clause may nonetheless be subject to such a clause contained in an earlier agreement where the addendum does not stand on its own but is supplementary to the earlier agreement. (Red Seal Tours Inc. v. Occidental Hotels Management B.V. (c.o.b. Occidental Hotels & Resorts), COCO/2007-133, [2007] O.J. No. 3397, Ontario Court of Appeal)

Visit Quicklaw to access the full article

Memoranda containing minutes of meetings prepared by employees of a party may be admissible for the truth of their contents as business records under s. 42 of the British Columbia Evidence Act where, among other things, there is no reason why the authors of the memoranda could not give in oral evidence their summary of what was discussed and decided at a particular meeting. (Strata Plan LMS 3851 v. Homer Street Development Limited Partnership, COCO/2007-134, [2007] B.C.J. No. 1866, British Columbia Supreme Court)

Visit Quicklaw to access the full article

An arbitrator errs in exercising a discretion in respect of costs of an arbitration by denying costs to a party who is totally successful on the merits, has made a favourable offer to settle and is not guilty of any misconduct. (Necrovore Inc. v. Andover Land Corp., COCO/ 2007-123, [2007] O.J. No. 3216, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A court has the discretion to refuse to enforce an agreement to settle litigation where there is a mistake as to the authority of the person instructing the lawyer to make the offer to settle on behalf of a party and the potential prejudice to the party making the offer outweighs that to the other party and third parties. (Yonge Village Recreation Centre Ltd v. York Condominium Corp. No. 201, COCO/2007-124, [2007] O.J. No. 3314, Ontario Superior Court of Justice (Divisional Court))

Visit Quicklaw to access the full article

A forum selection clause in a settlement and release agreement by which the parties agree to attorn to the exclusive jurisdiction of a province's courts should be interpreted using the normal principles of contract interpretation and, on the basis of an objective interpretation of the clause in its commercial context, may not apply to claims asserted in a subsequent action unrelated to the subject matter of the agreement. (Procon Mining and Tunnelling Ltd. v. McNeil, COCO/2007-125, [2007] B.C.J. No. 1967, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

An owner of premises where construction is being carried out does not owe a duty of care in tort to a subcontractor who is not paid for labour, materials or services as a result of the insolvency of both the general contractor and the payment bond provider. (Don Fry Scaffold Service Inc. v. Ontario (Speaker of the Legislative Assembly), COCO/2007-126, [2007] O. J. No. 3054, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A vendor of real property who fails to complete a transaction on the original
closing date at the Land Title Office cannot contend that the purchaser has repudiated the agreement by proposing to subsequently close the transaction at the purchaser's lawyer's office where the location of the closing makes no difference to the vendor and no objection to the change in location is taken in a timely manner. (Walker v. Blades, COCO/ 2007-127, [2007] B.C.J. No. 1945, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

Prior discussions among negotiating parties will create no binding and enforceable agreement in the absence of a signed, written document where the parties have consistently accepted throughout the negotiations that they will be bound only when their agreement is reduced to writing and executed by them. (Atria Networks LP v. AboveNet Communications Inc., COCO/2007-128, [2007] O.J. No. 3102, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A bankrupt who did not act deceitfully and sincerely believed that a bank would not transfer funds out of the bankrupt's account until a cheque had cleared is entitled to have the debt to the bank discharged by bankruptcy even though the bankrupt was aware of suspicious circumstances surrounding the receipt of the cheque, which turned out to be counterfeit. (Toronto-Dominion Bank v. Merenick, COCO/2007-117, [2007] B.C.J. No. 1864, British Columbia Supreme Court)

Visit Quicklaw to access the full article

Where a proceeding is commenced in the United States one day before a similar proceeding is commenced in Ontario, the avoidance of multiple proceedings will not be a significant factor in determining whether to stay the Ontario action where there are numerous strong connections between the claim and Ontario. (Hershey Canada Inc. v. Solae, LLC, COCO/2007-118, [2007] O.J. No. 3215, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

An in-house counsel terminated by his or her employer cannot avoid a release executed as part of a severance package where he or she is well-versed in contract and employment law and, with legal knowledge and experience, chooses the option of accepting the severance offer and trying to immediately locate re-employment. (Titus v. William F. Cooke Enterprises Inc., COCO/2007-119, [2007] O.J. No. 3148, Ontario Court of Appeal)

