Canada: Ontario Court Of Appeal Summaries (October 23 – October 27, 2017)

Last Updated: November 6 2017
Article by John Polyzogopoulos

Good afternoon.

The only noteworthy decision of the Court of Appeal this week was Teixeira v. Markgraf Estate, which involved a determination of whether a $100,000 gift was perfected by way of delivery when the cheque was dishonoured by the bank and the donor died before the cheque could be replaced. The court agreed with the application judge that the gift had not been perfected by delivery and therefore was unenforceable as against the donor's estate.

Other topics covered included spousal support, breach of contract, setting aside default judgments, and the familiar issue of appellate jurisdiction (final versus interlocutory orders).

Enjoy the weekend,

Table of Contents:

Derbyshire v. Derbyshire, 2017 ONCA 809

Keywords:  Family Law, Spousal Support, Termination, Variation, Material Change in Circumstances, Retirement, Property, Gifts, Costs

  September Seventh Entertainment Limited v. The Feldman Agency, 2017 ONCA 815

Keywords: Contracts, Entertainment Law, Exclusion Clauses, Radius Clauses, Unconscionability, Reasonable Apprehension of Bias

Redabe Holdings Inc. v. I.C.I. Construction Corporation, 2017 ONCA 808

Keywords: Civil Procedure, Default Judgments, Setting Aside, Rules of Civil Procedure, Rules 19.05 and 19.06, Rule 19.05, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, Standard of Review, Discretionary Orders, Hill v. Forbes, 2007 ONCA 443

Shinder v. Shinder, 2017 ONCA 822

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Orders, Courts of Justice Act, s 6(2)

Teixeira v. Markgraf Estate, 2017 ONCA 819

Keywords: Wills and Estates Law, Contract Law, Gifts, Enforceability of Cheques, Consideration, Bills of Exchange Act, R.S.C. 1985, c. B-4, Estoppel, Perfection By Delivery, Peden v. Gear (1921), 50 O.L.R. 384 (H.C.), Pennington v. Waine [2002] EWCA Civ. 227.

For criminal and Ontario Review Board Decisions click here

For short civil decisions click here

Civil Decisions

Derbyshire v. Derbyshire, 2017 ONCA 809

[MacPherson, Juriansz and Roberts JJ.A.]

Counsel:

Gary S. Joseph and Ryan M. Kniznik, for the appellant

Michael Nash, for the respondent

Keywords:  Family Law, Spousal Support, Termination, Variation, Material Change in Circumstances, Retirement, Property, Gifts, Costs

Facts:

This appeal relates to two orders that were the result of a nine day family law trial focused on the principal issue of spousal support in the context of a 26 year marriage. The trial judge held that the respondent, Suzanne Derbyshire, was entitled to ongoing spousal support of $25,000 per month effective January 1, 2009. The trial judge ordered the appellant to pay costs of the trial in the amount of $250,000, inclusive of disbursements and HST.

First, the appellant contends that since the trial judge specifically included the appellant's potential imminent retirement from his very successful business in her analysis of the spousal support issue, she erred either by not providing for a review of spousal support upon the appellant's retirement or by not stating explicitly that the appellant's retirement would constitute a material change in circumstance justifying a review of spousal support.

Second, the appellant asserts that the trial judge erred by concluding that the respondent has no beneficial interest in the shares in a business transferred by Lawrence Deakins to his daughter, the respondent, and her husband, the appellant, during their marriage.

Third, he submits that if this court accepts his position on the second ground of appeal and concludes that the respondent is not holding certain assets in trust for her father, then her disposable income is substantially higher and a spousal support order of $25,000 per month is too high. Accordingly, spousal support should continue in the original amount of $15,000 per month.

Finally, the appellant contends that the trial judge erred taking only a mathematical approach to the quantum of costs and simply added up the billable hours claimed by the respondent's counsel.

Issue:

(1)  Did the judge err by not providing for a review of spousal support upon the appellant's retirement or by not stating explicitly that the appellant's retirement would constitute a material change in circumstances justifying a review of spousal support?

