dealt with the issue in a way that min-
imally impaired freedom of expression. In
light of the importance of the protection
and promotion of the equal status of the
French language, the benefits of the bylaw
were proportional to any deleterious effect
on freedom of expression or inconven-
ience suffered.
Galganov v. Russell (Township),
[2012] O.J. No. 2677, Ontario Court of
Appeal, K.M. Weiler, R.J. Sharpe and
R.A. Blair JJ.A., June 15, 2012. Digest
No. 3212-009
NATURAL RESOURCES LAW
AGRICULTURE – Farms – Market-
ing boards – Federal marketing boards.
Appeals by the federal Attorney Gen-
eral and the Minister of Agriculture and
Agrifood from declaratory relief granted
in favour of the Friends of the Canadian
Wheat Board and others. The appeals
were part of a series of legal proceedings
challenging the Marketing Freedom for
Grain Farmers Act. The Canadian Wheat
Board was created to market Canadian-
grown grain. Under the Canadian Wheat
Board Act (CWBA), the Board was
required to buy all wheat and barley pro-
duced in Western Canada. Subject to
limited exceptions, the CWBA prohibited
any other person from buying, selling,
exporting or transporting wheat or barley
between provinces. The CWBA provided
the mechanism for alterations to the
Board’s marketing authority. Under s.
47.1 of the CWBA, the Minister was
required to engage in a consultative pro-
cess with the Board and to gain the con-
sent of producers to fundamental changes
to the established grain marketing pro-
cess. The introduction of Bill C- 18
resulted in the adoption of the Marketing
Freedom for Grain Farmers Act. The new
Act changed the governance structure of
the Board and replaced the current cen-
tralized marketing system with an open
market for grain farmers to sell their
product. The implementation of an open
market would occur by 2017 under a
three phase process. The Board would
operate as a voluntary pooling marketing
agency until 2017, at which point it would
be privatized or dissolved. It was undis-
puted that the Minister tendered Bill
C- 18 without conducting the consultation
and gaining the consent expressed in s.
47.1 of the CWBA. The applicants sought
judicial review of the Minister’s actions.
The Federal Court found that the Minis-
ter failed to comply with his statutory
duty pursuant to s. 47.1, contrary to the
rule of law. The Minister and the federal
Attorney General appealed.
HELD: Appeal allowed. Based on the
legislative history and the context in
which s. 47.1 was enacted, the provision
could not be interpreted in a manner
which precluded the Minister from
introducing legislation which funda-
mentally modified the Board’s mandate
or led to the repeal of the CWBA. The
provision operated to revert to Parlia-
ment the prior limited regulatory
authority of the Governor in Council
concerning exclusions or inclusions of
certain kinds or grades of grains. There
was nothing in s. 47.1 or the legislative
history suggesting that Parliament had
fettered the Minister’s authority to
introduce and recommend legislation to
repeal the substantive provisions of the
CWBA or the Act itself. The Minister’s
comments in the course of the 1998
amendments in support of democratic
producer control did not support entitle-
ment to a veto power over future legisla-
tive changes. Based on the scope of s.
47.1, the repeal of the single marketing
desk or the CWBA in its entirety was not
conditional to obtaining the prior con-
sent of the Board or grain producers.
The principles underlying the long-
standing democratic marketing practi-
ces of the Board and its support by
thousands of grain producers did not
trump the will of a democratically
elected Parliament. It was not estab-
lished that the move to an open and free
market for grain production would run
afoul of Canada’s international trade
obligations. Prior jurisprudence estab-
lished that s. 2(d) of the Canadian Char-
ter of Rights and Freedoms did not
extend constitutional protection to a
marketing monopoly. The new regime
did not restrict the ability of producers
to associate for the purpose of market-
ing or pooling their products.
chase. The contention by Mr. Jhutty that
the disclosure statement was backdated
was implausible. An adverse inference
was drawn from the failure of his wife to
testify. Nonetheless, the disclosure state-
ment was defective by failing to disclose
the intention of the purchaser to resell
the property. It followed that the contract
for purchase and sale was voidable by the
defendants as against Tang. The defend-
ants did not receive sufficient written
notice of the contract for purchase and
sale to the plaintiff and thus the assign-
ment was not enforceable by the plaintiff
against the defendants.
Rakhra v. Jhutty, [2012] B.C.J. No.
1212, British Columbia Supreme Court,
P.J. Pearlman J., June 15, 2012. Digest
No. 3212-011
TORT LAW
REAL PROPERTY LAW
SALE OF LAND – Agreement of pur-
chase and sale – Remedies – Specific
performance – Real estate agents and
brokers – Duty to disclose information.
Action by the plaintiff, Rakhra, for
specific performance of a contract for
the purchase and sale of residential
property owned by the defendants, the
Jhuttys. The defendants rented the prop-
erty to tenants prior to its listing for sale.
Tang was a licensed real estate agent and
the director of Metro-City Projects. He
informed the defendants that Metro-
City was interested in buying their prop-
erty. He provided them with a disclosure
statement indicating that he was the
director of Metro-City and a licensed
real estate agent. The defendants exe-
cuted the contract of purchase and sale
and accepted a $10,000 deposit toward
the purchase price of $299,000. The
plaintiff took assignment of the interest
of Metro-City Projects, paying an assign-
ment price of $9,000 plus an additional
$10,000 to reimburse for the payment of
the deposit. The plaintiff was interested
in acquiring the defendants’ property
and an adjacent property for subdivision
into three lots for his family, and those of
his parents and brother. The defendants
failed to clear title and the transaction
did not complete, leading to litigation.
The plaintiff initially obtained an order
for specific performance. The order was
set aside on appeal and remitted for a
new trial to determine the sufficiency of
the disclosure statement provided by
Tang to the defendants, and the extent to
which the defendants had notice of the
assignment to the plaintiff of the con-
tract of purchase and sale. Actions by the
plaintiff against Tang and Metro-City
were settled.
HELD: Action dismissed. It was con-
sistent with the prevailing probabilities
and Tang’s status as an experienced real-
tor that he followed his usual practice of
presenting the disclosure statement to
the defendants prior to the offer to pur-
NEGLIGENCE – Duty and standard
of care – Dangerous things and situa-
tions – Chemicals – Fire.
Appeal by the defendant, Bellefeuille,
from a judgment finding him liable for a
fire that destroyed a home owned by the
plaintiffs, the Hansens. The defendant
owned a construction business. In
December 2004, he refinished hardwood
floors in the plaintiffs’ home using a
product, Varathane. Shortly after the
application of the product, the house
caught on fire. The plaintiffs alleged that
the defendant was negligent in the use of
the product. The trial involved a battle
between expert witnesses. The trial judge
concluded that the defendant was negli-
gent in applying the product without
providing for ventilation. As a result,
vapours accumulated at the floor level in
the kitchen and ignited through elec-
trical arcing occurring in the normal
operation of the refrigerator. The defend-
ant appealed on the basis that the judge
erred in determining whether the applic-
able standard of care had been breached.
In particular, the defendant submitted
that the judge failed to properly distin-
guish between flammable and combust-
ible products, erred by improperly rely-
ing on a similar case, failed to give proper
effect to the evidence of a floor installer
and refinisher, and erred in admitting
expert evidence concerning the flash
point of Varathane.
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