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393 Case Briefs.doc

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COMM 393

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 SchroederFactsMontane Ventures plaintiff entered into a contract for the purchase of land from Mr Frank Schroeder defendantAfter meeting all negotiated requirements to satisfy the leasehold agreement the plaintiffs agent inquired via fax as to whether additional separately negotiated considerations might be providedOn receipt of this inquiry the defendant saw it within his rights to cancel the prior agreement and substitute for a new contract with a substantially higher offer priceThe defendants argument is that this is valid on the grounds that the inquiry amounted to rejection and counteroffer thereby terminating the 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 plaintiffDecisions1 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 awardedReasons1 Adequate evidence was provided that the defendant discussed the matters of the inquiry with the plaintiffs representative while meeting all prenegotiated commitmentsSince 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 Seeing that the dispute involved the sale of land specific performance is the proper award for damages to the injured partyLegal PrinciplesInquiring as to whether the negotiating party can provide additional considerations to the agreement without explicitly demanding such considerations does not amount to rejecting a current offer or substituting such for a counterofferSpecific performance will normally be awarded to the injured party at their request when the dispute involves the sale of land3Rudder V Microsoft CorporationFactsA 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 CorporationThe 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 servedDecisions1 The plaintiffs will be effectively bound by the terms of the clause2 The OSC will not overrule the clause and a permanent stay will be granted to the defendantsReasons1 The plaintiffs were repeatedly notified of the forum selection clause when registering for the service and by agreeing to this online contract they should be bound by its termsAs law school graduates the plaintiffs should especially be aware that agreeing to the terms of a contract equates to agreeing to each and every term stipulated within the contract bar fineprint that is not effectively communicated to the parties2 There is no evidence that the courts in King County WA will rule in a biased or inequitable fashionFurthermore it will be easier and more efficient to claim any awards that the class may win as a result of the action when the hearings are within Washingtons bordersLegal PrinciplesLegally defensible exemption clauses will bind parties to all terms and conditions provided within the clause where defensible means that the clause has consideration
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