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The Government Doesn’t Want Your Waste – New Rules For Landowning Corporations

There are new reporting requirements for all corporations incorporated under the Ontario Business Corporations Act (OBCA), that went into effect in December 2016 under the Forfeited Corporate Proper...

Termination – For Cause or For Convenience?

When negotiating a contract, it is important to consider the termination provisions. If the contract is no longer commercially attractive, will you be able to terminate?   Atos IT S...

Who is responsible for payments if a contract is terminated?

Whether you (the client/customer) have an obligation to pay when a contract has been terminated depends on the reason for termination, the timing of the termination, which party terminated...

How should a company deal with potential threats to the privacy and security of its data?

Companies of every type are falling victim to intentional breaches of the privacy and security of their data. Most recently, the WannaCrypt ransomware attack left hundreds of thousands of co...

How broadly should an arbitration clause be worded?

ACTION FOR DEFAMATION FALLS WITHIN SCOPE OF BROADLY WORDED ARBITRATION CLAUSE 9302-7654 Québec inc. (Team Productions) c. Bieber 2017 QCCS 1100 (CanLII) A Quebec court ruled that an action for ...

Can arrears that were never pursued during an agreement still be sought after its termination?

TERMINATION OF AGREEMENT EFFECTIVE EVEN THOUGH PAYMENTS NOT ENFORCED Anne of Green Gables Licensing Authority Inc. v. Avonlea Traditions Inc. 2000 CanLII 22663 (ON SC) The plaintiff/licensors in...

Are there any circumstances under which termination of an agreement require the consent of both parties, if at all?

TERMINATION OF AGREEMENT DOES NOT REQUIRE CONSENT OF BOTH PARTIES Contech Enterprises Ltd. v. Vegherb, LLC 2015 BCCA 99 (CanLII) The court held on appeal that the consent of both parties was not...

Does dispute resolution take precedence over a party’s right to unilaterally terminate a commercial contract?

DISPUTE RESOLUTION PROVISION DEEMED TO APPLY AS A MATTER OF ‘SOUND COMMERCIAL PRINCIPLE’ AND ‘GOOD BUSINESS SENSE’ Bombardier Transportation Canada Inc. v Metrolinx 2017 ONSC 2372 (CanLII) ...

Can a disclaimer relieve a party of liability to a third party?

CLAUSE DISCLAIMING RESPONSIBILITY TO THIRD PARTIES RELIEVES CONSULTANT OF RESPONSIBILITY FOR NEGLIGENCE IN PREPARATION OF ENVIRONMENTAL REPORT Wolverine Tube (Canada) Inc. v. Noranda Metal Industri...

Are further remedies still available to an assignment of debt if legal action has otherwise already been taken?

ASSIGNMENT OF PROCEEDS FROM ESTATE ENFORCEABLE AS COLLATERAL SECURITY Rafael v. Allison 1987 CanLII 3232 (AB QB) The legal remedies available under assignment are not extinguished even if legal ...

Can I be personally bound if I execute an agreement on behalf of my company?

‘CONFIDENTIALITY AGREEMENT’ BETWEEN TWO CORPORATIONS FOUND TO BE PERSONALLY BINDING ON AN INDEPENDENT CONTRACTOR Downey v. Ecore International Inc. 2011 ONSC 6617 (CanLII) A confidentiality ...

Can a party forgo the process of arbitration when it is written into an agreement?

EXCLUSIONS FROM ARBITRATION PROCESS MUST BE CLEARLY STATED IN THE CONTRACT Okanagan Pellet Company Inc. v. Pinnacle Pellet Inc. 2012 BCSC 207 (CanLII) A court held that when the parties have cle...

Under what circumstances can the governing law written into an agreement be superceded?

CHOICE OF FORUM/GOVERNING LAW CLAUSE WILL PREVAIL UNLESS "STRONG CAUSE" SHOWN Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd. 2012 SCC 9 The Supreme Court of Ca...

Under what circumstances can the choice of forum written into an agreement be superseded?

A FORUM SELECTION CLAUSE IN A COMMERCIAL CONTRACT SHOULD BE GIVEN EFFECT UNLESS PARTY CAN SHOWS STRONG CAUSE THAT THE CASE IS EXCEPTIONAL. Expedition Helicopters Inc. v. Honeywell Inc. 2010 ONCA 35...

