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. Solea International BVBA v. Bassett & Walker International Inc.

In Solea International BVBA v. Bassett & Walker International Inc. (Ont CA, 2019) the Court of Appeal dealt with an unusual case involving Ontario's International Sales Conventions Act, S.O. 2017. It made no particularly interesting points of law but is an example of this rarely litigated law.

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. Himidan v Farquarson

In Himidan v. Farquharson (Ont CA, 2019) the Court of Appeal articulated basics of contract interpretation:
[20] A contract must be interpreted in accordance with sound commercial principles and good business sense: Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205 (CanLII), 85 O.R. (3d) 254, at paras. 24, 50. On the appellant’s argument, she was agreeing to sell only a seven-foot strip of the driveway. If the appellant’s contentions against the neighbours are correct, namely that the appellant owned the other two-foot strip by adverse possession, then the APS was reserving that two-foot strip to her (because she was not including it in the sale). If the neighbours’ assertion is right, then the appellant was selling a seven-foot strip of a nine-foot-wide driveway under circumstances in which the neighbours could block the other two feet, interfering with the functioning of the driveway as it appeared at the time of the APS. In either event, the appellant’s proposed interpretation does not make commercial sense.



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In Reaction Distributing Inc. v. Algonquin Highlands (Township) (Ont CA, 2019) the Court of Appeal ...
contract / tender contracts
[6] ... On the first issue, the law is that substantial compliance is the test to be applied in considering tender requirements: Double N Earthmovers Ltd. v. Edmonton (City), 2007 SCC 3 (CanLII), [2007] 1 S.C.R. 116. Consequently, and subject to the second issue, it was open to the trial judge to find that the respondent substantially complied with the tender requirements and thus the appellant’s failure to consider the respondent’s bid constituted a breach of contract.


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In Meridian Credit Union Ltd. v. Chijindu (Ont CA, 2019) the Court of Appeal
contract / waiver
[3] Accepting monthly payments did not amount to waiver under the terms of the mortgage, which provides that the mortgagee may waive default in writing, nor did accepting payments meet the legal test for waiver, laid down in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), [1994] 2 S.C.R. 490, which requires inter alia the communication of an unequivocal and conscious intention to abandon the right to rely on the deficiency or default. The motion judge found that acceptance of three payments did not satisfy that test and her conclusion is amply supported by the record.


In Brown v. Hanley (Ont CA, 2019) the Court of Appeal
unconscionability / application the union contitution (as a contract) 27-32

In Swampillai v. Royal & Sun Alliance Insurance Company of Canada (Ont CA, 2019) the Court of Appeal
contracts / unconscionability
------------
[6] At para. 38 of Titus, this court endorsed four elements necessary for unconscionability:

1. a grossly unfair and improvident transaction;

2. the victim's lack of independent legal advice or other suitable advice;

3. an overwhelming imbalance in bargaining power caused by the victim's ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and

4. the other party knowingly taking advantage of this vulnerability.
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In ACT Greenwood Ltd. v. Desjardins-McLeod (Ont CA, 2019) the Court of Appeal
contract / frustration 17

In Benedetto v. 2453912 Ontario Inc. (Ont CA, 2019) the Court of Appeal
paras 1, 5-18

Contracts - Interpretation
Goodlife Fitness Centres Inc. v. Rock Developments Inc. (Ont CA, 2019)

Contract - Unconscionability
Heller v. Uber Technologies Inc. (Ont CA, 2019)

