Canada: Court Of Appeal Summaries (July 16 – July 20, 2018)

Last Updated: July 26 2018
Article by John Polyzogopoulos

Following are the summaries of this week's civil decisions of the Court of Appeal of Ontario.

There were two property boundary disputes between neighbours decided this week, with different results. Both related to prescriptive easements and the "doctrine of lost modern grant". The test for getting a prescriptive easement over a neighbour's land, whether by statute or by the doctrine of lost modern grant is basically the same, and is as follows:

  1. a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land;
  2. the properties cannot be owned by the same person;
  3. the benefit of the easement must be reasonably necessary for the enjoyment of the doMinant tenement; and
  4. there must be 20 or 40 years' (depending on the facts and whether proceeding under statute or under the lost modern grant doctrine) continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner.

In English v Perras, the Court allowed the appeal and set aside the prescriptive easement that had been found by the application judge. The applicants had not succeeded in proving entitlement to the easement. The effect of the decision was to allow the respondent to keep a fence they had erected in the middle of what had been a shared driveway. On the other hand, in Hunsinger v. Carter, the Court allowed the appeal and expanded the more limited prescriptive easement that had been ordered by the application judge. The Court found that the application judge had erred in determining that the easement was not necessary over the front portion of the disputed area. The test is not whether the prescriptive easement is absolutely necessary in order to gain access, but whether it is necessary to gain "reasonably convenient" access.

In Di Gregorio v Sunwing Vacations Inc., vacationers were injured when the balcony railings in their hotel room in the Dominican Republic gave way. They sued in Ontario the hotel, hotel managers and Sunwing, the Canadian travel company that sold them the vacation package. The defendants moved to stay the claim on jurisdictional grounds and, alternatively, because the claims were out of time in accordance with the limitation period applicable in the Dominican Republic (six months for torts, two years for contracts). The motion judge dismissed the claims only in reliance on the six-month tort limitation period applicable in the Dominican Republic. The Court of Appeal allowed the appeal for several reasons. First, it was not open to the judge to decide the case only on the limitation period issue. She was first obligated to determine if she had jurisdiction before deciding any other issue. If there was no jurisdiction, the judge should not have decided the limitation period issue. As it turned out, there was jurisdiction because the accident had contractual implications between the various parties and some of those contracts were made in Ontario. Accordingly, there was a contract made in Ontario that was connected to the incident, and this therefore gave the court jurisdiction simpliciter. Second, the judge erred in applying the tort limitation period of the Dominican Republic (6 months) without determining whether there may have been a valid claim pleaded in contract (where a two-year limitation period applies). Third, the judge decided the limitation period issue as if the motion was a Rule 20 motion for summary judgment. However, neither party had relied on that rule in their materials, so it was therefore not clear that this was a motion for summary judgment. Finally, the judge's reasons did not permit for meaningful appellate review. In the circumstances, the Court declined to decide the limitation period issue and the parties will have to start all over again.

There was also a child custody decision, several criminal decisions, and a couple of Ontario Review Board decisions.

Civil Decisions

English v Perras, 2018 ONCA 649

[Hoy ACJO, Brown and Trotter JJA]

Counsel:

R Graystone, for the appellants

RD Aburto and J Polowin, for the respondents

Keywords: Real Property, Prescriptive Easements, Doctrine of Lost Modern Grant, Evidence, Burden of Proof, Barbour v Bailey, 2016 ONCA 98, 1043 Bloor Inc. v 1714104 Ontario Inc., 2013 ONCA 91, Land Titles Act, RSO 1990, c L5, s 51

Facts:

The appeal involves a dispute between neighbouring homeowners over the use and maintenance of a 14-foot wide strip of land (the "Shared Driveway") between their houses. There are garages at the rear of the lots, accessed exclusively via this strip of land. The property line runs down the middle of this strip.

Mr. and Mrs. P ("the P's") erected a fence down the centre of the Shared Driveway, just inside their property line. This allows the P's to drive vehicles from the road to their garage, but this prevents their neighbours, Mr. E and Ms. P, from accessing their garages from the road due to a retaining wall that narrows their driveway.