(2) Did the trial judge err by concluding that the respondent has no beneficial interest in the shares in a business transferred by Lawrence Deakins to his daughter, the respondent, and her husband, the appellant, during their marriage?

(3) If the court concludes that the respondent is not holding certain assets in trust for her father, then is the spousal support order too high?

(4) Did the trial judge err in calculating quantum of costs?

Holding:

Appeal dismissed.

Reasoning:

(1) No. There is nothing in the trial judge's language to even suggest that she was foreclosing a subsequent review of spousal support if and when the appellant retires. The trial judge said, at para. 93, that "[t[he periodic support ordered is subject to variation in the event of a material change in circumstances." It is obvious that retirement from a job that generates an annual income of more than $1,000,000 would constitute such an event. The respondent did not at trial, and does not on this appeal, suggest otherwise. There is not even an issue, let alone an error, with respect to the trial judge's treatment of the appellant's future retirement.

(2) No. The trial judge's conclusion on this issue is essentially a factual conclusion. Effectively, the appellant is asking this court to re-weigh the evidence that the trial judge carefully and thoroughly considered. Much of the appellant's argument was spent reviewing matters he submitted the trial judge should have considered as evidence supporting the transfers were a gift. However, it was for the trial judge, applying the correct legal principles, to weigh the various factors. Contrary to the appellant's submission, we are not persuaded that she placed too much weight on the factor of "control of the assets" in arriving at her conclusion that there was no gift.

(3) This issue does not arise in light of the Court's conclusion with respect to the second question.

(4) No. The court sees no basis upon which to interfere in the trial judge's cost for awards.  A review of the costs endorsement shows that she considered all relevant factors, including the positions of the parties, and arrived at a figure that seemed reasonable to her.

September Seventh Entertainment Limited v. The Feldman Agency, 2017 ONCA 815

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

K Fernandes, for the appellant

B Shiller and A Enenajor, for the respondents

Keywords: Contracts, Entertainment Law, Exclusion Clauses, Radius Clauses, Unconscionability, Reasonable Apprehension of Bias

Facts:

Jean-Paul Gauthier is the organizer of Hamilton's Harvest Picnic Festival and sued Feldman Talent Agency, as well as artists such as Jann Arden, country star Johnny Reid, alternative country band Cowboy Junkies, and others, alleging that they harmed the festival by not showing up for their performances and / or for violating radius clauses in their contracts. The bulk of Gauthier's law suit was dismissed by Justice Alan Whitten by way of summary judgment. Gauthier appealed.

Counsel for the appellant submitted that two comments made by the motion judge, one in argument and one in his reasons, created a reasonable apprehension of bias insofar as the trial judge's comments denigrated Mr. Gauthier's indigenous culture, beliefs and values.  Mr. Gauthier is the president of the appellant company and represented the appellant on the motion.

Issues:

(1) Did the motion judge's comments (one in argument and one in his reasons) create a reasonable apprehension of bias by way of denigrating Mr. Gauthier's indigenous culture, beliefs and values?

(2) Did the motion judge err in his interpretation of the exclusion clause and the limitation of liability clause in the various contracts?

Holding: Appeal dismissed.

  Reasoning:

  (1) No. Neither comment referred to by counsel could be understood by any reasonable observer as having anything to do with Mr. Gauthier's indigenous culture, beliefs or values.  Although the comments were sarcastic and sarcasm should be avoided in judgment writing, they were addressed to the nature of the public policy claim Mr. Gauthier advanced in his affidavit in support of his contention that certain provisions in the contracts were unconscionable and should not be enforced against the appellant.

(2) No. On their language, the provisions clearly applied to alleged breaches of the "radius" clauses.  The unconscionability argument advanced before the motion judge and renewed on appeal was properly rejected for the reasons given by the motion judge.

Redabe Holdings Inc. v. I.C.I. Construction Corporation, 2017 ONCA 808

[MacPherson, van Rensburg and Roberts JJ.A.]

