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Fisker Cargo Inc. v. Toronto Fashion Group Ltd., 2009 CanLII 64832 (ON S.C.)
in view of s. 51(1) of the Bills of Exchange Act, the signatory of a promissory note is personally liable unless there are clear words signifying that he or she is signing in a representative capacity.
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it is sufficient that consideration move from the promisee, but the apparent
benefit, if any, need not be enjoyed by the promisor, and may consist of some
benefit given by the promisee to a third person. In this case, the benefit
was given by the plaintiff to the stores operated by Mr. Elian, specifically 83
Bloor Street West, in that the plaintiff would continue to do business with
them. It was in Mr. Elian’s interest that that be done, and that is why he
signed the promissory note personally
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...
AdamsDrafting » Blog Archive » “Representations and Warranties”—A Handy 558-Word Analysis
It’s pointless and confusing to use in contracts the phrases represents and warrants and representations and warranties
DeWolf v. Bell ExpressVu Inc, 2009 ONCA 644 (CanLII)
even where a service agreement is found to have an advancing of credit component because it allows a subscriber to defer bill payment at a cost, fees and charges that are properly related to the service being provided are not somehow transformed into fees or charges related to the advancing of credit.
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for the purposes of analysis, a distinction must be made between institutions
whose business it is to lend money or advance credit on the one hand, and
service providers like the appellants and Consumers’ Gas Co. on the other hand. -
Where the relationship between the parties is exclusively one of lending money,
any additional charges or fees are inherently connected to the lending of money
or the advancing of credit, regardless of their label. Generally speaking,
such fees are likely to fall within the definition of interest in s. 347. - 6 more annotations...
Symonds v. All Canadian Hockey School Inc., 2009 CanLII 46446 (ON S.C.)
Courts have held that where a deposit is an unreasonably large amount, the payment may not constitute a true deposit and may be recoverable, subject to the innocent party’s counterclaim for losses suffered as a result of the breach, or may be sufficiently large for its forfeiture to be unconscionable:
AdamsDrafting » Blog Archive » When to Provide for Indemnification
If you’re not worried about gaining access to deeper pockets; if you don’t need to address the consequences of disclosed liabilities; or if your being subject to claims isn’t a major concern, either because they’re a remote possibility or because any claims would likely be for modest amounts, then indemnification would probably be more trouble than it’s worth.
Blackwell v. Dixon, 2009 CanLII 37345 (ON S.C.)
In applying this principle to “an error in calculations causing an offer at a mistaken figure”, the situation in the case at bar, Professor Waddams states the following (at pp. 283-4):
“Where … an offeree instantly ‘snaps at’ an offer, knowing it to be based on a serious miscalculation, unconditional relief would appear to be justified. If protection of the other party’s reasonable reliance comes to be recognized as a condition of relief, knowledge of the mistake becomes relevant to the reasonableness of the reliance of the party seeking enforcement.” [Emphasis added]
Chater v. York Central Hospital, 2009 CanLII 33022 (ON S.C.)
disagreement as to matters which are not essential to the settlement agreement are not demonstrative of a failure to accept the offer made. They do not lead to the conclusion that no contract was formed. This may include the documents to be exchanged in formalizing the settlement
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The reference to "individual releases" found in that correspondence does not
suggest the releases are to be anything other than "mutual". The fact that
the form of releases included are "unilateral", rather than "mutual", is nothing
more than a mistake and not suggestive of any effort to change or amend the
settlement offered. -
The timing of the payment in relation to the dismissal order is incidental to,
and not an essential term of, the agreement. - 1 more annotations...
Royal Bank of Canada v. Jones, 2009 CanLII 35721 (ON S.C.)
[25] As stated by Geoff R. Hall there are four steps that a court should look at when reviewing a guarantee. They are:
1. The contra proferentem rule is more likely to apply. This places an onus on the lending institution to show that the language is precise and clear.
2. The guarantors have a favoured position in the eyes of the law.
3. Parties to a guarantee may contract out of the protections, which are afforded by the common law or equity.
4. The guarantee must be interpreted in the context of the entire transaction.
Russell (Township) v. Dalcon Enterprises Inc., 2009 CanLII 31597 (ON S.C.)
Bid Process - [12] While this application is novel and may well be considered to be an attractive solution to a difficult problem, Russell Township’s own invitation to tender requires that it exercise its discretion. It does not provide for an application of this nature to a judge to make the decision for Russell Township.
ClubLink Corporation v. Pro-Hedge Funds Inc., 2009 CanLII 32910 (ON S.C.)
