MANDATES 

Piec vs. Caisse deconomie polonaise (p. 59) 

 

 

 

 

 

 

 

 

 

Grandma = Stephania Wojcicka 

Bad Boy = nephew Tadeusz Wojcicki 

Niece (Margaret Wojcicka) is executor of will 

 

 

Facts 

. Three mandates: 


1. Gma goes on extended trip, gives power of attorney for banking matters to Bad Boy 


2. Niece has mandate as executor of the will (mandate only kicks in when Gma dies) 


3. Bank has mandate for Gmas finances 




. Grandmas bank account summary: $5 membership, $1k term deposit, $26k term deposit 
(cant take out until 26-Oct-92 or wil receive no interest) 


. Bank didnt k6now Gma was dead when Bad Boy removed funds 




Question 

1. Was bank guilty of not [2138] exercising prudence and diligence for its [2130] mandate? 

Ratio 

1. Argument: Bank is a special type of agent, v. strong fiduciary duties; if theyve been 
defrauded they are 100% liable. Answer: Bank should have been more [2138] prudent and 
diligent; it wasnt prudent cash out the account, and the bank wasnt diligent in its duty as 
agent to let funds be taken out before interest accrued. 

Decision 

Bank guilty, has to pay missing funds to estate 



 

Bad Boy 
comes to 
Canada 

15-May-92 

Bad Boy 
gets mandate 
from 
Grandma 

11-Aug-92 

Bad Boy 
gives forged 
mandate to 
bank 

03-Jul-92 

Grandma dies

01-Jul-92 
Date of Bad 
Boys forged 
mandate 

18-Aug-92 

Bad Boy 
withdraws 
$26k payable 
too cash 



MANDATES 

Dowell vs. Notary Hay-Ellis (p. 64) 

 

Joseph: bad credit 

Dr. Dowell: good credit, so owns building for Joseph 

Notary Hay-Ellis: not paying attention to pay-outs for building maintenance 

 

 

 

 

 

 

 

 

 

 

Facts 

. Dr worried about paying for his insurance, etc. so gives mandate to J to pay for mortgage 
(from Drs money held with notary) 


. Dr says your mandate is to make sure only administration us done 


. But J spends money (released by Notary) without heeding his mandate 


. Notary releasing money to J because notary says its really Js money 


. Dr says it doesnt matter, Notarys mandate was to give money to J to pay for 
administration 




Question 

1. Was notary guilty of not [2138] exercising prudence and diligence for his [2130] mandate 
from the Dr? 

Ratio 

1. Argument: notary says its really Js money, so he could release the Drs funds to J 
whenever J wanted. [p. 68, last sentence] Notary must exercise his duties with prudence 
and diligence. Answer: Notarys mandate was to release Drs money only for building 
expenses, so notary was not diligent when releasing funds to J for amounts that clearly 
werent for the building 

Decision 

Notary guilty, has to pay improperly paid out funds back to Dr 



 

How the notary could have protected himself from liability in this situation (p.69): 

. Notary didnt make attempts to verify what Joseph was doing with the money, didnt 
request invoices for the cheques he gave to Joseph 


. Thus notary fell far short of the standard of conduct required by law as an agent 


. Had the notary required invoices, and checked them over even briefly, he would have 
noticed they were not for the building maintenance; then he would have not paid out 
the money/ stopped paying out the money, fulfilled the conditions of his mandate, and 
not been liable 




$ 

J has money, cant go bankrupt 
or lose his money, so 

Sells building 
to Dr 

(J really owns it, but looks 
like Dr owns it on paper) 

Dr mortgages it, gives 
$900k to notary for expenses

J gets money from Notary 
for upkeep of building 



MANDATES 

146400 Canada Inc. vs. Network Transport Ltd. (p. 70) 

 

 

 

 

 

 

 

 

 

Facts 

. [2137] tacit acceptance of lease contract: offer to lease + move in = lease contract (even 
thought nothing was signed) 


. Bates (president of Network Transit Limited) says lease contract between NT-QC and 
146400 (bankruptcy of NT-QC means rent owing to 146400 will ~go unpaid) 


. 146400 says NT-QC was set up to defraud 




Question 

1. Did Bates set up company to defraud 146400 of rent money? 

Ratio 

1. Argument: Bates faked that company was profitable (fraud); Judge says that principle 
place for NT-Can in QC is at NT-QC address; companies guarantee each others debts; 
annual reports are identical, both represented by Bates. A company is its own person, Bates 
didnt treat it as such. Answer: [317] says you cant set up a company to defraud a third 
party, Bates did, so as the shareholder hes personally liable for unpaid rents 

Decision 

Bates has to pay rent owing 



 

 

05-Mar-90 

Network 
Transport 
Ontario 
signs letter 
of intent: 

