The recent decision of the Ontario Court of Appeal in Di Battista v. Di Battista Farms Ltd. et al. is a useful reminder of the requirements for certainty before a contract will be found to be binding and effective.

In this case, Tony Di Battista worked with his three brothers in construction.  Together with their nephew, they started Di Battista Farms Ltd. which owned property in Kleinburg, Ontario.

A dispute arose, and Tony was bought out by the other shareholders.  As part of the buyout, they signed a memorandum of agreement indicating that they would all cooperate with either or both of Tony or their nephew if either decided to try to obtain a building permit to build a house on a part of the property.

The word “cooperation” is open-ended and lacks specificity.

About 15 years later, Tony decided to try to obtain a building permit and asked his brothers to consent to his application for a severance of a section of the property.  They refused.  Tony then sued to enforce the memorandum of agreement.

The judge hearing the matter dismissed Tony’s application, finding that there was not sufficient certainty in the contract.  Tony appealed to the Court of Appeal.  The Court of Appeal agreed with the judge and dismissed the appeal.  Continue reading →

The recent Superior Court of Ontario decision in Robert Moore Pharmacy Ltd. et al. v. Shoppers Drug Mart Inc. is an interesting reminder of the legal status of the duty of good faith as it applies to franchises.

In Ontario, franchises are regulated by a specific statute, the Arthur Wishart Act. This statute appears to have been enacted in response to a number of cases in which franchisors appeared to be taken advantage of franchisees in some significant way. I say that because its provisions are extremely favourable to franchisees.

The obligations that it places on a franchisor are onerous. A franchisor’s failure to comply with even the most technical of requirements under the Act may well have disastrous results for it.

Among the more significant policy principles behind the Act is the obligation on franchisors to act in good faith.

In this case, the Plaintiff was a Shoppers Drug Mart franchisee. Its franchise agreement provided for an original one-year term and the potential for two one-year renewal terms. The renewal terms were to come into existence automatically if neither party took the steps to terminate the agreement during its existence by giving notice.  Continue reading →

A great deal has been written about the revolutionary changes in communication created by social media.  The statistics indicate that more and more people are “meeting” online and ultimately marrying.  On Facebook, people stay in touch with their friends, parents keep track of what their children are doing, and people post photographs in addition to other information for viewing both publicly and by those identified as “friends” who are given access to private photograph libraries.

The posting of photographs on Facebook, however, can represent a gold mine for litigation counsel.

The posting of photographs on Facebook, however, can represent a gold mine for litigation counsel.

In personal injury practice, it has become commonplace for insurers to retain investigators to conduct surveillance on Plaintiffs claiming to be seriously injured in the hope of obtaining evidence, primarily photographic, of the Plaintiff engaging in activities which are inconsistent with the claimed injuries.

With Facebook, personal injury plaintiffs who are not careful about their Facebook accounts can hand such evidence over to defendants and their insurers on a platter.  This is clearly demonstrated by the recent case of Stewart v. Kempster, a Superior Court decision released in late December, 2012.  Continue reading →

I would like to take this opportunity to wish everyone a happy and healthy New Year. 

I have been writing this blog since the fall of 2011.  Since then, there have been over 6,000 visits to it by people all over the world.  I am truly overwhelmed by this level of interest, and I am sincerely grateful to you and all of the other readers who have taken the time to review these posts.

I’ve noticed that some of my posts have attracted more interest than others.  I continue to try to put forward posts about cases that people might like to consider from a different point of view. 

If any of you has any particular issues which you would like me to address, either with reference to a recent case or otherwise, please click on my e-mail address under “Contact” in the right side column, or click on “Leave a Reply” below.  I would be delighted to hear from you.

A news story last week involved a woman who filed a Human Rights complaint against a barber who refused to cut her hair.  It appears that the barber was a Muslim and declined the woman’s business on religious grounds. 

The National Post reported the story in terms of this having been a clash of rights.  Soon afterwards, George Jonas wrote a commentary in the National Post criticizing the choice of words and insisting that this was not a matter of competing “rights” at all. 

Of course, Mr. Jonas is absolutely right.  While the barber had every right to decline the woman’s request for a hair cut, the woman had absolutely no right to require that particular barber to cut her hair or to do anything else.  The barber could have declined the business on religious grounds or for any other reason if he chose to do so.  The woman could have gone anywhere else she wanted to do for her haircut (and presumably did).  Instead, she has filed a complaint with the Human Rights Tribunal of Ontario.

I have only had limited experience with that distinguished institution and its predecessor, the Ontario Human Rights Commission.  Unfortunately, my experience tells me that this woman is going to have little difficulty making this poor barber’s life extremely miserable.  Continue reading →

On September 6, 2012, I posted an item about claims against an estate for unjust enrichment.  The post described circumstances under which a claim for unjust enrichment might still be available to someone who feels short changed by a deceased. 

