Canada: BLG Monthly Update — September 2011

Last Updated: October 5 2011
Article by Neil Guthrie

Most Read Contributor in Canada, September 2016

The BLG Monthly Update is a digest of recent developments in the law which Neil Guthrie, our National Director of Research, thinks you will find interesting or relevant – or both.


  • Arbitration: Clause restricting appointment of arbitrator to member of Ismaili Muslim community upheld
  • Civil Procedure: Letters rogatory not enforced against Crown corporation
  • Class Actions: Defendants' request for particulars granted, but they have to deliver pre-certification statement of defence
  • Conflict of laws/Intellectual Property: The Star Wars action figures battle is now over
  • Contracts: Lucid judgment from the 7th Circuit affirming that a contract says what it says
  • Damages: Québec CA says punitive damages not to be awarded solidarily
  • Employment Law: Employer can't deny severance payment on basis of snarky e-mail sent on last day at work
  • Employment Law: Look at substance of employment agreement not form, says UKSC
  • Estate Planning/Unjust Enrichment: Gift with strings attached is valid but can't preclude imposition of constructive trust
  • Insolvency: Lehman derivatives transaction did not run afoul of fraudulent conveyance rules, says UKSC
  • Intellectual Property: Single colour probably not subject to trademark protection, says NY court
  • Partnership: Useful review of indicia
  • Personal Property: Be careful what you take to the Antiques Roadshow
  • Personal Property/Conflict of Laws: Domain name is personal property and a 'real and substantial connection' to jurisdiction, says Ontario CA
  • Securities: DC Circuit Court nixes proxy rule requiring inclusion of shareholder nominees
  • Securities: Sophisticated investor's reliance on alleged misrepresentations of adviser not reasonable
  • Torts: New South Wales CA weighs in on material contribution
  • Unjust Enrichment/Corporate Law: Can the unjustly enriched shelter behind the corporate veil?
  • Wills/Estates: ABQB prepared to rewrite will disinheriting adult son


Clause requiring arbitrator to be Ismaili Muslim upheld

The English Court of Appeal declined to uphold an arbitration clause in a joint venture agreement which required the arbitrator to be 'a respected member of the Ismaili community': Jivraj v Hashwani, [2010] EWCA Civ 712 [Link available here]. The court found that this clause violated UK and EU human rights legislation preventing discrimination in 'employment'.

The UKSC has unanimously reversed the Court of Appeal: Jivraj v Hashwani, [2011] UKSC 40 [Link available here]. The Supreme Court held that arbitrators are independent providers of services, not employees; they are not in a relationship of subordination but instead act as quasi-judicial adjudicators of disputes referred to them under contract. The CA took too legalistic a view and was incorrect not to recognise that being of a particular religion or belief can be a relevant criterion for appointment. As a result, the particular clause limiting potential arbitrators to members of the Ismaili Muslim community did not offend employment equity laws.

The arbitration community can breathe a sigh of relief, having feared that the CA's ruling would also preclude clauses restricting appointment on the basis of nationality. Such clauses are frequently used to promote neutrality where there is a sole arbitrator or a panel of three in an arbitration involving multi-state parties.


Letters rogatory not enforced against Crown corporation

In connection with an insurance coverage dispute in New York, Lantheus Medical Imaging (LMI) sought production of documents from Atomic Energy of Canada Ltd (AECL) and the attendance of one its employees at an examination under oath. LMI obtained letters of request from the US District Court which it sought to enforce in Ontario.

Problem: AECL is a Crown corporation. Under the US Foreign Sovereign Immunity Act, the District Court was not competent to issue letters rogatory if it had failed to consider whether sovereign immunity applied to the subject of the request (if immunity applied, the court could not subpoena a foreign sovereign or its agent). LMI contended that AECL's status would have been obvious to the court from the materials that had been filed, including a copy of an access-to-information request LMI had sent to AECL.

Pollak J of the Ontario SCJ disagreed: Lantheus Medical Imaging Inc. v AECL, court file CV-11-00427161 (Ont SCJ, 27 July 2011). There was nothing in the US court order to indicate that it was aware of the jurisdiction and immunity issue. Occasional references in written submissions to AECL as a 'Crown agency' were not enough. It was not proper for the Ontario court to undertake the immunity analysis. LMI's application was dismissed although LMI was free to try again in New York with the proper question.