Counsel:

R Shastri, for the appellant

R W Scriven, for the respondent

Keywords: Civil Procedure, Default Judgments, Setting Aside, Rules of Civil Procedure, Rules 19.05 and 19.06, Rule 19.05, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, Standard of Review, Discretionary Orders, Hill v. Forbes, 2007 ONCA 443

  Facts:

  The appellant, Luc Stand, introduced his co-defendant, Glenn Steven Abugov, to the principal of the respondent, Redabe Holdings Inc., for the purpose of obtaining financing for Abugov's company, ICI Construction Corporation ("ICI"). The respondent alleges that the appellant provided an oral personal guarantee for $50,000 on the first loan agreement between ICI and the respondent. ICI subsequently defaulted on that loan and the respondent looked to the appellant to honour his guarantee.

The respondent commenced an action to recover the outstanding debt against ICI and the $50,000 pledged under the appellant's personal guarantee. Although served personally with the statement of claim, the appellant took no steps to defend the action, other than to obtain Abugov's assurance that he would take care of the matter. Abugov failed to do so. As reflected in his June 2016 communications with the respondent, the appellant unsuccessfully attempted to resolve the dispute but did not defend the action. The respondent subsequently noted the appellant in default and then obtained default judgment in July 2016 on motion without notice to the appellant. The appellant moved to set aside the default judgment after enforcement proceedings had been commenced, but the motion was dismissed, hence this appeal.

Issues:

  (1) Did the motion judge err in failing to set aside the default judgment against the appellant?

Holding: Appeal dismissed.

Reasoning:

No.

The motion judge applied well-established criteria for determining whether the justice of the case required him to order that the default judgment be set aside: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194. While accepting that the appellant had an arguable defence and that he (and his company) would suffer prejudice, the motion judge found that the appellant's June 2016 communications with the respondent demonstrated that the appellant had acknowledged his debt to the respondent under a personal guarantee. Further, the motion judge concluded that the appellant had deliberately failed to respond to the respondent's statement of claim until he became aware of the garnishment and realized that his assets were at risk. After weighing all of these factors, the motion judge determined that the justice of the case did not warrant setting aside the default judgment and that, "to grant the motion would have a more adverse effect on the overall integrity of the administration of justice than to deny it". It is common ground that the determination of an appellant's motion to set aside a default requires an exercise of the motion judge's discretion in accordance with the well-known criteria that the motion judge applied in this case: Hill v. Forbes, 2007 ONCA 443. Absent an overriding and palpable error, or error of law, the Court of Appeal cannot interfere with the outcome.

The appellant framed his argument on the reasonable understanding that, as reflected in the order, default judgment was irregularly obtained as a result of a requisition submitted without evidence. If it had been obtained in this way, the appellant's argument would have had merit because, in accordance with Rule 19.06 of the Rules, on the face of the statement of claim, the pleading of an oral guarantee alone would not have entitled the respondent to judgment. If a default judgment is irregularly obtained, as a general rule, a defendant is entitled to an order, as of right, setting it aside, without the requirement of establishing a defence to the plaintiff's claim.

However, unknown to the appellant, the order for default judgment was obtained on a motion under Rule 19.05 of the Rules, supported by affidavit evidence from which the motion judge could infer that the appellant had acknowledged his debt to the respondent and properly grant default judgment. This inference was equally open for adoption by the motion judge hearing the motion to set aside the default judgment in assessing the merits of the appellant's defence to the respondent's action. The appellant's acknowledgment of his debt under his guarantee, coupled with what the motion judge found to be unreasonable and deliberate delay in responding to the statement of claim, tipped the balance of the factors that the motion judge had to consider and resulted in the dismissal of the appellant's motion to set aside the respondent's default judgment against him.

  Shinder v. Shinder, 2017 ONCA 822

[Nordheimer J.A.]

Counsel

H Niman & V Amyot, for the appellant/moving party in M48440

J N Moldaver for the responding party Solomon Shinder

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Orders, Courts of Justice Act, s 6(2)

Facts:

Due to uncertainty over whether an order of J. Wilson J. dated July 13, 2017 is a final or interlocutory order, the applicants filed both a Notice of Appeal to the Court of Appeal and a motion for leave to appeal in the Divisional Court.