Contracts - Duty of Good Faith

Contracts - Duty of Honesty

Contracts - Waiver

Contracts - Damages - Remoteness

Contracts - Duty of Good Faith

Contracts - Duty of Honesty

Contracts - Commercial - Interpretation

Contracts - Business - Interpretation

Contracts - Commercial - Interpretation

Contracts - Tenders

Contracts - Interpretation

Contracts - Interpretation

Contracts - Interpretation

Contracts - Interpretation

Contracts - Formation

Contracts - Agreements to Agree

Contract - Defences - Non Est Factum

Contracts - Piercing the Corporate Veil




Contract - Liability - One Party's Covenant to Insure

Contract - Privity

Contracts - Repudiation

Contracts - Anticipatory Breach

Contracts - Interpretation - Business Efficacy - Implying Terms

Contracts - Substantive Law - Jurisdiction

Contracts - Entire Agreement Clause

Contracts - Interpretation - Post-Commencement Behaviour

Contracts - Illegality - Severance

Contracts - Interjurisdictional - Where Made

Contracts - Interpretation - Entire Agreement Clause



Contracts - Venue - Jurisdiction Simpliciter

Contracts - Venue - Joinder

Contracts - Relief from Forfeiture

Contracts - Rectification

Contracts - Mistake - Mutual

Contracts - Interpretation - Insurance

Contracts - Interpretation - Subsequent Conduct

Contracts - Forum Selection Clauses

Contracts - When Litigation Precluded by Arbitration Clause

Contracts - Entire Agreement Clauses

Contracts - Entire Agreement Clauses

Civil Procedure - Pleadings - Limitations Must be Pled

Contracts - Interpretation - Liability Exclusion Clause

Contracts - Penalty Clauses

Contracts - Relief from Forfeiture

Contracts - Oral - Interpretation

Contracts - Repudiatory Breach

Contracts - Interpretation

Contracts - Interpretation

Contracts - Restraint of Trade

Contracts - Option - Uncertainty as to Terms

Contracts - Options - Unilateral v Bilateral Contracts

Contracts - Interpretation - Entire Agreement Clause

Contracts - Entire Agreement Clauses

Contracts - Waiver of Statutory Terms



Contracts - Rescission

Contract - Gift v Loan

Contracts - Forum Selection Clauses

Contracts - Release - Interpretation

Contract - Deposits - Forfeiture

Contract - Unconscionability

Contracts - 'Sham' Contract

Contracts - Duress

Contracts - Formation

Contracts - Interpretation

Contracts - Interpretation

Contracts - Duty of Good Faith
Contracts - Duty of Honest Performance
CM Callow Inc. v. Zollinger



===== CONTRACTS

---------------------- Contracts / civil waiver

[6] At para. 35 of his reasons, the application judge correctly set out the law of civil waiver, as summarized by this

court in Technicore Underground Inc. v. Toronto (City), 2012 ONCA 597 (CanLII), 354 D.L.R. (4th) 516.

------------------------ Contract / Debt / demand prior to suing on a debt (here a guarantee)

[14] The jurisprudence since R.E. Lister Limited v. Dunlop Canada, 1982 CanLII 19 (SCC), [1982] 1 S.C.R. 726,

confirms that a debtor is entitled to a reasonable time to pay. That determination is fact-specific and dependent upon the

conduct of the parties, before and after the demand. It would not be possible, or indeed workable, for the creditor to

arbitrarily establish that timeframe for the debtor.

------------------------- Contracts / Debt / equitable discharge of a debt

Issue #2 Did the motion judge err in finding that there were no grounds for an equitable discharge?

[26] In the alternative, the appellant [SS: a guarantor] submits that the respondent’s conduct entitles him to a

discharge. He acknowledges that the motion judge correctly set out the test in Bank of Montreal v. Wilder, 1986 CanLII 3

(SCC), [1986] 2 S.C.R. 551, but maintains that the motion judge failed to apply the test and, instead, addressed the issue

of an alleged breach of the common law implied duty of good faith.

---------------------------- Contracts / DEPOSITS

42. Brown v. Godfrey, 2006 CanLII 16540 (Ont Div Ct, 2006) - forfeiture of deposit monies: forfeiture of deposit on breach

allowable even where not expressly required

43. Allied Canadian Acquisition Corporation v. 1012689 Ontario Limited, [2002] O.J. No. 289 (Ont Sup Ct, 2002) -

forfeiture of deposit monies: paid deposit may be retained on breach unless unconscionable to do so

