Month: December 2018

“It is well-established that the test for interpretation and certainty of the terms of a contract is objective. One party’s views about the agreement, or how it would later work, not agreed to by the other side, is irrelevant. See Ko v. Hillview Homes Ltd. 2012 ABCA 245 (CanLII), 2012 CarswellAlta 1759 (Alta. C.A.) at para. 26, citing, among other cases, Eli Lilly & Co. v Novopharm 1998 CanLII 791 (SCC), [1998] 2 SCR 129.

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The case of Neher v. Kossowan, 2008 CarswellAlta 847 (Alta QB) confirmed that when construing an agreement, the court must give effect to the plain meaning of the words used unless it would result in an absurdity to do so. Words other than terms of art are to be construed in their ordinary and natural sense.  It is also noted that the same rules govern the interpretation of domestic contracts as govern the interpretation of contracts generally (see Krone v. Krone, 2011 CarswellNfld 67, at para. 112 quoting  James G. McLeod & Alfred A. Mamo, Annual Review of Family Law, (Toronto: Thomson Carswell, 2008) at page 625.)”

Carrigan v Brewer, 2012 ONSC 6952 (CanLII) at 21 and 25

“Insofar as declaratory relief is concerned, I note that the jurisprudence is to the effect that the Superior Court’s jurisdiction to grant declaratory relief is not to be exercised in a vacuum; a court must have a reason to exercise its discretion to grant declaratory relief; where legislation exists dealing with the subject matter, the court should consider whether a legislative gap exists that would give rise to a jurisprudential reason for exercising the court’s discretion to grant declaratory relief. See, for example, Danso-Coffey v. Ontario, 2010 ONCA 171 (CanLII), 99 O.R. (3d) 401, at paras. 30-32; Donald J. M. Brown, Q.C. & the Honourable John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (2016-Rel. 3), (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 1-77. A declaration can only be granted if it will have practical utility in settling a “live controversy” between the parties: see Daniels v. Canada, 2016 SCC 12 (CanLII), 395 D.L.R. (4th) 381, at para. 11, Khadr v. Canada (Prime Minister), 2010 SCC 3 (CanLII), [2010] 1 S.C.R. 44, at para. 46; Brown and Evans, at p. 1-73. None of this jurisprudence was the subject of submissions before us.”

N.L. v. R.R.M., 2016 ONCA 915 (CanLII) at 51

“As the Supreme Court explained in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 60, the test for the demonstration of a reasonable apprehension of bias is as follows: What would an informed person viewing the matter realistically and practically – and having thought the matter through – conclude.  Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

Mwanri v. Mwanri, 2015 ONCA 843 at 16

“In our view, a party to a marriage contract cannot enter into it knowing of shortcomings in disclosure and then rely on those shortcomings as the basis to have the contract set aside: see Raaymakers v. Green, 2006 CanLII 719 (ON CA), [2006] O.J. No. 124, 25 R.F.L. (6th) 54 (C.A.), at para. 40.”

Butty v. Butty, 2009 ONCA 852 at 54