In this motion for directions, the applicant sought an order that the motions for leave to appeal to the Divisional Court brought by the Respondent/Appellant and the Respondent, Sol Shinder, be heard by the Court of Appeal. Randi Shinder opposed this.

Issues:

(1) Should the motions judge grant the requested order?

Holding:

Motion denied.

Reasoning:

(1) No. There are two reasons. First, the Court of Appeal does not have jurisdiction to determine a motion for leave to appeal that is brought before the Divisional Court. Section 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 permits the Court of Appeal to hear an appeal that lies to the Divisional Court only where there is an appeal in the same proceeding in the Court of Appeal.

Second, even if the Court of Appeal had jurisdiction to transfer the matter from the Divisional Court to it, in order to do so, the motions judge would have to determine if the order that is being appealed is final or interlocutory, since only final orders are appealable to the Court of Appeal. This is a question of jurisdiction and only a panel of the Court of Appeal can determine a jurisdiction issue, not a motions judge.

Teixeira v. Markgraf Estate, 2017 ONCA 819

[Strathy C.J.O., van Rensburg and Trotter JJ.A.]

Counsel:

Don Morris, for the appellant

Andrew L. Keesmaat, for the respondents

Keywords: Wills and Estates Law, Contract Law, Gifts, Enforceability of Cheques, Consideration, Bills of Exchange Act, R.S.C. 1985, c. B-4, Estoppel, Perfection By Delivery, Peden v. Gear (1921), 50 O.L.R. 384 (H.C.), Pennington v. Waine [2002] EWCA Civ. 227.

Facts:

The appellant, Arlindo Teixeira ("Arlindo"), was a good neighbour and long-time friend to Mary Markgraf ("Mary"), often providing her assistance with household maintenance. Shortly before her death, Mary made a will. She made a bequest to Arlindo of $100,000. She also wrote out a cheque to him for $100,000. She asked her stepson to give it to Arlindo with instructions that he should take it to her bank the next day. Arlindo attempted to deposit the cheque at the bank the following day. However, Mary had insufficient funds in her account at that time. Mary died soon after, and her son held the position that the cheque was an imperfect gift that was not legally enforceable. Arlindo therefore only received Mary's $100,000 bequest under the will. Arlindo sued Mary's estate for the value of the cheque. The application judge dismissed his claim, finding that the gift failed for lack of delivery.

Issue:

(1) Did Arlindo's good deeds provide contractual consideration for the cheque?

(2) Was the cheque enforceable by virtue of the Bill of Exchange Act? Was the cheque dishonoured when it was taken to Mary's bank?

(3) Was the gift by cheque perfected by delivery?

(4) Can estoppel be invoked in these circumstances according to the principle that "equity will not strive officiously to defeat a gift"?

(5) Should leave to appeal the costs order be granted?

Holding: Appeal dismissed.

Reasoning:

(1) No. The claim based on contract fails because of the application judge's findings that there was no contract between the parties and that Arlindo's assistance to the deceased were gratuitous. These findings of fact are unassailable. The appellant has demonstrated no palpable and overriding error in the application judge's assessment of the evidence.

(2) No. The application judge's findings of fact that there was no consideration or contract are also determinative of the appellant's arguments under the Bill of Exchange Act (BEA). It is settled law that, as between the immediate parties, the failure or absence of consideration is a complete defence to an action on a bill of exchange. There is nothing in the application judge's reasons to support the appellant's claim that there was some, but inadequate, consideration for the cheque. This is a case of complete absence of consideration.

The Court compared Arlindo's circumstances with those in Peden v. Gear (1921), 50 O.L.R. 384 (H.C.). In that case, the daughter of the deceased sued on a promissory note given to her by her father before his death. It was admitted that there was no consideration for the note, which was given solely for natural love and affection. In order to rely on the provisions of the BEA, the appellant had to establish that the cheque constituted something other than a gift. Mary's death did not change the underlying nature of the cheque. Possession of the cheque, without more, does not allow Arlindo to successfully sue for its value.

Further, there was insufficient evidence in the record to permit the Court to make a determination with respect to the appellant's alternative submission that the cheque was dishonoured when he presented it to Mary's bank before her death. Assuming for the purposes of argument that the cheque was dishonoured, the reason was evidently that there were insufficient funds in the account. Despite her good intentions, Mary could not give what she did not have and the appellant had no cause of action on the cheque.

