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30 Cards in this Set
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Harrison v Carswell |
Private property rights: Owner of mall allowed to exclude employees picketing outside their employment, thus trespassing charge ok - Carswell charged with trespassing in a shopping centre 4 times for picketing - Harrison is the manager of the centre Issue: Did the manager/owner of the mall have sufficient possession and control over the premises to enable him to invoke the remedy of trespassing? - no guards at doors - but if we allow A to remain on the property of B without Bs consent or desire, then does B really own the property? - no malice here, just exercising right |
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Dissent in Harrison (Laskin) |
- you cant just apply this precedent to a dif situation - Should the court yield mechanically to stare decisis and leave everything else to legislature? Trespassing is ancient and in Peters (case used in majority) was invoked in a new setting to suppress a lawful activity (picketing) - a person who came to the shopping mall for lawful reasons could not have been excluded by the owner. members of the public are privileged visitors whose privilege is revokable only upon misbehaviour - you should think of trespass as unjustified invasion not as unauthorized invasion. And if you think of it like that, then there is justified invasion- not all trespass is unjustified -The public area of a shopping mall cannot be equated to your house, the right to exclude operates differently. Once you open a mall, you have limited your own property rights to exclusion. - property isnt an absolute right, so it must be balanced against other rights |
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Cadillac Fairview Corp v RWDSU |
Property rights are not absolute. the right to exclude others from a public place that you own can be overcome by others legal rights (such as labour rights) - P prevented the D (Retail Wholesale and Department Store Union) From organizing activity in their shopping centre - the union wanted to organize Eaton’s employees in Toronto, and said that P acting on behalf of Eatons interfered with their right to organize - Eatons said the union had unauthorized entry onto premises and unauthorized distribution of literature - Issue: did Cadillac Fairview have sufficient control to exclude the union? Did they act on behalf of Eaton’s? - Fairview was acting on behalf of Eatons, didnt have sole operation of premises - there is no interference with the operation of the business/ access, they are exercising a legal right two levels below, before the store opens, and after closing - property rights should not get int he way of others right to protest- they are not absolute |
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Difference between Cadillac and Harrison? |
Harrison and Carswell they looked at it in the context of property only, and then B was trespassing on A and interfering with right to exclude. But Cadillac wasnt limiting property rights. The limitation flowed from the labour rights. You have to look at who is being excluded not just exclusion itself. The people are picketers and are exercising a legal right |
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Sifton v Sifton |
Certainty in estates: there is a high bar, conditions must be precise or it will be voidable - father left all his estate to his daughter to be given to her when she was 40 - there was also a condition that she must “continue to live in Canada" Issue: is the condition voidable for uncertainty? - **where there is ambiguity in a condition it will be decided in favour of the grantee - In defeasible interests, if the condition subsequent is void then it is merely stricken and the grant becomes absolute. Holding: condition is stricken, rest of estate remains same |
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Clayton v Ramsden |
When looking at conditions, we look at conceptual certainty, not factual certainty!! We also look at expressed intention- it must be objectively clear not subjectively - father gifted his estate to his daughter, subject to forfeiture should she not marry someone of jewish faith and of Jewish Parentage - she ends up marrying someone who is by no means ever of Jewish faith - court says that the clause is uncertain - what if he had converted (he didnt)? what if one parent was Jewish only (they werent)... - DOESNT MATTER that the factual case seems obviously to clash with the subjective intention of the father. The objective intention is what is on paper, and it is conceptually uncertain. Holding: condition stricken out |
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McColgan |
" until her death or until she is not residing there" is defeasible, and means a life estate. it is also uncertain, so is stricken. - a dying doctor leaves his house to his life companion - he says that it shall be hers until her death or until she doenst live there personally, whichever comes first - she has to go live with a doctor for an undeterminable amount of time bc she is ill- does she have to give up her property rights? - * here they actually used the word “until” but it is still a defeasible condition |
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Noble v Wolf |
