Comm393 Case - Summary Commercial Law PDF

Preview

Summary

Topic: The Charter of Rights and FreedomCase: Liebmann v. CanadaFacts: -Liebmann Joined Naval Reserve -Liebman was qualified for the EA position and was looked favorably upon his nomination by the hiring personnel -Then these persons became aware he was jeish -They decide not to hire him because of ...

Description

Topic: The Charter of Rights and Freedom Case: Liebmann v. Canada Facts: -Liebmann Joined Naval Reserve -Liebman was qualified for the EA position and was looked favorably upon his nomination by the hiring personnel -Then these persons became aware he was jeish -They decide not to hire him because of his religion -At that time, there was no formal policy regarding the consideration of personal characteristics such as religion in the selection of personnel for non-peacekeeping missions. -Liebman was upset

Issue 1. Should the Court inquire into the constitutionality of CFAO 20-53 Law: CFAO 20-53: This policy foresees the possibility that some personnel may be restricted from participating in peacekeeping operations due to cultural or other sensitivities. Application: The case at bar is not a peacekeeping operation also this law was not issued until 1 month after his nomination was decided upon. Conclusion: The constitutionality of CFAO 20-53 is irrelevant to this case. Issue 2a. Does the Charter apply to this situation? Law: Section 15(1): Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. (Age, Race, Sex)

Law: Section 15 of the Charter deals with a person’s equality rights with respect to the “law”. However, it’s now well established that this term should not be given such narrow meaning as to deprive individuals from discrimination on the part of government actors. The Charter is applicable to administrative decisions made pursuant to statutory authority. Application: The impugned 存疑 decision made under statutory authority of the National Defence Act say that the Chief of Defence Staff can delegate authority to various officer involved. Therefore they were acting pursuant to the Chief of Defence authority. Conclusion: The Charter apply to this decision

Issue 2b. What inquiries does a court need to make in order to determine discrimination under section 15 of the Charter? Law: All three of them must be fulfilled A. Does the law draw a distinction on the basis of personal characteristics or fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in a differential treatment based on personal characteristics? B. Is the claimant subject to differential treatment based on one or more analogous grounds? C. Does the differential treatment discrmination promote the view that the individual is less capable of worthy of recognition as a member of Candian Society? Application: Yes. Based on religion. He had adequate skills but were denied the opportunity to apply them because of his religion. It has a profound impact on this dignity. Conclusion: Liebman was discriminated under the Charter 15. His rights were limited. Issue3. If his equality rights were limited, were those limits “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society?” Law: Section 1 of the Charter states that the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Application: The burden of proof shifts to the respondent Application: The respondents failed to prove.

Topic: Formation of Contract Case: Carlill v. Carbolic Smokeball Facts: -Carbolic Smoke Ball Company claimed the product could cure influenza -Advertisement claimed the Company would pay 100 to anyone who got sick after using the smoke ball according to the instructions -1000 is deposited to show the Company’s sincerity -Carlill used the smoke ball according to instructions and got the flu, she wanted to claim 100 from the company -The company ignored the request -Barristers representing Carlill thought there was a contract Issues: Is there a contract ?

Law: Legal elements of a contract Application: Intent: outward conduct: claimed deposit in the bank Offer: Parties, Company and Carlill exchanged money & products, subject matter is the smoke ball Acceptance: accepted upon purchase Consideration: exchange of promises Capacity: mental capacity stands Unilateral Contract : promise to give 100 if people buy it still get sick Smoke Ball Company could argue there is no consideration since the advertisement is vague and it’s more of an invitation to treat. However, in this case the Company deposited 1000 in the bank, which shows their intention to be legally bound. Conclusion: There is a contract.

Topic: Competition Act Case: R v. Alberta LTD. Court of Appeal, Break Competition Act, Criminal Charges Facts: -Charged with multiple counts -Charged with 1. Misleading advertising under s.52 of the Competition Act 2. Not supplying bargain goods advertised under s57. of the Competition Act -Competitors and investigators tried repeatedly to model of TV that was claimed to be on sale -The company claimed the TV was sold out when there was a steady supply -On hand inventory was 5, 2, when it should have been 100 -The president said 100 was an exaggeration Issue 1: Was this misleading advertising under S.52 of the Competition Act? Law: Competition Act：False/ Misleading claim must be material statement Application: The Crown argued that this is false claim since the company advertised the product at sale when there wasn’t enough inventory of the TV set to begin with. The advertisement is a material statement which aimed to induce customers to come to the store and make other purchases.

