Author: Jassmine Girgis Page 7 of 9

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

Douez v Facebook, Inc.: Public Policy and Broad Strokes

By Jassmine Girgis

On August 2, 2017

In Contracts, Internet Law, Privacy

By: Jassmine Girgis

PDF Version: Douez v Facebook, Inc.: Public Policy and Broad Strokes

Case Commented On: Douez v Facebook, Inc., 2017 SCC 33 (CanLII)

On its face, Douez v Facebook, Inc. decides the enforceability of a forum selection clause. But the Douez case also addresses public policy issues arising from consumer contracts of adhesion and the Internet era. A majority of the Supreme Court of Canada used public policy principles to find the clause unenforceable.

In British Columbia, a class action was brought against Facebook, Inc. on behalf of 8.1 million people. They alleged Facebook used the names and pictures of certain members for advertising without their consent, contrary to the Privacy Act, RSBC 1996, c 373. Facebook sought to stay the proceedings on the basis of a forum selection clause contained in its terms of use, terms to which all Facebook members must agree before they access the site. The clause requires all disputes be resolved in California, according to California law.

Mennillo v Intramodal inc.: The Supreme Court of Canada Revisits the Oppression Remedy

By Jassmine Girgis

On February 17, 2017

In Corporate / Commercial, Supreme Court of Canada

By: Jassmine Girgis

PDF Version: Mennillo v Intramodal inc.: The Supreme Court of Canada Revisits the Oppression Remedy

Case Commented On: Mennillo v Intramodal inc., 2016 SCC 51 (CanLII)

Mennillo v Intramodal inc. is the first oppression remedy case since BCE Inc. v 1976 Debentureholders 2008 SCC 69 (CanLII) (BCE) to reach the Supreme Court of Canada. The SCC had to determine whether the failure of a company to observe formalities required under the Canada Business Corporations Act, RSC 1985, c C-44 (CBCA) constituted oppression as against a former shareholder. The appeal of the former shareholder was dismissed on a finding that neither “sloppy paperwork on its own” nor “the corporation and its controlling shareholder treating [the former shareholder] exactly as he wanted to be treated” (at para 5) constituted oppression. There was a majority opinion (written by Cromwell J), a concurring opinion (McLachlin CJ and Moldaver J), and a strong dissent by Justice Côté.

This post deals with the comments made by the Court, including the dissent, on the oppression remedy. The oppression remedy is available when the court is satisfied that the corporation or its directors acted in a way that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, any security holder, creditor, director, or officer (CBCA, s 241(2)).

Fundamental Breach and Repudiatory Breach of Contract

By Jassmine Girgis

On November 7, 2013

In Contracts

PDF Version: Fundamental Breach and Repudiatory Breach of Contract

Case commented on: John Barlot Architect Ltd. v 413481 Alberta Ltd., 2013 ABQB 388

The doctrine of fundamental breach has caused much confusion, in part because of its relationship to the doctrine of repudiatory breach. The two are entirely different doctrines, but as I tell my students, it doesn’t help that sometimes, the doctrines are merged and the terms used interchangeably.

In effect, the two doctrines are quite separate and the finding of one type of breach leads to a significantly different outcome than a finding of the other. The problem occurs when, as in this decision, the two doctrines are combined and there is no clear indication of the differences between the two. That does not necessarily render the judgment incorrect but it does make for inaccurate references and confusing terminology.

This post will focus on the doctrines of fundamental and repudiatory breach. A shortened version of the facts will be provided, as not all of them are necessary for the purpose of this post.

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Beyond the Four Corners of the Contract: The Parol Evidence Rule, Implied Terms and the Duty of Good Faith

By Jassmine Girgis

On October 14, 2013

In Contracts

PDF Version: Beyond the Four Corners of the Contract: The Parol Evidence Rule, Implied Terms and the Duty of Good Faith

Case commented on: Bhasin v Hrynew, 2013 ABCA 98, leave to appeal granted, 2013 CanLII 53400 (SCC)

This appeal is ultimately about contractual interpretation. It is about the types of obligations, over and above the express terms, that can be brought into the contract and the difficulties created as a result of the assertion that the contract goes beyond its express terms. Importantly, it considers the duty of good faith in the context of commercial relations and, as stated by the Supreme Court of Canada, which has granted leave to appeal, whether such duty could be excluded by an entire agreement clause.

Contractual Interpretation and Context

By Jassmine Girgis

On July 24, 2013

In Contracts

PDF version: Contractual Interpretation and Context

Case commented on: Ziegler v Green Acres (Pine Lake) Ltd, 2013 ABQB 349.

Ziegler v Green Acres (Pine Lake) Ltd is a case that revolves around one provision in a unanimous shareholder agreement (USA). Due to tragic circumstances, the Applicants/Defendants (referred to as Defendants) ended up in court, in disagreement over the interpretation of the USA, and specifically, over whether the shares of a deceased shareholder had to be sold to the remaining shareholders, or could remain with the deceased’s wife.