Defendants' request for particulars granted, but they have to deliver pre-certification statement of defence

The defendants in the Timminco securities class action requested particulars of the plaintiff, which he (like his predecessor plaintiff) resisted. Perell J granted the request in large measure but in his order required the defendants to deliver their statement of defence, in advance of certification:

Pennyfeather v Timminco Ltd, 2011 ONSC 4257 [Link available here].

In the judge's view, it is time to revisit the convention that the delivery of the defence comes after certification; as a matter of case management it would be preferable to have the pleadings closed before that. Doing so would have the advantage of resolving at an early stage any controversies about whether the five criteria for certification are, in fact, satisfied and of foreclosing subsequent challenges to the statement of claim. The statement of defence will threfore be directed to the pleadings of the class representative(s). The goal will be to show the uniqueness of the representative plaintiff's claim.


The Star Wars action figures battle is now over

Lucasfilm Ltd v Ainsworth, [2011] UKSC 39 [Link available here], is about intellectual property rights in the Star Wars action figures which Ainsworth helped to design for Lucasfilm, many decades ago. Ainsworth more recently sold toys (including life-sized stormtrooper helmets) based on the designs over the internet for his own profit. A US court held that this infringed Lucasfilm's copyright.

Lucasfilm sought to enforce copyright claims under UK law and to enforce its US claims in England. The trial judge rejected the former but upheld the latter. The Court of Appeal agreed there was no copyright in the toys in the UK because they were not works of art (sculptures, specifically), but held that Lucasfilm's IP rights were not justiciable in England (absent a treaty on the subject) because they were a purely local matter. The CA also refused to enforce the US damages award (which it clearly found excessive); enforcement is predicated on the principle that the judgment debtor must be present in the foreign jurisdiction when proceedings were instituted. Selling into the US, whether over the internet or by more traditional means, did not constitute presence in the US for this purpose.

By the time the case wended its way to the UK Supreme Court, Lucasfilm claimed rights only in the life-sized helmets. The UKSC upheld the finding that, like the action figures, they were not sculptures and therefore not subject to UK copyright protection. While there was an imaginative element to them, the film for which they were commissioned was the work of art and the helmets were ultimately just utilitarian props for it; ditto the copies being sold by Ainsworth. The UKSC disagreed, however, about justiciability of the US claims in England: as long as the English court has in personam jurisdiction over the defendant, it may determine copyright claims against him or her which arise in a foreign jurisdiction (although there would be no jurisdiction on a question principally concerned with title to or possession of foreign property and perhaps not where the IP rights depend on the grant of a foreign state).

Net result: Ainsworth is free to sell his wares in the UK but not in the US (but presumably faces enforcement of the US damages award in England)[Link available here].


The contract says what its says: lucid judgment from the 7th Circuit

Cemusa Inc., the Delaware subsidiary of a Spanish company, wanted to break into the US market for 'street furniture' (bus shelters, garbage cans and the like). It signed a letter agreement with White Pearl, a Uruguayan sociedad anónima, which agreed to provide strategic advice on RFPs from municipalities and to make introductions, in exchange for $240K deductible from any payments owed by Cemusa under a subsequent long-term agreement. The parties later signed a master agreement which gave WP a 3.75% share in revenues from any contract it helped Cemusa to win. That agreement was terminable on 30 days' notice by either party. Both parties hoped for the issuance of a big RFP from the city of New York.

A month before the New York RFP was issued, Cemusa terminated the master agreement. It went on to win the New York contract. WP, which alleged it had spent $440K on Cemusa's behalf, wanted 3.75% of the value of the contract, alleging a whole range of claims including breach of contract and duty of good faith, estoppel, quantum meruit, unjust enrichment and fraud.

'So what?', said Easterbrook CJ. 'No rule of law entitles every business to a profit on every deal'. The fact that WP performed services after the termination of the master agreement was effectively its own problem and didn't give rise to a quantum meruit claim: WP, 'like the real estate agent fired before a house is listed for sale, is not entitled to more.'

There is also interesting discussion of the status of foreign corporate entitles; don't assume even a UK limited company (much less a Uruguayan sociedad anónima) is the equivalent of a US corporation.

White Pearl Inversiones SA v Cemusa, Inc (7th Cir. 26 July 2011).


Québec CA says punitive damages not to be awarded solidarily

In France Animation SA c Robinson, 2011 QCCA 1361 [Link available here]. the creator of a concept for an animated production based on the novel Robinson Crusoe successfully sued Cinar, its principal Ronald Weinberg, the estate of its deceased principal Micheline Charest, Ravensburger Film, France Animation, and Christophe Izard, the creator and executive producer of a joint Cinar-France Animation series that infringed the plaintiff's rights.

