to separating. After separation, the wife
returned to Manitoba and the husband
remained in Quebec. The wife pursued her
application for support under the Act,
which was not yet in force in Quebec, thus
requiring her to obtain a provisional order.
The motion judge refused to make a provisional support order because, as a common-law spouse, the wife had no right to
seek support from the husband under
HELD: Appeal allowed. The effect of
the motion judge’s order, contrary to the
purpose and intent of the Act, was to prevent the wife from having the same
prompt access to a hearing in the husband’s jurisdiction that she would have
had if she had not required a provisional
order. When making a provisional order
under subs. 7(1) of the Act, the Manitoba
court could only take into account the
legal authority on which the claimant’s
application for support was based. It was
only the order made by the confirming
court in the respondent’s jurisdiction that
could create substantive rights and obligations. The Manitoba court was not
required to take judicial notice of the law
of a reciprocating jurisdiction, even in
those circumstances where a provisional
order was required. Only the Quebec
court could determine how the provisions
of its own law should be applied.
Lei v. Kwan,  M.J. No. 347,
Man. C.A., per Scott C.J.M. (Chartier
and MacInnes JJ.A. concurring), Nov.
22/10. Digest No. 3032-017 (Approx.
LACK OF INDEPENDENT LEGAL
ADVICE – Officer and director of company not required to obtain independent legal advice when guaranteeing
Motion by plaintiff bank for summary
judgment against defendant company on
its indebtedness to the bank on a line of
credit and against the defendant D on
his personal guarantee of the company’s
debt. The company did not dispute the
amount owing but claimed that the
bank, by oral agreement, changed the
loan agreement so that it was no longer
due on demand. The bank issued a written demand for payment to the company
and the guarantor. The guarantor argued
that he did not receive independent legal
advice before signing the guarantee and
the documents were not reviewed or
explained to him.
HELD: Motion allowed. The contract
between the parties made it clear that any
amendments were required to be in writ-
ing and signed by both the bank and its
customer. No such written agreement
existed here, and there was no evidence
that defendants ever requested that the
alleged oral agreement be reduced to
writing. The company’s position that the
bank agreed to allow the money to be
repaid over time and would always
accommodate the company’s cash flow
lacked an air of commercial reality and
was not supported by the written agree-
ment between the parties. As an officer
and director of the company, D was not
required to obtain independent legal
advice. There was no evidence that he was
subject to any undue influence or fraud
prior to signing the agreement.
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– Court rejected plaintiff’s application
for interlocutory injunction to restrain
defendant from breaching distribution
agreement because the claim could by
compensated in damages.
Application by plaintiff for an interlocutory injunction to restrain defendant
from breaching exclusive territorial and
customer rights found in an alleged agreement between the parties. Plaintiff was
one of the largest Canadian distributors of
adult sex toys. Defendant was the inventor
and maker of the “We-Vibe”, a sex toy. The
parties did not dispute that plaintiff
enjoyed exclusive distribution rights for
the We-Vibe pursuant to a “mainstream
agreement”, which permitted it to distribute the We-Vibe in Canadian food and
drug stores. At issue was an alleged agreement to exclusively distribute the We-Vibe
to the adult or sex toy industry market.
Defendant denied there was such an
HELD: Application dismissed. Plaintiff’s principal C deposed that the adult
agreement was signed by her on Nov. 3,
2009 and sent to defendant’s principal, W.
W stated that there was no agreement concluded between the parties. The agreement which C signed appeared to be a
draft agreement requiring further negotiation. By its terms it was non-exclusive.
Critical issues remained unresolved. The
parties agreed that there was a serious
question to be tried. Plaintiff was effectively seeking a mandatory injunction.
However the plaintiff failed to establish a
strong prima facie case. The specific calculations supplied by plaintiff proved that
the action, if successful, could be compensated in damage. Loss of sales and market
share did not represent irreparable harm.
Cancellation of orders was a looming
threat to defendant’s business. The balance of convenience favoured defendant.
Cana International Distributing Inc.
(c.o.b. Sexy Living) v. Standard Innovation Corp.,  O.J. No. 4919, Ont.
S.C.J., McKinnon J., Nov. 18/10. Digest
No. 3032-019 (Approx. 6 pp.)
it was incumbent on him to make the
determinations of law arising from those
undisputed facts. C Inc. was not an owner
of the vehicle within the meaning of subs.
2(ak) of the Motor Vehicle Act (N.S.). Subsection 2(ak), when read in light of s. 248,
did not impose any liability on the owner of
a motor vehicle. It was simply a provision
relating to the onus of proof of liability. The
lease plainly fell into the lease with right of
purchase exception to the definition of
“owner”. C Inc. was not vicariously liable
for the negligence of JG. There was no
common law of vicarious liability between
the owner of a vehicle and its driver. The
fact that the vehicle was subject to the lease
did not change the basic relationship
between C Inc., the owner of the vehicle at
common law, and JG, the driver.
Gilbert v. Giffin,  N.S.J. No.
611, N.S.C.A., per Farrar J.A. (
MacDonald C.J.N.S. and Saunders J.A. concurring), Nov. 25/10. Digest No. 3032-020
(Approx. 12 pp.)
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VICARIOUS LIABILITY – Owner of
vehicle not vicariously liable for negli-
gence of the driver of the vehicle.
Appeals from summary judgment
dismissing the action against respondent C Inc. Appellants were involved in a
motor vehicle accident. JG was driving a
vehicle leased from C Inc. at the time of
the accident. PG sued JG, her insurer
and C Inc. for compensation in respect
of injuries she sustained in the accident.
PG alleged that C Inc. was vicariously
liable for JG’s negligence.
HELD: Appeals dismissed. The chambers judge did not err in determining that
there were no material facts in dispute and
GIFTS – Court found that moneys
advanced to defendants to purchase
property not intended to be a gift.
Application for summary judgment
that property was being held in trust for
plaintiffs. Defendant NC was the daughter-in-law of plaintiffs. Defendant AC was
her son and grandson of plaintiffs. Plaintiffs’ son had abandoned NC after 25
years of marriage. She was left destitute
and was going to lose her home. AC
decided that he would purchase a home,
but did not have the credit history necessary for a mortgage. Plaintiffs offered to
be guarantors. However, the bank would
not accept that proposal because they
were not Canadian citizens. Plaintiffs
decided to advance $230,000 to AC for
the purchase. They raised the funds by
re-mortgaging their own home. Plaintiffs
submitted that the parties agreed defendants would make the monthly mortgage
payments on plaintiffs’ home and that the
loan would be repaid within one year,
once AC established enough credit for a
mortgage. Defendants claimed that the
money was advanced as a gift and plaintiffs reneged on the gift and started
demanding payment after AC was charged
with assault. The mortgage advisor testified in support of plaintiffs’ position. NC
sent many emails to plaintiffs in which
she acknowledged defendants’ duty to
repay the loan.
HELD: Application allowed. The presumption of advancement did not apply as
AC was an adult. NC’s evidence in relation
to the moneys being a gift was entirely
unreliable. She had initially agreed with
plaintiffs’ position but had changed her
story to help her son. The claim the moneys were advanced as a gift was entirely
inconsistent with the correspondence
between the parties and evidence from the
mortgage advisor. The loan was consistent
with plaintiffs’ original plan to be guarantors and with their financial circumstances. They could not afford to make
such a gift and it was inherently implausible that they would do so. A resulting or
constructive trust was declared over the
property in favour of plaintiffs’, and they
were granted a writ of possession.
Church v. Church,  O.J. No.
4921, Ont. S.C.J., Lauwers J., Nov.
18/10. Digest No. 3032-021 (Approx.