Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Zheng v Your New Car Calgary Inc, 2015 ABQB 121

[17] The Plaintiff refers to Bhasin v. Hrynew, 2014 SCC 71 (CanLII), 2014 Carswell Alta 2046 (S.C.C.), Spartek Systems Inc. v. Brown, 2014 Carswell Alta 1496, (Q.B.), and Tirecraft ( supra). Bhasin deals with the duty of good faith in contractual dealings. The latter two cases provide some guidelines as to when the courts may consider it appropriate to lift the corporate veil. Some examples are where the corporation is used as a shield for fraudulent or improper conduct, where the shareholder treats itself and the corporation interchangeably, where the corporation is created to deflect monies from their proper use, and where the company is a sham, cloak or alter ego.

(Check for commentary on CanLII Connects)

2. Durham v. Bennett, 2009 ABPC 66

[11] Finally this Court must decide if punitive damages for the deliberate trespass should be awarded. The Defendants were at pains to advise the Court that they felt that they had made reasonable attempts to communicate their concern regarding the overhanging branches and their intention to prune them themselves. Such attempts extended to one actual communication two years earlier when Mr. Bennett spoke to the Durhams’ 14-year-old son and asked him to tell his parents the Bennetts wished to speak to them about the tree. Mrs. Durham did do some pruning after that and no further words were spoken. Mr Bennett says he went over to the Durhams to speak to them perhaps three times, but they did not answer the door each time. One other time when they did have a conversation, outside, with Mr. Durham in his car, the tree was not mentioned. I find that the Bennetts were remiss in their failure to resolve this matter more amicably and that the trespass they committed was intentional, albeit they had instructed their agent not to cut any branches off over the Durhams’ property. This case is remarkably similar to the facts in Kiessling v. Varga, 2002 BCSC 90 (CanLII), [2002] B.C.J. No. 142, 111 A.C.W.S. (3d) 6 where again a neighbour cut overhanging branches beyond the property line. The Court there held that it was not easy to determine where in the air space the property line fell. While the parties failed to communicate properly with each other and the Defendant’s actions were somewhat high handed, there was no award for punitive damages. It was rare to find any cases of this sort where punitive damages were awarded and I will not do so here.

(Check for commentary on CanLII Connects)

3. GAP Mining Supply Inc v 0865970 BC Ltd, 2016 ABQB 698

[114] Both counsel for the parties provided me with an overview of the principles of law governing fiduciary duty. Not all relationships involve specific fiduciary duties. There is a tripartite test to be used to establish an ad hoc fiduciary relationship. Both counsel conceded that there is no issue of a per se relationship here.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Matte-Thompson c. Salomon, 2017 QCCA 273

[145] Appliquant ces principes aux faits de l’affaire, on ne peut conclure à un arrêt complet du lien entre les fautes de Me Salomon et le préjudice subi par les appelantes. Au contraire, ces fautes se sont perpétuées au fil des années et le lien entre celles-ci et le préjudice subi par les appelantes n’a pas été rompu. L’absence de simultanéité entre les fautes des fraudeurs et celles de Me Salomon n’exonère pas ce dernier. La situation est fréquente en matière de responsabilité professionnelle, ce qui explique les remarques du juge Baudouin[55].

(Check for commentary on CanLII Connects)

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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