The legal rights of Mr. E and Ms. P fall to be determined largely by the conduct of their predecessors in title. The application judge found that, as a result of the historical use of the Shared Driveway, Mr. E and Ms. P are entitled to a prescriptive easement over the P's driveway. She ordered the P's to remove their fence.

The application judge concluded that Mr. E and Ms. P had acquired a prescriptive easement based on the doctrine of lost modern grant. The P's appealed contending that the requirements for a prescriptive easement have not been established.

Issues:

Did the application judge err in her application of the doctrine of lost modern grant by:

(1) finding that the use of the driveway had been "as of right", as opposed to by permission, and;

(2) finding that the easement was reasonably necessary to the enjoyment of Mr. E and Ms. P's property?

Holding: Appeal allowed.

Reasoning:

(1) The essential features of an easement are set out in Barbour v Bailey. To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or the right-of-way:

  1. there must be a dominant and servient tenement;
  2. the dominant and servient owners must be different persons;
  3. the easement must be capable of forming the subject matter of a grant;
  4. and the easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenant.

The Court of Appeal cited 1043 Bloor Inc. v 1714104 Ontario Inc., stating that the doctrine of lost modern grant is recognized as a method for acquiring a prescriptive easement. A prescriptive right emerges from long, uninterrupted, unchallenged use for a specified period of time – in Ontario, 20 years.

In Ontario, prescriptive easements have been abolished with respect to properties registered in the Land Titles system. Consequently, the 20-year period must precede the transfer of property into the Land Titles system. Both properties were registered in the Land Titles system in 1996. Mr. E and Ms. Phad to prove "uninterrupted and unchallenged use" for any 20-year period before 1996.

The courts have insisted on a high standard for establishing a prescriptive easement by lost modern grant.

There is a fine line between acquiescence in another's exercise of easement-like rights and use by permission. Accordingly, there must be clear and unambiguous evidence that the use of the land was as of right and not by permission. If a claim is equally consistent with both uses, a claim based on lost modern grant must fail.

In this case, the evidence did not establish anything more than permissive use during the prescriptive period. The Easement Agreement between the parties' predecessors in title was compelling evidence that the use during the prescriptive period was by way of permission. It does not clarify the existing rights of the owners at the time as reasoned by the application judge, because it would not make sense to limit its operation to 21 years if that were the case. The record shows that both owners were unsure of their respective rights.

(2) Yes. If it were not for the retaining wall, Mr. E and Ms. P would be able to use their driveway. This raises the question of whether there is an alternative solution that would allow Mr. E and Ms. P to reasonably enjoy their property and its driveway without resort to a prescriptive easement (that is, by removing the retaining wall). In the application judge's reasoning, she reversed the onus of proof, requiring the P's to establish that the easement was not necessary, and that the wall could be taken down. It was up to Mr. E and Ms. P to establish that the easement was reasonably necessary to the enjoyment of their property. On the evidence before the application judge, Mr. E and Ms. P did not prove that the easement was reasonably necessary to their enjoyment.

Hunsinger v. Carter, 2018 ONCA 656

[Feldman, Hourigan and Brown JJA]

Counsel:

CE McCarthy, for the appellant

T Nicholson, for the respondents

Keywords: Real Property, Prescriptive Easements, Doctrine of Lost Modern Grant, Real Property Limitations Act, RSO 1990, c L15, Section 31, Weidelich v. de Koning, 2014 ONCA 736

Facts:

The appellant brought an application for a declaration that he was entitled to an easement over a strip of land between his property and the property of the respondents, and to restrain the respondents from blocking his right of way by erecting a fence. The appellant had used a gravel strip to access the rear of his property for many years. Previous owners of the respondents' property had never disputed the appellant's use of the gravel strip.

Although the application judge found that the appellant had established an easement over the strip, he declared the easement over only the rear part of the strip, and concluded that the respondents could erect a fence to block the front of the strip, as the use of the front of the strip was not necessary for the appellant to access the rear of his property.

The appellant appeals the order allowing the respondents to erect the fence.

Issues:

(1) Did the application judge err in his articulation and application of the tests for determining whether a prescriptive easement has been established?