Covenant against transferring land to certain races not against public policy (no Constitutional rights at that point). If there is ever doubt about public policy, the benefit of doubt is extended to the covenant - A covenant that land should not be sold or transferred to Jews, Hebrews, Semitic, Negro, or coloured race or blood. - Wolf, an interested purchaser applied to have the covenant rendered invalid based on the fact it was against public policy. - This time cottage members from the surrounding property defended the covenant. - the court thinks that the point of it is just to maintain the cottage area as a place for a “pleasant summer residence” with members of the community being of a “class that can get along with one another” and that it in no way interferes with public policy Holding: covenant valid |
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How would have the court in Canada Trust have decided Noble v Wolfe (at the time of Noble V Wolfe)? |
e would have thought Noble and Wolf was rightly decided… because he didnt do it on a moral basis, he argued it was against public policy. And the public policy didnt really exist. Also, it is more to do with private law than public since its two people selling homes.. |
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Canada Trust Co and Ontario Human Rights Commission |
Charitable donation with restriction on race deemed void due to public policy. but only because it was a PUBLIC trust. You can still discriminate with private trusts - guy dies and leaves money to be given to students at Universities for scholarships - he limits the recipients to white protestants who would “further the Biritish Empire” because he believes their race is supreme - charitable trusts to the public are in the sphere of public policy , cant discriminate Holding: restriction void |
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Laurin v Iron Ore Company of Canada |
A covenant that is a restraint on alienation is fine, but a condition is not. If its linked to transfer of sale, it is more likely a condition. And if it is unreasonable it is more likely a condition - P bought land from the D (for one $)- land contained a condition that if either the P stops being employed by the D or the P wants to sell the land, they must offer it to the D for same price purchased (plus inflation) - the P can only sell to other employees of D - P wants the terms void in tha they violate the rule against inalienability - void if not reasonable or absolutely restrain alienation - the terms deemed to be a condition bc of relationship between employer-employee and bc they are unreasonable - Holding: void |
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Stephens v Gulf Oil Canada Ltd |
unless a document says its a condition, its a covenant. Here, if it were a condition, it would be void bc its restraint of alienation - Palen owns gas station, makes deal with Gulf Oil that he will give them right of first refusal and sell only their products if they loan him $ for more land - Plaen agrees to sell part of property to Stephens who had a garage on it. - they make agreement that each other has right of first refusal, and set rather low prices - When Pallen then went to sell, he never offered to Stephens, who didnt insist he did. But he sold to Gulf OIl for much more than he wouldve sold to Stephens - Shephens wants to enforce the mutual right of first refusal agreement now. Issue: is the agreement a condition or covenant? is it a restraint of alienation? - Holding: it is a covenant. UNLESS A DOCUMENT SAYS ITS A CONDITION (uses words like "provided, so as, on condition), THEN ITS A COVENANT. Also, even if it were a condition it would be invalid bc it is a restraint of alienation (bc of the fixed price) |
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Ellenborough Park |
Requirements for a right to be an easement: 1) must be a dominant and servient tenement (dominant has the benefit of the easement, servient owns the property) 2) easement must accommodate the dominant tenement 3) dominant and servient owners must be different 4) the right must be capable of being the subject matter of a grant (because easements cant pass through possession, only grants) - guys owned Ellenborough Park and sold the plots of and around it - they gave the owners of the new plots “free use and enjoyment” of the gardens at all times- many years later, the tenements (not the original ones, but people they have sold to) want to have this right recognized as an easement - gardens arent necessary to enjoy the house, but if you have a garden, is using it reasonably connected to using the house? Yes - they are sufficiently proximate to the gardens - all 4 conditions are met--> easement runs with property |
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Phipps v Pears |
there is no easement for protection from weather negative easements are very hard to get (dicta) - P and D owned adjacent houses with one wall almost touching - P’s wall was built close so he never weather proofed it (he couldnt really finish it)- D tore down his house and Ps house was damaged by weather - P sued for damages, claiming he had a right to be protected from weather - Denning says this is BS- there is no recognized easement for this - it would prevent someone from tearing down their house - P could have entered into a contract with D and that would have been enforceable - ** We usually deny neg easements bc it would unduly restrict the other person, and hamper legitimate development. |