The defendant argued that anything happened before the ad was run should not be taken into account and conceded that anything happened after the ad was run should be taken into account. The Crown argued that: 1. The time distinction was not helpful in this case. since during the time consumers went into the store and asking for the TV set, the ad was run repeatedly with identical wording. 2. Misleading in a way that it induced thousands of customers into believing that they had the ability to buy on sale TV 3. Bait & Switch Conclusion: Yes violated S52 Issue2: Was this a violation of S57 through not supplying bargain goods? Law: S57 of Competition Act Application: The crowned: 5 or 2 sets are not reasonable quantities The supply on the wholesaler’s hands, which the retailer failed to draw upon, is of no practical purposes ‘Supply’ is sell on demand Defendant: Definition of Supply should be ‘available’ which should include the supply of wholesaler’s Conclusion: Violation of S57 Issue 3: Should Kienapple Principle be applied? Law: Kienapple Principle: Against multiple convictions under same subject matter Application: Defendant；All the elements of charges under S52 and S57 were same The Crown: S52 and S57 should be considered separately Examples: Violation of S52 Retailer who had adequately supply and advertise them but refuse to sell Violation of S57 Retailed whose ad was totally false but later decide to get supplies and therefore live up to the promise

Conclusion: Both

Topic: Forum Selection Clause Case: Rubber v. Microsoft Corp

Facts: -MSN based in State of Washington -Plaintiff represent all MSN users in Canada, claiming Microsoft has charged members of MSN and taken payment from their credit cards in breach of contract (Online Agreement) and it has failed to provide reasonable info concerning accounts. -The agreement is governed by the laws of Washington -They didnt see that part wasn't aware of the forum selection clause (in a specific jurisdiction unless there’s a strong cause: public policy, interest of justice, comparactive convenience and expense of the parties, fairness between parties) Issue: Should the forum selection clause be override? Plaintiff: -They didnt see it while clicked on ‘accept’ -Should be treated as a fine print in a contract Defendant: -Agreement can be readily viewable -Same as written contract Conclusion: -Nope

Case: Douez v. Facebook Facts:

-Douez is suing Facebook for using their pictures to advertise, a violation of the B.C’s privacy act. -Facebook brought up Forum Selection Clause Issue: Should Forum Selection Clause be override? Law: Under specific jurisdiction unless it’s about 1) Public Policy 2) The interest of Justice 3) The comparative convenience and expense of the parties 4) Fairness between the parties Application: 1. Public Policy: 1) Facebook user had no bargaining power in this case even though Facebook gave them the option to click ‘not accept’, it infringes people’s right of free speech 2) Canadian courts should get to judge cases that’s involve constitutional rights and provincial rights 2. The interest of justice 1) BC court much better place to judge the case

3. Convenience 1) Costly for plaintiff to go to US 4. Fairness 1) Facebook has absolute bargaining power Conclusion: Facebook lost

Topic: Offer Case: Livingstone vs. Evans

Topic: Postal Acceptance Rule Case: Hood v. Edwin Facts:

-Hood thought she was enrolled in a LVIP program that whenever a tenant left the property, the electricity and water services would be transferred into the plaintiff’s name -She mailed the acceptance form to Edwin -When the house was vacant, the electricity and water was shut off and there were damages Issue 1：Was she enrolled in the program? Law: Postal Acceptance Rule Application: When the employee offered info about LVIP, it was an offer. And the acceptance by mail constitutes a contract. Conclusion: She enrolled. Issue2； ； Did Enwin breach his obligations under the program? Application: Enwin: Tenant didnt request to close the account Hood: Tenant was not relevant to the program

Topic: Consideration Case: Caliguiri v. Tumillo Facts: -Mrs.C lent 50000 dollars to the corporation found by her son and 4 friends and let them sign a personal guarantee that it the Corp. cant pay, they would personally pay her. -Tumillo later joined as a shareholder and signed the personal guarantee -Tumillo didnt think there was consideration so the personal guarantee should be voided Issue: Was there consideration? Law: Consideration-exchange of promises Application: Tumillo got promise to be shareholder & not to recall loan (For bearance) The promise of not doing sth. Conclusion: There was a consideration.