(3) No. The application judge was correct in holding that the cheque was a gift inter vivos and that the law of gifts applied to the facts of this case. The absence of consideration is one of the central indicia of a gift at law. By its very nature, a gift is a voluntary transfer of property to another without consideration.

The three elements of a legally valid gift identified by the application judge are well established: (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration; (2) an acceptance of the gift by the donee; and (3) a sufficient act of delivery or transfer of the property to complete the transaction. The central issue in this case is whether the delivery of the cheque for $100,000 into the hands of the appellant could be a sufficient act of delivery of the gift, given that the funds were unavailable in Mary's account.

The delivery requirement is an important distinguishing feature of gifts as compared to other methods of transferring property, such as by contract. In order for a gift to be valid and enforceable, the donor must have done everything necessary and in his or her power to effect the transfer of the property.  A gift of money by cheque can be problematic, due to the nature of a cheque. A cheque is not money nor is it a transfer of property. It is a direction by the drawer to the drawer's bank to pay a sum of money to the payee. The direction can be revoked by the drawer at any time. For these reasons, a gift by cheque is not complete when the cheque is given to the donee. It is only complete when the cheque has been cashed or has cleared. The purported gift of $100,000 by way of cheque failed because the funds were not delivered to the appellant before the bank received notice of Mary's death.

(4) No. Estoppel by convention is an equitable doctrine that holds parties to the facts or law or other assumption they have agreed to as the basis for a transaction to which they are parties. The doctrine consists of the following criteria:

(i) the parties' dealings must have been based on a shared assumption of fact or law:  estoppel requires manifest representation by statement or conduct creating a mutual  assumption. Nevertheless, estoppel can arise out of silence;

(ii) a party must have conducted itself, i.e. acted in reliance on such shared assumption, its actions resulting in a change of its legal position;

(iii) it must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.

The application judge referred to this test. He found that the appellant did not meet the test because he did not act in reliance on an assumption that Mary's cheque would be honoured. There was nothing unfair in the outcome because Mary could not give him what she did not have. The assumption was made after Mary's cheque was delivered to Arlindo. Everyone assumed that the cheque was good. Arlindo did not change his legal position as a result of that assumption. He simply hoped that he would receive Mary's gift. Therefore, the Court concluded that the doctrine of estoppel by convention does not assist the appellant.

The appellant further relied on the principle that "equity will not strive officiously to defeat a gift". In Pennington v. Waine, Lady Justice Arden observed that "[t]here must also be, in the interests of legal certainty, a clearly ascertainable point in time at which it can be said that the gift was completed, and this point in time must be arrived at on a principled basis." The Court agreed with that observation in the context of this case, which involves the well-settled law concerning the delivery of a gift by way of cheque.  Thus, the Court held that there was no basis for its application in this case.

(5) No. The application judge's costs order was discretionary. He considered the relevant principles with respect to costs, including those set out in Rule 57.01. The appellant has demonstrated no basis on which this court could find an error in the exercise of the application judge's discretion with respect to costs.

Criminal and Ontario Review Board Decisions

R v Gorburn 2017 ONCA 807

[van Rensburg, Pardu and Fairburn JJ.A]

Counsel:

G Gorburn, acting in person

A Derwa for the respondent

Keywords: Criminal Law, Drugs, Firearms, Ineffective Representation, Evidence, Exclusion, Canadian Charter of Rights and Freedoms, s.24(2)

R v Whiteley 2017 ONCA 804

[Doherty, LaForme and Paciocco  JJ.A]

Counsel:

E Taché-Green, for the appellant

N Dennison for the respondent

Keywords: Criminal Law, Aggravated Assault, Self-Defence, Sentencing, Pre-sentence Custody

  R v Hughes (Publication Ban) 2017 ONCA 814

[Doherty, LaForme and Paciocco JJ.A]

Counsel:

M Halfyard and B Vanderbeek, for the appellant

K Rawluk, for the respondent

Keywords: Criminal Law, Sexual Assault, Consent, Evidence, Credibility, R. v. W.(D.), [1991] 1 S.C.R. 742,  Reasonable Apprehension of Bias, Sentencing

R v Camara 2017 ONCA 817

[van Rensburg, Pardu and Fairburn JJ.A]

Counsel:

R Camara, acting in person

I R Smith, duty counsel

L Bolton, for the respondent

Keywords: Criminal Law, Aggravated Assault, Dangerous Offenders, Criminal Code, s. 753, Evidence, Sentencing

  R v Douale 2017 ONCA 820

[Laskin, Feldman and Blair JJ.A]

Counsel:

K Wilson, for the appellant

D Lumba, for the respondent

Keywords: Criminal Law, Appeal Book Endorsement, Question of Law, Canadian Charter of Rights and Freedoms, s.8

R v Thyagarajah 2017 ONCA 825

[Laskin, Feldman and Blair JJ.A]

Counsel:

M Schiffer, for the appellant

P Fraser, for the respondent

Keywords: Criminal Law, Sexual Assault,  Evidence, Fresh Evidence, R v Palmer, [1980] 1 S.C.R. 759, Expert Opinion, Complainant's Criminal Record, Hearsay, Videotaped Statements, R. v. Khelawon, 2006 SCC 57, R. v. Bradshaw, 2017 SCC 35, DNA Evidence, Canadian Charter of Rights and Freedoms, s.11(b), R. v. Morin, [1992] 1 S.C.R. 771

  Barkhouse (Re) 2017 ONCA 823

[Hoy A.C.J.O., Laskin and Blair JJ.A]

Counsel:

D Medd, for appellant, Andrew Barkhouse

K Farrell, for the respondent, Her Majesty the Queen

G S  MacKenzie, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

J Blackburn, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Ontario Review Board, Criminal Law, Appeal Book Endorsement, Criminal Code, s. 672.54, Significant Threat to Public Safety

Gibson (Re) 2017 ONCA 816

[Doherty, LaForme and Paciocco JJ.A]

Counsel:

S Gehl , for the appellant

E Teed, for the respondent

Keywords: Ontario Review Board, Criminal Law, Appeal Book Endorsement, Conditional Discharges

Short Civil Decisions

Girao v Cunningham 2017 ONCA 811

[MacPherson, Juriansz and Roberts JJ.A]

Counsel:

Y Girao, acting in person

M J T Best, for the responding party

Keywords: Appeals, Perfection, Evidence, Transcripts

Jackson v Ontario 2017 ONCA 812

[Doherty, LaForme and Paciocco JJ.A]

Counsel:

S Barton, for the appellant

M Rupic for the respondent
Keywords: Administrative Law, Judicial Review, Private Prosecutions, Perjury, Prosecutorial Discretion, Standard of Review, Reasonableness, Abuse of Process

MacNamara v 2087850 Ontario ltd 2017 ONCA 813

[Simmons, Rouleau and Brown JJ.A]

Counsel:

M Farace, for the appellant

S Whitmore and C Smith  for the respondent

Keywords: Contracts, Construction Law, Fraud, Evidence, Admissibility, Opinion Evidence

Misir v Misir 2017 ONCA 810

[Pepall, van Rensburg and Trotter JJ.A]

Counsel:

D Reiter, S Hicks, and B Chung, for the appellants

A Chima, for the respondent

Keywords: Costs Endorsement, Self-Represented Litigants

A.M v Valoris Pour Enfants et Adultes de Prescott-Russell 2017 ONCA 818

[Hoy A.C.J.O., van Rensburg and Roberts JJ.A]

Counsel:

J Bergeron, for the appellant

A Paré-Chouinard, for the respondents

Keywords: Family Law, Adoption, Costs Endorsement, , Family Law Rules, Rule 24(2)

Anjum v John Doe 2017 ONCA 821

[MacFarland, Hourigan and Pardu JJ.A]

Counsel:

A Krajden, for the appellant

R Breedon, for the respondent

Keywords: Torts, Negligence, Motor Vehicle Accident, Contributory Negligence, Evidence, Credibility

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however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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