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Wong v Beaumont Property Trust Ltd |
Grant or reservation of easements may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used - Mr Wong leased a basement for his Chinese restaurant - The lease said he should control all smells, comply with health regulations and not cause nuisance to the landlord or other occupiers. - The vent was inadequate, a larger flue needed to meet the current restaurant standards. - the previous owner had also had a restaurant, and had used the duct - the law will imply an easement to give effect to a common intention - there was a common intention for Wong to open a restaurant, and this vent is necessary to do so - When you imply an easement, you are saying that it wouldnt make sense without an easement |
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Sandom v Webb |
The onus on the grantor in a reservation is quite heavy. He must state it expressly at signing or else prove that it was reasonable contemplated by the parties at the time of the grant A grocer leases his building to a barber. - On the outside of the building, extending up the walls of barbers floors, were two advertisements. -These advertisements pre-dated barbers occupancy. One was for grocery store (located on the ground floor), which was painted on the bricks, and one for “Brymay safety matches” which was a billboard attached to the wall. - barber now alleges that he owns the space used for the advertisements and asks for all monies -Does the landlord have the right (an easement) to have an advertisement there and to gain revenue from it? - This may have worked in a grant but not for a reservation - it must be expressly stated in the agreement, or he must prove it was in reasonable contemplation - no easement of necessity since not a sufficient connection Holding: no easement, The landlord has not discharged his onus to prove that it was reasonably contemplated by both parties at the time of the grant that the right to collect ad revenues for 21 years was reserved. (they are not incidental to the nature of the transaction between the parties) |
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Barton v Raine |
no all reservations must follow Sandom and requite "affirmative evidence" excluding all other possibilities when it is open to the court to conclude that a reservation has been established by a necessary inference, they may find a reservation without such affirmative evidence same family- father and son own adjacent properties. - father has been allowed to use the driveway which is on sons property for years to access his own property - father dies and son sells property to D - Driveway is shared for a whole, but then D decides to block it with a fence. Issue: did the P establish an implied reservation on the a portion of the D’s driveway? - Judge says that the driveway was a “reality of their lives” “since the twenties. And that its existence as a shared roadway was “obvious to even the most casual observer” - onus on grantor is relaxes, more reasonable depending on the circumstances - that said, the standard is still higher than for the grantee (we still favour the grantee, even though the onus on the grantor has been relaxed) |
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Garfinkel v Kleinberg |
Show evidence that dominant owner and their predecessors acquiesced to the easement for required time period= easement - P and D have a wall between their houses - P claims he has the prescriptive right to use the chimney in the wall of the D house - the chimney is located close to where the two walls join, but is entirely on the property of the D - the chimney has been used continuously by the P from 1912-1952 - no agreement in writing nor oral discussion - the D argue that they had no knowledge of the P use of the chimney until 1949. They saw fumes coming into their house at that point- the original use of the chimney was at the permission of the first owners. - they called one of the previous owners, who had not given express permission but was aware of the use bc the wall would be warm. Holding: the D and their predecessors in title must be held to have knowledge that the chimney was being used- right granted - permission you keep your authority, acquiescence you abdicate your authority |
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Krouse |
Courts recognize tort of misappropriation of personality! But does exist here- no bear use, endorsement, attracting - Krouse was a semi-known football player - Chrysler produced an ad campaign where they distributed spotters for fans to follow football games and get to know the players - on the card was a picture of Krouse during a game from behind with his number 14 visible - Krouse sued for invasion of privacy, appropriation of personality, Analysis: - hes not " a superstar" - not a picture of Krouse, its a picture of a football game--> not "bear use" - Prof says en revanche a picture with Lebron James in it would be a picture of him even if it wasnt just of him, because hes a superstar, they “attract more liability” - there is a default assumption that they have a right to dissemination of information. This is limited/restricted in certain cases, but court says that as a pro athlete he has accepted a certain relaxation of this limitation - even if it was a picture of him, there is no endorsement, and not using him specifically as a means of attracting customers |
