Western Canada Business Litigation Blog

Category Archives: Commercial

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Commercial Arbitration May Not Be as Confidential as You Think

Posted in Commercial
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Choosing commercial arbitration over conventional litigation cannot guarantee confidentiality of the process, as a recent decision of the BC Supreme Court shows. The prospect of keeping a commercial dispute confidential has long been recognized as one of the main advantages of arbitration over litigation in the courts, along with the speed of the process, the… Continue Reading

A Fixture or a Chattel: The $4.2 Million Question

Posted in Commercial, Real Estate
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Likely because the application of the law is uncertain, commercial leases generally have detailed clauses dealing with the question of when a piece of equipment or an improvement installed in a premises becomes a fixture or remains a chattel.  The answer matters as fixtures, in law, are considered to be part of the land and,… Continue Reading

When is an enforceable Release of Liability not enforceable? Neidermeyer v. Charlton

Posted in Commercial, Insurance, Torts
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In 2012, the B.C. Court of Appeal decided the case of Loychuk v. Cougar Mountain Adventures Ltd.(discussed in an earlier blog post) In doing so, the Court made a clear pronouncement that people injured while taking part in inherently dangerous activities will be precluded from suing a commercial operator where they signed a release waiving… Continue Reading

Marko Vesely interviewed by Financier Worldwide

Posted in Commercial
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Marko Vesely was recently interviewed by Financier Worldwide for its Commercial Arbitration Annual Review.  This review examines issues and developments in commercial arbitration around the world. In the interview, Marko provides the Canadian perspective, outlining some of the key benefits of arbitration, recent changes to arbitration legislation and the practical considerations that need to be… Continue Reading

Stop Shooting Cannonballs at my Customers’ Canoe! Welcome Clarification on the “Unlawful Means” Tort from the Supreme Court Of Canada

Posted in Commercial, Torts
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On January 31, 2014, the Supreme Court of Canada released its decision in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12. This is an important commercial decision as it clarifies and narrows the scope of the tort of unlawful interference in economic relations. Canadian businesses will also welcome the Court’s reference to commercial certainty… Continue Reading

Supreme Court of Canada Backs Securities Commission Enforcement

Posted in Commercial, Securities
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Unlike the United States, Canada does not have a national securities regulator. In Canada, each province regulates securities through its own securities commission. One of the means of harmonizing securities regulation across the country is a provision in the securities legislation of each province that empowers its regulator to make an order (often referred to… Continue Reading

Class Action Law Bulletin: Green Light for Class Actions by Consumers

Posted in Class Actions, Commercial
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In a highly-anticipated and extremely significant pair of decisions for businesses and consumers alike, the Supreme Court of Canada (“SCC”) ruled on Thursday (October 31, 2013) that the ultimate consumers at the end of a supply chain can effectively leap-frog the supply chain by having direct legal recourse in a class action against a manufacturer… Continue Reading

Can You Smell a Fundamental Breach? Commercial Tenancy and Quiet Enjoyment

Posted in Commercial, Real Estate
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What happens if you lease a commercial retail space only to find, after several months of operation, that there is a pervasive and unpleasant smell in the place?  Customers are complaining.  Your employees are feeling ill.  Your inventory might be getting damaged.  The source of the smell cannot be found.  Is this your problem or… Continue Reading

Can a Fundamental Breach of Contract Sink an Exclusion Clause?

Posted in Commercial
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Frequently, sales contracts contain exclusion clauses that insulate a seller from responsibility for the condition of the goods being sold.   The buyer gets a product they think is of a certain quality and, when they find out it is not, these clauses prevent any recourse against the seller.   However, if the purchaser can establish that… Continue Reading

Is it a Fixture or is it a Chattel?

Posted in Commercial, Real Estate
Comment

Landlords, tenants and law students all wrestle over what it means for something to be a fixture as opposed to a chattel.  It matters to landlords because, at the end of a tenancy, fixtures can become their property and enhance the land value.  It matters to tenants because they risk losing valuable assets installed on… Continue Reading

Illegal Contracts and Unjust Enrichment: Who Wins Out?