Topic: Promissory Estoppel Case: Duke Cookies v. AMS UBC

Fact:

Then Duke cookies received notice to vacant since he didn’t renew the lease. Law: Promissory Estoppel Application: 1. There’s a pre-existing contract between the two 2.UBC’s expansion and positive attitude during the negotiation constitute a promise to Dukes to alter the contract 3. Dukes acted on it and started to plan for expansion 4. When UBC altered its decision, Dukes would face a huge loss "As you are aware, there have been ongoing negotiations mutually aimed to extending and broadening the terms of the lease. During these negotiations the AMS actively encouraged ourselves to believe that Duke's Cookies would be able to lease premises for a period of years, and premises much larger. We have relied upon this with the knowledge and encouragement of the AMS. We have made business decisions based on this.”

Case: Tulsa Heaters v. Syncrude Canada Facts: -S&T had a contract to use seamless pipe -T ordered welded pipe because T couldn’t find seamless -Tulsa requested Bristol be added to the list of suppliers in the contract (for welded pipe). The trial judge found that S knew at this point that the pipe used would be welded. -In March, T issued drawings to S that showed the pipe used would be welded. The trial judge found at this point that S had waived Clause 3.1.2 for seamless pipe. A gratuitous promise was made by S to release T from its contractual obligation for seamless pipe. -S told T that it added Bristol to the list of suppliers in the contract. T continued with the project using welded pipe in order to meet the completion date of September 2002. S relies on the gratuitous promise made by T. -S found seamless pipe! S told T to order the seamless pipe, dismantle the heater and rebuild it with the seamless pipe as per the contract. S reneged on it promise and is now demanding strict compliance with the contract. -T purchased the pipe and completed the project at an additional cost of $587,170,00. T suffered hardship.

Topic: Infants Act Case: RE Collins Facts: Simon, the son of Ms.Collins wanted to gave away his benefit in a form of a contract regarding a property to provide Ms.Collins certain security. She wants the other half of the house. Issue: Is the contract enforceable? Law: Infants Act 21. On an application on behalf of the infant, the court may make an order granting to the infant full capacity if the court is satisfied that the order is for the benefit of the infant and the infant does not need protection offered by law regarding the content of the contract. Application: Simon is an intelligent young man who cares about his mother and there was no undue influence from Ms.Collins to force him into signing the contract. However, in essence it’s not for the infants’ benefits, but rather to provide Ms.Collins financial security. And the contract would grant Ms.Collins absolute power over the property. Simon can sign the contract when he reaches the age of majority. Conclusion: The contract is not enforceable and Infants Act 16 shouldn’t be applied

Topic: Legality of object Case: Maksymetz v. Kostyk Facts: -Masymetz (the plaintiff) seeks an accounting of the value of shares owing him in a settlement reached during a prior legal action. -Due to legal and regulatory requirements the purchase was denied by a governing body (the Manitoba Liquor Board), therefore the business was illegal. -The plaintiff wishes to have the court enforce compensation for the value of the interest in the hotel owing from the settlement. -The defendants argue that, since the contract was illegal to begin with, it is “ultra vires” for the court to order such an accounting. Issue: Is the contract enforceable? Law:“an agreement for an illegal partnership will not be specifically enforced Application: Masymetz was also part of this illegal business which makes the contract unenforceable.

