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Contracts - Elections

. Bilodeau v. Her Majesty The Queen in the Right of Ontario

In Bilodeau v. Her Majesty The Queen in the Right of Ontario (Div Ct, 2022) the Divisional Court considered, in obiter, the contractual concept of 'election':
[84] The Applicant submits that the Ministry, by pursuing its regulatory rights under the 2010 Plugging Order and refusing to issue licences to Energex, is precluded from now seeking to enforce the same regulatory obligation under the 2019 Plugging Order against Energex (and therefore, Mr. Bilodeau). In doing so it relies on the doctrine of election, which is described as follows by the Court of Appeal in Charter Building Co. v. 1540957 Ontario Inc., 2011 ONCA 487, 107 O.R. (3d) 133 at para. 15:
Election at common law takes place where a party is faced with a choice between two inconsistent courses of action that affect another party’s rights or obligations, and knowing that the two courses of action are inconsistent and that he or she has the right to choose between them, makes an unequivocal choice and communicates that choice to the other party. The doctrine provides that the party making the election is afterwards precluded from resorting to the course of action that he has rejected. The election is effective at the point of communication on the basis that the parties to an ongoing relationship are entitled to know where they stand.


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