(2) Did the application judge err in determining the basis on which an obstruction of an easement or right of way will be allowed or limited?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The application judge erred in law when he referred to the Weidelich case when discussing the criteria for finding a prescriptive easement rather than applying section 31 of the Real Property Limitations Act, RSO 1990, c L15, or the doctrine of lost modern grant.

An easement by prescription can arise either under section 31 of the Real Property Limitations Act or pursuant to the doctrine of lost modern grant. Both have the same four requirements, which were properly recognized by the application judge: i) a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land; ii) the properties cannot be owned by the same person; iii) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and iv) there must be 20 or 40 years' continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner. The application judge erred in his application of Weidelich v. de Koning, 2014 ONCA 736 to conclude that the test for establishing a prescriptive easement is "reasonable convenience".

He also erred in his application of the test in Weidelich by conflating the criteria for finding an easement with the criteria for finding an encroachment.

(2) Yes. The application judge erred by imposing a test of necessity on the owner of the dominant tenement, rather than the test of whether the dominant owner would be able to use the easement as conveniently as before. The uncontradicted evidence was that large trucks have accessed the back of the appellant's property regularly over the entire time the appellant and his family have operated their business. The motion judge inferred that the trucks did not need to drive over the portion of the strip at the front half of the driveway but could stick to the appellant's side of the driveway until they got to the back half. Although this may be possible, it is clearly not as convenient as having access to the full driveway.

Di Gregorio v Sunwing Vacations Inc, 2018 ONCA 655

[Feldman, Hourigan and Brown JJA]

Counsel:

WG Scott, for the appellants

T Hartley and I Sfranciog, for the respondents

Keywords: Torts, Negligence, Breach of Contract, Civil Procedure, Jurisdiction Simpliciter, Club Resorts v Van Breda, 2012 SCC 17, Lapointe Rosenstein Marchand Melançon LLP. v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Foreign Limitation Periods, Summary Judgment, Procedural and Natural Justice, Failure to Give Reasons

Facts:

This is an appeal from the orders of the motion judge dismissing the appellants' claims based upon a foreign limitation period. The motion judge dismissed four actions commenced by the appellants as they relate to the respondents, AMR Resort Management, LLC ("AMR") and AM Resorts, LLC ("AM").

The appellants purchased a vacation package to attend the Dreams Punta Cana Resort and Spa (the "Resort"). DG and JP were standing on a hotel room balcony at the Resort when the balcony railing gave way, causing the two men to fall and sustain injuries. The appellants purchased their vacation package through their travel agent, from Sunwing Vacations Inc. ("Sunwing"). Sunwing had a contract with Perfect Tours NV ("Perfect Tours") with respect to bookings at the Resort. Perfect Tours was party to a hotel management agreement between AMR and a Dominican company that owned the Resort. The appellants allege that AMR and AM operated the Resort.

The appellants commenced four separate actions in Ontario. The respondents moved to stay or dismiss the actions against them. They argued that the Ontario courts do not have jurisdiction over the dispute. Alternatively, if the Ontario courts do have jurisdiction, they submitted that the laws of the Dominican Republic govern the action. The limitation period for a tort claim in the Dominican Republic is six months; therefore, the actions were statute-barred. Without addressing the jurisdictional argument, the motion judge determined that the laws of the Dominican Republic applied, that the actions could only be in tort, as there was no contractual relationship. Thus, the actions were statute-barred.

Issues:

(1) Did the motion judge err by failing to conduct a jurisdictional analysis?

(2) Did the motion judge err in her analysis of which limitation period would apply?

Holding: Appeal allowed.

Reasoning:

(1) Yes, the motion judge erred in law by inexplicably jumping to an analysis of the law of the Dominican Republic rather than conducting a jurisdictional analysis. The motion judge was obliged to conduct a jurisdictional analysis pursuant to Club Resorts v. Van Breda, 2012 SCC 17. In the absence of jurisdiction, courts should not be offering their views on cases that may not be properly before them. Had the motion judge conducted the jurisdictional analysis, she would have recognized that AM attorned to the Ontario courts because it filed a defence. AMR did not file a defence; it simply joined the motion for the stay. The motion judge should have identified the basis for jurisdiction over AMR.