Visit Quicklaw to access the full article

Although a breach of contract for the sale of shares does not in and of itself amount to a breach of s. 332 of the Criminal Code, which makes it an offence to fraudulently use funds contrary to a direction from the person providing the funds, an offence will be committed where the accused uses investment monies and fails to issue in a timely manner shares for which the monies have been furnished and intends to keep investors out of their property as long as possible to serve the accused's own economic needs. (R. v. Bodnarchuk, COCO/2007-120, [2007] B.C.J. No. 1831, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

A claim for pure economic loss arising out of a power outage affecting a town and surrounding areas that was caused by the defendant's collision with hydro poles and wires raises the prospect of indeterminate liability to an indeterminate class, which negatives any duty of care that might be owed by the defendant to the plaintiff. (Conestoga Meat Packers Ltd. v. Fehr, COCO/2007-121, [2007] O.J. No. 3150, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

As a partner's conduct in unilaterally changing locks on the partnership's leasehold premises and excluding the other partner from the management of the partnership's business and denying it from sharing any benefit from its investment effectively ends any potential working relationship between them, the only just and equitable remedy is a winding-up of the partnership in order to arrange the sale of the partnership assets. (Red Burrito Ltd. v. Hussain, COCO/2007-122, [2007] B.C.J. No. 1883, British Columbia Supreme Court)

Visit Quicklaw to access the full article

A lawyer will not be disqualified from acting against a former client to whom the lawyer gave general legal advice in respect of a pre-existing transaction even though the new retainer involves a challenge to the validity of a similar transaction where none of the former client's confidential information is relevant to the new retainer and the lawyer is attacking neitherthe former client nor the advice given to that client. (Greater Vancouver Regional District v. Melville, COCO/2007-111,
[2007] B.C.J. No. 1750, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

Although a court has discretion to restrain a party from making use of evidence seized pursuant to a wrongly granted Anton Piller order, it should not do so where such an order would result in an injustice to the party. (Solara Technologies Inc. v. Beard, COCO/2007-112, [2007] B.C.J. No. 1693, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

Where parties to an agreement have included a clause designating a court as having exclusive jurisdiction in respect of disputes, the onus rests on the party commencing a proceeding in a different court to establish strong cause to avoid the application of the clause. (BNP Paribas (Canada) v. BCE Inc., COCO/2007-113, [2007] O.J. No. 3026, Ontario Court of Appeal)

Visit Quicklaw to access the full article

Parties to an agreement of purchase and sale of a unit in a condominium building to be constructed may expressly contract out of the application of the common law doctrine of waiver with the result that the vendor may be entitled to cancel the agreement even after accepting from the purchaser late, partial payments of required deposits. (Hinkson Holdings Ltd. v. Silver Sea Developments Limited Partnership, COCO/2007-114, [2007] B.C.J. No. 1729, British Columbia Court of Appeal)

Visit Quicklaw to access the full article

The requirement to give written notice to a debtor of an agreement assigning a chose in action under s. 36(1) of the British Columbia Law and Equity Act may be satisfied through the issuance and service of a statement of claim if the assignment of the claim has been pleaded and the failure to give notice has not prejudiced the defendant. (Link v. Texas Oil & Gas Inc., COCO/2007-115, [2007] B.C.J. No. 1768, British Columbia Supreme Court)

Visit Quicklaw to access the full article

A plaintiff may be granted an interlocutory injunction requiring a defendant to continue to comply with its contractual obligations in return for full payment where discontinuation of the defendant's services would cause the plaintiff to substantially lose all of its business and much of its goodwill, while the defendant would suffer only delay in collecting money that had been in dispute for some time. (Look Communications Inc. v. Bell Canada, COCO/2007-116, [2007] O.J. No. 2995, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A bylaw of the Investment Dealers Association providing that a member remains subject to the jurisdiction of the Association for a period of five years from the date on which the person ceases to be a member does not permit the Association to continue disciplinary proceedings against a former member even if the proceedings were commenced less than five years after the cessation of the person's membership. (Investment Dealers Assn. of Canada v. MacBain, COCO/2007-104, [2007] S.J. No. 292, Saskatchewan Court of Appeal)