The Ontario Court of Appeal has very recently issued a decision in the case of Mountain v. TD Canada Trust Company and others on a related topic.  In this case, a claim was made against an estate on the basis of an alleged contract between the Plaintiff and his deceased parents.  The Plaintiff claimed that the terms of the contract were breached by his late parents’ will and asked the court to order that he be given what he felt that he had been promised. 

This case provides a good illustration of the circumstances in which the terms of a contract, even if unwritten, can prevail over a will that is not consistent with it.

Jack and Helen Mountain owned a dairy farm in Caledon which had been in the Mountain family since 1830.  They had two children, Gary and Louanne.  Gary worked on the farm full time for 24 years.  Louanne was not involved in running the farming operation. 

Jack and Helen had identical wills, each leaving all of his/her estate to the other. 

Helen was diagnosed with Alzheimer’s disease in 1999.  She died 10 years later.  Jack died suddenly in late 2001. 

In 2004, three years after Jack’s death but while Helen was still alive, Gary sued Jack’s estate, Helen and Louanne for an Order declaring that he was beneficially entitled to the farm property and the farm business.  The basis of his lawsuit was what he claimed to have been an oral agreement with his parents that if he stayed on the farm and farmed with them, and the farming was his main occupation, he would receive the farm land and the farm business after his parents retired.

Louanne responded by denying her brother’s entitlement to the farm and asking for an Order requiring Gary to account to the estate for his use of the farm property and its business since Jack’s death.

Helen died in 2009.  The trial took place a few months later. 

At trial, the judge determined that Gary had not proven the alleged contract with his parents.  He also awarded costs to Louanne payable by Gary in the amount of $275,000. 

Gary appealed from that judgment. 

In this case, Gary was seeking specific performance, which is a court order requiring that parties to a contract complete the contract.  It is possible for a party to an oral contract with a deceased to obtain specific performance of that contract, but three hurdles have to be overcome:

1. there has to be evidence of the terms of the contract with enough detail to permit the court to order its performance;
2. the evidence has to be corroborated by some material evidence other than the evidence of the party seeking specific performance; and
3. there must be evidence of acts by which the contract has been at least partially performed.  In other words, the claim of an oral contract has to be supported by evidence that a party to that contract did something that showed an intention to fulfill the contract.  The acts of part performance have to be sufficient to indicate the existence of an oral contract

The Court of Appeal made it clear that each of these tests is to be considered in the context or circumstances of each case.  The Court of Appeal decided that the trial judge had failed to take into account the fact that Gary and his father had operated this farm as partners, and that there was an abundance of evidence showing that they were viewed by everyone concerned as equals in their operation of the farm.  Gary’s work managing the farm allowed Jack to pursue his career as a cattle buyer which involved significant travel away from the farm.  Before his death, Jack transferred a very significant asset of the farm business to Gary.  Prior to her death, Helen signed a deed of land transferring a part of the farm with a house located on it to Gary and his wife for free.  All of these acts, according to the Court of Appeal, represented both part performance and evidence corroborative of Gary’s claim. 

Unfortunately, the Court of Appeal did not feel comfortable deciding the factual issues based on trial transcripts.  As a result, it set aside the trial judge’s Order but, rather than substituting its own decision, ordered a new trial on all issues.  The substantial costs award was set aside as well.

Wisely, the Court of Appeal pointed out that since a new trial would not be in the interests of either side, and as the case “cries out for a mediated, consensual resolution”, the court took the rare step of directing a mediation to be conducted before any new trial. 

Whether or not Gary and Louanne Mountain can settle their dispute at mediation remains to be seen.  In the meantime, this case provides a good illustration of the circumstances in which the terms of a contract, even if unwritten, can prevail over a will that is not consistent with it. 

The recent Court of Appeal decision in Oak Incentives Group Inc. v. Toronto Dominion Bank brings up an important point about the duty that banks owe to their customers to deliver accurate information.  In this case, the information in question involved the nature of a deposit into the customer’s account. 

The customer, Oak Incentives Group Inc., was a distributor of consumer appliances.  It received an unusually large order of televisions from a new customer and required payment to be made by wire transfer.

In ordinary circumstances, the bank is not responsible to ensure that deposits made into a customer’s account are genuine.

Funds were deposited into Oak’s account by the customer.  Oak informed the employees of its bank, then called the Toronto Dominion Bank, that it was requiring a wire transfer from the customer and asked if such a transfer would be secure.

The bank employees confirmed to Oak that wire transfers were indeed secure but failed to mention that the new customer had actually deposited funds into Oak’s account by way of a regular cheque. 

Oak shipped the goods, and the cheque was later discovered to be counterfeit.  Oak sued the bank for negligence in the advice that it had given.  Continue reading →