Author Archives: Jassmine Girgis

About Jassmine Girgis

B.A. (Calgary); JD (With Distinction) (Western); LL.M. (Cambridge). Associate Professor. Member of the Alberta Bar. Please click here for more information.

Must Creditors be “Analogous to Minority Shareholders” to Obtain Standing for Oppression?

By: Jassmine Girgis

 PDF Version: Must Creditors be “Analogous to Minority Shareholders” to Obtain Standing for Oppression?

Case Commented On: Pricewaterhouse Coopers Ltd v Perpetual Energy Inc, 2021 ABCA 16 (CanLII)

A creditor seeking an oppression remedy must qualify as a “proper person” to make an application. While deciding whether to grant standing, courts have at times maintained that a creditor must be in a position analogous to a minority shareholder. In Pricewaterhouse Coopers Ltd v Perpetual Energy Inc, 2021 ABCA 16 (CanLII) (Perpetual Energy), the Alberta Court of Appeal objected to the shorthand of that analogy while appearing to confirm its substance. This post will address when and how creditors can get complainant status under the oppression remedy, and the effect of the comment in Perpetual Energy on that understanding.

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Ranchman’s Receivership: Exploring Different Proprietary Rights in the Memorabilia

By: Jassmine Girgis*

PDF Version: Ranchman’s Receivership: Exploring Different Proprietary Rights in the Memorabilia

Article Commented On: Natalie Valleau, “Prized saddles, trophies and more picked up by rodeo families after Ranchman’s closure”, CBC News (2 October 2020)

Last month, one of Calgary’s iconic country bars closed its doors. Ranchman’s had been a part of Calgary’s western culture for close to 50 years, having first opened its doors April 27, 1972.

As is typical in receivership proceedings, the lender, the Bank of Montreal (BMO), seized Ranchman’s assets, including historic saddles and other memorabilia that hung from the building’s rafters. These memorabilia had been loaned to the bar by rodeo stars (referred to in this post as the “owners”); in exchange for food and drink, these owners allowed the bar to display the items, but on the understanding that they could take their property back whenever they wanted. Jim Gladstone, a champion calf-roper, commenced this practice after his 1977 world championship, wherein he took his champion saddle to Ranchman’s and, in exchange for not having to stand in line, pay cover, etc., he allowed Ranchman’s to display his saddle for free. Over the years, the bar acquired more memorabilia and trophies under the same conditions.

Upon reading about BMO’s decision to release the memorabilia to the owners (which came as a big relief to them and their families), I wondered whether BMO had concluded that it had no legal rights to retain the memorabilia, or had simply wanted to avoid a potential public relations nightmare (regardless of rights). Although BMO’s decision has rendered this point moot, I wanted to explore whether Ranchman’s could have had an interest in the memorabilia (referred to below as “collateral” or “property”), which would then have determined BMO’s legal rights in it. I write this post based solely on the facts garnered from a few newspaper articles (see here; here; and here).

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The Expansion of Unconscionability – The Supreme Court’s Uber Reach

By: Jassmine Girgis

PDF Version: The Expansion of Unconscionability – The Supreme Court’s Uber Reach

Case Commented On: Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII)

Contracts of adhesion, or standard form agreements (SFAs) are oftentimes unfair. They are drafted by the stronger parties. Their provisions are dense and difficult to understand. The party signing does not have a say in their contents – they are take-it-or-leave-it agreements. They are usually lengthy and cannot feasibly be read in the short time it takes the parties to transact. Some of the more onerous terms are deeply embedded (hidden?) in the document. The contracts more often than not limit the liability of the drafting party at the expense of the other party. They ensure occupiers are not liable for negligence, including their own. And the list goes on.

We are not powerless against these contracts – common law and equitable doctrines protect weaker parties from harsh or onerous provisions. Is this enough? Probably not. Certainly the Supreme Court of Canada thought more should be done to protect weaker parties against SFAs in the case of Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII). But instead of leaving this job to the legislature, as it should have, it expanded the reach of the doctrine of unconscionability without providing any substantial guidance or principles, thereby furnishing lower courts with an enormously powerful weapon to use against SFAs.

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Incorporating Waivers of Liability into Contracts

By: Jassmine Girgis

PDF Version: Incorporating Waivers of Liability into Contracts

Case Commented On: Apps v Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII)

Standard form agreements raise unique contracting issues. They are drafted by the more powerful party, they are take-it-or-leave-it agreements with no room for negotiation, and they typically contain waivers to limit the drafting party’s liability. And yet, most providers of services and/or goods use them to transact with the public. Given the fact that consumers rarely read these agreements before signing off on them, how can the requirement of consensus ad idem – i.e. a meeting of the minds – be established? Anticipated or expected terms do not give rise to this issue, but, if a clause is particularly onerous or unexpected, such as an “own negligence” clause, the drafting party must establish that the other party was notified of the clause, either through reasonable notice or previous experience. Otherwise, the clause will not be incorporated into the agreement.

These issues were raised in the recent BCCA decision in Apps v Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII) (Apps), a case involving a snowboarding accident at a British Columbia resort. After a summary of the decision, this post analyses the concept of knowledge when it comes to unsigned documents.

This post also argues that the current state of the law does not require as much as it should of occupiers, given the substantial benefit they derive from these waivers at the substantial cost to plaintiffs. It discusses the public policy choices involved in providing occupiers such broad scope to limit their liability, and proposes stricter rules to govern these kinds of clauses to better protect customers. Continue reading →

Bidders Do Not Owe Duties of Fairness and Honesty to Other Bidders in Tendering Competitions

By: Jassmine Girgis

PDF Version: Bidders Do Not Owe Duties of Fairness and Honesty to Other Bidders in Tendering Competitions

Case Commented On: LaPrairie Works Inc v Ledcor Alberta Limited, 2019 ABQB 701(CanLII)

This case raises the interesting question of whether bidders in a tendering competition owe duties of fair play to other bidders. The plaintiffs asserted that a contract had been formed among the bidders, requiring the bidders to treat each other fairly in the bid preparation stage, and that this contract had been breached at their expense. In a judgment summarily dismissing this claim, Justice Michael Lema found that the plaintiffs had not discharged the onus of proving a contract existed (at para 57). Continue reading →