Posted in Commercial, Fraud
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What is an illegal contract and is it enforceable?  If an illegal contract is unenforceable, does the party who received its benefit get to keep that windfall?  The short answer to the first question is that a contract is illegal when it is either contrary to a statute or is contrary to public policy.  Generally,… Continue Reading

BC Ferries Wins Property Assessment Appeal Board Decision

Posted in Commercial, Real Estate
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On Monday October 29, 2012 the B.C. Property Assessment Appeal Board released an important decision reducing the assessed value for property tax of the upland land and improvements at the Horseshoe Bay Ferry Terminal to a nominal value.  BC Ferries occupies the Province-owned property both under a long-term lease restricting the property use to ferry… Continue Reading

Order is Restored – Only Registered Shareholders Can Exercise Dissent Rights

Posted in Commercial
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In general, corporate legislation in Canada provides that if a corporation engages in specific types of transactions, such as an arrangement or amalgamation, shareholders are entitled to vote against the transaction.  If the transaction is nevertheless approved, shareholders can then exercise a right to dissent and be paid fair value for their shares.  Last month,… Continue Reading

British Columbia Court of Appeal Overturns TELUS Shareholder Meeting Decision

Posted in Commercial
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On October 2, 2012, I blogged about court intervention in shareholder proxy contests in British Columbia.  One of the cases referenced was a petition brought by TELUS to quash a meeting of TELUS’s shareholders requisitioned by an American hedge fund, Mason Capital Management LLC (“Mason Capital”).  This meeting was requisitioned in an attempt to block… Continue Reading

The Rising Tide of Court Intervention in Shareholder Proxy Contests in British Columbia

Posted in Commercial
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2012 has seen a large increase in court applications relating to shareholder proxy contests in British Columbia.  In the face of these increased number of applications, the Supreme Court of British Columbia has shown an increased willingness to intervene to ensure meetings and proxy contests are conducted fairly. On September 20, 2012, the Court gave… Continue Reading

Construction Warranties: Are They Enforceable?

Posted in Commercial, Construction
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Based on a recent B.C. Court of Appeal decision, Greater Vancouver Water District v. North American Pipe & Steel Ltd., the answer is yes. This case serves as a clear direction to the construction community that the courts will hold contractors to the specifications and warranties they give about the services and products they intend… Continue Reading

Local Governments Must Act Fairly When Enacting Zoning Bylaws

Posted in Commercial
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In a decision that will be of interest to developers and others whose interests may be affected by zoning decisions of local governments, the B.C. Court of Appeal recently reaffirmed the duty of fairness owed to interested parties when such decisions are made.  The Court also provided some guidance as to what is required of… Continue Reading

Why Can’t We Just All Get Along? Lessons from the Court of Appeal on the Arbitration of Partnership Disputes

Posted in Commercial
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In recent years it has become increasingly common for commercial contracts to include arbitration clauses requiring disputes that arise under the contract to be resolved through arbitration rather than by recourse to the court process.  Such clauses are also very prevalent in partnership agreements as they allow partners to resolve disputes in a relatively quick… Continue Reading

Court of Appeal Reserves Judgment on Whether Beneficial Shareholders Can Exercise Dissent Rights

Posted in Commercial
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On September 7, 2012, the British Columbia Court of Appeal, sitting as the Yukon Court of Appeal, heard the appeal from the Yukon Supreme Court decision in Matre et al v. Crew Gold Corporation, 2011 YKSC 75.  The Court of Appeal’s eventual decision will address the question of whether beneficial, as opposed to registered, shareholders… Continue Reading

The Long Arm of Canadian Courts – Supreme Court of Canada Clarifies the Test for Jurisdiction over Foreign Defendants

Posted in Commercial
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In a recent case, Club Resorts Ltd. v. Van Breda, the Supreme Court of Canada elaborated on the “real and substantial connection” test, bringing greater clarity and predictability to the determination of whether a court is entitled to assume jurisdiction over a case which also has ties to a foreign jurisdiction.  In doing so, the… Continue Reading

B.C. Courts Consider Changes to Retiree Health Care Benefits

Posted in Commercial
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Retirement benefits have been much in the news recently with the announcement by the federal government that the eligibility age for public Old Age Security benefits will rise from 65-67 beginning in 2023.  Concerns about the affordability of retiree benefits is particularly acute in the private sector where factors such as the aging population, economic… Continue Reading

Thrill Seekers Are Bound By Releases When Things Go Wrong

Posted in Commercial, Insurance
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The B.C. Court of Appeal recently upheld, and arguably extended, the enforceability of liability waivers and releases signed by customers of commercial enterprises.  The decision, Loychuk v. Cougar Mountain Adventures Ltd., is a strong affirmation that participants in inherently risky recreational adventures who sign releases will not be able to sue if they are injured,… Continue Reading

Supreme Court of Canada Says No to National Securities Regulator

Posted in Commercial
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On December 22, 2011, the Supreme Court of Canada released its decision in Reference Re: Securities Act, 2011 SCC 66.  As noted in a previous post, the Reference involved a show down between the federal government and various provincial governments over the question of whether the legislation creating a proposed new national securities regulator is… Continue Reading