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Athans v Canadian Adventure Camps Ltd |
Court awards damages for appropriation of personality with no endorsement, but other commercial use - P is a famous water-skier, at least in waterskiing circles.- He has a “trademark” picture of himself in a particular waterskiing pose. - He was approached by D to endorse their camp, but declined. D then created a brochure with a drawing of a water-skier in this pose, such that anyone familiar with waterskiing would recognize as P. - The ad was used to promote the camp, but the camp lost money that summer. P sues for breach of personality rights. - it IS a picture of him unlike Krouse--> bear use - but they did not imply endorsement with the photo - But court awards damages bc the picture was used for commercial use (ie attracting customers) |
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Gould Estate v Stoddart Publishing Co |
Sales vs subject Test: you can write about someone, or give info , and it is not a tort, but if you use their identity for incidental reasons or as an endorsement to get sales, it is. - Gould was a famous pianist, interviewed by a Jock Carroll for a magazine - they had a number of interviews, some recorded, and Carroll took 400 photos - after Gould’s death, Carroll published an article of him as a young man via Stoddart. - Goulds estate never consented to this nor did they receive royalties - generally commercial use is about endorsement, but there is none here. You are allowed to write ABOUT something, or provide info about someone as subject (poster of Elvis, autobiography) - Court says that it is open to restrict appropriation of personality to endorsement (Dunno how without going against Athans...) - you also have to be mindful of the public interest of dissemination of information **The test is incredibly unclear. A poster of Elvis arguably uses him as the subject, and in order to make a sale. shitty shitty law |
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Water v Lane (What are the decisions of Halsbury, James, Robertson?) |
Authorship for copyright is linked to labour - reporters from the Times took down shorthand notes of a series of speeches given by the Earl of Rosebeerry (a politician) and later transcribed them, adding punctuation, corrections and revisions to produce verbatim the speeches- they published the speeches in the times - Lane published these speeches in a book, taking them from the reports of the speeches in the Times Issue: Could the reporters of the speech could be considered "authors" under the terms of the Copyright Act? What is authorship? Halsbury: sweat of brow/ labour (less interested in skill) James: need skill + merit (if you can infiltrate an anarchy meeting and copy verbatim, your skill in getting there is enough) Robertson: authorship is necessary to kick in copyright act (its not value that is at stake in copyright, its authorship) Majority: labour theory Holding: author prevented from publishing book |
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CCH Canadian Ltd v the Law Society |
Copying copyrighted material may be allowed if it passes the fair dealings test
- law society of upper canada (non-ptofit) offers request-based photocopying services to students, members, judges, etc at Osgoode Hall- you could photocopy statues, decisions, etc. - Three of the largest publishers of legal sources, CCH Canadian Limited included, sues the law society for copyright infringement of 11 specific works based on this photocopying practice Issues: was the material copyright? was the copying a violation of copyright? - material (headnotes, case summaries, decisions) was copyright: it was expression (in fixed form) not ideas - BUT copying was a done in "fair dealing" --> it was for research, private study + review. - there was limits on who could copy and what type of copying Holding: the copying fell within counds of fair dealing **Copyright law requires striking a balance between the rights of the public and the author (user and producer). We must incentivize creation and promote dissemination of information. |
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Mattel Inc V Canada Inc |
In analyzing confusion test, distinctiveness, length of time Barbie has been around, nature of wares, nature of trade (they operate in distinct channels), and degree of resemblance the court decided that there was no infringement. - P make Barbie dolls, which represent 35% of their total sales- the D seeks to register trade-marks in connection with its chain of Montreal “Barbie” restaurants - P opposes this, saying it would create confusion Issue: is D able to create a trade mark? Is P able to prevent others from using the name Barbie in relation to services very remote from the products that gave rise to Barbie’s fame? - P argues that the name “Barbie” now transcends the products which originally it served to distinguish, going beyond wares and services aimed at young girls to other diverse products like cologne and food products, bikes and backpacks. - the restaurants are primarily geared towards adults, but there are points of resemblance between the trademark D seeks and Barbie’s Holding: notwithstanding the fame of the mark, there is no likelihood of confusion |
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Diversified Products Corp v Tye-sil Corp |
A patent must be proved to be obvious or anticipated in order to be invalidated.