01-Aug-90 

5-year offer 
to lease to 
Network 
Transport 

07-Mar-94 
Network 
Transport 
Quebec 
files for 
bankruptcy



CONTRACTS 

Giroux vs. Malik (p. 86) 

 

 

 

 

 

 

 

 

 

 

Facts 

. Malik informed agents in 1992 and 1995 sales attempts about issue with building on the 
land C the land never sold 


. Malik less forthcoming with issues in 1999 selling attempt 


. Giroux says didnt know he couldnt build, now hes out $40.5k purchase price, had to buy 
another house (already sold old house), had problems getting kids in school 




Question 

1. Did Giroux know ahead of time that the land was bad? 

2. If not, was contract still formed? 

3. Are damages allowed? 

Ratio 

1. Answer: judge says no, Malik didnt tell Giroux (based on evidence presented) 

2. Argument: Malik had the obligation to tell, [1375] conduct himself in good faith. Girouxs 
consent was [1401] vitiated by Maliks silence on the building issues. Answer: [1407] 
contract can be annulled or ratified with reduced obligations. Via [1419] relative nullity, 
contract was cancelled. 

3. Answer: Contact vitiated by fraud so [1407] damages allowed 

Decision 

Malik and Giroux placed in their [1422] pre-contractual state (Malik gets land back, Giroux 
gets money back), damages awarded to Giroux for great stress and inconvenience 



 

Red herring: agency issue 

. If Malik told his agent, then agent and Malik are responsible. 


. If Malik didnt tell his agent, then Malik is still responsible 


. Either way, Malik is responsible 




 

13-Jul-88 
Malik buys 
property , 
plans to 
build house 

19-Sep-88 
gets report 
that says 
cant build 
on property 
because of 
septic system 
issues 

1992 Malik 
tries to sell 
property but 
cant 

1995 Malik 
tries to sell 
property 
again but 
cant 

28-Jun-99 
Malik puts 
up for sale 
again, 

29-Dec-99 
Giroux 
signs papers 
to buy 

13-Jan-00 
Giroux finds 
out they cant 
build on site 
without 
spending >>$ 
for special 
consturction 



CONTRACTS 

Peter vs. Fiasche (p. 93) 

 

Mrs. Peter (AKA Mrs. Gucciardo) buys restaurant for herself and her husband 

 

Facts 

. Gucciardo and Fiasche are longtime acquaintances 


. Gucciardos losing his job, hears that Fiasche is selling his restaurant 


. Gucciardo mortgages his house to buy into restaurant , Fiasche says his restaurant makes 
money with a special scheme, shows Gucciardo the scheme (faking receipts to show 
lower income and pay less taxes) once $100k deposit received 


. Tax auditor visits restaurant while Gucciardos taking over, Fiasche says dont worry shes 
just there to check cash register 


. Gucciardos losing money from onset, Fiasche says dont worry, will pick up but business 
never does 


. Gucciardo sues 




Question 

1. Should contact be annulled because consent vitiated by Gs error? 

2. Does contract exist? 

3. Should G receive damages? 

Ratio 

1. Argument: Gs consent was [1400] vitiated by the error of believing Fs claims about 
inflated income Answer: The error of Gs believing Fs claims was inexcusable because of 
conscious wrongful choice (theres no way he didnt know that tax evasion was the root 
cause of this special scheme for >> income than shown on the financial statements), and 
[1400] only excusable errors can result in vitiation of consent 

2. Argument: The [1410] cause of the contract (reason why Gs contracting) is to buy a 
restaurant and make money through illegal tax evasion Answer: [1411] an illegal contract is 
null, so its as if [1418] there never was a contract in the first place (absolute nullity) 

3. Answer: contract never existed, therefore no obligations were produced under the contract, 
therefore no damages 

Decision 

Judge says the contract never existed, but requires Fiasche to pay back the $100k* 



 

*A judge can do two things when a contract has been annulled: 

#1: Act in equity (in fairness): Theres no 
contract, but its not fair to leave Fiasche 
with the restaurant and Gucciardos $100k, 
so F must give the $100k back 

#2: Dismiss the plantiff and defendant and 
et them do whatever they want to settle it 



 

(p. 103: the trial judge has a wide discretion to grant or deny restitution as he or she sees fit) 

 

 

Inexcusable error (p.100) 

. error was inexcusable since Gs misperception of reality arose from closing his eyes to 
the risk he was running 


. conscious wrongful choice 




 

 


CONTRACTS 

Carrefour Langelier vs. Cineplex Odeon Corp. (p. 106) 

 

About performance of contract, how do we enforce performance of contract? 