The relevant jurisdictional connecting factor is the claim pleaded based on an Ontario contract. There was a dispute about whether the respondents were parties to that contract. For jurisdictional purposes, however, a contractual connection does not require that an alleged tortfeasor be a party to the contract or that its liability flows immediately from its contractual obligations. All that is required is that a defendant's conduct brings it within the scope of the contractual relationship and that the events that give rise to the claim flow from the contractual relationship: Lapointe Rosenstein Marchand Melançon LLP. v. Cassels Brock & Blackwell LLP, 2016 SCC 30, at paras. 32 and 44. Therefore, the Court concluded that there was a contractual connecting factor to Ontario and the Ontario courts had jurisdiction simpliciter over AMR. The respondents did not challenge jurisdiction on the basis of forum non conveniens, so that issue was not considered.

(2) Yes, the motion judge erred in her analysis of which limitation period would apply. There was no issue that the law of the Dominican Republic would apply. There was no dispute that under the laws of that country, negligence claims are subject to a six-month limitation period and that contract claims are subject to a two-year limitation period. The difficulty was in the motion judge's analysis of the issue of whether the claim was in tort or in contract.

The first problem was that it was unclear on what basis she was determining the limitation period issue. The parties advised in oral argument that the issue was argued as a summary judgment motion. However, there was no reference to rule 20 in the notice of motion or in the reasons. The test for granting summary judgment was also not referred to in the reasons and there was no analysis of whether it had been met. The moving parties ought to have made the rule they were relying on explicit in their materials.

There was also scant analysis on the issue of whether the appellants had a claim in contract. Instead, the trial judge simply asserted a bald conclusion that there was no contract claim in relation to the respondents. To the extent that any analysis can be discerned, it is flawed. For example, the motion judge stated that, "the only contractual breach pleaded by the plaintiffs was that between the plaintiffs and the vendor hotel accommodation, the Sunwing defendant..." The Court held that this was incorrect. The statement of claim was clear that a breach of contract claim was being asserted against the respondents. In addition to this factual error, the motion judge did not address in any meaningful way the appellants' key argument. The appellants relied on the fact that they had a contract with Sunwing, who had a contract with Perfect Tours, who in turn had a contract with the respondents. The appellants' counsel argued that his clients had a contract with respondents via agency or as an implied contract. The motion judge dismissed that submission without analysis.

The Court faced difficulty understanding the motion judge's chain of reasoning. The Court did not suggest that on a proper analysis the contractual arguments made by the appellants could not be rejected. But rather, a legal analysis must be rigorous; a series of conclusory statements is not sufficient. As a court of error correction, the Court required reasons that revealed, at a minimum, the decision made, the authority for the decision, the rationale for the decision, and the factual basis for the decision. Where that basic information is not provided or is not readily apparent from the record, the reasons do not permit appellate review. The Court therefore concluded that in addition to the palpable and overriding error of fact made by the motion judge, the reasons are inadequate, as they are not amenable to appellate review. They do not enlighten the parties or the Court regarding the basis for the decision.

In the result, the appeal was allowed and the orders of the motion judge were set aside. The Court found that the matters may proceed to trial or for a summary judgment motion as the parties may see fit.

Mattina v Mattina, 2018 ONCA 641

[Epstein, Lauwers, and van Rensburg JJA]

Counsel:

Martha McCarthy, Maureen Edwards, and Lauren Hanna, for the appellant

Salvatore Garcea and Gloria Nardi-Bell, for the respondent

Keywords: Family Law, Custody, Best Interests of the Child, Principle of Maximum Contact, Summary Judgement, Family Law Rules, s. 16, Expert Evidence, Children's Law Reform Act, RSO 1990, c C12, s. 30, Behrens v Stoodley (1999), 128 OAC 58, Gordon v Goertz, [1996] 2 SCR 27, Ojeikere v Ojeikere, 2017 ONCA 372, Canadian Charter of Rights and Freedoms, s. 7, s. 11(b)