The change of the corporate name did not create a new corporate identity: see Loeb Inc. v. Cooper reflex, (1991) 5 O.R. (3d) 259, [1991] O.J. No. 1681 (Ct. J. (Gen. Div.), in which it was held that the amalgamation of a company did not create a new corporation. In Heritage Education Funds Inc. v. Canadian Property Holdings (Ontario) Inc. [2007] O.J. No. 2371 (S.C.J.) it was held that the change of name of a corporation does not result in a new corporate identit
Sherway Contracting (Windsor) Ltd. v. Kingsville (Town of), 2002 CanLII 9291 (ON S.C.)
No indoor management rule
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the Contract was unenforceable because there was no by-law or resolution from
Gosfield North and no approval from the Transition Board. -
The indoor management
rule does not apply to municipal corporations. - 3 more annotations...
Coco Paving (1990) Inc. v. Ontario (Transportation), 2009 ONCA 503 (CanLII)
in the absence of clear language in s. 11.1 or elsewhere in the tender documents indicating that, in the discretion of the MTO, a late bid or a substantially non-compliant bid may be accepted, s. 11.1 cannot be construed so as to permit the acceptance of a bid that is submitted late.
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To hold otherwise would sanction unfairness in, and distort the level playing
field contemplated by, the MTO bidding process -
bid closing time is sacrosanct in the competitive public tendering process
- 4 more annotations...
ITN Transborder Services Inc. v. WC Wood Corporation Ltd., 2009 CanLII 21762 (ON S.C.)
The mere fact that Wood asserts a set off is not a basis for declining to enforce a term giving up the right to assert a set off
Thales Rail Signalling Solutions v. Toronto Transit TTC, 2009 CanLII 21766 (ON S.C.)
The word "envision" is defined in Oxford as "imagine; visualize". The language used in the document signed by BNP Paribas has the meaning "under current conditions and what we currently expect to happen, we see ourselves being in a position" to issue a letter of credit. Being in a position to issue a letter of credit is not agreeing to issue a letter of credit. This is apparent on any objective reading of the document. The document is what is often referred to as a comfort letter, and it is no more than that
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[25] I
do not see that there is a serious issue to be tried as to whether Contract A
came into force between Thales and the TTC. The bid did not comply with the RFP. -
It stated that compliance meant that the bid conformed to the requirements of
the RFP without "material deviation", which was defined to include a failure to
comply with a requirement that "affects the Commission's ability to enforce the
Proponents obligations pursuant to the Proposal Documents". The standards of
"materially affect" and "material deviation" are objective standards that one
can readily apply to a document such as the one in question - 1 more annotations...
Bioherbalai Inc. v. Swingthink Inc., 2009 CanLII 18217 (ON S.C.)
in the context of interpreting a commercial contract, there is a “cardinal presumption” that a termination provision signed by the parties will have full force and effect:
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in the context of interpreting a commercial contract, there is a “cardinal
presumption” that a termination provision signed by the parties will have full
force and effect: -
Add Sticky Notethe plaintiff’s web site for the Empress’ Secret product all had value,
particularly the website which was in use at the date of trial, some two and a
half (2.5) years after the termination- http://www.empresssecret.com/bioherbalai.php - on 2009-04-23
- 1 more annotations...
AdamsDrafting » Blog Archive » “I Have Authority to Bind the Corporation”
Is the notation I have authority to bind the corporation a useful way of addressing authorization? I don’t think so. It might give you some sort of cause of action—albeit a murky one—against an individual who turns out not to have been authorized, but it’s very unlikely that would constitute a worthwhile remedy. If you have any concerns regarding authorization, you should instead insist on having the entity provide you with evidence establishing authorization, namely a consent by the board of directors or other appropriate governing body
Orbus Pharma Inc. v. Kung Man Lee Properties Inc., 2008 ABQB 754 (CanLII)
does this Lease permit the Defendant to terminate the lease rather than consenting to its assignment when there is no reasonable basis for withholding consent?
YES
Indigo Books & Music Inc. v. Manufacturers Life Insurance Company, 2009 CanLII 11432 (ON S.C.)
while it may not be unfettered, “deemed” in its ordinary meaning does leave to the landlord some discretion. “Deemed” and “determined” are not synonymous. The word “determined” lacks that measure of discretion.
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[40] In this situation, it is not
difficult to see how the landlord, in the absence of a separate assessment,
could “consider” the means of assessing the tenant’s contribution to realty tax,
“think” about the use of information originating in the working papers and
“judge” it unreliable (see: para. [23], above). On this basis, it would be
reasonable for the landlord not to “deem” the information “sufficient… to make
the calculations of Additional Rent under the lease” (see: para. [19], above).
This is within the limits of the discretion the terms of the lease leave
with the landlord
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