Visit Quicklaw to access the full article

A trial judge's finding that no loss was caused to a company as a result of the breach of a contract to deliver notices of a meeting to the company's shareholders that led to a delay in the holding of the meeting is highly fact driven and entitled to a high degree of deference on appeal. (Hi-Alta Capital Inc. v. Montreal Trust Co. of Canada, COCO/2007-105, [2007] A.J. No. 862, Alberta Court of Appeal)

Visit Quicklaw to access the full article

A party who has taken steps in a proceeding after the other party's repudiation of an agreement settling the litigation may not be permitted to raise and argue an accepted offer as the litigation progresses unless the right to pursue the original claim has been reserved in the settlement agreement and there has been no clear election to pursue only the original claim before steps are taken to enforce the settlement. (DeMan Construction Corp. v. 1429036 Ontario Inc., COCO/2007-106, [2007] O.J. No. 2705, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

A letter written to an employer by a lawyer on behalf of a dismissed employee proposing a severance package that neither alleges any wrongdoing nor claims that the employee has been wrongfully dismissed may not constitute a written demand for monetary damages under the definition of claim in the employer's employment practices liability insurance package. (Dynacare Co. v. St. Paul Fire and Marine Insurance Co., COCO/2007-107, [2007] O.J. No. 2929, Ontario Superior Court of Justice)

Visit Quicklaw to access the full article

Although counsel's freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms is infringed by s. 148(1) of the British Columbia Securities Act, which prohibits a person under investigation by the British Columbia Securities Commission from disclosing, except to counsel, any information or evidence obtained or sought to be obtained or the name of any witness examined or sought to be examined by the Commission, the provision is saved under s. 1 of the Charter as a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. (Shapray v. British Columbia (Securities Commission), COCO/2007-108, [2007] B.C.J. No. 1595, British Columbia Supreme Court))

Visit Quicklaw to access the full article

The capital loss method for assessing damages for breach of an agreement for sale of goodwill of a business is simply another way of calculating the plaintiff's potential loss of income as it reflects diminution of the capital value of income producing assets after the breach of contract and may be appropriately used where the parties themselves have used it to determine the sale price of a previous business. (Ascent Financial Services Ltd. v. Blythman, COCO/2007-109, [2007] S.J. No. 373, Saskatchewan Court of Appeal)

Visit Quicklaw to access the full article

As there is no presumption either in favour of or against interpreting a contract as imposing obligations in perpetuity, the determination of whether an agreement contains perpetual obligations should be made on the basis of principles of contractual interpretation. (Credit Security Insurance Agency Inc. v. CIBC Mortgages Inc., COCO/2007-110, [2007] O.J. No. 1466, Ontario Court of Appeal)

Visit Quicklaw to access the full article

An arbitration panel’s finding that a corporation is liable for breach of fiduciary duty may not assist the plaintiff in a subsequent court proceeding against the corporation’s principal where the principal’s potential personal liability was not considered in the arbitral proceedings.  Hi-Seas Marine Ltd. v. Boelman, [2007] B.C.J. No. 532 (C.A.).

A request for a declaration that minutes of settlement have been repudiated should be made by way of originating process rather than by motion where the relief is not sought within an existing proceeding. John A. Ford & Associates Inc. (c.o.b. Training Services) v. Keegan, [2007] O.J. No. 2641 (C.A.).

The common law witness immunity rule that constitutes an absolute privilege barring all civil actions arising from a witness’ testimony precludes an action for a declaration that a witness misrepresented evidence before the Competition Tribunal. Robinson (c.o.b. National Fuelsaver Corp.) v. Gulder, [2007] O.J. No. 2718 (S.C.J.).

Where a plaintiff seeks prohibitory and mandatory injunctive relief requiring the operators of a website to cease to do business and it appears that the result of the grant of an interlocutory order would likely mark the end of the litigation since the costs of trial far exceed the monetary values at stake, the plaintiff must establish that it has a strong prima facie case. Pandi v. Fieldofwebs.Com Ltd., [2007] O.J. No. 2739 (S.C.J.).

