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COMM 393 (60)

COMM LAW 393 Case Briefs

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COMM 393
Deborah Meredith

1 Liebmann V. Canada (Minister of ational Defense) Facts: Liebmann applied for the position of Executive Assistant to the Commanding Officer in the Persian Gulf Operation. Staff Officers recommended he be appointed and the Commanding Officer agreed. When command staff became aware that Liebmann was Jewish they decided not to select him. Liebmann challenged the decision, as well as CFAO 20-53 (an enactment for which the decision was based upon) under s. 15 of the Charter. Issues: 1. Should the court consider the constitutionalityof CFAO 20-53? 2. Does the Charter apply to the decision not to appoint Liebmann? 3. Were Liebmanns equality rights under s. 15 of the Charter infringed? 4. Could infringement be justified under s. 1 of the Charter? Decisions: 1. The court should not consider the constitutionality of CFAO 20-53 2. The Charter does not apply to the decision not to appoint Liebmann 3. Liebmanns equality rights under s. 15 of the Charter were infringed 4. The infringement could not be justified under s. 1 of the Charter Reasons: 1. CFAO 20-53 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 made. CFAO 20-53 was not relevant to the action before the court and thus should not be considered. 2. The Charter applies to decisions made under delegated statutory authority. The decision regarding Liebmann was made under the authority delegated by the National Defense Act and is thus under the authority of the Charter. 3. 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 demeaned. 4. The respondents did not show that it was reasonable to discriminate against Liebmann because he was Jewish. Legal Principles: The Charter applies to decisions made under delegated statutory authority Infringement 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 demeaned 2 Montane Ventures Ltd. V. Schroeder Facts: Montane Ventures (plaintiff) entered into a contract for the purchase of land from Mr. Frank Schroeder (defendant.) After meeting all negotiated requirements to satisfy the leasehold agreement, the plaintiffs agent inquired, via fax, as to whether additional (separately negotiated) considerations might be provided. On 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 price. The defendants argument is that this is valid, on the grounds that the inquiry amounted to rejection and counter-offer, thereby terminating the original offer and agreement. Issues: 1. Does the addendum (the inquiry) constitute a rejection/counter offer to the original agreement? 2. If this does not constitute rejection/counter-offer, should specific performance for the original agreement be awarded to the plaintiff? Decisions: 1. The addendum did not constitute rejection/counter-offer to the original agreement, but rather confirmation regarding a prior oral conversation. 2. Due to the circumstances of the contract (that it be for sale of land) specific performance will be awarded. Reasons: 1. Adequate evidence was provided that the defendant discussed the matters of the inquiry with the plaintiffs representative while meeting all pre-negotiated commitments. Since 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 terms. 2. Seeing that the dispute involved the sale of land, specific performance is the proper award for damages to the injured party. Legal Principles: Inquiring 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 counter-offer Specific performance will normally be awarded to the injured party, at their request, when the dispute involves the sale of land 3 Rudder V. Microsoft Corporation Facts: A 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 (OSC.) The 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, WA. The plaintiffs claim that, as they were not aware of this clause when agreeing to the service, they should not be bound by its terms. Issues: 1. If the plaintiffs did not knowingly consent to the forum selection clause, should they be bound by its terms? 2. Should the OSC forcibly override this clause to ensure fair and equitable justice is served? Decisions: 1. The plaintiffs will be effectively bound by the terms of the clause. 2. The OSC will not overrule the clause, and a permanent stay will be granted to the defendants. Reasons: 1. 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 terms. As 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 fine-print that is not effectively communicated to the parties.) 2. There is no evidence that the courts in King County, WA will rule in a biased or inequitable fashion. Furthermore, 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 borders Legal Principles: Legally defensible exemption clauses will bind parties to all terms and conditions provided within the clause (where defensible means that the clause has consideration) 4 Hong Kong Bank V. ew Age Demographics Facts: Ms. Margaret Chronister (defendant) made a personal guarantee on the loan of funds to her husbands company, New Age Demographics, provided by Hong Kong Bank of Canada (HBC, plaintiff.) The company could not repay the debts outstanding, and subsequently defaulted on the loans. The defendant, who is thus held liable on the debt due to her signing of the loan guarantee, claims that the guarantee is unenforceable (as it provides no direct benefit for her, and therefore has no consideration.) This motion is by the plaintiffs seeking enforcement of the guarantee for repayment of the loan plus applicable interest. Issues: 1. Does the signing of the contract without an affixed wafer constitute signing under seal? 2. Is there consideration for the guarantee? Decisions: 1. The contract is effectively signed under seal. Her argument was that it was not sealed. She did sign though and court, taking from precedent decisions, said it was signed under seal. 2. Consideration was given to Ms. Chronister for her signing on the guarantee. Reasons: 1. Contracts which state that they are under seal and are notable of this condition will be held to be under seal, even in the event that the formal seal has not be placed on the document when signed. 2. Referring to the Bank of Nova Scotia v. Hallgarth et al (1986) consideration does not necessitate that benefits arise directly to the contracting party. If a benefit is provided to a third party (in this case the plaintiffs husband) to the detriment of the promisee (in this case HBC) then there is cause for consideration in the promisor (Ms. Chronister)s guarantee. Legal Principles: There may be consideration for a partys promise even when there is no direct benefit to the party as a result of the promise. All that is required is that the other party to the contract (promisee) makes a sacrifice resulting in a benefit for some party designated by the promisor. When contracts are signed under seal, there is no need to establish consideration for promises of the agreement.
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