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No waiver necessary for instances of implied consent

There is likely no need for a waiver in situations where implied consent exists. Implied consent exists when there are known risks.

For example, in sporting events, there is implied consent for ordinary risks. In Elliott and Elliot v. Amphitheatre Ltd. [1934] M.J. No. 19, a hockey fan was hit with a puck. The court found that because the plaintiff was an amateur hockey player he was aware of the risks.

This known risk resulted in implied consent to the ordinary risks associated with attending a hockey game. Implied consent, however, is exceeded in cases where injury goes beyond the scope of the implied consent. For example, in Agar v. Canning 54 W.W.R. 302, the plaintiff attempted to delay the defendant during a hockey game by hooking him with his stick and administering a painful blow to the back of the neck. In retaliation, the defendant used his stick to hit the plaintiff in the face, between the nose and the right eye. Plaintiff suffered unconsciousness and loss of vision in right eye.

The court held that injuries were inflicted under circumstances which show a definite resolve to cause serious injury to another.

Even when there is a provocation, these actions do not fall within the scope of the implied consent. See also: Wright v. McLean 20 W.W.R. 305, where four boys were playing near a mound of dirt and throwing mud at each other. The defendant was riding his bike and was struck. The defendant was invited to join the play. The boys kept throwing mud balls at each other. The defendant struck the plaintiff accidentally in the face with a rock. Plaintiff sued in battery. The court held that act was unintentional and that in joining the game the plaintiff implied consent to risks associated with the game.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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No waiver necessary for a medical emergency

In the event of a medical emergency, the consent of the patient is not required when the doctor believes the treatment is necessary.

For example, in Marshall v. Curry (1933), M.P.R. 267, the plaintiff went in for surgery for the treatment of a hernia. While performing the surgery, the doctor realized that the patient’s left testicle was severely damaged and it was necessary to remove it in order to treat the hernia. Plaintiff sued the defendant on the basis that there was no consent to remove the testicle.

However, the defendant discovered conditions which neither party had anticipated and that in removing the testable he acted in the interest of the patient and for the protection of his health and possibly his life. The court dismissed the plaintiff’s claim Nevertheless, in the event of a medical emergency doctors must respect the wishes of the client.

For example, in Malette v. Shulman 72 O.R. (2d) 417 (Ont. C.A.) a doctor was found liable in battery for ignoring a card stating that the patient did not want to receive blood transfusions because the patient was a Jehovah’s witness. Doctors must respect a patient’s right to refuse treatment. See also: Reibl v. Hughes 114 D.L.R. (3d) 1

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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Distinct actions or representations are required in order to waive the strict language of a contract

Discussion: A party can waive the strict language of a contract where, by its actions or representations, it leads the other to believe that those contractual rights will not be enforced. In Tas-Mari Inc v DiBattista* GambiDevelopments Ltd (2011 Ont CA), a developer tried to argue that the builders of a residential project had waived a notice provision. The notice provision required the developer to notify the builders of any damage caused by them, and to give the builders time to repair such damage before utilizing the security deposit. The court found that the developer did not alter its position as a result of any action or representation on the part of the Builders. Although the builders initially paid some invoices that helped cover the cost of repairs, the court nonetheless found that nothing the builders said, or did not say, induced the developer to act in a certain way.

Background:

The appellant (developer) appeals from the judgment of the trial judge, who held that the appellant was not entitled to bill the respondent builders for certain repairs in a residential building project because the appellant had not complied with a notice provision in the agreements between the appellant and various builders.

The provision required the developer to notify the builders before repairing any damage caused by the Builders and to give the Builders time to repair such damage, before drawing on the security deposit.

Notice: In no event shall the Vendor, at the Purchaser’s expense, repair any damage or draw upon the Security Deposit, prior to providing to the Purchaser written notice specifying the Damage or default complained of and allowing seven (7) days for the Purchaser to remedy such default or repair the Damage or commence and diligently undertake repair of the Damage or cure of such default within a reasonable time as determined by the Vendor but not exceeding 15 days from delivery of the written notice thereof by the Vendor[.]
Instead of providing notice and opportunity to cure damages caused by the builders outside of the lots they purchased, the developer issued invoices to the Builders to cover the cost of repairs. The Builders initially paid many of the invoices despite the fact that the developer failed to provide the required notice. Eventually, the Builders stopped paying and the developer exhausted the security deposits.
The developer argued that the notice provision was subject to an implied term that made it inapplicable to damages located outside the lot lines of the lots purchased by the Builders.
The developer also argued that the Builders had waived the notice provision by paying invoices for a period of time, without raising the lack of notice as an issue (ie.

promissory estoppel defence)
The appellant appeals on the notice issue. The respondents’ cross-appeal on the posting of security issue.

Issues:

Did the trial judge err in his interpretation of Article 11.05 of the contract by not properly considering (i) the agreement as a whole; (ii) the factual matrix within which the agreement was made; and (iii) repairs “within the lot lines” as an implied term of the contract?
Has a case of promissory estoppel been made by the appellant?
Rule:
Provisions in an agreement must be clear and unambiguous
A party can waive the strict language of a contract where, by its actions or representations, it leads the other to believe that those contractual rights will not be enforced.

Analysis:

Issue 1 – Interpretation of Notice Provision
The trial judge did not err in his interpretation that Article 11.05 was not ambiguous, and, on its clear language, covered services within and outside the lot lines.
Issue 2 – Promissory Estoppel
The appellant contends that by paying several invoices though no notice had been given, the builders represented that notice was not required and the appellant relied on those representations.

