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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...
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
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.”
Piller Sausages & Delicatessens Ltd. v. Cobb International Corp., 2003 CanLII 35795 (ON S.C.)
The complaint relates to the fact that, regardless of the amount of profit, CIC sold assets otherwise available to satisfy the applicant’s claim to a related company who in turn resold those assets at a profit, was paid, and yet has not yet paid CIC for the supply of such assets in circumstances where payment would provide CIC with the financial ability to honour the debt it has been found to owe to the applicant
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“Oppressive” has been
interpreted as meaning burdensome, harsh or wrongful: Scottish
Cooperative Wholesale Society Ltd. v. Meyer, [1959] A.C. 324; Burnett v. Tsang reflex, (1985), 29 B.L.R. 196. - 10 more annotations...
Levy-Russell Ltd. v. Shieldings Inc., 1998 CanLII 14685 (ON S.C.)
[37] The creditor respondents have clearly met the criteria of (1) having a legitimate interest in the affairs of the corporation and (2) being analogous to that of a minority shareholder. They also may have met the criterion of having a reasonable expectation that the company’s affairs would be conducted with a view to protecting their interests as judgment creditors.
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[18]
The courts, have, in some cases, found that a
creditor has standing to assert an oppression action. In all such cases the
courts invoked their discretionary powers pursuant to s. 245(c) of
the O.B.C.A. which defines a “complainant” as (other than security holders past
or present and directors and officers past and present) any other person who, in
the discretion of the court, is a proper person to make an application under
this part: -
[19]
However, it has been held that debt actions should
not be routinely turned into oppression actions: see Royal Trust Corp. of
Canada v. Hordo reflex, (1993), 10
B.L.R. (2d) 86 (Ont. Gen. Div.). - 2 more annotations...
Peoples Department Stores Inc. (Trustee of) v. Wise, 2004 SCC 68, [2004] 3 S.C.R. 461
directors owe a duty of care to creditors, but that duty does not rise to a fiduciary duty
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Section 241 of
the CBCA provides a possible mechanism for creditors to protect their interests
from the prejudicial conduct of directors. In our view, the availability
of such a broad oppression remedy undermines any perceived need to extend the
fiduciary duty imposed on directors by s. 122(1)(a) of the CBCA to
include creditors
Schuster v. Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971 (ON S.C.)
[53] The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends.” She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.
CanLII - 2009 SCC 49 (CanLII)
When a supplier goes bankrupt, the tax authorities do not own GST and QST amounts that have been collected but not remitted or are collectible at the time of the bankruptcy. Instead, they have an unsecured claim against the supplier.
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deemed trusts intended to secure GST claims are ineffective in bankruptcy
situations
CanLII - 2009 FC 1068 (CanLII)
clerical error: “mechanical in nature and made without thought.”
Anderson v. Hamilton (City), 2009 CanLII 56739 (ON S.C.)
[45] Each case of non-repair of sidewalks is governed by its own factual basis.
[46] A municipality is not an insurer of anyone walking on its streets. No one can expect that sidewalks are as smooth as a billiard table.
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The law is that the onus is on the plaintiff to
establish that Hamilton was at fault because of non-repair. The plaintiff is
than obliged to show that because of that non-repair she fell and injured
herself. Once that is established, Hamilton is able to
rely on the defences set out in s.44(3) the Municipal Act -
I find that the City of Hamilton did have a
regular inspection routine. This routine was more than some courts have called
for. In some cases inspections every three years was acceptable. The City of
Hamilton has satisfied the duty placed on it by having regular
inspections
Commissioner of Competition v. Premier Career Management Group Corp., 2009 FCA 295 (CanLII)
The important question to ask in determining whether a representation was made to the public is “to whom were the representations made?” Here, they were made to various members of the public seeking the services of the respondents.
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I cannot accept that because the representations were made to individuals of
the public in a private place, this means that they were not made to the public -
Anything said by customers—however personal in nature—is irrelevant to a
determination of whether the respondents’ representations were misleading - 1 more annotations...
Legislative Assembly of Ontario | Bills & Lawmaking | Bills from the Current Session
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Barrett, Toby
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- 4 more annotations...
Charles Estate (Re), 2009 CanLII 57448 (ON S.C.)
I direct the Estates Registrar, on a go-forward basis, to offer any applicant for a certificate of appointment the option of communicating by email with the Toronto Region Estates Office in respect of the correction of any deficiencies that may arise in the processing of the application. By using electronic communications for those applicants who request it, I hope that, as a court, we can better achieve the goal of securing the “most expeditious” determination of those applications for certificates and better service the public
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the time has come to recognize the stark reality that our court, for whatever
reason, lags unacceptably behind in the use of electronic communications with
our court users.
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