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The Lay of the Land DEVELOPMENTS IN CANADIAN REAL PROPERTY LAW

Tag Archives: Supreme Court of Canada

BCSC Considers the Organizing Principle of Good Faith in the Context of Lawyer’s Approval Clauses

Posted in Litigation

Introduction

In 2014, the Supreme Court of Canada in Bhasin v. Hrynew[1] formally recognized the “organizing principle of good faith” in Canadian contract law. Since then, many Canadian courts have had occasion to interpret and apply this principle in the context of real estate transactions. A recent decision of the B.C. Supreme Court, Zhang v. Amaral-Gurgel,[2] adds to this line of authority, offering insight into the application of the principle of good faith in the context of lawyer’s approval clauses.… Continue Reading

Bhasin Two Years On: The Impact of Bhasin v. Hrynew on the Practice of Canadian Commercial Real Estate Law

Posted in Commercial

Edited and approved by Ben Leith

In 2014, the Supreme Court of Canada in Bhasin v. Hrynew (“Bhasin”) established good faith contractual performance as a general organizing principle of the common law of contract and created a specific duty of honesty in contractual performance – ultimately, imposing a stand-alone duty of good faith. Despite Justice Cromwell’s repeated assertions that the judgement in Bhasin was an incremental step in the common law, Canadian legal scholars and prominent Canadian law firms dubbed it a “landmark” decision that would transform the manner in which business parties performed their contractual obligations.… Continue Reading

The Iona Decision (National) – Supreme Court of Canada dismissal bolsters priority of builders’ lien trust

Posted in Construction, Land Use

On April 14, 2016, the priority of statutory trust protections afforded to subcontractors and suppliers under Alberta’s lien legislation was strengthened: the Supreme Court of Canada dismissed an appeal in Iona Contractors Ltd. v. Guarantee Company of North America, 2015 ABCA 240, thereby bolstering the priority of the trust even in the face of a bankrupt general contractor.… Continue Reading

Supreme Court of Canada decides that substance trumps form in the application of the Section 8 Interest Act prohibition on higher default interest to an incentive rate mortgage

Posted in Commercial, Policy, Residential

In Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18 (“Krayzel”), the Supreme Court of Canada held that an interest rate increase that was structured as a lower rate in the absence of default infringed Section 8 of the Interest Act (Canada). In its analysis, the majority decision looked at whether mortgage loan that offered a lower rate of interest where there was no default is in substance the same as imposing a higher interest rate after a default. It ultimately found that framing the higher rate of interest as part of an incentive to avoid a … Continue Reading

Vancouver enacts bylaws to regulate medical marijuana-related retail businesses

Posted in Commercial, Policy, Zoning

Medical marijuana is becoming big business. Recently, it was announced that two titans in the medical growing sphere have agreed to merge in a $58-million deal expected to close in August. The headlines in Vancouver relate to the recent boom in medical marijuana-related storefront “dispensaries.” Over the last two years, the number of these retail businesses in the City has grown by 100 percent each year. As of April 2015, the City reported that there were over 80 such businesses operating in Vancouver without a business licence.… Continue Reading

SCC Delivers Ground-Breaking Decision in Canadian Contract Law.

Posted in Litigation

The following post on the Canadian Appeals Monitor blog written by Neil Finkelstein and Brandon Kain on November 14, 2014, may be of interest to readers of this blog:

SCC Delivers Ground-Breaking Decision in Canadian Contract Law

The Supreme Court of Canada has released a precedent-setting judgment in which it recognized, for the first time, that there is a general organizing principle of good faith in the performance of contracts throughout Canada: Bhasin v. Hrynew, 2014 SCC 71.  The Bhasin case, which was successfully argued by Neil Finkelstein and Brandon Kain of McCarthy Tétrault’s Toronto litigation group, will be … Continue Reading

Waiving “formalities” in a Procurement Process: What Owners and Bidders Need to Know

Posted in Municipal

It is not unusual for tender documents to reserve discretion to an owner to “waive formalities” in accepting a bid.  Such discretion needs to be interpreted in the context of the requirement that an owner may in no circumstances accept a “non-compliant bid”.  But, without further definition, what is considered a “formality” that may be waived?  What risks does an owner in a procurement process face if it waives a formality, or alternatively, if it refuses to exercise its discretion to do so?  These are the questions the Ontario Court of Appeal grappled with in Rankin Construction Inc. v. Ontario.Continue Reading

Aboriginal title declared in historic SCC decision, Tsilhqot’in Nation v. British Columbia

Posted in Municipal

The following post on the Canadian Energy Perspective  blog written by Sam Adkins, Stephanie Axmann and Selina Lee-Andersen on June 27, 2014 may be of interest to readers of this blog:

On June 26, 2014, the Supreme Court of Canada (SCC) released its highly anticipated decision in Tsilhqot’in Nation v. British Columbia.[1] In this ground-breaking decision, Canada’s highest court granted a declaration of Aboriginal title over a tract of Crown lands to the Tsilhqot’in Nation (Tsilhqot’in) of the west central interior of British Columbia. This is the first time in Canadian history that … Continue Reading

The SCC Rules that Interfering with the Sale of a Property is not “Unlawful”

Posted in Litigation

The contours of the tort of unlawful interference with economic relations have, heretofore, been “unsettled”, “confusing” and “inconsistent”. The tort essentially provides redress when party “A” intentionally inflicts economic injury on party “B” by use of unlawful means against party “C”. What is the nature of the “unlawful” activity that can ground the tort? What degree of intentionality is required to give rise to the tort? Is the tort available concurrently with other causes of action? These are the central questions that the Supreme Court of Canada grappled with in its recent decision in A.I. Enterprises Ltd. v. Bram Enterprises Continue Reading

The Doctrine of Mitigation in the Supreme Court of Canada: A Triumph of Theory Over Commercial Reality

Posted in Commercial

A troubling decision

It is troubling when contract law fails to accord with commercial reality. It is troubling when a commercial case ignores the underlying economic context. In Southcott Estates Inc. v. Toronto Catholic District School Board, the Supreme Court of Canada applied theoretically pure models of contract and corporate law to conclude that the victim of a breach of contract had failed to mitigate its damages. The victim of the breach was therefore denied its damages, which had been assessed at trial at $1.9 million. But in applying pure theory, Southcott ignored commercial reality and the underlying economic … Continue Reading