Facts: The parties married in 1998 and separated in 2013. They had three sons. The father commenced a custody and access proceeding. On consent, the court ordered a custody and access assessment pursuant to s. 30 of the Children's Law Reform Act. That report was updated in 2015. The application was unlikely to be heard until 2017, so the father brought a motion seeking sole interim custody of the three sons for 90 days with no access to the mother and an order directing that during this period, the parents and children participate in the Family Bridges program. In the alternative, the father sought a directed trial on custody and access with expert evidence to be presented from the author of the s. 30 report and an expert in parental alienation. The mother brought a motion for summary judgement seeking sole custody of the three sons with access to the father at the discretion of the children. The summary judgement motion was granted.

Issues:

(1) Did the motion judge err by proceeding by way of summary judgment?

(2) Did the motion judge err in failing to attach sufficient weight to the s. 30 assessment and in his factual finding that there was no evidence that the mother had influenced the children?

(3) Did the motion judge err in law by failing to adequately consider the best interests of the children and the principle of maximum contact under the Divorce Act?

(4) Did the delays in the proceeding infringe on the father's Charter rights or Canada's international law obligations?

Holding: Appeal dismissed.

Reasoning:

(1) No. Summary judgment is available in non-divorce cases under s. 16 of the Family Law Rules. Both parties were firm in their position during the hearing of the motion that the record contained sufficient evidence to determine the issues by summary judgment. The motion judge reasonably concluded that he required no further clarification on the s. 30 assessments and that there was no requirement to allow the s. 30 assessor to give viva voce evidence.

(2) No. Decision-making ought not to be delegated to an assessor (Behrens v Stoodley). The original s. 30 assessment recommended the children and father engage in a therapeutic weekend with the assistance of a therapist, but the children refused to attend. In the updated report, the assessor recommended parent-child interaction therapy, but the therapist recommended a suspension of that service until the children expressed a desire to undergo therapy. The motion judge clearly relied on the assessor's reports. The issue before the judge was how much weight to give to the children's views and preferences. The motion judge reasonably concluded that the children's views and preferences were not manufactured or unduly influenced by the mother. Despite the s. 30 assessor's significant amount of work, she made no finding of parental alienation. There was ample evidence to support the motion judge's finding that the children had suffered physical abuse from their father.

(3) No. The best interests of the children are the only consideration in a principle of maximum contact analyses (Gordon v Goertz). The motion judge put great weight on the childrens' consistently expressed views and preferences. In so doing, the motions judge clearly relied on the s. 30 assessment reports to conclude that the children were expressing genuine views and preferences when they repeatedly informed various mental health professionals that they did not want their father to have access to them. The collective view of the children is also important (Ojeikere v Ojeikere) and here, all three children expressed the same views.

(4) No. The father contributed to the delay in the proceedings and the motion judge made his decision based only on the childrens' best interests. He made access at the children's discretion, which was clearly in accordance with the principles of fundamental justice and Canada's international law obligations.

Short Civil Decisions

Mancinelli v Royal Bank of Canada, 2018 ONCA 652

[Hoy ACJO, Brown and Trotter JJA]

Counsel:

KM Baert, CPoltak and L Sokolov, for the appellants

L Jackson, W Berman and C Horkins, for the respondents, the Bank of Montreal, BMO Financial Corp., BMO Harris Bank N.A., BMO Capital Markets Limited

P Le Vay, B van Niejenhuis and B Kates, for the respondents, Toronto Dominion Bank, TD Bank, N.A., TD Group Holdings, LLC, TD Bank USA, N.A. and TD Securities Limited

Keywords: Class Actions, Costs

Criminal and Regulatory Offences
R v Horsford, 2018 ONCA 639

[Benotto, Trotter and Paciocco JJA]

Counsel:

M Gourlay, duty counsel

I Bell, for the respondent

Keywords: Criminal Law, Leave to Appeal

R v Meloche, 2018 ONCA 640

[Benotto, Trotter and Paciocco JJA]

Counsel:

R Meloche, in person assisted by A Ohler duty counsel

G Choi, for the respondent

Keywords: Criminal Law, Sentencing, Probation

R v AP, 2018 ONCA 642 (publication ban)