An important aspect of the case is its treatment of the punitive damages that were awarded against Cinar, Weinberg, the Charest estate and Izard: can punitive damages be awarded solidarily (roughly equivalent to the common law's jointly and severally)? Previous Québec authority on point goes in different directions. In Solomon c Québec (Procureur général), 2008 QCCA 1832, [Link available here], it was held that an award of punitive damages cannot be made solidairement by virtue of articles 1480 and 1526 of the Civil Code, which limit solidary awards to circumstances where damages serve the function of 'reparation'. The court in Solomon concluded that punitives serve as punishment, deterrence and denunciation, not reparation. In another decision, Genex Communications Inc. v Association québécoise de l'industrie du disque, du spectacle et du vidéo, 2009 QCCA 2201 [Link available here], the Court had refused to follow Solomon and awarded punitive damages against the co-authors of an intentional act on a solidary basis. Faced with a choice between Solomon and Genex, the Court of Appeal opted for Solomon: it is preferable to individualise punitive damages so as not to even out the liability of the defendants (who may be of differing means) and so as to punish each for the act he or she has committed, in an amount appropriate to the individual.

The Court also ruled that the cap on non-pecuniary damages resulting from a physical injury established by the SCC in its trilogy (Andrews, Thornton and Arnold ) applied to the psychological damages suffered by Robinson, which appears to be the first time (at least in Québec) that the cap has been imposed in a case not involving physical injury.

Guy Pratte, Daniel Urbas and Marc-André Grou of the Montreal office of BLG acted in the appeal for Christian Davin, the former CEO of France Animation, who had been held personally liable by the trial judge. The Court of Appeal overturned this: the judge's inference that Davin had known of the infringement was not supported by the evidence.


Employer can't deny severance payment on basis of snarky e-mail sent on last day at work

Clive Anderson had worked for Culligan of Canada in one capacity or another for 19 years. In December 2007, Culligan informed him that he was being terminated without cause as a result of the economic downturn but offered a lump sum severance payment of $25,000. Anderson accepted the offer. Towards the end of his last day on the job, Anderson sent an e-mail to all or most of Culligan's franchise dealers and the managers of its company-owned outlets, thanking them for their support, and saying that while he bore the company no ill will he regretted the lack of support it offered to dealers and managers.

Culligan found out and denied Anderson the severance pay, alleging that he had breached his duty of good faith, defamed the company and repudiated the severance agreement.

Dufour J of the Saskatchewan Court of Queen's Bench held that Anderson's e-mail was 'nothing more than a snarky, parting shot from a mid-level employee who had been pushed out the door'. Because this would not have been grounds for dismissal for cause, Anderson's conduct did not constitute repudiation of the severance agreement and Culligan had to pay up the $25,000 plus an amount for loss of his bonus.

Anderson v Culligan of Canada Ltd, 2011 SKQB 188 [Link available here].


Look at substance of employment agreement not form, says UKSC

The claimants in Autoclenz Ltd v Belcher, [2011] UKSC 41 [Link available here], entered into contracts with Autoclenz, which provided car-cleaning services to vehicle retailers and auctioneers. The agreements with Autoclenz went to some lengths to describe each individual claimant as being self-employed. The claimants disagreed, saying they were employees of Autoclenz and thus 'workers' eligible for minimum wages and other statutory benefits.

The Employment Tribunal, the English Court of Appeal and the UK Supreme Court all agreed with the claimants. However they were described in their contracts with Autoclenz, they had no control over what work they would perform, their hours or pay, and were subject to the direction and control of Autoclenz or its customer. Protestations about self-employment simply bore 'no practical relation to the reality of the relationship'.


Gift with strings attached: valid as gift but can't preclude imposition of constructive trust

John McNamee founded a successful trucking business. In 1988, he implemented an estate freeze to ensure that future capital gains from the business would accrue to his two sons, to whom he transferred shares in the business. All the usual stuff. What was unusual was that Mr. McNamee kept control of the business by retaining voting preference shares (non-voting prefs would be usual) and had a right to unlimited dividends at any time (thereby allowing him to strip the company of all value if he wanted to). Having been through a divorce, he also wanted to ensure that the shares and any income from them would remain each son's separate property and would not form part of net family property under the Family Law Act (FLA) if a son's marriage broke down. These terms were set out in a declaration of gift, but neither this nor the details of the estate freeze were made known to McNamee's son Clayton, who thought he had an equal 1/3 interest in the business with his brother and father.

