ance of process. Appellant’s testimony was
largely comprised of beliefs, speculation
and animus toward his ex-wife. It did not
touch upon many of the essential elements
of the offences of arson, fraud and perjury.
R. v. Vasarhelyi, [2011] O.J. No.
2238, Ont. C.A., per Watt J.A. (
Feld-man and Rouleau JJ.A. concurring),
May 20/11. Digest No. 3108-012
(Approx. 15 pp.)
FRANCHISES
DISCLOSURE – Defendants failed to
provide proper disclosure to plaintiffs in
breach of the Arthur Wishart Act (Fran-
chise Disclosure) (Ont.).
Action by plaintiffs for damages arising
out of an aborted transaction with defend-
ants. Plaintiff YZF wanted to open a fast
food restaurant in a mall. As he required
help to establish his restaurant, he met
with defendant PF, who operated a fran-
chise business specializing in Jamaican-
themed food. The parties agreed to pro-
ceed with a Grill It Up franchise in a mall
and entered into several agreements,
including a license agreement and an asset
purchase agreement. Defendants subse-
quently provided plaintiffs with a draft
franchise agreement which plaintiffs
rejected. Tension then developed between
the parties, leading to the collapse of their
business relationship. By that time, plain-
tiffs had provided defendants with
$112,390 in deposits. Plaintiffs took the
position that defendants never provided
disclosure as prescribed by the Arthur
Wishart Act (Franchise Disclosure)
(Ont.) and sought return of the deposits as
well as out-of-pocket expenses and dam-
ages for lost income. Defendants took the
position that the parties never entered into
a franchise agreement.
and incorporated appellant as the nominal
purchaser. P Inc. loaned $202,500 to partially fund the purchase. The loan was
secured with a promissory note binding
respondent, F and appellant. F ultimately
purchased respondent’s shares in appellant for $300,000. The share purchase
agreement released appellant from any
claims by respondent. P Inc. demanded
payment on the note and subsequently
obtained summary judgment against
respondent for the full amount of the note.
Respondent obtained an order requiring
appellant to indemnify him against that
liability. The judge found a right of indemnity an implied term of the loan. He found
the release did not extend to a right of
indemnity on the note, as such a right did
not exist at the time the release was executed but only later, when and if respondent paid the debt.
HELD: Appeal allowed. Appellant was
the principal debtor and respondent and F
were sureties. Respondent’s status as surety carried within it a right of indemnity
from appellant, subject to the terms of the
release. The judge erred in interpreting the
release. It was clear on its face that it
released appellant from any claims existing
at the time of its execution. The obligation
of appellant to indemnify respondent
existed when the release was executed.
Having yet to pay the debt, respondent
could not claim he was entitled to indemnity from appellant on equitable grounds.
Piscine Energetics Inc. v. Choi, [2011]
B.C.J. No. 932, B.C.C.A., per Mackenzie
J.A. (Newbury and Lowry JJ.A. concurring), May 24/11. Digest No. 3108-014
(Approx. 6 pp.)
needs with her. There was ample evidence
supporting the trial judge’s finding that
when a renewal of insurance coverage was
required, the broker had a duty to provide
relevant information about the types of
coverage available to the client, to meet any
change in needs that the client might have
had as a result of any changes in his or her
circumstances of which the broker was or
should have been aware.
Beck Estate v. Johnston, Meirer
Insurance Agencies Ltd., [2011] B.C.J.
No. 949, B.C.C.A., per Hinkson J.A.
(Low and Chiasson JJ.A. concurring),
May 26/11. Digest No. 3108-015
(Approx. 12 pp.)
INTELLECTUAL PROPERTY
GUARANTEES
GUARANTORS RIGHT TO INDEM-
NITY – Release entered into between
parties precluded surety from claiming
indemnity from principal debtor.
Appeal from a summary judgment
allowing respondent’s claim as surety for
indemnity from appellant as principal
debtor on a promissory note. Respondent
and F agreed to purchase shares of P Inc.
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INSURANCE BROKERS – Appellant
insurance broker negligent in failing to
discuss changes in insured’s insurance
need following separation from husband.
Appeal from a decision finding appellant insurance broker negligent. The
insured had been murdered by her
estranged husband, who then set fire to her
house, destroying the house and its contents. The husband resided alone in the
former matrimonial home which was
owned by the insured. Appellant had provided insurance coverage to the couple for
numerous years. The insurer of the home
initially declined to indemnify respondent
estate for the loss of the home on the basis
that the loss was occasioned by the deliberate act of the husband, one of the named
insureds, and thus excluded by the policy
conditions. Ultimately the insurer compromised its position by paying part of the
claim for the home. The trial judge found
that appellant failed to advise the insured
of alternate available insurance coverage,
such as a tenant’s policy, that would have
covered the loss occasioned by the husband, thereby breaching its duty of care.
The judge found that upon learning that
the couple had separated, appellant should
have ensured that the current policy still
met the insured’s insurance needs.
HELD: Appeal dismissed. The trial
judge did not err in finding that harm to
the insured’s property was reasonably foreseeable. The insured’s change in circumstances presented a foreseeable new risk to
be considered vis-a-vis her insurance
needs. Upon learning that the insured had
separated from her husband, appellant
ought to have discussed her insurance
TRADEMARKS – Trial judge erred
in finding there was no confusion
between the trademarks registered by
appellant and respondent.
Appeal from a Federal Court of Appeal
judgment dismissing appellant’s application to expunge a trademark registered by
respondent. Appellant, incorporated in
2001, undertook two retirement residence
construction and operation projects in
Alberta and began a third before 2005.
During that time it used its corporate name
as a trade name and used several unregistered trademarks including “Masterpiece
the Art of Living”. In 2005 respondent, also
involved in the retirement residence industry, but operating in Ontario, registered
“Masterpiece Living” as its trademark.
Almost simultaneously, appellant began
using the same trademark. The trial judge
rejected appellant’s application to expunge
respondent’s registration, as he concluded
that there was no likelihood of confusion
between the marks.
HELD: Appeal allowed. Respondent’s
trademark was to be expunged from the
register of trademarks. Geographical separation in the use of confusingly similar
trademarks did not play a role in the test
for confusion as the owner was entitled to
the exclusive use throughout Canada. The
trial judge’s consideration of respondent’s
actual use did not reflect the entire scope
of exclusive rights that were granted
under its registration. It was incorrect in
law to limit consideration to respondent’s
post-application use of its trademark to
find a reduced likelihood of confusion.
Respondent’s “Masterpiece Living” was
closest to appellant’s “Masterpiece the Art
of Living”. It was a reasonable conclusion
that “Masterpiece” was the dominant
word in the trademarks and it was
obviously identical as between the parties.
The idea evoked by “Masterpiece,” high
quality retirement lifestyle, was the same
for both parties. The word “Living” was
also identical as between the marks. Given
those striking similarities it was difficult
not to find a strong resemblance as a
whole between the two parties’ trademarks. Looking at the marks as a whole
and the dominant word “Masterpiece”,
there was little to dispel the consumer
from thinking that the source of the marks
was the same. Because appellant’s use preceded respondent’s proposed use,
respondent was not entitled to registration of its trademark.
Masterpiece Inc. v. Alavida Lifestyles
Inc., [2011] S.C.J. No. 27, S.C.C., Rothstein J. (McLachlin C.J. and Binnie,
LeBel, Fish, Charron and Cromwell JJ.
concurring), May 26/11. Digest No.
3108-016 (Approx. 29 pp.)
