Cases - property law - mod 10

Question 1

Lock Mac Holdings Ltd. v. Earle

Answer 1

• the applicant Lockmac Holdings Limited owns land on Lancaster Avenue, Saint John
• the deed was subjected to restrictions in 1937, when it was deeded to a former owner (Earle)
• restrictions were “any buildings… shall be single or semi-detached houses only” (restrictive covenant)
• now the applicant wants the court to order that the restrictive covenant to be invalid
• when the Earls signed the 1937 deed to Ford, they also owned the adjacent property (now the respondent owns this property)
• The respondents oppose the application to make the restrictive covenant invalid
• in this case the 4 requirements have not been met
• conclusion: The restrictive covenant in the 1937 was a personal covenant between Ford and the Earles who signed the deed, it does not run with the land because the deed itself did not define the land to be benefited, nor was it part of the building scheme. Thus, the restrictive covenant is invalid against the applicant and cannot be enforced by the respondents (therefore application allowed)

Question 2

Lock Mac Holdings Ltd. v. Earle - restrictive covenants

Answer 2

• The applicable rules distinguish between personal covenants and covenants that run with the land
• personal covenants are enforcible only by or against the original parties to the deed
• covenants that run with the land can be enforced by or against subsequent owners of specific lands
• A restrictive covenant will run with the land in two circumstances: where the covenant, whether or not expressly Made binding upon the successors and assigns of the grantee to whom it is initially conveyed, is expressly stated to run for the benefit of described lands of the covenantee; or even if failing that, the land against which the covenant is to run and the land for the benefit of which the covenant is to run are both part of a common building scheme, all parts of which are subject to - if not totally then at least substantially - to the same restrictions
• before a restrictive covenant in a building scheme can be upheld, 4 requirements must be met: 1) there must have been a common vendor under whom the various owners derive title, 2) before the lands were sold there was a scheme relating to a defined area for sale in lots containing restrictions which were to be imposed on the lots and which, though varying in details as to particular lots, were consistent only with some general development, 3) the restrictions were intended by the vendor to be and were for the benefit of all the lots, whether or not they were also intended to be and were for the benefit of other land retained by the vendor; and 4) that the original purchasers bought on the understanding that the restrictions were to endure for the benefit of the other lots included in the general scheme

Question 3

Peters v. Peters

Answer 3

• Donald Benjamin peters and Ruth Baumbach Peters acquired a summer cottage property
• in 1986, they transferred the property to their three sons, Kent, Randall, and Jeffery, each as to an undivided one-third interest
• scheduling difficulties arose
• there must be a sale for this property

Question 4

Semelhago v. Paramadevan

Answer 4

• Semelhago agreed to buy a house under construction in the Toronto area from the Paramadevan for $205,000, with a closing date of October 31
• Semelhago was going to pay $75,000 cash and $130,000 which he was going to raise by mortgaging his current house
• however, before the closing date, Paramadevan told Semelhago that he had changed his mind and was not willing to sell the house
• Semelhago sued for breach of contract
• The judge at trial held that Semelhago could choose between a) an order for specific performance and b) monetary damages that would place him in a position he would have been in it for sale had been completed (he chose the second option and the court awarded him $120,000)
• Paramadevan appealed on the grounds that the result was a windfall to the plaintiff, since he would be benefitting not only from the increase in the value of the new house, but also from the gain in the value of his old house
• The court of appeal agreed to allow the appeal, deducting from the amount awarded at trial and the carrying costs of $130,000 mortgage for six months plus notional interest earned on the $75,000
• semelhago appealed to the SCC, where the judge agreed with the original result reached at trial, but rejected the traditional view that specific performance is almost always available for contracts dealing with the purchase of land
• the result of this case is that the Supreme Court of Canada has effectively introduced a new rule that limits the remedy of specific performance to situations where the plaintive has legitimate grounds for saying that monetary damages would not provide an adequate remedy

Question 5

Thomas v. Canada (refer to textbook for more details)

Answer 5

• the plaintiff mistakenly received $18,000 in his post office box
• the plaintiff issues a statement of claim seeking an order for the defendant to return the $18,000 cash to him
• without looking at the address label, the plaintiff opened the envelope and discovered that it contained $18,000 (after opening he discovered it was not addressed to him)
• Thomas made a record of the money by photocopying it
• he then decided to take the money to the police
• the police found the intended recipient of the envelope refused to acknowledge ownership of the money
• the attorney general of Canada argued that Thomas is not entitled to the money because pursuant to the Canada post corporation act, it remained the property of Canada post
• they stated that Thomas is not entitled to the money because at no time was he in lawful possession of the money
• conclusion: an order for $18,000 cash to be returned over to Thomas is thereby granted the plaintiff

Question 6

Weitzner v. Herman - Ontario superior court of justice

Answer 6

• The court found as a matter of fact that Mr. W, who used part of the house in question as an office, placed $130,000 in cash in an old fire extinguisher and hid the fire extinguisher in the basement of the house
• he died and left all his property by will to his wife
• unaware that the money was hidden in the basement, she sold the house to Mr. and Mrs. Herman who contracted with Gansevles, a contractor, for demolition of the house
• gansevles found the fire extinguisher with the hidden money inside
• gansevles claim to be entitled to the money because they found it in demolition
• the Herman’s also wanted it saying “they were sold to house as is”
• Mrs W gets to keep money

Question 7

Longley v. Mitchell Fur Co. Ltd.

