Introduction Contract law has always served an important role in facilitating business and economic activity. In particular, the law has long recognized the foundational nature of commercial obligations and the largely unqualified policy basis for holding parties strictly to their bargained-for positions. A significant exception to the “absolute” nature of contractual obligations arises from the […]
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Schuppener v. Pioneer Steel Manufacturers Limited: Forum Selection Clauses and Public Policy
On January 21, 2020, the British Columbia Court of Appeal issued its decision in Schuppener v. Pioneer Steel Manufacturers Limited. The decision offers guidance with respect to the threshold to be met in order for considerations to rise to the level of public policy factors compelling enough to justify judicial intervention with freedom of contract […]
Forjay Management Ltd. v. 0981478 B.C. Ltd.: Disclaimer of Contract in Insolvency Cases
On April 4, 2018, the Supreme Court of British Columbia issued a decision (Forjay Management Ltd. v. 0981478 B.C. Ltd.) directing a receiver to disclaim presale agreements in the context of a real estate receivership. The decision clarifies the analytical framework to be applied when considering whether to disclaim contracts in a receivership and offers […]
The Ghosts of Fundamental Breach: New Developments in the Enforceability of Contractual Limitations of Liability Since Tercon
Recent years have witnessed significant developments in the law that governs the enforceability of contractual limitations of liability. These legal developments were prompted by a new, simplified and seemingly exhaustive analytical approach to determining the enforceability of limitation clauses, set forth in the 2010 decision of the Supreme Court of Canada in Tercon Contractors Ltd. […]
Clicking Away Privacy: Email and the Tort of Intrusion Upon Seclusion
Today, many service providers offer email accounts for free and monetize them through advertising. For example, every email sent to or from an account with “Gmail,” Google’s popular email service, is an advertising opportunity for Google. This is because Google, or, rather, its computer algorithms, “reads” each email as it arrives or departs, scanning for […]
Mainstream Canada v. Staniford: Defamation, the Defence of Fair Comment, and the “Factual Foundation” Requirement
In Mainstream Canada v. Staniford, 2013 BCCA 341, the British Columbia Court of Appeal considered whether the defence of fair comment applied to defamatory material published on the internet and in a press release. The key issue was whether the defamatory material sufficiently referenced the “factual foundation” required to establish the defence. The Court held […]
Ross River Dena Council v. Government of Yukon: “Open Entry” Mining Claims and the Duty to Consult
In Ross River Dena Council v. Government of Yukon, 2012 YKCA 14, the Yukon Court of Appeal unanimously held that the Government of Yukon has a duty to consult with First Nations before recording mineral claims staked in areas claimed by First Nations, and that merely providing notice of mining claims will not be sufficient […]
Antrium Truck Centre v. Ontario: Injurious Affection and Private Nuisance
In Antrium Truck Centre Ltd. v. Ontario (Minister of Transportation), 2013 SCC 13, the Supreme Court of Canada reviewed the law of injurious affection, which occurs when a defendant’s activities interfere with the claimant’s use or enjoyment of land. The decision provides important guidance with respect to the circumstances in which a landowner will be […]
TELUS Corporation v. Mason Capital Management: Shareholder Meeting Requisitions and “Empty Voting”
In TELUS Corporation v. Mason Capital Management LLC, 2012 BCCA 403, the British Columbia Court of Appeal considered the validity of a shareholder’s requisition for a general meeting of shareholders. The Court clarified that a requisition made under s. 167 of the British Columbia Business Corporations Act need not identify the beneficial owner of the shares used to […]
Southcott Estates v. Toronto Catholic District School Board: Mitigation and Specific Performance
In Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, the Supreme Court of Canada considered whether a plaintiff in a case involving a failed real estate transaction was excused from mitigating its losses on the basis that it had made a claim for specific performance. Although the Court recognized that a […]
Lines v. British Columbia (Securities Commission): Foreign Regulatory Authorities and Reciprocal Orders
In Lines v. British Columbia (Securities Commission), 2012 BCCA 316 (“Lines”), the British Columbia Court of Appeal held that the British Columbia Securities Commission (the “Commission”) could not impose a “public interest” order pursuant to s. 161(6)(d) of the Securities Act, R.S.B.C. 1996, c. 418 (the “Act”) more onerous than an order made by a regulatory authority in […]
Edward Jones v. Voldeng: Investment Advisors, Non-Solicitation Covenants, and Injunctions
In Edward Jones v. Voldeng, 2012 BCCA 295 (“Voldeng”), the British Columbia Court of Appeal considered the test for granting an interlocutory injunction in the context of a restrictive covenant prohibiting solicitation contained in the employment contract of an investment advisor. The Court made several notable remarks regarding the irreparable harm and balance of convenience […]
Freeway Properties Inc. v. Genco Resources Ltd: Financial Statements and Confirmation of Causes of Action Under the Limitation Act
In the recent case of Freeway Properties Inc. v. Genco Resources Ltd., 2012 BCCA 258 (“Freeway”), the British Columbia Court of Appeal Court held that a company’s financial statements are capable of confirming a creditor’s cause of action against the company and extending the creditor’s time for commencing an action under the Limitation Act, R.S.B.C. […]
Recent Developments in the Enforceability of Website Terms of Use Agreements
The British Columbia Supreme Court recently considered a claim for breach of contract arising from a terms of use agreement contained on a website in Century 21 Canada Ltd. Partnership v. Rogers Communications Inc., 2011 BCSC 1196. The central issue was whether the terms of use gave rise to a binding contract between the owner […]
Preventing Spoliation of Social Networking Profile Evidence in Insurance Litigation
Recent years have witnessed the phenomenal growth of social networking websites, such as Facebook and MySpace. Social networking websites are now commonly used by individuals to communicate information about their personal life to other members of their network. As a result, they have become an integral part of the disclosure process in insurance litigation where […]
Crookes v. Newton: Hyperlinking, Defamation Law, and Freedom of Expression on the Internet
Last week, the Supreme Court of Canada released its landmark decision in Crookes v. Newton, 2011 SCC 47, affirming 2009 BCCA 392 and 2008 BCSC 1424. At issue was whether creating an internet hyperlink to defamatory material constitutes “publication” of the material for the purposes of defamation law. The case challenged the Court to strike […]
Hiatus until September 2011
There will be no updates for the duration of the author’s clerkship with the Supreme Court of British Columbia, due to the requirement of impartiality associated with that role. Readers are thanked and encouraged to visit again in September 2011.