44. Pleasant Developments Inc. v. Iyer, 2006 CanLII 10223 (Ont Div Ct, 2006) - desposit towards purchase of home may be

retained by vendor on breach by purchaser unless expressly agreed otherwise; exception where amount of deposit forfeited

is punitive or out of proportion to the losses suffered, in which case law of contractual penalties applies, or where

forfeiture is unconscionable

------------------------------------------- Contracts / WAIVER

- Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC) [elements of waiver]

------------------ Contracts / unconscionability test

[7] The parties agree that the three-part test for determining unconscionability is set out in Teitelbaum v. Dyson (2000),

7 C.P.C. (5th) 356, [2000] O.J. No. 4583 (S.C.), at para. 40, aff’d (2001), 2001 CanLII 32771 (ON CA), 151 O.A.C. 399,

[2001] O.J. No. 3483 (C.A.). That test requires a plaintiff to show that the defendant abused its bargaining power, preyed

upon the plaintiff, or that the bargain was improvident.

--------------------------- Contracts - dependent contractor - termination notice period

- McKee v. Reid's Heritage Homes Ltd. 2009 ONCA 916 (CanLII)

-------------------------- Contract interpretation / Evidence / parol evidence

3869130 Canada Inc. v. I.C.B. Distribution Inc., 2008 ONCA 396 (CanLII)

-------------------------- Contracts / restrictive covenants

Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII)

- restrictive business/employment covenants

-------------------------- Contracts / Sale of Goods

- Prevost v. Gilmour, 2009 CanLII 19937 (Ont Div Ct, 2009) - discussion of Sale of Goods Act application to sale of

collector coins

-------------------------- CONTRACTS

6. Beer v. Townsgate I Ltd., 1997 CanLII 976 (ON CA) [contracts and illegality]

73. Hunter Engineering Co. v. Syncrude Canada Ltd., 1989 CanLII 129 (SCC) [fundamental breach]

47. Toronto Hydro Corporation v. Schmidt, 2009 CanLII 9481 (Ont Div Ct, 2009) - an argument by an account-holder that he

did not have to pay for electrical usage by unauthorized tenants was unsuccessful; terms of Hydro's "Conditions of

Service" were binding on the defendant despite not having been brought to his attention as contractual terms on policy

grounds given the highly regulated nature of the activity

38. Celebre v 1082909 Ontario Limited, 2007 CanLII 65609 (Ont Div Ct, 2007) - the court considers and reviews case law on

what constitutes 'fundamental breach' of a contract, and relies on a finding a fundamental breach to hold that enforcing a

clause limiting the defendant's liability would be unfair in the circumstances of the case

31. Fantl v. Transamerica Life Canada, 2013 ONSC 2298 (CanLII) [interesting reviews of law of implied contract, when terms

are implied into contract and maybe more]; affirmed on appeal wrt SOME points at CA

35. Toronto Hydro Corporation v. Schmidt, 2009 CanLII 9481 (Ont Div Ct, 2009) - where terms of Hydro's "Conditions of

Service" were not brought to the attention of the defendant before entering into an account agreement, the contractual

interpretation principle of 'business efficacy' would have inferred them as terms regardless

36. Celebre v 1082909 Ontario Limited, 2007 CanLII 65609 (Ont Div Ct, 2007) - a clause in a home inspection agreement

purporting to limit liability was not enforced in a 'contract of adhesion' (supplier-issued standard consumer contract)

where there was no true negotiation and consideration of the terms before the contract is executed, where the consumer was

under time pressure to close a house sale, and where the contract was only presented for consumer signature after part of

the inspection work had been completed

25. M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. (1999) 170 D.L.R. 577 (S.C.C.) - re 'business efficacy'

principle in the interpretation of contracts

26. Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 (CanLII) [duty of good faith within contract]

XX. Palkowski v. Ivancic, 150 A.C.W.S. (3d) 735, [2006] O.J. No. 3322 at para.16 - where contract must be written and

where statute of frauds can be excepted

------------------------------- CONTRACTS / illegality

- 1079022 Ontario Inc. (Nicolini Construction) v. Market Leadership Inc., 2009 CanLII 25607 (Ont Div Ct, 2009) - fee

forfeited where party not properly registered under Mortgage Brokers Act

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