Answer 7

• A fur storage company excepted a valuable fur coat for off-season storage
• The coat was stolen by thieves who managed to break into the building, even though the company had carefully secured the property from forced entry
• The owner of the coat sued the storage company for the value of the stole coat
• in its defence, the storage company argued that it had taken reasonable care to protect the goods from being stolen
• the court held that the storage company was not an insurer of the goods and was only obliged to show that it took reasonable care and was not negligent in its care of the coat
• the case was dismissed

Question 8

Samuel Smith & Sons Ltd. v. Silverman

Answer 8

• Sussman was an executive employed by the plaintiff
• one evening, sussman took the company Cadillac to the theatre
• sussman paid $0.50 to Park in a downtown Toronto parking lot
• and he paid, he was given a receipt, which stated on it “we are not responsible for theft or damage of car or contents however cost”
• after the show he found that the car had been seriously damaged, the attendant was no longer there
• he sued the parking lot company for negligence
• while the defendant admitted to negligence, he relied on the words on the receipt and the 4 signs which said the same thing
• sussman argued that he had never before parked in that parking lot, that he did not see the signs and did not read the ticket
• Court held that Sussman had constructive knowledge of the disclaimer, that he had knowledge that he reasonably ought to have had in the circumstances
• in other words, a reasonable person would have taken notice of the language on the receipt and the signs, therefore he was deemed to have had that degree of knowledge

Question 9

Harvard College v. Canada not finished

Answer 9

• the respondent, the president and fellows of Harvard college, seeks to patent a mouse that has been genetically altered to increase its susceptibility to cancer, which makes it useful for cancer research (patent claims to extend to all non-humans mammals which have been similarly altered)
• in the patent application, the respondent seeks to protect both the process by which the oncomice are produced and the end product of the process
• The current act does not clearly indicate that higher life forms are patentable (the opposite is true)
• conclusion: the appeal is allowed

Question 10

Kirkbi AG (LEGO) v. Ritvik Holdings Inc. (mega blocks)

Answer 10

• commonly known as the Lego case, deals with the argument made by Lego that its popular Lego building blocks are protected in Canada by an unregistered trademark
• in a unanimous decision of the full Supreme Court of Canada, legos appeal was dismissed
• Lego argued that the distinctive geometrical pattern of raised studs on the top of its plastic building blocks constituted a trademark
• Patton protection for the locking system of Lego blocks expired in Canada in 1988
• shortly after Canadian toy manufacturer megablocks began selling building blocks virtually identical to those of lego
• Lego tried to register its blocks as a trademark, but the register of trademarks rejected legos trademark application on the basis that the distinctive element was purely functional in nature and therefore not capable of constituting a registered trademark
• lego then launched a claim against mega blocks for passing off legos trademark
• appellant no longer entitled to protection against competition

Question 11

Armando Pastor v. Roger Chen

Answer 11

• The claimant is a choreographer, dancer, dancing instructor specializing in the Cuban dance form which he reinterprets choreographically into his own brand and style
• he describes himself as the first dance instructor to introduce to Vancouver audiences a Cuban form of salsa called “la rueda”
• this dance apparently incorporates the traditional salsa dance form into a group situation and the claimant claims to have added this particular movement and dance styles which he claims to have invented and choreographed
• he registered a copyright of what he described in the registration as the wheel of the World a dramatic which purports to his best version of “la rueda”
• The defendant moved from being the star pupil to star performer in the claimants dance company after learning everything from the claimant in an apprenticeship
• upon graduating the defendant signed the following confidentially agreement with the claimant
• the confidentially agreement said the defendant would not divulge, publicly perform or teach the artistic work that he has had access to without the directors permission
• must figure out whether the confidential agreement entered into by the defendant amounted to an unenforcible restraint of trade
• only restricted from teaching and performing the claimants form of “la rueda”
• conclusion: the claimant is entitled to damages assessed on the basis of reason or compensation for the use of the confidential information

Question 12

Armando Pastor v. Roger Chen - three requirements of a valid confidentiality agreement

Answer 12

1. The confider must demonstrate that the information is confidential - it must not be something which is public property and public knowledge and the information must have the necessary quality of confidence about it
2. The information must have been communicated in circumstances importing an obligation of confidence
3. The confider must show that the confidant has breached the obligation undertaken

Question 13

Mattel, Inc. v. 3894207 Canada Inc. (read textbook for more details)

Answer 13

• The Barbie doll is said by the appellant toy manufacturer to be an iconic figure of pop culture
• The appellant opposes the respondents application to register it’s Barbies trademark and a related design in association with restaurant services on the basis that some marks are so famous such as Barbie, that cannot be used in Canada
• The trademark opposition board excepted the respondents argument of the Barbie name for a small chain of Montreal area restaurants would not likely create confusion in the marketplace with the appellant’s Barbies trademark and allowed the registration
• the boards decision was held reasonable