Clayton's marriage broke down – by all accounts relatively amicably – in 2007, after nearly 20 years characterised by equal financial partnership. Clayton's wife Connie claimed a constructive trust over the shares, based on her contribution to her husband's success in the business. The central issue was whether there had been a valid gift at all; if there had, then it would fall outside Clayton's net family property under the FLA. The trial judge thought not: the transfer was one made for consideration, and Connie was therefore entitled to half the value of the shares; it was not necessary to consider the unjust enrichment claim. Clayton appealed.

The Court of Appeal reviewed the indicia of a gift and found there had been one; the strings attached to the gift did not invalidate the gift itself, even though Clayton was unaware of the conditions: McNamee v McNamee, 2011 ONCA 533 [Link available here]. The court went on to say that the trial judge was also wrong not to have assessed the unjust enrichment claim before dealing with equalisation under the FLA; it is necessary to determine who owns the property (including under a constructive trust) before the division can be made. The court then returned to the strings attached to the father's gift, finding them of no force or effect because they had not been disclosed to the son. As a result, the conditions could neither invalidate the gift nor prevent the imposition of a constructive trust over the subject of the gift. Whether a constructive trust arose was unclear on the evidence; a new trial on that question was ordered.


Lehman derivatives transaction did not run afoul of fraudulent conveyance rules, says UKSC

In 2002 a European subsidiary of Lehman Brothers created a complicated synthetic debt structure called Dante, which was intended to provide credit insurance for another subsidiary, LBSF, against credit events affecting certain reference entities, the obligations of which formed the reference portfolio. A special purpose vehicle issued notes to investors, the proceeds of which were used to purchase collateral which vested in a trust. The issuer entered into a swap with LBSF under which LBSF received the income on the collateral and paid the issuer the amount of interest due to noteholders. The trustee was to apply all proceeds from the collateral first towards meeting the issuer's obligations to LBSF and only after that in meeting the issuer's obligations to noteholders. All well and good. The catch was that if LBSF defaulted under the swap, priority shifted to the noteholders.

As you may recall, things went badly for Lehman Brothers in 2008 (infernally, in fact) and as a result LBSF defaulted on the Dante swap. The claims of noteholders exceeded the value of the collateral, meaning LBSF was deprived of its costs to unwind the transaction and its rights in the collateral.

LBSF tried to argue that the unwinding costs and its priority in the collateral formed part of its insolvent estate, and that the swap contract therefore violated the statutory and common-law 'anti-deprivation' rules in insolvency – the equivalent of Canadian fraudulent conveyance rules.

Nice try, but all three levels of court said no chance. The contractual arrangements were bona fide commercial agreements that did not involve a deliberate intention to defeat insolvency laws. In the UKSC, Lord Mance advanced the additional theory that LBSF wasn't really deprived of anything anyway: it didn't lose its priority but merely the opportunity to acquire that right; the switch in priorities simply amounted to termination of future reciprocal rights – also no evasion of insolvency laws.

Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd, [2011] UKSC 38 [Link available here].


Use of single colour probably not subject to trademark protection, says NY court

Christian Louboutin has been designing expensive women's shoes with a distinctive red sole since 1992. In 2008, Louboutin obtained a US trademark registration for what was called in the register the 'Red Sole Mark'. The 2011 cruisewear collection from the design house founded by Yves Saint Laurent (YSL) featured a number of shoes entirely in a similar colour, including their soles. Louboutin sued.

Marrero USDJ was asked to enjoin YSL from selling the red shoes but refused to do so: Christian Louboutin SA v Yves Saint Laurent America Inc. (SDNY, 10 August 2011) [Link available here]. He had 'serious doubts' that Louboutin's mark was genuinely protectable. Colour alone may sometimes be protectable, but not typically, and not where protection would significantly hinder competition. Giving Louboutin a monopoly over the colour red would be like saying that Monet couldn't use blue because Picasso cornered the market on it in his Blue Period. Even if valid, the Red Sole Mark only extended to a particular Pantone number; acceding to Louboutin's request for protection of a zone of related shades was unworkable.

The judge clearly had fun in considering 'the broad spectrum of absurdities that would follow' granting the injunction: among the authorities cited is a 2009 song in which Jennifer Lopez extols her Louboutins.


Useful review of indicia of partnership

Partners in Psychiatry (PP) and the Canadian Psychiatric Association (CPA) got together in order to develop continuing professional development programmes for CPA members under the name CPA CPD Institute. The relationship fell apart in 2009. PP sought a declaration that it had been a partnership and its share of the Institute's remaining assets.