A corporation seeking a deferment of payment of land transfer tax under the Ontario Land Transfer Tax Act in respect of the transfer of a beneficial interest in land from an affiliated company must show that the related companies are controlled de jure and not merely de facto by the same person or company. Dam Investments Inc. v. Ontario (Minister of Finance), [2007] O.J. No. 2674 (C.A.).

A party seeking damages for breach of fiduciary duty in respect of a loss of opportunity to obtain a financial advantage in the future must adduce evidence to establish some reasonable probability that it would have realized an advantage of some real substantial monetary value and the court must make the best assessment that it can of the value of the loss the plaintiff has sustained, having regard to the contingencies that bear on whether, had the opportunity not been lost, a financial advantage would actually have been realized. Olive Hospitality Inc. v. Woo, [2007] B.C.J. No. 1429 (C.A.).

A right of first offer to purchase additional residential building lots where the owner desires to sell all or any portion of the lots may not be triggered by the owner’s proposed agreement to sell an undivided 50 percent interest in the lots for the purpose of financing their development. 2056668 Ontario Inc. v. Fernbrook Homes (Majormac North) Ltd., [2007] O.J. No. 2755 (S.C.J.).

A party’s notes written to assist the party’s representative in investigating a substantial drop in value of the party’s investment portfolio may be subject to litigation privilege where the party proves that the notes were prepared for the dominant purpose of litigation. Turnbull-Burnight v. CIBC World Markets Inc., [2007] N.B.J. No. 220 (C.A.).

To be granted leave to serve a claim outside of Alberta, a plaintiff need only establish an arguable cause of action, which must not be construed too narrowly. Boreta v. Jafar, [2007] A.J. No. 686 (C.A.).

As a litigant’s pleading should not be lightly struck without leave to amend, leave to amend should only be denied in the clearest cases. South Holly Holdings Ltd. v. Toronto-Dominion Bank (c.o.b. TD Canada Trust), [2007] O.J. No. 2445 (C.A.).

A party who breaches a contract is not entitled to complain of the innocent party’s failure to mitigate damage caused, or materially contributed to, by the breaching party’s own actions. 2438667 Manitoba Ltd. v. Husky Oil Ltd. (c.o.b. Husky Oil Marketing Comp.), [2007] M.J. No. 233 (C.A.).

Subject to the rule barring double recovery, there is no legal principle holding that a plaintiff who elects to pursue a claim against one of severally liable defendants is precluded from pursuing a second action, as it is not the damage award that amounts to satisfaction barring a second action but recovery by the plaintiff in the first action. Treaty Group Inc. (c.o.b. Leather Treaty) v. Drake International Inc., [2007] O.J. No. 2468 (C.A.).

A judge has no discretion under s. 129 of the Ontario Insurance Act to grant relief from forfeiture of insurance for breach of policy conditions other than those relating to proof of loss. Williams v. York Fire & Casualty Insurance Co., [2007] O.J. No. 2517 (C.A.).

Parties who include in an agreement a clause requiring arbitration of disputes, including questions regarding the existence, validity or termination of the agreement, must submit their disputes to arbitration in accordance with the agreement’s terms, even if the agreement has expired or terminated. Rampton v. Eyre, [2007] O.J. No. 1687 (C.A.).

Although a party’s opportunity to make a closing argument at trial is a substantive right, the denial of this right will not necessarily lead to an order for a new trial on appeal where the party had an opportunity to present its arguments as part of a non-suit motion, there is no evidence of any new arguments that might have been presented and the party did not go back to the trial judge to complain about any prejudice from denial of the opportunity. Prudential Securities Credit Corp., LLC v. Cobrand Foods Ltd., [2007] O.J. No. 2297 (C.A.).

A purchaser of shares in a public company does not assume any obligation to pay the debts of the company. Malik (Representative ad litem of) v. State Petroleum Corp., [2007] B.C.J. No. 1149 (S.C.).

A director or officer of a company who obtains information in his or her fiduciary capacity cannot use that information to pursue a business opportunity on behalf of himself or herself or another corporate entity in which the director has a stake. Canadian Metals Exploration Ltd. v. Wiese, [2007] B.C.J. No. 1231 (C.A.).