 

Facts 

. Langelier (lessor) contracts with Cineplex (lesee) (first contract: lease) 


. Cineplex contracts with Guzzo (second contract: sub-lease) 


. Before sub-lease can occur, have to tell the landlord, but the landlord wanted Cineplex 


. Guzzo offered to run it as Cineplex, with obligation to continuously operate as a Cineplex 
Odeon 


. One year later, Guzzo takes down Cineplex signs and puts up Guzzo signs 


. Landlord says no, must remain Cineplex Odeon 


. Guzzo says no damages by operating as Guzzo instead of Cineplex, so landlord shouldnt 
worry 


. Landlord says specific performance, Guzzo said it would specifically perform as 
Cineplex so now must do it 


. Guzzo says no, landlord goes for an injunction 




Question 

1. Should the contract be annulled? 

2. Guzzo says not a case [1601] which admits of specific performance (because no damage) 

Ratio 

1. Argument: Guzzo says it was under duress when signed, was fearful, and consent was 
[1403] vitiated by fear, so contract should be [1418] annulled. Answer: Judge says no more 
fear experienced than any other business (subjective not objective fear) so [1403] cant be 
used to vitiated consent 

2. Argument: Specific performance is not allowed when: 

i. Obligation has become impossible to perform (e.g. snow shoveller has a stroke, so 
cant continue) 


ii. The time in which to perform the obligation has elapsed (e.g. a Celine Dion concert, if 
she refuses to perform for some reason, once the concert date/time has passed its too 
late) 


iii. The property has perished (e.g. ship sunk at sea) 


iv. The property has left the patrimony (e.g. no longer own the Lada) 




Answer: 

i. Impossible means absolutely impossible, therefore not applicable here 


ii. Time elapsed? No, because lease = successive performance 


iii. Property perished? No 


iv. Property left patrimony? No 




Therefore case does admit specific performance of the obligation. 

Specific performance is a remedy separate from that of reparation C thefore do not need to 
prove damages to get a permanent injunction, only need to prove only need to prove the 
obligation promised must be performed & specific performance is admitable 

Decision 

Injunction granted, Guzzo must operate as Cineplex Odeon 



 


CONTRACTS 

Copiescope vs. TRM Copy Centers (p. 115) 

 

Facts 

. TRM got an interlocutary injunction against Copiescope to prevent Copiescope from 
encroaching on TRMs business (placing photocopiers in convenience stores, etc.) 
because of a non-competition clause TRM made the business owners sign; TRM said stop 
bothering my clients 


. Copiescope appeals the injunction 




Question 

1. Is a clause of the contract [1437] abusive and therefore to be annulled? (for consumer and 
adhesion contracts) 

Ratio 

1. Argument: contract is one of [1379] adhesion (business owners couldnt negiotiate terms), 
and non-comp clause is [1437] abusive because likely no real trade secrets and conditions 
for business-owners too strict. Answer: excessive non-comp clause means [1437] the clause 
is annulled, so the non-comp clause falls too because it hinged on this abusive portion; and 
since the injunction was based on the non-comp clause there are no longer grounds for 
injunction without the clause 

Decision 

No apparent right for injunction and appeal is successful (Copiescope can sell again) 



 

Note: not the same type of non-competition clause we saw in employment law 

. Business non-comp clauses also have regional, type, time, business restrictions, but are 
generally for longer periods of time 





CIVIL LIABILTY (AKA PERSONAL INJURY) 

Harris vs. Ostromoglilski (p. 124) 

 

Facts 

. H rents a cab from 0 


. There was an altercation when H went to Os house to pay the rent for the cab 


. H says O beat the crap out of him 


. O says that H slipped and fell 


. H is suing for damages 




Question 

1. Is there fault? 

2. Is the cause immediate and direct? 

3. Is there damage? 

4. Are there compensatory damagers paid? 

5. Are there punitive damages paid? 

Ratio 

Argument: 

1. Judge believes that O did beat up H (significant injuries indicate more than a slip and fall), 
and its a fault (breach of law) to beat someone up 

2. Injuries are immediate and direct cause of beating 

3. Yes = damage 

Answer: [1457] All three therefore there is civil liability 

4. [1457] H received compensation for bodily, moral, and material damages 

5. [49] (p.6) says potential for punitive damages when illegal and intention action, so 
punitive damages warranted in this case C but O already punished in criminal trial, so [1621] 
no need for punitive1 damages 

Decision 

O pays H compensatory damages (not punitive) 



 

 

Note: 

 

Criminal trial has two stages: 

1. verdict (guilty or not guilty) 

2. sentencing (from $0 to $X fine, and/or jail time 

o O was sentenced to jail time, his punishment that prevented H from 
receiving punitive damages 




 

 

 

1 Punitive AKA exemplary damages 


CIVIL LIABILTY (AKA PERSONAL INJURY) 

Walker vs. Singer (p. 128) 

 

Walker = man 

Singer = woman 

 