The application judge correctly identified a partnership as a business carried on in common with a view to profit, and concluded the Institute was definitely a business. He then looked at the agreement between PP and CPA but failed to analyse its provisions in terms of the legal definition of partnership. Instead, he focused on elements of that relationship that were missing.

Wrong, said the Ontario Court of Appeal. The agreement included most, if not all of the classic indicia: both parties contributed money, knowledge and skill to the venture, and they shared responsibility for business operations and profits. The Institute was a partnership and PP was entitled to a share in its remaining assets.

Partners in Psychiatry v Canadian Psychiatric Association, 2011 ONCA 109 [Link available here].


Be careful what you take to the Antiques Roadshow

Margaret Smith turned up in 2006 to a taping of the Antiques Roadshow with an interesting document, the marriage licence issued in 1805 to Davy Crockett (the frontiersman and Alamo hero with the silly hat) but never executed (apparently because Crockett's intended later eloped with someone else).

Mrs. Smith claimed that the document had been obtained by her father in the 1930s or 40s, when the courthouse in Jefferson County, Tenn. was being 'cleared out'. The County was more interested than most to see the broadcast, having unsuccessfully negotiated with Mrs. Smith for the document's return in the 1990s. Seeing as negotiation hadn't worked, the county government went to court this time, obtaining a declaration that the licence was county property. The trial judge's assessment of Mrs. Smith's story of the document's acquisition is memorable (read it aloud in a fake Southern accent): 'that dog just won't hunt ... it just don't make sense' (especially given that documents immediately preceding and following the licence were still in the county archive).

The Tennessee appeals court agreed: the balance of the evidence showed that the licence had been wrongfully removed rather than abandoned; it defied credibility that the county would keep a whole raft of relatively uninteresting stuff from the relevant period but not a unique piece of demonstrable historical interest. The transcript of Mrs. Smith's Roadshow appearance was not admissible as an exception to the hearsay rule for recorded recollections [Link available here].


Domain name is personal property and a 'real and substantial connection' to jurisdiction: Ontario CA, a Nova Scotia tech company with a principal office in Ontario, bought over 30,000 domain names from an operation called Mailbank Inc. in 2006, including Lojas Renner SA, a Brazilian retailer and the owner of the trade-mark 'Renner' in Brazil and other countries, filed an objection to's use of under the World Intellectual Property Organisation (WIPO) rules. did not respond to the WIPO complaint but commenced an action in Ontario seeking a declaration that it had legitimate rights in the domain name. Tucows also asked WIPO to discontinue the complaint before it on the grounds that it duplicated the Ontario proceedings; WIPO agreed to this.

Renner objected to service on it in Brazil for the purposes of the Ontario action. Chapnik J found for Renner on the basis that service ex juris without a court order is permitted where there is a real and substantial connection to Ontario, which would in this case need to be predicated on real or personal property in Ontario. The domain name was not personal property and, being intangible, was not located in the province.

The Court of Appeal sided with Tucows. The legal status of domain names had not previously been determined, but Weiler JA was prepared to accept the emerging (and hardly surprising) view that they are intangible personal property. For the purposes of jurisdiction, the registrant and registrar of the domain name were located in Ontario, as were Tucows's servers. Service on Renner outside Ontario was valid. [Link available here].


DC Circuit Court nixes SEC proxy rule requiring inclusion of shareholder nominees

The US Court of Appeals for the District of Columbia Circuit has vacated a SEC rule which would have required companies and investment companies to include, under certain circumstances, the names of shareholder nominees for board positions in their proxy materials: Business Roundtable v Securities and Exchange Commission (DC Cir. 22 July 2011) [Link available here].

The Business Roundtable and the Chamber of Commerce of the United States argued that the SEC had adopted the rule (already once proposed and revised after comment) without adequately considering its effect on efficiency, competition and capital formation, as required under the Securities and Exchange Act and the Investment Company Act of 1940. The court agreed. The proposed rule violated the Administrative Procedure Act as an 'arbitrary and capricious' measure that did not consider the economic consequences and costs of companies of its imposition. There were also insufficient data to establish the SEC's contention that the rule would have improved board performance and increased shareholder value through the election of dissident nominees. The rule was vacated. The SEC has since indicated that it will not appeal the ruling.


