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20 Nov 09
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CanLII - 2009 CanLII 63131 (ON S.C.)
To obtain an order rectifying a contract, the applicant must prove: (1) a common intention held by the parties to the contract before the making of the written contract alleged to be deficient; (2) that this common intention remained unchanged at the date that the written contract was signed; and (3) that the written contract, by mistake, does not conform to the parties’ prior common intention: Peter Pan Drive-In Ltd. v. Flambro Realty Ltd.
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Equity’s remedy of
rectification is available when contracting parties make a mistake and do not
correctly express their actual agreement in their written contract.
Rectification is concerned with mistakes in recording an agreement in writing.
It is not concerned about mistakes in the underlying agreement. The purpose of
rectification is to ensure that the written contract accurately expresses what
was the parties’ agreement.
Island Timberlands LP v. Canada (Foreign Affairs), 2008 FC 1380 (CanLII)
The Minister’s failure to make a public statement of the rationale for the Policy is the most important element of the unfair nature of the processing of Island Timberlands’ applications
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given the importance of the October
12th decision to Island Timberlands, and given that the decision was
rendered in such a non-transparent manner in form and substance, even at the
highest level of deference, and the lowest level of due process, a breach of due
process occurred.
Canada (Attorney General) v. Mowat, 2009 FCA 309 (CanLII)
It is difficult, if not impossible, to conclude that the answer (either yes or no) can be said to fall within a range of possible acceptable outcomes. There is much to be said for the argument that where there are two conflicting lines of authority interpreting the same statutory provision, even if each on its own could be found to be reasonable, it would not be reasonable for a court to uphold both
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[50]
There is
binding authority to the effect that different standards of review can apply to
different legal questions depending on the nature of the question and the
relative expertise of the tribunal in those particular matters -
[75]
The proper
approach to statutory interpretation has been articulated repeatedly by the
Supreme Court of Canada and is so entrenched that reference to specific
authority is not necessary. The goal is to seek the intent of Parliament by
reading the words of the provision in context and according to their grammatical
and ordinary sense, harmoniously with the scheme and the object of the
statute. - 2 more annotations...
13 Nov 09
Desjardins Ducharme Stein Monast v. Empress Jewellery (Canada) Inc., 2004 CanLII 15737 (QC C.S.)
the interests of a major unsecured creditor are considered to be unfairly prejudiced in a case where there is a closely-held corporation in which the directors and shareholders gain a personal advantage or a reduction in liability by keeping funds or assets out of such creditor's reach
12 Nov 09
Rassouli-Rashti v. College of Physicians and Surgeons of Ontario, 2009 CanLII 62055 (ON S.C.D.C.)
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courts have concluded that a regulatory body has implied authority to conduct an
informal investigation in circumstances where it is not necessary to resort to
the powers accorded to an individual who is conducting a formal investigation
Repic v. Hamilton (City), 2009 CanLII 60673 (ON S.C.)
[91] The City’s failure to provide a safe intersection for all users is disrepair and, accordingly, I am satisfied that the City of Hamilton has breached its statutory duty in its failure to make any modifications to the design of this intersection.
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I find that the choice of the Parclo A4 interchange design at this location was
a policy decision. However, the actual construction of the interchange,
any modifications to the design, decisions regarding markage, signage, traffic
control devices, or any other such controls, are operation or implementation
decisions and are subject to scrutiny by the court -
the evidence of Mr. Vandermark was very telling. He testified that modifications
to the design, such as signage, the movement of the light pole, or implementing
concepts as suggested by Mr. Robinson, would not require City/Regional Council
approval - 6 more annotations...
Nareerux Import Co. Ltd. v. Canadian Imperial Bank of Commerce, 2009 ONCA 764 (CanLII)
Contracts in which performance is dependent upon the exercise of discretion on the part of one of the parties are contracts that are particularly characterized by the implied duty of good faith performance.
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letters of credit are an important mechanism for ensuring that international
commerce flows smoothly, effectively, and with some degree of assurance.
As one American authority has put it, albeit colourfully, letters of
credit are intended “to grease the wheels of trade and commerce”: Alaska
Textile Co., Inc. v. Chase Manhattan Bank, N.A., 982 F.2d 813 (2d Cir.
1992), at p. 824. Care is required, therefore, to ensure that they are not
interpreted and enforced in a way that might jeopardize their uniqueness and
commercial efficacy or the relative certainty that must surround their
use. Hence the doctrines of autonomy, strict compliance and strict
construction that will be discussed below -
At the same time, however, letters of credit are not completely divorced from
the general rules and principles of contract law, including those invoking
notions of fairness and equity - 6 more annotations...