Compound interest may be awarded as compensation for an expropriation not governed by the British Columbia Expropriation Act to ensure full compensation for the party from whom property has been taken. Morriss v. British Columbia, [2007] B.C.J. No. 1294 (C.A.).

A mutual fund dealer does not owe a duty of care to non-clients in the absence of any factors other than its registration under the Ontario Securities Act and its membership in an association of mutual fund or investment dealers. Hurst v. Armstrong & Quaile Associates Inc., [2007] O.J. No. 2310 (S.C.J.).

A debt will survive the debtor’s discharge from bankruptcy where there is a link between the debt and the debtor’s fraud and property has passed to the debtor or a third party as a result of the fraud.  McAteer v. Billes, [2007] A.J. No. 593 (C.A.).

Visit Quicklaw to access the full article

A solicitor who acts for a corporation may be disqualified from acting for one group of shareholders in a dispute with another group, as shareholders are entitled to expect the corporation to remain neutral in the dispute. R.B.L. Management Inc. v. Royal Island Development Ltd., [2007] B.C.J. No. 1011 (S.C.).

While a lawyer may act for two clients in the same line of business who are competitors, the lawyer must avoid conflicts of interest that cause impairment to his or her ability to represent clients. Strother v. 3464920 Canada Inc., [2007] S.C.J. No. 24 (S.C.C.).

An agreement under which a supplier acknowledges that all material supplied has been paid for cannot be set aside on the basis of common mistake where the agreement, read in light of the factual matrix, allocates to the supplier the risk that all payments had not been received.  Miller Paving Ltd. v. B. Gottardo Construction Ltd., [2007] O.J. No. 2227 (C.A.).

A court will not grant modified specific performance of an agreement where to do so would frustrate the reasonable expectations of the parties. Chuang v. Toyota Canada Inc., [2007] O.J. No. 2069 (S.C.J.).

A tenderer is entitled to act in its own best financial interest and may refuse to accept the lowest bid if there are valid, objective reasons for concluding that better value can be obtained by accepting a higher bid. Continental Steel Ltd. v. Mierau Contractors Ltd., [2007] B.C.J. No. 1075 (C.A.).

The Investment Dealers Association of Canada has no right of appeal under the Alberta Securities Act from a decision of its own discipline committee dismissing a disciplinary charge. Bahcheli v. Alberta Securities Commission, [2007] A.J. No. 520 (C.A.).

Where parties to an agreement have clearly indicated their intention to resort to arbitration to resolve disputes that arise between them in relation to the interpretation of the agreement, the court will enforce the arbitration provision in the absence of a proper reason not to do so. ABOP LLC v. Qtrade Canada Inc., [2007] B.C.J. No. 1046 (C.A.).

Application of the principle of proof of causation by which the court may infer that a party’s negligence caused a material increase in risk of injury to a plaintiff and materially contributed to the plaintiff’s loss is restricted to rare cases where proving that a breach of duty caused or failed to cause a particular loss is practically impossible and this impossibility is the result of circumstances outside the plaintiff’s control. B.S.A. Investors Ltd. v. Mosly, [2007] B.C.J. No. 947 (C.A.).

The fact that the position of a respondent to an appeal who seeks security for costs of the appeal has not changed as a result of the appeal does not preclude the respondent from establishing that it would suffer prejudice if security were not ordered. Creative Salmon Co. v. Staniford, [2007] B.C.J. No. 1024 (C.A.).

Even where a party has been found to have engaged in fraudulent conduct, an award of punitive damages may not be justified when other damages have been awarded and the party has paid substantial fines in related quasi-criminal proceedings. Insurance Corp. of British Columbia v. Eurosport Auto Co., [2007] B.C.J. No. 972 (C.A.).

Unlawful means for the purpose of establishing the tort of unlawful interference with economic relations does not include acts in violation of a defendant’s unwritten internal policy that was not put in place to protect the interests of the plaintiff or the other party and of which they were not aware nor upon which they relied. Drouillard v. Cogeco Cable Canada Inc., [2007] O.J. No. 1664 (C.A.).

An employee of the federal Crown may be examined for discovery as of right under the Alberta Rules of Court, subject to the Crown’s right to challenge the appointment. Corbett v. Samsports.Com Inc., [2007] A.J. No. 482 (C.A.).

