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. CBRE Limited v 1223962 Alberta Ltd, 2017 ABPC 114

[10] The issue at trial related to the timing of the “triggering event” in which the commission would be payable. The plaintiff argued that the triggering event for the commission to be payable was either when the conditions were waived (August 4, 2014) or when the sale closed (August 28, 2014). Either date would mean that the exclusion would be 50% of the commission as the dates were well within the 90 day extension period. This would mean that the plaintiff would be entitled to 50% of the commission payable. The defendant argued that the triggering event was when the offer was made (February 19, 2014), which would be within “the first 30 days” and thus the exclusion would be 100% of the commission, meaning the plaintiff would not be entitled to any commission.

(Check for commentary on CanLII Connects)

2. S.A. v. Metro Vancouver Housing Corporation, 2017 BCCA 2

[49] I note at the outset that many of the submissions have lost sight of this fundamental question. The parties have made extensive submissions concerning the tenancy agreement, the nature of the Trust and the difficulty valuing the Trust given its discretionary nature. In doing so, they have conflated the information that MVHC can consider in determining the eligibility of a tenant for rental assistance and the material it may consider in determining which eligible applicants will actually receive rental assistance. This confusion is perhaps understandable given MVHC’s letter of April 23, 2015 that stated it required particulars of the Trust to determine S.A.’s eligibility for additional rental assistance. With respect, the question is not limited to determining S.A.’s eligibility for rental assistance but is also whether MVHC can take the Trust into consideration in determining how to exercise its discretion as to which of the eligible applicants should receive a rental subsidy.

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3. Precision Drilling Canada Limited Partnership v Yangarra Resources Ltd, 2017 ABCA 378

[46] It is important to note that the determination as to whether public policy should intervene to render the exclusion clauses unenforceable should take place after the factual record is established, at which time the trial judge will be in a position to carefully examine whether there are public policy reasons to decline to enforce the liability exclusion clauses: Tercon, para. 119. As the British Columbia Court of Appeal stated in Niedermeyer v Charlton, 2014 BCCA 165 (CanLII) at para. 79: “the discussion of public policy in Tercon tends to focus on the conduct of the party who seeks to rely on the exclusion clause” [emphasis in original]. A proper understanding of Precision’s conduct is not possible until the trier of fact has made findings of fact on the relevant issues. We would add that the discussion of public policy may also focus on the consequences of the conduct, for which liability is excluded, on third parties.

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The most-consulted French-language decision was Brunette c. Legault Joly Thiffaut, 2017 QCCA 391

[23] Il est vrai qu’en certaines circonstances un actionnaire peut subir des dommages découlant de l’acte fautif d’un contractant de la société, qui, à son égard, pourra constituer une faute extracontractuelle. Il est vrai également qu’un contractant de la société peut avoir aussi, et simultanément, des obligations contractuelles envers l’actionnaire. Cet actionnaire, dans l’un et l’autre de ces cas de figure, n’aura toutefois un recours contre lui que si le préjudice qu’il subit est direct, indépendant et distinct de celui causé à la société et que la conduite reprochée constitue une faute à son égard[10].

(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.