Kurdina v. Gratzer, 2009 CanLII 60403 (ON S.C.)
the issue before the court is not about the existence of psychotronic weapons or about how other professionals might treat Ms. Kurdina for her symptoms. Ms. Kurdina is entitled to her belief that such weapons exist and that she has been the victim of them. The issue is whether Dr. Gratzer was negligent as a psychiatrist, and that is an issue that must be decided based on relevant evidence about the standard of care of psychiatrists
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the standard of care of psychiatry is measured by the standard of care of
practitioners of psychiatry and not by the standard of care of toxicologists or
by practitioners of other disciplines of knowledge that believe in the existence
of effects from psychotronic weapons
Miksche Estate v. Miksche, 2009 CanLII 60409 (ON S.C.)
A general retainer to act as counsel in litigation does not vest in the lawyer unfettered authority to “resolve matters” on terms he considers fit,
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Under a retainer to act in litigation a lawyer must obtain the consent of his
client before taking a material step in the litigation which would result in the
incurrence of significant costs by the client or before compromising the
client’s rights in the litigation, unless the retainer agreement contains clear,
express language reposing discretion in the lawyer to act as he sees fit in
specified circumstances. -
The requirement of full disclosure is not met where a lawyer acts to compromise
the client’s rights, for the financial benefit of the lawyer alone, without
first obtaining the client’s informed consent - 2 more annotations...
06 Nov 09
CanLII - 2009 CanLII 60408 (ON S.C.)
Construction Lien Trust [11] That decision makes the point that where a breach of trust is alleged, the initial onus is on the plaintiff to prove the existence of the trust by showing three elements:
(a) the owner received money on account of the project;
(b) that the plaintiff supplied materials on that project; and
(c) the plaintiff was not paid.
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[32] In my view the defendants
cannot be allowed to benefit from their refusal to supply the plaintiff with the
required information. It would be deleterious to provide an incentive to
trustees to avoid keeping beneficiaries informed, despite their requests. The
defendants should not benefit when the beneficiaries act reasonably in the face
of an information gap created by the defendants. The advantage of this principle
is that it provides an incentive for the contractor or owner to be forthcoming
in the provision of information, but still requires the supplier or
subcontractor to be proactive in making information requests. In other words if
there is a duty imposed on the one party to inquire, there is a like duty on the
other party to answer
Common plants can eliminate indoor air pollutants
Of the 28 species tested, Hemigraphis alternata (purple waffle plant), Hedera helix (English ivy), Hoya carnosa (variegated wax plant), and Asparagus densiflorus (Asparagus fern) had the highest removal rates for all of the VOCs introduced. Tradescantia pallida (Purple heart plant) was rated superior for its ability to remove four of the VOCs.
05 Nov 09
Chisum Log Homes & Lumber Ltd. v. Investment Saskatchewan Inc., 2007 SKQB 368 (CanLII)
Section 219 of The Business Corporations Act does not establish a limitation period. Rather it permits actions to be brought against dissolved companies without the necessity of reviving those companies.
Danylchuk et al. v. Wolinsky et al. and Feierstein and Fishman Medical Corporation v. Wolinsky et al., 2007 MBQB 65 (CanLII)
since the directors have been sued in their personal capacity it is irrelevant whether or not the corporation was in existence at the time of the application
Desjardins Ducharme Stein Monast v. Empress Jewellery (Canada) Inc., 2004 CanLII 15737 (QC C.S.)
[37] In the Court's opinion, the interests of a major unsecured creditor are considered to be unfairly prejudiced in a case where there is a closely-held corporation in which the directors and shareholders gain a personal advantage or a reduction in liability by keeping funds or assets out of such creditor's reach. The Court is satisfied that the repayment of the shareholder loans, the payment of dividends, the payment of bonuses as well as the disposal of most of Empress' inventory and equipment were not reasonable and legitimate business decisions on behalf of Empress, but rather a form of self-dealing by Mr. and Mrs. Dubrovsky and Mr. Azran.
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While lack of good faith can constitute oppressive or unfairly prejudicial
conduct, it is not a necessary prerequisite for a remedy under section
241 CBCA or its provincial equivalents
Yukon and Canada v. B.Y.G. Natural Resources Inc., 2007 YKSC 2 (CanLII)
Canada granted leave to pursue oppression action for environmental cleanup costs
Apotex Inc. v. Laboratoires Fournier S.A., 2006 CanLII 38354 (ON S.C.)
If the oppressive conduct alone was enough to create the status of a creditor-complainant for the purposes of the oppression remedy, then the oppression remedy could be used by any plaintiff in any case where a corporation has caused damage through an otherwise conventional breach of contract or through tortious conduct.
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The law is clear that the
creditor-complainant has to be a creditor at the time of the alleged oppression: -
It is not
enough that the complainant became a creditor as a result of the allegedly
oppressive conduct, as was the case here. If this were the law, then it
would be “unsatisfactorily circular.”
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