cases summary-6.doc

36 Pages

Course Code
BUSI 393
Barbara Cox

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1Liebmann V Canada Minister of National DefenseFactsLiebmann applied for the position of Executive Assistant to the Commanding Officer in the Persian Gulf OperationStaff Officers recommended he be appointed and the Commanding Officer agreedWhen command staff became aware that Liebmann was Jewish they decided not to select himLiebmann challenged the decision as well as CFAO 2053 an enactment for which the decision was based upon under s 15 of the CharterIssues1 Should the court consider the constitutionality of CFAO 20532 Does the Charter apply to the decision not to appoint Liebmann3 Were Liebmanns equality rights under s 15 of the Charter infringed4 Could infringement be justified under s 1 of the CharterDecisions1 The court should not consider the constitutionality of CFAO 20532 The Charter does not apply to the decision not to appoint Liebmann3 Liebmanns equality rights under s 15 of the Charter were infringed4 The infringement could not be justified under s 1 of the CharterReasons1 CFAO 2053 was not the reason that Liebmann was not permitted to serve in the Persian Gulf and was not in effect when the decision not to give him the position was madeCFAO 2053 was not relevant to the action before the court and thus should not be considered2 The Charter applies to decisions made under delegated statutory authorityThe decision regarding Liebmann was made under the authority delegated by the National Defense Act and is thus under the authority of the Charter3 Liebmann was treated differently from others based on personal characteristics of the type enumerated in s 15 and there was definite discrimination in a constitutional sense in that his dignity was demeaned4 The respondents did not show that it was reasonable to discriminate against Liebmann because he was JewishLegal PrinciplesThe Charter applies to decisions made under delegated statutory authorityInfringement of s 15 of the Charter occurs if someone is treated differently based on characteristics outlined in s 15 and as a result the persons dignity is demeaned2Montane Ventures Ltd V Schroeder pg 71Relevant Topics 1 what constitutes a rejection or counteroffer 2 Equitable remedies Specific PerformanceMontane VenturesPlaintiffFrank SchroederDefendant FactsM entered into k for purchase of land from FCompletion of agreement subject to M receiving copy of lease Internet Caf and thbeing satisfied w such by Sep 10 99thSep 8 99 telephone conversation bw MF where F agrees to provide final inspection certificates from municipalitythSept 9 99 M forwarded addendum to F as a confirmation of their telephone conversation re final inspection certificatesF takes position that M has repudiatedmade a counteroffer bc addendum constitutes a new consideration as a result F saw it within his rights to cancel prior agreement and substitute for a new contract w a substantially higher priceF sees this as valid on the grounds that the inquiry amounted to rejection and counteroffer thereby terminating original offer and agreementIssues1 Does the addendum the inquiry constitute a rejectioncounter offer to the original agreement2 If this does not constitute rejectioncounteroffer should specific performance for the original agreement be awarded to the plaintiffLawWhether communication constitutes counteroffer or inquiry depends on intention objectively ascertained with which was made Counteroffer amounts to rejecting earlier offer and brings it to an end If Offeror in turn rejects counteroffer the original offer does not reviveInquiriesseeking clarifications does not amount to rejectionSpecific performance will normally be awarded to the injured party at their request when the dispute involves the sale of landApplication1 Adequate evidence was provided that the defendant discussed the matters of the inquiry with the plaintiffs representative while meeting all prenegotiated commitments3Since the addendum did not necessitate a signature or formal acceptance in any manner it cannot be construed as an offer or formal rejection of prior terms2 The inclusion by Mr Jeves in the addendum of sentence re inspection certificates follows from the condition precedent in the original k that Montane must be satisfied w the lease arrangement Therefore it does not seem that the purchasers showed intent different from what the original k stated 3 Seeing that the dispute involved the sale of land specific performance is the proper award for damages to the injured partyDecisions1 The addendum did not constitute rejectioncounteroffer to the original agreement but rather confirmation regarding a prior oral conversation2 Due to the circumstances of the contract that it be for sale of land specific performance will be awardedRudder V Microsoft Corporation pg328RudderPlaintiffMicrosoftDefendantFactsA class action was filed on behalf of two Canadian citizens representing a common class of Canadian subscribers to the MSN Messenger service against the Microsoft Corporation The suit alleges that the corporation engaged in unfair billing practices relating to subscription fees charged to its clients the suit was filed in the Ontario Supreme Court OSCThe defendants have filed for a permanent stay on these proceedings pursuant to a clause in their membership agreement referring all disputes related to the Messenger service to the jurisdiction of King County WAThe plaintiffs claim that as they were not aware of this clause when agreeing to the service they should not be bound by its termsIssues1 If the plaintiffs did not knowingly consent to the forum selection clause should they be bound by its terms2 Should the OSC forcibly override this clause to ensure fair and equitable justice is servedLaw
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