In the absence of a governing law clause, what constitutes a “substantial connection” when deciding what law will govern a contract?

SUBSTANTIAL CONNECTION TEST APPLIES IF CONTRACT DOES NOT CONTAIN A GOVERNING LAW CLAUSE Lilydale Cooperative Limited v. Meyn Canada Inc. 2015 ONCA 281 (CanLII) The Ontario Court of Appeal applie...

Does a governing law clause have any bearing in decisions about extracontractual matters?

GOVERNING LAW CLAUSE IN MARITIME SUPPLY CONTRACT USED TO DETERMINE GOVERNING LAW JPMorgan Chase Bank v. Lanner (The) [2009] 4 FCR 109, 2008 FCA 399 (CanLII) The Federal Court of Appeal used the ...

In the absence of a governing law clause, what should be taken into consideration when deciding what law will govern a contract?

GOVERNING LAW DEPENDS ON 'REAL CONNECTION' TO JURISDICTION IF THE CONTRACT DOES NOT CONTAIN A CHOICE OF LAW CLAUSE New Holland (Canada) Credit Company v. MacPherson 2003 CanLII 23201 (ON SC) In ...

How does the sophistication of parties influence the enforceability of an entire agreement clause?

ENTIRE AGREEMENT CLAUSE CAN PRECLUDE AN ACTION IN TORT FOR NEGLIGENT MISREPRESENTATION. No. 2002 Taurus Ventures Ltd. v. Intrawest Corp. 2007 BCCA 228 (CanLII) A Court in British Columbia dismis...

Can an entire agreement clause preclude a party from having to uphold general or implied duties of contract law?

ENTIRE AGREEMENT CLAUSE DOES NOT PRECLUDE IMPLIED CONTRACTUAL DUTIES Bhasin v. Hrynew [2014] 3 SCR 494, 2014 SCC 71 (CanLII) The Supreme Court of Canada held that parties are not free to exclude...

Can unconscionability render an agreement (or parts of it) unenforceable?

UNCONSCIONABILITY CAN MAKE LIMITATION OF LIABILITY CLAUSES AND ENTIRE AGREEMENT CLAUSES UNENFORCEABLE 2190322 Ontario Ltd. v. Ajilon Consulting 2014 ONSC 21 (CanLII) Limitations of liability cla...

How can the language of indemnification and limitation of liability be drafted in the interest of resolving issues quickly?

TRIAL REQUIRED TO PROPERLY INTERPRET AMBIGUOUS LIMITATION OF LIABILITY CLAUSE Astellas Pharma Canada Inc. v. WellSpring Pharmaceutical Canada Corp. 2008 CanLII 46324 (ON SC) The interplay betwee...

What should a termination clause look like to qualify for use of the parol evidence rule?

A CLEARLY WORDED TERMINATION CLAUSE IS LIKELY TO BE ENFORCEABLE Crowe v. Saskatchewan Indian Gaming Authority Inc. 2006 SKQB 27 (CanLII) If a termination clause is clearly worded and its meaning...

Can informal talks stand in for a clear and executed assignment clause in a contract?

UNEXECUTED ASSIGNMENT CLAUSE INEFFECTIVE UNDER PPSA KJM Leasing Ltd. v. Toronto-Dominion Bank 1989 CanLII 4646 (SK QB) A conditional, incomplete or vague assignment clause will not be enforced b...

Can an assignor be relieved of honoring a guarantee made to an assignee in the event of a default?

CONSUMER PROTECTION LEGISLATION DOES NOT NECESSARILY RELIEVE AN ASSIGNOR FROM THE OBLIGATION TO HONOUR A GUARANTEE TO PAY AN ASSIGNEE C.L. Hagan Transportation Ltd. v. Canadian Acceptance Corp. [19...

Can emails be considered confidential information, and therefore can come under the obligation to return or destroy?

COURT ORDERS DELETION OF CONFIDENTIAL EMAILS Pakage Apparel Inc. v. Ellis 2014 BCSC 884 (CanLII) In this case, the court implied that even though the defendants (who had been principals in the c...
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