Visit Quicklaw to access the full article

A retired partner not living or carrying on business in Quebec who receives a retirement allowance deemed to be income from the partnership may be assessed under Quebec’s Taxation Act, which operates to determine the portion of the partner’s income that can be allocated to the partnership’s Quebec activities and the portion of the retirement allowance that can be taxed by the province. Dunne v. Quebec (Deputy Minister of Revenue), [2007] S.C.J. No. 19 (S.C.C.).

A stipulated sum for damages for breach of a contract does not operate to limit the innocent party’s right to seek specific performance of the contract where there is no reference in the contract to the fact that any amount is to be paid as liquidated damages and the breaching party who seeks to restrict the remedies available has failed to perform under the term upon whose benefit it relies. Le Soleil Hospitality Inc. v. Louie, [2007] B.C. J. No. 899 (S.C.).

An agreement to settle a dismissed employee’s claim against a former employer that includes the employee’s promise to seek new employment may be frustrated by the employee’s death, which has the effect of relieving the employer from further liability under the agreement. Rickards Estate v. Diebold Election Systems Inc., [2007] B.C.J. No. 840 (C.A.).

Where a contract requires a party to acquire liability insurance in an amount equal to the fees to be paid under it, it is not commercially reasonable to interpret a provision in the contract limiting liability either to the amount of the insurance deductible or the amount paid in fees in a way that would preclude resort to the insurance. SaskPower International Inc. v. UMA/B&V Ltd., [2007] S.J. No. 156 (C.A.).

A limitation period for bringing an action against an insurer under an insurance policy does not apply to preclude an action to enforce a subsequent agreement with the insurer to pay a loss that is subject only to quantification. Terroco Industries Ltd. v. Sovereign General Insurance Co.,  [2007] A.J. No. 463 (C.A.).

An arbitrator’s interpretation of a contractual provision is case-specific and the fact that the arbitrator interprets a term differently than it has been interpreted in another case does not make the decision clearly wrong. Metro Canada Logistics Inc. v. UWG Inc., [2007] O.J. No. 1501 (S.C.J.).

A “Counsel/Expert Eyes Only” confidentiality order may be granted under Alberta Rule 216.1 at the preliminary stage of litigation before any production has occurred where full disclosure of the parties’ confidential information represents a danger grossly disproportionate to the benefit that would result from disclosure to the parties themselves and the proposed order is reasonable and sufficiently flexible to address any difficulties as they arise. Phoenix Technology Services Ltd. v. Braisher, [2007] A.J. No. 447 (Q.B.).

A third party claim is defective where the allegations in the claim should be asserted by way of defence to the main action. Morneau Sobeco Limited Partnership v. Aon Consulting Inc., [2007] O.J. No. 1455 (S.C.J.).

A processing fee charged by a payday lender for the administrative costs of preparing legal documentation and operating business facilities for the benefit of all borrowers is sufficiently connected to a loan to be a charge payable or paid for the advancing of credit and within the meaning of “interest” under the criminal interest rate provision of the Criminal Code. Kilroy v. A OK Payday Loans Inc., [2007] B.C.J. No. 820 (C.A.).

An entire agreement clause in an agreement of purchase and sale may exclude a claim for negligent representation even without a specific reference to negligence where, among other things, the parties are sophisticated, commercial entities, the purchaser had ample opportunity to seek answers to any concerns it had and the agreement was not a standard adhesion contract. No. 2002 Taurus Ventures Ltd. v. Intrawest Corp., [2007] B.C.J. No. 812 (C.A.).

Where there is a discrepancy in a contract for sale of land between what the vendor has agreed to convey and what it is able to convey, the purchaser is generally entitled to seek specific performance of the contract with an abatement in the purchase price proportionate to the amount of land that cannot be conveyed. 3999581 Canada Inc. v. 1394734 Ontario Inc., [2007] O.J. No. 1570 (C.A.).

Where a moving party on a summary judgment motion adduces evidence to prove the responding party’s prior criminal conviction, such evidence constitutes prima facie proof that the responding party committed the crime and of the facts essential to the conviction, and the responding party can only adduce evidence to the contrary by demonstrating that permitting him or her to re-litigate the facts essential to the criminal conviction would not constitute an abuse of process. Bank of Montreal v. Woldegabriel, [2007] O.J. No. 1305 (S.C.J.).