Facts 

. Walker meets Singer , moves in with Singer 


. Singer destroys Walkers clothes, steals some ties and socks 


. Walker sues Singer (criminal complaint) 


. Singer found guilty but receives no fine/sentence 


. Singer makes up story that Walker sexually assaulted her, 


. Walker gets charged with sexual assault 


. Judge doesnt believe Singer 


. Walker found not guilty 


. Walker sues Singer in Civil Liability court for: 


i. Material damages (clothes) 


ii. Moral damages (reputation) 












Question 

1. Is there fault? 

2. Is there damage? 

3. Is the cause immediate and direct? 

4. Are there compensatory damagers paid? 

5. Are there punitive damages paid? 

Ratio 

Argument: 

1. Fault = false accusation 

2. Damage = every time Walker starts dating he must reveal sexual assault charge to woman, 
ends relationship 

3. Cause = her lie, its the immediate and direct cause of the damage 

Answer: All three therefore [1457] civil liability 

4. [1435] Compensation for moral damages 

5. Punitive damages warranted per [49] and awarded because no punishment in criminal 
case (no sentence/fine) 

Decision 

Singer pays Walker compensatory and punitive damages 



 


CIVIL LIABILTY (AKA PERSONAL INJURY) 

Farmakis vs. Canadian Tire (p. 134) 

 

Facts 

. Farmakis retires in Greece 


. Hes renovating his home, and after ~1.5 hours of renovations her falls and cracks his heel 


. Comes back to Canada for medical treatment 


. 1.5 years later, ships ladder back to Canada 


. Expert examines ladder, says theres a pre-purchase defect 




. Farmakis sues 




Question 

1. Was there a defect in the product? 

2. Was there sufficient indication of attendant dangers of using ladder? 

Ratio 

1. Argument: expert says ladder was defective when it was purchased. Answer: no way to 
prove the defect was pre-purchase after years of ownership and globe-trotting undergone by 
ladder 

2. Argument: Farmakis says there werent [1469] sufficient warning labels on ladder, 
claimed there originally were three stickers, but only kept two of them. Ladder displays 
evidence of there being four labels originally (four areas where there was adhesive C looked 
like there were four stickers) Answer: four labels indicates it appears there[1473] was 
sufficient indication of dangers and Farmakis known or could have known about these 
dangers 

Decision 

Farmakis loses suit C no damages awarded 



 


CIVIL LIABILTY (AKA PERSONAL INJURY) 

Walford vs. Jacuzzi (p. 138) 

 

Facts 

. Family buys a 4-foot deep above-ground pool and then a 10-foot slide 


. Mom warned her daughter not to go down the slide face-first 


. Girl slides down head-first and breaks her neck, became a quadriplegic 


. Girl sues Jacuzzi because didnt warn you couldnt put a 10-foot slide in a 4-foot pool, 
sues Pioneer because didnt advise not to put the slide and pool together 




Question 

1. Is there a fault? 

2. Is the fault direct and immediate cause of the damage? 

Ratio 

1. Answer: Fault = daughters, sliding down head-first (shes [1473] endowed with reason, 
so she should know better and heed her mothers warnings) 

2. Answer: Daughters fault was the immediate and direct cause of the damage 

(There was also fault on the part of Jacuzzi because there didnt warn, but this was not the 
direct and immediate cause of the injury C the girls fault was the direct and immediate 
cause) 

All under [1457] 

Decision 

not guilty C no damages awarded 



 


CIVIL LIABILTY (AKA PERSONAL INJURY) 

Morse vs. Cott Beverages (p. 139) 

 

Facts 

. Girl cant twist cap off of 2-litre pop bottle, so 


. She uses a nutcracker to open it 


. Cap hits her in the eye, she loses consciousness 


. Experiences significant damage to eye, lasts for a prolonged period of time 


. She hires a lawyer, lawyer takes a look at Cotts capping process, finds that: 


. Cott has a manual on appropriate capping regulations (says dont cap at >15 
lbs of torque) 


. Cott changed from recommended 13lbs to 20lbs to avoid spoilage (at 13lbs, 
caps were popping off in storage, raised the torque to prevent this spoilage) 




. Girl sues 




Question 

1. Was there fault 

2. Was there damage 

3. Was the fault the direct and immediate cause of the damage? 

4. Should there be compensatory damages? 

5. Should there be punitive damages? 

Ratio 

Answer: 1. fault = not following recommended way to use machine, 2. yes damages, 3. yes 
the fault was the direct and immediate cause of the eye injuries. All under [1457] 

4. [1457] Compensatory damages for bodily injury 

5. Section 28(1) of Consumer Products and Warranties act says can collect punitive damages 
if willful and knowing violation of act, this is the case for Cotts so damages awarded 

Decision 

Compensatory and punitive damages to Morse 



 