Sophisticated investor's reliance on alleged misrepresentations of adviser not reasonable

Ashland Inc., a large chemical company, made investments in auction-rate securities (ARSs) on the advice of Byrne, its long-time investment adviser at Morgan Stanley (MS). Ashland alleged that it had made repeated enquiries about the liquidity risk associated with ARSs and received Byrne's assurances that all was fine with these investments, even in the light of failures of other auctions. Information about ARSs was not publicly available. In February 2008, Ashland placed sell orders but found that the market for ARSs was illiquid because MS was 'no longer stepping in to ensure auction success'. Ashland alleged that MS had known as early as the previous August that the ARS market was collapsing.

Caveat emptor, said both the New York District Court and, on appeal, the 2d Circuit. A sophisticated investor like Ashland could not plead reasonable reliance on alleged misrepresentations by the adviser, especially in light of MS's disclosure in SEC filings of the liquidity risks associated with ARSs.

Ashland Inc v Morgan Stanley & Co Inc (2d Cir. 28 July 2011).


Material contribution: New South Wales CA weighs in

Keith Evans smoked a pack or two of cigarettes a day for 40 years, until 1991. He was also exposed to asbestos dust in the course of his work for Queanbeyan city council from 1975 to 1990. He was diagnosed with lung cancer in 2006 and died. His widow sued the council, but lost.

The trial judge was not satisfied, on a balance of probabilities, that exposure to asbestos caused the disease that killed Evans.

The NSW court of appeal upheld this in Evans v Queanbeyan City Council, [2011] NSWCA 230 [Link available here]. It was open to the trial judge to reach the conclusions he did on the level of Evans's asbestos exposure, the combined effect of tobacco and asbestos and the resulting risks. The trial judge did not improperly limit analysis of causation to a 'but for' test, to the exclusion of material contribution by multiple factors.

The value of the judgment for us is the summary provided by Allsop P of material contribution in Australia, the UK and (to some extent) Canada. Allsop P declined to adopt the UK's modifications of the common law in Fairchild v Glenhaven Funeral Services Ltd [2002] [Link available here] UKHL 22 to permit proof of causation on the basis of a material increase in risk: this kind of change should be left to Australia's highest court. His account of the law of material contribution will nevertheless be required reading for the Supreme Court of Canada when it tackles causation in the upcoming appeal in Clements v Clements, 2010 BCCA 581[Link available here].


Can the unjustly enriched shelter behind the corporate veil?

Yes, in a word. In Costello v MacDonald, [2011] EWCA Civ 930 [Link available here], Mr. and Mrs. Costello had engaged a firm of builders to develop a property they owned. The Costellos indicated that for tax reasons they would be using a company called Oakwood Residential Ltd, of which they were the sole shareholders and directors. Oakwood was a shell with no assets. The builders helped the Costellos to obtain bank financing, which was channelled through Oakwood for the project. Later, there were disputes about whether the work had been completed and fully paid for.

The builders obtained judgment against Oakwood for breach of contract and against the Costellos personally under a restitution claim.

The Costellos appealed the latter. Etherton LJ observed that in one sense the Costellos had clearly been wrongfully enriched at the builders' expense; they received the benefit of services for which they did not pay (and had been assisted by the claimants in getting the initial funding for the project). On the law, however, the restitution claim against them had to fail; the parties had defined and, more to the point, restricted their obligations to each other, and the court was bound to uphold their allocation of risk. It is sound legal policy to refuse restitutionary relief for unjust enrichment against a defendant who has benefited from services performed by the claimant under a contract to which the defendant was not a party. The builders went into the contract with Oakwood with their eyes open to the possibility of getting stiffed, essentially.


ABQB prepared to rewrite will disinheriting adult son

Elsie Johansen left her entire estate ($116,000) to the Calgary Humane Society, disinheriting her 51-year-old son Kim Soule. Soule was unemployed, lived from hand to mouth and suffered from hepatitis C, probably contracted from drug use or unprotected sex. Mrs Johansen's lawyer testified that she had deliberately cut her son out of her will because she did not want to fund his drinking and drug use (although Soule testified that he had cut back on the booze and had not used drugs in 3 years).

Martin J granted Soule's application under the Dependants Relief Act, which allows a court to exercise its discretion to override the wishes of the deceased where inadequate provision has been made for a dependant, based on the perspective of that dependant. Soule was a dependant on the basis of his disability and (on balance) inability to earn a livelihood; provision in the will for his needs was inadequate; and if the will was not varied, he would have to be supported by the public purse.

Soule got all but $10,000 of the estate, which went to the Humane Society. Soule v Johansen Estate, 2011 ABQB 403 [Link available here].

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.