A municipal by-law may not apply indirectly to a federal undertaking where it has the potential to impair, paralyze or sterilize the undertaking. Telus Communications Co. v. Toronto (City), [2007] O.J. No. 790 (S.C.J.).

Confidential communications between a client and a lawyer lose that character if and to the extent they were made for the payment of perpetrating unlawful tortious conduct, including fraudulent breaches of trust, fraudulent conspiracy, trickery and contrivances. Dublin v. Montessori Jewish Day School of Toronto, [2007] O.J. No. 1062 (S.C.J.).

A judge may order the advance payment of defence costs to former directors and officers of a corporation where the claimants are parties to litigation by reason of being directors or officers, the costs have been reasonably incurred and the claimants have acted honestly and in good faith with a view to promoting the best interests of the corporation. Manitoba (Securities Commission) v. Crocus Investment Fund, [2007] M.J. No. 87 (C.A.).

A former partner may not be entitled to an accounting of the profits of the partnership prior to its dissolution where he or she delays in commencing proceedings and the delay constitutes acquiescence or results in circumstances that make prosecution of the action unreasonable. Husar Estate v. P & M. Construction Ltd., [2007] O.J. No. 968 (C.A.).

Trustees of a real estate investment trust do not fail in their fiduciary obligations to unitholders by agreeing as part of the purchase and sale of the trust’s assets to a term that precludes earlier bidders who bound themselves under standstill agreements not to make unsolicited takeover bids from coming in after the auction for the assets has been concluded and the successful bidder has shown its cards. Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, [2007] O.J. No. 1083 (C.A.).

An arbitration clause in an agreement subscribing for shares in a corporation should not be interpreted as prohibiting a shareholder from seeking judicial enforcement of the corporation’s financial disclosure obligations under the Ontario Business Corporations Act as this would mean that the shareholder had absolved the corporation of these obligations merely by agreeing to include the arbitration clause in the subscription agreement. Pandora Select Partners LP v. Strategy Real Estate Investments Ltd., [2007] O.J. No. 993 (S.C.J.).

A newspaper advertisement taken out by a former employee announcing a new business location without mention of a previous association with the former employer does not breach a covenant prohibiting solicitation by the employee. Dr. P. Andreou Inc. v. McCaig, [2007] B.C.J. No. 537 (C.A.).

A judge may approve a plan of arrangement under the British Columbia Business Corporations Act that involves the assignment of agreements containing covenants prohibiting assignment without consent even where the party entitled to consent refuses to do so. Protiva Biotherapeutics Inc. v. Inex Pharmaceuticals Corp., [2007] B.C.J. No. 557 (C.A.).

Members of a strata council cannot defend themselves from claims that they are in conflicts of interest and in breach of their statutory duties to the corporation on the basis that they relied in good faith on legal advice where there is no evidence they ever received legal advice concerning their statutory duties and the consequences of not adhering to them and, even if they did receive such advice, they did not follow it. Dockside Brewing Co. v. Strata Plan LMS 3837, [2007] B.C.J. No. 583 (C.A.).

An order granting injunctive relief that establishes a new right is mandatory while an order requiring the parties to act in accordance with an existing agreement is prohibitive. 674834 Ontario Ltd. (c.o.b. Coffee Delight) v. Culligan of Canada, Ltd., [2007] O.J. No. 979 (S.C.J.).

An insurer’s duty to defend an insured under a professional liability insurance policy in respect of an event from which the insured expects a claim to be made must be determined in view of the actual wording of the insurer’s obligation to defend set out in the policy. MWH International, Inc. v. Lumbermens Mutual Casualty Co., [2007] B.C.J. No. 559 (C.A.).

Visit Quicklaw to access the full article

Failure of a party to an agreement to settle litigation to make a required payment may constitute repudiation of the agreement releasing the other party from future performance under it.  John A. Ford & Associates Inc. (c.o.b. Training Services) v. Keegan, [2007] O.J. No. 599 (S.C.J.).