- Patent for a rowing exerciser that can be reoriented to be other workout equipments as wellheld by the P - P allege that D infringed the Patent by selling a convertible exercising apparatus using the same invention described in the Patent - the D asserted that the Patent was invalid because of : Anticipation, obviousness - court finds that the Ps patent is in fact novel, superior to previous model, had great commercial success, etc (NOT obvious) - court also finds that it is not anticipated as it included legs to be put up vertically, a position the previous version was inoperable in Holding: appeal dismissed, finding for P |
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Cochrane v Moore |
Establishes requirement: Delivery is necessary (but not sufficient) for gift - horse was property of Benzon, and ridden in a race by Moore. There was an accident and the horse was not declared winner. - Benzon gave Moore as a gift 1/4 of his horse. He then informed the guy whose stable the horse was at of his doing - Cochrane bought a bunch of horses from Benzon, including the one in question. Moores interest in the horse was brought up but then forgot about - Cochrane says that since delivery of the gift never occurred, no property in it passed - precedents had determined that a verbal gift followed by no delivery does not transfer the property to the donee - delivery confirms the donors intent to make the gift We will not find a gift valid unless change of possession has taken place delivery is not proof of transfer of the gift. Rather, it is an element of a gift. Without it, it is not a gift, but its existence does not prove that its a gift Holding: gift requires delivery |
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Cole |
Concept of delivery: requires an unequivocal transfer of possession. Saying "its all yours" isnt clear enough - Wealthy husband gifts his wife all the furniture and possessions in a new house he buys- he brings her in, uncovers her eyes and says this is all yours - he becomes bankrupt and the people he owes money to want to take the items in the house - counsel for wife says that all that needs to happen for gift to pass is the “gift words” and the seeing of the chattel - there must be evidence of delivery, that the ownership transferred, that he intended to gift them Holding: no delivery thus no gift (no transfer of possession). A gift must be unequivocally transferred and saying “its all yours” is unclear |
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Kooner v Kooner |
There is a requirement of intent for donatio mortis causa, along with delivery. You need a certain contemplation of death - Grandfather gives 10,000$ to grandson bc he thinks he is going to die. There is argument over whether he said if I dont die, I want it back - he doesnt, and wants the money back. - The money was put in an account in D name, but the interest cheques sent still to P address -The P kept the interest cheques coming to him -Grandfather says: delivery took place in absence of intent—> this argument won - “im going to cross the bridge if I dont make it you can have this phone” whats wrong with this being donatia mortis causa? you arent really contemplating death, but rather the uncertainty of life LOL- same thing in this case- there was a sense that he might die, he was sort of sick, but it was more contemplating the uncertainty of life. You dont have to expect death but you need more than just the thought that you may die. |
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Brown v Rottenberg et al |
In order for something to count as delivery, it must give access/ control over the goods/money - money of dying man was gifted to wife mortis causa on the way to the hospital - Passbook to one Ontario account and key to a safe were given to the stepmother (wife) in the car - key gives access to mortgages and money. When he gave her the key, he gave all control and access to this to the step mom. - both key and passbook give animus possedenti- but passbook—> factum possedenti not there because it doesnt give you control over the money. - does passbook = delivery of possession? in order, the contract must be written in it, or it must be necessary to retrieve the money |
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RE Zachariuc: Chevrier v Public Trustee |
For Mortis causa, a transfer of the means or part of the means of getting at the gift is sufficient for transfer (for mortis causa, factsthat would not ordinarily be counted as delivery are counted in mortis causa. Rules are relaxed a bit) - Zach is old man, his only friend is Chevrier- One night he is looking really bad, an he tells Chevrier he wants to leave all he owns to him. He also hells him the location of hidden money in the house. Gives him also the key to his home. - He dies that night before it can be put in writing - Chevrier helps the Public Trustee discover the hidden money, but they wont give it to him. - money is also found in the fridge - gift made in contemplation of death - he gets access to all of the money- the hidden money and the fridge money bc of having the key to the house and the knowledge Holding: it was Mortis Causa, judgement for plaintiff. |