Conclusion: The contract is not enforceable

Topic: Restrictive Covenant Case: Phoenix Restoration LTD v. Brownlee Facts: -Brownlee signed non-competition and non-solicitation covenants when he was working for Phoenix -Brownlee later resigned and worked Belfor, which is a competitor of Phoenix -Brownlee brought donuts, Belor coffee mugs, and hockey tickets to Phoenix’s two biggset clients. -Phoenix seeks an injunction of both Non-competition clause and Non-solicitation Clause Issue: Should an injunction be granted? The test for an injunction is as follows o whether the applicant has demonstrated that there is a serious question to be tried (or in certain circumstances a strong prima facie case) o whether the applicant will suffer irreparable harm if the injunction is not granted and o whether the balance of convenience favours granting the injunction Issue: Is the Non-Competition Clause enforceable? Law: Restrictive Covenant is enforceable when the two conditions are met A. Is the restrictive covenant reasonable with respect to the PUBLIC INTEREST? 1)Is the restrictive covenant a restraint on competition looking at the nature and location of the business? 2)Would the enforcement of the restrictive covenant deprive the public of some special service? B. ls the restrictive covenant reasonable and necessary to protect the PARTIES to the contract? 1)Is there a proprietary (owner) interest entitled to be protected? 2)Is the size of the restricted geographical area reasonable in light of the nature and location of the business? 3)Is the length of time the individual is restricted from carrying on business reasonable in light of the nature a Application: The Non-competition Clause prevent Brownlee to work for any companies involved in the insurance restoration business, while Phoenix itself is only involved in a niche market. Also, Brownlee’s only experience and skills are related to this industry, it would be unreasonable to enforce the non-competition clause. Conclusion: Non-competition clause is not enforceable. Issue 2: Is non-solicitation clause enforceable? Law: Non-solicitation clause prohibits formal employees to actively seek prospective clients or customers of Phoenix. Application: It’s reasonable for Phoenix to protect its business interest.

However, the clause even prohibits Brownlee to seek prospective clients whom he had no dealings. The scope of the clause is wider than it’s reasonably required. Conclusion: The non-solicitation clause is not enforceable.

Topic: Negligent Misrepresentation Case: Collins v. Dodge City East Facts: -Collins offered her old vehicle on a trade for a newer model -Collins did prior research, asked the friend to test drive for structural purpose , her testimony was deemed trustworthy -Sales person showed Collins AC function and the control panel clearly indicated the same. -The AC function was a critical function to Collins -Later Collins learned the AC was never installed Issue: Is this misrepresentation? Law: 1. There is a false statement made pre-contractually by a representor 2. Of a material fact 3. Which induces the representee to enter into a contract with the representor 4. The representee’s reliance must have been detrimental to the representee in the sense that dama Application: 1. Sales person made a mistake when he said there was AC installed to the car 2. The material in this case is the motor vehicle 3. Collins bought the vehicle because she thought the AC was installed 4. AC function is critical to Collins Conclusion: This is misrepresentation Issue: What kind of misrepresentation is this? Application: It’s negligent misrepresentation since the salesperson is clearly experienced and there is a duty of care owed to Collins because of the special relationship. Since all other aspects of vehicle were equipped as represented, it didn’t constitute a fraudulent misrepresentation. Conclusion: Negligent Misrepresentation Issue: What’s the remedy Conclusion: Rescission & Damages

Topic: Fraudulent Misrepresentation Case: Weinman v. Brinkman Fact: -Weinman bought Brinkman’s property and later found water leaking into their basement. Weinman sued for fraudulent misrepresentation. -In the SPIS report, Brinkman reported the basement water problem, which Weinman didn’t care to read. -Weinman then waived his rights to make set a condition as to an inspection in the offer -Patent Defect: visible to the eye Latent defect: not visible to the eye Conclusion: Not a fraudulent misrepresentation

Topic:Fraudulent Misrepresentation Case: Werle v. Sask. Energy Facts: -Sask hired Werle for his experience and his Bachelor of Commerce degree at the University of Saskatchewan but it’s a fraud -Sask terminated the appointment of this position and was sued for wrongful dismissal, which failed Topic: Undue Influence Case: Buckwold Western Ltd v. Sagar Issue: Does undue influence exist? Fact: Mr.Sager had Ms.Sager sign a personal guarantee to pay the debt if their company cant pay, Ms.Sager sought relief from this guarantee Application: Not against her free will. She had hours to consider before signing and it was mere commercial pressure She understood correctly of the aim of signing the guarantee. Conclusion: No undue influence

Case: Mackay v. Cesar Fact: Personal Property Guardian – Mental Competence – Undue Influence -Male plaintiff’s mother, who is currently 87 years old and bedridden in a level-4 care facility.

She is physically frail and incapable of managing her own affairs. -The mother purchased the home in 2009 as an investment property. A year later, she rented it to the defendant for $900 per month. -Three months later, the defendant prepared a rent-to-own agreement that purported to give him an option to purchase the house and to apply $350 of the monthly rent to the purchase price. The mother signed the document in 2010. Application: Tenacy Agreement-No undue influence -Mentally compet...