Visit Quicklaw to access the full article

Damages for a builder’s breach of an agreement to construct a house should be assessed using the diminution in value test where to achieve fully what had been contracted for would involve enormous expense in demolition and reconstruction out of proportion to the benefit to be obtained.  514953 B.C. Ltd. (c.o.b. Gold Key Construction) v. Leung, [2007] B.C.J. No. 339 (C.A.).

Visit Quicklaw to access the full article

The characterization of a shareholder’s advance to a corporation as a loan or an investment of capital is a question of fact to be determined by reference to all the surrounding circumstances.  Glacier Creek Development Corp. v. Pemberton Benchlands Housing Corp., [2007] B.C.J. No. 412 (S.C.).

Visit Quicklaw to access the full article

A governmental decision to no longer license certain gambling events does not constitute an expropriation of the business of suppliers to licencees where the suppliers’ goodwill has not been taken for itself by the Crown.  B.J. Games Inc. v. Ontario, [2007] O.J. No. 492 (S.C.J.).

Visit Quicklaw to access the full article

A purchaser of real property cannot complain after closing about alleged defects in the property that could have been discovered before closing through reasonable diligence.  400 Wentworth Inc. v. Waterjet Machining Inc., [2007] O.J. No. 805 (S.C.J.).

Visit Quicklaw to access the full article

A purchaser cannot refuse to close a transaction for the purchase and sale of shares of a company that holds real property on the basis of the vendor’s failure to deliver a certificate of compliance from a governmental authority where the agreement does not require the vendor to provide a certificate but only to clean up the subject property such that it may be able to obtain on closing such a certificate. Ockey Developments Ltd. v. Suncoast Projects (2004) Ltd., [2007] B.C.J. No. 297 (C.A.)

Absent an express term to the contrary in an agreement for purchase and sale of land that includes assignment of a leasehold interest, a vendor bears the obligation to request and obtain a consent to the assignment of the leasehold interest. Hutchingame v. Johnstone, [2007] B.C.J. No. 220 (C.A.).

Although it may have an interest in a taxpayer’s information, a securities commission is not entitled to examine information seized by the Canada Revenue Agency under search warrants issued under the Criminal Code where the commission does not fall within the confidentiality exception under the Income Tax Act. Nova Scotia Securities Commission v. Canada (Minister of National Revenue), [2007] N.S.J. No. 74 (S.C.).

A shareholder of a closely-held private corporation may be entitled to an oppression remedy to protect his or her equitable rights where the shareholder failed to accept in accordance with its terms the offer of another shareholder to sell shares in the corporation. Cross v. Mountain High Recreation Ltd., [2007] B.C.J. No. 351 (C.A.).

A claim on a warranty for defects in material or workmanship in respect of a leased vehicle that was modified without the lessor’s approval will not succeed where there is an exclusion for modifications of the vehicle that alter the original engineering or operating specifications and the lessee fails to demonstrate that it is improbable that the defect was caused by the modifications. Tetaka v. BMW Canada Inc., [2007] O.J. No. 115 (Div. Ct.).

Monies paid by a provider of satellite services by way of chargeback on a customer’s credit card that are held in trust by the customer’s solicitors constitute a specific fund that may be the subject of a preservation order in proceedings between the provider and the customer. Directv, Inc. v. Gillott, [2007] O.J. No. 593 (S.C.J.).

Although a bank breaches its agreement with its customer by debiting the customer’s account without authorization, the customer may be entitled only to nominal damages where the funds in the account were the result of a fraud committed by a third party. B.M.P. Global Distribution Inc. v. Bank of Nova Scotia (c.o.b. Scotiabank), [2007] B.C.J. No. 137 (C.A.).

A contractual provision for the recovery of legal costs on a specified scale ought to be enforced unless there are special circumstances, such as improper conduct by the claiming party, which persuade the court to order otherwise. Stratton Electric Ltd. v. Guarantee Co. of North America, [2007] O.J. No. 407 (S.C.J.).

The doctrine of notional severance may be applied to read down a covenant restricting competition by a former employee for the purpose of giving effect to the substance of the parties’ agreement and to avoid having that substance subverted by an unfortunate choice of words. KRG Insurance Brokers (Western) Inc. v. Shafron, [2007] B.C.J. No. 261 (C.A.).