[Benotto, Trotter and Paciocco JJA]

Counsel :

AP, acting in person

L Bolton, for the respondent

I Grant, duty counsel

Keywords: Criminal Law, Evidence, Credibility

R v Abdulle, 2018 ONCA 643

[Benotto, Trotter and Paciocco JJA]

Counsel:

MFA, acting in person

C Zary, for the respondent

I Grant, duty counsel

Keywords: Criminal Law, Fraud, Sentencing, Immigration and Refugee Protection Act, SC 2001, c 27, R v W(D), [1991] 1 SCR 742

R v Dinh, 2018 ONCA 644

[Benotto, Trotter and Paciocco JJA]

Counsel:

PXD, acting in person

V Goela, for the respondent

M Gourlay, duty counsel

Keywords: Criminal Law, Trafficking, Sentencing

R v Dubinksy, 2018 ONCA 645

[Benotto, Trotter and Paciocco JJA]

Counsel:

CD, acting in person

H Freeman, for the respondent

A Ohler, duty counsel

Keywords: Criminal Law, Aggravated Assault, Sentencing

R v Rockey, 2018 ONCA 646

[Benotto, Trotter and Paciocco JJA]

Counsel:

DWR, acting in person

E Dann, duty counsel

L Bolton, for the respondent

Keywords: Criminal Law, Driving Offences, Jury Instructions, Sentencing

R v Momprevil, 2018 ONCA 647

[Benotto, Trotter and Paciocco JJA]

Counsel:

BM, self-represented

I Grant, duty counsel

L Bolton, for the respondent

Keywords: Criminal Law, Criminal Harassment, Evidence, Canadian Charter of Rights and Freedoms

R v RJ, 2018 ONCA 648 (publication ban)

[Benotto, Trotter and Paciocco JJA]

Counsel:

RJ, self-represented

L Trevelyan, duty counsel

D Calderwood, for the respondent

Keywords: Criminal Law, Sexual Assault, Jury Instructions

R v MacIsaac, 2018 ONCA 650

[Watt, Brown and Huscroft JJA]

Counsel:

F Addario and J Foy, for the appellant

K Doherty, for the respondent

Keywords: Criminal Law, Aggravated Assault, Delay, Canadian Charter of Rights and Freedoms, Section 11(b), R v Jordan, 2016 SCC 27

R v Phillips, 2018 ONCA 651 (publication ban)

[Watt, Huscroft and Trotter JJA]

Counsel:

AK Kapoor and DC Achtemichuk, for the appellant

M Lai, for the respondent

Keywords: Criminal Law, Possession of a Firearm, Uttering Death Threats, Kidnapping, Unlawful Confinement, Robbery, Break and Enter, Mischief, Pointing a Firearm, Jury Instructions

R v Cherrington, 2018 ONCA 653

[Watt, Pardu and Roberts JJA]

Counsel:

GC, acting in person

A Hotke, for the respondent

A Moustacalis, appearing as amicus curiae

Keywords: Criminal Law, Fraud

Tompkins (Re), 2018 ONCA 654

[Strathy CJO, Watt and Epstein JJA]

Counsel:

E Dann, for the appellant

A Cappell, for the Ministry of the Attorney General

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

Keywords: Ontario Review Board, Criminal Law, Murder, Not Criminally Responsible

Valdez (Re), 2018 ONCA 657

[Lauwers, Miller and Fairburn JJA]

Counsel:

A Szigeti, for the appellant

J Reid, for the respondent Attorney General of Ontario

L Crowell, for the respondent Person in Charge of Ontario Shores Centre for Mental Health Sciences

Keywords: Ontario Review Board, Criminal Law, Arson, Failure to Comply with Probation, Not Criminally Responsible, Conditional Discharge

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.

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Authors
John Polyzogopoulos
Events from this Firm
29 Sep 2018, Speaking Engagement, Toronto, Canada

Blaneys Partner Diane Brooks will present her paper, 'Dealing with the Issues that Can Arise During the Ongoing Operation of a Private Company' at The Law Society of Ontario's Practice Gems: Essentials of the Privately Held Company forum on September 29.

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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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