A party can waive the strict language of a contract where, by its actions or representations, it leads the other to believe that those contractual rights will not be enforced. In this case, the developer did not alter its position as a result of any action or representation on the part of the Builders. The developer was clear in his evidence that he simply did not believe he was required to give notice under Article 11.05, and he did not do so based on that belief. Nothing the builders said, or did not say, induced him to act in a certain way.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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Legal Tips and Tricks: Boilerplate Provisions Of Your Agreement

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Don’t ignore the boilerplate provisions of your agreements.  Although the language appears the same every time you read these clauses, subtle differences can and will make a difference in interpreting your commercial agreement or acquisition transaction documents.

By the time you get to the final page of your commercial agreements your eyes will have started to glaze over.  Words such as “amendment”, “assignment”, “waiver”, “severability”, and “arbitration” all seem vaguely familiar, but if you are reading someone else’s contract, make sure you read these carefully.  Clauses in this section of a contract are often considered to be “boilerplate” or standard, often repeated language.  Be cautious when reading this section of your contracts as the subtle nuances will work to your favour or against you.  Once you understand the intent of the clause, you can read a boilerplate clause more rapidly and with greater clarity.  It is also helpful if you or your counsel have a checklist of what is considered standard in your contracts, to compare against agreements that are sent to you.

Here is some helpful information on the “General Matters” clauses to help you to round out your agreements, and to make sure you’re aware of the risks and protections that are built in.

Amendment:  necessary to ensure that you are not inadvertently changing the agreement every time you have a discussion about it.  Amend in writing, signed by all parties.

Assignment:   important in the context of mergers and acquisitions or reorganization of your business, an individual or company should be able to assign an agreement to a holding company owed by them.  As well, the contract should be assignable to an acquiring company (who may see the contract as part of the assets they are acquiring).  Language can be included that allows a rejection of the assignment if the acquiring company is in direct competition with either party.  In many contracts only one party is permitted to assign the agreement (for example, an employee would not have a right of assignment as it is their personal service that is sought).

Enurement:  coupled with the assignment clause, this clause, if properly drafted, will extend the benefits of the contracts to successors or assigns.   In the case of a successor – this ensures that your estate has the right to benefit from an active contract.  In the case of an assign, this would extend the benefit to an acquiring or merging third party to the contract.

Waiver:  this clause preserves your rights in the event that you have been relaxed about enforcing your contract and your counterparty tries to assert that the contract has therefore become more relaxed as a result.  The “doctrine of waiver” is the legal concept that continuing or repeating waiver of a certain right can be construed as an ‘intentional relinquishment of a known right.’  This doctrine is to be avoided with a no waiver clause, so that your negotiated rights are not diminished because you are “being nice”.  Make sure to include language that requires a waiver to be in writing.

Costs:  if there is an ongoing expense (legal or otherwise) that could result from negotiation of an agreement, a costs clause should be included to clarify which party is paying for the ongoing legal expense.  The costs clause is not to be confused with the “expenses” clause – which deals with ongoing expenses that are incurred in performance of an agreement.  An expenses clause is usually found in an employment or consulting agreement, whereas a costs clause might be found in an M&A agreement.  In the context of M&A, a break fee is sometimes included to compensate a party for the legal process, once the transaction reaches a certain stage (usually due diligence).

Dispute resolution: consider whether you would rather deal with a dispute via negotiation, arbitration or litigation (or by climbing a ladder past each of these).   Many parties prefer to end the dispute in final and binding arbitration, as the costs and length of time taken to litigate can be ugly.

Notice:  when a party to an agreement is actively trying to terminate a contract, they will often rely on the method and location of delivering notice clause to take the position that the contract was not (for example) properly renewed.  Tricky counterparties could take the position that notice in person or via email is not the required method for notice under contract, and therefore, that the renewal period has expired.  Keep an eye out for this especially in lease renewals or the renewal of an exclusive negotiations period in the context of an M&A transaction.

Severability:  a contracting party may place clauses in a contract that create a period of non-competition or an interest rate for non-payment that might in the future violate a changing law.  This clause is intended to sever an offending provision and to flag to the court that the contracting party had intended to be reasonable, to avoid the court from setting aside the entire agreement as “unconscionable.”

Headings:  a well-organized contract contains plenty of headings at the beginning of each section (similar to in this article) that will allow a reader to navigate a contract quickly.  In contrast, a clever counterparty may remove the headings to make the contract less readable if they are looking to discourage negotiation.  Some law firms/companies will hold on file an internal and external version of a contract, with only the internal version containing headings.   A reasonable lawyer cannot help but be annoyed by this, as it takes away from the basic principle of consensus ad idem or “meeting of the minds”.  The headings may not capture the meaning of the contract and this clause will flag that issue to the readers so that they do not rely on summary text.

Entire Agreement:  parties may be relying on internet brochures, or advertisements or information outside of the contract, to come to an agreement.  The entire agreement clause will specify that all outside information is superceded by the contract.  Understanding this, the contracting party should carefully read the contract before signing and either strike out items that were not part of the deal, or add any additional items in, and ask the counterparty to initial the changes.  This is a good rule for everyday life contracts (rental car agreements, apartment rental agreements, insurance agreements) as well, in which standard form contracts may not capture some of the pre-contract discussions.  An experienced counterparty will not have a problem with making those changes.

Counterparts:  not everyone is always able to be in the same room at the same time to sign an agreement.  This clause specifies that parties can sign separately and that scanned-in or faxed-in signatures, once collected, form the agreement.  A careful person will ask that every page of the agreement be initialled and that the entire agreement be scanned in and sent together.

These are but a few of the commonly used clauses that are found in the General Matters section of most contracts.  Check out www.clausehound.com – a free source for legal language (which I am a contributor to).  Bookmark here for a list of generally used clauses with sample language provided, and do a quick double-check before signing your contracts to see if you have missed any standard clauses.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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